Grevitt and Jix

[2010] FamCA 303

FAMILY COURT OF AUSTRALIA

GREVITT & JIX [2010] FamCA 303

FAMILY LAW – CHILDREN – Interim – with whom children live
FAMILY LAW – PROPERTY – Injunctions

Family Law Act 1975 (Cth)

Goode and Goode (2006) FLC 93-286

APPLICANT: Ms Grevitt

RESPONDENT: Mr Jix

FILE NUMBER: MLC 2615 of 2010

DATE DELIVERED: 24 March 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 24 March 2010

REPRESENTATION

THE APPLICANT: Mr Cantwell

Orders

1. That the wife have leave to proceed with her application without notice to the husband.

2. That the application of the wife filed on 23 March 2010 be adjourned to 9.00am on 14 April 2010 before me for further mention.

3. That the children A born … October 2002 and M born … November 2004 live with the wife.

4. That until further order each party, MS GREVITT born … 1971 and MR JIX born … 1966 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children A born … October 2003 (female) and M born … November 2004 (female) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s name/names on the Watch List until the Court orders their removal.

5. That until further order, the husband, his servants and agents be and are hereby, restrained from withdrawing, drawing against or in any way dealing with:

   (a)his account at the NatWest Bank in the United Kingdom being an account number …;

   (b)his account at the P branch of the Commonwealth Bank of Australia in his name trading as R Business in Business on-line savings account number …8;

   (c)his account at the P branch of the Commonwealth Bank of Australia in his name trading as R Business in Business transaction account number …1.

6. That as soon as practicable, the wife’s solicitors serve a sealed copy of this order on the NatWest Bank in the United Kingdom and the Commonwealth Bank of Australia.

7. That as soon as practicable, the wife’s solicitors serve upon the husband if possible a copy of the application filed 23 March 2009, the affidavit material in support thereof and these orders.

8. That the order be expedited.

9. That the parties have liberty to apply on Seven (7) days notice in writing.

10. That the costs of the wife of this day are reserved.

11. That pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Grevitt & Jix is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2615 of 2010

MS GREVITT

Applicant

And

MR JIX

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by Ms Grevitt.  It was filed yesterday, 23 March, and a registrar, having read the material of the wife, sufficiently deemed it urgent to list it this morning in the judicial duty list.  The application is wide in its compass.  The background of the matter is that the parties married in 2003, and there are two children aged five and six.  They were living in P in rented accommodation whilst their home was being built, and is still being built.  The home is going to be ready for occupation in May of this year, and is clearly well on the way to being completed.

2. The first that the wife seems to have been aware of problems in the relationship was only some days ago, when she discovered that her husband had been conducting an affair over the internet with a woman, apparently, in Canada.  According to the wife’s affidavit, which is obviously not challenged, the husband left the home on 15 March without explanation, and went to Canada.  Since that time, his whereabouts have been largely unknown.  It is suggested that he has connections in the United States with his former employers, and there is an email that has been sent to the wife in which he indicates obliquely that he is working in Singapore.

3. The parties also have a connection with the United Kingdom, and the wife has the passports of the children, so there is little prospect that the children could be removed from Australia.  However, it is of concern to the wife that the husband could obtain new English passports. Just what the husband’s intentions are in respect of the children and the future is unclear.  It must be unclear to some extent, because he has not had an opportunity to participate in these proceedings.  What is of concern to the wife is, effectively, three things.

4. The first is that she describes the husband as not being the same as he was since he was directly involved in a terrorist experience overseas in 2008.  The second issue is he has been affected by the death of his mother.  The third is his recent behaviour, in which he has left his wife and young children and started a relationship somewhere else. 

5. The wife received an email on 18 March from the husband in which he said, and I quote:

   I’m so sorry about how things have turned out.  I’m very concerned for you and the girls because of dealing with your mother’s illness and missing out on the support you need from me to get through it.  I’m very scared and have been for a long time, and I imagine you and the girls are too.  I’m in Singapore at the moment, working, typical me.  I turn to an online dating site as a fairly desperate measure.

6. The wife responded to that email, indicating that she would appreciate knowing where he was living, and how he could be contacted, and asking when he would be returning to Melbourne.  She offered to talk on Friday of last week at just after 8 am.  The husband responded to her email, and I quote:

   I’ll be back in Melbourne on Sunday March 28.  At the moment, no idea where I’ll be living, but I will look down the west side.  I’ll call on March 28 for sure.

7. The wife’s position is that, with a combination of those matters, she has some concerns about the husband’s stability.  To make matters a little bit more complicated, the husband, as a result of being made redundant by his association with W Company, received a significant payout and, along with that payout, he also received £259,000 from his mother’s estate.  Those amounts then went into an account and were to be used by agreement between the parties to pay off their mortgage on the house that they are building.  The husband commenced trading under an organisation called R Business, and that seems to be a corporate entity which has some connection with distributing entertainment products.

8. What I am asked to do here is to make a series of injunctions, as well as make a parenting order.  The injunctions are to ensure that the children’s lives are not disrupted by being forcibly removed from the Commonwealth.  The injunctions in relation to financial matters are to stop the sort of thing that the wife has seen, which includes the movement of money out of the husband’s accounts, to the woman that he is apparently having some form of relationship with in Canada.  The other issue is to regularise the lives of these two little children, at least on an interim basis.

9. Injunctions and any orders should only be made in very restricted circumstances on an ex parte basis.  It is always the right of a person to be heard in proceedings, and the court is always hesitant because it is making orders on one side of the story only.  Urgency arises from perception.  Perceptions can be wrong.  In this case, however, there is evidence of some unusual behaviour in the husband which is unexplained, and his departure from Australia leaves me puzzled as to what his intentions were, not only in relation to the financial future of his wife and the children, but also his parenting responsibilities.

10. In relation to the question of parenting orders, a court should only make orders on an interim basis if it is satisfied that they are in the best interests of the children for the purposes of a holding position until the court can look at the matter in more detail.  The court can only look at the matter in some detail if it has got some indication from the husband as to what his intentions are about where he will live and what sort of relationship he proposes to have with the children.  This is, therefore, a case where I think it is appropriate to make interim orders.

11. As has been made clear in decisions of the Full Court such as Goode and Goode (2006) FLC 93-286, the urgency of the situation and its interim nature does not obviate the obligation of the court to look at issues such as shared parental responsibility and the other matters set out in section 65DAA. However, things such as the presumption in the Act can be ignored at this point in the litigation on the basis that it is not in the best interests of the children to have equal shared parental responsibility. I am not prepared to make an order for sole parental responsibility, nor to confirm equal shared parental responsibility in circumstances where I have no idea what the husband’s position is.

12. It is not just that I do not have any information from him, it is the fact that he has chosen a course which is rather odd for a parent.  In those circumstances, it seems sensible for me to make an order that the children live with their mother on an interim basis until the matter can be examined in more detail.  There is no evidence before me other than that these two children are being well cared for by their mother.  In relation to the injunctions, I have canvassed with Mr Cantwell the question of whether there ought to be some undertaking as to damages.  He does not agree because of the nature of the money in the account, and it is a small business.

13. Having regard to the short period of time that I propose to cover for these injunctions, I do not propose to seek an undertaking as to damages from the wife.  It seems to me that, unlike many cases, the corporate entity, if that is what it is, is really just the husband under a different guise.  In those circumstances, he has an obligation to protect his wife and children financially, and if that means that he has to regularise his business affairs, so be it.  It seems to me, therefore, that the injunctions should be made and that the wife should have the opportunity to notify the banks that those injunctions are being made.

14. Injunctions are obviously of little value unless the orders are brought to the attention of the respondent, and I propose to make the order suggested by Mr Cantwell, that the orders be served on the husband as quickly as possible.  I propose to bring the matter back at 9 o’clock on 14 April 2010 before me, on the basis that the husband needs to participate in the proceedings.  The court needs to not only know his future in relation to parenting, it also needs to know what his intentions are about providing support.  It is easy to refer to the Child Support Legislation, but that is a matter for government policy.

15. In this case, the husband has a responsibility as a parent to be providing for his children.  In those circumstances, it is my view that he really should be here, and he should participate comprehensively. 

16. I will not make an order in terms of paragraph 5, for the reasons I have outlined. 

17. I will not make orders in relation to paragraph 7, for the reasons I have already outlined.  I will not make orders in relation to paragraphs 8 and 9 at this stage, but they can be matter that can be revisited when the matter comes back on 14 April. 

18. I will not make an order in terms of paragraph 12 at this stage, because I am going to be reviewing the matter on 14 April.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 April 2010