NAVARRO & LEWIS

[2015] FamCA 115

FAMILY COURT OF AUSTRALIA

NAVARRO & LEWIS [2015] FamCA 115

FAMILY LAW – PARENTING – Undefended proceedings – Where father has abducted the children to Country Q – Where mother primary carer of children throughout until their abduction – Where interim orders already in place providing for the mother to have sole parental responsibility and the children to live with the mother and the father to have no contact – Where mother seeks final orders on an undefended basis in the same terms – Where such orders may assist an application by her in Country Q for the return of the children – Orders made as sought.

FAMILY LAW – PROPERTY – Undefended proceedings – Where father has abducted the children to Country Q – Where mother has had no contact or communication with the father – Where the father left Australia during the course of the present proceedings – Where it is appropriate for the mother’s application to proceed undefended.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69E, 75, 79

Goode and Goode (2006) FLC 93-286
MRR v GRR (2010) 240 CLR 461
Stanford v Stanford [2012] HCA 52
Bevan& Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Russell & Russell (1999) FLC 92-877
Teal & Teal [2010] FamCAFC 120

APPLICANT: Ms Navarro

RESPONDENT: Mr Lewis

INDEPENDENT CHILDREN’S LAWYER: Peter Baker Solicitor

FILE NUMBER: SYC 3350 of 2011

DATE DELIVERED: 27 February 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 6 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Haughton

SOLICITOR FOR THE APPLICANT: Solon Lawyers Solicitors & Attorneys

Orders

Property

1. That pursuant to section 106B of the Family Law Act 1975 the Interspousal Transfer Grant Deed signed by the wife and dated 16 June 2010 be set aside.

2. That pursuant to section 106B of the Family Law Act 1975 the Deed of Trust for the NL Trust signed by the husband and dated 30 June 2010 be set aside.

3. That the net proceeds of sale of the real property situate and known as G Street, Suburb H, I State, Country N being the sum of US$212,323.23 being held by Mr O pursuant to orders of the Superior Court of the State of I for the county of P are declared to be held on trust by him for the wife.

4. That the husband indemnify the wife and keep the wife indemnified in relation to all or any moneys owing by the parties or either of them to the M School Sydney.

5. That the husband pay to the wife by way of further property adjustment the sum of $376,367 with one month from this date.

Parenting

1. That all previous parenting orders be discharged.

2. That the children of the marriage N born … 2004 and L born … 2007 live with the mother.

3. That the mother Ms Navarro have sole parental responsibility for the said children.

4. That the children have no contact with and spend no time with the father except as agreed by the mother and father in writing or as ordered by the court.

5. Pursuant to s 67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Polices Forces of all the States and Territories of Australia requiring them to find and recover the children N born … 2004 and L born … 2007 and to return/deliver the said children to the mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.

6. The recovery order remain in place for a period of three years.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Navarro & Lewis 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 PARRAMATTA

FILE NUMBER: SYC 3350  of 2011

Ms Navarro

Applicant

And

Mr Lewis

Respondent

REASONS FOR JUDGMENT

1. These proceedings have had a long history as to litigation between the applicant mother and the respondent father in relation to property and parenting arrangements in relation to the two children of the relationship, N born in 2004 and L born in 2007.

2. On the 16 April 2013 Aldridge J delivered reasons and made what were then further interim parenting orders in relation to the children. In his Honour’s reasons he set out the history of the matter to that time.

3. The parties commenced cohabitation in Sydney in 2000. They were married in 2003. Much of the time they spent together was spent living overseas. The parties separated on 26 May 2011.

4. On 29 November 2011 interim orders were made by consent that in summary provided for:

   a)The children to live with the mother;

   b)For the children to spend defined time with the father that culminated in the parties sharing half the school holidays and during school term spending time with the father from after school Thursday to 6:00pm Sunday in one week and from after school Monday to before school Tuesday in the other week;

   c)Changeovers were to be affected if not at school at the Westfield Shopping Centre at Suburb F.

5. Circumstances relating to the orders made by Aldridge J on 16 April 2003 were described by his Honour as follows:

   2.        … The parenting proceedings between the parties are listed before me for final hearing in six weeks, commencing on 21 May 2013.

   3.        On Thursday, 21 March 2013, [Mr Lewis] (“the father”) collected the two children of the relationship from school in accordance with orders made by this Court on 29 November 2011.  Those orders required the children to be returned to Ms Navarro (“the mother”) at 6.00 pm the following Sunday.  He did not do so.

   4.        The children have not seen their mother nor have they been to school since 21 March 2013.  The father said that he kept the children because on 21 March 2013, [N], the elder child, told him that his mother had assaulted him a week earlier.  The assault was denied by the mother.  On 3 April 2013, the father filed an Application in a Case seeking an interim order that the children live with him and have time with their mother, as agreed by the father and the Independent Children’s Lawyer and as supervised by a professional supervision organisation.  A Notice of Child Abuse, Family Violence or Risk of Family Violence was also filed.

   5.        On 5 April 2013 the mother filed an Application in a Case seeking orders that the children live with her, spend no time with the father and that he be restrained from contacting the children.  At the hearing, the Independent Children’s Lawyer proposed that there be a return to the orders of 29 November 2011 with some variation.  Thus, she proposed that the children live with their mother and spend time with their father at weekends and half the school holidays.

   6.        The variations were to swap the school-holiday times around so that the children would be with their mother for the first week of the holidays because they had not seen her since 21 March 2013.  The second variation was to extend the father’s time to before school on Monday, removing a changeover on Sunday evenings when both parties would need to be present.

6. His Honour made orders in the following terms:

   IT IS UNTIL FURTHER ORDERED THAT

   1.        The children [N], born … 2004, and [L], born … 2007, (“the children”) live with the mother.

   2.        The father is to deliver the children to the mother by 6.00 pm today.

   3.        The children are to spend time with the father from 10.00 am on Sunday 21 April 2013 to 9.00 am on 30 April 2013.

   4.         The father shall deliver the children to [B School] at the commencement of Term 2 on 30 April 2013.

   5.        Thereafter the children spend time with the father from Thursday after school to the following Monday before school each alternate week, such time to commence on 9 May 2013, with all collections and returns to take place at the school.

   6.        Order 5 made on 29 November 2011 is discharged.

   7.        Neither party is to use any form of physical punishment on either child.

   8.        In the event that arrangements are made for the payment of [Dr C’s] fees, the parties shall both attend on [Dr C] for the purpose of him preparing an updated report on such date arranged with him.

   9.        The children be permitted to see the counsellor at [B School] if the Principal of that school views that to be necessary or desirable.

   10.      Neither party shall refer the children to the school counsellor.

   11. That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders

   IT IS NOTED THAT:

   12.      Order 9 made on 29 November 2011 continues.

7. The proceedings were listed for final hearing commencing Tuesday 21 May 2013. On 20 May 2013 the hearing date was vacated as the father remained overseas allegedly with dengue fever. Proceedings were relisted for trial for five days commencing 18 November 2013.

8. On 6 November 2013 the court made final parenting orders by consent and the property aspects of the proceedings were adjourned for further directions to 30 January 2014. The parenting orders provided in summary:

   a)That the mother and father have equal shared responsibility for the children;

   b)That the children live in a shared care arrangement between the parties during school term with changeovers after school each Monday with the children spending a period after school each Thursday with the non-resident parent;

   c)That school holidays be shared equally;

   d)Specific orders making provision for Father’s Day, the father’s birthday, Mother’s Day, the mother’s birthday, Christmas Day, changeovers, communication between the parties and a raft of other specific issues orders not relevant for the present purposes.

9. In December 2013 the mother consented to the father taking the children overseas for a holiday in January 2014. The father collected the children from the mother for the holiday on 8 January 2014 and was to return the children to the mother on 4 February 2014.

10. The father left to Country N for Country Q with the children on 2 February 2014. Thereafter the mother is not unaware as to the children’s whereabouts nor has she had any communication from the children.

11. The mother has made enquiries as to her prospects of obtaining orders in Country Q for the return of the children to her. It is her understanding that she requires a final order that the children live with her and have no contact with the father and that she have sole parental responsibility for the children. Those orders are presently in effect on an interim basis.

12. It is the mother’s further understanding that the existence of a recovery order may assist her application to the authorities in Country Q.

13. On 12 February 2014 following the abduction of the children parenting proceedings were again before Aldridge J. His Honour in summary made the following orders:

    a)That orders made on 6 November 2013 be suspended;

    b)That pending further order the children live with the mother and spend no time with the father;

    c)That pending further order the mother and father be restrained from removing or attempting to remove the children from the Commonwealth of Australia and the children be placed on the airport watch list;

    d)That pending further order the mother have sole parental responsibility for the children;

    e)That a recovery order issue for the children under the provisions of section 67Q of the Act.

14. On 18 February 2014 proceedings were once again before his Honour. In summary orders were made as follows;

    a)That a warrant issue for the arrest of the respondent father Mr Lewis;

    b)That pursuant to section 121 of the Act the mother be given permission to publish or broadcast a notice a report of the proceedings and details of the subject children;

    c)That notice of orders be forwarded to the father via his email address and if his physical whereabouts become known served on him personally as soon as possible.

15. On 27 March 2014 the court made orders on the mother’s application restraining the father from dealing with, disposing of or encumbering the property at Suburb H, I State, Country N. The mother was granted leave to provide copies of the orders to the Inland Revenue Service of Country N.

16. On 20 May 2014 the court made further ex parte orders in summary as follows:

    a)That the mother have sole parental responsibility for the children pending further order;

    b)That the mother be at liberty to approach the Department of Foreign Affairs and Trade to obtain without the consent of the father Australian passports for the children with or without complying photographs of the children.

17. On 17 December 2014 proceedings as to parenting and property were adjourned for final hearing on 6 February 2015 on an ex parte basis.

The background circumstances

1. The mother born in Sydney is aged 45 and the father born in Country Q is aged 44.

2. Both of the mother and father are Australian citizens.

3. At the commencement of cohabitation both parties were living and working in Sydney. The parties moved to Country R in early 2001 and thereafter to City S, Country N for some months and then to City T, Country N.

4. The parties married in 2003 returning to Australia for the ceremony and returned to reside in Country N after marriage. Both children were born in City T.

5. At the commencement of cohabitation the mother had savings of approximately $30,000 and a motor vehicle purchased by her for $2,000. She is unaware as to what assets the father had at cohabitation

6. In June 2004 the father unexpectedly ceased employment. The mother obtained employment as a night shift manager at a restaurant. The father obtained employment in Country Q in January 2005. Initially the mother and the child N travelled to Country Q with the father. The mother returned to Australia with the child in February 2005.

7. In April 2005 the parties moved to the Country U with the father after a time obtaining work. In October 2005 the parties relocated back to the Country N and they resided in City T until May 2008.  The father initially obtained salaried employment at a salary of US$200,000 plus bonuses but this employment was terminated in about March 2007.

8. Thereafter the father to the mother’s understanding worked from home in his profession.

9. The mother returned to Australia for a short time in June 2010 to visit her ill father. Subsequently the family returned to reside in Australia in October 2010 with the eldest child commencing at M School in October 2010 and the youngest child commencing at that college in February 2011.

10. The mother during cohabitation was the primary carer for the children whilst the father applied himself to his work.

11. Before returning to Australia the parties on 21 June 2010 purchased a home at Suburb H, I State. The property was purchased for the sum of US$1,550,000 with the funds being sourced to the mother’s understanding from the father’s prime trading account. Notwithstanding the parties’ discussions to the contrary the father purchased the property in his own name. At the time of purchase the father procured from the mother an inter-spousal transfer grant deed that purported to exclude the mother having any interest in the property pursuant to I State law.

12. On 30 June 2010 the father set up the NL Trust with himself as the sole trustee. He represented to the mother that the I State property was held in trust for the children and on 29 October 2010 the I State property was transferred to the trust. The property is the only asset of the trust.

13. During the course of cohabitation and in about 2008 at the request of the father the mother transferred to her father in a bank account in the British Virgin Islands US$540,000. Subsequently a further sum of US$240,000 was transferred at the father’s request by a third party to the same account. These funds represented what the mother understood were savings accumulated during their relationship.

14. Subsequent to separation the father has retained documents relating to the accounts and the mother or her father no longer have access to the accounts.

15. Since separation the mother received no financial support for the children until such time as they were abducted by the husband to the Country N on 4 February 2014.

16. It is the mother’s understanding that the matrimonial assets at the time of separation comprise the following:

    a)The unencumbered I State property;

    b)A European motor vehicle purchased by the father in 2009 for US$56,000;

    c)US$300,000 retained by the father in his Prime Trading Account;

    d)US$20,000 retained by the father in his Chase Bank account;

    e)A Japanese motor vehicle registered to the father;

    f)Personalty retained by the mother;

    g)The mother’s savings of about $45,000 of which $12,000 was expended to purchase a motor vehicle.

17. The children remained at M School until the end of the academic year in 2011. Subsequent to separation the mother has ascertained that M School fees remain unpaid and on 28 August 2012 a judgment debt in the sum of $37,368 was entered against her. Interest is accruing on the judgment debt.

18. Subsequent to separation the mother commenced proceedings in the I State courts. She instructed her attorneys to file a “caveat” over the title to the I State property. Proceedings were commenced by the mother after she became aware that the father was selling the I State property to neighbours for US$2,620,000.

19. Ultimately settlement of the sale of the property took place on 29 August 2014 and after payment of selling costs, discharge of a mortgage of US$578,643 and a payment to the Inland Revenue service of US$1,763,324 the net proceeds of sale were only US$212,323.

20. Subsequent to separation in May 2011 and in December 2012 the father borrowed against the security of the I State property US$300,000. In December 2013 he borrowed a further sum secured against the security of the property of US$250,000. The father has never disclosed how he applied those borrowed funds totalling US$550,000.

21. On 17 December 2014 Aldridge J made the following further orders:

    a)Until further order and unless otherwise ordered the New South Wales Trustee and Guardian be appointed trustee of any moneys released to it by the Superior Court of the [State of I] for the county of [P] from the proceeds of sale of the real property situate and known as to [G Street, Suburb H, I State, Country N] being more particularly described as Map Reg … City: [P] Lot … Map Ref City/…/…:[P];

    b)That until further order the New South Wales Trustee and Guardian or such other trustee appointed by the court shall hold the net sale proceeds on trust for the parties;

    c)The New South Wales Trustee and Guardian or such other trustee appointed by the court have liberty to apply to intervene in these proceedings if he chooses to do so.

22. The mother relevantly now seeks an order in the following terms:

    That pursuant to section 106B of the Family Law Act 1975 the Interspousal Transfer Grant Deed signed by the wife and dated 16 June 2010 be set aside.

    That pursuant to section 106B of the Family Law Act 1975 the Deed of Trust for the [NL Trust] signed by the husband and dated 30 June 2010 be set aside.

    That the net proceeds of sale of the real property situate and known as [G Street, Suburb H, I State, Country N] being the sum of US$212,323.23 being held by Mr O pursuant to orders of the Superior Court of the State of I for the county of [P] are declared to be held on trust by him for the wife.

    That the husband indemnify the wife and keep the wife indemnified in relation to all or any moneys owing by the parties or either of them to the [M School] Sydney.

Parenting

1. The court has jurisdiction to make parenting orders in relation the subject children by reason of s 69E of the Act.

2. Orders as sought by the mother are already in place by way of interim order.

3. The relevant principles in relation to parenting proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR (2010) 240 CLR 461 affirmed the legislative pathway.

4. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.

7. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.

8. The presumption does not apply in final proceedings where:

   a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)]; or

   b)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].

9. If the presumption in section 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of section 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.

10. In circumstances where the children have been unilaterally removed from Australia by the father a consideration of the pathway and factors referred to above clearly indicated that the orders sought by the mother particularly where such orders are in place by way of interim order are in the best interest of the children.

11. Clearly the presumption as to shared parental responsibility is not to apply having regard to the best interests of the children.

12. It may be a matter of conjecture whether the orders will be sufficient for the authorities in Country Q to entertain the mother’s application in that country to the appropriate court or authority but it is clear the orders should be made.

13. Orders will be made accordingly.

Property

1. The approach to the determination of an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan& Bevan [2014] FamCAFC 19 and Chapman & Chapman [2014] FamCAFC 91.

2. Thus, the process ordinarily involves a staged process.

3. The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. 

4. In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship. In particular, such a circumstance arises where both parties seek adjustive orders but are unable to agree as to same.

5. The circumstances of this matter as outlined above clearly demonstrated that it is appropriate and just and equitable for an order adjusting the property rights of the parties.

6. Once the s 79(2) issue is resolved the Court then considers the contributions made by the parties as defined in s 79(4)(a) to (c).

7. The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).

8. The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.

9. The existing pool available against which orders can be made is now limited to funds held in the Country N and the mother’s present assets.

10. The notional assets of the parties at present as best can be determined using an approximate exchange rate of  .7769$US to $1AUD are:

    Mother          Savings   $    2,785

    Mother          Car   $    8,000

    Mother          Contents  $      500

    Joint              Sale proceeds  $273,295

    Father            Mortgage drawdown           $707,941

    Father            European car   $ 64,358

    Father            Prime Account   $386,150

    Father            Chase Bank Account          $  25,743

    $1,468,772

11. The parties’ relationship was one of eleven years with two children. Assets at cohabitation were at best modest. The mother followed the father internationally with first one child then two in the pursuit of his career. She was the primary carer for the children.

12. It is to be inferred that, subject to the issue of the IRS tax debt, the assets set out above are the fruits of the relationship to which the mother made a significant contribution. Her contribution is to be assessed at 50 per cent.

13. The present circumstances of the father are not known. The evidence is indicative of him retaining substantial funds.

14. The mother is not employed for good reason having regard to the abduction of her children. However the father, it is to be assumed, does have at present the ongoing care of the children as a result of his abduction of them.

15. The available funds in Country N represent only about 18 per cent of the prospective asset pool. On any view she is entitled to a significantly greater proportion of the asset pool.

16. Doing the best on the evidence available the mother is entitled to 45 per cent of the notional pool set out above. Portion of that is represented by the funds presently held in Country N.

17. The mother’s entitlement is in the sum of $660,947 part of that can be met by the mother receiving the funds held in Country N and as to the balance of $376,367 the enforcement of same is problematic because of the father’s conduct in absconding.

18. Orders facilitating the mother being entitled to the Country N funds are appropriate with the inter-spousal deed and trust deed to be set aside as transactions likely to defeat the mother’s claim for property settlement.

19. It is appropriate that the father provide an indemnity to the wife in relation to outstanding school fees as at all relevant times when the fees were incurred he was the primary income earner and neglected to pay same.

20. Orders will be made accordingly.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 27 February 2015.

Associate: 

Date:  27 February 2015