Atapatu and Atapatu

[2018] FamCA 85

FAMILY COURT OF AUSTRALIA

ATAPATU & ATAPATU [2018] FamCA 85

FAMILY LAW – CHILDREN – PARENTING – No appearance by mother – orders made in accordance with Father’s Further Amended Initiating Application
FAMILY LAW – PROPERTY – No appearance by mother – Orders are made in accordance with Father’s Further Amended Initiating Application

Family Law Act 1975 (Cth)
Guardian and Wards Act 1890 (India)
Hindu Marriage Act 1955 (India)
Protection of Women from Domestic Violence Act 2005 (India)

APPLICANT: Mr Atapatu

RESPONDENT: Ms Atapatu

FILE NUMBER: SYC 5033 of 2015

DATE DELIVERED: 22 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 5 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Millar

SOLICITOR FOR THE APPLICANT: Atkinson Vinden Lawyers

THE RESPONDENT: There was no appearance by or on behalf of the wife

Orders

THE COURT NOTED that the wife was called at 10.04 am and there was no appearance by her or on her behalf.

AND THE COURT ORDERED:

1. Orders are made in accordance with paragraphs 1, 2, 3, 4, 5 and 6 (as amended) of the husband's Further Amended Initiating Application filed on 7 December 2017 as set out hereunder:

   Parenting Orders

   1.That the Applicant Father and the Respondent Mother have equal shared parental responsibility for the child of the marriage, namely B born … 2009 ("the child").

   2.B live with the Applicant Father.

   3.That the Respondent Mother spend time with B in Sydney, New South Wales, Australia whenever the Respondent Mother is in Australia.

   4.That upon the making of this Honourable Court of a Final Order B live with the Applicant Father, that the Respondent Mother in consultation and co-operation with the Applicant Father and at the expense of the Respondent Mother sign all documents and take all such steps as are reasonably necessary to deliver up the child into the full time care of the Applicant Father in Sydney, Australia within twenty eight (28) days of the making of the said Final Orders.

   5.That until such time as B is returned to Australia, the Applicant Father is to communicate with B every second day commencing the day after these Orders and continuing every second day thereafter by Skype between 6.00 pm and 7.00 pm Sydney time.

   6.The Respondent Mother is to make B available for such Skype contact."

1. On the application of the husband and in the absence of the wife, Orders are made in accordance with paragraphs 9, 10, 11 and 12 (as amended) of the husband's Further Amended Initiating Application filed on 7 December 2017 as set out hereunder:

   Financial Orders

   9.That within 7 days from the date of the Orders, the parties do all that is required and sign all documents necessary so as to close the C Bank joint account number …13.

   10.That except as otherwise provided in these Orders, the Husband is declared the sole owner at law and in equity, to the exclusion of the Wife, of all assets of whatsoever kind and nature in his present name, possession and or control, including but not limited to:

   (a)his superannuation;

   (b)the funds held in D Super account …15.

   11.That, except as otherwise provided, the Wife is declared the sole owner at law and in equity, to the exclusion of the Husband, of all assets of whatsoever kind and nature in her present name, possession and control.

   12.That within 42 days, the Husband and the Wife shall do all things and execute all documents necessary to cause the sale of property in India, being E Street, Suburb F, G Town, State H and cause the proceeds of sale to be paid as follows:

   (a)costs of sale

   (b)outstanding charges

   (c)balance as to 42 per cent to the husband and 58 per cent to the wife.”

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atapatu & Atapatu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5033  of 2015

Mr Atapatu

Applicant

And

Ms Atapatu

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 13 November 2015 Mr Atapatu (“the husband”) filed an

   
   

   Initiating Application in the Family Court of Australia, whereby he sought parenting and property orders.  On 10 November 2016 the respondent wife, Ms Atapatu (“the wife”), filed a Response.  She participated in the proceedings, with legal representation, until she filed a Notice of Discontinuance on 12 October 2017.

2. On 30 July 2015 the wife initiated proceedings in India, pursuant to the Protection of Women from Domestic Violence Act 2005.  According to a report from a single expert, Mr J, this legislation does not enable the wife to seek orders in respect of parenting and property settlement.  Mr J opined that for the wife to obtain parenting orders, it would be necessary that she commence proceedings pursuant to the Guardian and Wards Act 1890 or the Hindu Marriage Act 1955, in the Family Court at Delhi.  He opined further that, in order to obtain orders for division of matrimonial property, the wife would be required to commence proceedings pursuant to the Family Courts Act 1984.  It appears that the wife commenced proceedings pursuant to the Family Courts Act 1984 on 18 April 2017.

3. By way of a Further Amended Initiating Application filed on 7 December 2017 the husband sought the following orders:

   "Parenting Orders

   1.That the Applicant Father and the Respondent Mother have equal shared parental joint responsibility for the long term care, welfare, development and guardianship of the child of the marriage, namely B born … 2009 ("[the child]").

   2.[the child] live with the Applicant Father.

   3.That the Respondent Mother spend time with [the child] in Sydney, New South Wales, Australia whenever the Respondent Mother is in Australia and otherwise in accordance with Orders as made by this Honourable Court.

   4.That upon the making of this Honourable Court of a Final Order [the child] live with the Applicant Father, that the Respondent Mother in consultation and co-operation with the Applicant Father and at the expense of the Respondent Mother sign all documents and take all such steps as are reasonably necessary to deliver up the child into the full time care of the Applicant Father in Sydney, Australia within twenty eight (28) days of the making of the said Final Orders.

   5.That until such time as [the child] is returned to Australia, the Applicant Father is to communicate with [the child] every second day commencing the day after these Order (sic) and continuing every second day thereafter by Skype between 6pm and 7pm Sydney time.

   6.The Respondent Mother is to make [the child] available for such Skype contact.

   Financial Orders

   7.That the debt payable to the parents of the Applicant Father and each of them, namely Ms K Atapatu and Mr L Atapatu ("the Applicant Father's parents") as determined by this Honourable Court be paid out by the Applicant Father and the Respondent Mother within twenty-eight (28) days of the making of this Final Order.

   8.That the value in the remaining matrimonial property of the Applicant Father and the Respondent Mother and after payment of the liability referred to in Order 5 hereof be divided between the Applicant Father and the Respondent Mother equally as value and that this Honourable Court make such Orders as are reasonably necessary to give effect to this Order.

   9.That within 7 days from the date of the Orders, the parties do all that is required and sign all documents necessary so as to close the C Bank joint account number …13.

   10.That except as otherwise provided in these Orders, the Applicant Father is declared the sole owner at law and in equity, to the exclusion of the Respondent Mother, of all assets of whatsoever kind and nature in his present name, possession and or control, including but not limited to:

   (a)his superannuation;

   (b)the funds held in [D Super] account …15;

   11.That, except as otherwise provided, the Respondent Mother is declared the sole owner at law and in equity, to the exclusion of the Applicant Father, of all assets of whatsoever kind and nature in her present name, possession and control.

   12.That, within 42 days, the parties do all that is required and sign all documents necessary so as to cause the sale of the property in India, being E Street, Suburb F, G Town, State H (India) and cause the proceeds to be divided between the parties so as to cause an overall division of the asset pool as to 60 per cent to the Applicant Father and 40 per cent to the Respondent Wife.

   Costs

   13.That the Respondent Mother pay the costs of the Applicant Father of and incidental to these proceedings and on an indemnity basis."

4. I granted leave to the husband to amend the relief which he sought in his proposed Order 3, having observed to his counsel that inclusion of the words "and otherwise in accordance with orders as made by this honourable court" would result in a vague and unenforceable order.  The proposed order, as amended, omitted these words.  Similarly, I observed that Order 12 of the husband's proposed relief would create a vague and unenforceable financial order.  On the application of his counsel, I granted leave to the husband to amend Order 12 so as to read as follows:

   12.That within 42 days, the Husband and the Wife shall do all things and execute all documents necessary to cause the sale of property in India, being [E Street, Suburb F, G Town, State H ] and cause the proceeds of sale to be paid as follows:

   a.costs of sale

   b.outstanding outgoing charges

   c.balance as to 42 per cent to the husband and 58 per cent to the wife."

5. In granting such leave, I was informed by counsel for the husband that a division of the proceeds of sale of this property in the ratio of 42 per cent to the husband and 58 per cent to the wife would bring about an overall distribution of the net assets of the parties as to 60 per cent to the husband and 40 per cent to the wife.  These figures were said to have derived from the assets disclosed in the husband's Financial Statement sworn on 7 December 2017.  The wife gave no evidence by way of financial disclosure prior to the filing of her Notice of Discontinuance.

6. As was submitted by counsel for the husband, the wife was on clear notice that he sought an overall distribution of net matrimonial property in the ratio of 60 per cent to 40 per cent in his favour.  That proposition is well evident from his Further Amended Initiating Application filed on 7 December 2017.

7. On 23 November 2017 orders were made by Le Poer Trench J in the following terms:

   PENDING FURTHER ORDER IT IS ORDERED:

   1.I list this matter for hearing on Monday 5 February 2018 for one day, reserving 6 and 7 February in the event that the [wife] makes an appearance.

   2.I direct the [husband] to file and serve any further evidence in respect of the orders he seeks by 7 December 2017.

   3.I direct that in the event of the [wife] seeking to participate in the final hearing to be conducted in this court on 5 February 2018, she is to file and serve any affidavit and response she seeks to rely upon by close of business 19 January 2018.

   4.Service of the further evidence filed by the [husband] by 7 December 2017 is to be effected by Friday 15 December 2017 by the following means:

   a.By forwarding copies of same, together with a copy the (sic) orders made today, to the any (sic) email address known to be used by the [wife];

   b.By arranging service of the documents on the [wife]'s Indian lawyer in relation to matrimonial proceedings she has commenced in India;

   c.By serving copies of the affidavit and the orders on the [wife]'s former solicitor in Australia, being [M Solicitors]

   5.Should the [wife] fail to appear on 5 February 2018, she should know that the court will proceed to hear the [husband]'s application in her absence.

8. Compliance with these directions as to service upon the wife was established by way of four affidavits sworn by the husband's solicitor on 14 December 2017.  The wife filed no material and did not appear at the hearing on 5 February 2018.

Background

1. The husband and the wife, who are aged 43 and 44 respectively, married in India in 2003.  Both parties were born in India.  In 2007 they moved to Australia and became citizens of this country.  They separated on 5 September 2012 and were divorced by order of 3 March 2016.

2. The parties' child B was born in 2009 in Australia.  According to the husband's uncontested evidence, neither the child nor either party currently hold Indian citizenship.

3. The husband maintained that the parties agreed to move to Australia and raise their children in this country before they immigrated in 2007.  He contended that the wife expressed a wish to return to India when the parties' relationship began to break down in 2011.

4. The husband deposed that the parties agreed that the child would accompany the wife to India in 2012 but return to Australia in order to attend primary school in 2014.  The husband maintained that this agreement would apply regardless of whether the wife elected to remain in India or return to Australia.  The wife and the child departed Australia and travelled to India on 5 September 2012.  On 29 December 2014 the wife informed the husband that she would remain in India with the child, despite his objection.

5. In January 2015 the husband initiated a family dispute resolution process in Australia.  He commenced proceedings for divorce on 31 July 2015 and filed an application for parenting orders and property settlement on 13 November 2015.

6. The husband deposed that he communicated with the child by Skype once or twice per week until May 2015.  At this time the wife unilaterally terminated this arrangement.  She stated in an email to the husband dated 10 May 2015:

   "From onwards, I would suggest on ceasing any communication happening through Skype.  Since now you have involved FDR, let FDR make arrangements and suggest protocols on that."

7. The husband travelled to India on 26 March 2015 and returned to Sydney on 7 April 2015.  During that time he saw the child at the home of the maternal grandparents and also took him on outings.  The husband last saw the child on 4 April 2015.  The child last saw his paternal grandparents in March 2013.

8. The husband has been advised that, as a consequence of the wife’s domestic violence proceedings, he is at risk of imprisonment if he returns to India.  He deposed that his Indian lawyer informed him as follows:

   a."If you return to India to appear in court or to try to see your son, there is a high likelihood you will be taken into custody at the airport and incarcerated as a result of [Ms Atapatu's] application to the courts" and

   b."If you attempt to have contact with [the child] through Skype, you will probably be charged with contempt of the orders.  So there will be a high chance that you will be arrested and put in gaol if you set foot on Indian soil."

9. The husband deposed that he travelled to India in August 2015, in order to see the child for his sixth birthday.  He maintained that his Indian lawyer advised him that the wife most likely would apply for an order to prevent him from leaving India, if she became aware that he was in that country.  Consequently, he has not seen or spoken to the child since 2015.

10. The husband deposed that neither party possessed any significant assets at the date of marriage.  He contended that they both earned income during the relationship and contributed to their day-to-day expenses.

11. The husband deposed that the parties purchased a property in India jointly in 2004.  The purchase price was $66,000, of which the husband's parents contributed approximately $29,000.  The parties contributed $6,500 from their joint savings and the balance of the purchase money came from a bank loan.  They discharged this mortgage gradually from their earnings.

Application for parenting orders

1. I am satisfied that the court has jurisdiction to deal with the husband's application for parenting orders pursuant to section 69E of the Family Law Act 1975 (Cth) (“the Act), which provides as follows:

   69E  Child or parent to be present in Australia etc.

   (1)Proceedings may be instituted under this Act in relation to a child only if:

   (a)     the child is present in Australia on the relevant day (as defined in subsection (2)); or

   (b)     the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or

   (c)     a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (d)     a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or

   (e)     it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.

   (2)In this section:

   relevant day, in relation to proceedings, means:

   (a)     if the application instituting the proceedings is filed in a court—the day on which the application is filed; or

   (b)     in any other case—the day on which the application instituting the proceedings is made.

1. Both the husband and the child are Australian citizens and the husband is ordinarily resident in Australia.  Accordingly, the provisions of subsections 69E(c) and (d) confer jurisdiction on the court, despite the fact that the child has lived in India since September 2012.

2. The single expert, Mr J, gave the following evidence in relation to the enforceability in India of final orders for parenting and alteration of property interests made by this court:

   c)If the Australian Court proceeded to make final parenting and matrimonial property division orders, can the Courts and authorities in India enforce such Orders and what is the process involved?  Specifically, can the Courts or other authorities enforce an Australian Order that a child be returned to Australia?

   ■In answer to this question, it may be stated that enforcement of any foreign judgment of any court overseas is possible in India upon the said foreign judgment satisfying the tests and conditions prescribed in Sections 13 and 14 of the Code of Civil Procedure, 1908 (hereafter CPC), which is an Act to consolidate and amend the laws relating to the procedure of Courts of Civil Judicature in India.  For purposes of ready reference, the provisions of Sections 13 and 14 of CPC are reproduced:

   “13.When foreign judgment not conclusive.

   A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they can or any of them claim litigating under the same title except-

   (a)where it has not been pronounced by a Court of competent jurisdiction;

   (b)where it has not been given on the merits of the case;

   (c)where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;

   (d)where the proceedings in which the judgment was obtained are opposed to natural justice;

   (e)where it has been obtained by fraud;

   (f)where it sustains a claim founded on a breach of any law in force in India.

   14.Presumption as to foreign judgments.

   The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record;  but such presumption may be displaced by proving want of jurisdiction."

   ■In view of the above provisions of the CPC, any final judgment or final Order, as and when passed by the Federal Circuit Court of Australia or any other Australian Court of competent jurisdiction, relating to final parenting and matrimonial property division orders, whenever sought to be implemented before the Courts of Delhi, will be tested on the anvil of the statutory provisions of Section 13 and 14 CPC.  The enforcement of any such final judgment/or of an Australian Court can be sought in a court of competent jurisdiction at Delhi by filing a petition and seeking its enforcement.  The Court at Delhi would issue notice to the opposing spouse/parent and upon seeking a response, also consider the tests provided under Section 13 and 14 CPC, before directing the implementation of the final Australian Order.

   ■That in so far any interim, interlocutory or ex-parte child custody order passed by a court of competent jurisdiction in Australia is concerned, since it would not be a final order or judgment, it would not be governed by the tests provided under Section 13 and 14 CPC for implementation in India.  For the implementation of such an interim, interlocutory or ex parte child custody order, the most expeditious remedy would be to invoke the writ of Habeas Corpus under Article 226 of the Constitution of India before the Delhi High Court or under Article 32 of the Constitution of India before the Supreme Court of India at New Delhi.  This is because India is not a signatory to the Civil Aspects of International Child Abduction, 1980, and inter-parental child removal is not defined as a wrong or an offence under any codified and statutory law in India.  Consequently, for the lack of a statutory remedy under Indian codified law, the extra ordinary writ jurisdiction of the High Court or the Supreme Court is invoked in their capacity as "parens patriae", wherein such superior courts decide the matter in the welfare and the best interest of the child.  The exercise of such jurisdiction is a discretionary power of such superior courts and if the matter requires detailed investigation and evidence to be led, parties may be relegated to the Guardian Judge under the Family Courts Act, 1984.

   ■It may be pertinent to point out for the lack of a codified law on the subject of determination of rights in inter-parental child removal matters, judicial precedents have evolved the much needed solution to decide disputes relating to inter-parental child custody matters.  The latest pronouncement of the Supreme Court of India in this regard is the case of "Surya Vadanan vs. State of Tamilnadu, Judgments Today 2015 (3) SC 85, in which certain general directions have been issued.  By this watershed verdict dated 27 February 2015, the Supreme Court directed return of two minor children of six and ten years of age to the UK and laid down salutary principles which can be condensed in the following points hereunder:

   ·          The principles of comity of courts and best interest/welfare of child apply in such cases.  In doing so, the jurisdiction having the closest contact with the child, may take preference in determining child custody issues.

   ·          If the jurisdiction of the foreign court is not in doubt, the first strike principle is applicable i.e. whichever court is first seized of the matter, such court will have jurisdiction.  Rule of comity of courts should not be jettisoned except for compelling special reasons to be recorded in writing.

   ·          Interlocutory orders of foreign courts of competent jurisdiction must be respected.  An elaborate or summary inquiry by domestic courts when there is a pre-existing order of a competent foreign court must be based on reasons and not ordered as a routine.

   The Supreme Court held that following factors ought to be considered.

   Ø    Nature and effect of a foreign court order.

   Ø    Reasons for repatriation / non repatriation.

   ØMoral, physical, social, cultural or psychological harm to the child.

   Ø    Harm to parent in the foreign country.

   Ø    Alacrity in moving concerned foreign court.

   It may be submitted that in the facts and circumstances of the present case, if the Australian Court of competent jurisdiction passes an interim order that the child be returned to Australia, keeping in mind that no proceedings for determination of final child custody/guardianship rights are pending under the Guardian and Wards Act, 1890 of the Hindu Marriage Act, 1955, before the Family Court, …, Delhi, it can be urged that following the theory of "first strike" recognized by the above Supreme Court judgment, the jurisdiction of the Australian Court shall take precedence in deciding issues of final parenting and final custody rights.

   ■However, in rebuttal, it can be urged that there is a restraint order of 04 August, 2015, passed by the Metropolitan Magistrate, under Section 12 of the Protection of Women from Domestic Violence Act, 2005.  That from a perusal of the ex-parte interim orders it may also be pertinent to point out that [Ms. Atapatu] has only got ex-parte interim relief to the extent that [Mr. Atapatu] has been, "….restrained from taking away the custody of the child named [B] from the complainant and also restrained not to threaten or attempt to threaten her in any form, whatsoever, including personal/physical, oral or written or electronic or telephone without due process of law or without taking permission from this Court till further orders in this regard."  A perusal of this ex-parte interim order of 04 August 2015, is self explanatory that this ex-parte interim custody does not bar [Mr. Atapatu] in Australia from seeking settlement/adjudication of parental rights, guardianship/custody rights and final parenting plans in accordance with law.  This is apparent from the exception made out in the said order itself, wherein it is clearly stated that the interim custody order is not limited when the, "due process of law""  is followed.  This means that if [Mr Atapatu] in Australia seeks adjudication of his guardianship/final custody rights and determination of a final parenting plan, as per the, "due process of law", the ex-parte interim order dated 04 August 2015, would find no meaningful application.  Section 21 of the Protection of Women from Domestic Violence Act, 2005 in India, restricts itself only to grant of temporary custody to the aggrieved person i.e. [Ms Atapatu], which would not limit guardianship/final custody rights/parenting plan determination, which rights are specifically saved under Section 26 of this Act and which may find determination before a Civil/Family Court separately, if [Ms. Atapatu] chose to do so in Delhi.  However, this option not having been availed of her as per the instructions furnished, it is unlikely that any benefit will accrue to her to claim pendency of guardianship/final custody matters."

1. On the basis of this expert evidence, I am satisfied that the husband has available processes in India for enforcement of orders of this court.  Accordingly, I am satisfied that the making of such orders would not be a futile exercise.

2. Section 60CA of the Act provides as follows:

   60CA  Child’s best interests paramount consideration in making a parenting order

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1. In determining what orders are in a child's best interests, the court must consider the matters which are set out in section 60CC.  This section provides as follows:

   60CC  How a court determines what is in a child’s best interests

   Determining child’s best interests

   (1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child;

   (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

2. In the absence of any evidence from the wife, it is difficult to make findings in relation to most of the section 60CC considerations. For example, the wife did not adduce any evidence in this court regarding family violence or on what basis she obtained restraining orders against the husband in India.  Nonetheless, I am of the view that certain conclusions can safely be drawn on the strength of the unchallenged evidence of the husband.

3. The uncontradicted evidence of the husband was that he played an active role in the care of the child prior to the child's departure for India.  He deposed as follows:

   33.I bathed [the child] in the morning before I went to work.  I took care of [the child] every evening from my return home from work.  When I returned from work in the evening, I took [the child] to the park to play when it was warm.  I fed [the child], I changed his nappy and put him to bed.  When [the child] woke up during the nights, I would attend to him in his room, comfort him and put him back to sleep.

4. I have no reason to doubt that the child had a meaningful relationship with the husband prior to September 2012 and, most probably, for some time thereafter.  The husband gave unchallenged evidence that he and the child enjoyed regular Skype contact until May 2015.  The wife’s email to the husband of

   
   

   10 May 2015 suggests strongly that her sole reason for unilaterally terminating this communication was that the husband had initiated family dispute resolution proceedings.  If that was the wife's sole motivation, she did not act in a child-focussed manner on this occasion.

5. The husband travelled to India and spent time with the child on several occasions during 2013, 2014 and 2015.  He deposed that the wife permitted only daytime contact at the home of her parents during these visits.  As indicated above, the husband is now most reluctant to travel to India on the basis of legal advice as to the likely ramifications for him of the wife’s domestic violence orders.

6. It thus seems to me that an inference is available that the wife acted unilaterally to attempt to sever the relationship between the child and the husband.  Again, I consider that a reasonable inference can be drawn that these actions of the wife demonstrate a lack of child focus on her part.  This conduct perhaps also casts doubt upon the wife's capacity to meet the child's needs and her attitude to the responsibilities and duties of parenthood.

7. The husband has steadfastly persisted with his attempts to sustain or re-establish a relationship with the child.  His efforts indicate to me that he has an appropriate attitude to the responsibilities and duties of parenthood.

8. The husband deposed to the arrangements which he proposes to put in place, if the child were to live with him and spend time with the wife in Australia.  He deposed that he would move to a larger home so that the child has his own bedroom and that he would enrol him in N School.  The husband deposed further that he would involve the child in religious activities so that he is exposed to both of the religions and cultures of his parents.  The husband indicated that he would place photographs of the wife in the child's bedroom and that he would facilitate communication by telephone and Skype.

9. It seems to me that final parenting orders made by this court would be likely to assist the husband in his pursuit of a relationship with the child.  In light of the wife's unilateral severance of this relationship, I consider that probability to be a relevant matter for present purposes.

10. For these reasons I will make parenting orders as sought by the husband, as amended on the day of the hearing.

Application for property settlement

1. The only evidence in relation to the parties' assets, superannuation and liabilities was contained in the husband's Financial Statement sworn on 7 December 2017.  He deposed to the following assets and superannuation:

($)
1.     E Street, Suburb F, G Town, State H India ("the Indian property')  (Joint)	300,000
2.     D Bank account  (Husband)	120,497
3.     P Bank, C Bank and Commonwealth Bank Accounts  (Husband)	10,200
4.     Shares in Q Ltd (Husband)	3,925
5.     First-rate Wholesale Savers Superannuation  (Husband)	48,000
Total	$482,622

1. It should be noted that the husband deposed in his Financial Statement that his one-half interest in the Indian property has an estimated value of $150,000.  Accordingly I find that the total value of this asset is approximately $300,000.

2. There was no evidence as to the value of the husband's superannuation benefit at the date of separation, which was more than five years ago. It is most probable that there has been a substantial increase in the value of this fund attributable to the husband's post-separation contributions. In these circumstances, I will exclude the husband's superannuation benefit from the list of assets and superannuation. I will take into account the fact that the husband has this benefit pursuant to section 75(2) of the Act.

3. The husband deposed to a liability of $27,723 being a "Help (Education Loan)".  There was no evidence as to when or in what circumstances he incurred this debt and, as noted, the parties have been separated for more than five years.  In these circumstances I will disregard this liability for present purposes.

4. I am comfortably satisfied that it is just and equitable to make orders for alteration of property interests.  As noted, the parties separated more than five years ago and they have not since intermingled their finances.

5. As referred to earlier, the husband gave uncontested evidence that neither party possessed significant assets at the date of the marriage.  He deposed that they both worked and earnt income during their cohabitation.  As noted, the husband deposed also that he participated actively in the day-to-day care of the child.

6. The husband gave unchallenged evidence that the parties purchased the property in India for the equivalent of approximately $66,000 in 2004.  He deposed that they contributed joint savings of about $6,500 and that his parents provided an amount of $29,000, with the balance of the purchase money coming from a bank loan.  As noted, the husband's evidence was that the parties gradually paid out this mortgage from their earnings.

7. The husband deposed that he has contributed to his superannuation benefits since the separation.  As noted above there was no evidence as to the value of this benefit in 2012, thus it is impossible to quantify this increase in the value of the fund.

8. The husband contended that there should be a contribution finding of 60 per cent in his favour.  I accept that submission, because of the significant contribution by his parents of a sum of $29,000 to the total purchase price of the Indian property of $66.000.  I find that the contributions of the parties as at the date of hearing should be 60 per cent to the husband and 40 per cent to the wife.

9. As indicated above, I take into account pursuant to section 75(2) the fact that the husband has the superannuation benefit of $48,000. There was no evidence of the wife's financial circumstances but she has full-time care of the parties' child, albeit without the consent of the husband. The Financial Statement which the husband swore on 7 December 2017 indicated that he pays no child support. In these circumstances, I see no proper basis for an adjustment in favour of either party pursuant to section 75(2).

Result

1. The result is that the net assets of the parties should be divided as to 60 per cent to the husband and 40 per cent to the wife.  I find that the parties have the following assets:

($)
1.     The Indian Property (J)	300,000
2.     P bank, C Bank and Commonwealth Bank Accounts  (H)	10,200
3.     D Bank account  (H)	120,497
4.     Shares in Q Ltd  (H)	3,925
Total	$434,622

1. 60 per cent of $434,622 equates to $260,773.  The husband holds assets to the value of $134,622, being all property except the Indian Property. Accordingly, he requires an additional sum of $126,151 so as to constitute his entitlement of 60 per cent of the net pool of assets.  That amount of $126,151 equates to approximately 42 per cent of the value of the Indian property.

2. Accordingly, the amended Order 12 sought by the husband will effect a division of the parties' assets as to 60 per cent to himself and 40 per cent to the wife.  I am satisfied that this result is just and equitable and I will make the orders sought by the husband.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on

22 February 2018.

Associate: 

Date:  22 February 2018