Camoes and Blizzard (No 2)

[2016] FamCA 1121

FAMILY COURT OF AUSTRALIA

CAMOES & BLIZZARD (NO. 2) [2016] FamCA 1121

FAMILY LAW – Extempore ruling – urgent application by father – where mother has failed to return from Germany with the children – where father seeks the early release of monies to be held by solicitors for the mother as security by way of interim parenting orders together with additional monies for costs to make arrangements for the return of children to Australia – where father seeks to injunct mother’s portion of proceeds of sale pursuant to final property orders made arising from a de facto financial cause.

Family Law Act 1975 (Cth), 114(2A)(c)

APPLICANT: Mr Camoes

RESPONDENT: Ms Blizzard

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 8891 of 2013

DATE DELIVERED: 23 November 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 23 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Vohra

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Ms Swart

SOLICITOR FOR THE RESPONDENT: Robinson Gill

INDEPENDENT CHILDREN’S LAWYER: No appearance

Orders

1. Paragraph 2 of the applicant father’s Application in a Case filed 11 November 2016 be dismissed.

2. Paragraph 9 of the orders made by consent on 8 September 2016 be varied and the sum of $10,000 referred to therein be paid to the applicant father by way of payment into his solicitor’s trust account by whichever is first available of:

   (i)the deposit monies currently held by the selling agents from the sale of D Street, Suburb E; or

   (ii)the settlement monies from that sale.

3. The parties forthwith do all acts and things, and sign all documents as may be required to seek the early release of the deposit monies to give effect to order (2) above.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Camoes & Blizzard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8891  of 2013

Mr Camoes

Applicant

And

Ms Blizzard

Respondent

EXTEMPORE REASONS FOR JUDGMENT

Introduction

1. The applicant father brings an urgent Application in a Case seeking to injunct the disbursement of the proceeds of sale of a property registered in the name of the respondent and payable to her in accordance with final property orders made 8 December 2015 by way of de facto financial cause.

2. The applicant also seeks that the sum of $50,000 of the deposit monies of the proceeds of sale be distributed to him forthwith to fund a potential Hague Convention application and any incidental and further applications as a result of the respondent mother’s unlawful retention of the children overseas.

3. The children of the relationship are B born in 2008 and C born in 2011 (the children are eight and five years).

4. There appears to be no dispute that the mother has failed to return the children in accordance with interim orders made by Senior Registrar FitzGibbon on 8 September 2016 but there is no other evidence about this matter.

5. The mother opposed the application through her solicitors but did not attend Court.

Background

1. Final parenting and property orders were made by Stevenson J on 8 December 2015 after a trial which included an application by the mother to relocate to Germany with the two children.  That application was refused.  Those orders provided for the parents to have equal shared parental responsibility for the children and for the father to spend time with the children.

2. The mother made application to appeal those orders but subsequently withdrew that application. 

3. The mother has previously been admitted to Z Hospital as a psychiatric inpatient on a number of occasions.  Specifically, from 10 to 28 September 2015, from 10 December 2015 until 9 January 2016, from 5 to 26 February 2016 and the most recent admission being from 17 to 23 July 2016.

4. On 3 March 2016 the father filed an Application in a Case seeking the suspension of the final parenting orders and enforcement of the final property orders with respect to the sale of the property.

5. On 17 March 2016 further parenting orders were made providing, amongst other things, that the children live with the father and spend time with the mother.

6. The mother then filed an Initiating Application on 23 March 2016 seeking to relocate to Germany with the children and further, seeking sole parental responsibility for the children.  This application has not yet been listed for trial and the mother’s application for expedited hearing was dismissed on 7 June 2016 and the matter placed in the pool of cases awaiting a final hearing.  Consent orders were also made affecting the sale of the real property pursuant to the final property orders.

7. On 8 September 2016 Senior Registrar FitzGibbon made an interim order that the mother be permitted to travel to Europe with the children from 13 September 2016 to no later than 28 October 2016, the precise dates to be confirmed upon the issue of tickets.

8. He made other orders by consent of the parties which included an order for the mother upon her arrival in Germany to do all such acts and things and sign all such necessary documents to register the parenting orders with the appropriate authority and provide confirmation for the father and Independent Children’s Lawyer when she had done so.  There has been no indication that the mother has complied with this order.

9. Relevantly, paragraphs 6 to 9 of those orders provide:

   6. That in the event that the mother:

   (a)is hospitalised for mental health concerns whilst out of Australia during September and October 2016; or

   (b)is not able to or fails to return the children to Australia herself;

   then the father may collect the children and the children shall live with him until further order.

   7. The mother by this order, authorises the father:

   (a)to use the return portion of the children’s air tickets on a date nominated by him, with the cost to be paid by the father at first instance;

   (b)to make contact with any medical professional treating the mother for mental health issues during any admission to hospital whilst she is out of Australia during September and October 2016 for the purpose of informing the father of the mother’s immediate mental health concerns and prognosis with regard to her ability to return to Australia with the children pursuant to these orders;

   and provide written authorities to that effect to the father prior to her departure from Australia.

   8. That the father be reimbursed for all costs incurred in collecting the children and returning to Australia pursuant to order 6 herein and such reimbursement be paid from the $10,000 referred to in order 9 herein.

   9. The mother’s solicitors hold the sum of $10,000 from the mother’s share of the proceeds of sale of the property at [D Street, Suburb E] on trust for the parties to be released to the father forthwith upon it becoming available from the settlement in the event that the father is required to make arrangements for the children’s return to Australia pursuant to these orders, such sum to be released to the mother upon her return with the children pursuant to these orders and the mother’s solicitors do all things to facilitate the early release of the deposit from the sale for this purpose.

The evidence

1. The applicant father relies upon his Application in a Case and a supporting affidavit filed 11 November 2016.  The mother relies upon her Response to the Application and a supporting affidavit of her solicitor filed late yesterday.

2. The property at D Street. Suburb E sold for $932,000 with settlement due on 6 January 2017.  A deposit of $93,200 has been paid and is currently held by the selling agents.  Pursuant to the final property orders made, after the payment of the commission, expenses incidental to the sale, legal costs and the discharge of the mortgage registered on the title to the property an amount equal to 69 per cent of the balance then remaining is payable to the respondent and the balance to the applicant.

3. On the untested evidence of the solicitor for the mother, the balance due to the applicant on settlement is $167,779.

Conclusion

1. This is an urgent application where the evidence is untested.

2. Section 114(2A)(c) of the Family Law Act1975 (Cth) (“the Act”) enables the Court to provide a discretionary remedy. An order should only be made if it is proper and the onus is on the applicant to establish the basis for the making of an order.

3. There is no evidence in the applicant’s affidavit that he proposes to travel to Europe to collect the children and no evidence of the quantum of costs which might be incurred by the father in pursuit of Hague convention proceedings.  There has been no offer of an undertaking as to damages. 

4. There is already an order made by the Senior Registrar by consent of the parties for the sum of $10,000 to be held on trust from the proceeds of sale.  However settlement is not due until 6 January 2017 and the money cannot be released to the father under that order until it becomes available from the settlement, it would appear.

5. This is an urgent application where other issues have been gratuitously raised such as the caveat over the property lodged by the mother’s solicitors because of the outstanding costs owed to her solicitors which are to be paid from the proceeds of sale. 

6. It is unnecessary to determine such matters in this urgent application because I am not satisfied that a proper basis is established on the evidence presented to me for the making of an injunction.

7. However on the basis of the consent order made by the Senior Registrar which contemplated the very situation which now presents, where the mother has failed to return the children to Australia, I am satisfied that it is appropriate to make an order for the sum of $10,000 to be released from the deposit monies to the applicant as soon as the state law allows.  It seems to be common ground that there will be a statutory period of 28 days before that deposit can be released and that there will be an inevitable delay having been caused by the bank requiring the applicant to sign a document in respect of the mortgage.

8. Accordingly, I propose to make an order that the sum of $10,000 be disbursed to the husband from the deposit monies as soon as possible.  The specific terms of the order may need to be settled by counsel.

Costs

1. The applicant’s costs application foreshadows other proceedings in Australia and Germany or any other country necessary to return the children and it is inappropriate to make any order at this stage.

2. Further applications have been foreshadowed.   I propose to reserve the costs of both parties to these proceedings.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 23 November 2016.

Associate: 

Date:  22 December 2016