Arora & Dash (No 4)
[2024] FedCFamC2F 879
•12 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arora & Dash (No 4) [2024] FedCFamC2F 879
File number(s): MLC 12416 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 12 June 2024 Catchwords: FAMILY LAW – property and parenting – application for adjournment granted – allegations of significant fraud brought by the Wife – Wife alleges Husband has failed to disclose very significant taxable income in Country L – Wife asserts fraud and dishonesty of Husband should be taken into account to determine parenting issues – allegations of systems abuse – decision to proceed on an interim basis for parenting orders – Husband to execute power of attorney to authorise Wife’s lawyer to obtain documents in Country L. Division: Division 2 Family Law Number of paragraphs: 32 Date of last submission/s: 13 June 2024 Date of hearing: 12 June 2024 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: MMH Lawyers Counsel for the Respondent: Mr Moisidis Solicitor for the Respondent: Cinque Oakley Bryant Lawyers Solicitor for the Independent Children's Lawyer: Peter Lynch, Peter Lynch Lawyers ORDERS
MLC 12416 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARORA
Applicant
AND: MS DASH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
12 JUNE 2024
NO ORDERS MADE.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
In the matter of Arora & Dash and the Independent Children’s Lawyer, this matter is listed for a final hearing of (expected to be) three days duration from today. The matter was listed for a Final Hearing before me back on 29 February 2024 in orders made by the Chief Judge.
The proceedings involve competing applications for property orders regarding a very modest equity in a property in outer suburban Melbourne. One of the parties allege that there are very substantial assets, or at least financial transactions not disclosed by the other. Prior to the matter being set down for trial, the matter had been before another judge on 6 February 2024.
The basic outline is that the respondent wife is 38 years (‘the Wife’) and employed as a professional. The husband is aged 43 years and asserts that he is unemployed. The parties married in 2015 and commenced cohabitation in late 2015, and they separated on or about October 2022. For a time, the parties lived in Country L. And I understand it, it is common ground that the parties relocated to Australia in about 2018.
The reasons of the judge who dealt with the matter on a review of a registrar's decision on 6 February 2024 are a convenient summary of at least financial issues in the case, in addition to procedural history. Those reasons have not been published, but they were extremely helpful.
I note that it is part of the Wife's case that she alleges that the applicant husband (‘the Husband’) has used the court to engage in systems abuse.
I do not proceed on the basis that the matters that concerned the judge on 6 February 2024 have been found to be fact, rather that they are matters that set the context, or part of the context, for the proceedings before me this day.
Issues
Apart from the financial disputes, the parties are in dispute about the extent to which their child, X, now seven, should spend time with his father. Back on 4 December 2023, it was ordered that an updated family report be prepared. That report was prepared and is dated 7 June 2024, but was only released to the parties on 11 June 2024. That is most unfortunate, because they had been scheduled to attend mediation on the Friday preceding this trial listing, being Friday, 7 June 2024. That mediation was cancelled because of the absence of the report.
Late family report
The Independent Children's Lawyer (‘the ICL’) appears in person before me and apparently has a pretty clear grasp of the parties' positions in the matter. He assures me that there was nothing that was lost by the absence of mediation on that Friday and that, from his perspective, the matter was most unlikely to resolve or even narrow issues.
Power of attorney
The parties duly filed trial material and then on 5 June 2024 the Wife filed an application returnable before me that the Husband execute a power of attorney in favour of the Wife’s Country L lawyer in all of the terms sought in the power of attorney.
The point of that is set out in her affidavit filed on 30 May 2024, that annexed a document that appears to be an attempt at an affidavit by a Country L lawyer, Ms M, sworn on 21 May 2024, or at least attested on 21 May 2024 before a notary public. This contained information (that the Wife said was publicly available information) and that indicated that the Husband, Mr Arora, had been assessed for capital gains tax in Country L in the 2020 year was in the sum of 479,000 Country L currency, in 2021 it was 556,000 Country L currency, and in 2022, 6,770,000 Country L currency.
At the exchange rate agreed by the parties (a search shows that it's roughly one to 6) a capital gain being assessed of roughly 6,700,000 Country L currency would be in the order of AUD $1,000,000. That's corroborated by what will be court's exhibit 1, being a xe.com currency converter search showing that AUD$1 is 6.93 Country L currency as at today.
On the face of the documents, they purport to show a translation of an extract of taxation records of a Mr Arora , and showing capital gains as being assessed as income or taxable income earned as described above. Those amounts were described at paragraph 3 of the affidavit of Ms M attached to the affidavit of 28 May 2024. That document was not in the documents that either party had referred to in their outlines of case. But upon pressing, it was able to be located in a previously filed affidavit, although it was not before me. I will regard exhibit D1 as court's exhibit 2 of this day as it arises from my pressing.
Issue of identification
I raised with counsel that there's likely to be many Mr Arora’s in Country L, or anywhere, given how likely that is to be a common name. That possibility of this being someone else was not disavowed by Mr Arora. The application in a case pressing for the execution of the power of attorney motivated an application for an adjournment by the Wife's counsel of the entire trial before me. It was put as simple as further and better information needed to be obtained as there was, on the face of it, a plausible indication of very substantial assets in the Husband's hands but not disclosed by him.
The affidavit of Ms M on its face did not recite that even the Husband's date of birth was known to her, let alone any other identifying details. On the basis of Ms M's document, there was nothing to identify the documents said to be publicly available in D1 as directly relating to the Husband. Hence, I discussed with counsel many possibilities, including that those documents related to some other Mr Arora and that the Wife was on a wild goose chase.
During that discussion the Wife was able to locate, while sitting in court, on her mobile phone, what she says is a photograph of what she says is an identification document in Country L. Those documents had not been disclosed by either parent and, upon my pressing, were provided to the ICL and to the Husband's lawyers during the hearing before me.
After further discussion, I adjourned the matter to enable the Husband's counsel to take instructions about those documents. Those further documents (that the Wife was able to locate) including what was a photograph of an identification document, were later tendered to me as W1. I gave the parties a bit more than half an hour to take further instructions before those documents were tendered in evidence. Upon the return of the parties, it was asserted that the number in the identification document, being #...53, matched exactly the number on each of the, said to be, taxation records for the 2020, 2021 and 2022 year.
Hence, there was now, once those documents were tendered, a real apparent connection between the documents naming a Mr Arora with the Husband.
Upon return, it was accepted from the bar table by the Husband's counsel that the identification document was, in fact, a Country L driver's licence for the Husband, and the photograph on that document bears a significant resemblance to the Husband and there is no dispute that that is a photograph of him on that document.
The Husband's trial affidavit, filed 30 May 2024, was entirely silent about the documents that had been before the Court on 6 February 2024. That troubled me, which was part of why I pressed for further details to try and get some sort of a preliminary view whether this was a wild goose chase or whether there was real substance, or the possibility of substance, in the Wife's allegations.
The Husband, through his counsel, told me that he simply did not accept the veracity or bona fides or genuineness of the documents that are contained in exhibit W1 (the extract of the Country L taxation records).
I discussed with counsel that, essentially, what the Wife was alleging was a very significant fraud on the Husband's part by simply denying very significant taxable income, with the inference that some of that income was still available to the Husband.
The denial of the bona fides or genuineness of the Wife’s documents shows that the Husband asserts that the Wife had relied upon, and somehow obtained, entirely false documents that linked him to significant income in the Country L taxation system. I will not make a finding on this during this hearing.
Asset pool
The Wife's counsel expressly eschewed the issue of simply proceeding on the basis of a non-disclosure case. On the Husband's case, the trial pool is only in net terms $150,000 with about $125,000 superannuation. The bulk of the pool is tied up, according to the Husband, in an estimated $50,000 of jewellery, which he alleges the Wife should have arranged to be identified for valuation purposes but hasn't. But otherwise, something in the order of $48,000 in equity in a property.
The Husband estimates that the home jointly owned by him and the wife is worth $660,000, and it's encumbered by a mortgage in the order of $612,000, and that mortgage is substantially in arrears. The Wife asserts that she's been able to negotiate a pause on that mortgage, but by her counsel tells me that the bank is expecting to know the outcome of the proceedings from this trial hearing.
Adjournment application
Adjournment applications made on the day of trial simply get the judge’s back up. This matter being listed means another case was not listed, in fact, two cases were listed this day and, of course, it's impossible to hear two three-day cases at once. The other case has requested to be stood down for discussions and may well resolve. That meant that I could have heard this case, and I may have chosen to hear it in priority to the other matter, in any event, but it simply means another case is still waiting to be heard because the court allocated three days of hearing time to this case. Hence, it is with the greatest reluctance that I contemplate adjourning the matter.
Wife’s allegations against the Husband
However, I should also add that the Wife's case is that the extent of the fraud and the dishonesty and the abuse of the court processes are very relevant to the resolution of the Husband's time with the child, X. At this point, I don't dismiss that they may well be relevant. So, in the children's proceedings, there are quite detailed opposing allegations of significant family violence from one parent to the other. Further, there is on face value some evidence to corroborate, or that could corroborate, the allegations of each parent against the other.
Considerations of Father’s time with child
In the meantime, from proceedings that commenced in November 2022, we have young X, seven years old, who sees his father day time only on alternate weekends. The further deferral of the consideration of his welfare troubled me greatly. The ICL presses for what he describes as an "interim review" of X's arrangements in the event that both property and children's matters final orders are adjourned. That is also pressed by counsel for the Husband and ultimately not opposed by counsel for the Wife. Initially, the Wife's position was that the existing arrangement should simply be maintained until the matter was able to be returned.
Proceed as an interim hearing
With the benefit of W1 that provides at least a possible or potential link between the documents the Wife asserts are genuine extracts of Country L public records, I'm satisfied that it's not appropriate to proceed to hear, as a final matter, the property orders.
In the circumstances of the Wife's case, and the Husband's denial of it, being the use of court proceedings to coerce the other party, and significant, not only non-disclosure, but false statements or the use of false documents by one or other party, I am satisfied that it is in the interests of justice that the final orders about X and the applications for final orders about the property matters should be heard together. For those reasons, I will adjourn both matters.
I'm not satisfied that the matter is a three-day case given the bulk of the applications. As a general rule, matters that are going to exceed three or four days should be transferred to Division One of the Court. However, I'm not satisfied that that's appropriate in the circumstances of this case.
It is my intention, subject to further submissions from counsel to fix the matter as a special fixture before me on Monday 18 November 2024. That will enable both parties to make any further enquiries as to their respective cases in regard to the Country L taxation records aspect of the case. They are my reasons, and I will proceed as an interim hearing.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 9 July 2024
0
0