Fowles and Fowles (No 2) - [2019] FamCA 1027

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES (NO. 2)

[2019] FamCA 1027

FAMILY LAW – INJUNCTIONS – where husband seeks to dissolve restraint against him leaving the jurisdiction prior to the completion of his cross examination in final property proceedings – very prolonged hearing of property proceedings – relevant principles to uphold the integrity of the court’s hearing process – no significant security offered – injunction dissolved temporarily to permit husband to travel for his father’s funeral.

FAMILY LAW – PARENTING ORDER – where husband seeks to take 16 year old child of the marriage out of Australia to attend the funeral of the child’s grandfather in Country U and a commemorative service in the United States of America – where child’s view is that he is prepared to attend his grandfather’s service in the United States of America but not in Country U – applicability of best interest principles – appropriateness of s 60CC factors, in particular, additional considerations – consideration of matters which form the exercise of the court’s discretion to allow the child to travel, where travel not considered to be in the child’s best interests due to father’s unpredictable and unsatisfactory behaviour and failure to allow child any financial autonomy whilst absent from Australia.

Bankruptcy Act 1966 (Cth)
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Family Law Act 1975 (Cth)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Antis & Antis (2000) FLR 93-013
Australian Securities and Investments Commission v Wiggins (1998) 90 FCR 314
Bayer AG v. Winter and Others [1986] 1 WLR 497
Brown & Brown (2007) FLC 93-316
Fowles & Fowles (No.5) [2018] FamCA 929
Kuebler & Kuebler [1978] FamCA 26
Line and Line (1997) FLC 92-729
Minister for Immigration and Ethic Affairs v Teoh (1995) 183 CLR 273
Portelli & Wymer [2019] FamCA 428
Rahman and Rahman [2013] FamCAFC 162
Talacko v Talacko [2010] FCA 193
Vellers & Vellers [2019] FamCA 412
Weiss v Offıcial Trustee in Bankruptcy (1983) 1 FCR 40
Xuen & Chao (injunction in aid of enforcement) [2014] FamCA 798

APPLICANT:

Ms Fowles

RESPONDENT:

Mr Fowles

INDEPENDENT CHILDREN’S LAWYER:

Ms Mary Lonergan

FILE NUMBER:

MLC

8587

2015

DATE DELIVERED:

23 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

9 & 12 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms M Smallwood SC

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T North SC

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr C Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED THAT:

Subject to compliance with paragraphs 6 and 7 of this Order, paragraphs 2 of the Order made on 16 November 2018 be suspended to allow the husband to travel from the Commonwealth of Australia to the United States of America and to Country U…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FamCA 1027
Decision Date: 23 December 2019

CaseChat Overview and Summary

In *Fowles and Fowles (No 2)*, Bennett J of the Family Court of Australia considered two distinct applications by the husband. The first concerned the husband's request to dissolve a restraint preventing him from leaving Australia prior to the completion of his cross-examination in final property proceedings. The second application related to the husband's desire to take the parties' 16-year-old child, D, out of Australia to attend his father's funeral in the United States and Country U, and a commemorative service in the United States.

The court was required to determine whether to lift the travel restriction on the husband, balancing the need to uphold the integrity of the court's hearing process against the husband's stated reasons for travel. In relation to the child D, the court had to consider the child's best interests, applying the factors outlined in section 60CC of the *Family Law Act 1975* (Cth), including additional considerations. This involved assessing the appropriateness of allowing D to travel given the husband's behaviour and the child's own expressed wishes.

Bennett J reasoned that while the integrity of the court process was paramount, a temporary suspension of the travel restraint was warranted to permit the husband to attend his father's funeral, visit his ailing mother, and spend time with his family. This suspension was made subject to significant security measures, including the execution of a client authorisation for the transfer of the husband's interest in a property and his resignation as a director of a company, with these documents to be held in escrow by his solicitors. The court also ordered a substantial payment on account of the wife's entitlements. Regarding the child D, the court dismissed the husband's application for D to travel with him, finding that such travel was not in D's best interests due to the father's unpredictable behaviour and failure to grant the child financial autonomy during any absence. The court directed the independent children's lawyer to explain this outcome to D.

Orders

Orders of the court

IT IS ORDERED THAT:

Subject to compliance with paragraphs 6 and 7 of this Order, paragraphs 2 of the Order made on 16 November 2018 be suspended to allow the husband to travel from the Commonwealth of Australia to the United States of America and to Country U for the purposes of attending his father’s funeral, visiting his ailing mother, and spending time with his family in the period between 12 December 2019 and 31 January 2020.

The husband return to Australia by not later than 11.50 pm on 31 January 2020.

Paragraph 2 of the Order made on 5 July 2018 and paragraph 3 of the Order made on 16 November 2018 be and are hereby discharged and the husband’s passports be forthwith released to the husband’s solicitors to be held by those solicitors (and not to be released to the husband) unless and until the husband has complied with paragraphs 6 and 7 of this Order.

Upon compliance by the husband with paragraphs 6 and 7 of this Order, the husband’s passport be released to him by his lawyers.

The husband deliver his passports to the Melbourne Registry of the Family Court of Australia within 7 (seven) days of the date of his return to the Commonwealth of Australia.

By way of security only pending the husband’s compliance with paragraph 2 and 4 above, and without reference to the pending proceedings pursuant to Section 79 of the Family Law Act 1975 (Cth) before this Honourable Court:

(a) the husband forthwith execute a Client Authorisation for the Conveyancing Transaction (“Client Authorisation”) for the transfer of his right, title and interest in the property situate at and known as X Street, Melbourne in the State of Victoria certificate of title Volume … folio .. (“X Street”).

(b) the Client Authorisation referred to in paragraph 6(a) hereof be held in escrow by the husband’s solicitors pending the husband’s compliance with paragraphs 2 and 5 hereof or order of the Court;

(c) if the husband wilfully fails to comply with paragraphs 2 and 5 hereof, the wife be at liberty to make an application for the husband’s solicitors to complete a Transfer of Land for the transfer of the X Street property and to execute the Transfer of Land as the transferee of the property or in the alternative, to cause X Street to be sold and have the proceeds dealt with in accordance with the further order of the Court;

(d) the husband forthwith do all things and sign all documents necessary to have the wife appointed a director of T Inc and himself resign as a director, with such appointment and resignation to take effect on a date to be specified by further order of the Court;

(e) all documents executed in accordance with (d) hereof be held in escrow by the husband’s solicitors pending the husband’s compliance with paragraph 3 and 4 hereof or order of the Court;

(f) if the husband wilfully fails to comply with paragraphs 2 and 5 hereof the wife is at liberty to make application for delivery to her of the documents referred to in (e) hereof.

7.The husband pay to the wife’s solicitors the sum of $75,585 on account of the wife’s entitlement pursuant to paragraph 7 of the Order made on 5 July 2018, such payment:

(a) to be deemed to have been made only when the funds have cleared in the account of the husband’s solicitors or the wife’s solicitors;

(b) if paid via the husband’s solicitors, be exempt from the operation of paragraph 7 of the Order made 5 July 2018;

(c) is received by the wife without prejudice to her entitlement to argue subsequently that the current shortfall in payments made to her solicitors pursuant to paragraph 7 of the Order made 5 July 2018 exceeds $75,585.

The husband’s application for the child E born … 2003 to be allowed to travel with him from 13 to 23 December 2019 or otherwise, be and is hereby, dismissed.

IT IS DIRECTED that, as and when convenient and following the publication of my reasons for decision, the independent children’s lawyer explain the outcome of the proceedings to D including, but not limited to, the basis on which the husband’s application for D to travel with him was refused.

10.

The husband forthwith deliver to the wife, via their respective solicitors, the child’s recently issued Australian passport and the wife hold such passport safely.

11.

The husband’s Application in a Case filed on 29 November 2019 is otherwise dismissed save as to costs.

12.

Paragraph 3 of the Orders Sought by the wife in her Response to the Application in a Case filed on 4 December 2019 be adjourned for argument and determination on 4 February 2020 at 9:00 a.m. (estimated to take not more than 2 hours) and the balance of the wife’s Response be otherwise dismissed save as to costs.

13.

In relation to the hearing on 4 February 2020:

(a) the independent children’s lawyer be and is hereby excused from participating in the hearing;

(b) liberty is reserved to the husband and the wife to jointly seek an administrative adjournment of the hearing on 4 February 2020 and to do so through my Associate – email …. Communication by one party’s solicitor will be deemed to be a communication by the solicitors for both the husband and the wife;

(c) if the matter is resolved and a minute of orders sought by consent of both parties is submitted to Chambers prior to 4 February 2020, the husband, wife and their respective solicitors are excused from appearing on 4 February 2020.

14.

Any party wishing to make an application for costs of an incidental to the husband’s Application in a Case filed on 29 November 2019 and the wife’s Response to the Application in a Case filed on 4 December 2019, do so by Tuesday 28 January 2020. Without limiting the basis upon which costs may be sought, any application for costs be supported by an itemised bill of costs drawn in accordance with Schedule 3 to the Family Law Rules 2004.

AND THE COURT NOTES

The husband’s father, Mr Fowles Snr, passed away in the United States of America on … 2019 and the husband has given evidence that the memorial service will take place in … on …December 2019 and a burial will take place in … in Country U on …January 2020.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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