BADAL & SHAH
[2019] FCCA 2412
•30 August 2019
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
The parties shall communicate about matters concerning X through the “Our Family Wizard” application and/or email or text.
Each party shall keep the other party informed regarding his or her current residential address, mobile and email contacts at all times.
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.
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.
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.
The parties are restrained from removing X from the Commonwealth of Australia without the consent in writing from the other party.
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.
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.
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.
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.
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).
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.
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.
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
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").
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.
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.
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.
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.
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.
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.
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.
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.
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.
Subject to written agreement between the parties the wife may retain the items set out in Attachment “A.”
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.
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.
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.
Except as otherwise provided by these Orders, each part remains solely responsible for all debts, including credit card debts, in the parties’ respective names.
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.
IT IS NOTED that publication of this judgment under the pseudonym Badal & Shah is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
PAC 3599 of 2016
| MS BADAL |
Applicant
And
| MR SHAH |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves both parenting and property applications. There is one child of the relationship X born in 2014 who is 5 years old. The wife commenced property proceedings on 4 August 2016 at the Parramatta Registry. The husband filed his response on 28 November 2016 seeking property and parenting orders.
The final hearing in the matter commenced on 7 May 2018 and continued for 3 days. It was adjourned part heard to 5 November 2018 and continued for a further two days. Both parties were represented by Counsel. On 6 November 2018 judgment was reserved.
Immediately prior to delivering judgment in May 2019, the Court requested the parties to indicate whether they intended to adduce further evidence updating valuations. On 14 June 2019 the Court received under cover of a joint letter an updated valuation for the Street A, Suburb B property and updated outstanding mortgage (Exhibit C2).
On 2 July 2019 the respondent husband filed an application in a case seeking to adduce evidence that in 2019 he and his wife were expecting a child. Orders were made on 15 July 2019 for the parties to file any further evidence by 24 July 2019. The Court received a response and affidavit in response from the applicant wife on 25 July 2019 and written submissions from the husband on 31 July 2019.
The wife opposed the Court taking into account the fact that the husband had another child. On 23 August 2019 the Court advised the parties that the Court intended to admit the fact that the husband and his wife had a child in 2019. This is a relevant factor in these proceedings both with respect to the property and parenting application. Given that the wife indicated she would be denied procedural fairness should that fact be admitted the Court enquired whether the wife intended to further cross examination the husband and/or his wife on this issue. The wife indicated on 28 August 2019 that she did not require the husband or his new wife for cross examination.
Issues in dispute
The parties disputed parental responsibility with the mother seeking an order for sole parental responsibility and the father seeking an order for equal shared parental responsibility. In addition there was a dispute over the time the child should spend with the parties the mother seeking an order for X to spend alternate Sundays during the day with her father and the father seeking orders that would see him moving to an equal time arrangement. The mother also sought an order restraining the father from leaving the child in the care of his current wife unless he was present. The mother alleges family violence and ongoing communication difficulties between the parties.
The property dispute includes issues around contributions and section 75 (2) factors. The issue of the wife’s jewellery loomed large in these proceedings.
Documents relied on
The applicant wife relied on her initiating application filed 4 August 2016, her reply filed 28 November 2016, her affidavit and financial statement filed 28 February 2018, the affidavit of Ms E (the maternal grandmother) filed 28 February 2018 and the affidavit of Mr D (the maternal grandfather) filed 28 February 2018.
The respondent relied on his amended response filed 4 May 2018, his affidavit filed 1 March 2018 and financial statement filed 16 April 2018, the affidavit of Ms H (the paternal aunt) filed 28 February 2018, the affidavit of Ms F (the paternal grandmother) filed 28 February 2018 and the affidavit of Ms G (the father’s current wife) filed 3 May 2018.
The Court received the Family Report dated 5 September 2017 prepared by Ms Devine (Exhibit C1) and a number of Exhibits including a Joint Balance Sheet Exhibit C2.
Competing parenting proposals
The mother sought the following orders:
1. That the child X born in 2014 ("X ") lives with the Mother.
2. That the Mother have sole parental responsibility for X.
3. That X spend time with the Father as follows:
3.1 On each alternate Sunday from 10am to 4pm.
3.2 On Father's Day from 10am to 4pm, if the Father is not already spending time with the child on Father's Day, and the Father' s time on the following Sunday shall be suspended;
3.3 If X's birthday falls on a day that the Father is not already spending with X, he shall spend time with her from 3pm to 7pm
3.4 If the Father' s birthday falls on a day when the Father is not already spending time with X, he shall spend time with her from 3pm to 7pm
4. That the Father's time shall be suspended on Mother's Day and in substitution he shall spend the following Sunday with X from 10am to 4pm.
5. That the Father's time shall be suspended on the Mother's birthday from 3pm to 7pm.
6. The parties are to notify each other of any medical emergencies that arise in relation to X while in their care as soon as is reasonably practicable and shall provide the details of the treating practitioner , including the location of X ' s treatment.
7. The parties are restrained from:
7.1 harassing , verbally abusing, denigrating or threatening the other parent (or members of the other parent's family); and
7.2 discussing these proceedings and any orders made in the proceedings in the hearing or presence of X.
8. The parties shall immediately remove X from the presence of any person who denigrates the other party or members of the other party's family.
9. To facilitate the time the Father spends with X, unless the parties otherwise agree, the Father shall collect X at the beginning of each period either from her child care/school or the mother's home as is appropriate, and the Father shall at the end of each period return X to the mother's home or child care/school.
10. In the event that the Father does not collect X personally at the commencement of his time, the Father may nominate one of his parents to collect X and shall inform the Mother of the name of that person prior to X being collected.
11. The mother shall post information on the 'Our Family W izard ' website each Sunday informing the father of any significant preschool events involving X and details of any significant developmental events relating to X .
12. The Father shall not later than one hour after the conclusion of his time with X , post information on the Our Family Wizard website confirming the time he collected X, the timing of meals consumed by X in his care and details of times X has slept while his care.
13. Each of the parties is to inform the other 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).
14. The mother is permitted to nominate a third person to attend at changeover to collect X or to be present with her during the changeover.
15. The party shall ensure that all times when travelling in a motor vehicle with X, she is restrained in an approved child restraint for her age and size.
16. The parties shall keep each other informed of their current residential addresses and mobile telephone numbers at all times.
17. That the Mother is permitted to solely apply to the Australian Passport Office and the foreign office or consulate of any other country for international travel documents, including passpo1ts and renewals of pas sports, for X and the Father's consent to the issue of such documents is not required.
18. That the Mother shall retain in her possession for safekeeping all and any of X's passports and travel documents.
19. That the Mother is permitted to travel outside of the Commonwealth of Australia with X once each year for a period not exceeding four weeks and the Father ' s written consent to such travel is not required.
20. That in the event that the Mother travels outside the Commonwealth pursuant to Order 19, the Father's time shall be suspended during that period and he shall spend make-up time with X each Sunday upon the Mother’s return from 10am to 4pm for the equivalent number of hours that he would have spent with X if his time had not been suspended.
21. That in the event the Mother travels with X outside of the Commonwealth of Australia, the Mother shall inform the Father of the departure and arrival dates for that travel.
22. That while X is in their respective care, each party shall permit X to telephone the other parent when she requests to do so at all reasonable times.
23. That the Father is restrained from leaving X in the care of Ms G, the Father’s wife, unless he is also present.
24. These orders shall constitute an authority for both parents to liaise with X ' s treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to X as he or she may seek.
The father sought the following Orders:
1. That the parties shall have equal shared parental responsibility for the child, X born in 2014 (hereinafter "X".)
2. That X shall live with her father as agreed between the parties, and failing agreement from the date of these Orders until 1 January 2019 as follows:
From 4:00pm Wednesday until the commencement of kindergarten or 9:00am on Thursday; and
From 4:00pm Friday to 5pm Saturday.
With the Mother at all times that X is not living with the father.
3. That from January 2019 X shall live with the father in a two-week cycle, as follows:
(a) In week one:
From the conclusion of school Monday until the commencement of school or 9:00am on Tuesday;
From the conclusion of school or 3:00pm on Friday until the commencement of school or 9:00am on Monday;
(b) In week two from the conclusion of school or 3:00pm on Wednesday until the commencement of school or 9:00am on Thursday;
(c) With the Mother at all times that X is not living with the other.
4. That from January 2020 X shall live with the parties in a week about arrangement, as follows:
a) With the father from the conclusion of school or 4:00pm Monday until the commencement of school or 9:00am on the following Monday and each alternate week thereafter; and
(b) Otherwise with the mother.
5. Notwithstanding the foregoing, that from the date of these orders X shall spend additional time with the parties, as agreed, and failing agreement as follows:
(a) For half of NSW scheduled school holidays, as agreed between the parties, and failing agreement as follows:
(i) Commencing 2019 and each alternate year thereafter, with the mother from the conclusion of school until 4:00pm on the midpoint Sunday and with the father from 4.00pm on the midpoint Sunday until 4:00pm on the day immediately preceding the commencement of school;
(ii) Commencing 2020 and each alternate year, with the father from the conclusion of school until 4:00pm on the midpoint Sunday and with the mother from 4.00pm on the midpoint Sunday until 4:00pm on the day immediately preceding the commencement of school;
(b) 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 8.00pm;
(c ) If X's birthday falls on a weekend or school holiday, X shall spend time with the party she is not already living with, for a period of four hours as agreed between the parties, and failing agreement from 4:00pm until 8:00pm;
(d) If a parent's birthday falls on a day that X is not otherwise living with that party, X shall spend time with that party as follows:
(i) If a party's birthday falls on a school day, X shall spend time with that party from the conclusion of school until 8.00pm;
(ii) If a party's birthday falls on a weekend or school holiday, X shall spend time with that party for a period of four hours as agreed between parties, and failing agreement from 4:00pm until 8:00pm;
(e) 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 8.00pm;
(ii) If Diwali falls a weekend or school holiday, for a period of four hours as agreed between parties, and failing agreement from 4:00pm until 8:00pm;
(f) X shall spend time with her mother from 6.00pm on the Saturday preceding Mother's Day until 6.00pm on Mother's Day; and
(g) X shall spend time with her father from 6.00pm on the Saturday preceding Father's Day until 6.00pm on Father's Day;
(h) Commencing 2018 and each alternate year thereafter, X shall spend time with the father from 4:00pm on 24 December 2016 until 2 January 2019; and
(i) Commencing 2019 and each alternate year thereafter, X shall spend time with the mother from 4:00pm on 24 December until 2 January;
(j) Commencing 2018 and each alternate year thereafter, X shall spend time with her father from 4:00pm on the Friday immediately preceding Labour Day until 8:00pm on Labour Day;
(k) Commencing 2019 and each alternate year thereafter, X shall spend time with the Mother from 4:00pm on the Friday immediately preceding Labour Day until 8:00pm on Labour Day;
(l) Commencing 2018 and each alternate year thereafter, X shall spend with the father from 4:00pm on the Friday immediately preceding the Queen's Birthday Long Weekend, until 8:00pm on the Monday of the Queen's Birthday Long Weekend;
(m) Commencing 2019 and each alternate year thereafter, X shall spend time with the mother from 4.00pm on the Friday immediately preceding the Queen's Birthday Long Weekend, until 8:00pm on the Monday of the Queen's Birthday Long Weekend;
(n) Commencing 2018 and each alternate year thereafter, X shall spend time with the Father from 4:00pm on the day immediately preceding Australia Day until 8:00pm on Australia Day;
(o) Commencing 2019 and each alternate year thereafter, X shall spend time with the Mother from 4:00pm on the day immediately preceding Australia Day until 8:00pm on Australia Day;
(p) Commencing 2018 and each alternate year thereafter, X shall spend time with the Mother from 4:00pm on the day immediately preceding ANZAC Day until 8:00pm on ANZAC Day; and
(q) Commencing 2019 and each alternate year thereafter, X shall spend time with the Mother from 4:00pm on the day immediately preceding ANZAC Day until 8:00pm on ANZAC Day.
(r) Commencing 2018 and each alternate year thereafter, X shall spend time with the Mother from 4:00pm on Good Friday until 10:00am on Easter Sunday, and with the Father from 10:00am on Easter Sunday until 4:00pm on Easter Monday.
(s) Commencing 2019 and each alternate year thereafter, X shall spend time with the Father from 4:00pm on Good Friday until 10:00am on Easter Sunday, and with the Mother from 10:00am on Easter Sunday until 4:00pm on Easter Monday.
6. Where possible changeover shall take place through X's school or kindergarten. Where changeover cannot take place through school or kindergarten, changeover shall take place as agreed between the parties. Failing agreement, the parent or their nominee who is to commence spending time with X shall collect her from the home of the other parent at the commencement of the time that X is spending time with them.
7. If X is to spend a night otherwise than at the home of the parent with whom she is spending time, the relevant parent shall notify the other parent in writing with seven days' advance notice of:
(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.
8. The parties shall consult with one another prior to enrolling X in any organised activity during the time that X is to spend with the other party.
9. Following consultation with the other parent pursuant to Order 9, if a parent thereafter enrols X into an organised activity, such parent shall provide the other parent with all contact information, confirmation of enrolments and dates and times for the activity, and ensure the other parent is fully apprised; all the activity, and ensure the other parent is fully apprised of all the activities X is undertaking with each parent from time to time.
10. In the event that X requires medical care or becomes seriously ill or injured whilst in the care of either parent, such parent shall ensure the other parent is notified forthwith and is to advise the other parent of X's treating health care provider.
11. These orders shall constitute an authority for both parents to liaise with X's treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to X as he or she may seek.
12. The father and the mother be at liberty to provide a copy of these orders to the manager or principal of any day care centre, kindergarten or school attended by X from time to time, arid these orders shall constitute an authority for both parents to be at liberty to:
(a) receive copies of all childcare/kindergarten/school reports, notices, newsletters and like correspondence customarily provided to parents; and
(b)attend all childcare/kindergarten/school concerts, functions, parent teacher interviews and any other events customarily attended by parents.
13. In the event that either parent moves residence or his or her contact details vary, that parent forthwith notify the other parent in writing (when practicable at least 14 days prior to the change occurring) of any variation to his or her residential address, mobile telephone number or email address.
14. The father, the mother and his and her servants and agents are restrained from:
a) harassing, verbally abusing, denigrating or threatening the other parent in the sight, hearing or presence of X; and
b) discussing the making of these orders or future care arrangements for X, In the sight, hearing or presence of X.
15. Each party may travel internationally with X for a period of no longer than two weeks each calendar year subject to the following conditions:
a) The travel shall occur during school holidays unless the other parent, gives their written consent to travel during school term;
b) Each parent shall make a reasonable effort to accommodate the other parent's travel on the basis that if it encroaches on the other parent's time with X, reasonable make up time will be negotiated prior to the travel;
c ) The travelling parent shall give the other parent at least 28 days' notice of the proposed travel;
d) No less than seven days prior to departure the travelling parent shall provide to the other parent 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 parent shall ensure X has a telephone which is fully charged and able to receive calls from the other parent at any reasonable time;
f) The travelling parent shall ensure X telephones the other parent at least twice each week while out of Australia; and
g) The travelling parent shall contact the other parent to confirm X's return within three hours of arrival in Australia.
16. That in the event the father is to travel with X pursuant to Order 15, the mother shall provide to the father X's Australian passport 2 weeks prior to the intended date of departure, and the father shall return X's Australian passport to the mother within 2 weeks of X's return to Australia.
17. That the mother shall sign all documents and do all things necessary to enable the child X born in 2014 to obtain New Zealand citizenship and to obtain a New Zealand passport. In this regard the father shall sign all documents required to give effect to this order within fourteen (14) days of those documents being given to him.
18. That the parties shall be restrained from relocating X's residence more than 20km from the Street A, Suburb B area without the consent of the other party.
Background
The father was born in 1983 and is 36 years old. The mother was born in 1983 and is 35 years old. The parties met in 2010 and were married in 2010 in a religious ceremony in India. The parties commenced cohabitation in Australia in 2011 and were married in Australia in 2011.
The parties lived in the father’s Suburb HH rental property until they purchased the property at Street A, Suburb B in 2012. X was born in 2014. The parties agree that the mother took 12 months maternity leave. During the relationship the mother was primary carer for X.
The parties separated on a final basis on 10 May 2016 when the mother left the home with X who was only 2 years old at the time. The father has since remained living in the former matrimonial home whilst the mother and X have lived with the mother’s parents since separation.
The father deposed that he had difficulty organising to spend time with X following separation with the mother permitting him to spend only limited time with the child. He deposed that the mother did not permit him to see X for 25 days following leaving the former matrimonial home on 10 May 2016. He deposed that the first time he saw X following separation was on 5 June 2016.
From Sunday 5 June 2016 until 19 May 2017 X spent time with her father for 3 hours each Wednesday from 5.00 pm to 8.00 pm and every Sunday from 10.00 am to 4.00 pm.
Interim orders were made on 19 May 2017 increasing the father’s time. X commenced spending one overnight with the father.
At the time of the hearing X was spending time with her father each Wednesday from 3.00 pm to 7.00 pm and from 3.00 pm Friday until 5.00 pm Saturday each week in accordance with interim orders made on 19 May 2017. The mother sought to decrease the time X was spending with her father. She was concerned about the impact the father’s new partner would have on X.
Legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with orders relating to children. Section 65D of the Act gives the Court the power to make such parenting orders as it thinks proper. Section 60CA provides “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.” The matters the Court is required to consider (in so far as they are relevant) are set out in section 60CC of the Act. Those matters include primary considerations and additional considerations.
Primary Considerations
There are two primary considerations under section 60CC (2) of the Act namely:
(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.
The Court is required to consider both the objects under section 60B (1) and the principles underpinning the objects under section 60B (2) of the Act in determining what (if any) parenting order is in the children’s best interests. Both parties are seeking orders for X to spend time with each of them, both acknowledging the benefit X will derive from having a meaningful relationship with both parents. This is consistent with section 60B (1) (a) which provides that one of the objects of the Act is to ensure that a child has the benefit of both parents having meaningful involvement in his or her life to the maximum extent consistent with the best interests of the child.
Richard Chisholm (formerly a Justice of the Family Court) in “The meaning of meaningful: musings on some key provisions of the Family Law Amendments of 2006” prepared a paper for the Queensland Family Law Residential, Gold Coast, August 2008 wherein he considered the meaning of the phrase “meaningful relationship” including examining its use both prior to and after the 2006 amendments to the Act and evidence of the legislative intention behind the inclusion of that phrase. He wrote:
“Given the context, I think that the significance of the word “meaningful” is to show that the legislature did not want to attach particular weight to the benefit to a child of any sort of relationship with a parent. In particular, it is clear that the Committee considered that it was generally important that the non-resident parent played an active role, being involved in various aspects of the child’s life, in making decisions about the child; the role of a parent, not a visitor. They wanted to get away from the idea that it is enough if the non-resident parent sees the child occasionally, perhaps takes the child to the movies or sporting events at the weekend, but takes no interest in the child’s education or development, and so on. In particular it is not enough that the non-resident parent just sees enough of the child to keep up appearances, or to satisfy the parent’s own needs, or even, perhaps to given the resident parents a break from time to time by doing some babysitting. The non-resident parent should be parenting.”
Justice Boland (as she then was) sitting on the Full Court in Moose & Moose [2008] FamCAFC 108 endorsed Justice Brown’s observations with respect to the words “meaningful relationship” in Mazorski & Albright [2007] FamCA 520 as follows:
[26] “What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”
I am satisfied there is a benefit to X having a meaningful relationship with both parents and intend to craft orders to that effect.
Assessment of the evidence
Family violence
A further primary consideration for the Court is the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (see subsection 60CC (2) (b) of the Act). Subsection 60CC (2A) of the Act directs the Court in applying the primary considerations, to give greater weight to subsection 60CC (2) (b) which relates to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Section 60CG of the Act imposes on the Court an obligation to ensure that as much as possible and taking into account the child’s best interests, any orders made will not expose a person to an “unacceptable risk” of family violence.
The Full Court in Sahrawi & Hadrami [2018] FamCAFC 170 (4 September 2018) discussed the role of the Court with respect to the resolution of issues in dispute. The Court said at [54]:
54. “An essential aspect of the exercise of judicial power is the determination of issues in dispute. Albeit in the context of a discussion of the nature of its own original jurisdiction, in this regard the High Court in Fencott v Muller (1983) 152 CLR 570 at 608 said:
... it is necessary to attribute to “matter” in ss. 75 and 76 of the Constitution a connotation which does not deny to federal judicial power its primary character: that is, the power of a sovereign authority “to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property” (per Griffith C.J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead). The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.
55. In the context of allegations similar to those made in this case the Full Court in Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 said:
[94] A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC (2) (b), 60CC (3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
[95] The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.
[96] It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.
(Emphasis added)
The mother in this case alleged that she had been the victim of family violence at the hands of the father. She made a number of serious allegations regarding the father’s conduct (referred to below). The father denied that he verbally abused the mother, denied he made threats of physical violence to her, the child or the mother’s family, denied he called the mother names or spat on her. He denied engaging in any coercive or controlling behaviour with respect to the parties’ finances.
Standard of proof
Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides as follows:
(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
Justice Tree in Andrews & Lampton [2014] FamCA 425 at first instance, when discussing the relevant provision under section 140 of the Evidence Act 1995 (Cth) referred to the decision in Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 where the majority of the High Court stated:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”
In accordance with section 140 of the Evidence Act I have undertaken a careful analysis of the allegations of family violence.
Both parties alleged that the other would make fun of the manner in which they spoke Punjabi or English. I am unable to make any finding regarding this allegation. The mother alleged the father was verbally abusive towards her and would scream and shout at her calling her “idiot”, “stupid woman” and “psycho.” The father denied these allegations. He indicated the mother would also yell at him and make derogatory remarks about him. For example she would frequently compare him to men in her office, telling him he was too skinny and not a real man. The mother agreed there were mutual arguments where both parties yelled at each other. Having heard the evidence I am satisfied that both parties were verbally abusive towards the other.
In 2012 the mother complained to her GP that she was the victim of emotional and psychological abuse. The parties’ relationship at that time continued. I am satisfied that the mother raised concerns about the manner in which the father engaged with her. Some specific examples are discussed below. The mother alleged that prior to the marriage she weighed 52.5 kilograms and considered herself a healthy weight. A few months into the marriage the father told her numerous times “You need to be less than 40 kilograms.” She said she was distressed by this and by May 2012 she had lost 10 to 11 kilograms. She said her relatives were concerned about her weight loss and whether she was unwell. She alleged when they were alone the father would get angry at her and say “make sure you tell the relatives that there is nothing wrong, and that you are happy.”
The mother complained that the father would weigh her food and provide her with a portion which was significantly smaller than she considered adequate. When she asked him why he did this he said “Do you want to end up looking fat like your mother?” and “You are already short and obese, you will look like a ball if you keep eating.” She alleged he removed food from her plate during a meal, in front of her parents, his parents, his cousins in New Zealand, uncle and aunty in New Zealand. On one occasion the mother was eating two eggs for breakfast. She ate one and then the father suddenly took her plate away saying, “You don’t need to eat anymore, that’s enough food for you”. He would say to her “You need to go to Jenny Craig. I will leave you if you do not lose weight'” and “I can’t love you if you don't lose weight” and “It’s your fault I’m unhappy”. In about 2011, the mother joined Jenny Craig. Each week the father would say to her “How much do you weigh this week?” She said she was so distressed and determined to lose weight that she lost more than 10 kg and her weight dropped down to 45kg. The father said to her “Forty-five is not good enough. You should be thirty-five.” She said he told her to shop at the “plus size” shop.
The father denied any derogatory remarks about the mother’s weight but rather indicated that he was supportive of the mother’s attempts to exercise and diet. He denied he criticised the mother’s body or appearance, denied controlling her food and demanding she lose weight. He denied telling X to call pictures of “fat women” mummy.
The mother was cross examined about these allegations. Counsel suggested to the mother that the issue of her weight was something she was concerned about and the father was in fact supportive of her regarding her concern about her weight. Counsel invited the mother to consider some emails she sent to the father’s sister in January 2012 where the mother advised the father’s sister that the father was in fact encouraging her and motivating her to exercise and lose weight. She said “it’s been Mr Shah that encouraged and motivated me so much. He would make a good personal trainer, hee. Couldn’t have started without him. I know everything in theory, but putting it in practice is the hard part, because I hate exercise. Trying to get a bikini bod now, ha, not that I plan to wear one. Just need to tone up.”
The mother denied during cross examination that the father was trying to help her. She said “No I was actually covering up for his actions. So I would – I would always try to cover up what’s actually happening in the marriage. And because it’s an embarrassment, and he would make, you know, comments about me publicly, body-shaming me, and it was my way of covering it up, protecting him, as my husband.”
Counsel suggested that the mother forwarded a further email on 26 March 2011 (Exhibit R6) in which she wrote “I seriously need to restart gym. The scales don’t show that I’ve put on weight, but I feel so fat. I complain at work, and everyone says, “Ms Badal, it’s because you feel comfortable and happy. Everyone gets tubby after marriage.” Let me tell you, Mummy that was NOT the answer I was looking for. I have to be slim and trim next time I see you.” Counsel suggested that the proposition that the father was coercing her to lose weight was false and entirely inconsistent with her email to her mother-in-law. The mother responded “I always tried to portray to them how loving and caring he was… it was my way of covering up what was actually going on. I was being monitored my weight was being monitored. I had to give a weekly report of what my weight was.” Having regard to the evidence I am not satisfied that the father engaged in the type of demeaning and controlling conduct alleged by the mother with respect to her weight issues.
The mother alleged that in the first half of 2011 she began receiving text messages from an unknown number repeatedly asking her to “meet” but when she asked who the person was, they would not disclose their identity. She said she was genuinely scared and contacted her father to call to find out who the person was. Her father called the phone number and the father answered the phone. Later that night she said to the father “I was really scared by your text messages.” He replied, “It was just a joke, this is just the beginning, there’s a lot about me you don’t know and don’t want to know.”
The father admitted that he exchanged some text messages with the mother where he pretended to be a stranger. He denied these were aggressive or threatening messages. He said he was joking when he did this and said the mother did not suggest to him that this conduct frightened her. He said they joked about it.
I found the father’s behaviour in this respect disturbing and I do not accept that he was simply playing a joke on the mother. I accept that it is likely the mother was fearful about a stranger contacting her. I am satisfied she found this conduct intimidating.
The mother alleged that the father had her phone password and fingerprint ID and he would access her phone. On one occasion he removed her parents’ numbers from her favourites list and changed their names to names that she did not recognise. He labelled his parents numbers on her phone as “Mum” and “Dad.” She said when the father added his fingerprints to her phone he said “I don’t trust you.” On one occasion, she deleted his fingerprints without telling him and when he found out he said: “What are you hiding from me, I don’t trust you.” She alleged that the father installed “Find My iPhone” on her phone. When cross examined about this the father agreed he had done so. He said “Yes I thought it was a good idea.”
The father agreed he had fingerprint access to the mother’s phone. He said he would view her phone once a month. He claimed that the mother gave him permission to do so. I do not accept that the mother gave her permission to the father. She denied he had her consent. It may be inferred from the father’s conduct that he was searching for messages adverse to the mother or “checking up on her.” He agreed he removed her parents’ telephone numbers from her phone and changed their identities. He agreed he installed the Find My iPhone app but said that they both had it. The mother disagreed. She said she didn’t know it was there. She just happened to find it. I am satisfied that the father’s conduct towards the mother in this regard was controlling.
The mother alleged that in October 2012, during an argument the father threw a pressure cooker at the mother and she ducked. The pressure cooker hit the kitchen window and the force broke the glass. The mother said she organised a tradesperson to repair the window and covered up the incident to her family saying “I accidentally broke the window whilst washing dishes.” She did not report this to police being scared how the father would react.
The father denied that he threw a pressure cooker at the mother during an argument. He denied throwing anything at the mother in anger. He said the explanation given by the mother to her family “was the truth.” The pressure cooker leant against the window next to the sink while she was washing dishes. The window cracked slightly and he made arrangements for a glazier to replace the window. The crack was minor and did not require repair for several weeks.
I found the father’s explanation inherently improbable and prefer the mother’s evidence. I accept that the father threw the pressure cooker during an argument and the mother ducked and it hit the window causing it to crack.
During the mother’s pregnancy she alleged that the father would hide in the dark and jump out at her and this frightened her. The father denied hiding and scaring the mother and engaging in this conduct. I am unable to determine where the truth lies in this regard.
The mother complained that after X's birth the father would throw dirty nappies at the mother’s face during his outbursts about every 3 to 4 weeks. Usually she would have just changed X’s nappy and was going to get a plastic bag to seal it. She said he would pick up her nappy and throw it at her saying he was aiming for the bin however there was no bin in the room. She said X witnessed him doing this on several occasions. The father denied this conduct. He said in winter when X wet her nappy during the night they would bag it up and throw it behind the bedroom door to be taken outside. I am not satisfied that this conduct occurred as alleged by the mother. The allegation is quite vague and X would have been very young at the time. I find it unlikely that the father would have engaged in such conduct in X’s presence.
The mother alleged that the father spat on her and a few times a week wiped his dirty hands on her clothes and handed her his used tissues. He would also grab her finger and put it in his nose to clean it. X witnessed him doing this on several occasions. When cross examined the father denied he spat on the mother. I am not satisfied that this occurred.
With respect to wiping his dirty hands on the mother’s clothes he said “I have done that as a joke …handing her the tissues. We were having dinner at her parent’s house.” He said she asked for his dirty tissue and she put it in the bin. He denied he regularly gave the mother his dirty tissues. With respect to the allegation that he grabbed her finger and put it in his nose he said “that was a joke.” He said “I did not put it in my nose I just pretended…it was a joke.” Counsel suggested to the father that this was like the anonymous text message “it was just a joke.” He said “yes.” He accepted that if he had done that “it would be a filthy habit.” I accept the father behaved in this manner on more than one occasion. The mother said she found his conduct offensive and degrading. I accept her evidence.
The mother alleged that in around 2012 the father commenced a routine of suffocating her by holding his dirty socks and underwear over her nose and mouth to the point that she would struggle to breathe. The socks and underwear had been worn all day for work. The father wore steel capped boots. This happened about 3 or 4 times a week until separation, except for the periods when the father was not talking to her. He would say “Can you tell by the smell whether they are clean or dirty?'” He would also put his feet on her face and rub them on her saying: “My feet are tired I need to touch something soft.” She told him “Don’t do that it makes me uncomfortable.” He would reply: “I am different, this is how I show my affection and love.” X witnessed him doing these things on many occasions.
In his affidavit the father deposed that on one occasion he asked the mother to smell the socks to see if they were clean “as a joke.” They both laughed about this. He denied pressing them over her face and mouth at any time. During cross examination the father said “as a joke he held dirty socks close to the mother’s nose and mouth” but “I didn’t really put it on her nose and mouth.” He said he did this about twice and he was being playful. He disagreed that this behaviour was designed to humiliate the mother. He said the mother never made a formal complaint about his behaviour but may have said “no don’t do that.” I reject the father’s evidence and am satisfied that he engaged in the conduct alleged by the mother with respect to holding the dirty socks over her nose and mouth on more than one occasion. I am satisfied she found his conduct demeaning and humiliating.
The mother alleged that on one occasion in May 2012 she was lying on the couch and the father “dropped onto me suddenly and was moving and pushing down on her. He was on her upper body and she could not move.” She said, “You are hurting me. I can’t breathe, please get up.” He was smiling and laughing and got off after a few minutes. She said she felt pain in her chest after that when she moved and was worried she had a fractured rib so in late May 2012 she went to the doctor to get it checked. She told the doctor the father had accidentally fallen on her after he lost his balance. She said she was too fearful to tell the truth. The father denied suffocating the mother or restricting her breathing.
The maternal grandmother said she had observed bruises to the mother’s neck. The mother reported to her mother that she had slipped in the bathroom or had a fall. Later she told her mother the bruises were inflicted by the father when he tried to suffocate her. The mother had not mentioned in her affidavit that she sustained bruising from the father’s attempt to suffocate her. She said she told police she was in an abusive marriage. I am unable to determine whether this incident regarding the suffocation occurred.
The mother alleged that on a weekly basis the father would watch videos about sexual acts. He would say “Why can't you be like her?...It is your job as my wife to make me happy, if you want a happy husband you need to do this.” The mother said she told him “I don’t want to do those things.” He would ask her frequently to do the things that the women in the pornography films were doing and she felt pressure to perform acts that she did not want to perform. When she said “no” he would say “You’re ugly anyway” and call her an “ugly bitch.”
The father denied forcing or coercing the mother into any kind of sexual activity during the relationship. He agreed they watched adult films together. He denied he denigrated the mother when she declined his sexual advances. I am unable to make any finding in this regard.
The mother alleged that on a daily basis the father would say insulting things such as “How would you react if I cheated on you?” He said they may have had a conversation about cheating.
The mother alleged that the father would give the mother and X “the silent treatment” every 3-4 weeks, for up to a week at a time. He would not speak to her at all for those periods. At other times, he might speak very minimally saying only what was necessary and saying only a couple of sentences in a day. She said for about a month leading up to separation he did not speak to her at all. The father denied giving the mother and X the silent treatment. He said there were periods after an argument that they did not speak with each other. He agreed that the parties did not speak to each other for about a month prior to separation. He said this was a mutual decision. He said the mother also engaged in giving him “the silent treatment” for days at a time if he did not agree to do as she asked. The father denied that he refused to acknowledge X’s presence on any occasion. I accept that both parties engaged in “silent treatment.” By late 2015 the parties’ relationship was in serious difficulty and both parties were unhappy and distressed. I find it unlikely that the father ignored X. That conduct is inconsistent with his attitude towards his child.
The mother sought advice from her GP after X’s birth regarding the parties’ marital issues including the father’s angry and abusive behaviour towards her. The GP advised the parties to see a psychologist. She said when she raised this the father refused and said to the mother “There is nothing wrong with me you are the psycho who needs to see a psychiatrist.” The father agreed the parties discussed marriage counselling however this did not eventuate. He denied refusing to see a psychologist.
The mother started seeing a psychologist in 2014 to assist her to “learn strategies to deal with the abuse.” She said she attended on a few occasions about five times over the Christmas/New Year period 2014/15. She did not advise the father of this. He agreed he was unaware the mother was seeing a psychologist. She had not engaged with a psychologist since that time.
The mother said on occasion she would confront the father about the abuse and say “I will inform my parents.” He would respond “If you tell your parents, I will throw X out the window and I will break your father’s neck and burn their house down.” When they visited the maternal grandparents the father would say “If something happens to X in that house I will break your father’s neck.” He also said “I will throw you out the window with X.” He made statements about harming the mother, X and her parents approximately once per fortnight. The mother said she was fearful that the father would throw X out the window and that she would be harmed or killed. Several times a week the mother said she would sleep on the floor in X’s room, so she could protect her. This was usually after an argument when the father was angry and made the threatening statements. The mother’s allegations were extremely serious and not put to the father during cross examination. The father denied these allegations. There is no satisfactory evidence before me that the father has ever attempted to harm X. I am not satisfied that the father made the statements as alleged by the mother.
In 2014 the paternal grandmother advised that she was planning to visit between 2014 and 2015. She wrote that she was unsure whether to fly or stay home and was “...quite flexible and won’t mind cancelling my program.” The mother suggested it was not a good idea for her to visit and advised the father. Later that afternoon she asked him about his mother visiting and he said to her “Shut up you stupid woman...leave me...you are a psycho...the guy who committed suicide at work, his girlfriend was a psycho like you!” He told the mother “You had better apologise to my mother.” The father denied referring to the mother as psycho and denied calling the mother names and denigrating her. He denied requesting the mother apologise to members of his family. I am unable to determine this issue.
On about 31 August 2015 the mother found a photograph on her phone of a hand holding faeces. She said she did not know where it had come from. She sent the father a text message with the photos asking “What is this photo of potty on my phone?” He replied “that’s my hand” and, “it was on your face.” She later asked the father about the messages and photos and he said again “I put in on your face. Did I wash my hand or didn’t I?” She said on other occasions, he dragged the mother to the toilet after he had had a bowel movement and insisted “Look at it.” She would physically pull away and would be upset, but he would pull her into the bathroom and would say “Don’t do that”. He would smile and laugh at her reaction.
The father admitted to sending the photo of the hand with the faeces. This was after X had done a poo while the mother was bathing her and he sent it as a joke. It was a photo of someone from the internet holding some fake faeces. He said a day before X had done a poo in the shower and we were joking about it and it was just a continuation of that joke. The distasteful evidence about a hand holding fake faeces, handing dirty tissues to the mother, rubbing or holding dirty work socks to her face or nose demonstrated a consistent pattern of behaviour by the father which in my view was extremely offensive and designed to be humiliating and demeaning of the mother. The father admitted the conduct but claimed it was a joke “it was the way I showed love, it was amusing.” I reject the father’s assessment of his conduct. It is likely that he deliberately sought to humiliate the mother, whether he found his conduct amusing or not.
The mother alleged that the father attempted to isolate her from her family. He denied he tried to control or restrict the mother’s social life. He said she spent lots of time with her family. He encouraged her to travel with her family to India for 2 weeks in 2014 to attend her cousin's wedding, while he remained home working. He said they both had an active social life and most of their social commitments were with the mother’s family friends. He was happy that the mother took up dancing classes with her sister and went out socialising. From the time X was born they would visit the maternal grandparents every Monday for 4-5 hours. I do not accept that there were attempts by the father to isolate the mother.
The father alleged that the mother made attempts to alienate and isolate him from his family and would say “your mother and sister are behind everything …..why don’t you go marry your sister?” She would accuse him of making gifts of money to his sister without her knowledge which he denied. I accept that the mother argued with the father about his relationship with his sister.
The mother was cross examined about her complaints regarding family violence. It was suggested to the mother that her solicitor wrote to the father alleging that she had suffered “mental and verbal abuse” from the father during the relationship. It was put to her that he was “not physically violent to you at any time.” She said he was. The mother did not report to her doctor or the family consultant that the father had been physically violent towards her. The family consultant had reported that the mother “had not received any injuries from the father’s alleged violence towards her.” She agreed she received no injuries but said she “did receive harm.” She said “I was in pain. I did see a doctor on one occasion.” She agreed she did not report any injury nor make any complaint about physical violence. She said this was because in her view “injuries …required hospitalisation or something serious but there were occasions when I’ve been pushed to the floor. I’ve had things thrown at me.” She said these included dirty nappies and a saucepan. I accept that the father threw a saucepan towards the mother. I am not satisfied that the mother suffered any physical violence from the father but I am satisfied he was emotionally abusive and on occasion treated her in a degrading and humiliating manner. I am satisfied that both parties were verbally abusive towards each other.
The mother alleged that the father exerted financial control over her during the relationship. She said he controlled the majority of their finances and would restrict her expenditure and closely monitor where she spent money, to the extent that she had to seek him approval before making purchases. She said she gave him her banking and email passwords at his request during the relationship. She felt manipulated when he said to her “Tell me your password for your email account and netbank, because if you don’t, that means you don’t trust me.”
She said she asked the father whether she could open a savings account for X or put aside money for her he said: “There is no need to open a separate account for X, you stupid woman, just put the money into the account where it will earn more interest.” The mother said he restricted her use of the home appliances such as the clothes dryer, heater and air conditioner. Frequently when using those appliances he said to her “It will increase the utility bills.” She said as a result she rarely used those appliances.
She said on one occasion she told him “I want to take private health insurance cover so that when we start a family, we have access to a private hospital and a doctor of my choice, to get peace of mind that we are in safe hands. My mother had serious complications in her pregnancy with me, and I am worried that I may have them too.” He said: “Your friend had her baby at Suburb K Hospital, why can't you go there? The charges of a private doctor are so high, and the cost will be free in public hospital.” Ultimately, she took out private health insurance for which she received a discount as an Employer L employee. After this the father said to her on many occasions “What a waste of money”. After X was born he said “The costs of the anaesthetic for the caesarean was so much. What a waste of money….I can't believe how much it cost for the paediatrician.”
She said to the father “We should buy a gas heater for downstairs and split AC for the bedroom because it gets very cold inside the house and the central AC is not very effective. We should buy a split AC for the bedroom to keep the room comfortable for X.” He told her “There is no need to waste money, you can just dress warmer…The split AC is a stupid idea, your dad must have put this idea in your head……Just buy a small electric room heater.” She said she purchased an electric room heater.
The father denied he exerted financial control over the mother. Counsel for the father cross examined the mother extensively in this regard. It was suggested that the mother used the credit card to purchase items for herself on a regular basis. She agreed. She said this was before the parties had joint accounts and his financial control “progressively increased.” Counsel suggested that the parties bought a property in joint names in 2012. She agreed. She was shown an email dated 24 May 2011 that she wrote to the husband where she gave him some advice about options for him to open a Commonwealth Bank account. She agreed she wrote the email. She said she sent it “because I worked for Employer L and he asked me to do some research.” She agreed she had set up their joint account and advised him how to operate it (via email). She agreed she had discussed with him applying for a different job using his qualifications. She accepted that he was working with Employer M in 2011 and was still working there. She agreed she emailed the parties bank manager about making fortnightly mortgage statements and she applied for the First Home Buyers Grant. I am satisfied that the father did not exert financial control over the mother during the relationship. I do not accept that the father exerted financial control over the mother.
On 11 April 2016, the mother said she took X out to greet the father in the driveway as he arrived home. When they reached the car, he was locked inside, and she observed the father talking on the phone to someone. She knocked on the window gently a few times, to which he turned his face away and turned up the volume on the radio in the car. X also started knocking on the window and crying but he did not respond. After ending the call, the father unlocked the door. The mother asked “Why did you do that?” and he shouted: “I don’t answer to you! We are done! You are a lunatic! I am sick of you! You are not even pretty enough to put up with.” She asked: “What’s the matter?” He replied “I don’t answer to you!”
The father denied the mother’s account of this incident. He said he was still in his car on this occasion and had just arrived home from work. He was finishing a phone call on Bluetooth and the mother was standing at the door holding X. She waved at him and he waved back and continued to talk on the phone. She suddenly began banging on the car window in the driveway and screaming hysterically while carrying X saying “Open the door, open the door Mr Shah, open the door!” She kept screaming and banging on the window in the middle of the driveway until he ended the phone call and opened the door. The father said he was concerned that the neighbours may have heard her screaming and they had the following conversation:
Father: “You’ve crossed the line this time, why are you acting like this in front of X and the neighbours?”
Mother: “You must be talking to your sister!”
Father: “What are you talking about? I can’t live like this anymore”
Jewellery
The issue of the wife’s jewellery was agitated by the husband through his Counsel for several hours during the proceedings. There was no valuation of the jewellery and the whereabouts of the jewellery was unknown. Be that as it may, the husband and his mother contended as deposed to in their affidavits filed 1 March 2018 and 28 February 2018 respectively that there existed at one time after 2010 the following jewellery which was in the possession and control of the wife. They argued that the jewellery had substantial value and that it was in the wife’s possession. I note however amongst the items were references to “male” or the “husband’s jewellery.” These items included as follows:
(a)22k Gold chain, purchased by the husband’s mother from DD Jewellers, City C, India, given to the wife in 2010 on the occasion of VV ceremony) held at the wife’s parents house at Suburb B, Sydney, NSW;
(b)22k gold earrings purchased by the husband’s mother from EE Jewellers New Zealand, given to the wife in 2010, on her first visit to the husband’s mother's home in City WW, New Zealand;
(c)22k gold Anklet purchased from EE Jewellers, New Zealand given to the wife by the husbands’ uncle in 2010, on her first visit to the husband’s parents house in City WW, New Zealand;
(d)A diamond necklace with two hanging diamond earrings, set in 18k Gold, purchased from Z Jewellers, City C, India given to the wife by the husband’s mother in 2010, on the occasion of Ring Ceremony held in City C, India;
(e)A 22k heavy Gold necklace with hanging gold earrings set, purchased from DD Jewellers, City C, India, given to the wife by the husband’s mother in 2010 on the occasion of XX ceremony in City C, India;
(f)A pair of anklets, purchased from FF Jewellers, City C, India, given to the wife by the husband’s mother in 2010 on the occasion of XX ceremony in City C, India;
(g)A 2k heavy Gold necklace with hanging gold earrings set purchased from DD Jewellers, City C, India was given to Ms Badal by the husband’s maternal grandmother in 2010, on the occasion of Ring Ceremony, held in City C, India;
(h)A 23k heavy Gold necklace with hanging gold earrings set, purchased from CC Jewellers, City C, India, given to the wife by the husband on their Wedding Night in 2010, in City C, India.
(i)A Diamond Engagement ring, purchased from BB Jewellers, City C, India, given to the wife by the husband in 2010, on the occasion of Ring Ceremony, held in City C, India;
(j)Two x wide 22k Gold Bangles, purchased from DD Jewellers, City C, India, given to the wife by the husband’s mother in 2010, on the occasion of Wedding Ceremony held in City C, India;
(k)A 22k gold Ring given to the wife by the husband’s maternal grandmother in 2010 on the occasion of Wedding reception in City C, India;
(l)A 22k Gold Ring, purchased from EE Jewellers, City WW, New Zealand, given to the wife by the husband’s mother in 2011 on the occasion of "first food cooking" ceremony held at my parents house in City WW, New Zealand;
(m)22k Gold Ring, purchased from EE Jewellers, City WW, New Zealand, given to the wife by the husband’s maternal uncle in 2011 on the occasion of "first food cooking" ceremony held at my parents house in City WW, New Zealand;
(n)A 22k Gold chain purchased from DD Jewellers, City C, India, given to the wife in 2014 on the occasion of X's birth at Street A, Suburb B, Sydney, NSW;
(o)A 22k Gold baby Bangle purchased by me from FF Jewellers, City C, India given to the wife by the husband’s sister in 2014 on the occasion of X's birth at Street A, Suburb B, Sydney, NSW;
(p)A Diamond ring purchased by the husband’s mother from GG Jewellers, City C, India, given to the wife by the husband’s mother on the occasion of his sister's wedding in 2013 in City C, India;
(q)A pair of 18k gold earrings purchased by the husband’s mother from AA Jewellers, City WW, New Zealand given to X on the occasion of X's first Diwali in 2014 in City WW, New Zealand;
(r)A pair of 22k gold hanging earrings purchased from FF Jewellers, City C, India, given to the wife by the husband’s grandmother when the parties visited in 2012 in City C, India;
(s)A pair of Diamond earrings purchased by the husband’s mother from FF Jewellers, City C, India, given to X on her visit to City WW, New Zealand in 2016;
(t)A pair of 22k Gold earrings purchased by the husband’s father from FF Jewellers jewellers, City C, India, given to the wife by the husband’s mother on Ms Badal’s visit to City WW, New Zealand in 2016;
(u)A pair of 9k Gold earrings given to X by Mr RR’s grandmother on the occasion of X's first birthday in 2015 at Street A, Suburb B, Sydney, NSW;
(v)A 22K gold chain with gold locket given to the husband by the wife’s parents in 2010;
(w)A Diamond studded in gold engagement ring given to the husband in 2010 at the ring ceremony at City C, India;
(x)A 22k Gold (male bangle) given to the husband by the wife’s parents in 2010 at YY ceremony at City C, India;
(y)A Heavy Diamond necklace and a pair of hanging Diamond earrings given to the wife by her family in 2010;
(z)A Big Diamond studded in gold ring given to the wife by her parents in 2010 at City C, India;
(aa)A 22k heavy Gold necklace with heavy hanging earrings and a forehead tikka given by the wife’s parents in 2010;
(bb)A 22k heavy Gold necklace red beads design with heavy hanging gold earrings given by the wife’s parents in 2010 at City C, India;
(cc)A 22k Heavy gold necklace with heavy hanging earrings given to the wife by her parents at the ZZ function in 2010 in City C, India;
(dd)6 x 22k gold bangles given to the wife by her parents in 2010 at City C, India;
(ee)A 22k gold bracelet given to the husband by the wife’s parents on the Reception function in 2010 at City C, India;
(ff)A 22k gold bracelet given to the wife by her parents on the occasion of our first wedding anniversary in 2011 in Australia;
(gg)A Diamond ring given by the husband to the wife on the occasion of their 5th wedding anniversary;
(hh)A 22k gold bracelet given to X on her birth by the wife’s parents in 2014 in Suburb B Sydney;
(ii)A 22k gold bangle given to the wife by her parents on the occasion of the wife’s sister wedding in 2015 in Suburb B Sydney.
The evidence indicates that at one time the wife had a substantial amount of jewellery. Overall the evidence with respect to the jewellery was completely unsatisfactory. The wife was cross examined. Counsel suggested that she deposed in her affidavit that the safety deposit box was opened because she didn’t think it was safe to keep the jewellery in the home and she was concerned about burglary. She agreed that she was concerned about burglary but this was only while the parties were living in their rental apartment. She considered the jewellery was much safer in the Street A, Suburb B property however she agreed that the property did not have a burglar alarm.
She agreed she accessed the safety deposit box on 4 May 2016, six days before she left the husband at about 10.57 am. She agreed that the last time the safety deposit box was accessed prior to that was on 15 April 2015. Counsel suggested that she did this “to empty all the jewellery out of it and take it away.” She denied this. She said the majority of the jewellery was kept in her home in the Street A, Suburb B property. She said “I would generally remove items to wear them for weddings or functions, then I would keep them at home. A few years prior, when I became pregnant and had X, it was becoming a hassle to go to the safe, and I was working from home most of the week, so I would keep things at home.”
She said she accessed the safety deposit box in 2015 prior to attending her sister’s wedding. She had taken out two sets to wear at that time and kept them at home. Counsel suggested that the bank records showed the box was accessed in 2011 and then again in 2011. He suggested that she had gone to take out some jewellery that she wanted to wear to the wedding of Mr & Ms MM. She could not recall whose wedding it was. She said she could not recall returning to replace the jewellery. She said the parties made an overseas trip to Country AAA in 2011 and in 2011, four days later, the box was accessed again. Counsel suggested she removed some items because she was travelling to Country AAA. She thought that was possible. He suggested that the parties were away in Country AAA for about a month and she then accessed the box in 2011 to return items. She said she probably did do that.
It was suggested that she accessed the box again in 2011. She said she couldn’t recall that. In 2012 she again accessed the box to deposit some gold jewellery that was gifted to her by her parents on her first wedding anniversary. She said she couldn’t recall. She agreed the parties moved into their new home in 2012. She was asked whether her parents gave her some gold jewellery in 2012, when they visited her at Town HH . She said they gave her a bracelet and the husband a watch. She could not remember whether she put that into the safety deposit box. She kept a number of items at home to wear.
Counsel suggested that the box was accessed in 2012 and in 2012. It was suggested she was collecting jewellery to attend her cousin Mr KK’s wedding. She said she probably was. She agreed at that stage they were living in the Street A, Suburb B home. She disagreed that she routinely returned items to the safety deposit box. She said “I would generally keep the larger items in the safe. So the larger sets of jewellery. The smaller items, if I removed them, I would generally keep them at home, or if I wore them frequently, like my ring, necklaces.” She accepted however that she was the one accessing the safety deposit box.
She accepted that the box was accessed in 2013 and in 2013. She agreed that she may have removed some items to wear to the husband’s sister Ms BBB’s wedding. She said she also accessed the box to give his mother a gift for the wedding. She agreed that the next occasion the box was accessed was in 2015 followed by 2015. She agreed that she removed some jewellery to wear to her sister Ms CCC’s wedding. It was then suggested that the box was not accessed for over a year, until six days before she separated. She said there was a wedding that same weekend, prior to separation. Those were the last items she removed from the box, because the rest of it, by that stage, was at home, in the jewellery cabinet.
She agreed she left the Street A, Suburb B home on 10 May 2016 and said she did not take the jewellery with her. On 18 May 2016 her solicitor wrote to the husband as follows:
“Would you please confirm when our client can access the property to remove hers and X’s personal belongings and gifts.”
No reference was made to the jewellery in that correspondence. The wife said in response to Counsel’s suggestion “Jewellery falls under belongings… because there was a list provided separately of items for collection which mentioned jewellery and the jewellery that I’m referring to is also watches, other artificial jewellery that I had. It was a range of things.”
Counsel for the husband continued to cross examine the wife regarding the jewellery. She was shown a letter from her solicitor to the husband’s solicitor which said as follows:
“We are instructed that our client has in her possession the following items of jewellery: (1) a wedding diamond ring, (2) a gold chain with white beads and (3) diamond necklace with earrings.”
She said when she left the home she had in her bag the above-mentioned items but otherwise she did not take any other jewellery from the home. She left the other items there. She said some of the items listed by the husband had been “re-gifted.” She was shown some photos and agreed they depicted pictures of the wife wearing some of the jewellery itemised (Exhibits 9 to 12). She did not know when the photos were taken. She said some of the jewellery was kept in the jewellery cabinet in the home. It had a key and a lock.
The husband alleged that the wife had taken the jewellery. Under cross examination the husband said with respect to the four gold bangles gifted to the wife at their religious ceremony (Exhibit 9) the wife retained those items after separation as evidenced by photos of her wearing these items post-separation at the LL Function and in 2016 at a family function and in 2016 at a family function (Exhibited at 10, 11 and 12 respectively).The wife said she could not recall when those photos were taken but it was likely prior to separation. She said that in any event it is likely those items in the photos were costume jewellery. She identified the items as the bangles (Exhibit 10), earrings and necklace (Exhibits 11 and 12) and the bangles (Exhibit 12). The husband agreed that there was a jewellery cabinet in the Street A, Suburb B home. He said he got it from Kmart and the wife kept her artificial jewellery in it not her gold jewellery. He accepted that the wife closed the safety deposit box on 30 May 2016.
Counsel for the wife submitted that in light of the fact that the value of the jewellery could not be determined and the conflicting evidence in respect of who currently had possession of the jewellery and the “unsatisfactory evidence on both sides” the Court could not make a finding. Counsel for the husband agreed that the value of the jewellery could not be ascertained but despite this, it was common ground that the jewellery “is of considerable value being between 22 and 23 carat gold.” He submitted it was open for the Court to conclude that the wife was in possession of the jewellery.
In his case outline the husband contends that there should be a “3% credit in the husband’s favour to account for the jewellery.” Notwithstanding the very lengthy cross examination on this issue I am unable to determine whether the wife was being truthful about the jewellery though I remain sceptical that she may have removed the jewellery. However I am not satisfied to the requisite standard that she removed the jewellery and still has the jewellery in her possession or under her control. Notwithstanding the valiant and lengthy effort by Counsel to establish that fact I am unable to make any finding. In any event I cannot determine the value of the jewellery as no evidence of any valuation was adduced. I reject the husband’s Counsel’s submission that I should allow a 3% adjustment in the husband’s favour to account for the missing jewellery.
The wife contends that her parents provided a number of items of jewellery for the husband’s family as dowry worth about $AUD 25,000. The husband was asked questions about the wife’s family being required to pay a dowry. He said this was a complete fabrication on the wife’s part. I am unable to determine that issue.
Since separation the husband has had exclusive use and occupation of the former matrimonial home from 10 May 2016 a period of more than 3 years. He has maintained that property and paid all outgoings. According to the wife he unilaterally adjusted the home loan to interest only payments and repays $1,886.51 per month. In 2016 the repayments were $1,707.18. She contends that the mortgage increased post separation from $434,000 to $447,000. In addition between 2016 and 2018 the husband’s mother resided in the home. The husband agreed that his father stays there when he visits from New Zealand.
With respect to the husband’s exclusive use and occupation of the Street A, Suburb B property the Full Court in Scofield & Shaw [2012] FamCAFC 193 their Honours Finn, Coleman and May JJ (as they then were) presiding, allowed an appeal against Federal Magistrate Brewster (as he then was) where the appellant argued that the Federal Magistrate had erred in rejecting his claim for an occupation fee with respect to the parties joint property, following the parties’ final separation. The Court found that the learned Federal Magistrate did not err in allowing the appellant an “occupation fee” with respect to that property. Fundamentally the error was found in the fact that for a period slightly exceeding 18 months after separation, the respondent had the benefit of sole and exclusive occupation of the property whilst the appellant was obliged to find and pay for alternative accommodation during that period. At [68] the Court determined that the Federal Magistrate had erred in failing to consider the issue of post separation use and enjoyment of the property in the context of section 90SM of the Act. I take into account that the husband has had exclusive use and occupation of the former matrimonial home since May 2016.
The wife sought an order for the return of personal items to her. She deposed in her affidavit filed on 28 February 2018[13] that the husband retained her personal items and that she had requested the items be made available for collection by her on several occasions in May and June 2016. She was cross examined about the reference in Annexure “H” to her request to seek access to the property to remove her personal items, the child’s personal items and belongings. It was not suggested to the wife that the items were no longer in the husband’s possession or control.
[13] Wife’s affidavit filed 28 February 2018 at [66] – [67] and Annexures “H” and “J”
Given there appeared to be no challenge by the husband with respect to the items, I intend to make an order that the husband shall ensure that the items listed on Annexure “J” to the wife’s affidavit (attached hereto) shall remain in the Street A, Suburb B property following the husband vacating that property. In the event that there is a dispute over any item sought by the wife the parties shall engage in mediation with a qualified mediator to determine that issue and make a genuine attempt to reach a resolution.
Section 75 (2) factors
The mother is 35 years old and the father is 36 years old. Both parties are in good health and X appears not to have any major health issues. Both are in full time employment. The wife deposed that from 2017 to 2018 she was employed as a fulltime health care worker for Employer DDD earning $75,000 per annum. The wife said she did not have confirmation that her contract would be renewed. She received $109 per week in Centrelink benefits and $218 per week in child support from the husband. She was solely responsible for child care fees and as of 28 February 2018 these were $507.50 per week before the childcare rebate of approximately 50 per cent.
The husband remains employed with Employer M as a professional. He earns about $122,000.00 per annum. The wife deposed that the husband currently earns a salary package of $135,000p.a. including superannuation and the use of a company car. I accept his employment contract includes a motor vehicle. He has received shares by way of employee incentives to the value of $16,363. The husband said the nature of his work is dependent on his industry and should the boom end there is a significant risk that he would lose his job. Under cross examination he reiterated this sentiment noting that, although he accepted he earns more than the wife through his employment he argued that his employment is “less secure”. He accepted however that based on his current earning capacity he is more likely to be able to secure greater funds to purchase a property compared to the wife.
The wife has not re-partnered. The husband has remarried. During cross-examination both the husband and his current wife indicated she is not working and the husband is financially responsible for supporting his current wife. In addition the husband is supporting his mother who was living with him at the time of the trial. The husband’s current wife has a potential income earning capacity. She gave evidence that whilst in India she worked with a reputable company as a professional and has qualifications however there was no evidence that she was either willing to undertake that work in Australia or that she had equivalent qualifications that would enable her to work in Australia.
I take into account that the husband and his current wife have the care of new baby born in 2019.
In accordance with the final parenting orders, the wife will have primary care of X for the next 13 years. From 2023 X will spend 4 nights a fortnight and school holiday time in her father’s care. The husband will be required to pay child support as assessed for X. In addition he and his wife have a new born child to care for and support. I take those matters into account.
Assessment
Both parties seek to retain the former matrimonial home. The husband deposed that the Street A, Suburb B property is close to the home of the maternal grandparents. He deposed that the wife has always lived in the Street A, Suburb B area. He acknowledged that he has a superior income to the wife and is in a better position to obtain a mortgage. The wife deposed that she is reliant on her parents to assist her with child care. She wishes to retain the former matrimonial home as this property is close to her parents’ home and will facilitate the wife’s work commitments. She has the full time care of X. I am satisfied that both parties made substantial financial and non-financial contributions during the relationship. The wife is X’s primary carer and has had the primary care of the child since separation with the husband spending one overnight a week. Going forward the wife will continue to be primarily responsible for X save for four nights a fortnight and school holiday time when X is with her father. I accept that the husband has a wife and child to support and he will be required to pay child support as assessed. He earns an income significantly more than the wife. The husband has had exclusive use and occupation of the former matrimonial home for more than 3 years. He has re-partnered the wife has not. The net property pool is fairly modest.
Having regard to relevant considerations discussed I intend to make orders that the wife retain the Street A, Suburb B property. I am persuaded that the primary carer for X she will engage the support of her parents. This is likely to ensure the wife remains in the work force. She indicated she needed her parents to assist her in that regard. Though the husband has occupied the Street A, Suburb B property for the last 3 years his current wife does not work and is available to care for their new baby in addition to assisting with X’s care.
The net divisible non superannuation pool is $584,368 ($1,031,048 $446,680) whilst the net superannuation pool is $160,836. I intend to take a combined asset approach to this matter.
The “realised combined net asset pool” is $745,204. Neither party is seeking a superannuation splitting order. The wife has superannuation of $77,425 and non-superannuation assets of $41,499. The husband has superannuation of $83,411 and non-superannuation assets of $59,549 (including the $14 from the joint account). The wife retains assets and superannuation of $118,924 whilst the husband retains assets and superannuation of $142,960.
The Street A, Suburb B property has equity of about $483,320. In retaining the Street A, Suburb B property the wife will be required to discharge the current mortgage in joint names and re-finance. The current mortgage is $446,680.
I am satisfied having regard to the parties respective contributions and section 75 (2) factors that the parties interests in property and superannuation should be distributed as to 63% to the wife and 37% to the husband. In the event that the wife received 63% this amounts to $469,478. The husband would receive 37% or $275,726. The husband retains property and superannuation to the value of $142,960 and the wife retains property to the value of $118,924. The wife would be required to pay the husband $132,766.
The effect of the orders would require the wife to obtain re-finance for the property in the amount of $599,446. The husband would have a significant deposit with which to purchase a property and has a greater income earning capacity to service a mortgage.
The wife sought to retain items of personal property listed on Attachment “A.” She was briefly cross examined about seeking the return of items of property however the particular items listed were not put in issue in the proceedings. I intend to make an order that the parties reach agreement about those items through mediation. In the event that they are unable to agree then the items be sold and the proceeds distributed equally. This issue unfortunately was not adequately canvassed during the proceedings.
I make orders that the property of the parties be distributed as to 63% of the net property pool to the wife and 37% of the net property pool to the husband. I am satisfied that the orders I make are just and equitable in the circumstances and I make property orders 26 to 41 accordingly.
I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 30 August 2019
ANNEXURE A
List of items for collection:
All of our client’s clothing, footwear, jewellery, accessories, handbags and cosmetic products;
X’s clothing, toys, books and unopened gifts;
Gifts to our client, including but limited to:
a.Photo frames;
b.Crystal trays;
c.Crystal bowls;
d.Serving trays;
e.Perfumes;
f.Corelle Dinner set (box of four);
g.Tea set;
h.Blanket; and
i.Quilt cover and comforter sets.
Our client’s office items, including but not limited to:
a.Chair;
b.Printer; and
c.Shredder.
The wall painting in the living room gifted by our client’s parents; and
Gifts to our client from her family, including but limited to:
a. cookware set (unopened);
b. BBQ (unopened);
c. Mini trampoline;
d. X’s toy car;
e. Gold plated porcelain display pear;
f. Corelle dinner set for 16 people and set of 5 casseroles with lids; and
g. Monsac suitcase (two).
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Res Judicata
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Standing
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