Evert & Pascal (No 3)
[2023] FedCFamC1F 535
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Evert & Pascal (No 3) [2023] FedCFamC1F 535
File number(s): ADC 5265 of 2020 Judgment of: BERMAN J Date of judgment: 3 July 2023 Catchwords: FAMILY LAW – CHILDREN – Overseas travel – Where the mother seeks an urgent application permitting her and the children to travel to Country H to renew their passports – Where the father opposes the application – Where the mother asserts the children’s school will cause the children to be unenrolled if they do not have a passport number – Where the father asserts that requirement is for “overseas students” and the children are permanent Australian residents and do not require a passport number to attend school – Where the wife does not deny that the children are permanent residents – No evidence that the children’s enrolment is untenable – Where the Court finds no urgency exists – Application dismissed.
FAMILY LAW – PROPERTY – Interim distribution – Where Orders were made in October 2022 to repatriate funds from Country H to Australia – Where the husband asserts there is an issue obtaining a tax clearance certificate and CGT assessment – Where the Court is not convinced by the husband’s purported efforts – Where the wife now seeks final orders for the children’s private school fees be prepaid – Where the children’s school fees are currently in credit – Where there is no evidence that the funds should be quarantined – No orders.
Legislation: Education Services for Overseas Students Act 2000 (Cth)
Family Law Act 1975 (Cth) s 60CC
Criminal Law Consolidation Act 1935 (SA) s 50.
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 24 May 2023. Place: Adelaide Counsel for the Applicant: Ms James Solicitor for the Applicant: Wadlow Solicitors Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Clark Panagakos Family Law Counsel for the Independent Children's Lawyer: Mr Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5265 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PASCAL
Applicant
AND: MR EVERT
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
3 july 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 27 April 2023 is dismissed.
2.The proceedings are listed for further directions before the Honourable Justice Berman at 9.15 am on 5 October 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Evert (“the husband”) and Ms Pascal (“the wife”) are not able to agree settlement of property and the future parenting arrangements for X born 2009, Y born 2010 and Z born 2012 (collectively “the children”).
The inability for the parties to resolve their differences is as a result of pending criminal proceedings in which the husband has been charged with offences pursuant to the Criminal Law Consolidation Act 1935 (SA) relating to sexual offences involving a child and also a charge alleging serious sexual assault of the wife. The wife states that the criminal proceedings will have been determined by mid-2023.
There was some uncertainty as to when the husband’s criminal proceedings are to be listed and in any event, he contends that there remains a high likelihood that they will not be resolved by mid-2023.
The parties are not able to agree settlement of property even though they concede that the asset pool is modest. The extent of the property of the parties is likely limited to 4,000,000 in Country H currency or the equivalent of about $320,000 currently held in the trust account of the parties separate Country H solicitors and about $85,000 that remains in the husband’s solicitors trust account.
Following extensive argument, Orders were made on 18 October 2022 which required the parties to instruct a single expert to undertake a valuation of the husband’s interest in LL Company and NN Company. Documents provided by the husband appear to have satisfied the wife that the entities which comprise his business are of no value.
To put the nature of the dispute into context regarding property settlement and division, the parties are likely to have already incurred legal fees in excess of $350,000.
I have previously observed that the mistrust that exists between the parties may well be clouding their good judgement. It would seem that their enthusiasm to pursue litigation remains undiminished.
By Application in a Proceeding sealed 27 April 2023, the wife seeks orders summarised as follows:
(1)That the mother be permitted to travel with the children to Country H in the month of July 2023 for the purpose of renewing her and the children’s Country H passports;
(2)That the mother be permitted to sign all documents without the consent of the father with respect to applying for:
(a)A renewal of the children’s Country H passports;
(b)For dual citizenship for each of the children; and
(c)Applying for citizenship of the Commonwealth of Australia.
(3)That the mother have sole parental responsibility in order to facilitate the applications for passports for the children, dual citizenship and obtaining citizenship for the Commonwealth of Australia.
(4)That the sum of 400,000 in Country H currency be released to the wife from the funds secured in her Country H solicitors trust account.
(5)That the balance of funds held by her Country H solicitors be remitted to the wife for the purposes of paying school fees for each of the said children until the completion of their tuition.
(6)That by way of final settlement of property, the funds deposited in the trust account of the husband’s solicitors pursuant to order 3 of Orders made 18 October 2022, in the sum of $85,905.01, be divided and released to each of the parties in equal proportion.
The husband opposes the orders sought by the wife.
THE WIFE’S APPLICATION
Proposed orders 1, 2 and 3 of the wife’s Application relate to the wife seeking to discharge the Orders made by Kari J on 25 February 2021 that restrain the parties from removing the children from the Commonwealth of Australia.
The wife’s Application is supported by her affidavit sealed 18 April 2023 and supplemented by an even more extensive affidavit sealed 22 May 2023.
The initial contention of the wife is set out in paragraph 9 of her first affidavit as follows:
9.The dominant purpose of my requested travel to [Country H] is to renew my and the children’s [Country H] passports, which passports are required in order for:
9.1 the children to remain enrolled in [B School];
9.2the children to remain enrolled as international students in the Commonwealth of Australia;
9.3me and the children to progress our Application to become Citizens of the Commonwealth of Australia;
9.4me and the children to apply for dual citizenship in [Country H].
The necessity for the children to travel to Country H is based upon a premise that the children’s enrolment in B School is conditional upon compliance with the provisions of the Education Services for Overseas Students Act 2000 (Cth). The wife contends that the school must have the children’s passport numbers in order to comply with the relevant legislation and if they do not, then the school will be required to advise the Australian Government of a change in circumstances, that will result in a cascading effect of the potential for the children to be in default of their Visa conditions and therefore the school will not be able to maintain their enrolment.
The wife annexes copies of the relevant legislation, documents that would need to be completed for an application for a Country H passport or relevant travel document and communication from the Admissions Officer on behalf of B School seeking the updated passport details.
The husband argues that it is not a requirement of B School that the children have a valid passport given that they are not “overseas students” but rather they now have the status of “permanent residents of Australia”.
The wife concedes that whilst it would be possible to make an application for Country H passports to issue to the children and the wife in Australia, the time to process a new passport application and to renew an existing application is between six to twelve months.
The wife’s application to travel with the children to Country H is predicated upon the premise that if in Country H, the applications for passports to issue and the renewal of the wife’s passport could be achieved within a much shorter time frame.
I do not accept that the evidence presented in support of the application is made out on the balance of probabilities. No independent evidence was called either as to the ability for passports to issue with less delay in Country H than if made through the High Commission of Country H in Canberra.
Moreover, the evidence does not support the wife’s contention of urgency. I am not satisfied that the children’s enrolment at B School is in any way compromised by them not holding a valid passport. The wife does not deny that the children hold permanent residency in Australia. On that basis, and in the absence of any evidence from the children’s school that their enrolment is untenable, no urgency exists.
Consequent upon the husband’s Response and his affidavit in support, the wife, without leave, filed a further affidavit of 22 May 2023. The wife concedes that the affidavit was not only in response to the husband’s affidavit of 19 May 2023 but provides supplementary evidence in support of the application for the children to travel to Country H.
At paragraph 13 of the wife’s second affidavit, she sets out the ancillary reasons for the proposed travel by reference to her solicitors’ letter of 31 March 2023, being annexure “[MP‑1]” to the wife’s first affidavit. As considered, part of the content of the letter sent by the wife’s solicitors to the husband’s solicitors is without basis. However, the letter sets out a further nineteen points relied upon by the wife for amplification of her request for the husband’s consent to documents that would allow the children to travel to Country H.
The wife does not highlight which of the nineteen points is the secondary basis for travel but it appears from paragraph 13 of the wife’s second affidavit that the ancillary reasons are:
·To meet with the wife’s Country H solicitors in City J;
·Collect a Certificate of Registration of the wife’s Australian Divorce from the husband and to apply for the children’s new passports in July 2023;
·Allow the children and the wife to meet with family and childhood friends in City J, City VV and Region WW.
The husband could not have reasonably gleaned the “ancillary reasons” by reference to the solicitor’s letter and as such, was not in a position to contest or challenge the basis of the wife’s application.
The evidence relied upon is scant and of little assistance. The reliance upon a solicitor’s letter to set out the wife’s basis for her application is misconceived and ill advised. The reliance upon a solicitor’s letter as a basis for an application may only serve to further elongate the proceedings if the content of a solicitor’s letter should be found to represent a waiver of privilege.
It is open to the wife to bring her application on the basis that she would wish to travel with the children to Country H for what would in effect be a holiday in circumstances where there is no reasonable basis to fear that the wife represents a flight risk.
There is much in the wife’s affidavit that goes to her financial stability and security in Australia and a contention that there would be no advantage to the wife seeking to relocate the children to Country H. The wife considers that the economy is poor, there are high rates of poverty, there is no family home or accommodation, the Country H currency is rapidly depreciating in value and there are social and infrastructure constraints that would readily tip the balance in favour of the family remaining in Australia. No evidence was called to support the wife’s view of the adverse financial circumstances existing in Country H.
For his part, the husband argues that the wife has engaged in a strategy designed to disrupt the husband’s desire to maintain a relationship with the children and that the upcoming criminal proceedings is a manifestation of the wife’s campaign against him.
I accept that in the absence of any further evidence to the contrary, there is no certainty that the criminal proceedings would be concluded by mid-2023.
I can do little with the husband’s concern that the wife may be motivated to relocate the children before the conclusion of the criminal proceedings if there is any reasonable possibility that the husband may be acquitted or in the alternative that if he is found guilty, then she will use his incarceration as a basis for the children’s removal to Country H.
As discussed, I have found that the parties are engaged in highly charged and emotive proceedings to some degree, fuelled by the emotional involvement of the parties’ legal representatives.
Any consideration of the children traveling out of the jurisdiction of Australia must be based upon a consideration of what is in the children’s best interests.
The husband considers that his ability to maintain a relationship with the children once the criminal proceedings are concluded, should not be put at risk by allowing the wife to travel with the children to Country H.
The wife’s application really distils down to a simple proposition namely, that it would be in the interests of the children for them to travel to Country H for a period of one month and that the checks and balances ameliorate any risk that the children would not return.
The evidence presented by the wife was not directed to the children’s best interests but rather to an assertion that the primary purpose is to expedite the issue and renewal of Country H passports to the children and the wife.
I am satisfied that there is no urgency or basis for the wife’s application. The children have passports which do not expire until late 2023 or early 2024. An application could be made to the Country H High Commission which if had been done at the commencement of filing of this application may well have resulted in passports being issued within six to twelve months.
If the basis for the issue of a Country H passport is to enable the children’s continued enrolment at B School, then I am not persuaded that a causal connection exists.
Having considered the primary and additional considerations pursuant to s 60CC of Family Law Act 1975 (Cth), I find that it would not be in the children’s best interests that they travel to Country H nor do I consider that the wife’s proposition of security being taken over the balance of monies held by her Country H solicitors should be considered as good security against the potential for her being a flight risk.
Unconnected to the wife’s application for the children to travel to Country H are the further orders sought by way of property settlement and interim orders for the release of funds to the wife. The sum of 4,000,000 in Country H currency is held in the wife’s Country H solicitors trust account being the net-proceeds of sale of the former matrimonial home.
The status of those funds has been the subject of ongoing consideration commencing with an Order made by Judge Kelly on 8 September 2021 requiring the husband to transfer the sum of 4,000,000 in Country H currency into a bank account to be nominated by the wife with such funds to be held on trust pending the finalisation of property settlement.
At that stage of the proceedings, there was an issue as to forum.
The husband later conceded forum and the matter was again considered by me on 18 October 2022. An Order was made which provided for the parties to do all things necessary to transfer the Country H funds to the trust account of the solicitors for each of the parties in Australia. Thereafter, the parties were restrained from drawing down from those funds.
There appears to be some difficulty with the husband obtaining the necessary tax clearance certificate and capital gains tax assessment which would enable the funds to be transferred.
The husband says that he is doing all that he can and he expects the necessary documents to be available in the near future.
I am not convinced by the purported efforts made by the husband to resolve the matter and if necessary, consideration may have to be given to imposing a time period by which the funds are to be transferred from Country H to Australia.
There appears however to be a work around. The wife suggests that she is not constrained by the purported inability of the husband to obtain the necessary tax clearance document but rather she is able to repatriate the funds by smaller amounts not exceeding 1,000,000 in Country H currency by way of annual discretionary allowance.
I further accept the wife’s evidence that the delay in the repatriation of the funds has depleted the value following conversion to Australian dollars by reason of the adverse conversion rate.
Taking into account paragraph 10 of the husband’s affidavit, there appears to be some support that the husband may now be looking to address the problem.
It is a matter for the wife if she chooses to transfer 1,000,000 in Country H currency subject to the restraint imposed in the Orders of 18 October 2022.
I do not understand the basis by which the wife has included an order by way of final property settlement in the Application in a Proceeding.
I accept that the total pool is likely to be no more than about $400,000 and will need to be considered against the legal fees to be incurred by the parties both present and as the litigation progresses.
The parties are not agreed that the children’s tuition fees at B School should be prepaid to the end of their secondary school education. The husband does not accept that the children’s attendance at B School was a joint decision nor that he supports it in circumstances where he does not have the financial ability to share in the costs involved.
I suspect that the wife would argue that the children’s interests are best served by them remaining at their school and therefore it is a reasonable parenting consideration that the future liability arising from the children’s tuition fees should be brought to account.
I do not consider that there is evidence which would enable the Court to decide, in effect by default, that funds should be quarantined to ensure the children’s continued enrolment at their school.
The issue of the financial viability of the children remaining at their current school is likely to be in dispute.
As considered, given the rapidly diminishing money available to the parties is modest and would ordinarily invite a ready resolution, in the absence of agreement, I could not make the order as sought by the wife which would be akin to making an order by default.
It is also a relevant consideration that the children’s school fees are in credit and therefore the contention of the wife is as to future fees rather than a current liability that could be satisfied on the basis of it being a debt of the parties.
CONCLUSION
I consider that proposed orders 1 to 4 are not in the interests of the children, are unsupported by evidence and as such, should not be made.
It is premature to make an order for the prepayment of B School fees and for reasons that are obvious, no order can be made by way of final settlement of property.
I make the order as appears at the commencement of these reasons.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 3 July 2023
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