NAVARRO & LEWIS

In NAVARRO & LEWIS, Foster J of the Family Court of Australia considered applications by the mother for final property and parenting orders. The proceedings were undefended due to the father having abducted the parties' two children to Country Q and having left Australia during the course of the proceedings, with the mother having had no contact or communication with him. The mother sought final parenting orders in terms consistent with existing interim orders, which provided for her to have sole parental responsibility and the children to live with her, with no contact for the father. These orders were sought to assist her application in Country Q for the children's return.

The court was required to determine whether to make final property and parenting orders on an undefended basis, given the father's absence and the circumstances of the children's abduction. Specifically, the court needed to consider the appropriateness of setting aside certain deeds, declaring trust over sale proceeds, ordering an indemnity for school fees, and making a further property adjustment payment to the wife. In relation to parenting, the court had to decide whether to discharge previous orders and make new orders for the children to live with the mother, for the mother to have sole parental responsibility, and for the children to have no contact with the father, except as agreed or ordered. The court also had to consider issuing a recovery order for the children.

Foster J reasoned that it was appropriate for the proceedings to proceed undefended given the father's actions and absence. The court applied section 106B of the Family Law Act 1975 to set aside the Interspousal Transfer Grant Deed and the Deed of Trust for the NL Trust, finding them to be for the purpose of defeating the wife's claim. The court declared the net proceeds of sale of a property held by Mr O to be held on trust for the wife. The husband was ordered to indemnify the wife for moneys owing to M School Sydney, and to pay the wife a further sum of $376,367 as a property adjustment. In parenting, the court discharged all previous orders and made final orders that the children live with the mother, that the mother have sole parental responsibility, and that the children have no contact with the father except as agreed in writing or ordered by the court. A recovery order was issued pursuant to s 67Q of the Family Law Act 1975, directing relevant authorities to find and recover the children and return them to the mother, with the order to remain in place for three years.