Paintal and Paintal (No 2)
[2019] FamCA 624
•5 September 2019
FAMILY COURT OF AUSTRALIA
| PAINTAL & PAINTAL (NO. 2) | [2019] FamCA 624 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Expedition – the benefits of prompt resolution – general inability of the court to provide prompt resolution – need to establish a basis for giving priority within the list – Interim property – Interim international travel – risks of non-return – Interim allocation of parental responsibility to support private schooling. |
| Family Law Act 1975 (Cth) ss 60CC and 79 |
| Lees & Halstead and Anor [2018] FamCA 970 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 |
| APPLICANT: | Mr Paintal |
| RESPONDENT: | Ms Paintal |
| INDEPENDENT CHILDREN’S LAWYER: | Ms L McGregor |
| FILE NUMBER: | CAC | 273 | of | 2014 |
| DATE DELIVERED: | 5 September 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 3 September 2019 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-representing |
| SOLICITOR FOR THE RESPONDENT: | Women's Legal Centre |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid, ACT |
Orders
The Father’s Application in a Case filed on 22 July 2019 is dismissed;
That within 14 days the Father transfer to the Mother the whole of the Father’s right, title and interest in the motor vehicle 1 registered number …;
That within 14 days both parties sign all documents and do all things necessary to effect the Vehicle Transfer to the wife, including the transfer of any insurance policies relating to the vehicle (Vehicle Transfer Forms);
That within 7 days of receiving the signed Vehicle Transfer Forms from the Father, the Mother’s solicitor provide evidence of the Vehicle Transfer to the Father;
The Mother’s Response to an Application in a Case filed on 5 August 2019 is otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paintal & Paintal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 273 of 2014
| Mr Paintal |
Applicant
And
| Ms Paintal |
Respondent
REASONS FOR JUDGMENT
By his Application in a Case filed 22 July 2019 the Father seeks orders to permit the child of the relationship, X, who is seven years old, to travel to India to visit his family for a period of up to three weeks in October 2019. He also seeks to have sole parental responsibility in relation to education, to enable him to enrol X in a private school and finally he seeks orders for expedition of the final hearing.
The Mother opposes each of these orders and seeks interim or partial property orders to transfer the motor vehicle 1 that she currently has possession of into her sole name.
International Travel
The Father's application for international travel occurs in the shadow of his Further Amended Initiating Application that seeks final orders which prevents the parents by injunction from removing X from the Commonwealth of Australia. This is in the broader context of the extended families of each of the parties living in India.
The principles governing this application are contained in Part VII of the Family Law Act 1975 which include the objects and principles, which enshrine as the paramount consideration X's best interest, and which identify the considerations for determining that best interest at s 60CC.
The particular considerations or approach to interlocutory international travel orders were summarised by Justice Berman in Lees & Halstead.[1] In general he pointed to an examination of the genuineness of the application for travel, the extent to which it will interrupt a child and the extent to which a court can be satisfied of the child's return. He further suggested the desirability of a conservative approach being taken in dealing with matters on an interim basis where it is impossible for the Court to finally establish the facts of the matter.
[1]Lees & Halstead & Anor [2018] FamCA 970
In this case I accept that the Father's application to travel to India is genuine. He seeks to take X to celebrate his Father's 80th birthday along with the extended family. It appears likely to be a broad family celebration which would provide benefits to X of being involved with the family and experiencing them on a face-to-face basis, whereas her current contact with them is limited to Skype and other such forms of telecommunication. X would also have the benefit of experiencing her family's culture and country of origin as she has done previously with the Mother, although that was before the relationship between the parties ended and at an age which X is unlikely to remember clearly.
If this was either an intact family or these were cooperative parents I would expect that the benefits and detriments could be juggled cooperatively between them. However, this is neither an intact relationship nor a cooperative one. It is highly hostile. It involves contested proceedings in which each seeks sole parental responsibility, each seeks that X live with them and where the Father seeks that the Mother's time initially be supervised. It is a broad and deeply divisive contest between these parties. The determination of the travel application falls to be determined within the hostility between the parents and with the factual uncertainty as part of the character of interim proceedings.
Against the benefits which X might enjoy, which did not appear to be seriously disputed by the Mother, the Mother identified two significant areas of detriment. The first went to the fact that the Father's application would involve a sharp increase in the period of time that X would spend with the Father. The Mother says, potentially controversially, that X has difficulty tolerating the extended periods that she spends with the Father on school holidays. On the Father's application his time with her would be multiples of the current longest time that she has spent with him. The Mother suggests that this would be disruptive to X and that X would have difficulty in dealing with that. The second of the detriments identified by the Mother goes to one of the primary considerations being the benefits of meaningful relationship with a parent. In particular, it is the identification of the risk that X might not be returned to Australia following her visit to India, which would be a disruption to the meaningful relationship X currently has with her Mother as her primary carer.
In identifying that risk the Mother points to a number of factors. India is not a Hague Convention country and one cannot assume that there is a ready mechanism for X's return if she was retained there. Again, potentially controversially, the Mother alleges that the Father has made threats to remove X to live in India. The Mother alleges and the Father denies that he holds property in India. It is uncontroversial that he has extended family in India. What is also uncontroversial is the degree of antipathy between these parties and the deep contest between them as to who X should live with. It does no injustice to each of their cases to suggest that each represents the other as being a bad parent.
Even though the Father can point to employment, having recently entered into a further employment contract, and to holding property in Australia, the above matters identified by the Mother still point to a risk of retention. As the Independent Children's Lawyer (the ICL) points out, the fact that the Father will return to Australia does not determine that X will also return to Australia, where the Father has family in India who can care for X.
If retention in India occurred it would be a major disruption to X. While at final hearing in this matter it may be determined that there is no such risk of retention, the ICL’s submission on an interim basis should be accepted that even if it is a minor risk of retention it is a minor risk which has major consequences.
Bearing in mind the recommendation of Justice Berman that a conservative approach be taken, which appears to be sensible given the stakes in this case it is sensible, because of the potentially adverse consequences of X being retained, that she not travel pending the final hearing in this matter.
I note this does not prevent the Father travelling and enjoying the celebration with his Father. I accept that his enjoyment of that visit is likely to be lessened by not having X present.
School
The Father proposes that parental responsibility be allocated to him sufficient to enable him to enrol X in a private school. The current orders provide for equally shared parental responsibility. Each party seeks sole parental responsibility at the final hearing. The change in parental responsibility suggested by the Father would oust X's primary carer, being the Mother, from proper input into a determination as to what school X should attend. It should be noted that the Mother opposes a change in X’ school.
Noting again the difficulties in interim proceedings in factually determining matters, a number of issues were raised by the parties. The first is that the evidence does not establish that private schooling would provide a better outcome for X. The evidence presented by the Mother, although it may be contentious, pointed to X functioning well at school. Whether this is accepted or not, there was a dearth of evidence that suggested that enrolment in a private school would be better for her.
The second matter, which was particularly emphasised by the ICL related to the risk that an enrolment at private school could not be maintained. The Father indicated that he would bear the financial responsibility for sustaining X's enrolment at private school. The Mother however pointed to a number of factors which undermine this. She says firstly, that the Father has previously made such representations and then gone back on them. The Father accepts this to some extent, accepting that even in the current circumstances he would seek a variation of the child support by up to 30 per cent because of the private schooling.
What more loudly speaks to the question of the Father's capacity to maintain stable private schooling for X is that his current child support income is $26,000 per annum. This fact alone gives reason for strong scepticism as to his capacity to maintain the enrolment. That scepticism is given greater foundation by the fact that he is significantly in arrears in child support and complains that he has a mounting Australian Tax Office debt. Together these seriously call into question his capacity to maintain the enrolment for X.
It would not be in X's best interests to be enrolled in the school only to find that enrolment could not be maintained and that she was forced to return to her previous school or to perhaps find another school.
The orders for the amendment of parental responsibility will not be made.
Motor Vehicle 1
The Mother seeks the transfer to herself of a motor vehicle that she currently uses and has the possession of. Her justification for doing this is primarily related to the benefit that she says she will receive at having cheaper registration of the car by virtue of her status as a social security recipient and that she will be able to receive notices for safety recalls and the like.
The overall position of the parties in relation to property is as follows. The Mother says that the current nett pool is $1.3 million with a superannuation component of $260,000. She seeks 40 per cent of the non-superannuation pool and 50 per cent of the superannuation pool. The Father says the nett current pool is $400,000 and the superannuation pool is $260,000. He says the Mother should receive 10 per cent of the non-superannuation pool, along with chattels and the like that are currently in her possession.
The Father says the motor vehicle 1 held by the Mother is worth $7,400, she says it is worth $3,000.
The Father has another car that he has the use of, being a car owned by a company that he wholly owns.
Even on the Father's assessment of the pool, the transfer of the motor vehicle 1 would form less than the 10 per cent to which he says the Mother is entitled.
The principles governing interim property distributions are set out in the case of Strahan.[2] It is preferable that there be one exercise of the power vested in the Court at s 79, although it does not require compelling circumstances to depart from this approach, where the interests of justice call for it. If an interlocutory order is to be made it is to be on the basis that it is just and equitable to make any order in respect of property, and also just and equitable to make the particular order. This involves a conservative assessment of whether or not the interlocutory order can be absorbed into any final order or reversed so that it can form part of an overall just and equitable disposition of the property.
[2]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Although the Father emphasised the importance of there being one exercise of the discretion he accepted that an order for the transfer would not be adverse to his interests. He however contested the benefit the Mother might receive. He noted that the Mother currently has the use of the vehicle. He also noted that although she asserts a benefit to her in terms of cheaper registration if it is transferred to her, she has not proven that she has a Centrelink pension concession card which would be necessary to unlock that advantage. The Mother, however, also notes a further matter which is that she was recently provided with an “urgent safety recall” notice in relation to the motor vehicle which had not been forwarded to her by the Father for approximately a month.
In this case both parties seek an adjustment. This speaks to it being just and equitable to make an adjustment. Although it is preferable that there be one exercise, the benefits to the Mother speak of an interim or partial exercise being appropriate here. The first justification is as to the Mother then being able to receive notices about the vehicle, although this may be expected to be rare. The second is that it gives her the opportunity to pursue free registration and if successful reap a significant financial benefit to her of that. The third matter obliquely follows from the previous matter in that it provides her with some sense of security of transport for her. Even though there is no suggestion that the car may be removed from her, the ownership of the motor vehicle will provide her with further security in the context of what is a hostile and uncooperative relationship.
Where the Father concedes that this is not an adverse outcome to him these are sufficient to justify the making of the order for transfer.
Expedition
The final matter pursued by the Father and supported by the Mother was that this case should be given expedition over other cases in the list. There are currently approximately 50 matters awaiting trial in the Canberra list. The character of the Family Court litigation is that each case involves difficult circumstances that need resolution. Resolution alleviates the circumstances of uncertainty faced by children and adults with pending litigation. This is particularly alleviated where a prompt resolution can be provided.
The resources available to the Court do not permit a generally prompt resolution of such matters. It is necessary to allocate hearing time in a manner which recognises the ages of the matters within the list but also, in appropriate cases to give priority which is demanded by the individual circumstances of the case. This occurs in cases where there are allegations in the most serious categories of child abuse and often in cases involving international relocation. Such cases contain circumstances which call for expedition. In any event, it is incumbent upon the parties to show why priority should be given over other cases in the list. That has not been done here.
It has been alleged, but not established that X is suffering trauma pending the trial of the matter. It has been alleged, and I accept, that there are difficult circumstances pending finalisation with parents who cannot co-parent. These matters are not sufficient, however, to justify expedition, a matter accepted by the ICL.
An order for expedition will not be made.
Although the Mother also sought an order for the preparation of a Family Report, this is a matter to be dealt with when it is determined that the matter should be listed for trial.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 5 September 2019.
Associate:
Date: 5 September 2019
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