FEDERAL CIRCUIT COURT OF AUSTRALIA
| BADAL & SHAH | [2019] FCCA 2412 |
| Catchwords: PROPERTY – Final property Orders – adjustment of property interests under section 79 of the Family Law Act 1975 (Cth) – consideration of contributions and section 75 (2) factors – No issue of principle – Orders made adjusting the parties’ property interests at 63% in wife’s favour. |
| Legislation: Family Law Act 1975, ss.4, 60B(1), 60B(1)(a), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(2)(b), 60CC(3), 60CG, 61B, 61C, 61DA(1), 61DA(2), 61DA(4), 65DA, 65DAA(1), 65DAA(2), 65DAA(5), 65DAC, 65DAC(1), 65DAC(2), 65DAC(3), 70NAE, 75(2), 79, 79(2), 79(4), 90SM, 106A Evidence Act 1995 (Cth), s.140 |
| Cases cited: Moose & Moose [2008] FamCAFC 108 The meaning of meaningful: musings on some key provisions of the Family Law Amendments of 2006 (Richard Chisholm) |
| Applicant: | MS BADAL |
| Respondent: | MR SHAH |
| File Number: | PAC 3599 of 2016 |
| Judgment of: | Judge Tonkin |
| Hearing dates: | 7, 8, 9 May 2018, 5 and 6 November 2018 and 15 July 2019 |
| Date of Last Submission: | 31 July 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Schroder |
| Solicitors for the Applicant: | Sharon Payne Family Lawyers |
| Counsel for the Respondent: | Mr Blackah |
| Solicitors for the Respondent: | Godden Lawyers |
ORDERS
Parenting
The parties shall have equal shared parental responsibility for the child, X born in 2014 (hereinafter “X”.)
X shall live with her mother.
X shall spend time with her father during school term as agreed between the parties, but failing agreement as follows:
(a)From the date of these orders until 1 January 2021:
(i)In week one from after school or 4:00 pm Wednesday until before school or 9:00…
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- BADAL & SHAH [2019] FCCA 2412
- Case
- [2019] FCCA 2412
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child in relation to parenting orders, specifically addressing issues of family violence, past communication problems, and differing parenting styles. In the property proceedings, the court needed to make final orders adjusting the parties' property interests, considering their respective contributions and future needs.
In its reasoning, the court made findings regarding the allegations of family violence, noting that the mother alleged she had been a victim of family violence by the father, who denied these allegations. The court ultimately made orders for equal shared parental responsibility, with the child to live with the mother and spend substantial and significant time with the father, determining this arrangement to be in the child's best interests. For property, the court made orders adjusting the parties' interests at 63% in the wife's favour, finding no issue of principle arose in this determination.
The court ordered equal shared parental responsibility for the child, who was to live with the mother and spend substantial and significant time with the father, with detailed provisions for the father's time during school terms and holidays, including specific arrangements for birthdays and other significant events. In relation to property, the husband was ordered to transfer his interest in the former matrimonial home to the wife within sixty days, simultaneously with the wife paying the husband $132,766. The wife was to have exclusive occupation of the property upon settlement, and the husband was to vacate. The court also made orders regarding the distribution of proceeds if the property were sold, the transfer of joint bank accounts, and the division of other assets and debts, ultimately declaring each party to have sole right, title, and interest in property in their possession or standing in their sole names, subject to the specific orders made.
Orders
Orders of the court
Parenting
1.
The parties shall have equal shared parental responsibility for the child, X born in 2014 (hereinafter “X”.)
2.
X shall live with her mother.
3.
X shall spend time with her father during school term as agreed between the parties, but failing agreement as follows:
(a) From the date of these orders until 1 January 2021:
(i) In week one from after school or 4:00 pm Wednesday until before school or 9:00 am on Thursday; and
(ii) In week two from after school or 4:00 pm Friday to 5.00 pm Saturday.
(b) From 1 January 2021 until 1 January 2023:
(i) In week one from after school or 4:00 pm Wednesday until before school or 9:00 am on Thursday; and
(ii) In week two from after school or 4:00 pm Friday to 5 pm Sunday.
(c) From 1 January 2023 and thereafter:
(i) In week one from after school or 4:00 pm Wednesday until before school or 9:00 am on Thursday; and
(ii) In week two from after school of 4:00 pm Friday to before school or 9.00 am Monday.
4.
From the date of these orders X shall spend time with her father during school holidays as agreed between the parties, but failing agreement as follows:
(a) In the midyear school holiday periods:
(i) In 2019 in the first half of each mid-year school holiday period from 10.00 am on the first Saturday until 10.00 am on the following Tuesday;
(ii) In 2020 in the second half of each mid-year school holiday period from 10.00 am on the second Saturday until 10.00 am the following Wednesday;
(iii) In 2021 in the first half of each mid-year school holiday period from 10.00 am on the first Saturday until 10.00 am the following Thursday;
(iv) In 2022 in the second half of each mid-year school holiday period from 10.00 am on the second Saturday until 10.00 am the following Friday;
(v) From 2023 for the first half of the mid-year school holiday period and thereafter each year ending in an odd number; and
(vi) From 2024 for the second half of the mid-year school holiday period and thereafter each year ending in an even number.
(vii) X shall otherwise spend the remainder of the mid-year school holiday time with her mother.
(viii) Unless otherwise specified in these orders, the school holiday period is deemed to commence at 4.00 pm on the day school breaks up and to end at 4.00 pm on the day before X returns to school. One half of the school holiday period is to be calculated by dividing by two the total number of days X does not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in other years.
(b) In the long Christmas/summer school holiday periods:
(i) In 2019/2020 from 10.00 a.m. on the first Saturday until 10 a.m. on the following Tuesday and from 10.00 a.m. on the fourth Saturday until 10.00 a.m. the following Tuesday;
(ii) In 2020/2021 from 10.00 am on the second Saturday until 10.00 am the following Wednesday and from 10.00 am on the fifth Saturday until 10.00 am the following Wednesday;
(iii) In 2021/2022 from 10.00 am on the first Saturday until 10.00 am on the following Thursday and from 10.00 am on the fourth Saturday until 10.00 am the following Thursday;
(iv) In 2022/2023 from 10.00 am on the second Saturday until 10 a.m. the following Friday and from 10.00 am on the fifth Saturday until 10 a.m. the following Friday;
(v) In 2023/2024 for the first, third and fifth weeks commencing at 10.00 am on Saturday and concluding at 10.00 am the following Saturday during the long Christmas/summer school holiday period; and
(vi) In 2024/2025 for the second half the long Christmas/summer school holiday periods and each alternate year thereafter; and
(vii) In 2025/2026 for the first half of the long Christmas/summer school holiday periods and each alternate year thereafter.
(viii) X shall spend the remainder of the long Christmas/summer school holiday period with her mother.
5.
Unless otherwise agreed, notwithstanding these orders:
(a) If X’s birthday falls on a school day, X shall spend time with the parent she is not living with from the conclusion of school until 7.00 pm;
(b) If X’s birthday falls on a non-school day, X shall spend time with the parent she is not already spending time with, for a period of four hours as agreed between the parties, and failing agreement on her birthday from 3:00 pm until 7:00 pm;
(c) If a parent’s birthday falls on a day that X is not otherwise living with that parent, X shall spend time with that parent as follows:
(i) If a parent’s birthday falls on a school day, X shall spend time with that parent from the conclusion of school until 7.00 pm;
(ii) If a parent’s birthday falls on a non-school day, X shall spend time with that parent for a period of four hours as agreed between parties, and failing agreement on that parent’s birthday from 3:00 pm until 7:00 pm;
(d) For the purpose of celebrating Diwali, X shall spend time with the parent she is not otherwise spending time with as follows:
(i) If Diwali falls on a school day, from the conclusion of school until 7.00 pm;
(ii) If Diwali falls on a non-school day, for a period of four hours as agreed between parties, and failing agreement from 3.00 pm until 7.00 pm;
(e) X shall spend time with her mother from 4.00 pm on the Saturday preceding Mother's Day until 4.00 pm on Mother's Day; and
(f) X shall spend time with her father from 4.00 pm on the Saturday preceding Father’s Day until 4.00 pm on Father’s Day; and
(g) X shall spend time with the parent she is not living or spending time with, from 2.00 pm on Christmas Day until 4.00 pm 26 December.
6.
Should X spend overnight time at a place other than a parent’s residential address, the relevant parent shall notify the other parent in writing seven days in advance regarding:
(a) The address and contact details of the place where X will be staying; and
(b) The means of transport to the place where X will be staying.
7.
If a party is unable to personally care for X during his or her time, that party shall notify the other parent as to the alternate arrangements made for X.
8.
Each party shall consult the other prior to enrolling X in any organised activity that may impact on X spending time with the other parent and obtain that parent’s written consent to X participating in that activity.
9.
Unless otherwise agreed, changeover shall occur at X’s school on school days and on non-school days the father shall collect X at the commencement of time from the mother’s home and the mother shall collect the child at the conclusion of time from the father’s home.
10.
In the event that either party is unavailable to personally collect X he or she shall advise the other party of the nominee appointed to collect X.
11.
Each party with whom X is living and/or spending time shall permit X to telephone the other party when she requests to do so at all reasonable times.
12.
The parties shall communicate about matters concerning X through the “Our Family Wizard” application and/or email or text.
13.
Each party shall keep the other party informed regarding his or her current residential address, mobile and email contacts at all times.
14.
The parties are at liberty to apply for an Australian Passport for X and to give effect to that order each party shall sign all necessary documents.
15.
The mother shall retain X's Australian Passport in her control save on occasion when the parties agree to X travelling outside the Commonwealth of Australia with the father.
16.
In the event that the parties consent to X travelling outside the Commonwealth with her father, the mother shall provide to the father X's Australian passport two weeks prior to the intended date of departure, and the father shall return X's Australian passport to the mother within two weeks of X's return to Australia.
17.
The parties are restrained from removing X from the Commonwealth of Australia without the consent in writing from the other party.
18.
In the event that a parent has the written consent of the other party to travel internationally with X removing her from the Commonwealth of Australia temporarily the following conditions apply unless otherwise agreed in writing:
(a) The international travel shall occur during school holiday periods as far as is practicable;
(b) Each party shall make a reasonable effort to accommodate the other party’s international travel arrangements on the basis that if travel encroaches on the other party’s time with X, reasonable make up time will be negotiated prior to travel;
(c) The travelling party shall give the other party at least 28 days' notice in writing of the proposed international travel;
(d) Not less than seven days prior to departure the travelling party shall provide to the other party copies of return tickets for X, a full itinerary setting out the names of the people with whom X will be staying, the addresses at which X will be accommodated while away and at least one emergency contact number while X is out of Australia;
(e) The travelling party shall ensure X has a telephone which is fully charged and able to receive calls from the other party at any reasonable time whilst X is travelling internationally;
(f) The travelling party shall ensure that X telephones the other party at least twice each week while X is outside Australia; and
(g) The travelling party shall contact the other party to confirm X's return within three hours of arrival in Australia.
19.
In the event that the parties are unable to reach agreement with respect to X travelling internationally, they shall first engage in mediation with a qualified mediator and make a genuine attempt to reach a reasonable compromise before commencing proceedings for international travel.
20.
The parties are restrained from relocating X's residence more than 20km from the Street A, Suburb B area without the written consent of the other party.
21.
Each party shall notify the other party as soon as practicable regarding any medical emergency that arises in relation to X while in that party’s care and shall provide the details of any hospital and/or medical treatment and the other party is at liberty to immediately attend upon any hospital and/or medical practitioner with respect to any medical emergency involving X.
22.
Each party shall inform the other party of any ill health suffered by X while in that party's care, including details of the nature of that illness, any medical treatment sought and any medications provided to X (whether prescribed or otherwise).
23.
These orders shall constitute an authority for both parties to liaise with X’s treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to X.
24.
The parties are at liberty to provide a copy of these orders to the school attended by X from time to time, and these orders shall constitute an authority for both parents to be at liberty to:
(a) receive copies of all school reports, notices, newsletters and like correspondence customarily provided to parents; and
(b) attend all school concerts, functions, parent teacher interviews and any other events customarily attended by parents.
25.
The parties are restrained from:
(a) harassing, verbally abusing, denigrating and/or threatening the other party (or members of the other party’s family) in the hearing or presence of the child; and
(b) discussing these proceedings in the hearing or presence of X.
Property
26.
Within sixty (60) days of the date of these Orders the Husband shall do all acts and things and sign all documents necessary to transfer to the Wife all his right title and interest in the property situate and known as Street A, Suburb B, NSW, ("the Street A, Suburb B Property").
27.
Simultaneously with Order 26, the Wife shall pay the Husband the sum of one hundred and thirty two thousand, seven hundred and sixty six dollars ($132,766) by way of a bank cheque payable to the Husband's solicitor or as otherwise directed in writing by the Husband’s solicitor.
28.
No later than 5.00 pm on the day on which the Street A, Suburb B Property is transferred to the Wife pursuant to these orders (“the settlement date”), the Husband shall vacate the Street A, Suburb B Property and the Wife shall thereafter have exclusive occupation of the Street A, Suburb B Property; and so as to give effect to this Order, the Husband shall deliver to the Wife’s solicitor all sets of keys, codes or devices in the possession and/or control of the Husband for all locks, gates, doors and security systems on the Street A, Suburb B Property by no later than 5.00 pm on the settlement date.
29.
Pending the transfer of the Street A, Suburb B Property:
(a) The husband shall be responsible for all mortgage repayments, including arrears, interest payments, statutory rates and charges, other utilities, insurances, outgoings and expenses in relation to the Street A, Suburb B Property, and the Husband shall make all such payments as and when they fall due up to and including the settlement date; and
(b) Neither party shall redraw on any part of the Commonwealth loan facilities secured by mortgage over the Street A, Suburb B Property, or further encumber the Street A, Suburb B or increase any debt secured by mortgage over the Street A, Suburb B Property without the consent in writing of the other party.
30.
To complete the transfer (by “the transferor”) and the payment (by “the transferee”) pursuant to Orders 26 and 27 hereof, the following shall apply:
(a) The transfer documentation will be prepared by the transferee's solicitor and delivered to the transferor’s solicitor for signature by the transferor, and the transferor shall duly execute the transfer documentation within seven (7) days of receipt by his solicitor;
(b) If the transferee requires the return of the transfer documentation for stamping purposes, then:
(i) The transferee’s solicitor will advise the transferor of this requirement at the time the transfer documentation is delivered.
(ii) The transferor will then sign and deliver the transfer to the transferee' s solicitor within seven (7) days of signing the transfer documentation;
(iii) The transferee’s solicitor will hold the transfer in escrow and use this transfer for stamping purposes only pending settlement.
31.
In the event that the wife fails or neglects to pay to the husband the sum of $132,766 then the parties shall forthwith join and do all acts and things and sign and execute all deeds, documents and instruments necessary to effect the sale of the former matrimonial home situate at and known as Street A, Suburb B, NSW by public auction at an agreed price and failing agreement at a price determined by an independent valuer agreed upon between the parties which decision shall be final and binding upon the parties.
32.
In the event that the parties are unable to agree upon an auctioneer, the auctioneer shall be nominated by the Real Estate Agent marketing the property.
33.
For the purposes of these orders, the parties shall do all act and things necessary to cause the property to be sold by way of public auction on the following terms:
(a) Such auction take place within six weeks from the date of placing the property for sale by public auction or as soon as practicable thereafter;
(b) The agent be as agreed between the parties or failing agreement for more than seven (7) days, as appointed by the President for the time being of the Australia Property Institute Inc (NSW Division) whose decision shall be final and binding upon both parties;
(c) The reserve price for such auction be as agreed between the parties or failing agreement as determined by the selling agent;
(d) The parties shall pay equally all auction expenses as requested by the selling agent as and when they fall due;
(e) Either party be at liberty to bid or purchase of the property at auction;
(f) The parties are permitted to attend the auction and, if necessary, negotiate with the highest bidder at auction if the reserve price is not reached.
34.
Upon completion of the sale of the property the proceeds of sale are to be distributed in the following order and priority:
(a) To discharge the mortgage presently encumbering the Street A, Suburb B property with the Commonwealth Bank of Australia;
(b) To discharge any outstanding council and/or water rates;
(c) In payment the real estate agents commission arising from the sale;
(d) In payment of legal costs and expenses arising from the sale;
(e) In payment of any other expenses which may have been reasonably incurred in respect of such sale, including valuers fees, rubbish removal fees, cleaner’s fees and other fees as may be necessary as agreed in writing;
(f) In payment to the wife of an amount that is equivalent to 63% of the “realised combined net asset pool” following the sale of the Street A, Suburb B property and discharge of the liabilities and expenses incurred on sale referred to in Order 34 (a) to (e) hereof; and
(g) In payment to the husband of an amount that is equivalent to 37% of the “realised combined net asset pool” following sale of the Street A, Suburb B property and discharge of the liabilities and expenses incurred on sale referred to in Order 34 (a) to (e) hereof;
(h) For the purpose of Order 34 the “realised combined net asset pool” is $745,204 as set out at paragraph 267 of the judgment or such other greater or less amount should the Street A, Suburb B property be sold.
35.
Within twenty-one (21) days from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to transfer to the husband the monies standing to the credit of the parties in the Commonwealth Bank account numbers ending 1 and thereafter that account and any other bank accounts in the joint name of the parties shall be closed.
36.
Subject to written agreement between the parties the wife may retain the items set out in Attachment “A.”
37.
In the event that the parties are unable to agree in writing that the wife retain the items set out in Attachment “A” the parties shall engage in mediation with a qualified mediator and make a genuine attempt to reach a resolution.
38.
Following mediation if a dispute remains regarding the items in Attachment “A” the items shall be sold and the proceeds of sale be distributed equally between the parties.
39.
Subject to these Orders, the Husband and the Wife are hereby declared, as against each other, to have the sole right, title and interest in, and to be the legal and beneficial owners of:
(a) Any motor vehicles, plant and equipment, chattels, goods, furnishings and real property and other property which are in their possession respectively at the date of these Orders;
(b) Any monies, shares and debentures which stand in their sole names respectively at the date of these Orders;
(c) Any entitlements to superannuation which stand in their sole names respectively as at the date of these Orders.
40.
Except as otherwise provided by these Orders, each part remains solely responsible for all debts, including credit card debts, in the parties’ respective names.
41.
That each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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