Liston & Liston

[2007] FamCA 1159

FAMILY COURT OF AUSTRALIA

LISTON & LISTON [2007] FamCA 1159

FAMILY LAW – CHILDREN – Interim restraint on party leaving Australia – Undertaking given

FAMILY LAW – CHILDREN – CHILD SUPPORT – Alleged arrears

Family Law Act 1975 (Cth)

APPLICANT: Mrs Liston

RESPONDENT: Mr Liston

FILE NUMBER: SYC 3285 of 2007

DATE DELIVERED: 26 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 26 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

ORDERS

1. THAT the further hearing of the wife’s Application filed 25 September 2007 be adjourned to the Judicial Duty List at 10.00 a.m. on 3 October 2007.

2. THAT pending the adjourned date or further Order the husband be and is hereby restrained from leaving the Commonwealth of Australia.

3. THAT pending the adjourned date or further Order the husband and the wife, by themselves, their servants or agents be and are hereby restrained from removing or attempting to remove the children of the marriage, S born … February 1998 and T born … May 2002 (“the children”) from the Commonwealth of Australia.

IT IS REQUESTED

1. THAT the Australian Federal Police place the names of the husband Mr Liston born … March 1958 and children, S born … February 1998 and T born … May 2002 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the names on the Watch List until further Order of the Court.

2. THAT the wife cause a sealed copy of these Orders and all documents filed by her in these proceedings to be personally served upon the husband by 8.00 p.m. on Saturday 29 September 2007.

3. THAT the wife’s costs of this day be reserved.

4. THAT the ex tempore reasons for judgment be transcribed and placed upon the court file and made available to the parties.

5. THAT after service is effected pursuant to Order 5 hereof the wife forthwith file an Affidavit of Service.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 328 of 2007

MRS LISTON

Applicant

And

MR LISTON  

Respondent

REASONS FOR JUDGMENT

1. The matter of Liston is before me in the Judicial Duty List.  Mr Strum of counsel appears for the wife and with him in court is both his client and his instructing solicitor.  The husband has not been served and therefore is not in court and the matter is presented to the court on the basis of an ex parte application. 

2. First I observe that this matter was initially issued within the Sydney Registry and file SYF 4475 of 2005.  Thereafter the divorce proceedings were concluded in the Brisbane Registry in file BRM 5871 of 2006.  For some reason perhaps related to the ongoing child support issues, this file was allocated a Sydney Registry number SYC 3285 of 2007, though it comes on before me in the Melbourne Registry.  These files should be consolidated.

3. The wife has filed four documents including an application for final orders and an application in a case.  I refer only to the interim orders sought in that application in a case.  Mr Strum, at the commencement of his submissions today, sought to narrow the orders sought on an ex parte basis and has produced a minute of proposed orders which leaves to one side the various children's orders, and other procedural orders sought, and primarily asks the court to deal with the matter on an ex parte basis, otherwise to restrain the departure of the husband from the Commonwealth of Australia and to have his name and presumably those of the children, placed on an Airport Watchlist.  Mr Strum has further sought to persuade the court to make additional interim financial and restraining orders in the terms that were sought in paragraphs 9, 10 and 11 of that interim application.

4. In support of the orders sought the wife has filed a relatively detailed affidavit with annexures.  I have read that affidavit and understand the background facts of the marriage, the two children now aged 9 years and 4 years respectively, and of the various allegations as to unpaid child support.  In particular and in that regard I have read carefully paragraphs 34-51(inclusive) of that affidavit and the various annexures.  There have been a number of enthusiastic submissions made about the husband's alleged total failure to meet his obligations by either declining to pay, refusing to pay or making payment of required child support almost a practical impossibility. 

5. I make no findings on any of those issues.  That are matters that can only be determined when the husband has the opportunity to be in court and when the matters can be fairly and fully considered.  The foundation of much of the submissions of Mr Strum is that the husband has been living in and may well return to the Pacific Islands, a non-reciprocating convention country.  Again I have read the history as identified in the wife's affidavit and whilst it is a basis for considering the matter today I make no formal findings in that regard.  I am generally aware of the current financial circumstances of the wife, as deposed to in her Form 13 financial statement or otherwise in her affidavit both as to her income, her current residence and her new relationship.

6. I am advised that the husband is to marry in Sydney this week.  It is said to be his fifth marriage although that really is of no relevance in the context of the particular financial orders and restrains now sought.  I have asked questions of Mr Strum but there is no known information as to the husband's intended departure from Australia, any potential honeymoon venue or otherwise any travel plans.  What I have been told is that the husband is a professional businessman who conducts financial seminars throughout Australia. 

7. I am told that the husband has a substantial income earning practice and potential and has habitually failed, as it is alleged, to pay proper child support as previously agreed and as now required.  Again, I carefully make no findings on matters in contention or where there is likely to be a response from the husband.  I propose however to fairly consider the way in which this case can best be managed by the court to determine what, if any, interim orders are just and proper and to ensure that the husband is in court and does have an opportunity to present argument or submissions in relation to the outstanding financial arrears of child support and other issues as alleged.

8. I emphasise in these brief extempore reasons that the restraint on movement is a very serious and considered matter.  I do not lightly pronounce any such order.  I do have regard to what appears to be the husband's convenient travel lifestyle, the allegations of the income that he may generate and the likelihood that he will soon return overseas.  That is all in the context of the outstanding child support assessments, and if it is shown that the wife is correct, the very substantial arrears with no current proposals to pay or reduce those arrears.  I very carefully do not venture into the specific and substantial restraining orders that are sought in respect of assets, entities, superannuation or otherwise, and further I do not make any orders relating to full and proper disclosure of documents, assets or the like.  They are all matters for another day.

9. What Mr Strum did not voluntarily address me upon was any required undertaking of his client to be responsible for any reasonable or proper loss or damage that might flow from her successfully persuading the court to make interim orders.  I have indicated that without such an undertaking I would not make any orders this day, as the wife must initially be prepared to stand alongside her application.  The instructions that I now am told by Mr Strum that his client has now provided to him is to give an undertaking until the adjourned hearing date on the basis that any assessment of loss or damage would be a matter only of what is reasonable and proper and is not brought about by the neglect, failure or breach of the husband to pay child support. 

10. I propose to accept such an undertaking if it is prepared, executed and now made available.  On balance and on all of the evidence and submissions that I have heard I conclude this is a case where I find that it is proper and in the interest of justice and for the preservation of argument in this case that in the short term, the husband be restrained from leaving Australia.  His name will be placed on an Airport Watchlist.  This may cause him a real level of inconvenience but he will have the opportunity, and indeed the requirement, to then place proper answering material before this Court.  He must serve the wife’s solicitors with all such documents.  The children are not to be removed from Australia and their names should likewise be placed on an Airport Watchlist.  Otherwise I will adjourn the further hearing of all applications in this list to October 3 at 10.00 a.m., but not on a part-heard basis.

11. I do not make any finding about the appropriate future hearing venue.  I well understand the wife and children are in Melbourne and there seemingly is no connection to Sydney currently, save that the husband is there for the purposes of his wedding.  It will be necessary for all applications, documents filed and a sealed copy of these orders to be served personally upon the husband by Saturday evening. 

12. I propose to require that both parties be personally in attendance in court and at their election be legally represented in court on the adjourned hearing date of 3 October punctually at 10.00 a.m.  I will have these brief extempore reasons for judgment taken out and placed upon the court file and made available to all parties and hopefully they will be on the file by the adjourned hearing date.  I will accordingly direct that the reasons be expedited in their preparation.

13. I conclude and in summary by underlining that these orders are made as a basis of urgency, on the basis of accepting certain of the evidence before me but without any concluded finding of fact.  I have determined that it is proper and in all the circumstances reasonable for the orders to be pronounced, notwithstanding that they may cause a level of inconvenience to the husband.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

Associate

Date: 1 October 2007