ASGAR & KASSAB
[2020] FCCA 391
•2 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASGAR & KASSAB | [2020] FCCA 391 |
| Catchwords: FAMILY LAW – Parenting – no opposition to orders sought. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 79 |
| Cases cited: Bevan & Bevan [2014] FamCAFC 19 |
| Applicant: | MS ASGAR |
| Respondent: | MR KASSAB |
| File Number: | PAC 654 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 11 November 2019 |
| Date of Last Submission: | 11 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 2 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fermanis |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| Appearing for the Respondent: | Mr Livers |
| Solicitors for the Respondent: | Slattery Thompson Solicitor |
ORDERS
The applicant shall have sole parental responsibility for the children X born in 2004, Y born in 2005 and Z born in 2009.
The children shall live with the applicant.
The children shall spend time with the respondent as agreed between the parties.
The respondent shall do all acts and things and sign all documents necessary to transfer his right, entitlement and interest in the land situate and known as A Street, Suburb B in the State of Victoria; and being the whole of the land situate in Crown Allotment to the applicant and the respondent shall be responsible for all costs associated with such transfer.
Within 28 days of the date of these orders, the respondent shall pay to the applicant the amount of $8,820 to an account nominated by the applicant.
Subject to the orders herein each party is declared to be the sole and beneficial owner of all property whether in the sole name of that party or jointly with anyone else that is in the possession or control of such party including but not limited to bank accounts, motor vehicles, and interest in any superannuation fund.
In the event that either party refuses or neglects to sign or execute any document, instrument or writing or comply with any order herein after seven (7) days of being requested to do so by the other party in writing, then the Registrar of this Court be empowered pursuant to s.106A of the Family Law Act 1975 to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to the Orders herein.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Asgar & Kassab is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 654 of 2016
| MS ASGAR |
Applicant
And
| MR KASSAB |
Respondent
REASONS FOR JUDGMENT
Introduction and Commencement of Proceedings
These are the Reasons for Judgment with respect to property and parenting proceedings between the applicant, Ms Asgar and the respondent Mr Kassab.
The proceedings were commenced by the applicant pursuant to an Initiating Application filed on 8 May 2017, amended on 16 February 2018. The respondent filed a Response on 15 November 2017.
The applicant and respondent both seek final property orders pursuant to section 79 of the Family Law Act1975 (“the Act”). In addition, the applicant also seeks parenting orders which remain unchallenged by the respondent.
The Law
The law in respect of how property adjustment applications and parenting applications are to be approached is well settled. It is useful though to set out in summary form, the approach which will be adopted in determining the issues presently before the Court.
In respect of parenting
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a children’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect a children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[3] McCall & Clark at [122]
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA of the Act which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA of the Act is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4 at [15]
In respect of property
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 was set out by the High Court in Stanford v Stanford,[5]where their Honours stated:
[5] [2012] HCA 52; (2012) 247 CLR 108
[37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
…
[40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4) …
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[6], Chapman & Chapman[7] and Scott & Danton[8].
[6] [2014] FamCAFC 19
[7] [2014] FamCAFC 91
[8] [2014] FamCAFC 203
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c) of the Act, the matters set out in s.79(4)(d) to (g) of the Act, and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) of the Act, in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[9]
[9] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”[10]. Determining whether an order is just and equitable requires the Court to know the assets and liabilities held by each party.
[10] Bevan supra at [86]
Both parties are obliged to make full and substantive disclosure of their financial affairs. [11] Where there is clear evidence of non-disclosure, as is the case in this matter, the Court should not be unduly cautious about making findings in favour of the innocent party.[12]
[11] Black & Kellner (1992) FLC 92-287
[12] In the Marriage of Weir (1992) 16 FamLR 154
Relevant Findings
The evidence in the proceedings, particularly in the respondent’s case was very limited. Many matters were simply either not addressed in the evidence or were inadequately addressed.
The Applicant was born in 1968 and is currently 51 years of age.
The respondent was born in 1958 in Country C and is currently 61 years of age.
The Respondent migrated to Australia in 1999.
In or about 2000, the respondent purchased a unit in Suburb D for approximately $90,000. It appears the respondent borrowed about $60,000 from a lender to fund part of the purchase. There is no evidence as to how the balance of the purchase was funded, nor is there any evidence about the respondent’s earnings and/or savings at the time.
The parties met in Country E in 2000 and were married that same year. The Applicant subsequently migrated to Australia in 2002.
The parties commenced cohabitation at the property situated on F Street, Suburb D in the state of New South Wales (“the F Street, Suburb D property”). The property was purchased for $275,000, by the respondent, after he sold the F Street, Suburb D unit, shortly before the applicant arrived to Australia.
In or about 2003 the F Street, Suburb D property was sold.
According to the respondent, the F Street, Suburb D property was sold for $415,000. The net proceeds of sale, after repayment of a $117,000 mortgage, were it appears approximately $300,000. There is no evidence as to what, if any, other costs of the sale were. There is no evidence in the respondent’s case as to how the funds from the sale were utilised.
According to the applicant, the F Street, Suburb D property was sold for $400,000 and the mortgage secured against it was approximately $200,000. As such, the net proceeds of sale were $200,000.
After the sale of the F Street, Suburb D property and until separation the parties rented a house in the amount of approximately $425 to $460 per week.
The applicant believes that the proceeds of sale from the F Street, Suburb D property were used by the respondent to purchase a business in Suburb G which the respondent operated from 2004 with two trucks.
The parties’ first child, X was born in 2004 and is currently 15 years of age.
The parties’ second child, Y was born in 2005 and is currently 14 years of age.
The business was sold in 2008, the applicant believes for about $100,000 whereas the respondent asserts it was $90,000. Also in or about 2008, the respondent sold one of the trucks, he says for about $28,000 while the applicant says it was approximately $70,000 to $80,000. In any event, at or around the same time, the respondent invested about $90,000 in another business deal, which did not succeed. It appears that the entire investment was lost.
The applicant was not in paid employment during the marriage but it is asserted that she also assisted the respondent with the bookkeeping and taxation aspect of the business. The applicant did not receive any wages for this assistance. The respondent says that the applicant never assisted him in his business ventures. Given the applicant’s lack of knowledge as to the respondent’s assets and income, it is difficult to accept that she took on any meaningful role in the business.
The parties’ third child, Z was born in 2009 and is currently 11 years of age.
In about 2010 the respondent started the business ‘[H]’ and it is agreed amongst the parties’ that the Respondent continues to carry on the business as a labourer.
In about 2010 the respondent purchased the property situated on A Street, Suburb B in the state of Victoria for $115,000 (“the A Street, Suburb B property”). The rural property included an additional two parcels of land and water entitlements.
On 15 June 2011 the respondent received a ‘Notice of Intention to Acquire’ from Region J Water and in reply the Respondent sent correspondence to Region J Water requesting compensation on 23 April 2012.
In about 2012 the respondent subdivided the rural property and sold Lot 1 of the A Street, Suburb B Property for $50,000. The purchase of the block proceeded without any access to water.
On 20 January 2015 the parties became separated.
In about September 2015 the respondent and Region J Water entered into a connection agreement regarding the water access to Section D of the A Street, Suburb B property. The deed set out for compensation payment to the respondent in the amount of $37,058.
Payments were made to the respondent in four instalments between the dates 11 November 2015 to 16 March 2017.The respondent has not provided any documents which show how these funds were spent, although his evidence is that the moneys were used to pay sub-contractors who were engaged to do the work which was part of the agreement with Region J Water.
In about November 2015 the applicant withdrew approximately $11,000 from the respondent’s bank account. She says she used the funds to pay for the children’s schools.
On 27 March 2017 the respondent’s share of the A Street, Suburb B property was assessed and valued at $50,000.
On 8 May 2016 the parties divorce became final.
On 8 May 2017 the applicant instigated these court proceedings.
Pool of Assets
The Court finds that the property pool consists of at least the following:
Asset
Owner
Value
Land situate at A Street, Suburb B
Respondent
$50,000
‘[H]’ Business
Respondent
$5,000
Household Contents and Furniture
Respondent
$2,500
Motor Vehicle 1
Respondent
$2,000
CBA account ending with #...49
Applicant
$463
CBA account
Respondent
$27,298
Household Content and Furniture
Applicant
$2,000
Motor Vehicle
Applicant
$4,000
TOTAL:
$93,261
The applicant does not have any superannuation and any superannuation entitlements of the respondent are not known.
Allegations of Family Violence
The applicant asserts family violence during the parties’ marriage. She says that the respondent was physically abusive to the children, and that he was verbally abusive towards her. The respondent denies the allegations. Neither party was cross-examined at length in respect of these allegations. The applicant states that her failure to report any of these allegations to police was because she “did not know the laws of Australia”.
The applicant does not make any argument in respect of the property application that such conduct made her contributions more arduous, nor does she make any argument in the parenting proceedings that the children are at risk whilst with the respondent. Therefore, the only relevance of the allegations is to determine whether the presumption of equal shared parental responsibility has been rebutted.
The allegations are quite extraordinary in their severity. In particular:
(1)The applicant alleges that in or about 2010 or 2011 the respondent punched the child Y on the nose with a closed fist. The child was about five or six years of age at the time. The applicant alleges that the punch was such that it caused “a heavy flow of blood to stream from her nose.” The child was not taken to the doctor. It is not alleged that she suffered any bruising as a result of a punch to the nose.
(2)When the child X was around 8 years old, the respondent is alleged to have pulled her by the ears and to have “dragged her across the other side of the room” causing her to scream and cry in pain. The child was then apparently “… in pain and unable to touch her ears on a daily basis for a period of six (6) months in which she required assistance to wash her hair and was unable to shower on her own due to the pain.” X was a school age child at the time. There is no evidence of any reports made by the school in respect of this alleged assault which apparently left the child with significant discomfort and temporary disability for a lengthy period of time.
If these allegations are correct, the abuse which the children suffered was significant. However, the allegations are very grave and having regard to s.140 Evidence Act1995 (Cth) the Court is not satisfied that those two particular allegations have been proven on the balance of probabilities.
The applicant also alleges that the respondent encouraged the children to insult and disrespect her. The applicant states “If the children spat at me or hit me he did not tell them to stop or correct their behaviour”. The applicant recalls an occasion in 2013 or 2014 when the children apparently locked her outside of the house. No detail is provided, and in particular it is unclear whether the respondent is said to have been somehow involved. It is difficult to see how the children’s bad behaviour towards the applicant in the circumstances alleged could amount to family violence[13] by the respondent.
[13] Within the statutory meaning
Another allegation, said to be of family violence, made by the applicant against the respondent is that in approximately 2013 the respondent “inappropriately” hosed the children down with water and allowed them to play in dirt without discipline right before bed, leaving the applicant to clean up. No submissions were made as to how these asserted facts might fall within the definition of family violence.
On balance, the Court is not satisfied that the applicant has established on the evidence any family violence at the hands of the respondent. Consequently there are not reasonable grounds to believe that a party has engaged in family violence such that the presumption of equal shared parental responsibility has been rebutted.
The applicant seeks an order for sole parental responsibility. The respondent does not challenge that order being made. Given the lack of engagement by the respondent in these proceedings it is difficult to envisage a situation where he might now become engaged in respect of the long term decisions regarding his children. It is appropriate in all of the circumstances for an order to be made for the applicant to have sole parental responsibility for the children.
The children still attend school. They live with the applicant and will continue to live with her. She is their primary carer and the person who is responsible for meeting most, if not all of their needs. The respondent is and continues to be partly financially responsible for the children. He also spends time with them as agreed between the parents, although the applicant says that the respondent only sees the children when it suits him. The respondent says he helps the children with their school work when he sees them. He does not seek any parenting orders per se.
Property Adjustment Determination
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the common use of property by the parties.
The parties lived together for approximately 12 ½ years.
At the commencement of the relationship the applicant did not have any assets, while the respondent was the owner of the unit in F Street, Suburb D. There is no evidence as to the value of the property at the commencement of cohabitation. That property was sold and the proceeds were used to buy the F Street, Suburb D property, where the parties lived together for a number of years. The applicant, also contributed, albeit in an indirect way, towards the conservation of that property.
During the time of their marriage the applicant was the primary homemaker and tended to all homemaking duties such as cooking, cleaning and clothes washing for the family. She has continued to do so for the children after separation.
When the A Street, Suburb B property was purchased in 2010, there was no funding used to secure that purchase. It is therefore open to the Court to infer that the purchase was funded from the proceeds of sale of the F Street, Suburb D property. Part of that property was sold and the proceeds of sale have been retained by the respondent, except in so far as the applicant withdrew some moneys from the respondent’s account in 2015.
Both parties submit to the Court that their contributions are equal. The Court accepts the parties’ submission in this regard.
The applicant is currently in receipt of Centrelink benefits, while the respondent continues to work. The balance sheet handed up at hearing contains an assertion that the applicant has a debt to Centrelink in the amount of $26,149. There is no evidence as to how this debt arose or when it arose.
The respondent has an earning capacity which is much greater than that of the applicant. He will retain the business which he has now operated for a number of years and which earns him a reasonable income. The applicant has very limited financial resources.
Both parties are in relatively good health. There is no expert opinion which would suggest otherwise, albeit both parties proffer opinions and hearsay as to some difficulties that they may be suffering from.
The pool is very modest.
The Court finds that the respondent has not complied with his obligation for full and frank disclosure. Such evidence was and must have been particularly been available to the respondent, who was the owner of the relevant properties at all relevant times. As such, it is appropriate to err on the side of generosity to the party who might otherwise be seen to be disadvantaged by the lack of candour[14]; in this instance the applicant.
[14] Kannis & Kannis [2002] FamCA 1150 at [51]
It is appropriate in all of the circumstances, given the findings above, for there to be a higher adjustment in favour of the applicant.
As such, a further adjustment of 20% is in all of the circumstances, just and equitable. Given that the pool is $93,261 the applicant will receive 70% of the pool, which is $65,283.
As such, the applicant is to receive by way of property adjustment orders:
Asset
Owner
Value
Land situate at A Street, Suburb B
Respondent
$50,000
CBA account ending with #...49
Applicant
$463
Household Content and Furniture
Applicant
$2,000
Motor Vehicle
Applicant
$4,000
Payment from Respondent
($8,820)
TOTAL:
$65,283
And the respondent is to receive:
Asset
Owner
Value
‘[H]’ Business
Respondent
$5,000
Household Contents and Furniture
Respondent
$2,500
Motor Vehicle 1
Respondent
$2,000
CBA account
Respondent
$27,298
Less payment to Applicant
$8,820
TOTAL:
$27,978
Conclusion
The result in all the circumstances is appropriate.
Orders as set out at the forefront of these Reasons are therefore made.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 2 March 2020
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Costs
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Jurisdiction
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