Quoc & Quoc (No. 2)
[2007] FamCA 1629
•6 December 2007
FAMILY COURT OF AUSTRALIA
| QUOC & QUOC (NO. 2) | [2007] FamCA 1629 |
| FAMILY LAW – CHILDREN – Permission to travel overseas FAMILY LAW – PROPERTY – Value of property – Overseas |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Quoc |
| RESPONDENT: | Ms Quoc |
| FILE NUMBER: | BRF | 2737 | of | 2006 |
| DATE DELIVERED: | 6 December 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 5 December 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Balzamo, Solicitor Bronwyn Hay & Associates |
| SOLICITOR FOR THE RESPONDENT: | Mr Dick, Solicitor Ryan Kruger Lawyers |
Orders
The Husband’s Application for Final Orders filed on 25 October 2007 is dismissed;
The Husband’s Amended Application in a Case filed by leave on 19 November 2007 is dismissed;
On the basis that the Husband has leave to file an application pursuant to section 65Y of the Family Law Act 1975 to be determined at the trial of these proceedings, the Amended Response to an Application in a Case filed by the Wife on 29 November 2007 is dismissed;
Pursuant to Rule 15.45 of the Family Law Rules Mr M of P Partners, … , Brisbane is appointed a single expert in these proceedings on the following terms and conditions:
(a)Mr M is to value and prepare a formal report as to the value of the property, companies, businesses, trust assets, and resources of the parties or either of them wherever situated;
(b)Mr M is to request from the parties all such information, documentation or other information not already supplied to him by the parties or either of them, and required by him for the purposes of his valuation and for the purposes of the other duties to be carried out by him;
(c)In the event that either party fails to provide information or documentation to Mr M, including documentation or information requested by him, Mr M is to report such failure to the Court, and shall indicate to the Court any issue arising as a consequence of the failure to provide such information and documentation;
(d)The parties in the first instance are to refer to Mr M any dispute between them as to or regarding any payment, action or matter arising in the ordinary course of the management of C Pty Ltd as trustee of the Quoc Trust or any of the business activities of the parties;
(e)Upon a dispute arising in terms of subparagraph (d) hereof, each of the parties shall provide to Mr M in writing details of the issue or issues arising between them and of the resolution seen by that party as to be necessary and shall provide to the other party copies of any correspondence entered into with Mr M in relation to that dispute;
(f)Mr M shall indicate to the Court any issues relevant to his duties which he considers requires determination by the Court or requires other orders necessary for the completion of his duties;
(g)In the carrying out of his duties, Mr M shall make no journeys to the Solomon Islands or other places outside of Australia without leave of the Court;
(h)The costs of the single expert and the valuation process carried out by Mr M shall be borne equally by the parties.
The matter shall be listed before a Registrar for case management at a time to be advised and as soon as practicable after the completion of the valuation report by Mr M or earlier at Mr M’s request and the proceedings shall be maintained in the docket of Justice Murphy;
The costs of each of the parties shall be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Quoc & Quoc is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF2737 of 2006
| MR QUOC |
Applicant
And
| MS QUOC |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
These are reasons in a case heard yesterday that involved some significant issues and I was anxious to deliver my reasons as soon as I possibly could. There have been some difficulties in doing that, not least with which is the size of the list today, so I apologise firstly for being a little late.
Secondly, I will be delivering these reasons ex tempore and whilst I will try to make them sufficiently intelligible, I will issue a corrected version of the reasons when they issue from NTS.
Thirdly, as I flagged yesterday, Mr Dick, when you were here at least, given the urgency that I perceive in getting these orders out and also given the time constraints that I have had in order to prepare them, I will give indications of the orders that I intend to make and you and Mr Balzamo and/or you and Mr Page might confer with your instructing solicitor with a view to formalising the orders and filing them in due course.
You can take that I will make an order that the appeal period will run from the date upon which the orders are perfected.
These, then, are ex tempore reasons in the matter of Quoc given after a hearing of this matter yesterday.
Orders are sought and defended in two parts. The father seeks to take the children of the marriage, D, born in June 1997 now 10 and R, born in October 1998 now 9, to the Solomon Islands for a holiday as soon as that might be arranged, returning on either 23 December or early January. The wife opposes the children travelling to the Solomon's.
The second component of the respective applications relates to financial matters. In short, the husband seeks to operate solely the joint bank account which is the bank account of a trust. The trustee of that trust is a company of which the parties are each directors. The wife opposes that course and seeks to retain her present signatory position that is jointly with the husband.
The wife applies in turn for the appointment of Mr B, a chartered accountant, as manager of the affairs of the trust pending trial. The wife also seeks various procedural orders including orders for disclosure and orders which, in effect, would advance the property matter toward a trial.
It is important to decide initially the form in which this hearing comes before me. Accordingly, it is necessary to set out a short history of the background of the matter.
On 19 November 2007 this matter came before me in the judicial duty list. The circumstances in which it did so were the cause of argument before me on that occasion. The husband filed a Form 2 Application in a Case on 25 October this year. That application sought property orders. By definition those orders were interim orders to be determined at an interim hearing.
On the same day the husband also filed a Form 1 Application for Final Orders. That application sought orders for permission for the two children to travel to the Solomon Islands in the forthcoming school holiday period. A specified timeframe was given in the orders sought of between 2 December and 31 December or 23 December, depending upon whether the wife, as the husband proposed as an alternative, travelled to the Solomon Islands. No Form 2 was filed in respect of those orders. Accordingly, no orders were sought in respect of those children's matters on an interim basis.
Each of the Applications, that is the Form 1 and the Form 2 were given a return date of 19 November.
When the parties appeared before me on that date Mr Dick, counsel for the wife, submitted that his client had not come prepared to meet any application with respect to children as there was no Form 2 Application. He submitted that the matter should be managed through the Court like any other application filed in Form 1.
This is, of course, not just a matter of sophistry or procedural technicality. The form of the hearing is a matter which might affect its outcome.
I should mention that a preliminary course for complaint by the wife was also that the service copies of the applications did not have on them the return date for the amended application and I was told by Mr Dick from the Bar table that this was only ascertained by inquiry of the registry. It is not necessary to enter into the details of any factual dispute about that for present purposes.
A second aspect argued by Mr Dick is that the wife should not, in any event, have to meet the application with respect to the children.
Carmody J, delivered reasons for judgment after a defended hearing in a final application by the husband to travel to the Solomon Islands. The hearing had occurred on 30 August 2007 and reasons were delivered by his Honour on 14 September 2007.
Mr Dick argues that there is no case for urgency made out and, further that correspondence was received from the father's solicitors approximately three weeks after his Honour's reasons foreshadowing the current application and the application was filed about nine weeks or so after those reasons were handed down. Mr Dick thus raises what might be described conveniently as a “Rice & Asplund point”.
Carmody J summarised the application before him at par 5 of the reasons he delivered on 14 September 2007:
"The father wants the children to visit their paternal grandparents and extended family in the Solomon Islands in school holiday periods to maintain familial and cultural ties. At first sight this is a perfectly reasonable and rather innocuous request. However, the children's mother is opposed because of alleged safety concerns and abduction fears. She contends that to grant the application would be inconsistent with the children's overall welfare and best interests."
The parties had earlier consented to an arrangement whereby the children live with each of them month about. The application by the father sought that the children travel with him to the Solomon's when his time with the children in accordance with that arrangement coincided with the school holidays. His Honour dismissed the husband's application.
However, the genesis for the husband's actions in filing an application when he did can be seen in his Honour's reasons. At pars 104 to 106 of his Honour's reasons his Honour said:
"Despite the father's substantial property investments in Australia and his obvious interests in protecting them, I am reasonably satisfied of sufficient risk to refuse permission to leave at this stage. I cannot ignore the dire (and expensive) consequences if that risk is realised. Together the level of risk and potential consequences persuade me that it is contrary to the children's best interests for them to travel to the Solomon Islands without appropriate guarantees of their return.
105. While I accept that it is all he can raise at the moment the security offered by the father is simply inadequate as a reasonable incentive to return or to provide the mother with funds reasonably required to pursue a return through the Solomon Islands system.
106. I think the application is premature. It is made far too early after such an acrimonious family breakdown. There is mutual hostility and mistrust and unresolved conflict between the parents. Neither is child focused as they need to be. That, no doubt, takes time to acquire. In a fluid situation like this, an overseas travel application would have more realistic prospects of success if it related to a specific proposal on a trip by trip rather than a 'once and for all' basis. The Court, however, is more likely to err on the side of safety. A risk that can be worth taking on the faith of an assurance in respect of one trip may not be worth taking even with substantial sureties in another. Timing and the prevailing conditions and circumstances can be decisive."
[my emphasis in each case]
The further genesis of the husband's application can be seen at par 109 of his Honour's reasons. His Honour said:
"He [the husband] can reapply when he has a specific considered and fully itinerated proposal to make."
Mr Page SC who appeared for the father says, in effect, that, in pars 106 and 109 of his Honour's reasons in particular, his Honour contemplates further applications, for example, upon specification of a "specific proposal on a trip by trip basis" rather than a "once and for all" basis.
I understood Mr Page SC to also rely upon his Honour's statement that "timing and the prevailing conditions and circumstances can be decisive." Naturally enough, Mr Page SC also relies upon the statement that "I think the application is premature."
In terms of procedure, Mr Page SC says that the reasons contemplate on their face further appearances before Carmody J (and says that in fact he was surprised that it was me hearing this matter and not Carmody J). In any event he says the application was brought in a way contemplated by His Honour and should be heard in that vein.
As I said in argument, that submission has further resonance when regard is had to the Court's emerging new docket system. Carmody J is (or was) the "docket Judge" who has (or had) charge of this matter. Indeed there is an application for costs outstanding as a result of the previous hearing in which argument has occurred but a decision not yet handed down.
The difficulty for me, as I said during the course of argument on 19 November, is that this case, in my view, "falls between two stools" as the Court comes to grips with the new case management system. Without meaning any criticism of any Registrar because, as I said on 19 November, we are all on a learning curve with respect to the new system, it seems to me that either the matter ought to have been before Carmody J to be, as it were, further case managed or to have been listed in the usual way as a fresh application.
Again, as I said in argument on 19 November, there seemed to be merit in what each of the parties argued as far as the case management of the case was concerned. With that in mind I adjourned the matter until yesterday so that the application for the husband to travel to the Solomon Islands could be heard.
Having taken that course, though, two substantive procedural questions emerge. First is the nature of the hearing before me. I asked each counsel about that issue at the commencement of the hearing and they each agreed that I was hearing and determining the matter as an interim hearing. No cross-examination took place and it is not possible for me to make findings on credit, nor am I entitled to accept or reject contentious evidence save for it seems to me to be plainly correct or plainly incorrect or incredible.
The considerations referred to, for example in decisions such as C & C [1995] 20 FamLR 24, apply. In particular, it is not possible to make findings as to disputed facts in the absence of cross-examination and a proper determination at a trial process of those facts. Having said that, the decision as to the instant application will of course finally determine it, at least in so far as it applies to the period specified in the application.
A very important aspect of hearing the matter in the manner just outlined is ascertaining those facts which are not in dispute.
At the commencement of the hearing before me yesterday I ascertained from counsel for each of the parties whether the agreed or uncontested facts, as Carmody J found at pars 7 through 33 of his Honour's reasons, remained such and were therefore admissions by each party relevant to my determination. Each party agreed they were.
I incorporate those agreed or uncontested facts into these reasons as follows:
7. The children were born in Australia and as a result of deliberate decisions made by the parents to take advantage of the education and health systems here.
8. [D] and [R] hold dual Australian and Solomon Islands passports as do the parents.
9. The children have spent all but two years of their lives living in the Solomon Islands. They have members of the extended family resident in Australia, however, all on the father's side except for one aunt who lives in Sydney and most of the mother's relatives reside in the Solomon Islands.
10. The parents currently share month about with the children and live in close proximity to each other in the [W] area. They regularly travel to and from Australia and the Solomon Islands on business.
11. The mother is a citizen of the Solomon Islands and has residency status in Australia.
12. The father is an Australian citizen with Chinese cultural heritage who is habitually resident in the Solomon Islands. He is the director of the [family] business in [Honiara]. The [Quoc] family is highly respected in the Solomon Islands […].
13. The father has a permanent residence in the Solomon Islands and owns business and private assets there. The [Quoc] family compound is well protected and surrounded by high security gates and a full-time security employee as well as four full time staff members who live in. He also has more than $3.3 million invested in Australian based property trusts. His family and business relationships have been adversely affected by the considerable amount of time he currently spends in Australia for parenting time.
14. The father considers his real home is in the Solomon Islands even though he says he has significant real property there compared to Australia and his business interests in Honiara are neither significant nor extensive.
15. The father is receiving Centrelink payments in Australia because he cannot generate income from the Solomon Islands while he is here. He says his reduced income affects the best interests of the children.
16. The mother lives in the unencumbered former matrimonial home while the father pays $375 a week in rent with government assistance.
17. The children attend private Mandarin tuition supported by both parents.
18. The parties began cohabitation in the Solomon Islands in 1992, married in 1997 and separated during a family holiday in Australia in January 2006. They returned to the Solomon's in February. In April 2006 the husband brought the children back to Brisbane for the Easter school break. They were joined by the wife after rioting broke out in the Solomon Islands. The parents resided separately under the one roof at [W] until September 2006.
19. The children were enrolled at [W] Primary School and have remained there ever since. The father returned to the Solomon's for business reasons on 9 September 2006. The wife arrived in Honiara the following week.
20. The father commenced divorce and custody proceedings in the High Court of the Solomon Islands on Friday, 22 September 2006, apparently because he believed the mother was cohabiting with another man. The next day the mother was involved in a fatal traffic accident as a passenger on 23 September 2006. She was served with the husband's papers at the police station on 25 September 2006. She promptly responded by instituting proceedings in this registry and returning immediately to Australia.
21. On 29 September the Court in the Solomon's made an ex parte interim custody order in favour of the father. However, Watt J restrained the parties from removing the children from this jurisdiction and granted the mother sole use and occupation of the [W] home on 5 October 2006.
22. The father applied for the matter to be listed for a final hearing in the Solomon Islands on 20 October 2006 but this was adjourned until 1 December 2006. The father arrived back in Brisbane on 21 October. An attempt by the mother to stop the proceedings in the Solomon Islands failed on 9 November 2006. On 1 December 2006 the Solomon Islands proceedings were adjourned to the New Year.
23. Orders restraining the father from taking further steps to prosecute custody or property settlement in the Solomon Islands were made by the Family Court of Australia on 11 December 2006.
24. On 31 January 2007 the father unsuccessfully applied for interim orders permitting him to relocate the children's residence to the Solomon Islands.
25. The father firmly (and I find genuinely) believes that the post divorce parenting and property dispute should be resolved under the laws of the Solomon Islands.
26. There remains a high level of conflict between the parents over both child and property related issues. The father has told others that he would prefer to spend all his money on solicitor's fees than see the mother receive an unreasonable property settlement. The father wrote to the mother on 1 February 2007 telling her that if she wanted to challenge him he would "…destroy the trust and … leave the kids with nothing and in 20 year's time [she] can do the explanations." The mother has also sent abusive emails to the father on a range of issues in recent times.
27. Although the father says they handled them well, the children have experienced periods of instability during civil unrest in Honiara in 2000 and 2006. In June 2000 ethnic tension in Guadalcanal forced the mother and children to leave Honiara until January 2001.
28. In April 2006 there were two days of riots in Honiara. The 2006 uprising was short-lived and ultimately did not endanger personal safety.
29. Some elements of the security situation remained fluid ever since.
30. The Australian Department of Foreign Affairs and Trade has issued a travel advice warning current to Tuesday, 14 August 2007 for the Solomon Islands advising Australian travellers to exercise a high degree of caution.
31. The Solomon Islands Parliament resumed sitting on 7 August 2007. There remains some potential for further ethnically targeted violence, particularly in the capital, Honiara, because of the possible no confidence vote in the government. A high degree of personal security after dark is recommended.
32. Hercules aircraft are on standby for evacuations if required.
33. It is implicit in the husband's material that he accepts that being separated from the mother longer than his allotted parenting time would be inimical to the welfare and best interests. That, in any event, is beyond argument.
They are the agreed facts upon which his Honour's decision proceeded. Thus those uncontroversial facts, agreed to remain uncontroversial by the counsel for each of the parties, constitute a foundation for the decision in the applications before me decided, as it is, within the confines applicable to interim decisions.
A central question in this case, then, is whether the principles enunciated in Rice & Asplund and other cases apply and, if it does, whether a change of circumstances is established.
First though, it is important to place that question within the other principles applicable to the instant application.
The Court's powers to make parenting orders include, relevantly, a power to discharge or vary an earlier parenting order, s 64B(1)(b).
That section makes it clear that such an order is of itself a parenting order, however, no statutory preconditions are placed upon such a power to vary or discharge.
The Full Court's decision in Rice & Asplund is now some 18 year's old, however, the Full Court of this Court has clearly indicated, as recently as a few months ago, that the principle in that case remains just as relevant now and, in particular, relevant since the recent amendments to the Act: Hungerford & Tank [2007] FamCA 637.
The principle in Rice & Asplund has been recognised in a long line of cases including, for example, Zabaneh [1986] 11 FamLR 167 and Newling & Mole [1987] 11 FamLR 974. In the latter case Nygh J said:
"Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Courts. There must, in other words, be an end to litigation."
In Rice & Asplund itself Evatt CJ, with whom the other members of the Bench agreed said:
"Once the Court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way."
In written submissions provided to the Court Mr Dick cites Dr Dicky QC's text Family Law to this effect:
"There are no statutory conditions which must be satisfied before the Court may vary a parenting order. The Full Court of the Family Court has, however, made it clear that a Court should not entertain proceedings to vary such an order lightly. What normally needs to be established before a Court will consider varying an existing parenting order is either a substantial change in the circumstances of one of the parties or of the child which makes it in the interests of the child to review the original order or, alternatively, an awareness of a factor relating to the welfare of the child which was not disclosed to the Court at the original hearing."
But, in my view, the expression "parenting orders" used by Dr Dicky in that extract cannot necessarily be transposed for the expressions "custody" and "access" as used in the cases when the issue before the Court is permission pursuant to s 65Y of the Act.
It is in my view clear that an application under s 65Y is a "parenting order" as defined by the Act. It seems to me that s 64B(2)(i) makes that clear.
Whilst that in turn makes it clear that Pt VII of the Act applies, it does not automatically follow, in my view, that the principle in Rice & Asplund necessarily applies to an application under s 65Y that is because of the terms of the section itself.
Section 65 Y provides:
"(1) If a parenting order to which this subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of or at the request of a party must not take or send the child concerned from Australia to a place outside Australia except as permitted by sub-s (2). A penalty of three year's imprisonment is imposed."
Omitting the irrelevant parts of the section, sub-s (2) goes on to provide:
"(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if: (a) it is done with the consent in writing [authenticated as prescribed] of each person in whose favour the order referred to in subsection (1) was made or; (b) it is done in accordance with an order of a Court made under this Part or under a law of a state or territory at the time of or after the making of the order referred to in subsection (1).
The section contemplates that whilst whatever parenting order dealing with living with and spending time with is in place (and absent consent), permission must be sought by one parent to take the child from Australia.
In other words the section, it seems to me, contemplates the possibility of further proceedings after an order has been made as to "custody or access" to use the expression used in the cases, or "parenting orders" as those orders should now be called.
Thus, it seems to me that the principle in Rice & Asplund is unlikely to have specific application in s 65Y cases.
Further, even if I am wrong about that general proposition, I think it does not apply to a s 65Y case where a Judge has indicated in a previous decision, particularly a decision relating to the very point the subject of the application, that a later application might be made upon differing circumstances.
Issue estoppel may apply but that was not argued in the present case. In any event it seems to me that it may be difficult to establish issue estoppel in circumstances were an application is brought consequent upon comments by a trial Judge similar to those made by His Honour in this case.
In this case then, in my judgment the principle in Rice & Asplund does not create a threshold hurdle to the husband's application.
I turn to the merits of the application. Mr Dick submits, correctly, with respect, that as an application pursuant to s 65Y is a parenting order, the application is governed by the mandatory matters in Pt VII of the legislation.
There is an element of artificiality about the mandatory pathway required by those sections of the Act when the issue is as closely confined as it is in a s 65Y application. Nevertheless, in my view, the pathway and the considerations it embodies are mandatory.
I make it clear that I have considered each of the primary and the additional considerations.
Mr Dick submits in his written submissions that the applicant has put on no evidence, or insufficient reliable evidence, to enable the Court to properly “consider” the considerations relevant under s 60CC of the Act.
He says that, in effect, taking it at its highest, the father's case with respect to those considerations is set out at pars 36 through 51 of his affidavit and really come down to the need for the children to reacquaint themselves with their old homeland and with their extended family members and friends, and what Mr Dick describes as general lifestyle benefits from living in the Solomon Islands.
He submits that these matters really address only in a cursory way the range of matters which a Court must mandatorily consider when determining the best interests of children. He submits specifically that the only matters that the husband really seeks to address are, in effect, sub-s 60CC(3)(b) being the nature of the relationship of the children with their extended family, and by reference to sub-s 60CC(3)(g), the background lifestyle, culture and traditions of the children.
Mr Dick submits that, by contrast, the mother addresses a number of matters relevant to s 60CC in her material. For example, he says the mother addresses issues in relation to maintenance of cultural ties, the children's relationship with extended family members, significantly the likely effect of any changes in the child's circumstances if the orders proposed by the father are made.
The mother, he submits, comprehensively addresses her concerns about the children not returning from the Solomon Islands and, although there is what might be described as "shared care" arrangement of the type I have previously described, if the children were not returned from the Solomon Islands he submits, that, the separation of the children from their mother would have severe, adverse consequences for them.
Both Mr Page SC and Mr Dick made submissions in respect of what might be described as risk.
Mr Page SC submitted that the issue was, in effect, about risk and the need for children to appreciate and enjoy their cultural heritage and spend time with their grandparents, each of which should occur in the Solomon Islands.
It seems to me that the two central issues relevant to the determination of this part of the case, each of which is related to the other, are the risk of the failure of the father to return the children to Australia at the end of the period, and the risk to the safety of the children in the Solomon Islands if the application is granted. Obviously issues such as the children appreciating and enjoying their cultural heritage is important and also needs to be taken into account.
Although expressed in those terms, the issues of risk and safety can be seen to be at the heart of relevant s 60C considerations and, in particular, a primary consideration.
For example, clearly relevant to the primary consideration of harm or potential harm to the children is the obvious concerns about their physical safety, but also relevant under this primary consideration is, it seems to me, what the mother contends would be significant emotional harm if the children were separated from their mother's care particularly if, for example, they were kept in the Solomon Islands against their wills and certainly her will.
So too, the other primary consideration, which is the benefit to the children of a meaningful relationship with each of their parents, is clearly relevant to my determination in the context of the two issues that I have flagged.
The father says that an important aspect of the benefit of a meaningful relationship of the children with him is enjoying such a relationship in the Solomon Islands. The mother says that there would be a denial of the meaningful relationship with her if the children are retained in the Solomon Islands. There is also an impact on the meaningful relationship between the children and her because of her fear of their position and, indeed, her position if she was to travel to the Solomon Islands.
It seems to me that I do not need to make findings about the position in the Solomon Islands with respect to the mother's allegations about behaviour that has, she says, occurred to her and which she suggests, implicitly at least, may have some connection with actions taken by the father in order to initiate those actions. Any such findings would be beyond the scope of the hearing conducted by me and the manner in which it was conducted. It is enough, for present purposes, to note that the mother is fearful of returning to the Solomon Islands and provides a foundation for that fear.
There is, in my view, little doubt on the evidence and Mr Page SC, indeed, really did not gainsay it, that if there was to be a, as it were, holding over in the Solomon Islands by the father, then the change in circumstances for the children, including separation from their mother and from the lifestyle that they have enjoyed for some time in Australia, would be of significant detriment to them, at least initially.
In that respect the section requires me to consider, and I have considered, that that event would see the children changing schools, removal from their friends and peer groups and from their ordinary day-to-day lifestyle and activities in Australia.
Also relevant as a specific consideration in that respect, is the capacity for the likely significant future litigation in two countries that such a holding over would likely entail.
It is also necessary for me to have particular regard to, and I have had particular regard to, the Objects and Principles underlying any such decision that I make in this application for parenting orders pursuant to s 60B of the Act.
The issue of the risk of retention of the children in the Solomon Islands and any risk to the children's safety posed by the trip to the Solomon Islands can be seen as being crucial and central to a consideration of those objects and principals.
In the context under consideration it is necessary to note that his Honour made a number of central findings about the very issues that I have just described. I set out some of those findings as follows: At pars 77 through 79 of his Honour's reasons for judgment his Honour said this:
"77. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively minor and the overall benefits significant.
78. Relevant factors include the post separation history, the state of relationship within the family, parental attitudes, threats, motive, other facts which may seem minor or trivial in isolation but taken together may suffice to establish an unacceptable risk.
79. The biggest risk indicators here are the father's belief in the central significance of Solomon Islands for the children's future; his future business plans for his son; his heavy emphasis on the cultural and ethnic needs; the effective on-going parental conflict; the Solomon Islands' legal system, in particular in light of the fact that it is a non Hague convention signatory."
His Honour also found at par 89 of the reasons:
"Non convention states can become "haven" states for parental child abduction."
His Honour went on to find at par 101 through 104 of the reasons:
"101. Even if the father was willing to file a 'voluntary' unequivocal and ostensibly irrevocable submission to Australia's jurisdiction in the Solomon Islands, he may later turn around and [successfully] challenge its validity on duress or oppression grounds.
102. I find that it would be in the children's best interests to experience their father's home country for block but temporary periods. Culture and cultural identity and their enjoyment are important best interests considerations. However, this factor need to be weighed against the children's right and need for the parents to continue equal shared time and responsibility or, in s 60CC terms, the need for a meaningful relationship with both parents; the need for continuity and stability with their schooling and lifestyle in connection with their Australian as well as their Chinese and Solomon Islands cultures; the close relationship they have with the mother and the stability of the status quo. In a difficult case the child's cultural and other needs may have to defer the balance of these factors.
103. The best interests pendulum would swing dramatically in the opposing direction if the children were to be kept permanently in another country away from their mother with whom they currently spend half their time.
104. Despite the father's substantial property investments in Australia and his obvious interests in protecting them, I am reasonably satisfied of sufficient risk to refuse permission to leave at this stage. I cannot ignore the dire [and expensive] consequences if that risk is realised. Together, the level of risk and potential consequences persuade me that it is contrary to the children's best interests for them to travel to the Solomon Islands without appropriate guarantees of their return."
Whilst his Honour did not mention the decision, many of those factors can be seen as being similar to those matters considered relevant in assessing security for the return of the children by the Full Court in the decision of Line & Line [1997] FLC 92-729 at pars 4.47 and following.
Mr Page SC submits that much has changed since his Honour's order, principally the guarantees offered by him for his return with the children; the security offered by him and a specific itinerary for what is a short-term holiday visit during the Christmas school holiday period.
In terms, then, of the broader issue of risk, that is the risk of non return and the consequences of that for the children and their relationship with their mother, Mr Page SC submits first, additional security has been offered by the father comprising transfers of valuable real property to, in effect, be held in escrow pending his return.
Secondly, he offers a liquid sum of $10,000 to be paid into a trust account prior to departure which such liquid sum can be used to commence the funding of any actions that the wife would seek to take.
Thirdly he also offers orders described as consent orders which became exhibit 1 in the proceedings. In effect those orders seek to say to the High Court of the Solomon Islands or to provide, rather, by way of order of the High Court of the Solomon Islands, that the father would subject himself to orders which would, in effect, force him to return to Australia.
Mr Page SC asks rhetorically in argument, what else can the husband do to provide security for return. Mr Page SC acknowledged that risk was present. He submitted that risk is always present when travel to a non-convention country is involved and he, quite properly as it respectfully seems to me, recognised that there are limitations to what he could say about the risk in those circumstances.
Mr Page SC also frankly and, in my respectful view, correctly acknowledged the risk referred to by his Honour, that the husband might, putting it crudely "buy" what he wants by sacrificing such entitlement as he has to Australian property in order to have the children live with him in the Solomon's. He points though, in that respect, to the matters raised or referred to in his Honour's reasons at pars 80 and 81, which I will not repeat.
Mr Page SC also, again rightly in my respectful view, acknowledges that I have no evidence before me upon which I can act with respect to the effect, if any, of the orders which he moots would be signed as consent orders in the event that an order by me permitted the husband to travel to the Solomon Islands.
I should add that Mr Dick makes the point that, in any event, those orders were offered only on the morning of the hearing despite the fact that the husband had had some considerable time, he submits, to obtain evidence as to the law in the Solomon Islands, and to the legal effect, if any, of the sort of orders proposed. He also submits that the father had not offered orders of that type, whatever their effect, before that morning.
Subsequent to the hearing, late yesterday evening, an order was tendered by consent which I will formally mark as Exhibit 2. It is agreed to be the current order applying in the Solomon Islands with respect to the children. In effect, it is tendered to show that the way is clear, as it were, in terms of orders in the Solomon Islands, for the consent orders which became Exhibit 1 to govern the situation and it is submitted that I should take additional comfort from that. I should also mark as Exhibit 3 a chronology which was also, by agreement, provided last night to me after the conclusion of the hearing.
Mr Page SC submits that there is little evidence of risk but much speculation about risk.
He submits that the husband has never held over. He has obeyed Court orders. He has, by agreeing to the month about shared arrangement, accorded to the mother a meaningful and continuing role in the children's lives and that is an important consideration in assessing any risk.
Mr Page SC also points to the fact that, in the Application filed in Form 1, the father proposes, as an alternative proposal that the mother can accompany the children to the Solomon Islands at his expense and, this too, is a pointer against risk.
As to risk in the sense of the children's safety while they are in the Solomon's, Mr Page SC points out that it could not reasonably be suggested that the husband would intentionally put the children at risk of harm. He points out that there are private security arrangements in place and the current situation in the Solomon's must be put into perspective, including that the parties have each travelled there and each retain operating businesses there.
In that respect I should note that Carmody J found at par 71 of the reasons:
"Overall I'm not convinced by the totality of the evidence that there is any reasonable likelihood that the current situation in the Solomon Islands is so chaotic or explosive that the children could not safely spend up to a month at a time in Honiara. The father is responsible for ensuring that they are adequately protected and there is no reason to think that he would be reckless in this regard."
I respectfully agree. On the evidence before me any parent would have a right to be concerned about their child travelling to the Solomon's at the present time. Clearly it is a matter I should be concerned about in terms of the statutory considerations, and I am, and it is a factor that I take into account. It is not, though, of itself the decisive factor.
Mr Page SC is probably correct, as it seems to me, that there is little more the father can do as at today to satisfy a Court that a visit which he considers is important for the children and utterly benign as to any sinister intent, than what he has done already. Mr Page SC submits, at least impliedly, that if the husband has done all he can in terms of security and the like, then the father might never be able to leave Australia for a visit to the Solomon's.
I do not think that necessarily follows. In any event, the issue is, it seems to me, not what more the father can do or, indeed, what circumstances may or may not apply in the future, this is a parenting case and needs to be decided according to the principles enunciated in the Act.
The issue is, on the evidence as presented to me on an interim basis, that is, without findings as to veracity, credit or the like, and without the benefit of seeing either party in the witness box, what order is in the best interests of the children.
That issue, in turn, comes down to – as, in effect, it does in any case about any parenting orders - do the potential benefits of each parties' proposals outweigh any potential detriments or risks associated with either parties' proposals.
There is obviously potential benefit to the children in the husband's proposals. I have already alluded to what those potential benefits might be. The children will have the opportunity to spend time with their father who has a clear cultural and familial connection with the Solomon Islands in a place that is very important to the father. The children have Solomon Islands heritage. It is clearly important that they experience their heritage and are made aware of it.
Clearly, then, there are benefits to the husband's proposals with respect to the proposed travel.
However, there are, it seems to me, also potential detriments, risks or harms associated with his proposals. It is acknowledged that all of those harms or risks are what might be described as "what ifs". That is, that there is no finding I make, or could make, on the evidence before me in these interim proceedings that the husband will, or is in all events likely, to hold the children over or to fail to return them from the Solomon Islands.
That is, though, as I see it, not the issue before me in a parenting case where I am weighing potential risks against potential benefits. The issue is: what is it about the trip to the Solomon Islands that is in the children's best interests and to what extent are those potential benefits outweighed by potential risks.
I respectfully agree with the comments made by Carmody J, that, if the risks should bear fruit then the consequences for these children and for their mother, who the father agrees is a principally important person in their lives, as is he, would be catastrophic.
If the risk bears fruit that there would be another round of litigation between the seemingly endlessly warring parents about the children and it is highly likely that that litigation would occur in two jurisdictions, Australia and the Solomon Islands. It would involve these children's parents in very considerable additional expense as well as the very considerable expense it has cost them already; and the likely litigation could hardly not have an impact upon them particularly given that they have spent the last couple of years of their life in Australia.
It seems to me then that whilst the husband might experience the failure to be able to take the children on a two week visit to the Solomon’s as a disappointment, and, perhaps, understandably so, if my inquiry is genuinely about the best interests of the children and about putting the children's interests ahead of the potential benefits and interests of their parents then, in this particular case, at this particular time, the potential risks to the children outweigh the potential benefits such that, on an interim basis, I refuse the husband's application.
As I said at the outset, the procedural issues pertaining to the application are by no means clear. It seems to me that whilst the husband's current application provides for a specific trip at a specific time, I have dealt with that application on an interim basis, although, because of that timeframe it has been finally determined.
It seems to me that the father should have liberty to litigate at trial the further specific holiday issue, which I think his Honour described “as a trip by trip specific issue”, together with security and the like within an environment where, once those issues of security and specific proposals with respect to a particular trip or trips are articulated, a trial Judge can make findings of credit, veracity and the like with respect to each witness.
In that respect I note that the property aspect of the matter is proceeding to a trial and I want to make it clear in these reasons that I do not preclude the husband from arguing a s 65Y application at a trial when all of those other considerations might apply, albeit in respect of a different time period than what is contained in his current Form 1.
I turn to consider the property issues. The property issues have taken on a very different complexion to those raised in the respective applications and responses of the parties by reason of two things.
The first is my indication during argument yesterday that this case would be actively case managed, if possible, in my docket. Secondly, the parties - intelligently, if I may respectfully say so - agreed to a single expert being appointed in these proceedings (Mr M) and also agreed to me making orders that would permit the parties to first refer any question about the day to day operations of the trust and the like to Mr M before litigating before this Court.
I am told that there is a long history of the parties being unable to agree on virtually anything. Certainly, the litigation path has already been long and hideously expensive.
As best as I can ascertain, the proceedings for property settlement have not advanced beyond the most basic of stages.
It is not possible at the current time, as I understand it, for either of the parties to articulate the property of the parties or either of them, that being the first step in any property application.
I was given an example during argument yesterday of the parties' inability to agree with respect to matters affecting the trust. They were unable to even agree whether land tax should be paid - either as to its amount or whether it should be paid at all.
That dispute is to be seen in the context of assertions by the mother, about which I specifically make no findings, that she does not trust the husband to administer the trust properly and that there may be moneys that had been, either improperly or injudiciously paid from the trust.
That is the foundation for her application before me to appoint a chartered accountant as the manager of the trust.
As part and parcel of that dispute, there is a dispute about what documents have or have not been disclosed, about what documents do or do not exist in either parties' possession and assertions and counter assertions by the parties that they have produced all such documents as might exist.
There are outstanding requests for information about assets and/or financial resources and, in particular, about assets and/or financial resources that exist, or may exist, in the Solomon Islands.
It seemed to me yesterday, and I raised it with each of the parties, that expert evidence was likely to be required to provide evidence of valuation of, in particular, the trust's interests and probably other assets and resources within the pool. Both parties agreed.
I indicated to both counsel that it seemed to me that, if a single expert was appointed for that purpose, then that single expert could also be used, as it were, in an attempt to resolve issues that might otherwise be dealt with in an endless round of correspondence between solicitors. Both counsel were enthusiastic about embracing such an idea.
It seemed to be yesterday, as I indicated during the course of argument, that such an expert would be likely, as part of the process being conducted by them, to flag documents and/or information that was, or might be, required by him or her in order to undertake his or her task, and that, necessarily, the process engaged in by such a single expert in preparing a valuation, would result in that expert, in effect, keeping a watching brief on the trust and its affairs.
Similarly, as part and parcel of the valuation process it seemed to me that the single expert would be in as good a position as anyone to make recommendations about what payments should or should not be made in the ordinary course of business.
If that course of action was adopted, and there was to be a dispute, it seemed to me that - in stark contrast to many cases that come before the Court where arid arguments about documents are conducted in the absence of evidence - if there was a dispute about any or all of those matters which subsequently came before me or another Judge, then the single expert would, at the very least, be able to provide some evidence upon which a Court might be able to base a decision about the matters in dispute.
Therefore the suggestion by me ought not be seen, in any sense, as an abdication of judicial function to a single expert. Rather the role of the single expert should be seen as doing what the single expert properly should do, that is value the relevant asset or assets or resources and also to provide an evidentiary foundation for any subsequent application about any matters in dispute between the parties.
Again, both counsel on behalf of their respective clients, I think it is fair to say, eagerly embraced the concept and, for the reasons just indicated, I propose to make orders that a single expert be appointed.
It is also a matter of agreement between the parties that Mr B, who was nominated as the manager of the trust by the wife, ought not be the single expert and the parties agreed before me that Mr M of P Partners should be the single expert.
The parties have spent between them some $430,000 in legal fees. In the region of $300,000 has been spent by the husband and $130,000 by the mother.
That, on the surface of it, seems to me to be an obscenity. I have an obligation, as it seems to me, to stem that flow. It seems to me that the appointment of a single expert, and a slightly more expanded role for that single expert as part of the valuation process, might assist in stemming that flow. I propose then to have a single expert prepare a valuation of the assets and resources of the parties, wherever they might be situated, to flag all such information and documents as might be necessary to allow that valuation to take place and, if necessary, to flag for a Court any concerns or issues about the absence of information or documents; to flag for the parties and, if necessary, for the Court any and all such payments as ought properly be made or matters which ought be attended to in the ordinary course of business in the operation of the trust, and to raise as and when appropriate consistent with his obligations as a single expert any concerns in and about the operation of the trust which he considers the Court should be made aware.
I envisage that orders would be made by consent that the parties can jointly refer to Mr M any specific issues that they have in and about the valuation and the operation of the trust as part of his process provided that any such issues are in writing and raised jointly between the parties.
It seems to me, then, that, if orders to that effect are made and with those purposes in mind, then the application by the father for, in effect, sole control over the bank accounts of the trust and, in turn, the application by the mother for orders that Mr B be appointed as manager of the trust together with, in each case, ancillary orders, ought each be dismissed.
Similarly, in the case of the mother, applications for orders contained in the Response for production of books, documents and the like and the application for exchange of documents prior to a conciliation conference and the listing of a conciliation conference are each at this stage premature.
In that respect I propose to order that the matter be listed before a Registrar for directions for the further management of the case in my docket as soon as reasonably practicable, after notification that Mr M has prepared his valuation or otherwise considers it appropriate for the matter to be referred to the Court.
In a similar vein, the application by the father for disclosure of documents by the wife, as contained in par 7 of his Form 2 ought also, be dismissed, it also having been subsumed, in effect, by the orders that I make with respect to a subsequent review by a Registrar and the process ordered to be undertaken by Mr M.
That leaves for my determination the application by the father for what is frequently called a “Hogan Order” by pars 4 and 5 of the father's application in Form 2 filed on 25 October 2007.
The husband seeks an order that a property at N belonging to the company as trustee of the trust be sold, and, after the payment of certain expenses (including capital gains tax on that and another earlier-sold property), he be paid the balance representing a partial property settlement to him.
It was clear that the effect of the order was to permit the husband to access those funds for the payment of legal fees. The evidence said to support that application was effectively matters deposed to by the husband as well as an affidavit by his solicitor, Bronwyn Hay.
In broad compass, the husband said that his past and current source of funding had been his family through various business/corporate entities and that that was no longer available to him. Mr Page SC indicated that the husband's father, who, I gather, is the controller of such corporate or business entities to which recourse might be had for the payment of those fees and/or the controller of funds to which recourse might be had for the payment of those fees, has indicated that he was no longer prepared to fund the husband.
The submissions made by Mr Dick have the same essential foundation as those made with respect to the children's issues.
In essence Mr Dick submits that there is insufficient evidentiary foundation for the making of that Hogan order. He submits that specific instances of that are that: no quantum of costs is specified in the application; that there is no evidence before the Court as to the future costs likely to be incurred by the husband in preparing the matter for trial or, indeed, in respect of any aspect of the further conduct of this matter by his solicitors; that the order in its current terms is open-ended and, even if an amount was specified in respect of it, it had no correlation to any calculation of any fees.
He submits further that the application appears to relate to the payment of past fees incurred by the husband and that a Hogan Order ought not be used for the payment of past fees. (I took him to submit that that was a matter properly left to s `117 of the Act.)
Mr Dick referred to the quantum of legal fees. I have already referred to that. He submits that given that the husband has expended about $320,000, and that, of that sum, $192,000 had been expended in legal fees with the husband's current solicitors in the last six months or so, a Court would be reluctant to make a Hogan order in respect of past fees, even if that could be done, in circumstances where there was not evidence before the Court as to the basis for the calculation of those fees; the manner in which they were charged and how the total fees were arrived at.
The husband, through his solicitor, says that the only source of funding available to him is a commercial litigation lending source (if he was to be approved) and that I should take notice of the fact that those sources of funding charge around 18 per cent interest, and this was very expensive and therefore any commercial funding obtained by the husband would be at a significant cost.
Mr Dick submits that, whilst the husband complains as to the 18 per cent interest rate applicable to those borrowings, the money he has currently borrowed through his family companies is already subject to a 16 per cent interest charge.
I indicated earlier that Mr Page SC indicated from the Bar table that the husband's father had indicated that any further funding would cease. I specifically asked Mr Page SC whether the husband's father was a deponent and he replied that he was not. No explanation was given to me during the course of the hearing as to why the husband's father was not a deponent.
The underlying principle applicable to Hogan orders, as they are called in this Registry (or Barro Orders as they are called in other Registries) is that where there is a significant imbalance in the economic circumstances of parties to litigation, and there are readily available funds about which a Court can be satisfied that ultimately in s 79 proceedings justice can be done (sometimes referred to as the "reversibility" of Hogan orders) both parties should, as it were, be put on a level playing field with respect to the conduct of the litigation.
The requirement is one of justice and is frequently expressed as each of the parties being on a level playing field in respect of the conduct of the litigation. Mr Dick submits that the circumstances of this case do not bring it within such a principle, there not being here that requisite imbalance.
It seems to me that the submissions made by Mr Dick in respect to the application for a Hogan order are, with respect, well made. I agree with them.
I am certainly also troubled by the fact that, as at the time of hearing this application, I have a very rudimentary and unclear picture of, how, what seems on its surface to be a very large amount of legal fees, have already been expended. I emphasise that, in saying that, I am not necessarily being critical of anyone because I do not know the basis upon which the charges have been incurred and for what they were incurred.
Ms Hay deposes in an affidavit to the allegations of recalcitrance in the production of documents and the like. Those allegations are met by other allegations of recalcitrance by the wife as against her client. But, in the absence of the proper articulation of those fees and the basis for them and, in particular, the absence of the proper articulation of the property of the parties, or either of them, with a view to giving this Court an indication of what property might be situated where and in what circumstances, the Court would be reluctant to make a Hogan order.
At present the only real indication I have is his Honour's reasons for judgment that refer to the property pool perhaps being in a region of about $3.3 million, and Mr Page SC's assertion from the Bar table that the pool was about $4 million. For those reasons I dismiss the husband's application for the Hogan order.
ORDERS DELIVERED [5.52 pm]
I did not say in the reasons either but I think effectively it was conceded by Mr Page SC yesterday, and I think as far as you were concerned as well, Mr Dick, I declined to make orders in respect of the Pajero. I do not understand what course of action exists in respect to it for a start, but leaving that aside I would simply decline to make orders in respect of it.
ORDERS DELIVERED [5.53 pm]
What I will say about this, Mr Balzamo, I know you did not appear yesterday but par 11 seeks an order for the appointment of a single expert with respect to real properties. You can take it that if the values of real properties are not agreed, then I will want to know why the parties have not agreed on the appointment of a single expert with respect to the valuation of real properties. I have indicated that the matter will be listed for directions before a Registrar and that I contemplate that occurring after the report by Mr M is prepared.
I want there to be movement in respect of real property valuations before that directions hearing. So, for your respective instructing solicitors, get moving, and I want to know why a single expert has not been appointed if valuations of real property have not been agreed because my intention is that those valuations will be present before a Registrar when he or she holds that directions hearing. So with that final comment I dismiss the Response.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate
Date: 17 January 2008
0