Kimmel & Sabbet
[2023] FedCFamC1F 776
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kimmel & Sabbet [2023] FedCFamC1F 776
File number(s): SYC 1710 of 2021 Judgment of: REES J Date of judgment: 11 September 2023 Catchwords: FAMILY LAW – INTERIM – Parenting – Property – Where the mother seeks for the children to travel to the United Kingdom – Where the father opposes the application – Where the mother has extended family in the United Kingdom – Where the enforcement of property orders is extended – Where the father is to undergo a neuropsychological assessment under recommendation of the Family Report Writer - Where the parties are to agree on a Single Expert to conduct the assessment and report – Orders made dismissing the mother’s application to travel to the United Kingdom with the children. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules2021 r 7.03 Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 11 September 2023 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: The Norton Law Group Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 1710 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KIMMEL
Applicant
AND: MR SABBET
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
11 SEPTEMBER 2023
THE COURT ORDERS:
1.That the application of the applicant to travel with the children to the United Kingdom is dismissed.
2.That the time for payment of the outstanding amounts pursuant to Order 12 of orders made on 15 September 2021 be extended to 30 September 2023.
3.That within 14 days of the date of these orders, the respondent provide the names of three suitably qualified neuropsychologists to prepare a report as recommended by Dr B in his report dated 6 December 2022 and that, within a further 14 days, the applicant nominate the person to be appointed as single expert.
4.That the parties be permitted to give a copy of Dr B’s report to the single expert neuropsychologist and that a copy of the report of the neuropsychologist be provided to Dr B.
5.That pursuant to Sections 65DA(2) and 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
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 Kimmel & Sabbet has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Kimmel ("the applicant") and Mr Sabbet ("the respondent"), are the separated parents of two children, X born 2018 and Y born 2020 ("the children").
There are outstanding proceedings before the court in relation to the parenting arrangements for the children and the division of their property. No hearing dates have yet been allocated in relation to the substantive issues.
The applicant, by way of an interim application, now seeks a number of orders, some of which are the subject of agreement.
SINGLE EXPERT’S REPORT
In his report, the single expert, Dr B, recommended that the respondent undergo a neuropsychological assessment. The respondent, in his response filed 7 September 2023, agrees to do so. They do not agree about who is to prepare the report. The application proposes an expert recommended by Dr B. The respondent proposes an expert recommended by his treating psychologist.
Rule 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 makes it clear that, if expert evidence is required to resolve an issue, that evidence should be given by a single expert. Neither party has filed an application to adduce an adversarial expert.
The orders will provide for the respondent to nominate three suitably qualified persons and for the applicant to choose one to prepare the report.
ENFORCEMENT
An order was made on 15 September 2021 that the respondent pay to the applicant, by way of partial property settlement, the sum of $300,000 to be paid by monthly instalments of $25,000. There is no dispute that the respondent has paid $200,000 pursuant to that order and that the sum of $100,000 remains outstanding. The respondent acknowledges that the funds are owed and seeks orders that the amount be paid, from dividends which are due to be paid to him, by 30 September 2023. The applicant agrees to the form of order proposed by the respondent.
OVERSEAS TRAVEL
The outstanding issue is the mother's application that she be permitted to take the children to the United Kingdom ("UK") in late 2023. That application is opposed by the respondent father.
In support of her application, the applicant relies on her affidavit sworn 15 August 2023. She deposes that her grandmother who is 85 years old and lives in the UK, has not met Y and has not seen X since 2019.
The applicant has other extended family in the UK. She moved to Australia, I infer from the UK, in 2009. She has Australian citizenship. She deposed that, although she has no family in Australia, she has close friends. She denies that she is a flight risk and offers to lodge a bond of $50,000.
In her Initiating Application filed on 11 March 2021, the applicant sought only financial orders.
However, in her Further Amended Initiating Application, filed 11 June 2021, she seeks orders that she have sole parental responsibility for the children and that she be permitted to relocate the children's residence to the United Kingdom.
The application for relocation was maintained by the applicant until Friday 8 September 2023, the last working day before the matter came before me, when another Further Amended Application was filed abandoning the application for relocation. Nothing, of course, prevents the mother from amending yet again at any time before trial dates are allocated.
The applicant travelled to the UK without the children in 2022, when her sister died, and in 2023 when her mother died. On each occasion, the children remained in Australia with the father.
In her Financial Statement, sworn 15 August 2023, she discloses that she owns no real property in Australia but that she owns a property in City C, UK which is unencumbered. Her assets in Australia are entirely liquid, being shares in listed companies and superannuation totalling some $217,000.
The respondent, in his affidavit sworn 7 September 2023, deposes that the applicant has, on numerous occasions, threatened to take the children permanently to the UK and that she has told him she has friends in Country D, City E and Country F who will, I infer, assist her in hiding the children. The respondent deposed that he is a dual Australian and Country D citizen and will not be permitted to enter Country F.
The respondent deposed that the applicant has changed her surname a number of times and that she told him she did so to avoid creditors. He fears that she will change her name again and disappear with the children.
The children are currently on the Airport Watch List.
The respondent deposed that the applicant holds the children's Australian passports. He asserts that she has applied, without his consent or knowledge, for UK passports for the children. Annexed to his affidavit is a document suggesting that $139.34 was paid to the passport office in City G in the UK in March 2021. Tendered in the applicant's case was a text message from the passport office in February 2021 noting the application for a UK passport (although not for whom) and requesting confirmation of identity. Two days later, the passport office texted the applicant saying that proof of identity had been provided by a named person, not the respondent, and stating, "Your application will be kept on hold until you are able to send us your documents".
On 1 April 2021, a letter was sent by the respondent's solicitors to the applicant's solicitors stating,
We are instructed that your client has used our client’s MasterCard, without his knowledge or consent, to apply to the UK Passport, [sic] for a child’s passport. We request the corresponding documents for that application given that our client had no prior knowledge until the transaction appeared on his MasterCard statement in March 2021.
On 6 April 2021, the applicant's solicitors replied,
Our client does not agree that your client had no knowledge of the UK passport. We are instructed that several discussions were had and that your client was involved with the signing of the documents.
I infer from that letter that the applicant acknowledges that she applied for a passport for a child. The "corresponding documents" requested by the respondent have not been provided. Those documents would have shown who made the application and whether it was made with the consent of the respondent.
The respondent is willing to pay the airfares for the mother's grandmother to travel to Australia to spend time with the children.
There is no evidence that the offer by the applicant to lodge a bond of $50,000 would be a deterrent to her remaining with the children in the UK if that is her intention.
These are interim proceedings and it is not possible to make any findings of fact or to determine that there is any substance in the respondent's fears that the applicant will not return the children to Australia.
I accept, however, that he has established a prima facie case that a risk exists, particularly having regard to the mother's long held substantive application to change the children's residence to the UK, and the application will be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 11 September 2023
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