Melrose and Guy and Anor

[2015] FamCA 242

FAMILY COURT OF AUSTRALIA

MELROSE & GUY AND ANOR [2015] FamCA 242

FAMILY LAW – CHILDREN – do all things necessary to return the child – names on airport Watch List – Parents restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth.

FAMILY LAW – PROPERTY – rental payments to be forwarded to the wife – wife pay as and when they fall due the instalments on the mortgage over that property

APPLICANT: Ms Melrose

1^st RESPONDENT: Mr Guy

2^nd RESPONDENT: B Pty Ltd

FILE NUMBER: SYC 7559 of 2014

DATE DELIVERED: 11 March 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 11 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Lawson

SOLICITOR FOR THE APPLICANT: Freedman & Gopalan Solicitors

THE 1ST RESPONDENT:	No Appearance
THE 2ND RESPONDENT:	No Appearance

Orders

IT IS ORDERED

1. That the father Mr Guy born … 1976 forthwith do all things necessary to return the child C born … 2010 (“the child”) to Australia and to cause the child to be delivered to the care of the mother.

2. That each of the mother Ms Melrose born … 1978 and the father Mr Guy born … 1976 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the children C born … 2010 (male) and D born … 2012 (female) from the Commonwealth of Australia.

IT IS REQUESTED

1. That the Australian Federal Police give effect to the preceding 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 names on the Watch List until further order.

IT IS NOTED

1. The applicant’s undertaking as to damages.

IT IS DIRECTED

1. That the second respondent B Pty Ltd forward to the wife all monies received by way of rent for the properties at E Street, Suburb F, NSW and G Street, Suburb H, NSW commencing forthwith.

2. That from the rental monies paid to the wife for the properties at G Street, Suburb H, NSW the wife pay as and when they fall due the instalments on the mortgage over that property to the Commonwealth Bank account number ...

IT IS ORDERED

1. That liberty is granted to the husband to apply for an order varying orders for the payment of rent to the wife upon his furnishing to the Court evidence that the child the child has been returned to the care of the mother.

IT IS FURTHER DIRECTED

1. That service of these orders upon the husband be effected by email.

2. That the costs of the wife of this application be reserved.

IT IS FURTHER ORDERED

10.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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Melrose & Guy and Anor 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 SYDNEY

FILE NUMBER: SYG 7559 of 2014

Ms Melrose

Applicant

And

Mr Guy and Anor

Respondents

REASONS FOR JUDGMENT

1. These are proceedings between Ms Melrose (“the wife”), and Mr Guy (“the husband”), relating to the parenting of the children, C born in 2010 (“C”), who is presently four years and seven months of age, and D born in 2012 (“D”), who is presently three years of age (“the children”). 

2. The husband and the wife are Country I by birth.  They commenced to live together when they were married in September 2005.  The children were born in Australia. 

3. In 2014, the husband and the wife travelled to Country I. The wife returned from Country I with D, but the husband has refused to allow C to return. 

4. I am satisfied on the evidence before me that prior to 2014 the wife was the primary carer for both of the children. 

5. Since the wife’s return from Country I on 2 September 2014 the husband has restricted her telephone contact with C and has refused to return C to Australia. 

6. Proceedings in Country I, concurrently with these proceedings, have been adjourned to await the decision of this Court in relation to C’s living arrangements. 

7. C is four years old, and I am satisfied that he has, at least until September 2014, lived in the primary care of the wife.  It is likely that she is his primary attachment. 

8. I am satisfied that the husband will make no attempt to ensure that C has a real and continuing relationship with the wife and with his sister, and in those circumstances I am satisfied that the appropriate order which should be made is that C should be returned to Australia to live in the care of the wife. 

9. In relation to issues of property settlement, the parties own two properties. They own jointly a property at E Street, Suburb F (“E Street”). E Street has a granny flat which is rented out for $330 per week.  The wife and D live in E Street.  The wife pays all of the outgoings. 

10. The parties jointly own a second property at G Street, Suburb H, (“G Street”) which is tenanted.  G Street also has a granny flat which is separately rented out. 

11. Agency agreements have been entered into between the husband and B Pty Ltd in relation to the rent for the granny flat at E Street and the rent for H Street.  Those agency agreements require the agent to pay the whole of the rent to the husband, and rent totalling $940 per week is received by the husband in Country I. From that rent the husband makes the mortgage payments in relation to H Street. 

12. The wife asks the Court to make orders that the rent for the two properties be payable to her.

13. In relation to E Street it is her case that since she pays the outgoings on the property she ought to receive the rent.  In relation to H Street, it is her case that, at least until such time as the husband returns C to her care, there is a coercive element in her retaining of the rent.

14. The wife agrees, in submissions before me, that the husband ought to be given an opportunity, upon C’s being returned to her care, to make an application to the Court for some share of the rent which is received from  H Street. 

15. It is appropriate, in circumstances where the husband refuses to return C to the care of the wife, that the orders which the wife seeks should be made. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 March 2015.

Associate: 

Date:  10/04/2015