Naderi & Wakim (No 3)
[2023] FedCFamC1F 479
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naderi & Wakim (No 3) [2023] FedCFamC1F 479
File number(s): SYC 7996 of 2021 Judgment of: SCHONELL J Date of judgment: 14 June 2023 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the mother and children reside in Australia and the father resides in Country B – Where the mother sought sole parental responsibility and for the children to live with her – Where the father sought equal shared responsibility and for the children to visit him twice a year in Country B – Where there is a risk the children will not be returned – Where there is no need to make an order for parental responsibility at this stage – Order made for the children to live with the mother.
FAMILY LAW – FINANCIAL – Where mother sought for the father to provide her with funds to meet her costs of the litigation – Where she sought an order for a lump sum or a dollar for dollar order – Dollar for dollar order made.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61C, 69ZL, 117 Cases cited: Adamson & Adamson [2018] FamCA 523
Atkins & Hunt and Ors (2018) 57 Fam LR 128; [2018] FamCA 14
Charisteas& Charisteas (2022) FLC 94-109; [2022] FedCFamC1A 160
DeLuca & Farnham & Anor [2019] FamCAFC 100
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Kuebler & Kuebler (1978) FLC 90-434; [1978] FamCA 26
Line v Line (1997) FLC 92-729; [1996] FamCA 145
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 FamLR 123; [2005] FamCA 158
Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144
Selena & Montez and Ors [2017] FamCA 583
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 106 Date of last submissions: 7 June 2023 Date of hearing: 12 May 2023 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the Respondent: Mr Richardson SC Solicitor for the Respondent: Barkus Doolan Winning The Second Respondent Did not participate ORDERS
SYC 7996 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NADERI
Applicant
AND: MR WAKIM
Respondent
MR N WAKIM
Second Respondent
order made by:
SCHONELL J
DATE OF ORDER:
14 JUNE 2023
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The applicant mother, Ms Naderi, born 1977 (“the mother”) and the respondent father, Mr Wakim, born 1972 (also known as Mr Daouk) (“the father”), their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, Y Wakim born 2006 (also known as Y Daouk) and Z Wakim born 2012 (also known as Z Daouk) (collectively “the children”), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the children on the Family Law Watchlist in force at all points of approval and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist until the Court orders its removal or with the written consent of all parties.
2.The children live with the mother.
3.Pursuant to s 117 of the Family Law Act 1975 (Cth), from the date of these orders and within 7 days after payment by or on behalf of the father of any monies in payment of accounts rendered by lawyers (solicitors or counsel) for the father in connection to these proceedings, the father pay or cause to be paid the same amount of money to the trust account of the lawyers for the mother, to be applied to her legal costs and expenses in connection to these proceedings.
4.Within 24 hours after the payment by or on behalf of the father of any money referred to in Order 3, the father cause to be given to the mother’s lawyers, a memorandum stating the amount or amounts so paid to the lawyers.
5.The father instruct his lawyers that all money paid to them including on his behalf, as referred to in Order 3, shall be held in trust by them and not applied in payment until such time as the same amount has been paid by or on behalf of the father to the lawyers for the mother on the record from time to time in these proceedings.
6.In the event that the payment to the mother referred to in Order 3 is not made within seven (7) days thereafter, the father is to direct his lawyers to pay 50 per cent of whatever is received (as referred to in Order 3 and held by them in trust), to the lawyers for the mother.
7.The mother instruct her lawyers that the sums paid or cause to be paid by the father to the lawyers for the mother pursuant to the preceding orders be applied by the lawyers for the mother in payment of the costs and disbursements incurred or to be incurred by the mother in the conduct of these proceedings, including but not limited to the reasonable costs and disbursements rendered by solicitors or counsel for the mother.
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 the pseudonym Naderi & Wakim has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
Before the Court are interim proceedings between the applicant mother (“the mother”) and the respondent father (“the father”) arising out of the breakdown of their marriage.
The mother for her part sought a suite of orders including litigation funding and sole parental responsibility orders. For his part, the father sought parenting orders and a dismissal of the mother’s application.
The parties reached agreement as to various aspects of the competing applications including in relation to orders for injunctions and spousal maintenance, and orders were subsequently made by consent reflecting that agreement.
The mother relied upon the following documents:
(1)Further Amended Application in a Proceeding filed 3 April 2023;
(2)Affidavit of mother filed 3 April 2023;
(3)Affidavit of mother filed 10 May 2023;
(4)Financial Statement filed 3 April 2023;
(5)Case Outline document filed 10 May 2023;
(6)Amended Minute of Order; and
(7)Written submissions.
The father for his part relied upon the following documents:
(1)Response to Application in a Proceeding filed 5 May 2023;
(2)Affidavit of father filed 5 May 2023;
(3)Financial Statement filed 5 May 2023;
(4)Case Outline document filed 11 May 2023; and
(5)Written submissions.
Following the resolution of some of the issues, the mother pressed the remaining orders:
1. …
1.3 That the [mother] be permitted to lodge a Request at the NSW Land Registry Services in respect of the [Suburb L] property for the purpose of registering a sealed copy of these orders on title, pending further order.
…
6. That in the event the [mother] is unable to obtain finance with [O Financial Services] pursuant to Order 4 herein, then within 7 days of the [father] being notified that the [mother] has not been approved for finance, he shall pay to the [mother] the sum of $200,000 into the Trust Account of Mills Oakley Lawyers for the [mother’s] legal fees and disbursements in these proceedings.
7. That in event the Court does not make Orders 5 and 6 herein then:
7.1 Within seven (7) days after any future payment by or on behalf of the [father] of any money in payment of accounts rendered by his solicitors including in relation to expenses associated with the preparation of his case, the [father] pay or cause to be paid the same sum of money to the solicitors for the [mother] into their Trust Account.
7.2 Within 24 hours after the payment by or on behalf of the [father] of any money referred to in order 1 of these orders, the [father] cause to be given to the [mother’s] solicitors, a memorandum stating the amount or amounts so paid to the solicitors.
7.3 All money paid to the solicitors for the [father] including on his behalf arising out of order 7.1 of these orders shall be held in trust by the solicitors for the [father] and not applied in payment until such time as the same amount has been paid by or on behalf of the [father] to the solicitors for the [mother].
7.4 In the event that the payment referred to in Order 7.1 is not made within seven (7) days thereafter, the [father] is to direct his solicitors to pay 50 per cent of whatever is received (as referred to in order 7.3) and held by them in trust, to the solicitors for the [mother].
7.5 The amounts paid pursuant to these orders to the solicitors for the [mother] are to be applied by them in payment of the costs and disbursements incurred by the [mother] in the conduct of these proceedings.
7.6 The question of how payments to the [mother] pursuant to these orders are to be treated at the final hearing shall be matters for determination by the trial judge.
…
12. That leave be granted to the [the mother] to file this Application in the absence of a Family Dispute Resolution Certificate pursuant to Section 601(9) of the Family Law Act 1975 (Cth).
13. That the [the mother] have sole parental responsibility for:
13.1 [Y] born […] 2006; and
13.2 [Z] born […] 2012;
collectively referred to as (“the children”)
14. That the children live with the [the mother].
15. That the parties are to participate in Family Dispute Resolution upon the [the father] returning to the Commonwealth of Australia and within 28 days of the [the father] notifying the [the mother] in writing of his intention to spend time with the children.
16. That pending further Order, the [father] born […] 1972 (also known as [Mr Daouk]), his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children, [Y] born […] 2006 (also known as [Y Daouk]) and [Z] born […] 2012 (also known as [Z Daouk]) (collectively referred to as “the children”), from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the said children on the Family Law Watchlist in force at all points of approval and departure in the Commonwealth of Australia and maintain the children’s name on the Watchlist until the Court orders its removal or with the consent of all parties.
17. That the parties are to do all acts and things and sign all documents necessary to give effect to these orders.
18. That in the event that either party fails to execute any deed, document or instrument necessary to give effect to these Orders, the Judicial Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Judicial Registrar being provided with verification of such failure by way of affidavit.
(Mother’s Case Outline)
The father for his part sought orders as follows:
1. That the parties have equal shared parental responsibility for the making of long term decisions concerning the children.
2. That the children spend time with the father on two occasions in each year as follows:
2.1 In the school holiday period commencing at the end of Term 2 for a period of up to 2 weeks on dates nominated by the father to the mother;
2.2 For a period of up to 2 weeks in the school holiday period commencing at the end of Term 4 in each year.
3. That the time the children spend with the father referred to in Order 2 occur in [Country B] with the following to apply:
3.1 The father will nominate the dates of the children's proposed travel to [Country B] and travel back to Australia not later than 28 days prior to the commencement of each of the holiday periods;
3.2 That the father will not later than 2 weeks prior to the scheduled date of departure of the children provide to the mother the following documents:
3.2.1 a copy of the itinerary of travel which details the departure and arrival dates to and from [Country B] as well as any other arrival and departure dates in relation to any stopovers along the way if they are to apply;
3.2.2 the contact details of where the children will be outside of the Commonwealth of Australia including the telephone numbers and addresses where they will be staying;
3.2.3 a copy of the airline tickets or E-tickets or such other electronic record as the airline issues relating to the flights booked.
4. That forthwith the mother and father shall do all things and sign all documents necessary as is required to facilitate and ensure the removal of the children's names from the airport watch list to enable the travel to occur.
5. Provided the father complies with the above Orders in relation to the provision of information then pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth), the father shall be permitted to travel overseas with the children during any periods that the children are spending time with him pursuant to these Orders, or at other times agreed between the parties in writing.
Passports
6. That pursuant to Section 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth), the children be entitled to have an Australian travel document including but not limited to an Australian Passport and to give effect to this Order, the parties shall do all acts and things and sign all documents necessary to ensure that the children’s Australian passports are renewed or a new passport is obtained if no prior passport has been obtained and any renewal occur before it expires (and as is required to keep more than 6 months validity) and thereafter do all acts and things and sign all documents necessary to ensure that the children hold a current Australian passport.
7. That except for the use of the children’s passports in accordance with the above Orders the Australian passports for the children and any other passports for the children are to be deposited with the Federal Circuit and Family Court of Australia within 7 days of the date of the making of these Orders or otherwise in accordance with their issue from the Passports Office if they have yet to issue and only collected by the travelling parent or a nominated party on behalf of the travelling parenting including but not limited to his solicitors, 21 days prior to any planned departure date for travel provided for in the above Orders.
Unaccompanied minor
8. That the parties do all things and sign all documents necessary to permit the children to travel as unaccompanied minors to facilitate the travel occurring in accordance with these Orders to [Country B] and back to Australia utilising an airline with an Unaccompanied Minor’s Program.
9. The parties sign all documents necessary to facilitate the children travelling as unaccompanied minors.
10. That the mother deliver the children to Sydney International Airport no later than three hours prior to the departure time for the booked flights with the father to provide flight booking details and ticketing information as soon as it is available and in any event not later than 48 hours prior to the date of departure.
11. That the father collect the children from [City F Airport] following their arrival in [Country B] and return the children and check them into the Unaccompanied Minor’s Program in [City F] Airport for their return to Australia in accordance with the fight schedules.
12. That the mother collect the children from Sydney International Airport following their return to Australia at the time their flights return and collect them from the Unaccompanied Minor’s Office within Sydney International Airport.
(Father’s Case Outline)
The matter proceeded by way of submissions. As a consequence of some of the submissions made by the father’s senior counsel as to the source of power to make a dollar for dollar order and the form of the dollar for dollar order, the mother’s senior counsel sought a further 14 days in which to fine tune the proposed dollar for dollar order. Once that order was received, I made a direction in chambers that the parties could file such further written submissions as they wished to make in relation to the Amended Minute of Order. Such written submissions are identified above in the material relied upon by each party.
BACKGROUND
The father was born in 1972 and is 50 years of age. The mother was born on in 1977 and is currently 45 years of age.
The parties are at issue as to the date of marriage. The mother says one date 1998, while the father says another.
There are four children of the parties’ marriage, namely Ms W aged 21, X aged 18, Y aged 17 and Z aged 11.
During the course of the parties’ marriage, they have lived between Country B and Australia, albeit it would appear that up until November 2020, the parties had spent the substantial part of their married life in Country B.
There is a dispute between the parties both as to the size of the matrimonial pool of assets as well as ownership. In that respect, the mother contends that the net matrimonial pool has a value of in excess of $38,000,000. The father does not accept this figure.
The mother asserts that there is a degree of financial intermingling of their property with that of the father’s father. In her affidavit, she says:
58. Throughout the relationship, [the father] and his father worked together and intermingled their finances in [Country B] and Australia. During the periods that [the father] and/or I were in Australia, I observed [the father] use credit cards in his father's name or receive cash from his father for living and day to day expenses in Australia.
…
63. During the relationship, [the father] also transferred various funds from our accounts in [Country B] to his father’s accounts in Australia to purchase properties and to build developments. I have not received full and frank financial disclosure from [the father] to understand what he contends is his property in Australia. As a result of [the father] and [Mr N Wakim] intermingling their finances during the relationship, I do not know if [the father] has an interest in any properties or entities in [Mr N Wakim's] name.
…
77. [The father] filed a Financial Statement in these proceedings on 8 March 2022. In that Financial Statement, he disclosed funds at bank of $2,726,680 as his own. This does not include millions of dollars he asserts as funds he holds on trust for his family members in his Financial Statement.
(Mother’s affidavit filed 3 April 2023)
The mother contends she was the primary carer of the parties’ children. The mother says that in late 2020, she and the children returned to Australia.
The father describes the mother’s move to Australia in various terms including that she abducted the children and/or kidnapped them.
Despite holding such firm views, the father did not return immediately to Australia to either commence proceedings or see them. It is not in issue that following the children’s return to Australia the father did not travel to Australia until April 2021 and then returned in August 2021 to Country B. He has not travelled to Australia to see the children since then and, when enquiries were made of his senior counsel, the Court was advised that he has no proposal to come to Australia.
On 26 October 2021, the father commenced proceedings in the D Court in Country B. In those proceedings the father asked the Court to “carry out a reconciliation session with [the mother] calling her to resume marital life and to declare the nullity of the marriage in the event of the failure of the reconciliation” (father’s affidavit, page 4).
The mother commenced proceedings in this Court on 1 November 2021.
On 24 November 2021, orders were made on an ex parte basis by this Court restraining the father from dealing with a property at Suburb L.
In early 2022, a court in Country B declared that it had the sole jurisdiction to consider a claim for nullity of the marriage contract between the father and the mother.
A short time later, the father filed a custody application in Country B seeking custody of X, Y and Z.
The father says in his affidavit:
10. Although [the mother] abducted the children from [Country B] which is a criminal offence in [Country B], I did not make a report to Police as I did not want to get her into trouble or make her return home more difficult.
…
12.… The [Country B] Court has determined that they have the sole jurisdiction over my marriage to [the mother] and all of the matters arising thereof and will not recognise any order of another Court.
On 21 November 2022, this Court made orders by consent permitting the parties to continue proceedings in both jurisdictions with neither party seeking to restrain the other from participating in proceedings either in Country B or in Australia.
Apart from the proceedings between the parties in Australia and Country B, there are also proceedings in Country B commenced by the father’s father.
PARENTING ORDERS
The mother seeks orders that she be granted sole parental responsibility for Y and Z, that the children live with her, that the parties participate in family dispute resolution, and that the children be placed on the Family Law Watchlist. For his part, the father seeks orders for equal shared parental responsibility, that the children spend time with him on two occasions each year in Country B and in that respect that they be permitted to travel to Country B as unaccompanied minors. He also seeks various other parenting orders.
The mother’s submissions
The mother’s counsel submitted that each of the children have health issues such that it is necessary that the mother be granted sole parental responsibility. In that respect, the mother says that Y suffers from a genetic disorder and other conditions affecting speech and hearing. She says that Y “has no space or time awareness and cannot be left unsupervised. [Y] is usually non-verbal” (mother’s affidavit filed 3 April 2023, paragraph 98). The mother lists a series of doctors and health professionals she attends upon including a number of specialists.
The mother contends that Z has been diagnosed with attention-deficit hyperactive disorder (“ADHD”) and takes medication, that he attends upon a psychologist, and that he has regular appointments with a paediatrician and general practitioner.
In support of her application for sole parental responsibility, the mother says in circumstances where the father resides overseas and where Y has a genetic disorder that “[if the children suffer] from any medical emergency or require surgery [the father] and I will not be able to agree or consent for treatment quickly” (mother’s affidavit filed 3 April 2023, paragraph 124). In that respect, she refers to the fact that there is a time difference between Australia and Country B and that the parties do not get along and rarely speak to each other.
She also refers to the father questioning Z’s diagnosis of ADHD. In that respect, she says:
127. [In early] 2023, I messaged [the father] to tell him about [Z’s] diagnosis of ADHD. [The father] then called me and I told him about his diagnosis and his medication. [The father] then hung up on me and called [Z]. I then heard [Z] and [the father] on the phone. [The father] said to [Z] “you are to not take the medicine. There is nothing wrong with you”.
(Mother’s affidavit filed 3 April 2023)
She also points to what the father says in his affidavit, which records as follows:
179. I am concerned that [Z] is being medicated with a restricted substance […]. I would like [Z] to obtain a second opinion in relation to the asserted diagnosis of ADHD and the necessity for medication and to explore other treatment options if they are recommended. I would like [Z] to be assessed by a psychiatrist in this regard. I am happy to pay for that assessment if it is something that needs to be funded and not covered by Medicare.
…
193. During the conversation I had with [the mother] [in early] 2023 at around 8:40am when she asked me to speak to her about [Z] and informed me of his diagnosis and her desire for him to be medicated based on his decision, I said to her: “I don’t understand why he needs to be medicated. I understand he is under enormous pressure which is causing him some stress but that could be from lots of things. The recent separation of his parents, the unexpected move to Australia, the constant badmouthing of his father and family, telling him his father's abandoned him, telling him his father's not paying his school fees, telling him his father’s having an affair, not letting him wear his gold chain that I'd bought him that was important to him and not letting him see his family members including his cousins and grandparents. Can we talk about this and get a second opinion?”
[The mother] replied: “He’s got messy handwriting and short concentration in class. That's why he's been diagnosed with ADHD and that's why he needs to be medicated”.
I said: “But his schoolwork’s improving”.
194. I quickly looked up the medication whilst on the call and looked at its side effects. Exhibited to me and marked “Y.” is a copy is the Mims report I obtained online for [the medication]. I am really concerned about the negative side effects that the medication can have.
195. I have also spoken to [Z] to make sure he was okay.
[Z] said to me: “I’m okay dad. The medications fine. Mum’s spoken to me about it”.
I said: “Are you having any side effects mate?”
He said: “Sometimes an upset stomach. I have only been taking it for 2 weeks.”
(Mother’s affidavit filed 3 April 2023)
The mother opposes any overseas travel, saying that there is a risk that the children may not be returned. The mother is not opposed to the children spending time with the father in Australia.
The father’s submissions
The father contends that the mother has not demonstrated a need for a sole parental responsibility order and subject to the intervention of the Court each of the parties retains parental responsibility in relation to the children.
Beyond seeking the overseas travel orders and submitting that the father lives and works in Country B, there were no submissions as to why the children’s best interests to spend time with the father could only be accommodated by them travelling as unaccompanied minors to Country B as opposed to the father coming to see them in Australia even for a short period of time.
APPLICABLE LAW
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
Consistent with the provisions of s 69ZL of the Act, my reasons are by necessity short. This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to disputed facts.
In Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
88. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
PRIMARY AND ADDITIONAL CONSIDERATIONS
In applying the primary considerations, the benefit to the children of having a meaningful relationship with both parents is subservient to the need to protect the child from the harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 Fam LR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
Both parties contend that it is important that the children have a meaningful relationship with the other parent. The children currently live in Australia and the father has not visited them since August 2021. The mother is not opposed to the children spending time with the father in Australia. It is entirely within his power to ensure he maintains his relationship with them by visiting them in Australia. He proffers no reasons as to why he cannot come to Australia to maintain his relationship with them even for a short trip nor why their best interests are served by travelling overseas as unaccompanied minors.
In relation to the father’s application to have the children travel overseas, the mother contends that there is a risk that the children will not be returned. If that happened, I am satisfied it would expose both children to a risk of psychological harm in that they would be separated from their primary carer as well as the medical and health professionals who are involved in their care. If that were to happen, there is a risk that Z would not receive the medical care that he needs given what is said to be the father’s attitude to his diagnosis of ADHD. The father contends that Z has already suffered trauma (father’s affidavit, paragraph 184). If he were separated from his primary carer as a consequence of a non-return to Australia, then there is a possibility that the trauma he has already allegedly suffered (according to the father) would be exacerbated.
An order permitting a child to leave the jurisdiction is clearly a parenting order. Authorities such as Kuebler & Kuebler (1978) FLC 90-434, Line v Line (1997) FLC 92-729 and DeLuca & Farnham & Anor [2019] FamCAFC 100, identify a number of factors that are relevant to the determination that I am required to make in assessing the risk of return of the children to Australia.
Country B is not a convention country and the father has not proposed any bond to secure the children’s return.
I am required to consider the existence and strength of any motive not to return the children including the level of conflict between the parties. There is a high degree of conflict and distrust. The mother does not trust the father and the father describes the mother as having abducted or kidnapped the children.
There are proceedings in relation to the children in this country and in Country B. The father says in his affidavit that a Country B court would not recognise any orders made by this Court. In those circumstances, if the children went to Country B and there was any difficulty in securing their return, then the orders of this Court would not be recognised. I further note that the father resides in Country B, a substantial portion of the parties’ assets are contained in that jurisdiction, and through his senior counsel he indicates that he has no proposal to come to Australia. I am satisfied that in those circumstances he has only a limited connection to this jurisdiction.
I now turn to consider the s 60CC additional considerations such as are relevant to my determination.
I note that there are significant health issues for Y including that she suffers from a genetic disorder. The mother says that she cannot be left unsupervised and is usually non-verbal. There is no challenge to this assertion. If she cannot be left unsupervised and is usually non-verbal, then a proposal that she travel as an unaccompanied minor has the possibility of exposing her to a risk of harm and accordingly, such a proposal is inconsistent with her welfare. It reflects poorly upon the father’s attitude to the responsibility of parenthood that he would make such a proposal. The father has not adduced any evidence that demonstrates that Y could safely travel as an unaccompanied minor.
On 22 December 2022, I made an order that the father pay the mother’s costs assessed in the sum of $25,818.01. The father was to pay those funds by 21 January 2023. The mother contends that the father has not complied with these orders. The father says that he has drawn a cheque on a bank in Country B and caused the delivery of that cheque to the mother’s solicitors in Country B. The father says that he is not able to remit funds out of the Country B. I am not satisfied on the material before me that the father has complied with the orders that I made, which was that he was to pay the mother’s costs. He has paid his lawyers in excess of $65,000. In circumstances where he has done that, then it is clear that he has had the means and resources to pay the monies in Australia the subject of the costs order if he wanted to. He has chosen not to do so.
While I am satisfied that it is in the best interests of the children that they see their father, I am not satisfied that it is in their best interests that they travel to Country B to see him. The risks associated with such travel include that Y cannot be left unsupervised and the possibility of a risk that they would not be returned.
Accordingly, I decline to make the father’s orders that the children travel overseas.
Parental responsibility and live with order
The mother seeks an order for sole parental responsibility while the father seeks an order for equal shared parental responsibility.
Section 61C of the Act provides:
61C Each parent has parental responsibility (subject to court orders)
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3:Under section 63C, the parents of a child may make a parenting plan
(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
In Goode, the Full Court observed:
39.We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
The mother has resided with the children in Australia since mid-2020. In that time, she has arranged for their attendance upon health professionals, enrolled them in schools and arranged assistance through the National Disability Insurance Scheme (NDIS). She does not point to any factual assertion in the now nearly three year period where the children’s health and/or welfare has been compromised by the inability to obtain either the father’s assistance or consent in relation to the children, or that not having sole parental responsibility has in some way comprised her capacity to effectively parent them.
I am not satisfied that the mother has demonstrated that it is in their interest that there be any order made at this stage particularly where there is no expert evidence. For the same reasons, I am not satisfied that there is a necessity at this stage for an order for equal shared parental responsibility.
I decline to make any order as to parental responsibility.
The mother sought an order that the children live with her. The father’s senior counsel addressed no submissions as to this order. Accordingly, I presume that it was not a matter in issue. In circumstances where the children are in her primary care and there is no order sought by the father to change such an arrangement, I am satisfied that it is in the best interests of the children that such an order be made.
Watchlist order
In relation to the order sought that the children be placed on the Family Law Watchlist, the father’s senior counsel indicated that his client did not consent to the making of that order but otherwise made no submissions in respect of it.
The mother refers to an incident at the children’s school earlier this year that informs her concern that there may be an attempt to remove the children from Australia.
Given the father’s concerns about the children already having been abducted and the absence of any submission by the father against the making of the order other than opposition, I am satisfied that such an order is in their best interest. Such an order would protect against any further attempts by either parent to remove the children from the jurisdiction of this Court. Any attempt by either parent to do so would be inconsistent with their best interests.
Dispute resolution
No submissions were made as to why such an order should be made.
In those circumstances, I fail to see any need for an order. The parties can implement such an arrangement should they wish without the need for an order.
Passport order sought by father
In circumstances where the father says he will sign a passport application (father’s affidavit, paragraph 197), there is no necessity for an order. In the absence of any submission or evidence, it is not established that there is a necessity for the making of this order.
FINANCIAL MATTERS
The mother seeks an order that she be permitted to lodge a request with the New South Wales Land Registry Service. I was not pointed to any power that would permit me to make such an order nor was any submission put to me that such an order is necessary. I decline to make that order.
The mother seeks an order that the father provide her with funds to meet her costs of the litigation. The mother through her senior counsel informed the Court that the mother had been unsuccessful in her application to O Financial Services. Despite the way the order was framed, the mother’s senior counsel made it clear that the mother sought an order for a lump sum and in the event that such an order was not made, then in the alternative what is described as a “dollar for dollar” order.
The mother’s senior counsel, when asked by senior counsel for the father to identify the source of power for the making of the dollar for dollar order, said that it was s 117 of the Act. He did not address what source of power he relied upon for the lump sum order. In the absence of any submission, I will presume that it was s 117.
The mother’s senior counsel submitted that there were various funds available to meet the lump sum order. He submitted that funds that have been lent by the father to a self-managed super fund controlled by his father. It was said that was an asset the father could call upon to meet payment of the lump sum. The father says in relation to those loans:
95. I never held the funds and had no way of accruing the funds as asserted to exist and have been loaned to my father's superannuation fund. All funds that were loaned to my father's superannuation fund were the funds my father had provided to me and always his. I had never been in a position to accrue anything like that level of funding nor did I.
As a consequence of the circumscribed nature of these proceedings, I am unable to resolve the factual dispute between the parties in relation to the existence, recoverability or otherwise of any loans the father has made to his father’s self-managed super fund. In light of subsequent orders made by consent, that is not a source of funds to meet such an order.
The mother’s senior counsel also submitted that the father has been able to borrow monies from a friend called Mr P and his father to meet his legal fees and accordingly that is a source to meet a lump sum order. I note, however, the father’s evidence that he is no longer able to borrow further monies to meet his legal fees from either Mr P or his father.
The mother’s senior counsel also made reference to the Q Trust as a source of funds to meet the mother’s application but conceded that there had been insufficient disclosure such as to be able to make a definitive submission about such a fund.
While the father’s Financial Statement on its face reveals large sums of money in Country B’s bank accounts, the father contends that there are difficulties in having that money remitted to Australia. There is a tacit admission by the mother to that state of affairs as she does not point to those monies as a source of funding to meet her application.
The mother’s senior counsel, for reasons that are unclear, did not point to the interest the father held in the Suburb L property as source for a lump sum payment. In that respect, the father is the legal owner of the Suburb L property. In respect of both the ownership of that property and the issue of any lump sum, his evidence is as follows:
77. My father purchased the [Suburb L] property in or about [mid] 1995 being the date of paying the deposit. The property was registered in my grandmothers' name at the time. To the best of my knowledge, the purchase was funded as follows:
(a) My father paying the sum of $34,500.00 being a 10% deposit [in mid] 1995.
(b) My father making a further payment in the sum of $160,408.90 for the purchase plus $11,000.19 for stamp duty [in mid] 1995 being the settlement day.
(c) To the best of my knowledge, my grandmother contributed the balance towards the purchase.
78. The [Suburb L] property was transferred to me by my grandmother [in early] 2014, for no consideration, my father paid the costs of the stamp duty payable.
…
85. Whilst the [Suburb L] property is held in my name my father claims an equitable interest in the property. My father has always paid all of the expenses relating to the [Suburb L] property including water rates, council rates, all of the planning costs, the stamp duty for the original transfer into my name from my grandmother, all of the development application costs, and costs of drawing plans and he made all the arrangements as well.
86. I am aware that my father has placed a caveat over the title of the [Suburb L] property in security of his equitable interest for the monies he has paid for that property.
87. [The mother] is well aware that the [Suburb L] property was never totally owned by my grandmother and that my father held a 2/3 interest based on the funds he had paid for it's purchase.
…
169. In the event that the Court determines to sell the [Suburb L] property, and only in that event, I seek that the proceeds of sale be paid to me for legal costs in the sum of $200,000 and for the balance of funds to be paid into a controlled monies account pending the outcome of the case.
The father’s senior counsel submitted that the father “has no ability to meet a $200,000 order” (Transcript 12 May 2023, p.30 lines 29–30). The parties agreed to an injunction restraining dealing with the Suburb L property. I am not satisfied, in light of that order and the absence of any submission by the mother directed to that source as a fund to meet a lump sum order, that there is a fund available to meet the lump sum order the mother seeks.
In the alternative, the mother’s senior counsel submitted that in the event that the Court did not make the lump sum order, then the mother sought a dollar for dollar order.
The father’s senior counsel put in issue the power of the Court to make a dollar for dollar order under s 117. In that respect, he sought to rely upon the judgment of McClelland J (as he then was) in Selena & Montez and Ors [2017] FamCA 583. He also submitted that the decision of Watts J in Atkins & Hunt and Ors (2018) 57 Fam LR 128 (“Atkins & Hunt”) was absent reasons actually analysing the source of power relying instead, as best I understand the submission, on an assumption that the power existed because earlier decisions had said there was.
Neither senior counsel referred me to the recent Full Court decision in Charisteas& Charisteas (2022) FLC 94-109. In that matter, the Full Court observed as follows:
75.In addition, this Court has confirmed that s 117 is a source of power to make litigation funding orders including dollar-for-dollar orders. For example, see Shelbourne & Shelbourne (2019) 60 Fam LR 183; Atkins & Hunt (2018) 57 Fam LR 128; Iphostrou & Iphostrou [2011] FamCA 20; Judd & Treasure [2018] FamCA 50. Thus, even judges who have doubt as to whether s 117 does empower such orders, on it must be said, some reasonable grounds, accept the weight of this authority (see for example, Quayle & Perceval [2018] FamCA 664 (“Quayle”)).
76.Thus, although some of us hold the doubts expressed in Quayle, we accept the force of those decisions. We are not of the view that they are manifestly wrong (Nguyen v Nguyen (1990) 169 CLR 245).
77Accordingly, we are of the opinion that until the High Court holds otherwise, the Court should proceed on the basis that s 117 empowers the Court to make litigation funding orders, including dollar-for-dollar orders.
On the basis of such Full Court authority by which I am bound, I am satisfied there is power to make such an order.
An application for costs is governed by the provisions of s 117, which provides a general rule that each party to proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
It is well settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 FamLR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
It is also said that it may involve a consideration of the strength of the applicant’s case and the effect of the order on the respondent (Salvage & Fosse (2020) FLC 93-966 (“Salvage & Fosse”) at [14]). Justice Watts in Salvage & Fosse observed as follows:
62.When considering whether it is just to make an interim order for the provision of litigation expenses pursuant to s 117(2), the court shall have regard to the matters set out in s 117(2A) of the Act. In Zschokke (at 83,217) the Full Court said:
If the order is to be made under s 117(2) then, in our view, the matters contained in s 117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g)…
63.In relation to s 117(2A)(a), apart from the general financial circumstances of each of the parties to the proceedings, the Full Court in Zschokke identified the following particular considerations:
a) a position of relative financial strength on the part of the respondent;
b)a capacity on the part of the respondent to meet his or her own litigation costs; and
c) an ability on the part of the applicant to meet his or her litigation costs.
64.As to such other relevant matters, under s 117(2A)(g), the plurality in Strahan at [96] and [141] specifically adopted the following considerations referred to in Paris King Investments at [30]:
a)the applicant should have “at least an arguable case for substantive relief which deserves to be heard”;
b)there should be evidence of the applicant’s “likely costs of litigation” (see also Wilson and Wilson (1989) FLC 92-033 at 77,453); and
c)it is not “an essential pre-condition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
Dealing with such of the matters under s 117(2) as are relevant, it is clear that the financial position of the parties is not yet resolved. The mother makes the claim that the father’s wealth is measured in the tens of millions. The father puts this in issue. That said, the vast majority of the wealth of the parties is controlled by the father. It is not contended otherwise.
Neither party is in receipt of legal aid. Each makes allegations against the other of a failure to disclose. Within the confines of this hearing, I am not able to resolve the competing claims. The proceedings have not been necessitated by the failure of a party to comply with previous orders of the Court nor has either party to the proceedings been wholly unsuccessful in the proceedings.
As to other relevant matters, there was no submission made by the father that the mother did not have an arguable case for an entitlement under s 79. The costs of the litigation are set out in her costs memorandum (Exhibit 2). The mother has to date borrowed monies from family and friends to meet her costs and is presently indebted to her lawyers for in excess of $44,000.
The father contends that she has not adequately explained how she has spent the monies that she has received. I am satisfied within the context of this application that she has sufficiently explained in her affidavit and costs memorandum how she has spent the monies she has received. The mother is engaged in litigation on two continents.
There seems no issue on the part of the father that the mother has a need for funds. In that respect, the father concedes that an order is necessary to be made for her spousal maintenance (a tacit admission that she is unable to support herself and that he has the means to alleviate her needs) and also concedes that the mother has a need for funds as is evident by Orders 17 to 19 of his Response and by reference to his senior counsel’s Case Outline. It records as follows:
28.The applicant seeks to receive $100,000 by way of interim costs. The source she points to, to fund this payment is the sale of a property that would necessitate obtaining the second respondent's consent to remove his caveat. The [father] does propose that a transfer of funds occur from one of his bank accounts into a joint account in [Country B] (already existing in the parties’ names) and thereafter he be restrained from utilising it. This is the best that the [father] can offer in the circumstances of the case.
Thus, on the father’s case it seems conceded that the mother has a need for funds.
It is unexplained how the father meets the order for the payment of spousal maintenance which he consented to, particularly in circumstances where he says he has no bank accounts or money in Australia and the persons who have previously lent him money, being his father and his friend Mr P, have said they will no longer lend him money.
Such a payment, if made, can be taken into account in the ultimate determination and thus any asserted detriment to the father can be addressed and accommodated in the final relief.
I am satisfied in light of the above that the circumstances are such as to justify making an order that the father pay the mother’s costs. The issue is how.
As I referred to earlier, I am not satisfied that there is a fund available to meet the lump sum order sought by the mother other than by way of realisation of the father’s interest in the Suburb L property. No such application is pressed before me. That only leaves for consideration the mother’s application of a dollar for dollar order.
The father’s senior counsel made a number of submissions contending generally that the Court should not make a dollar for dollar order (assuming it had the power to do so) as it impinges on the rights of others who would be entitled to be heard. As I referred to earlier, I am satisfied I have power.
The father’s senior counsel submits that the monies that are deposited into the accounts of the father’s solicitor are the property of the persons who have lent the money to the father and in those circumstances notice would need to be given to them before this Court could deal with their property. I do not accept that submission. The evidence of the father is that he has borrowed money from various persons to meet his legal fees. The monies paid to his lawyers are the property of the father, having been borrowed by him. That is made clear both by his affidavit, his Financial Statement and costs memorandum. There is no evidence that the asserted lenders have an interest in the monies they have lent the father. In the event that the father sought to contend otherwise, then he should have adduced some evidence. He has not.
The father’s senior counsel also submitted that the order interferes with the rights of the father’s solicitors in that they have done work on the understanding they would be paid and when they receive money in payment of their account, the form of order sought by the mother compels them to hold funds paid to them for work they have done and if a similar amount is not paid to the mother by the father, then the solicitor should pay that amount to the mother. Any such obligation if imposed, so the submission goes, would necessitate them being joined as a party as their rights are being affected.
This was expanded to include the submission that the solicitors for the father held a lien over the funds paid. It was not submitted how or in what way the payment gave rise to lien or whether it arose at common law or equity, or how that right might be affected by contrary instructions from the father or court order.
I do not accept these submissions. The form of order proposed incorporates an instruction from the father to his lawyers to deal with the funds in a particular way. Such lien as asserted would be subject to the father’s contrary and earlier in time instruction and be overridden by and subject to an earlier in time Court order of which the solicitor had notice.
In Atkins & Hunt, Watts J observed in terms of a submission, albeit in not identical terms, as follows:
66.In Ryder & Bonham Gill J, dealing with an application in similar form, found that:
112.Further, the order sought by the wife impermissibly seeks to bind third parties, being the lawyers involved in the proceedings. The obligations under the orders will be placed upon the parties rather than the lawyers.
67.With respect I disagree. Both the husband’s and the wife’s lawyers have a relationship with this court as its officers and are on notice of the orders sought because they represent the husband and the wife in the proceedings. In my view the lawyers for the husband and the wife can, as part of the making of a dollar for dollar order, be the subject of orders directing them as to how to deal with monies paid to their trust accounts.
68.The statutory basis for the power to make an order in the terms sought by the [mother] directed to both the husband’s lawyers and the wife’s lawyers can be found in s 34 of the Act (see Re Keith Hercules & Sons v Steedman and Others [1987] FCA 472 at [19] and [22] which deals with s 23 of the Federal Court of Australia Act 1976 (Cth) and is in identical terms to s 34 of the Act). This court also has the incidental and necessary power of a statutory court (DJL v The Central Authority (2000) 201 CLR 226 at 241; Woolf v Snipe (1933) 48 CLR 677 at 678-679; Re P’s Bill of Costs (1982) FLC 91-255 at 77,416-77,417; Weiss v Barker Gosling (1993) FLC 92-399 at 80,071). This, in my view, includes the power to make an order directed to the lawyers.
69.In addition, even if the order was not directed to the lawyers, should they act in a way that was contrary to the husband or wife obligations under the orders, they may be aiding or abetting a contravention of the order (see s 112AB(1)(b)(ii) of the Act).
I with respect adopt his Honour’s reasoning.
The father’s senior counsel also contended that if the Court did have power to make a dollar for dollar order, then it should make a similar order in favour of the father in relation to any funds that are paid to the mother’s lawyers on behalf of the mother. Assuming that to be a serious submission, I do not adopt it. It did not form any part of the evidence, orders or Case Outline relied upon by the father. No submissions were made by the father’s senior counsel as to why such an order would be just. In the face of bald request, absent evidence or supporting submissions, I do not accede to it.
I am satisfied, weighing all of these matters in the balance, that the mother has a need for the funds that she seeks and that the making of a dollar for dollar order is in all the circumstances just.
CONCLUSION
For the above reasons, I propose to make orders that the children live with the mother, that they be placed on the Watchlist and a dollar for dollar order.
I will make orders accordingly.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 14 June 2023
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