Edwin and Edwin

[2016] FamCA 937

FAMILY COURT OF AUSTRALIA

EDWIN & EDWIN [2016] FamCA 937

FAMILY LAW – INTERIM PROPERTY SETTLEMANT – SPOUSAL MAINTENANCE

APPLICANT: Ms Edwin

RESPONDENT: Mr Edwin

FILE NUMBER: SYC 3798 of 2014

DATE DELIVERED: 4 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 1 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Watson & Watson Solicitors

SOLICITOR FOR THE RESPONDENT: A R Walmsley & Co

Orders

IT IS ORDERED

1. That the wife’s application for interim property settlement be dismissed.

2. That the wife’s application for costs in relation to the parenting application be dismissed.

IT IS NOTED

1. That the wife’s application for spousal maintenance is withdrawn.

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 Edwin & Edwin 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 SYDNEY

FILE NUMBER: SYC 3798 of 2014

Ms Edwin

Applicant

And

Mr Edwin

Respondent

REASONS FOR JUDGMENT

1. Ms Edwin (“the wife”) and Mr Edwin (“the husband”) married in 2005. The mother was born in India. Her parents live there. The father is of Indian descent. His parents live in Australia.

2. They have two children aged seven years and four years. The children live with the wife in the home of the maternal grandparents in India. The wife has lived in India since March 2012 when she travelled, with the older child, to India for the birth of the younger child. The husband remained in Australia. He husband has not met his younger child.

3. The parties bought a home in Australia. All of their property is in Australia.

4. On 20 June 2015, a court in India made parenting orders giving “permanent custody” of the children to the wife. Those orders were made in the absence of the husband.

5. The wife has filed an application for final orders in Australia for property settlement and an Application in a Case seeking spousal maintenance and interim property settlement. The husband opposes the making of those orders.

6. The wife’s application for spousal maintenance was withdrawn in opening. It was clear that the husband had no capacity to pay spousal maintenance.

7. The husband filed a Response to an Initiating Application on 15 December 2015 in which he sought, inter alia, parenting orders which would result in his spending time with the children in India where they would live. He also seeks an order for electronic contact using Skype or Facetime.

8. The issues before the Court for determination are:

   ·    Interim property settlement;

   ·    Should the parenting proceedings be heard in Australia;

   ·    Costs.

INTERIM PROPERTY SETTLEMENT

1. Although there is no jointly agreed balance sheet, for the purposes of this application I accept that the parties have modest assets. They own a house worth $750,000 according to the wife, or $700,000 according to the husband.  They each have a small amount in the bank. The wife has superannuation of $12,570 and the husband  about $132,000. They will not have access to their superannuation for many years.

2. The house is encumbered by a mortgage of $250,000. The husband deposed in his Financial Statement that he owes his parents about $73,000.

3. Thus, the net property for division is in the region of $450,000. However, the real issue between these parties is the use of significant sums of money by each of them after separation and their initial contributions. Each party asserts a significant initial contribution by parents. Each party disputes the asserted contribution on behalf of the other.

4. The husband alleges that the wife removed in excess of $100,000 from her share trading account and a further sum of about $60,000 from other accounts and has not accounted in these proceedings for those funds.

5. The wife alleges that the husband has spent $225,500 for which he has not satisfactorily accounted. It is the husband’s case that he spent that money in his attempts to bring the children back to Australia or to oppose the parenting proceedings in India. In his affidavit sworn 12 December 2015, the husband deposed:

   There are daunting practical obstacles to retrieving the children or even gaining spend time to them (sic). The situation in relation to my children is extraordinary, and I fear that I may never see them again. This money is not being held by me or by anybody else on my behalf.

   I have not acquired any assets with the money I withdrew, nor have I put it toward the joint property. I have not repaid any loan with this money.

6. The husband told his psychologist, Mr B, that he has paid $225,000 to extortionists having faced threats to the safety of the children and himself.

7. In the context of the available equity in the home, these amounts (in excess of $385,000) are significant.

8. It is not possible, in the context of an interlocutory application, to resolve the competing allegations. If the wife’s case is accepted, the husband may have had all that to which he is entitled. If the husband’s case is accepted, the wife may have had most of her entitlement.

9. Those are not the only matters which complicate the picture.

10. The wife asks the court to order that the house be sold and that she be paid $40,000, the balance to be invested pending determination of the final application. By way of final orders, she seeks 65 per cent of the net proceeds (whatever they may be determined to be).

11. The husband’s Response filed 15 December 2015, which seeks the sale of the home, payment of the mortgage and payment of the loan to his parents, seeks the following order at 19.5:

    The balance to be distributed 65% to the respondent and the balance to the NSW Public Trustee and Guardian to be paid to the applicant 1/10^th each year on the wife complying with the orders with regard to the Children’s spend time with the father (sic). The Public Trustee is not to make a payment under this order if the father files with the Public Trustee and Guardian a statutory declaration indicating the applicant’s non-compliance with parenting orders in which case no payment shall be made without an order of the Court.  

12. In essence, the husband asks the court to order that the wife provide surety for her facilitating his spending time with the children. Such an application is unusual but not beyond the power of the court.

13. If orders were made for interim property settlement as sought by the wife, then the husband’s final application would be rendered nugatory.

14. The power to make an order for interim property settlement is discretionary. Another matter that needs to be taken into account in determining whether to exercise that discretion is the husband’s health.

15. The husband’s psychologist, Mr B, in a report dated 18 September 2016, stated:

    [The husband] is acutely symptomatic and strongly reactive to adverse circumstances. He is currently experiencing overwhelming psychological distress as a result of circumstances over which he has no control. He is acutely suicidal and has plans in place to complete suicide.

    In these circumstances it must be understood unequivocally that any action which has a significantly adverse impact on [the husband’s] mental state is likely to result in his death (emphasis in original).

16. Having regard to all of the matters which are discussed above, it would not be just and equitable to make the orders for interim property settlement which the wife seeks.

THE PARENTING PROCEEDINGS

1. The principles to be applied when determining an application concerning competing fora in a parenting matter were determined by the Full Court of the Family Court of Australia in Kwon & Lee (2006) FLC 93-287 as follows at paragraph 83:

   We consider the following principles can be distilled from authority:

   (i) where an Australian court's jurisdiction under the Act is properly invoked in respect of a family law matter, including an application for divorce, and an issue of competing fora arises, generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law;

   (ii) in cases involving competing applications for differing types of relief arising from the breakdown of a marriage, or a de facto relationship (where the parties have children of that relationship), including some applications for parenting orders, it may be appropriate pursuant to the court's inherent power to grant a stay or an anti suit injunction based on common law principles;

   (iii) the granting of relief by way of a stay of proceedings is more likely to be appropriate in a case where the child or children, the subject matter of the litigation, are resident in the foreign forum, and there is no necessity to make any order other than a stay to determine the application before the court;

   (iv) in proceedings involving competing fora when the child is in Australia and the court's jurisdiction is regularly invoked, and it is necessary to make a parenting order for interim residence or an aspect of parental responsibility to provide effective relief, the principles relevant to the granting of a stay or an anti suit injunction are not the appropriate principles to be applied, and the court must make such orders as are necessary with the child's best interests as its paramount consideration (s 60CA);

   (v) if an order sought in addition to, or ancillary to, a stay is a parenting order it must be instituted under Part VII of the Act and determined in accordance with s 60CA;

   (vi) in some circumstances, such as an abduction from a non-Hague Convention country it may be appropriate for the matter to be dealt with by way of a speedy summary hearing and an order for the return of the child to the foreign jurisdiction. In making such summary order the court will have regard to the child's best interests as its paramount consideration;

   (vii) in cases, such as in (ii) above, where the Act does not proscribe a "best interests" requirement, the child's best interests will often be a significant and weighty matter to be taken into account; and

   (viii) that litigation involving children is not strictly inter partes litigation, and the child's best interests will almost inevitably be a significant matter.

2. And at paragraph 84 (emphasis added):

   We are satisfied that on the facts of this case, where the mother had regularly invoked the jurisdiction of the court for parenting orders whilst she and the child were present in the jurisdiction, and as it was necessary to make parenting orders to provide effective relief, the matter should not have been determined on the basis of the common law test of clearly inappropriate forum, but rather by a full or summary hearing applying the best interests principles.

3. A differently constituted Full Court in Karim & Khalid (2007) 38 Fam LR 300 (“Karim & Khalid”) held at paragraph 59:

   We thus endorse the view… that the sole principle which governs the determination of an application for the return of a child from Australia to a foreign non-Convention country is, as held by the High Court in ZP v PS (supra), the best interests of the child. Forum non conveniens principles are not relevant to such an application.

4. In the course of their judgement in Karim & Khalid, their Honours refer to the decision of the High Court in ZP v PS (1994) 181 CLR 639 (“ZP v PS”) where the High Court says at 648:

   Consequently, in some cases it may be a proper exercise of the welfare jurisdiction of the Family Court for the Court to make a summary order that a child be returned to a foreign jurisdiction so that questions concerning custody and access may be dealt with by the courts of that jurisdiction.

5. In ZP v PS the High Court adopts the principle  set forth by Neill LJ in In re F (Abduction: Custody Rights) (1991) Fam 25 as follows:

   The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.

6. Also in ZP & PS their Honours at 648 quoted with approval the statement by Neill LJ in In re F. (Abduction: Custody Rights) [1991] Fam 25 at 32:

   The general principle is that, in the ordinary way, any decision relating to the custody of children is best decided in the jurisdiction in which they have normally been resident. This general principle is an application of the wider and basic principle that the child’s welfare is the first and paramount consideration.

7. Mason CJ and Toohey and McHugh JJ said in ZP v PS, when an application for summary return is made:

   …the first issue is whether the welfare of the child requires the making of a

   summary order that those questions be tried in the foreign forum. It is only
   when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on

   determining the issue of custody itself.

8. And their Honours also said:

   Injustice to one or other of the parties, expense, inconvenience, and legitimate advantage, which are always relevant issues in a forum non conveniens case, are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum.

9. As was pointed out by the Chief Justice, and Toohey and Dawson JJ in the same case:

   If the Family Court forms the view that the welfare of a child prima facie requires that a foreign forum should determine custody of a child, it can only be in an exceptional case that a parent’s refusal to litigate the issue in the foreign forum can affect that view. If the parent was liable to be jailed or subjected to some cruel or unusual punishment in the foreign forum, it would be right to take into account that the refusal of the parent to litigate the issue of custody might result in an order that is contrary to the welfare of the child. But except in that class of case or some analogous case, a voluntary refusal to litigate the issue in the foreign forum should be disregarded if the parent can fairly litigate the issue in that forum.

10. The present application is not an application for return of a child to a foreign country, but the principles are applicable.

11. The husband has invoked the jurisdiction of the Family Court of Australia and it now falls to the Court to determine whether jurisdiction will be exercised.

12. Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) governs the conduct of the proceedings. Section 69ZQ(1) requires the court to determine whether the issue should be dealt with summarily and in what order the issues should be dealt with.

13. The parties have approached the application on the basis that the issue should be dealt with summarily.

14. It is important to note that the present determination is not a determination about what time the children will spend with their father but where that determination will be made. Nothing in these orders would prevent the husband from bringing proceedings in India although the difficulty and expense consequent on that course is acknowledged.

15. It is agreed, for the purpose of this application, that any order made in the Family Court of Australia in relation to the children would have no force or effect in India. There are no reciprocal arrangements between Australia and India.

16. Ordinarily, the court will not make an order which can have no effect.

17. There is no suggestion on the part of the wife that she ever intends to return to Australia or to bring the children within the jurisdiction so that any order for the children to spend time with their father could be enforced.

18. There is no mechanism available to the husband to enforce, in India, an order that he spend time with the children or have electronic communication with them.

19. I am conscious of the fact that the wife comes before the court, on the one hand invoking the jurisdiction of the court to hear and determine her application for financial orders, and on the other hand, denying the court the opportunity to determine parenting proceedings.

20. If the court were to embark on a hearing of the husband’s application in Australia, there would be insurmountable difficulties in putting evidence before the court which would assist in determining what orders would best serve the interests of the children.

21. There is no mechanism for obtaining evidence from a psychologist or social worker about the nature of the relationship of the older child with the husband. There is evidence, principally from the wife’s own letters to the husband, that the older child had a close and loving relationship with him, both before and after she travelled to India. That evidence stands in stark contrast to the wife’s affidavit evidence that the child was afraid of him and that he was not an involved parent.

22. Even if the husband were to travel to India so that a suitably qualified psychologist could prepare a report, it is likely that the wife would decline to comply with an order that facilitated the preparation of the report.

23. When the husband travelled to India in 2014, he was unsuccessful in his efforts to spend time with the children, despite numerous requests. There is no reason to expect that he would be more successful in the near future.

24. It would be unsafe to embark on a determination of the husband’s application for orders to spend time with the children, albeit in India, without evidence of the nature of the older child’s relationship with him now, as opposed to four years ago.  

25. It would be unsafe to proceed to determine the husband’s application that he spend time with the younger child, whom he has not met, without having cogent evidence about the likely effect on that child of such an order.

26. The best interests of these children requires that applications in relation to their parenting be determined in the country in which they live and have lived for the last four and a half years.

27. It can be seen from these reasons that, in considering the best interests of these children, greatest weight has been given to the matters in s 60CC(3)(d) of the Act which outweigh all of the other considerations.

28. The children have a right to a meaningful relationship with both of their parents, provided that is consistent with their best interests. That determination cannot be made in Australia.

COSTS

1. At the conclusion of submissions, the solicitor for the wife sought an order for costs in the parenting proceedings if she were successful in resisting the matter being heard in Australia. Both parties made submissions in relation to that aspect of the matter.

2. The application is governed by the provisions of s 117(2A) of the Act which is set out below:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant.

1. In Hawkins and Roe (2012) 47 Fam LR 526, their Honours May, Thackray and Ainslie-Wallace JJ stated at 529:

   [13] In considering the law applicable to the determination of costs applications, it is important to recall the general principle under the Act as expressed in s 117(1), that each party to proceedings shall bear their own costs.

   [14] In proceedings involving children’s or parenting matters, the general rule is not often displaced. The rationale for this practice is that in such matters it is proper that parents are able to put their case in seeking orders which they believe to be in the best interests of their children. It hardly needs to be said that the nature of family court litigation in relation to children is quite different to a commercial dispute in the state or federal courts.

2. The financial circumstances of each of the parties is similar. Neither has any substantial income. Their only assets are “tied up” in their property settlement proceedings and there is little equity for eventual distribution.

3. Neither party is in receipt of legal aid.

4. No submissions were made in relation to the conduct of the proceedings by either party.

5. It was not suggested that either party had failed to comply with a previous order of the court.

6. The husband has been wholly unsuccessful in persuading the court to determine the parenting proceedings in Australia.

7. There was no evidence of any offers in writing, although the solicitor for the wife alluded to correspondence directed to the solicitor for the husband but no correspondence was tendered or annexed to the wife’s affidavit. I was not provided with any correspondence containing an offer to resolve the matter in terms which would provide for the husband to have any contact, however minimal, with the children.

8. The husband’s application is not for an order that the children live with him but rather for orders that would allow him to communicate with them by electronic means and to travel to India and see them. The wife’s response is that his application should be dismissed.

9. I am conscious of the fact that, when the wife travelled to India with the eldest child on 4 March 2012, she did so for six months with the husband’s consent and on the basis that she would return to Australia with both of the children. She had return tickets.

10. In early 2012, before the baby was born, the wife wrote to the husband expressing concerns about how she would manage with both children on the flight back to Australia.

11. In the middle of 2012, the wife wrote to the husband on his birthday referring to “many more birthdays when we will be by your side”.

12. On 27 August 2012 the wife wrote to the husband saying that she was cancelling her return tickets because she was not well enough to travel. She apologised to him “that we are not flying as planned and as I was hoping to”.

13. On 13 September 2012 the wife wrote to the husband “I need you to trust me that I’ll be back at the first possible chance and trust my love and fidelity to you just as I trust you”.

14. It is not clear on the evidence when, if at all, the wife advised the husband that she did not intend to return to Australia. What is clear is that her decision to remain in India with the children was unilateral and strongly opposed by the husband.

15. The husband’s application has failed because the wife has removed the children from the jurisdiction, and beyond the reach of the court, with complete disregard for the rights of the husband who was exercising joint parental responsibility and of the children to have a meaningful relationship with him.

16. The wife’s application for costs will be dismissed.  

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 November 2016.

Associate: 

Date:  4/11/2016