Camoes & Blizzard & Anor

Case [2018] FamCA 811


FAMILY COURT OF AUSTRALIA

CAMOES & BLIZZARD AND ANOR [2018] FamCA 811

FAMILY LAW – PROPERTY – where the father seeks orders under s 90SN to vary or set aside final orders on the basis of exceptional circumstances and hardship where the mother retains the two children of the relationship in Country I contrary to an order of this Court – Where the father seeks assistance from the State Central Authority for a return of the children and succeeds at first instant but an appeal court overturns the judgment based upon the views of the parties’ nine year old child – where the Australian orders remain in force and there appear to be no parenting equivalent orders in Country I – where the father therefore continues to have caring responsibility under s 90SN(3) of the Act – where the court finds the circumstances are exceptional relating to the care, welfare and development of the children but that hardship is a difficult issue to establish because the father bases his application on the need to travel to Country I – where the Child Support (Assessment) Act 1989 makes specific provision for departure from administrative assessment where such travel costs are incurred-discussion about the problems of the clash of legislative principles–where the court refuses to exercise its discretion in favour of the father.

FAMILY LAW – CHILD SUPPORT – where the assessment was stayed pending determination of the Hague matters but in the interim, the father abandoned his departure application thereby removing the power of the court to continue the stay – where the Child Support Registrar seeks an order discharging the stay ab initio – order made.

FAMILY LAW – COSTS – where the father seeks costs of the various applications that he had to bring to enforce his orders – application on an indemnity basis – indemnity basis not justified but costs order made.

Acts Interpretation Act 1901 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Departure) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth)
Harris & Dewell & Harris [2018] FamCAFC 180
Houlihan and Houlihan (1991) FLC 92-248
Gyselman and Gyselman (1992) FLC 92-279
Masters & Cheyne [2016] FamCAFC 255
Sandrk and Sandrk (1991) FLC 92-260
APPLICANT: Mr Camoes
RESPONDENT: Ms Blizzard
AMICUS CURIAE: Child Support Registrar
FILE NUMBER: MLC 8891 of 2013
DATE DELIVERED: 9 October 2018
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Cronin J
HEARING DATE: 24 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort
SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers
COUNSEL FOR THE RESPONDENT: No Appearance
SOLICITOR FOR THE RESPONDENT: No Appearance
COUNSEL FOR THE
CHILD SUPPORT REGISTRAR AS AMICUS CURIAE:
Ms Johnson
SOLICITOR FOR THE
CHILD SUPPORT REGISTRAR:
Mills Oakley

Orders

  1. The father's application contained in the response filed 1 May 2018 seeking an order under section 90N of the Family Law Act 1975 (Cth), is dismissed.

  2. Paragraph 5 of the orders of…

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Details
AGLC
Camoes & Blizzard [2018] FamCA 811
Case
[2018] FamCA 811
Decision Date

CaseChat Overview and Summary

The father sought orders under s 90SN of the *Family Law Act 1975* (Cth) to vary or set aside final property orders made on 8 December 2015, alleging exceptional circumstances and hardship. The dispute arose from the mother retaining the two children of the relationship in Country I, contrary to an order of the Court. While the father had initially succeeded in obtaining assistance from the State Central Authority for the children's return, an appeal court overturned this judgment based on the views of the nine-year-old child. Consequently, the Australian parenting orders remained in force, and no equivalent orders appeared to exist in Country I, leaving the father with continued caring responsibility.

The court was required to determine whether the circumstances were exceptional and constituted hardship warranting the variation or setting aside of the final property orders. Specifically, the court considered the impact of the children's retention in Country I on their care, welfare, and development, and whether the father's need to travel to Country I to maintain contact constituted hardship in the context of the *Child Support (Assessment) Act 1989*. The court also addressed the discharge of a stay order concerning child support assessments, which had been granted pending the determination of Hague Convention matters.

In its reasoning, the court found that the circumstances surrounding the children's retention in Country I were exceptional, relating to their care, welfare, and development. However, it considered hardship a difficult issue to establish, particularly as the father's application was predicated on the necessity of incurring travel costs to Country I. The court noted that the *Child Support (Assessment) Act 1989* makes specific provision for departures from administrative assessments where such travel costs are incurred, highlighting a clash between legislative principles. Ultimately, the court refused to exercise its discretion in favour of the father regarding the variation of property orders.

The court made several orders, including dismissing the father's application under s 90N of the *Family Law Act 1975*, discharging a stay order concerning child support assessments *ab initio*, and ordering the mother to pay the father's costs fixed at $18,200. The solicitors acting as trustees for the mother were directed to pay these costs. Other injunctions were discharged, and a copy of the order and reasons were to be served on Mr AA. The mother's notice of discontinuance was to be treated as a discontinuance of all proceedings.

Orders

Orders of the court

1.

The father's application contained in the response filed 1 May 2018 seeking an order under section 90N of the Family Law Act 1975 (Cth), is dismissed.

2.

Paragraph 5 of the orders of 3 February 2017 (the stay order) is discharged ab initio.

3.

The mother pay the father's costs of the proceedings fixed in the sum of $18,200.

4.

That the solicitors acting as trustees for the mother pursuant to paragraph 2 of the orders of 23 December 2016 are directed, on behalf of the mother, to pay the solicitors for the father, $18,200 to satisfy the order for costs herein.

5.

That paragraphs 1 and 2 (the injunctions) made in the orders on 23 December 2016 are otherwise discharged.

6.

That a copy of this order together with a copy of the reasons for judgement this day are to be served upon Mr AA, by the solicitors for the father.

7.

The father's application by way of response filed 1 May 2018 is otherwise dismissed.

8.

For the avoidance of doubt, the mother's notice of discontinuance filed in January 2018 shall be treated as a discontinuance of all proceedings.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 8 December 2015 after several days of a contested international relocation parenting dispute, Stevenson J made the following orders that are relevant to the present dispute:…(2)The parties will have equal shared parental responsibility for the children.(3) The children will live with the mother.(4) The children will spend time with the father as follows:(a) Until C attains the age of five years:(i)Each alternate weekend from the conclusion of school/childcare on Friday until the commencement of school/childcare on Monday; (ii)Each alternate Wednesday from the commencement of school/childcare on Thursday; and(iii) On special occasions as defined in Order (5).(b) From C’s fifth birthday:(i)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on Tuesday;(ii)For one week in each Victorian school holiday period as agreed from time to time or to be the first week in default of agreement; and(iii)For one half of the Christmas school holidays commencing in 2016/2017 as agreed from time to time or to be the first half in default of agreement.(5)Each of the parties is at liberty to travel with the children to his and her country of origin, or such other international destinations as may be agreed from time to time, on one occasion per year.…Alteration of property interests(9)That both parties do all things and execute all documents necessary to effect the sale, for the best price reasonably obtainable, of the property situate at and known as D Street, Suburb E in the State of Victoria and to distribute the proceeds of such sale as follows:(a)in payment of agent’s commission and expenses incidental to the sale;(b) in payment of legal costs and expenses incidental to the sale;(c)in payment to Citibank of all moneys necessary to discharge the mortgage registered on the title to the property;(d)in payment of an amount equal to 69 per cent of the balance then remaining to the de facto wife; and(e) in payment of the balance to the de facto husband. Stevenson J rejected the mother’s application for permission to relocate to Country I, her country of birth. The basis behind that decision can be seen in the reasons for judgment which read:[50]In terms of the proposed relocation, I accept entirely that the mother and her family would make proper arrangements to meet the children’s day-to-day needs. The mother and children could live in the home of the maternal grandparents, until she is able to arrange independent accommodation. The mother and her parents have made enquiries concerning schools for the children. I have no concerns in relation to the physical environment which would be offered to the children in Country I.[51]The proposed relocation to Country I, however, would impose very significant changes to the children’s lives and require major adjustments on their part. They have lived in Australia for the whole of their lives and know of no other lifestyle. They have never so much as had a holiday in Country I or any other European country. In fact, they have never travelled outside Australia.…[70]If the mother and the children live in Country I and the father remains in Australia, there would be obvious difficulties in the children spending time and communicating with him. In my view the father is likely to follow the children to Europe but I am satisfied, on the balance of probabilities, that he would not live in Country I. That being so, there would still be practical difficulties in the children spending time and communicating with him.…[79]I accept that the mother would be happier in Country I, at least in the short term, but I share the concerns of the Family Consultant as to the likely impact upon the father and the children of the proposed relocation. The children have an established lifestyle in Australia, from which they will be entirely uprooted on the mother’s proposal. That outcome would most likely place the children and the father in a very unsettled state, with only the mother having a sense of an improved lifestyle. I accept that the mother will be likely to experience difficulties, at least in the short term, in coming to terms with an outcome whereby the children remain in Australia. I have no doubt that she will remain in this country with the children, for whom she wishes to retain primary care. (my emphasis)