EULALI & EULALI
[2018] FamCA 512
•13 July 2018
FAMILY COURT OF AUSTRALIA
| EULALI & EULALI | [2018] FamCA 512 |
| FAMILY LAW – CHILD ABDUCTION – Child taken from Australia – Where the parties took the children on a holiday to Country H – Where the parties are in dispute as to whether they intended to return to Australia – Where the children received Country H citizenship after arriving – Whether the children should be returned to Australia. FAMILY LAW – INJUNCTIONS – Injunction restraining the father from returning to Country H – Likelihood that the father would return to the Commonwealth of Australia if permitted to depart. FAMILY LAW – PROPERTY – Interim – Injunction against dealing with property – Injunction restraining the use of rental income except for mortgage payments and outgoings. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA |
| Fallon & Bashandi [2013] FamCA 672 Keats & Keats [2016] FamCAFC 156 Marvel v Marvel [2010] FamCAFC 101 Mazorski v Albright [2007] FamCA 520 |
| APPLICANT: | Ms Eulali |
| RESPONDENT: | Mr Eulali |
| FILE NUMBER: | ADC | 1643 | of | 2018 |
| DATE DELIVERED: | 13 July 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 2 July 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dickson |
| SOLICITOR FOR THE APPLICANT: | AM Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Mellows |
| SOLICITOR FOR THE RESPONDENT: | Dorrian Legal |
BY CONSENT IT IS ORDERED:-
That until further order the wife be restrained from disposing of, encumbering or otherwise dealing with the property situate at B Street, Suburb C, South Australia, ...
That the husband do all things necessary to facilitate the wife and the children being able to communicate on a daily basis via Skype, Facetime or telephone PROVIDED that the wife shall instigate any telephone calls with the children.
IT IS ORDERED:
That the husband, his servants or agents do all things necessary to forthwith facilitate the immediate return of X born … 2009, Y born … 2010 and Z born …2012 (“the children”) to the Commonwealth of Australia.
That at the wife’s sole expense she shall provide for the children to return to Australia with … Airline or such other airline as the wife may nominate and the wife is to provide the husband with details of the itinerary and flight number.
That the wife shall collect the children from the arrival hall at the Adelaide Airport.
That the husband be restrained and an injunction granted restraining him from removing or causing the removal of the children from the care of the wife until further order and upon any breach the Marshall of the Family Court of Australia, all Officers of the Australian Federal Police and all Officers of the State and Territory Police are authorised and directed to arrest the husband without a warrant.
That the orders made 8 June 2018 do operate until further order.
That the wife cause all rental income payable by the tenants of the property situate at D Street, Suburb E, South Australia, … to be paid into the account held with the National Australia Bank BSB ... Account Number ...38, with the wife to manage the property, maintain all mortgage payments and outgoings in respect of the said property.
That the wife cause all rental income payable by the tenants of the property situate at F Street, Suburb G, South Australia, … to be paid into the account held with the National Australia Bank BSB ... Account Number ...34, with the wife to manage the property, maintain all mortgage payments and outgoings in respect of the said property.
That the husband be restrained and an injunction granted restraining him from removing any monies from:
(i)The National Australia Bank BSB ... Account Number ...38.
(ii)The National Australia Bank BSB ... Account Number ...34
That the wife be restrained and an injunction granted restraining her:-
(i)From removing any surplus money from the account with the National Australia Bank BSB ... Account Number ...38 other than as may be required to properly maintain the Suburb E property.
(ii)From removing any surplus money from the account with the National Australia Bank BSB ... Account Number ...34 other than as may be required to properly maintain the Suburb G property.
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 Eulali & Eulali 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 ADELAIDE |
FILE NUMBER: ADC 1643 of 2018
| Ms Eulali |
Applicant
And
| Mr Eulali |
Respondent
REASONS FOR JUDGMENT
introduction
By Initiating Application filed 1 May 2018 Ms Eulali (“the wife”) sought final orders that she have sole parental responsibility with respect to X born in 2009, Y born in 2010 and Z born in 2012 (collectively “the children”), that they live with her and spend time with Mr Eulali (“the husband”) in Australia.
The proceedings also involve property settlement and the wife seeks that the property of the parties be adjusted as to 95 per cent to her and 5 per cent to the husband.
The interim orders sought are in terms similar to the final orders but in addition the wife sought orders that the husband and the children be placed on the Airport Watch List preventing their removal from the Commonwealth of Australia, that the husband surrender his passport upon arrival in Australia and that pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”) a Recovery Order do issue seeking the recovery and return of the children to her care.
On 8 June 2018 orders were made ex-parte that restrained the husband from leaving Australia.
On 25 June 2018 leave was given to the husband to file and serve a response to the wife’s Initiating Application, an affidavit in support and a Notice of Child Abuse, Family Violence or Risk of Family Violence. The proceedings were adjourned for hearing on 2 July 2018.
The husband filed an Amended Response on 29 June 2018 opposing the orders sought by the wife. The husband is seeking orders that he have the sole parental responsibility for the children, that they live with him in Country H and spend time with the wife as may be agreed or in default of agreement as may be determined by the Court.
Whilst not the principal focus of the proceedings, the husband also seeks orders for property settlement.
The interim orders sought by the husband provide for the children to live with the husband, remain in Country H at the husband’s election and communicate with the wife as may be agreed.
He also seeks orders directed to the management and retention of rental received in respect of rental properties owned by a family trust controlled by the parties.
The wife is the sole registered proprietor of a property situate at B Street, Suburb C (“the Suburb C property”). The parties are agreed that she is to be restrained from disposing of, encumbering or otherwise dealing with the property.
BACKGROUND
The children currently remain living with the husband’s sister and other members of his extended family in City J, Country H. The wife and now the husband are in Australia and whilst he would wish to return Country H forthwith, he is prevented from doing so following his name being placed on the Airport Watch List and his compliance with orders requiring that he surrender his Australian and Country H Passports to the Registry of this Court.
The wife was born in Australia. She is not conversant in the Country H language. She is a qualified professional and generates income by the management of rental properties and the provision of services aligned to her profession.
The husband was born in Country H and sought asylum in Australia in 2004. He was in mandatory detention until his release in January 2008. The parties commenced their relationship later that year.
The husband was granted Australian Citizenship in March 2014.
The parties married in 2009.
At the commencement of cohabitation the wife alleges that she had property with a total value of $2,260,000. Her asset base principally comprised the Suburb C Property and then savings of $1,300,000.
Whilst there is no concession by the husband as to the value attributed to her pre-cohabitation property, he does not disagree that at the time of cohabitation her property had substantial value.
It is uncontroversial that the family travelled to Country H on 6 December 2017 to visit with the husband’s family and for the children to experience a Country H winter.
The husband concedes that it was intended to be a family holiday only and the timing was to coincide with the end of the 2017 Australian academic year.
The family intended to return to Australia on 22 January 2018 shortly prior to the commencement of 2018 Australian academic year. The parties had booked return tickets.
The travel in 2017 was not the family’s first trip to Country H. They had been in 2011 and 2016. The wife concedes that the family spent about two months in Country H on each of the previous holidays.
The paternal grandfather had been diagnosed with cancer and was receiving treatment. His health was such that he had not been able to travel to Australia as planned in 2016.
The parties differ on the circumstances surrounding the family remaining in Country H beyond the booked date of return to Australia.
The wife asserts that the husband requested that the family stay longer because of the paternal grandfather’s poor health. She agreed to delay their return to Australia, but on the condition that when she indicated she wished to return there would be no opposition by the husband. She considers that the husband understood that she and the children would not wish to remain in Country H indefinitely.
For his part, the husband asserts that it was the wife who suggested they remain in Country H. At first he did not take her seriously. However, when she explained her plans to the husband to arrange for the parties financial affairs to be managed remotely, he agreed and then took steps to enrol the children in school and find suitable accommodation for the family.
The husband also entered into discussion with his brother to set up a company.
The wife does not agree that she ever promoted that the family would permanently live in Country H.
The husband caused the children to be issued with Country H citizenship and passports. The applications required the provision of the children’s birth certificates and the parties’ marriage certificate. Those documents remained in Australia.
The wife had planned to return to Australia to facilitate the settlement of the purchase of an investment property. She returned for the period 22 December 2017 to 22 January 2018. She alleges that the husband did not tell her that he intended to obtain Country H citizenship for the children and he had explained to her that the children’s birth certificates and the parties’ marriage certificate were necessary to enrol the children in an International school in Country H.
The wife considered that they would remain in Country H only on a short-term basis and it was reasonable that the children engage in education rather than remain bored.
Whilst denied by the husband, the wife contends that she only learned of the husband’s intention that he and the children remain in Country H and not return to Australia approximately a week after her return to Country H on 22 January 2018.
The husband concedes that upon the wife’s return to Country H she queried why the children had become Country H citizens and became increasingly more distressed and upset regarding the prospect of her visa to remain in Country H expiring and expressed her desire to return to Australia.
If the husband’s observations are accepted, the wife was clearly upset, distressed and hysterical.
The wife returned to Australia on 2 March 2018. The husband refused to return with the children to Australia. Their status as Country H citizens meant that the husband’s consent was necessary for the children to leave Country H. The husband does not give that consent.
The husband arrived in Australia on 8 June 2018. He was met by the wife and contends that it was not until 13 June 2018 that he became aware of the pending litigation. Initially the husband took up residence at the Suburb C property but left on 11 June 2018 when requested by the wife to do so.
The husband seeks the return of his passports and to be able to return to Country H forthwith. The wife seeks to restrain the husband’s departure on the basis that she considers this might facilitate the return of the children.
Whilst the parties agree on the circumstances leading up to the family travelling to Country H for a holiday, there is little agreement on what thereafter occurred.
THE PROPOSALS OF THE PARTIES
The wife’s position both by way of final and interim orders is unequivocal. She seeks that the children are returned to Australia either with the assistance of the husband or by recourse to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention).[1]
[1] Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 98 (entered into force 1 December 1983).
The wife has been in contact with the relevant government department and has sought consular assistance in Country H. The status of any Hague Convention proceedings is uncertain. It is unlikely that at this stage proceedings for the return of the children to Australia have commenced.
The husband’s proposal in respect of the children is more nebulous.
He resists taking any immediate steps that would enable the children to leave Country H and return to Australia. His long-term intention is reflected in what he says was a joint decision made by the parties namely, that they would stay in Country H for nine months and return with the children to Australia for three months during the long Country H summer school holidays. The husband considers that any agreement that the children would return to Australia was predicated on the family taking up primary residence in Country H. Given his assessment that the wife has broken her promise, I do not consider that the husband has any present intention to allow the children to return to Australia.
The parties are agreed that the wife is able to communicate electronically with the children on a daily basis by Skype or telephone.
THE WIFE’S MENTAL HEALTH
The husband argues that the wife has been diagnosed with depression and bipolar disorder. He does not consider that her current mental health is stable and he contends that she has been resistant to a continuum of appropriate medical and psychiatric care, rather choosing to self-medicate in respect of prescription medication sourced from a variety of medical practitioners.
The husband’s concern in respect of the wife’s health is that it should be considered as adversely impacting upon her ability to parent the children and in particular in respect of her application that she have sole parental responsibility and that the children live with her.
The wife agrees that at times she has suffered with mental health issues but denies that she is recalcitrant in her health management. She considers that she has a long-term general practitioner and that her health is well managed. Whilst there have been some regressions, she asserts that they are a response to situational crisis arising from the husband’s overtly aggressive behaviour.
She relies upon a report from her medical practitioner dated 8 May 2018 being annexure “LJC1” to her solicitor’s affidavit filed 25 June 2018. The doctor’s report confirms that the wife first consulted her in 2009 and whilst thereafter there were intermittent consultations, it has been on a more regular basis since 2014. The diagnosis appears to be Bipolar Affective Disorder Type II. It seems to be appropriately managed by medication, however deterioration in the wife’s mental health can result from the wife experiencing stress and conflict.
It appears that the wife has also engaged with a psychiatrist and whilst there were signs that she may be experiencing situational crisis, it did not appear that she was displaying symptoms of Bipolar Disorder.
It is the doctor’s opinion that the wife remains compliant with her medication.
ALLEGATIONS OF FAMILY VIOLENCE BY THE HUSBAND
The wife alleges that she was the victim of family violence perpetrated by the husband. She contends that he had been physically violent towards her, in 2012 had assaulted her now adult son and had sticks that had been kept around the house that he would use to hit the wife and the children.
The wife summarises her allegations at [87] of her Affidavit filed 1 May 2018:-
If I do not agree with the husband about something, or I do not do as he tells me to do, he will scream at me, pull my hair, slap me in the face, hit me with a stick and/or kick me. The husband identifies as a Muslim and he believes that his religion allows him to be controlling of me because he is the man of the house. The children and I were physically abused on most days. The yelling and abuse was constant throughout the day, every day.
The wife asserts that she obtained an interim intervention order on 7 March 2017 which required the husband to be removed from the home. In an attempt to reconcile, the wife made an application to the Magistrates Court and was successful in having the intervention order withdrawn.
The husband denies that he was “violent, threatening or abusive towards [the wife] or the children physically, emotionally or otherwise”.
He alleges that it was the wife who exhibited threatening behaviour. He contends that the wife exhibited controlling behaviour towards him and on three or four occasions had threatened him with a kitchen knife.
Whilst admitting that he did slap the wife’s son in the face, he considers that he was provoked by the child’s offensive language and defiant conduct.
The focus of the orders sought by the wife in her application are directed to causing the return of the children to the Commonwealth of Australia and to thereafter prevent the husband from removing the children from her care.
At this stage it is difficult to make any determination as to the competing claims of the parties that the other has perpetrated family violence.
INTERIM PROCEEDINGS
In Marvel v Marvel [2010] FamCAFC 101, the Full Court considered the appropriate treatment and weight to be given to contested evidence as follows:-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
In an appropriate case a judge may have no alternative but to consider and give weight to the competing, albeit contested claims of the parties. The issue was considered by the Full Court in Keats & Keats [2016] FamCAFC 156 at [9]:-
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the principles underlying Part VII of the Act.
Section 60CA requires that in deciding whether to make a particular parenting order the best interests of the children are the paramount consideration.
The Court is then obliged to consider the provisions of s 60CC as to the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3).
In particular, when applying the considerations as set out in s 60CC(2) and considering s 60CC(2A), the Court is to give greater weight to the need to protect a child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
Section 61DA of the Act requires the Court to apply the presumption that it is in the best interests of the child for the parties to have equal shared parental responsibility. The presumption can be rebutted on the following grounds:-
(a)There are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence;
(b)That the Court considers it would not be appropriate in the circumstances for the presumption to apply;
(c)That it would not be in the child’s best interests notwithstanding an order for equal shared parental responsibility is made.
COMPETING PROPOSALS OF THE PARTIES
As identified, the husbands seeks to return to Country H as soon as is practicable. He does not have any present intention to take steps that would have the children travel from Country H to Australia. His proposal that the children should live in Country H for nine months of the year and the balance in Australia to coincide with the northern hemisphere mid-year school holidays is conditional on final orders being made. The wife does not agree.
I find that the husband has no current intention to facilitate the return of the children to Australia.
The wife seeks the return of the children and whilst not particularised, there is no suggestion that the children would be denied the opportunity to have a meaningful relationship with the husband provided there is no risk of the children being removed from Australia.
It is uncontroversial that the husband can reside in either Country H or Australia. The wife’s ability to reside in Country H is subject to a visa.
The wife contends that such is the uncertainty of her status under Country H law she has no present intention to travel to Country H.
UNCONTESTED RELEVANT FACTS
It is self-evident that other than utilising electronic means of communication, unless the children return to Australia it is unlikely that they would be able to maintain a meaningful relationship with the wife.
In Mazorski v Albright [2007] FamCA 520 Brown J observed the following in relation to a definition of the term “meaningful”:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …
Each of the parties make serious allegations against each other. For his part, the husband contends that the wife’s parenting capacity is adversely impacted upon by her poor mental health. The wife contends that the husband is the perpetrator of family violence, is controlling and coercive in his conduct, and that the children may well be at risk if they remain in his unfettered care.
The husband’s apparent refusal to facilitate the return of the children to Australia is further relied upon by the wife as evidence of his almost total lack of regard that the children may benefit from a relationship with the wife.
It is also agreed that prior to the family travelling to Country H at the commencement of their holiday, the habitual place of residence of the children was clearly Australia. The parties have significant financial interests in Australia and whilst not agreed, the husband concedes that the intention to remain in Country H was a proposal made by the wife after their arrival in Country H. The husband contends that he was both surprised and at first sceptical of the wife’s purported proposal. His scepticism has proved prophetic.
The husband has an extensive family network in Country H and strong family support. The children are currently being cared for by his sister. It is his evidence that his family are supportive of the husband remaining in Country H.
The wife has no similar family support in Country H. She does not speak the Country H language and whilst uncertain as to the children’s current proficiency in the Country H language, at the time of the departure from Australia they were not able to converse in Country H.
The husband does not seriously contend that it would be reasonable for the wife to consider returning to Country H to take up long-term residence.
I find that the decision of the wife to not return to Country H is in all the circumstances both explicable and reasonable.
Whilst not the prime focus of the interim proceedings, the financial circumstances of the parties have relevance.
Each of the parties seek orders for settlement of property. The husband seeks interim orders that the wife direct that all rental payments in respect of an investment property at D Street, Suburb E be paid to an account nominated by the husband. It is intended that the money would be for the benefit of the husband.
The husband sets out his current financial circumstances which could best be described as parlous. The wife’s financial circumstances are considerably more secure given her control of various properties.
The husband does not set out whether he had employment in Country H and the extent of his current financial position. In the absence of agreement between the parties or court order and in the absence of any other explanation, it is likely that the husband and the children rely heavily upon the charity of his family.
At present there is no indication of any views that may be expressed by the children as to their current circumstances. Each of the parties present their own assessment of the children’s current presentation. The husband considers that the children are content and the longer they remain in Country H the less interested they are in returning to Australia and by implication resuming a relationship with the wife.
The wife considers that the children are emotionally distraught at being separated from her and are at risk of significant psychological and emotional harm should the current standoff remain unresolved.
Ultimately the gravamen of the matter is that if the current circumstances remain, the children will not have a relationship with their mother. Whatever may ultimately be the strength of the husband’s assertion that the wife’s parenting capacity is adversely impacted by reason of her poor mental health, that cannot be a sufficient justification for an outcome that would effectively sever the children’s relationship with the wife.
A further consideration is the future conduct of the litigation.
The husband was not able to assist the Court with any suggestion or proposal for the children to participate in a family assessment. Furthermore, each of the parties make serious allegations about the other. In those circumstances it is a consideration that the interests of the children maybe more clearly set out by the appointment of an Independent Children’s Lawyer (“ICL”). If the children remain in Country H, it is difficult to see how the litigation would progress.
I am obliged by reference to s 60CA of the Act that in deciding whether to make a parenting order I must have regard to the best interests of the child as the paramount consideration.
I find that there is merit in the wife’s application seeking that the children return to Australia and accordingly I propose to make orders as requested by her which she considers will best achieve that outcome.
SHOULD THE HUSBAND BE RETRAINED FROM LEAVING AUSTRALIA?
The husband seeks to return to Country H forthwith. There is no indication by him that if permitted to leave he would return to Australia with the children. It is also reasonable to find that with the husband’s consent and cooperation the children could return to Australia forthwith.
In Fallon & Bashandi [2013] FamCA 672 Cronin J considered whether the Court had jurisdiction to restrain a party travelling outside of Australia. His Honour said as follows:-
66.In Glover and Walters (1950) 80 CLR 172 Dixon J had no doubt the High Court of Australia had the power to issue a writ of ne exeat colonia. The translation of that means a writ to prevent one party to a dispute from leaving the court’s jurisdiction in a proper case. Usually bail or security adequate to the nature of the case was ordered. Dixon J made clear the writ was not to be issued except with care and where what he described as “real ground appears for believing that the defendant is seeking to avoid the jurisdiction or for apprehending that if the defendant is allowed to depart, the plaintiff will lose his debt or be prejudiced in his remedy”.
67.Although neither practitioner pointed to the specific power in the Act, I consider it lies in s 114. Section 114(3) of the Act provides the power for interlocutory orders or otherwise and includes an injunction in aid of the enforcement. The basis for making such a wide order is said to lie in any case in which it appears to the court to be “just or convenient to do so”, either “unconditionally or upon such terms and conditions as the court considers appropriate of such a decree”.
In circumstances where the husband could readily facilitate the return of the children to Australia and in the absence of any preparedness to do so, I consider that it is likely that if allowed to leave he may not return with the children.
The husband argues that his entitlement to property settlement is significant and therefore there is a credible reason for him to return from time to time as the litigation may require.
The wife contends that the husband’s claim is minimal and limited to five per cent of the property pool. If she is ultimately successful, it is certainly open to the husband to decide that he will forgo any potential claim for property settlement in favour of the retention of the children in Country H.
It is therefore proper in all the circumstances for orders to be made that restrain the husband leaving Australia and returning to Country H.
OTHER MATTERS
The parties have agreed that the wife is able to communicate with the children on a daily basis. The husband will ensure that the children have access to either Skype or a telephone albeit at the expense of the wife.
I decline to make the order as sought by the husband that would require the payment of rental income to be paid to his nominated account. The wife proposes that she will continue to management the investment properties, utilise the rental income for the payment of the mortgage commitments and outgoings and that any surplus income will be maintained in an account pending further order. The wife’s proposal has merit.
The parties also agree that the wife will be restrained from dealing with the Suburb C property.
CONCLUSION
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 July 2018.
Associate:
Date: 13 July 2018
0
6
1