Ezard and Ezard
[2017] FamCA 26
•13 January 2017
FAMILY COURT OF AUSTRALIA
| EZARD & EZARD | [2017] FamCA 26 |
| FAMILY LAW – CHILDREN – International holiday travel – Application granted. FAMILY LAW – PROPERTY – Application for discharge of the arrears of spouse maintenance –Application dismissed. FAMILY LAW – DISCLOSURE – Husband to provide financial documents. |
| Child Support Assessment Act 1989 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Banks & Banks [2015] FamCAFC 36 Goode & Goode [2006] FLC 93-286 Line & Line (1997) FLC 92-729 |
| APPLICANT: | Ms Ezard |
| RESPONDENT: | Mr Ezard |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 389 | of | 2015 |
| DATE DELIVERED: | 13 January 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 19 December 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Hunter, Darren Hunter Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | DJ Hinton Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Osborne, Legal Aid Queensland |
Orders
IT IS ORDERED BY WAY OF INTERIM PARENTING ORDER THAT
The children B, born … 2003, and C, born … 2005, live with the mother.
The mother and father have equal shared parental responsibility for the major long term issues for the children, with such issues to include but not be limited to:
(a) the children’s education;
(b) the children’s religious and cultural upbringing; and
(c) the children’s health; and
(d)living arrangements that make it more difficult for the children to spend time with each parent.
The children shall spend time with the father at all times as may be agreed between the parents in writing, but failing agreement as follows:
(a)during school term: each alternate weekend from after school Friday until 7.00 pm Sunday (extended by any pupil free day or public holiday); and
(b)for the first half of all school holiday periods (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences), with such time to commence from after school on the day the school term finishes and to conclude at 5.00 pm on the day calculated to be half of the holidays.
In the event that there is an uneven number of nights in any school holiday period, the children shall spend time with the father on the additional night.
The operation of Clause (3)(a) of this Order shall be suspended during all school holiday periods and shall recommence on the first weekend after school recommences each term.
The children shall communicate with their parents on the telephone and by text message at such times as a child reasonably requests, but otherwise between 7.00 pm and 7.30 pm each Sunday and, in relation to such communication, each parent shall:
(a)ensure that the children are available to receive the telephone call; and
(b)arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent; and
(c)ensure that the children have privacy during the conversation.
The mother and father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number; and
(b)keep each other informed of the names and addresses of any treating medical or other health practitioners who treat the children and, by this Order, those practitioners are authorised to provide each parent with information that they are lawfully able to provide about the children; and
(c)inform each other parent (as soon as reasonably practicable) of any significant medical condition, significant health issue or significant illness suffered by the children and, by this Order, any treating medical practitioner is hereby authorised to release all medical information about the children (or either of them ) that they are lawfully able to provide about the children to both parents.
By this Order, the schools attended by the children are hereby authorised to provide each parent with information about the children’s educational progress and other school related activities and to supply each parent with copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).
During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Holiday travel between 31 March 2017 and 18 April 2017
The children B, born … 2003 (a male), and C, born … 2005 (a male) are permitted to travel with the mother, Ms Ezard, born … 1973, to Africa on the following conditions:
(a)the children shall not depart the Commonwealth of Australia any earlier than 31 March 2017; and
(b) the children must return to Australia by no later than 18 April 2017.
The mother, Ms Ezard, born … 1973, is permitted to remove the children B, born … 2003 (a male), and C, born … 2005 (a male) from the Commonwealth of Australia between 31 March 2017 and 18 April 2017 for the purposes of travelling to Africa for a holiday.
No later than twenty-eight (28) days before the day of departure, the mother shall provide to the father, via email:
(a)a copy of the travel itinerary (including the address/es where the children will be staying in Africa and contact telephone number/s for them whilst there); and
(b)a copy of an airline or travel agent issued schedule of booked, prepaid and receipted return air tickets for herself and the children, showing booked and prepaid return air tickets on a date to ensure the children are back in Australia by no later than 18 April 2017.
To enable the Australian Federal Police to be sure that all conditions under this Order have been fulfilled, the solicitors for the mother (Darren Hunter Family Law Solicitor) shall, on behalf of the mother, provide the Australian Federal Police with:
(a) a copy of this Order; and
(b)a statement that they have been instructed that Clause (12) of this Order has been fulfilled by the mother; and
(c) a letter indicating the precise time that the mother intends that the children depart from Australia and return to Australia.
During the time the children are in Africa, the mother shall ensure that they communicate with the father by telephone or Skype on not less than two (2) occasions per week.
The operation of Clause (3)(b) of this Order is stayed whilst the children are out of the Commonwealth of Australia for the holiday travel to Africa referred to in Clause (11).
The mother is hereby restrained from taking the children to a country other than a country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Both parents shall, as soon as practicable, sign all documents necessary to facilitate the children’s travel to Africa, for a holiday, between 31 March 2017 and 18 April 2017.
In the event either party fails to comply with a request to sign and return any document necessary to facilitate the children’s travel to Africa, for a holiday, between 31 March 2017 and 18 April 2017, a Registrar of the Family Court of Australia is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the non-complying party.
Matters relating to the children’s passports
The father shall provide the mother with the children’s Australian passports within fourteen (14) days of the date of this Order.
The mother shall return the children’s Australian passports to the father by 4.00 pm on 2 May 2017.
Upon a request from one of the parties, the other party shall sign passport application forms for any child within seven (7) days of any such request.
AND IT IS FURTHER ORDERED THAT
Within 28 days of the date of this Order, the husband:
(a)provide disclosure in accordance with Rule 13.20 of the Family Law Rules (2004); and
(b) produce to the wife the following documents:
(i)financial statements, taxation returns and assessments for D Pty Ltd and E Pty Ltd; and
(ii)financial statements, taxation returns and assessments for Signature Super Fund/the husband’s self-managed superannuation fund; and
(iii)documents concerning the ownership of the business premises from which the husband’s business is operated, and the financial statements, taxation returns and assessments for any entity owned or controlled by the husband concerning same; and
(iv)the husband’s NAB bank account statements for the last three financial years for the account BSB … Account number …; and
(v)records of The F Trust and Ezard Pty Ltd regarding any superannuation payments made from 1 July 2013 to the present; and
(vi)records for the Related Party Loan Account in Ezard Pty Ltd for the financial year ended 30 June 2016; and
(vii)invoices received from any accountants engaged to prepare taxation returns for the husband, and any of his related entities; and
(viii)records of Ezard Pty Ltd for the year ended 30 June 2016; and
(ix)bank statements for accounts operated by Ezard Pty Ltd from 1 July 2013; and
(x)documents concerning the husband’s timeshare interest including statements of account and any loan accounts relating to same; and
(xi)records relating to any debts concerning the husband’s restraint of trade litigation/Vision Institute debt; and
(xii)G Town Hospital agreement and statements concerning the amount remaining outstanding; and
(xiii)documents concerning the amount of legal fees paid by the husband to his solicitors; and
(c)file an affidavit setting out the basis for any claim that a document or class of documents ordered to be produced pursuant to this Order is not in the husband’s possession, custody or control.
In so far as they relate to the husband’s practice, Clauses (6), (7) and (8) of the Order made by Registrar Coutts on 22 September 2016 are varied such that the “28 day time frame” referred to in Clause 6 shall be read as imposing on the Applicant the obligation to assert a value for the husband’s practice within 28 days of the husband complying with his obligation to disclose as ordered today and the subsequent time frames within which the parties are to comply with the terms of Clauses (7) and (8) are amended accordingly.
AND IT IS FURTHER ORDERED THAT
The husband’s application for the discharge of Clause (1) of the Order made by consent on 13 July 2015 is dismissed.
The husband’s application for discharge of the arrears of spouse maintenance, owing by him to the wife as a consequence of the terms of Clause (1) of the Order made by consent on 13 July 2015, is dismissed.
Save in respect of the issue of costs, all outstanding interim Applications are otherwise dismissed.
The parties have liberty to apply in relation to the implementation of this Order and any application filed will be listed before Hogan J for determination on a date to be advised.
AND IT IS FURTHER ORDERED THAT
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ezard & Ezard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 389 of 2015
| Ms Ezard |
Applicant
And
| Mr Ezard |
Respondent
And
| Independent Children’s Lawyer |
Legal Aid Queensland
REASONS FOR JUDGMENT
The mother was born in 1973. She is a health professional working in her own practice. The father was born in 1968. He is also a health professional. His personal income was $2.1 million in the financial year ended 30 June 2015 and $799,000.00 in the 2016 financial year. According to his most recent Financial Statement (sworn in December 2016) his weekly gross income is $20,400.00 - or about $1,060,000.00 per annum. His deposed to current weekly expenses include $2,000.00 per week for the education of the children. His affidavit material contains no particular detail about the matters upon which this amount of money is spent on a weekly basis. I consider it open to infer that this amount of money includes the cost of the children’s fortnightly travel to Sydney to participate in foreign language classes there.
Both parties were born in Africa. They commenced cohabitation there in March 1991 and married in 1998. They left Africa in about February 2003 and moved to live in Australia in about 2007. They moved to live in H Town at some time shortly thereafter, about late 2007/early 2008. Both remain living there.
The parties have two children: B, born in 2003, and C, born in 2005. The parties separated in October 2012, attempted reconciliation, but divorced in January 2014.
Both parents remain living in H Town. The mother and children live in a house valued, it seems, at about $400,000.00, in respect of which the mother is the sole registered proprietor. The husband meets the mortgage repayments in relation to the loan, said to be in a total amount of about $372,000.00, secured over the home.
Since the parents separated, the children have remained living primarily with their mother. It is agreed they should continue to live primarily with her, on an interim basis; it is also agreed, on an interim basis, that they should spend time with their father each alternate weekend; it is also agreed on an interim basis that the parents should continue to have equal shared parental responsibility for the major long term issues for the children.
Whilst there was initially a dispute about the manner in which allocation of parental responsibility in respect of matters relating to the children’s education should occur between the parents, this was not an issue pursued at the interim hearing before me, on 19 December 2016.
Two parenting issues really remained requiring determination. The first is whether the children’s time with their father during school term (which, as I have already said, is agreed should continue to occur on an alternate weekend basis) should continue to commence at 10.30 am each alternate Friday - as it has previously done and as the father proposes should continue in the children’s best interests - or whether this time should commence from the conclusion of school on Friday, as the mother now proposes is in the children’s best interests.
The second parenting issue requiring determination is whether it is in the children’s best interests to be permitted to travel with their mother to Africa for a holiday during the school holiday at the end of Term 1 in 2017. This aspect of the mother’s application is opposed by the children’s father.
It falls to be considered in circumstances where the mother seeks final parenting orders which would permit her to relocate the children to live with her in Africa. The basis for such application is, on the evidence before me, because the mother has expressed a wish to be closer to her family, for greater financial stability, and so as to enable her to be more available to the children. The father opposes the children relocating to live in Africa.
Applicable Principles
The manner in which interim parenting applications are to be considered is well known: see, for example, the statements in Goode & Goode [2006] FLC 93-286.
When the Court is considering making a parenting order, be it final or interim, it is required by s 60CA of the Family Law Act1975 (Cth) to regard the children’s best interests as the paramount consideration. The determination of what is in any child’s best interests occurs via consideration of the matters set out in ss (2) and (3) of s 60CC of the Family Law Act 1975 (Cth).
In Goode & Goode, the Full Court outlined the manner in which an interim parenting application should be determined. Their Honours said as follows:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
a) identifying the competing proposals of the parties;
b) identifying the issues in dispute in the interim hearing;
c) identifying any agreed or uncontested relevant facts;
d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
e)deciding whether the presumption in s 61DA that equal shared responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child, or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of the consideration of one or more of the matters in s 60CC;
j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of the consideration of one or more matters in s 60CC; and
k)even then, the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers, after affording procedural fairness to the parties, it to be in the best interests of the child.
It is unnecessary to undertake exhaustive discourse about matters taken into consideration in arriving at those interim orders in a child’s best interests following consideration of the relevant s 60CC considerations. As was noted in Banks & Banks [2015] FamCAFC 36, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors; the issues that are joined dictate which s 60CC factors are relevant; and the nature of interim parenting proceedings means that the issues should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial.
Additionally, as the Full Court said in Banks at 49: the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: see SCVG & KLD (2014) FLC 93-582. And, further at 50: properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must characterised as disputed or not; and that each section 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
As the Full Court did in Banks (and as noted at paragraph 52 of the Reasons for Judgment in that case), I intend to detail only the most significant s 60CC factors I have taken into account in reaching my decision about whether the children’s time with their father should continue to commence at 10.30 am each alternate Friday (so as to facilitate their trips to Sydney to participate in language classes) or commence after school has finished for that day, and about whether the mother should be permitted to take them to Africa for a holiday during the end of Term 1 school holiday period this year.
The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it, but rather an assessment that such factor is not sufficiently relevant in the circumstances of this case to displace the determinative significance of those factors to which specific reference has been made.
The Children’s Alternate Weekend Time with their Father
The children’s time with their father during the school term currently commences at 10.30 am each alternate Friday. The father justifies the continued travel by the children to Sydney with him on these weekends as being necessary for them to achieve academic excellence. He contends that, if the children are not able to leave H Town until after the conclusion of the Friday school day, they will not arrive in Sydney until 11.00 pm on Friday evening. He considers that their continued travel to Sydney each alternate weekend is necessary to permit them to continue in their foreign language studies, because tutors who have previously tutored them in the language have left the local H Town area - he does not consider the level of available tutoring to be adequate for the children.
In contrast, the mother now submits that the children’s best interests will be better met by changing the existing arrangements so that the children finish the school day on Friday before going into their father’s care. In that way, they will be permitted to participate fully in the curriculum at each of their respective schools on all of the school days each week.
The children spoke with Ms I, the author of a Family Report, in late August 2016. They described their travel to Sydney to her. It appears (from the information provided by the children) that, having arrived in Sydney on Fridays, they have language class until 7.00 pm; they then participate in language classes from 10.00 am until 6.00 pm on Saturday and from 8.00 am until noon on Sunday.
The father’s evidence corroborates this: his evidence is that the children participate in language classes between 4.00 pm and 7.00 pm on Friday, between 10.00 am and 5.00 pm on Saturday, and between 8.00 am and noon on Sunday. He says they then return to H Town by about 4.00 pm or 5.00 pm and return to their mother’s care after having dinner with him.
The mother’s evidence is that the children have, on occasion, reported being tired upon their return to her care on these weekends.
In proposing that the children’s best interests will be better met by orders which allow them both to participate fully in school during the school week, the mother relied on information obtained from one of the oldest child’s teachers to the effect that absence from participation in school classes every second Friday may impact on his ability to participate fully in classes and might negatively impact on his ability to complete his work.
As noted, the mother’s case involves the assertion that the children’s return to her after the travel they undertake each alternate weekend to Sydney sees them tired at the start of the school week. She says that their involvement in and with learning a foreign language can be facilitated in or around H Town, because a tutor or teacher is available to them there. Her evidence is to the effect that they have previously attended upon a local foreign language tutor (with good results) and that, currently, there is a teacher available to provide language instruction - that person having previously been the Head of Department in Chinese at a local high school.
I note that the Family Report writer expressed an opinion that the children’s best interests may be met by continuing to travel for language lessons to Sydney until a teacher is found locally. However, given the children’s ages and the likely impact on them, both academically and socially, I am not persuaded that it is in their best interests to continue to be removed from school attendance every alternate Friday so as to enable them to travel to Sydney for language classes there.
I consider it more likely than not that the financial circumstances of the parents (or more particularly, the father) and their shared and joint focus upon education is such that it is more likely than not that they may well be able to locate a suitable replacement to provide language tutoring to the children at a location that is more proximate to H Town than Sydney - so that the children will not be required to travel to and from Sydney each alternate weekend.
For these reasons then, and on an interim basis, I consider that the children’s best interests will be better met by having them complete, entirely, the school day on the alternate Friday when they spend time with their father. It is appropriate and in their best interests that their time with him commence from after school each alternate Friday during school term.
International Travel to Africa
It is accepted that the youngest of the parties’ children has never lived anywhere but Australia and has never visited Africa. Their oldest son, it seems, spent about one month in Africa at some time before he was 12 months of age. He, too, has not visited that country since then.
The mother’s evidence is that the children communicate with maternal relatives in Africa via Skype on a regular basis. As I have said, it is accepted that, save for the trip undertaken by the parties’ oldest son many years ago, neither child has had the opportunity to visit and spend time with any of the maternal extended family or to spend time in, and experience, the country in which both of their parents were born.
It appears, from the evidence, that the parties previously entered into a Parenting Plan in about October 2013. The terms of this Plan clearly envisage the possibility that the parents will travel with the children outside the Commonwealth of Australia: it contains a provision that each parent may travel overseas with the children if a full itinerary is provided to the other, albeit that overseas travel may only occur when both parents agree to the proposed itinerary. It seems to have been acknowledged that the mother was to take the children on an overseas holiday to her sister’s wedding in the (presumably upcoming) summer school holiday period.
The father’s evidence is that he travels overseas far more often than the mother and has often taken the children with him. His evidence is that both parents agree that overseas travel is a valuable part of the children’s education. His July 2016 affidavit contains his evidence to the effect that, apart from visiting Africa, he had no problem with the mother taking the children overseas for a holiday and would never prevent that from happening. His evidence then was that, as he had travelled with the children overseas several times since separation, he hoped to do so in the future and would not try to stop the mother from travelling with them out of Australia for a holiday.
This position seems to have changed, given that the father now contends that there is an unacceptable risk of the mother failing to return the children to Australia if she is permitted to remove them from this country for holiday purposes at any time before final orders are made.
The mother now seeks to take the children with her to Africa during the end of Term 1 of school holiday period. Her evidence is that the children’s maternal grandmother continues to live in Africa, as presumably does their maternal grandfather when he is not working outside that country. Her evidence is that a maternal uncle to the children also lives in Africa.
As noted, the mother, children and extended maternal family seem to have communicated regularly by Skype. The mother’s evidence is that members of the extended paternal family continue to live in Africa - although, at the father’s request, she has not made any effort to maintain communication between the children and these people.
It is apparent, from reference to the report prepared by Ms I (who interviewed the parents and children at the end of August 2016) that B expressed a comment to the effect that he felt visiting Africa before any relocation may help him to transition there more easily in the event the Court allowed the relocation.
The father vehemently opposes the children travelling to Africa. He contends that, given the mother’s proposal on a final basis for the children to relocate to live in that country, he has grave fears she will simply fail to return them at the conclusion of the holiday period. He says the mother has no financial capacity to enter into a bond or to provide any financial security for the overseas travel; that she has no incentive to return; that the children will not be adversely affected if they are unable to travel to Africa in the manner proposed by the mother (but are otherwise required to wait until after a final hearing); that the risk of them not being returned to Australia exists because, when he was a child his father took him on holiday from which he never returned, with the effect that his relationship with his mother was disrupted.
He also says the children do not have much interest in going to Africa; that whilst their destination country in Africa is a party to the Hague Convention, the Convention is not implemented well. He says Africa is not a safe place for the children to visit.
Overall, the father’s significant concern is clearly that, if the mother is permitted to remove the children from the Commonwealth of Australia before the final hearing, she may not return and he will be put to the trouble and expense of seeking to have them returned and the children’s lives will be disrupted.
It is relevant, I think, to note that, in a Response document filed on behalf of the father on 20 October 2016, it was proposed that both parents be able to remove the children from Australia for holiday purposes with the written consent of the other (such consent not to be withheld unreasonably) and that both parents be permitted to take the children to any country approved by both, in writing, on the proviso that an itinerary for such travel be provided one month before the travel commenced.
Consequently, it seems from that document that at that time the father did not consider there to be a risk that the mother would not return the children to Australia if permitted to remove them from this country for a holiday - especially given the reference to neither parent being able to unreasonably withhold consent to the other parent’s request to remove the children from this country for the purpose of holiday travel.
The father also relies on the fact that the mother has not previously raised taking the children to Africa for a holiday. It is submitted on his behalf, in essence, that the issue of their travel to that country should be left for a final hearing.
It is accepted that the destination country in Africa is a signatory to the Hague Convention. That fact, however, does not reassure the father. He does not accept that this provides a sufficient mechanism to have the children returned to his care in the event the mother does not return them at the conclusion of the holiday time. This is because he asserts that the Government of the country is difficult to deal with and he may incur costs associated with the process - which he would not be able to recover from the mother, given her financial position.
I also note the father’s evidence that a significant factor which led to the parents leaving Africa in 2003 was what he terms the general instability of that country arising out of asserted racism and violence.
There is, however, no evidence before me to suggest that the father has travelled to Africa since 2003 so as to have the personal opportunity to observe conditions in that country more recently than prior to his departure with the mother in 2003.
In essence, the father’s opposition to the mother taking the children to Africa for a holiday during the end of Term 1, 2017 school holiday period may be summarised as being that there is a serious risk she will choose not to return them to Australia and that they will be at an unacceptable risk of harm if they travel to that country and spend time there.
Will the children be at an unacceptable risk of harm if they travel with their mother to Africa?
In summary, the father contends that the Court would be persuaded that the children will be at an unacceptable risk of harm if permitted to travel to Africa with their mother because, as contained in Exhibit “A”, the Department of Foreign Affairs and Trade advice (as at 3 November 2016) included that visitors to Africa should exercise a high degree of caution because of the high level of serious crime in that country; and that, whilst the political situation was stable, there can be strikes and demonstrations which may pose increased risk to visitors; and that there is a threat of terrorism in Africa.
Unfortunately, the risk of terrorism is seemingly a reality of the modern world.
I do not consider it likely that the mother, as the parent the father acknowledged her to be when speaking to Ms I in late August 2016, would knowingly or deliberately expose the children to risk of harm in Africa or anywhere else. Nor do I consider it likely that she is naïve about, or unaware of, the issues which exist in Africa - especially given that she and the father were both born there and lived there for a significant period, including during periods of their relationship.
There is nothing in the evidence before me to suggest that the mother would do anything but take appropriate safety precautions in travelling with the children to spend time with members of her family in Africa. Those members of that extended family will, of course, also be available to assist the mother and the children during any travel they undertake in the event that they are permitted to leave Australia for the purpose of holiday travel to Africa.
There is nothing in the evidence before me to suggest that the mother is anything but a caring and careful parent. There is nothing to suggest she would wilfully or recklessly place the children in any situation – whether in Australia or in Africa – in which they may be at a risk of suffering significant harm.
Whilst all travel, whether within Australia or overseas, is potentially attended by risks of different kinds, I am not persuaded that the children will be at an unacceptable risk of harm if they are permitted to travel with their mother to her country of birth in order to visit the maternal grandparents and members of the extended maternal family during the end of Term 1, 2017 school holiday period.
The risk the mother will not return the children to Australia
Albeit made in the context of discussion about the manner in which a trial Judge should approach the determination of a proper level of security for the return of children to Australia, comments by the Full Court in Line & Line (1997) FLC 92-729 are of some assistance in their admonition to trial Judges to have regard to the degree of risk that a departing parent will not return the children to Australia and to consider whether the country of travel to which it is proposed children be taken by a parent is a signatory to the Hague Convention.
This Convention provides a mechanism for the prompt return of wrongfully removed or retained children between contracting States. As noted, both Australia and the country in question are contracting States to the Hague Convention.
It is, of course, relevant to note (as the Court did in Line) that, once any parent leaves Australia, there may be little to prevent that person from deviating and travelling to a non-Hague destination. In the present case, there is no evidence at all to suggest that the mother has made any reference to travelling to any destination in Africa.
The father asserts he has serious concerns the mother will not return the children to Australia if she is permitted to remove them from this country for the purpose of a holiday. However, there is no evidence from him to suggest she has previously wanted to sever the children’s relationship with him or has previously made any comments or threats to remove the children from Australia, never to return them. She has never sought orders that the children have no contact with the father or that she have sole parental responsibility for them (other than more recently in relation to the issue of education - a matter which was abandoned immediately at the commencement of the hearing before me).
The mother’s attitude to the father and the children’s relationship with their father is, I think, clear, from the contents of the most recent Family Report. She is, it seems, supportive of the relationship between the children and the father. She is considered by the author of the Family Report clearly to support the children in their ongoing relationship with their father. Whilst she seeks final orders for the children to live with her in Africa, she does not propose that there be a cessation of their opportunity to spend time with their father but, rather, proposes that they spend block time with him during holidays. In addition, she has clearly expressed her positive attitude to the positive aspects of the father’s parenting of the children.
There is nothing in the evidence before me to suggest the mother will do anything other than continue to support and encourage the children in their ongoing relationship with their father.
The mother’s evidence is she has a number of clients in her practice as a health professional and she would not leave them inappropriately.
It is clear, I think, at least by way of inference, that the children have ties to and friends in the H Town area.
It is relevant, I think, to note that the mother has previously proffered an Undertaking to the father to return the children to Australia at the conclusion of holiday travel - she proposed to include in it her acknowledgement of the fact that the children are habitually resident in this country. There could be no other conclusion, given the length of time in which they have lived in Australia.
The mother herself has lived in Australia since about early 2003. Her evidence is that, whilst she wishes to relocate the children to live with her in Africa, if this is not determined to be in their best interests, she will not relocate without them but, instead, will endeavour to have her parents move to Australia to support her and the children here.
As commented upon, the mother has a practice in H Town and clients. I consider this to provide some evidence of her being settled in that area, at least in a practical sense.
There is no evidence before me whatsoever to suggest that the mother has ever made a comment or threat to the father that she will remove the children from Australia to take them to Africa forever; nor is there any evidence to suggest she has ever commented to the father, or threatened the father, that she will not return the children to Australia if permitted to remove them from this country for the purpose of holiday travel.
It seems much more likely than not that the mother’s desire to take the children to Africa is multipurposed: namely, to assist them to see where they would live if her final proposal for their permanent relocation is successful; to enable them to meet their grandparents face-to-face so that they can continue their emotional attachment to them; and, presumably, so that the children can have the opportunity to start to appreciate their African heritage, firsthand.
I am not persuaded by the father’s assertions that the Hague Convention is ineffective in ensuring the return of children retained overseas by a parent.
Whilst I accept that the father has expressed his concern strongly, the existence of this concern and the absence, it seems, of trust in the mother, is not something that, in my view, should properly be permitted to negatively impact upon the children’s opportunity to experience all of the benefits of overseas travel with their mother to her country of birth - where they will also be able to interact personally with members of their extended maternal family.
I accept that the mother’s purpose in seeking to take the children to Africa for a holiday is to enable them to spend time with members of their extended maternal family and to experience aspects of their heritage and culture.
It is, as I have said, clear that the children together have never visited Africa, the land in which both of their parents were born. If they are able to travel there for a holiday, they will obviously have the opportunity to meet personally - in the face-to-face sense - members of their extended family; they will also be afforded an opportunity for connection with, and exposure to, their African cultural heritage.
I accept, on an interim basis, that the mother has some ties to Australia in that she has an established practice here, the children attend school here and she and they continue to live in the former matrimonial home. To that extent, at least, she and the children are connected in the local community.
I consider that the mother’s actions to date vis-à-vis the children’s relationship with their father are such that there is no reason to reject her contentions that she wishes, in the future, to support the children in their ongoing relationship with him and that she values the importance of such ongoing relationship to them.
Whilst the mother’s parents live in Africa, there is no evidence that she, personally, owns any real property there or has any business interests in that country.
Further, it is clear the mother has appropriately sought to engage the proper processes of the Court in her application for permission to relocate the children to live in Africa on a permanent basis. There is no evidence before me to suggest that the mother has ever behaved in a manner contrary to law and proper process.
I do not place any weight on what I consider to be the unsubstantiated assertions that the legal system in Africa is such that the relevant authorities would not act to honour that country’s obligations under the Hague Convention. If parties expect the Court to accept such assertions, the party seeking such finding bears the onus of placing cogent evidence to that effect before the Court. There is simply nothing, in my view, in the evidence before me that meets that criterion. At best, there are the expressed opinions of the father, a citizen who has not lived in Africa since 2003.
I consider that the short period of time during which the mother proposes the children holiday with her in Africa will not adversely affect the benefit to them of their ongoing, meaningful relationship with their father. I am satisfied their relationship with him will not be adversely affected by their absence from Australia during this relatively short period of time. Further, given that such time will occur during a school holiday period, I am similarly satisfied that it is highly unlikely that the children’s education will be, in any way, adversely impacted.
I am not satisfied, on the balance of probabilities, that the risk that the mother will deliberately fail to return the children to Australia, if permitted to remove them from this country for a holiday visit to Africa, is significant or an unacceptable risk in all of the circumstances of this case.
I am further satisfied that there is no unacceptable risk of harm to the children of undertaking travel to Africa for a holiday with their mother and, as said, that there is no unacceptable risk she will not return them to Australia at the conclusion of the proposed trip.
For these reasons, then, I am persuaded that the children’s best interests will be met by allowing them to travel with their mother to Africa for a holiday during the end of Term 1 2017 school holiday period.
Application to discharge existing Court Order and arrears
I turn now to consider the husband’s application to discharge the existing order which requires him to pay spousal maintenance to the mother and his application for discharge of the arrears owing by him to her as a consequence of that Order.
The husband’s formal application is contained within the Response to an Application in a Case (filed 20 October 2016) by which he seeks an order that the Order made 4 May 2015 - which provides that he is to pay the mother spousal maintenance in an amount of $1,000.00 per week - be discharged.
I note, however, that a further Order was made by consent on 13 July 2015. This Order (which is the operative order) reflects the parties’ agreement that, from 15 June 2015, the husband pay the wife $1,000.00 per week spousal maintenance and that, by way of order departing from the quantum of child support payable pursuant to the assessment of child support in accordance with the Child Support Assessment Act 1989 (Cth), he pay the mother child support in the amount of $500.00 per child per week from 15 June 2015 and also pay the costs of the children’s attendance at private school and meet other defined expenditures.
During the hearing, Counsel for the husband made it clear that the husband seeks to discharge the July 2015 Order only insofar as it relates to his obligation to pay spouse maintenance and that he seeks to discharge only those arrears which have arisen as a consequence of the obligation imposed upon him by that order to pay spouse maintenance to the wife in the sum of $1,000.00 per week. He does not, therefore, seek to discharge the Order insofar as it relates to his financial obligation to pay child support or to discharge any arrears which exist in relation to that obligation.
The wife’s evidence is that the husband ceased making any payments in relation to child support and spousal maintenance in about October 2015. She says that, since then, he has only paid mortgage and insurance premiums referable to the former shared residence and has paid the children’s school fees. She accepts that he has paid $17,683.32 since the July 2015 Order was made.
The wife asserts that, as at 12 December 2016, the husband is in arrears in an amount of $33,000.00 - referable to spousal maintenance – and $25,320.11 - referable to child support.
Her case, in essence, is that his failure to comply with the obligations to pay monies he agreed to pay to her has arisen in circumstances where he continues to take the children with him to Sydney each alternate weekend. It is also submitted that his non-compliance with the Order has occurred despite his gross personal income for tax purposes being over $2 million in the 2015 financial year and about $800,000.00 in the 2016 financial year.
It was appropriately accepted by Counsel for the husband that the husband bears the onus of establishing those matters prescribed by s 83 of the Family Law Act 1975 (Cth). That section provides that, if there is in force an order with respect to the maintenance of a party to a marriage, the Court may (relevantly) discharge the order if there is any just cause for so doing or suspend the operation of the order (wholly or in part) either until further order or until a fixed time or the happening of some future event or, subject to s 83(2), vary the order so as to increase or decrease any amount ordered to be payed or in any other manner.
Section 83(2) of the Act relevantly provides that the Court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied that, since the order was made, the circumstances of the person liable to make payments under the order have so changed as to justify it so doing. Further bases upon which a Court may make an order increasing or decreasing an amount previously ordered includes that material facts were withheld from the Court that made the order or that evidence previously given was false.
Section 83(5A) of the Act relevantly provides that the Court should have regard to any payments, transfer or settlement of property made by a party to a marriage to the other party. There is no evidence to suggest that there has been any transfer or settlement of property previously made by the husband to the wife, other than that he has previously paid $30,000.00 to her for her use in meeting legal expenses associated with the litigation.
It is clear also (see s 83(6) of the Act) that the Court has the power to make an order decreasing the amount of a periodic sum payable under another order in a retrospective manner to such date as the Court considers appropriate. Section 83(7) of the Act provides that, for the purposes of s 83, the Court shall have regard to the provisions of s72 and s 75 of the Family Law Act 1975 (Cth).
Having regard to the evidence relied upon by the husband in support of his application, I consider, on an interim basis, it to be more likely than not that the indebtedness referred to by the husband in that material was likely to have been known to him at the time he entered into the July consent order. Further, whilst it appears he received a Statutory Demand for payment of about $900,000.00 in October 2015, this was referable to a period from October 2014 to October 2015 and likely known to the husband. I also take into account that, despite this Demand having been received by him, he made no application to the Court to seek to be released from the terms of the consent order made in July 2015 until much more recently. Further, there is no evidence given by the husband to suggest that the debts he refers to - including the significant one to the Australian Taxation Office – as those he is required to repay arose only after he entered into the July consent order, or that his obligation to meet those repayments represents a significant change to his financial circumstances in circumstances that were unknown to him, or incapable of being known by him, when he entered into the July 2015 consent order.
Further, whilst the May 2015 Order was, it seems, the original order by which the husband agreed to pay the wife $1,000.00 per week by way of spouse maintenance, he reaffirmed this agreement on 15 July 2015 when he agreed to a further order being made in those terms. His evidence is that he learned of the loss of a contract with a government department, “in about July 2015”. His evidence is no more specific than this. He says that, as a consequence of the loss of this contract, he lost income and had an increased debt level. However, he obviously is the person who could have given clear evidence that he had not lost the contract at the time he entered into the consent order in mid-July 2015 or, for example, that he did not know there was any prospect of him losing the contract or, for example, that he was completely taken by surprise at the loss of the contract. The fact is that he has not provided the Court with such evidence. Further, it seems to me he could clearly have particularised the date on which he learned of the loss of the contract with the government department so as to establish - without doubt - that it either pre or post-dated 15 July 2015 (when the terms of the consent order were struck) but he chose not to.
Whilst it was submitted on his behalf that he pays about $9,348.00 per week tax, the mortgage repayments on the home in which the mother and children live and rent for himself, it is also clear that this was the situation at the time the parties entered into the consent order made on 15 July 2015.
In addition, I note the contents of the father’s discussions with Ms I (the Family Report writer) in late August 2016 to the effect that he would be prepared to meet more significant financial obligations if the children and mother remained living in Australia: “If she gives him his financial settlement”, and the mother directs these monies to the children’s development and not religious development. This appears to me, on a prima facie basis at least, to be some evidence to suggest his financial position was not then so constrained that he was unable to pay moneys he is currently required to pay in meeting obligations imposed on him by the July 2015 Order.
I am not persuaded that the husband has discharged the onus of establishing the matters required by s 83 of the Act.
I consider that, if he decided not to take the children to Sydney every second weekend and, therefore, decided not to incur the costs associated with those visits (such as flights, accommodation and transport) it is much more likely than not that he would easily have the capacity to meet the terms of the Order he agreed to in July 2015.
I accept, on an interim basis at least, the submission made on behalf of the wife to the effect that it appears the husband has simply determined to place the expenses associated with having the children participate in foreign language classes in Sydney every second weekend - which he estimates to be in an amount of $2,000.00 per week or $104,000.00 per year - ahead of his obligation to meet the existing order for the payment of spousal maintenance to the wife.
I am not persuaded that the husband has discharged the onus of establishing that he does not have the capacity to meet the payments required to be made pursuant to the existing Order. I am not persuaded that the husband has discharged the onus of establishing that his circumstances have so changed since the July 2015 Order was made as to justify decreasing the amount payable or discharging the arrears.
I am not persuaded that there is a just cause for discharging the term of the July 2015 Order which requires the husband to pay spousal maintenance to the wife of $1,000.00 per week. For these reasons, I decline to do so. Similarly, I am not persuaded that the husband has discharge the onus of establishing that there is a just cause to discharge the arrears payable by him to the wife in consequence of the existence of the July 2015 Order and I decline to do so.
Disclosure orders sought by wife
Both parties have an ongoing duty of disclosure which continues until the case is finalised: see Rules 13.011 and 2 of the Family Law Rules 2004. The extent of the duty to disclose information in financial cases is prescribed by Rule 13.04. Each document which is or has been in the possession or under the control of a party and is relevant to an issue in the case must be disclosed by a party.
I accept the submissions made by the wife’s legal representative in support of the Orders for disclosure and consider it appropriate that orders be made requiring the husband to disclose those documents particularised in paragraph 1(b) of the Application in a Case (filed 16 December 2016) as amended in the manner outlined in the Order which I will make.
Valuation of the husband’s business interests
It appears that a number of expert reports have already been prepared to value the husband’s practice. A Ms J was, it seems, previously appointed as the single expert for the purpose of valuing the husband’s practice - as a consequence of that appointment, two reports have been prepared. The first valued the practice at $1,660,860.00 as at (4 July 2015) and the second valued the practice at $8,883,230.00 as at a later date. It is uncontentious that the husband has engaged MR K from L Valuers to value his business interests - this report values the same at $350,000.00 (as at June 2015).
Consequently, it is clear there is a significant disparity in the values put forward by each of the experts.
Whilst it appeared during part of the hearing before me that the parties joined in seeking to be able to adduce adversarial expert evidence in relation to the issue of the significant difference in the valuations to which I have already referred, reflection has led me to conclude that such application may, in essence, be premature.
I note that, on 22 September 2016, Registrar Coutts made a number of orders, included within which were orders of a standard nature which provided for the parties to engage in a mechanism of either agreeing the values of property for the purpose of the proceedings between them and, if no agreement was reached, providing for the appointment of a single expert witness to value the same - so much can be seen by reference to Clauses 6 to 8 (inclusive) of that Order.
As I ultimately understood the submissions made by the wife’s legal representative, she seeks to exempt the husband’s practice from the operation of at least Clauses 7 and 8 of the September 2016 Order at this stage. As I ultimately understood the submissions, what was sought was, in essence, the opportunity for the wife (and, presumably, both parties) to consider the existing valuation evidence after the issue of disclosure had been resolved and disclosure made.
I did not have before me, I consider, a formal application for leave to adduce adversarial expert evidence. I am not, as yet, persuaded that such a course is necessary in this particular case.
At this point, I consider the most appropriate course (given that I am not 100 per cent clear that the parties are really agreed in relation to calling adversarial experts and/or that such course is appropriate when regard is had to the requirements imposed by the Rules) is simply to make an order varying the Order made on 22 September 2016 such that Clauses 7 and 8 will apply after the husband has complied with the obligation to disclose in the manner ordered today.
In that way, there will be afforded to the wife the opportunity to consider her position (with the benefit of the receipt of the documents sought by way of disclosure) and the parties will then have the opportunity to engage in the process envisaged by the Rules.
In the event that the parties cannot reach agreement, or there are difficulties or issues which arise in the implementation of the Orders, I intend to afford them liberty to apply.
They will also have, of course, the opportunity to make application in accordance with the Rules to be permitted to call adversarial expert evidence at the trial in the event that that course is ultimately one determined by either of them.
Given that, as I expressed to the parties during the course of the hearing, I intend to attempt to offer this matter a final hearing in the second half of this year, the Orders will record that any application under the liberty to apply will be brought to my attention - and in that way I will be able to assist the parties in the event of any disagreement or if it is necessary to make any additional orders for the valuation of their property for the purpose of the proceedings.
For these Reasons, then, I make orders in terms of the Minute signed by me and placed with the papers.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 January 2017.
Associate:
Date: 13 January 2017