BAGHTI & BAGHTI
[2012] FamCA 711
•22 August 2012
FAMILY COURT OF AUSTRALIA
| BAGHTI & BAGHTI | [2012] FamCA 711 |
| FAMILY LAW – CHILDREN – With whom a child should live – with whom a child should spend time with – best interests of the child – husband’s paranoid personality – husband’s use of surveillance of the wife and child – where the child is obese – where the child has suffered from absent seizures and febrile convulsions and cough variant asthma – where there is a high degree of hostility and conflict between the parents and extended families – where the wife was the primary breadwinner and the husband the primary carer of the child – where the husband’s family is enmeshed. FAMILY LAW – PROPERTY – alteration of property interests – valuation of the wife’s business – valuation of the husband’s company – where the wife’s business had no detailed and consistent business records – wife’s parents as interveners – interveners claiming wife owes them money pursuant to a verbal loan agreement. |
| Family Law Act 1975 (Cth) Conveyancing Act 1919 (NSW) Limitation Act 1969 (NSW) |
| Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 Jones v Dunkel & Anor [1959] 101 CLR 298 Allen v Tobias (1958) 98 CLR 367 Austin v Hornby [2011] NSWSC 1059 Cheung & Cheung and Ors [2008] FamCA 1050 Commonwealth State of Australia v Shahen Serobian [2009] NSWSC 302 Ross v McDermott (1998) 23 FamLR 613 DJM v JLM (1998) 23 FamLR 396 |
| APPLICANT: | Ms Baghti |
| RESPONDENT: | Mr Baghti |
| INTERVENERS: | Mr and Mrs B |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 2145 | of | 2009 |
| DATE DELIVERED: | 22 August 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 29-30 August 2011, 1, 2, 5, 6, 7, 8, 13, 14, 19, 20, 21, 22 September 2011 and written submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Maurice Mr Lawson |
| SOLICITOR FOR THE APPLICANT: | Pigott Stinson |
| COUNSEL FOR THE RESPONDENT: | Mr Livingstone |
| SOLICITOR FOR THE RESPONDENT: | Armstrong Legal |
| COUNSEL FOR THE INTERVENERS: | Mr Gould |
| SOLICITOR FOR THE INTERVENOR: | McDonnell Milne Toltz |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting Orders
The wife have sole parental responsibility for the child, N Baghti (“the child”), born on … May 2003 subject to the proviso that the wife except in case of emergency shall inform the husband in a timely manner of major proposed decisions in relation to the child and invite his agreement to the proposed decision. The husband shall in a timely fashion advise the wife whether he agrees with the proposed decision and if not provide details of any alternative proposal and his reasons for his disagreement. If the parties are unable to agree the matter is to be referred to mediation with such mediator as the parties agree or failing such agreement with a mediator chosen by the Director of Child Dispute Services of this Court. In the event that the mediation fails to achieve agreement then the wife shall in the exercise of her parental responsibility make such decision.
The child live with the wife at all times that he is not living with the husband pursuant to these Orders.
The child spend time with the husband:
(a)during school terms each alternate weekend from after school Friday until the following Monday (Tuesday if the Monday is a public holiday) when the child is to be delivered to his school.
(b)for one half of each school holiday period as agreed but in the event that there is no agreement then the husband is to have the first half in even numbered years and the second half in odd numbered years and that for the purposes of this Order half of the holidays means from the afternoon of the last day of school to 12 noon on the mid day of the holidays.
(c)for the weekend that includes Father’s Day in each year in the event that it is not a weekend that the child spends with the husband pursuant to Order 4(a).
(d)at all other times by agreement between the parties.
The child is to live with the husband from 4.00 pm Christmas Day until
4.00 pm on Boxing Day commencing 2012 and each alternate year thereafter and from 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day commencing 2013 and each alternate year thereafter.
The child is to live with the husband from 5.30 pm on the Thursday immediately preceding Catholic Easter until 5.30 pm on Easter Sunday each year; conversely the child is to live with the wife during the same period for the Greek Orthodox Easter observances. In the event that Catholic Easter and Greek Easter observances fall on the same weekend, the parties shall reach an agreement on the times and failing agreement the child is to live with the husband from 5.30 pm on the Thursday immediately preceding Catholic Easter until 5.30 pm on Easter Saturday.
On the child’s birthday, where the child does not live with the husband, the child is to spend time with the husband for a period of two hours on a school day and for a period of four hours on a non-school day and, failing other agreement, 3.00 pm to 5.00 pm on a school day and 9.00 am to 1.00 pm on a non-school day, conversely the same for the wife.
On the child’s birthday, where the child does not live with the wife the child is to spend time with the wife for a period of two hours on a school day and for a period of four hours on a non-school day and, failing agreement 3.00 pm to 5.00 pm on a school day and 9am to 1pm on a non school day.
The child is to spend time with the husband on the husband’s birthday at times to be agreed between the parties where the child does not live with the husband on that day and, failing agreement from 3.00 pm to 5.00 pm on a school day and 9.00 am to 1.00 pm on a non-school day.
The child is to spend time with the wife on the wife’s birthday at times to be agreed between the parties where the child does not live with the wife on that day and, failing agreement from 3.00 pm until 5.00 pm on a school day and 9am to 1.00 pm on a non-school day.
The child is to live with the wife for the weekend that includes Mother’s Day in each year in the event that it is not a weekend that the child otherwise lives with the wife pursuant to these Orders.
The child is to live with the husband for the weekend that includes Father’s Day in each year in the event that it is not a weekend that the child otherwise lives with the father pursuant to these Orders.
The child have telephone contact at 6.00 pm every day with the parent with whom he is not living and each of the parties is to facilitate and encourage such contact.
Changeover of care for the child under the Orders contained herein is to occur to and from the child’s school on school days and otherwise at a public venue to be agreed upon between the parties.
Both parents are to obtain a referral for the child to attend upon Dr F, or such other paediatrician as recommended by the child’s general practitioner currently being Dr U, and are to jointly facilitate the child’s attendance upon the said paediatrician at such times as are requested by the paediatrician.
Both parents are to adhere to the advice of the paediatrician in Order 14 in respect of the child’s medical care.
Both parents are to obtain a referral for the child to attend upon a dietician recommended by the child’s general practitioner currently being Dr U, and are to jointly facilitate the child’s attendance upon the said dietician at such times as are requested by the dietician.
Both parents are to adhere to the advice of the dietician in Order 16 in respect of the child’s diet.
Each parent is to seek the advice of the child’s paediatrician in relation to the suitability and number of extra-curricular activities to be undertaken by the child, and, subject to their adherence to that advice they may, subject to agreement between them, enrol the child in that activity.
Each of the parents will ensure as far as possible the child’s attendance at agreed extra-curricular activities when he is in their respective care.
The husband is restrained from authorising his siblings Ms DB,
Ms MB, Ms GB from attending at the child’s school other than to attend events at the school to which Aunts are specifically invited.
Except in the case of an emergency each of the parents are personally responsible for delivering and collecting the child from his school whenever he is in their respective care.
Except in the case of an emergency each of the parents is restrained from taking the child to any medical practitioner of any sort, for any purpose whatsoever without the written consent of the other parent.
Except in the case of an emergency each of the parents is restrained from allowing any other person to take the child to any medical practitioner of any sort, for any purpose whatsoever.
Both parents are to provide the child with his own bed and are to ensure that he sleeps in that bed whenever he is in their respective care, and each party is to ensure that no adult sleeps with the child when he is in their respective care.
Each of the parents is restrained from causing or permitting any person or entity:
(a)to conduct surveillance of the husband, or the wife, or of the child, and in the event that it comes to the notice of the wife or the husband that such surveillance of the other is being undertaken by any person or entity then the wife or the husband are to forthwith notify the other in writing of such surveillance.
(b)for the purposes of these Orders surveillance means the use of any technique which includes but is not limited to, personal observation, photography, audio and video recording, whether or not such surveillance is conducted covertly.
The husband and wife have leave to serve a copy of these Orders upon the following persons/organisations:
(a) the Local Area Command of the Police Stations nearest to their homes;
(b) the child’s school or schools;
(c) Dr F;
(d) Dr U;
(e)any other relevant medical practitioner treating the child from time to time.
The parties do all acts and all things and sign all authorities necessary for each of the parties to each receive a copy of all school reports, notices, circulars and other correspondence in relation to the child’s schooling, sport and behavioural issues.
Both parents are restrained from denigrating the other parent or their family members to the child, within his presence or within his hearing, and both parents are to use their best endeavours to restrain any other person from denigrating the other parent or their family members to the child, within his presence or within his hearing.
The wife and husband each be restrained without the consent of the other from changing the child’s ordinary place of residence to a place more than
20 kilometres from Martin Place, Sydney.
Each party keep the other party informed in writing of any change to their residential address, landline and mobile telephone number within 24 hours of any such change.
The husband be and is hereby restrained from removing or attempting to remove the child from the Commonwealth of Australia. It is further ordered that the Australian Federal Police place the name of N Baghti on the Airport Watchlist in force at all points of departure or arrival in the Commonwealth of Australia and maintain the child’s name on the Watchlist until further Order of the Court.
Property Orders
That each of the husband and the wife do all such acts and things as may be necessary to sell for the best price reasonably obtainable the property situated at and known as C Street, Suburb H (“the former matrimonial home”). The former matrimonial home is to be offered for sale by private treaty in the first instance.
The sale price of the former matrimonial home for the purpose of such sale shall be such price as is agreed between the husband or the wife or in the absence of agreement the sum of $610,000.
For the purpose of such sale the selling agent shall be such agent as the parties agree or in the absence of agreement such agent as is nominated by the President for the time being of the Land and Property Institute. The solicitor to act for the parties on sale shall be such solicitor as the parties agree or in the absence of agreement such solicitor as is appointed by the President for the time being of the Law Society of NSW.
In the event that the former matrimonial home does not sell within a period of three months then the parties will do all such acts and things as may be necessary to procure the sale of the property by auction.
The reserve price for such auction shall be such amount as the parties may agree or in the absence of agreement the sum of $610,000.
Both parties are to attend the auction for the purpose of any negotiation required with the highest bidder and will accept as the sale price of the said property absent other agreement between them a price within 5% of the reserve.
In the event that the property does not sell at auction it shall thereafter be submitted to sale by private treaty and public auction and the provision of these orders above shall mutatis mutandis apply save that on any subsequent sale saving other agreement of the parties the sale price and reserve shall be reduced by 5% from the sum set as reserve for the prior auction.
Either party is at liberty to bid at any auction.
Any costs payable in respect of the sale of the matrimonial home either by private treaty or public auction shall be paid and borne by the parties equally.
Pending the sale of the former matrimonial home the wife is to have the right to occupy the same to the exclusion of the husband. During such period the wife shall pay as and when the same become due and payable all instalments of principal and interest owing and accruing under the terms of the mortgage charged upon the said property and all rates, taxes and charges owing and accruing with respect to the said property.
The proceeds of the sale of the former matrimonial home shall be applied in the manner and priority namely:
(a) in payment of selling expenses and agents commission;
(b) in payment of the legal costs of and incidental to the sale;
(c)in payment of any adjustments required to be made in favour of a purchaser on sale;
(d)in payment of the amount required to cause any mortgage charged on the said property to be discharged;
(e)in payment of the balance as to 55 per centum thereof to the wife and as to 45 per centum to the husband. The husband is to charge his entitlement to any sum payable to him under these Orders with any obligation he has to pay to any witness or party to these proceedings any amount required by order of the Court or agreement of the parties to be paid. The wife is to charge her entitlement to any sum payable to her under these Orders with any obligation she has to pay any witness or party to these proceedings any amount required by order of the Court or the agreement of the parties to be paid.
The wife pay to the husband on settlement of the sale of the former matrimonial home an amount of $91,080 and the wife is thereupon declared as against the husband the legal and beneficial owner of her interest in the property situated at and known as T Street, Suburb A.
The husband and wife forthwith and in any event within three days from the date of these orders are to do all such acts and things necessary to cause the release of monies in the controlled monies account held by Pigott Stinson, Solicitors (being the balance of the sale proceeds of the property E Street, Suburb H (“E Street”) formerly owned by the wife) and to cause the said money to be paid to the interveners to the extent necessary for the purposes of paying the monies to the ANZ Bank to discharge the mortgage ($465,000 plus interest accrued thereon) in the name of the interveners raised by them to assist in the purchase of E Street by the wife. Each of the husband and the wife are to pay half each of any capital gains tax payable with respect to the sale of the property. Any balance existing after such payment shall be divided as to 55 per centum to the wife and as to 45 per centum to the husband.
The Court has made the decision that the wife’s interest in the business known as D Business be sold, noting that her partner Ms B informs the Court that she is willing to join in with the wife on the sale of the business, and also noting that the interveners agree to providing a lease on specified terms to the prospective purchaser/s, and also noting that the expert evidence is that a period of time observing the business be provided to the purchaser/s so as to allow the purchaser/s to observe it and form a view as to the value of it to the purchaser if required by the purchaser. From the gross proceeds of sale the Court will Order the repayment of the loans raised against the business and the sum due to the interveners. The net proceeds of sale of the wife’s interest in the business, if any, are to be divided as to 55 per centum to the wife and as to 45 per centum to the husband.
The wife has advised the Court that she wishes to be heard on the form of the orders for the sale of D Business. Accordingly, The Court will afford the husband, the wife, the interveners and Ms B the opportunity to address the Court on this issue within the following timeframe:
(a)the wife, the interveners and Ms B are to file and serve on the husband and the others to whom leave is granted within seven days of the date of this order their proposed minute of order for the sale of the wife’s interest in the business D Business;
(b)the husband is to file and serve on the wife and the others to whom leave is granted within a further seven days his response to the proposed minute of order and any suggestion for an alternative order;
(c)the wife and the others to whom leave is granted are to file and serve on the husband and the others to whom leave is granted within a further seven days their reply.
The matter of the orders for sale of D Business will be listed for further hearing before Justice Fowler on a date to be fixed.
The matter is listed for mention before Justice Fowler at 9.30 am on Friday,
28 September 2012.
Pending the sale of the business the husband is restrained for himself and or his agents approaching, watching, besetting or being within 500 metres of the said business.
Except as otherwise provided, the husband and the wife are declared each as against the other to be the sole legal and beneficial owners of all items of property including without limiting the generality thereof money, shares, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
In the event that the husband or wife refuses or neglects to comply with the provision of any Order or Orders therein, the Registrar of the Family Court of Australia at Sydney is hereby appointed to execute all deeds and documents in the name of the wife or husband as the case may be and to do all such acts and things necessary to give validity and operation to the said Order or Orders and the party in default is ordered to pay any and all reasonable costs for the purposes of enforcing this Order.
The husband is to indemnify and save harmless the wife from and against all actions, claims, suits and demands made against the wife in relation to any liabilities of the husband or his company O Pty Ltd.
The wife is to indemnify and save harmless the husband from and against all actions, claims, suits and demands against the husband in relation to any liabilities of the wife or the business D Business.
The husband’s application for spousal maintenance is dismissed.
All outstanding applications are otherwise dismissed.
Any application for any order as to costs is to be filed within 21 days of the date of this Order.
IT IS NOTED that publication of this judgment under the pseudonym Baghti & Baghti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2145 of 2009
| Ms Baghti |
Applicant
And
| Mr Baghti |
Respondent
And
| Mrs B and Mr B |
Interveners
And
| Legal Aid NSW |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Reasons for Judgment in Relation to Parenting Matters
Introduction
Before the Court are proceedings between parents with respect to the parenting of the child of their marriage, N Baghti, (“the child”), born in May 2003 and now nine years of age. The proceedings also involve an alteration of their property interests which issues are the subject of separate reasons for judgment.
N is a child who suffers from cough variant asthma and absent seizures, and has also had a history of febrile convulsions. The child takes ventolin and children’s panadol on a needs basis. He also has been prescribed Midazolam for a prolonged febrile convulsion.
The child is also mildly obese, and the husband is concerned with his eating and dietary habits. In particular he asserts that the wife’s feeding practices and diet are inimical to the child’s health.
The wife asserts that the child, whilst being mildly obese, does not have any weight issues and is a growing boy whose diet just needs to be maintained.
The child has been under the care of Professor VR at Sydney Children’s Hospital for the absent seizures, and his paediatrician Dr F for the asthma and his overall general health.
The child currently spends week-about time with each of his parents. There is no doubt that the child loves each of his parents, and is loved by each of his parents.
There is a significantly high degree of conflict between the husband and the wife which conflict the husband’s family appears to have joined in and been very much actively part of the process of dispute. That family and the husband as a group is described by the psychiatrist called in evidence in the proceedings, Associate Professor X (“Dr X”), as one which is enmeshed and which does not afford an environment in which the child could without difficulty develop his individuation.
The relationship of the husband and wife has been one in which the wife has been the primary breadwinner and the husband has, with the help of his family, been the primary carer of the child.
It is asserted by the wife that from the time of the child’s birth the husband has sought to distance the wife’s family from the child’s life.
The Court must seek, in the high conflict environment that exists between these parents and where there are many issues of fact, a means whereby the child may gain the benefit of such inputs as his parents can constructively make to his development of his full potential in a way which does not present a risk of harm to the child.
With the conflict at a level not often seen in such cases and there being no sign of abatement the task is not inconsiderable.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1968, the husband was born. He is now 43 years of age.
In 1976, the wife was born. She is now 35 years of age.
In 1994 the husband had sustained injuries as a result of a motor vehicle accident. The husband was employed in the Police Force doing undercover work at the time. The husband’s evidence is that he was subjected to death threats from offenders whilst undertaking this work. It is asserted by the wife that the husband told the Police Force that he was suffering from anxiety, depression, paranoia, and neck and back pain.
In November 1998 the husband, his brother and another associate incorporated FP Pty Ltd.
In late 1999, the husband was medically discharged, and voluntarily resigned, from the Police Force.
In approximately 2000, the wife underwent a gastric banding procedure. The husband asserts, and the wife does not deny, that this procedure causes her to regurgitate food when she either eats too rapidly or the food portions swallowed are of an inappropriate size. The wife it is said by the husband has been known to regurgitate in the presence of the child. The wife, whilst conceding the problem of regurgitation, does not say that it happens in the presence of the child or to his distress.
On 15 March 2000 the wife acquired a 25 per cent share in T Street, Suburb A, (“T Street”) purchased with her parents (“the interveners”) and sister, Ms B. The property was purchased at a cost of $590,000 funded by a mortgage of $520,000. This is a commercial property. The interveners receive the rent and fund the mortgage repayments.
In August 2001, the husband purchased a company S Pty Ltd, which name was later changed to O Pty Ltd. The husband is the director of this company which provides services primarily to one client.
In May 2002 the husband and wife purchased the property at C Street, Suburb H (“the C Street property”) for $527,000 which was purchased with the help of a loan secured by a mortgage for $500,000. It is asserted by the wife and interveners that the interveners paid the 5 per cent deposit of $26,375. The husband disputes this.
In May 2002, the husband and wife were married.
In May 2003, the child N was born.
At the age of six months the child commenced swimming lessons at L Pool.
From 2004 onwards, the child suffered asthma symptoms, colds and viral infections, absent seizures and febrile convulsions.
From 2004 until 2007 the wife asserts that the parties commenced having marital problems, arguing about money and other issues. The husband asserts that the wife decided to separate after confronting the husband about an
ex-girlfriend of his.
The wife asserts that up until November 2004 she was the primary carer for the child, while the husband was working as a paraprofessional with his sister and studying part time. She states that the husband helped with bathing and feeding the child.
The wife’s assertion is disputed by the husband who asserts that the wife returned to work shortly after the child’s birth, from about April 2004 and he was then the primary carer and was studying by correspondence.
The husband asserts that the wife was undertaking renovations to the premises of her parents’ business, the CM Business, which she and her sister took over from them and later renamed to D Business.
In September 2004 the wife and Ms B bought and took over the business based on the agreement that once it was sold $400,000 would be repaid to the interveners. The business was renovated and reopened as D Business in November 2004.
The wife does not deny that the business and its premises were renovated but says that she did not work full time from April 2004 to November 2004 but did spend some time during this period in attending to matters in relation to renovations. She says that notwithstanding that, she was the primary carer of the child until November 2004.
The Court has accepted the wife’s evidence in preference to that of the husband on this issue.
In November 2004, it is the wife’s evidence that she commenced working at the retail business seven days per week, whilst the husband was the primary carer of the child. It is accepted that both the wife and the husband contributed to the care of the child in the first 18 months of his life and indeed thereafter with the husband taking the major role from November 2004.
In November 2004, the child had his first febrile convulsion. He attended upon Dr F at a Private Hospital.
On 14 June 2006, the child suffered a febrile convulsion and was taken to RN Hospital.
On 10 October 2006 the wife purchased the property at E Street, Suburb H (“the E Street property”) for $1.1 million funded by two loans from the ANZ Bank; $630,000 in the sole name of the wife and $465,000 in the name of the interveners offering their property as security. The rental income was applied to the mortgage. The sum owing to the interveners remains outstanding.
In 2007, the child commenced attendance at H Pre-School two days per week on Mondays and Tuesdays. The husband cared for the child from Wednesday to Sunday.
On 15 June 2007, the child suffered breathing difficulties and was taken to RN Hospital.
On 15 July 2007, the child suffered a febrile convulsion and was taken to RN Hospital.
In mid-2007, Dr F detected an innocent heart murmur in the child, which was confirmed by a cardiologist, Dr R.
In 2008, the child commenced attendance at H Pre-School three days per week. The husband also commenced working four nights per week. The husband and wife are at issue as to who was the primary carer for the child during this time. There appears little doubt that on whatever view is taken that each of the parents made a contribution to the support of the child and that in that they received some assistance from the husband’s family.
In 2008, the child commenced martial arts lessons on Saturday mornings from
11.30 am to 12.30 pm.
On 20 March 2008, the child weighed 23.5kg, noted by the husband as a reasonable weight for his age, and was in the care of both parents.
On 3 April 2008, the child suffered acute asthma and was taken to RN Hospital.
In May 2008, the wife asserts that the husband grabbed her hair, pulled her head back and put his hands around her neck. She states that she called the Police and made a report of domestic violence. The husband denies this, and asserts he was the party who called police and complained on two occasions. Whatever the truth of the detailed allegations there was a clearly hostile incident between the wife and husband at this time.
On 19 June 2008, the child was taken to RN Hospital.
On 25 September 2008, the child weighed 21.5kg. The child was in the care of both parents, with the husband as the primary carer.
Sometime in 2008, the child underwent a tonsillectomy and adenoidectomy.
On 5 December 2008, the husband and wife separated. They remained living under the same roof until November 2009. The date of separation is disputed by the husband. He asserts that separation occurred on 14 April 2009 when the wife filed her initiating application. The difference between the parties on this matter is in the view of the Court not of great moment.
In January 2009, the child commenced school at V Primary School in Suburb H. The wife asserts that care of the child was shared outside of school hours, whereas the husband states that he remained the primary carer. The Court accepts that each of the parties contributed to his care although the precise proportions of such contribution is not determined.
On 14 April 2009, the wife commenced proceedings in this Court.
On 12 May 2009, the child suffered a febrile convulsion whilst at school and was taken to hospital. The wife asserts that the husband made an appointment with Professor VR and changed an appointment with Dr F without her knowledge or consent. The husband denies this and states that the wife did not attend the appointments due to work commitments. The Court accepts the wife’s evidence.
On 23 April 2009, it is asserted by the husband that the wife assaulted him and made allegations of stealing in the presence of the child. The wife denies this. The Court is unable to determine where in relation to these allegations the truth is to be found.
On 6 May 2009, the wife made allegations against the husband of stealing and called him a “donkey” in the presence of the child. This incident was neither denied nor accepted by the wife.
On 11 May 2009, the husband states that the wife discussed the property settlement and case in an angry manner in the presence of the child, and did not stop when the husband asked her to. The wife denies this.
On 12 May 2009, the child suffered a febrile convulsion and was taken to RN Hospital.
On 13 May 2009, the wife attempted to attack the husband by reaching toward his face, throat and neck area and said words to the effect, “I can’t wait to fucking get rid of you” in the presence of the child. This incident was neither denied nor admitted by the wife. The Court accepts that there have been a number of unseemly incidents between the husband and wife.
In May 2009, the wife asserts that the husband arranged a birthday party for the child without consulting her.
On 27 May 2009, the child attended a consultation with Professor VR.
On 27 May 2009, the husband asserts that the wife called him a “dickhead” in the presence of the child. The wife denies this.
On 27 May 2009, the wife asserts that the husband changed the appointment with the child’s paediatrician and made an appointment with a neurologist without consulting the wife.
On 28 May 2009, the husband states that the wife called him a “dickhead” in the presence of the child. The wife denies this.
On 29 May 2009, the wife caused a letter to be sent to the husband’s solicitors alleging the husband attempted to thwart the time that the wife spends with the child.
On 30 May 2009, the husband states that the wife commenced an argument in the presence of the child and said words to the effect of, “I am going to stop work and we are going to lose everything and I am going to take [the child] away from you”. The wife denies this, and states that she initiated a discussion seeking to resolve the parties’ differences.
On 30 and 31 May 2009, the wife asserts she was not informed about the child’s birthday party, and a heated discussion occurred. The husband denies this and asserts that the wife attended the party. The Court accepts the wife’s evidence.
On 4 June 2009, the husband states that the child was having coughing attacks and high temperature and that the wife stayed in the spare room and did not check on the child. This incident was neither denied nor admitted by the wife.
On 5 June 2009, the child suffered a fever and was taken to RN Hospital.
On 14 June 2009, the husband states that the wife made various allegations against him, including saying he was in it for the money and caused the child’s febrile convulsions. The wife denies this.
On 15 June 2009, the husband asserts that the wife commenced an argument in the presence of the child, about the husband’s ex-girlfriend Ms I who appeared in a magazine due to her alleged relationship with a well known personality. The wife denies this.
On 16 June 2009, the wife caused a letter to be sent to the husband’s solicitors alleging that the husband told the wife that the child’s consultation with
Dr F was in July 2009, and that the husband had just informed her that the appointment was in fact at 4.00 pm that day. The husband denies that the wife was not informed accurately of the appointment in a timely manner.
On 16 June 2009, the child attended a consultation with Dr F to discuss his recent seizure and admission to RN Hospital. The wife asserts that the husband arranged this consultation without inviting her.
On 16 June 2009, the husband asserts that whilst he was playing in the bedroom with the child, the wife threw a magazine at him which contained an article about Ms I, said to be the husband’s mistress, who later became a close friend of a well known personality. The wife ripped out the picture of Ms I and stuck it on the bedside draw and said “dream about this” in the presence of the child. The wife denies throwing anything at the husband.
On 26 June 2009, the wife was advised that the child was sick at school. Arguments ensued between the wife and husband about the child taking Epilim (anti-convulsion medication). The wife asserts that she discovered the husband had made appointments with the neurologist without consulting her. The husband denies this and states that the wife was aware of the appointments but could not attend due to work commitments, and that there was a common approach that the husband was the party chiefly responsible for medical issues.
On 27 June 2009, the wife accused the husband of stealing money and threatened to chop off his fingers and call the police in the presence of the child. The child was highly agitated and scared. The wife denies this incident occurred. The Court is unable to determine the truth of the allegation.
On 13 July 2009, the husband caused a letter to be sent to the wife’s solicitors denying all allegations made by the wife that the husband is verbally abusive to the wife; advising the wife was present at Dr F’s previous appointment and was aware of the subsequent appointment on 16 June 2009; requesting the wife vacate the home as there was considerable conflict between the parties which was having a detrimental effect on the child; and advising that the wife had failed to pay household and family bills as agreed.
On 24 July 2009, the wife filed an Amended Initiating Application relating to property and parenting.
On 25 July 2009, the husband asserts that the wife said to the husband in the presence of the child, “You are a loser, you are a nobody. You have assaulted me and I am going to call the police”. The parties, he says, commenced to fight over a mobile phone and the wife alleged that the husband assaulted her. The husband called the Police, but there was no report of violence made by the police. The wife denies this incident occurred. The Court is unable to determine the truth of the allegation.
On 30 July 2009, the husband filed his Response to Initiating Application relating to property.
On 3 August 2009, the husband asserts that the wife engaged in verbal abuse and badgering whilst the husband was exercising and in the presence of the child. The wife apparently said words to the effect of, “Everybody is laughing at you, you are a loser. By the time I finish with you I am going to crush you”. The wife denies this. The Court is unable to determine the truth of the allegation.
On 9 August 2009, the husband alleges that the wife engaged in verbal abuse whilst the child was in the bathroom and within hearing distance. The wife denies that she engaged in any abuse and states that the child was not present.
On 30 August 2009, the husband alleges that the wife brought the child home at 7.30 pm with his face dirty, in a bloated state, overtired and stating he was still hungry. The wife denies that the child was in a bloated state. The husband was concerned as he had asked the wife to return the child by 5.00 pm – 6.00 pm. The husband alleges that the wife became hostile and confrontational, and that the child was unsettled, overtired and unable to sleep until 9.00 pm. The wife states that the husband’s account of events is incorrect and that she was not hostile.
On 31 August 2009, the husband and the child attended upon Dr U and obtained a medical certificate indicating that the child was suffering from excessive fatigue, and was unfit for school that day. The husband informed the wife by telephone. The wife states that the husband arranged this consultation without inviting her. The wife also alleges that the husband did not bring the child home until 3.00 pm that day with no explanation and that the wife was unable to locate the child for several hours that day. The husband asserts that the wife would consistently leave the home in the early hours to go to work and left the child to be cared for by the husband.
On 8 September 2009, the child broke out in a rash and attended upon
Dr U with the wife and husband. The husband and the child stayed at the husband’s parents’ house that night, the husband asserts due to hostility from the wife. The wife asserts that the husband did not inform her of this appointment. The wife also asserts that the husband had a history of taking the child away from home and school without the wife’s consent. The wife requested that the husband sign an undertaking not to take the child away from the matrimonial home until the parenting matters were resolved, but he refused to sign. The wife states that an argument occurred over the telephone with the husband when he didn’t return the child home.
On 9 September 2009, the wife asserts that she telephoned the husband but he did not answer the phone. The husband denies this. There was a further appointment with Dr U and both the husband and wife attended.
On 12 and 13 September 2009, the wife asserts that the husband did not allow her to spend time with the child despite previous agreements. The husband denies this.
On 14 September 2009, the husband advised the wife through a letter sent to her legal representatives that he was no longer represented. The letter also contained a list of conditions he wanted imposed on the wife concerning her care for the child.
On 16 September 2009, the wife filed a Further Amended Application for property and parenting orders.
On 18 September 2009, the husband and wife consulted with Professor VR. Professor VR diagnosed the child as having absent seizures. It was agreed that the child would not be commenced on the medication Epilim for his seizures at that time. That night the husband took the child to spend the night at the paternal grandparents’ house as the child was distressed due to a process server at the matrimonial home upsetting him. The husband asserts that he spoke to the wife and confirmed they would be spending the night at the paternal grandparents’ house. The wife disputes the husband’s evidence that the process server distressed the child.
In September 2009, the husband took the child to martial arts class and he was picked up by the wife to spend the day with her as it was her birthday. The husband refused to give the wife the child’s medical kit due to her alleged lack of knowledge in relation to the child’s medication and treatment. The wife denies she has or had lack of knowledge in relation to the child’s medication and treatment. The wife contacted the husband via text message and indicated that she and the child were spending the night at her parent’s house.
On 20 September 2009, the wife failed to take the child to martial arts class. The wife lost the keys to the matrimonial home and changed the locks. She asserts that she could not contact the husband on his telephone.
On 21 September 2009, the wife and husband had a conversation about the child’s medical kit and the wife’s failure to consult with Dr F, the child’s paediatrician, or the child’s general practitioner, Dr U, in relation to the child’s treatment plan. The wife denies this.
In approximately September 2009, the husband arranged ongoing surveillance of the wife by private detectives.
On 6 October 2009, various interim parenting orders were made by Judicial Registrar Loughnan (as he then was), including the appointment of an Independent Children’s Lawyer (“ICL”). A Child Dispute Conference was also held, and the wife made an undertaking to complete a first aid course.
On 7 October 2009, the husband sent a letter to the wife’s legal representatives requesting that they provide dates and times the wife wished to spend with the child during the school holidays. The wife asserts that the husband would not arrange the splitting of days and would not consult with her about care arrangements.
On 7 October 2009, the husband sent a further letter to the wife’s legal representatives advising that the response was unacceptable and another indication of the wife’s inability to commit to dates and times that she wished to spend with the child. The letter also indicated that the wife has made allegations against the husband that he thwarts her time with the child. The husband denies these allegations. The letter advised the wife to put an arrangement in writing.
On 9 October 2009, the husband sent a letter to the wife’s legal representatives noting that the wife did not attend the child’s swimming lesson that day. It further advised that the wife failed to provide dates and times that she wished to spend with the child, and that the husband had scheduled outings for him. The husband asked the wife again if she wished to commit to times and dates to spend with the child.
On 9 October 2009, the wife’s legal representatives sent a letter to the husband making allegations of the husband thwarting the wife’s time with the child. The letter indicated that the wife wished to spend every second day with the child during the school holiday period and set out various dates. The husband states that the dates provided were not every second day.
On 12 October 2009, the husband sent a letter to the wife’s legal representatives stating that the wife took the child in her car that day without a booster seat to her business at Suburb A where the child ate chips and chicken while sitting opposite equipment which emitted charcoal smoke. The husband asserts that this is against the advice of Dr F. The husband also requested an explanation why the wife cancelled the child’s martial arts lesson on
13 October 2009, as the husband considered them an integral part of his health and fitness regime.
On 15 October 2009, the husband sent a letter to the wife’s legal representatives noting that on 13 October 2009 the wife took the child in her sister’s car without a booster seat to spend time with her extended family where he ate junk food and soft drink. The husband asserts that when the child returned he was irritable, tired and bloated. The wife then cooked the child a large steak which he ate and then complained of a stomach ache. The husband also asserts that the child was subjected to bullying by another child whilst in the care of the wife, and when brought to her attention she did nothing about it, which caused the child to be upset and anxious.
On 15 October 2009, the child was to be in the care of the wife. The husband asserts that she disappeared at 6.04 am that morning and returned at 8.05 am after the husband called her to see where she was. The wife requested that the husband drive her and the child to his martial arts lesson and then back home again.
On 16 October 2009, the husband sent a letter to the wife’s legal representatives noting that the wife took the child to her work premises where he sat opposite equipment where he was exposed to charcoal smoke. The wife allowed the child to consume junk food without supervision. The husband asserts the child returned home tired, irritable, bloated and congested. The wife does not agree that the contents of the letter accurately describe what occurred.
On 19 October 2009, the husband sent a letter to the wife’s legal representatives alleging that the wife persists in feeding the child excessive junk food and also consumes excessive junk food in the presence of the child. The husband alleges that the wife has a serious eating disorder and regurgitates after she eats then commences to consume more food. The wife does not agree that the contents of the letter accurately describe what occurred.
On 21 October 2009, the parties attended a conciliation conference before Registrar Crawford.
On 22 October 2009, the wife and husband took the child to consult with
Dr U.
On 26 October 2009, the husband sent a letter to the wife’s legal representatives noting that the wife accused the husband of tampering with her brakes. It is also stated that the husband had a conversation with the wife over the telephone where the wife admitted that she had not noticed the child having recent absent seizure episodes, whilst several other people have observed the child having absent seizures. The wife does not agree that the contents of the letter accurately describe what occurred.
In October 2009, the wife became aware that the husband had organised surveillance of her due to events described in the husband’s correspondence to her legal representatives.
From October 2009, the wife has suffered from stress which has caused her to regurgitate her food. The stress has also had an effect on the child as he has stomach problems, throws tantrums and won’t listen to the wife. The husband denies this, and alleges that the wife constantly regurgitates in the presence of the child. The husband also asserts that the child has stomach problems because he is constipated and this occurs when the wife fails to feed him foods containing fibre.
On 2 November 2009, the child told the wife that the husband told him not to tell her that he received a school award. The husband disputes this assertion.
On 6 November 2009, the husband sent a letter to the wife’s legal representatives requesting the wife to make various admissions including she has a serious eating disorder; she regurgitates every time she eats; she constantly exposes and feeds the child junk food; she is unaware of the medical treatment plan for the child; and the husband has been the primary carer for the child.
On 10 November 2009, the husband sent his intended Response to Application to the wife about parenting orders and sole parental responsibility for the child. The husband also sent the wife a list of documents to produce.
On 11 November 2009, the husband filed his Amended Response to an Application in a Case related to parenting.
On 11 November 2009, parenting and financial orders were made by then Judicial Registrar Loughnan. The Orders provided for equal time during school term and half of the school holidays for a limited specific number of holidays, and non-removal of the child from Australia. The financial Orders were for the sale of the E Street property.
On 11 November 2009, the husband departed the former matrimonial home and moved in with his parents. The wife remained in sole occupation of the former matrimonial home.
On 22 November 2009, the child was in the husband’s care. The husband received a message from Constable P of a local Police Station advising that the wife had contacted the police as she was concerned about the welfare of the child. The husband called Constable P and stated that the child was okay, and Constable P advised that the police would not get involved as long as the child was safe.
On 26 November 2009, the husband sent a letter to the wife’s legal representatives setting out what occurred on 21 and 22 November 2009.
On 1 December 2009, the child’s weight was recorded at 30.7 kg. Dr F diagnosed the child as mildly obese in his report dated 1 December 2009.
On 22 December 2009 Judicial Registrar Johnston (as he then was) dismissed the husband’s application for spousal maintenance and made a costs order against the husband, requiring him to pay the sum of $1,800, to be paid from the husband’s share of property at the ultimate determination or resolution of those proceedings.
From 24 December 2009 to 6 January 2010, the child was in the care of the husband, with the exception of Christmas Day where the child was with the wife from 4.00 pm. The child lost 0.3 kg, and his weight was recorded as
30.4 kg.
From 6 to 26 January 2010, the child was in the care of the wife. The child gained 3.4 kg as asserted by the husband.
From 8 to 12 January 2010, the wife became aware that she was being followed by a car driving suspiciously and was scared to return home. The wife made several reports to the local Police.
On 10 January 2010, the wife and the child were at the wife’s cousin
FS’s home. Ms FS’s daughter suffered an anaphylactic shock as she has allergies to nuts. An ambulance was called, and as a novelty the child N’s blood pressure was taken by the paramedics. The wife was under surveillance at this time. The husband disputes the wife’s version of events and asserts that the video footage and the private investigator’s report indicate that the only child seen in the ambulance was the child N stripped to his singlet, which the husband asserts is what happens when he suffers a febrile convulsion. The wife did not advise the husband of the child’s time in the ambulance. At the hearing the husband accepted that the ambulance material produced by subpoena confirmed that the child had not been treated by paramedics. However he made the allegation that the wife possibly planned this to gain a reaction from the husband as she knew she was under surveillance.
In January 2010, the wife, her sister, her cousin and the maternal grandmother completed emergency medication training for seizures, midazolam and epilepsy awareness training with Epilepsy Action Australia.
On 19 January 2010, Justice Cohen made orders for the appointment of
Dr M as an independent expert, and for the parties to consult with
Dr M.
On 27 January 2010, the child’s weight was recorded at the instance of the husband as 33.85 kg.
On 1 February 2010, affidavits were filed by private investigators
Mr EP, Mr WT and Mr MM detailing their extended periods of surveillance of the wife.
On 2 February 2010, the husband’s legal representatives sent a letter to the wife’s legal representatives requesting confirmation that the wife had paid all outstanding accounts; requesting the wife to stop stalking the husband; and noting that the wife had failed to take the child to his martial arts lessons. The wife does not agree that the contents of the letter accurately describe what occurred, and asserts that the child did not want to continue with martial arts but was too scared to tell his father.
On 2 February 2010, the husband’s legal representatives sent a letter to the wife’s legal representatives advising that the husband did not consent to the sale of the matrimonial home and that he would be making an application to the Court for exclusive occupancy.
On 3 February 2010, the husband filed a Contravention Application in relation to parenting orders.
On 5 February 2010, the husband filed an Amended Response to Initiating Application about property, parenting and child support.
On or about 7 February 2010, the child showed the wife where he went to see a doctor in Suburb L. The wife discovered that the child was taken by the husband to Dr W regularly to be weighed prior to handover to the wife and after the child was returned to the husband. A report of Dr W dated
2 February 2010 records the child’s weight on 5 January 2010 and 27 January 2010 and became Exhibit 11. There is no doubt in the Court’s mind that the attendances by the child for this and other “weigh-ins” arranged by the husband and referred to herein were entirely for forensic purposes and that the result of the findings was not made known to the wife after the event until around the hearing.
On 8 February 2010, the husband’s legal representatives sent a letter to the wife’s legal representatives requesting a response to various correspondence and documents, and noting that the husband was not in receipt of the wife’s First Aid Certificate.
On 9 February 2010, the wife’s legal representatives sent a letter to the L Doctors Surgery advising of the proceedings in the Family Court and requesting copies of notes, correspondence and reports in relation to the child.
On 10 February 2010, the wife’s legal representatives sent a letter to the husband’s legal representatives advising that the wife did not feel comfortable being in the same room as the husband; that she will speak to all relevant persons regarding the child on her own; and that is the reason she did not attend the child’s swimming carnival.
On 10 February 2010, the wife was contacted by Dr F regarding the child’s weight concerns, and emotional and psychological wellbeing. Since this time the wife asserts that she has tried to discuss the child’s health concerns with the husband, but the husband has told her to get her legal representatives to write a letter to him. The wife also discovered that the husband cancelled the child’s appointment with the neurologist. The husband denies this, and alleges that the child has had substantial weight gain when in the care of the wife. He asserts that the wife continues to ignore the advice of Dr F in relation to the child’s diet, and he maintains that the wife continues to regurgitate after eating.
On 11 February 2010, the child attended upon Dr F.
On 12 February 2010, the husband’s legal representatives sent a letter to the wife’s legal representatives noting no response was received to their letter dated 8 February 2010 and served an Application in a Case.
On 12 February 2010, the husband’s legal representatives sent a letter to the wife’s legal representatives advising they do not accept that the wife has any concerns about being in the same room as the husband, and noted that the husband is of the view that the wife’s allegations are to create a façade for her continued inability to care for the child because of her work commitments.
On 15 February 2010, Dr W sent a letter to the wife’s legal representatives advising their letter had been referred to Avant Medical Defence Solicitors.
On 16 February 2010, the wife’s legal representatives sent a letter to the Family Court requesting the husband’s two Applications in a Case be heard on the same day.
On 17 February 2010, the wife’s legal representatives received a letter from L Surgery advising that the file for the child was forwarded to Avant Medical Defence Solicitors.
On 22 February 2010, the husband filed an Amended Notice of Appeal regarding the Orders of 19 January 2010 of Cohen J.
On 23 February 2010, the husband, wife and the child attended on Dr U as the child was coughing. A medical certificate was issued.
On 26 February 2010, the husband, wife and the child attended on Dr U as the child was still coughing. A medical certificate and prescriptions were issued.
In March 2010, the wife expressed anxiety regarding further surveillance of her and the child by private detectives instructed by the husband.
On 5 March 2010, the husband’s legal representatives sent a letter to the wife’s legal representatives referring to the wife’s assertion that she no longer felt comfortable in the same room as the husband, and set out various dates the wife asked the husband to attend breakfast, dinner and the movies with her and the child.
On 8 March 2010, the husband, wife and the child attended on Dr EK where the child was diagnosed with an upper respiratory tract infection and prescribed antibiotics. A medical certificate was issued for 8 and 9 March 2010. The wife and the child requested the husband to stay overnight at the former matrimonial home where the husband monitored and treated the child throughout the night.
On 10 March 2010, Cohen J made Orders about the husband’s applications for Stay of Orders.
On 11 March 2010, the wife filed a Response to Application in a Case.
On 11 March 2010, the wife filed a Contravention application.
On 22 March 2010, the husband’s solicitors sent a letter to the ICL requesting that they bring an application in accordance with the husband’s application to ensure that the child is no longer at risk of harm which he continues to remain in whilst he lives with his mother.
From 5 to 11 April 2010, the child was in the care of the husband and was recorded to have lost 1.7 kg.
On 6 April 2010, the husband filed an Amended Application in a Case seeking interim parenting orders.
On 6 April 2010, the child’s weight was recorded as 35.5 kg. The husband relies on a report of Dr NP dated 6 April 2010. The wife asserts that she was never told about the child consulting with Dr NP, and does not know who he is.
On 10 April 2010, the child’s weight was recorded as 33.8 kg. The husband relies on a report of Dr NP dated 10 April 2010.
From 11 to 21 April 2010, the child was in the care of the wife. An increase of 2.6 kg in the child’s weight was recorded. The husband relies on a report of
Dr NP dated 21 April 2010.
On 21 April 2010, the child’s weight was recorded as 36.4 kg. The husband relies on a report of Dr NP dated 21 April 2010.
On 22 April 2010, the husband filed a Further Amended Application in a Case seeking review of Registrar Crawford’s decision of 15 January 2010.
On 27 April 2010, the wife filed a Further Amended Initiating Application regarding parenting and property.
On 28 April 2010, the wife underwent a St John Ambulance Australia First Aid Course for a period of two days, covering caring for kids, performing cardiopulmonary resuscitation, applying first aid, and senior first aid.
On 3 May 2010, the husband filed a Response to an Amended Application in a Case filed by the wife on 27 April 2010.
On 3 May 2010, the child consulted with Dr F. The wife and husband were both present. Dr F prepared a report on this date in relation to the child’s mild obesity and eating diagnoses. Dr F recommended that
Professor VR, a Paediatric Neurologist, be involved.
On 5 May 2010, Orders were made in relation to interim parenting orders, and that the net proceeds of sale of the E Street property be placed in a controlled monies account, and that the husband and wife each receive $50,000 from the proceeds of sale.
On 11 May 2010, the E Street property was sold for $1,268,000. The remaining balance of $479,970.15 was placed into the controlled monies account.
On 12 May 2010, the husband called the wife to tell her he had taken the child to a doctor as he was “complaining about his private bits”.
On 20 May 2010, the wife sent a letter to Dr Z requesting files and reports relating to the child.
From 30 June to 11 July 2010, the child was in the care of the husband. A weight loss of 2 kg was recorded as noted by the husband.
On 1 July 2010, the child’s weight was recorded as 38.1 kg. The husband relies on a report of Ms BN, Dietician, dated 19 July 2010 and charts. The wife asserts she was never told about the child consulting with Ms BN.
On 8 July 2010, the child’s weight was recorded as 36.1 kg. The husband relies on a report and charts of Ms BN dated 19 July 2010.
From 11 to 18 July 2010, the child was in the care of the wife. A weight gain of 3 kg was recorded as noted by the husband.
On 19 July 2010, the child’s weight was recorded as 39.1 kg. The husband relies on a report and charts of Ms BN dated 19 July 2010.
On 26 July 2010, the wife made an application for orders that
Ms MB, the husband’s sister, cease acting for the husband.
On 27 July 2010, the wife, husband, the child and other family members had interviews with Dr X.
On 6 August 2010, Consent Orders were entered into by the parties to extend school holiday time.
On 26 August 2010, a letter from Baghti & Company was sent to the ICL expressing concern regarding the lack of action over the child’s continued weight gain and constipation while in the care of the wife; the apparent disregard to proper sleep patterns while in the wife’s care; and the coughing after attendance at the wife’s business. The wife rejects the assertions made in the letter.
On 9 September 2010, the husband sent a letter to the wife’s legal representatives expressing concern over what he described as the inadequate medical care, in relation to the child’s asthma and febrile convulsions, provided to the child when he presented with symptoms of a cold on 25 August 2010. The husband asserts that the child was still unwell the next day but was taken to the wife’s business before school and was exposed to charcoal smoke. The husband observed the child on this day as he attended the literacy class with the child, and observed that he was experiencing coughing attacks. The husband asserts that both Dr U and Dr F had advised that the child should have Panadol when his temperature rises above 37.5 degrees, and the husband feels that the wife’s failure to check the child’s temperature or administer Panadol put him at risk. On examination, Dr U advised that the medications the wife had been administering be stopped and that the previously agreed asthma action plan be followed and Panadol be administered. The wife asserts that the letter does not describe correctly what occurred.
On 17 September 2010, the interveners obtained a refinance through WS Mortgage Management of $500,000 to discharge all the ANZ loan accounts secured over T Street.
From 22 September to 3 October 2010, the child was in the care of the wife. A weight gain of 0.8 kg was recorded as noted by the husband.
On 22 September 2010, the child’s weight was recorded as 39.5 kg. The husband relies on the report and chart of Ms GM, Dietician/Nutritionist and Exercise Physiologist, dated 22 September 2010. The wife asserts she was never told about the child consulting with Ms GM.
On 3 October 2010, the child’s weight was recorded as 40.3 kg. The husband relies on the report and chart of Ms GM dated 3 October 2010.
From 3 to 11 October 2010, the child was in the care of the wife. A weight loss of 1.3 kg was recorded. The husband relies on the report and chart of
Ms GM dated 3 October 2010.
On 9 October 2010, the child’s weight was recorded as 39 kg. The husband relies on the report and chart of Ms GM dated 9 October 2010.
On 29 October 2010, the wife, interveners and Ms B entered into a deed documenting the refinance with WS Mortgage Management.
On 3 November 2010, the husband made an application for an Anton Pillar Order concerning D Business. The application was granted.
On 10 November 2010, the child’s weight was recorded as 41.5 kg. At this time the child was in the care of both parents in accordance with the Orders. The husband relies on the report and chart of Ms GM dated 10 November 2010.
On 16 November 2010, the wife took the child to an optometrist with the consent of the husband, and glasses were prescribed and dispensed. The child has astigmatism in his left eye and 20/20 vision in his right eye. The wife asserts that the child told her that the husband does not allow him to wear his glasses. The husband disputes this and asserts that the wife often does not pack the child’s glasses at the changeover.
On 22 November 2010, the child left school with an earache and the wife and husband took the child to see Dr U. The child was diagnosed with an ear infection and conjunctivitis.
On 23 November 2010, the child was taken to hospital by the wife and husband. The child was diagnosed with an ear infection and conjunctivitis. The husband’s sisters attended the hospital to see the child.
On 6 December 2010, the wife and husband took the child to see Dr U as he was presenting with a sore ankle. The child told the husband that the injury occurred on Saturday while he was playing unsupervised on a very high slippery dip and fell when he became scared and tried to climb back down. In consultation with Dr U the wife told the doctor that the injury happened at school in the bathroom during the week. The husband contradicts this saying there was no evidence of injury on the Saturday morning when the child was delivered to the wife’s care. When questioned by Dr U, the child confirmed that the injury occurred in the fall from the slippery dip in the park. An x-ray and ultrasound were organised for 7 December 2010. The wife denies the incident as described by the husband.
On 7 December 2010, the child’s x-ray and ultrasound results were returned clear.
On 7 December 2010, it is asserted by the husband that the wife took the child to the appointment with Dr X while he was on crutches and with his prescription glasses on. The husband states that when the child was returned to the husband the wife took the child’s crutches and said, “you don’t need these now”. The husband asserts that the child showed no symptoms of soreness, wanted to play on the trampoline, and told him that the wife had told him to “bung it on” with the glasses and crutches in the appointment with Dr X. The husband asserts that the child wanted to spend more time with the husband but was returned to the wife’s care at her insistence.
On 15 December 2010, there was an exchange of text messages between the wife and husband, with the husband confirming that he had no problem with the wife seeing the child while he was in the husband’s care, and requested only that he be given reasonable notice.
On 15 December 2010, the child’s weight was recorded as 42.6 kg. The husband relies on the report and chart of Ms GM dated 15 December 2010.
From 15 December 2010 to 5 January 2011, the child was in the care of the husband. On 4 January 2011 the child’s weight was recorded as 39.7 kg and a weight loss of 2.9 kg was recorded by Ms GM since his last review on
15 December 2010. The husband relies on the report and chart of Ms GM dated 4 January 2011.
On 6 January 2011, there was an exchange of text messages between the wife and husband in which the wife confirmed she had no problems with the husband seeing the child during the times she had care of the child.
On 7 January 2011, the husband confirmed that he would like to see the child as much as possible, and is available for contact any time the child wants to see him.
From 5 to 27 January 2011, the child was in the care of the wife. On 27 January 2011 the child’s weight was 42.7 kg and a weight gain of 3 kg was recorded by Ms GM since his last review on 4 January 2011. The husband relies on the report of Ms GM dated 27 January 2011.
On 9 January 2011, Dr X completed her report.
In January 2011, the husband was concerned that the child did not attend his weekly swimming lesson whilst in his mother’s care; only attended the group martial arts class sporadically while in the wife’s care; missed numerous classes without explanation; and did not attend the fortnightly one-on-one martial arts classes while in the wife’s care. The husband was concerned that the wife appeared not to follow Dr F’s advice regarding monitoring the child’s weight and eating habits. The wife asserts that she is generally not informed about the extra-curricular activities which the husband arranges and their schedules.
On 2 February 2011, Professor WL was appointed as a valuer for the business D Business and O Pty Ltd.
The above history is extensively set out so that the climate of hostility, conflict and dispute in which this child is raised can be revealed in all its horror. One wonders if there is a theory of crime and punishment what ever it was that this little boy did to deserve to live in such a climate. Those who created and perpetuated it should be ashamed.
Credit
There are issues of credit affecting both parties.
The wife has not been truthful in her dealings with the Australian Taxation Office (“ATO”) and her provision of information which was inaccurate could not be justified as a new form of self-assessment.
Nevertheless she admitted that she had to file amended returns and in a sense her ready admissions against her own interest gave a colour of verisimilitude to her other evidence.
The husband was not impressive as a witness. The Court does not accept that he was always the cooperative co-parent who communicated matters of concern to the wife. His view was that he did little or anything wrong. He was clearly obsessive about the litigation and it seemed to the Court that the fight between the parties was for him all consuming.
He seemed to have little insight into the effect of what he did on the child.
For reasons set out in the judgment the evidence of the wife is preferred to that of the husband unless otherwise indicated.
It is the wife’s submission that Ms MB, the husband’s sister, was an extremely unreliable witness who was uncooperative, non-responsive and untruthful in her evidence. The Court’s experience of this witness’s evidence was that it was given in an aggressive and sometimes surly manner. The witness did not impress as cooperative in supplying information asked of her. She was one who was seeking to be literal in the answer given rather than informative and many of her answers left the Court doubting even if it had some of the truth that it had all of it.
This witness was for a time when she knew she was going to give evidence continuing in her role as solicitor for the husband. Hers was not the role however of a balanced and dispassionate legal representative but rather one who was so enmeshed in the fight and engaged in the creation or perpetuation of the climate of hostility referred to above that she would have been incapable of giving advice appropriately and her evidence could well be regarded as partial.
Each of the wife’s parents, although no doubt supportive of their daughter, appeared to have balance and the Court felt it could rely on their evidence.
The Court’s view on the evidence of other witnesses in the case is as set out herein.
The Orders sought by each party
The wife, in summary, seeks the following parenting orders pursuant to her case summary filed before the commencement of the hearing:
(1)That the mother has sole parental responsibility for the child, provided that she is to first consult with the father in relation to decisions to be made.
(2)That the child live with the mother.
(3)That the child spend time with the father each alternate weekend, and for one half of each school holiday period at times to be agreed on between the parties, and failing agreement for the second half of each school holiday period in 2011 and each odd-numbered year thereafter and the first half of each school holiday period in 2012 and each even numbered year thereafter.
(4)That the child spend time with the father from 4.00 pm Christmas Day until 4.00 pm on Boxing Day commencing 2011 and each alternate year thereafter, and from 4.00 pm on Christmas Eve until 4.00 pm Christmas Day commencing 2012 and each alternate year thereafter.
(5)That the child spend time with the father from 5.30 pm on the Thursday immediately preceding Catholic Easter until 5.30 pm Easter Sunday each year; conversely the same for the mother with Greek Easter.
(6)That the child spend time with the father on Father’s Day from 8.30 am to 5.30 pm; conversely the same with the mother on Mother’s Day.
(7)That the child spend time with the father on [the child’s] birthday for a period of 2 hours on a school day, and a period of 4 hours on a
non-school day. Conversely the same for the mother.(8)That the child spend time with the father on the father’s birthday from 3.00 pm to 5.00 pm on a school day and 9.00 am to 1.00 pm on a non-school day, failing agreement between the parties. Conversely the same for the mother on her birthday.
(9)That the child have telephone contact at 6.00 pm every day with the parent with whom he is not living.
(10)That the parties make joint decisions about the child’s schooling.
(11)That the parties do all acts and things and sign all authorities necessary for each of the parties to each receive a copy of all school reports, notices, circulars and other correspondence in relation to [the child’s] schooling, sport and behavioural issues.
(12)That the parties be restrained from changing the child’s residence more than 20 kilometres from Martin Place, Sydney.
(13)That each party keep the other informed of the child’s health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care the child is to inform the other party as soon as possible). Neither party shall make any appointments with any health professional treating [the child] without first consulting the other party and giving that party not less than 48 hours notice of such appointment in writing.
(14)That each party keep the other party informed in writing of any change to their residential address, landline, and mobile telephone number within 24 hours of any such change.
(15)That the father be restrained from removing the child from Australia, and that the child’s name be placed on the Airport Watchlist.
(16)That for the purposes of these Orders, the father or his nominee collect [the child] at the commencement of his time with [the child] from the mother’s residence or school and that the mother collect [the child] from the father’s residence or school at the conclusion of all periods during which [the child] lives with her.
(17)That the father be restrained from causing any person or entity to conduct surveillance of any type on the mother, any member of her immediate family and/or child including but not limited to covert observation, photography, audio and/or video recording.
(18)That all applications and responses be dismissed.
(19)That the father pay the mother’s costs of and incidental to the entire proceedings.
The husband, in summary, seeks the following parenting orders pursuant to his minute of orders filed on the first day of the hearing:
(1)That the mother and father have equal shared parental responsibility for the child.
(2)That the child is enrolled and attends at least two extra-curricular sporting activities per week, and in the absence of agreement the sports will be [martial arts] and swimming.
(3)That the child live with the father.
(4)That the parties each have sole responsibility for making decisions about the day-to-day care of the child during periods when he is living with them respectively.
(5)That the child spend time with the mother as follows:
(a)Each alternate week from after school Friday until 7.00 pm on Sunday; and on alternate weeks on Saturday from 10.00 am to 5.00 pm.
(b)On one weekday per fortnight from 6.30pm until 8.30pm.
(c)For the first half of each of the April, July and October school holiday periods in even-numbered years, and the second half in odd-numbered years, plus alternate weeks in the December/January school holiday period.
(6)That the child spend time with the father from 10.00 am Christmas Eve until 10.00 am Christmas Day in 2011, and with the mother from
10.00 am Christmas Day until 7.00 pm Boxing Day in 2011 and each alternate year.(7)That the child spend time with the mother from 10.00 am Christmas Eve until 10.00 am Christmas Day in 2012, and with the father from
10.00 am Christmas Day until 7.00 pm Boxing Day in 2012 and each alternate year.(8)That the child spend time with the father from 6.00 pm New Year’s Eve until 6.00 pm New Year’s Day in 2011 and each alternate year, and with the mother in 2012 and each alternate year.
(9)That the child spend time with the mother from 10.00 am Good Friday until 7.00 pm Easter Saturday, and with the father from 7.00 pm Easter Saturday until 10.00 am Easter Monday in 2012 and each alternate year.
(10)That the child spend time with the mother from 10.00 am until 7.00 pm on Mother’s Day.
(11)That the child spend time with the father from 10.00 am until 7.00 pm on Father’s Day.
(12)That on the child’s birthday he is to spend time with the parent with whom he is not already spending time with from 10.00 am until 3.00 pm on a non-school day, and for no less than three hours on a school day commencing at the conclusion of school that day.
(13)That the child spend time with the parents from 10.00 am until 7.00 pm on their respective birthdays on a non-school day, and for a period of no less than three hours on a school day commencing at the conclusion of school that day.
(14)That changeovers are to occur at the child’s school or the other parties’ residence and shall return him to the other parties’ residence at the conclusion of their time with the child.
(15)That each parent have reasonable telephone communication with the child.
(16)That each party keep each other informed of any medical emergency or significant illness suffered by the child.
(17)That neither party shall denigrate the other in the presence or hearing of the child.
(18)That each party refrain from regularly feeding, or providing to, the child unhealthy, fattening or fast food, and that each party ensure the child’s diet is reasonably high in fibre.
(19)That the parties continue to take the child to consult with a dietician for the purpose of monitoring the child’s weight.
(20)That neither party shall allow the child to watch ‘M’ rated or higher rated movies until the child is at least 13 years of age.
(21)That in the event the mother is unable to spend time with the child, the father shall be given first right of refusal to care for the child at such times instead of the child being placed in before or after school care or in the care of other individuals.
(22)That the parties shall comply with the recommendations of the child’s dietician in relation to their own eating and/or behaviour around eating in the presence or hearing of the child.
(23)That the parties and any other individual be restrained from physically disciplining the child.
(24)That neither party is to take the child from Australia until he has attained the age of 16 years, save for with consent in writing of the other party.
The wife also submits that in Baumgartner, the majority (Mason CJ,
Wilson and Deane JJ) referred to the result in Muschinski as an application of the general equitable principle which restores to a party contributions which he or she has made to a joint venture which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.
The wife submits that in this case:
(1)There is absolutely no evidence that the wife contributed the acquisition of the properties over which the husband asserts the wife holds an equitable interest via a constructive trust;
(2)There is no evidence of a joint endeavour or joint enterprise between the legal owners of the properties and the wife;
(3)There is no evidence of a failure of the “substratum of a joint relationship or endeavour” in relation to the subject property; and
(4)There is no evidence that it would offend Equity for the Interveners to assert ownership to the properties based upon them possessing the legal right
The wife submits that it follows that she does not have an equitable interest
(via the principles surrounding the law relating to constructive trusts) in the subject properties. The Court agrees and does not accept that there is any such interest.
The interveners also submit that the Court should not accept the husband’s submission that the wife has an equitable interest in the subject properties. It is the interveners’ evidence that each of the properties they own is not held on trust for their children.
The interveners submit that while not formally abandoned, the husband’s claim that the properties are held on trust for the wife must be regarded as “so faintly argued and developed that it has effectively been abandoned” and also submit that in any case this aspect of the husband’s case must fail.
The interveners submit that even if the Court does not accept the husband’s suggestion that “access to rental received on the [T] Street property” is said to give rise to an equitable interest in favour of the recipient of such funds, then the husband has failed to make out a case for relief. They state that the categories of constructive trust identified and explained by the learned authors of Jacobs’ Laws of Trusts in Australia do not apply to the facts alleged in these proceedings.
The Court accepts the interveners’ submissions.
Non-Disclosure
The wife’s submission is that the Court is invited to make the findings of
non-disclosure by the husband referred to in paragraphs 1 to 18 of the wife’s Revised List of Findings, which in summary are as follows:
(1)The husband has failed to repeatedly disclose the total amount of his legal fees, paid or unpaid, including disbursements for all surveillance during 2009, 2010 and 2011 and the Anton Pillar observations;
(2)The husband has failed to disclose his involvement during the marriage in the [Baghti] family real estate business conducted by [FP] Pty Ltd including:
(a)Any funds he may have contributed to or received from it; and
(b)The outcome of litigation involving that company which named him as a party
(3)That in respect of what is known about the husband’s involvement in [FP] Pty Ltd, the Court ought to accept the wife’s evidence in its entirety as it was not challenged.
(4)That the husband failed to disclose in two financial statements that:
(a)He was receiving worker’s compensation, and
(b)[O Pty Ltd] during 2009 received payment for services rendered of approximately $50,000.
(5)That the husband failed to disclose until February 2011 that he was receiving worker’s compensation payments, and that these payments were being paid into the company [O Pty Ltd] thereby avoiding the payment of personal taxation.
(6)That the husband’s spouse maintenance application was dismissed by Johnston JR (as he then was) with costs on 22 December 2009.
(7)That the husband has falsely described himself as “unemployed” during periods when he was working ….
(8)That the husband’s Amended Financial Statement sworn 5 October 2009 was witnessed by his sister and solicitor [Ms MB].
(9)That [Ms MB] acted for the husband in relation to all his worker’s compensation claims.
(10)That the Amended Financial Statement failed to disclose that the husband was in receipt of worker’s compensation and/or income from [O Pty Ltd] at the time.
(11)That [Ms MB] wrote a letter to the wife’s solicitors dated
20 March 2010 to “amend Part K” of the said Amended Financial Statement for the purpose of “deleting the loan for $200,000” from the husband’s siblings. No explanation has ever been offered for this amendment.(12)That this amendment is inconsistent with the liabilities now claimed by the husband.
(13)That the husband, during the marriage, gave information to Centrelink about the wife’s income that is inconsistent with his evidence.
(14)That there is no evidence or admissible evidence of any loans to the husband to members of his family. There is no corroborative evidence from the “lenders”.
(15)That if the husband is to be believed, during the marriage he regularly and without apparent concern, handled large amounts of cash takings from [D Business] knowing that it would not be declared for income tax purposes.
(16)However the “paper bag” tendered in support of this contention had written on it an instruction from the wife to the husband just to bank the contents.
(17)That the other paper bag tendered does not prove that the wife “handled large amounts of cash takings over the life of the business”.
(18)That although the husband apparently believed that the wife was “not an honest taxpayer” he waited to make his first complaint about it until after the separation and then only in the context of these proceedings.
The Court makes findings in accordance with the wife’s submissions.
The wife also submits that in respect of the Centrelink forms, the husband disclosed that the wife had no foreign assets notwithstanding the husband’s case that the wife owned or had an interest in real estate overseas. The wife submits that her denials about signing the forms and having knowledge of receipt of the funds should be accepted. The Court accepts the wife’s denials.
Credit
It is the wife’s submission that Mr JG presented as an opportunistic and unscrupulous person who felt he was not bound by any of the ethical principles of the peak body of his industry. She submits he had no qualms about lying to the general public and to those he was “investigating” when it suited his purposes.
The wife submits that Mr JG’s evidence about his capacity to recall
Mr KS’s interviews and produce pages of transcript without having recorded them was completely unbelievable. He also admitted to having “anglicised” what Mr KS had told him. The Court was unimpressed by his evidence and finds that having regard to the way in which the evidence was procured the Court can place little reliance or value on it.
It is the husband’s submission that Mr JG was criticised for adopting a
nom de plumefor work purposes. He submits that there was no evidence to suggest that this technique was illegal or improper or in any way inconsistent with accepted norms in his occupation. He submits that no expert was called to suggest that this technique was other than in accordance with industry norms. It was contrary the Court finds to the code of conduct by which Mr JG said he felt himself bound.
The wife submits that Ms MB has demonstrated an ignorance of her professional obligations. She states that her failure to withdraw from acting for the husband in the face of consistent complaints from the wife’s lawyers that she had a conflict of interest, demonstrated a complete lack of objectivity and failure to adhere to her professional standards. The Court has already made its observations in relation to this matter.
The wife also submits that Ms MB’s evidence with respect to how much and by what method she paid the husband for his services as a paraprofessional, as well as stating she had no records and could not recall how she paid her last employee, was not credible and was untruthful.
The Court overall was not impressed by Ms MB’s evidence. She was one of those witnesses who was quick to answer and gave the Court the impression that she took a very literal stand in relation to the question. On occasions her answers may have been correct as an answer but were also at times uninformative.
The husband submits that the evidence of Mr B and Mrs B was so similar that it ought not to be accepted as being independent. It is submitted that their evidence used identical words most of the time, even down to the order in which events are recalled. The husband also submits that their approach in relation to the production of documents was generally to be unhelpful. Mrs B conceded in her cross-examination that hers and Mr B’s evidence was similar and this was probably because they are the one family. She stated that it was the first time she had read Mr B’s affidavit and that they did not talk about their evidence before swearing her affidavit. The Court does accept their evidence. The explanation for the similarity in their evidence could as well be due to the fact that they are giving evidence of a shared experience and a shared truth. The Court accepts them as truthful witnesses.
The wife submits that her presentation in the witness box was of someone who did not know much about running a small business before she undertook responsibility for D Business. She submits that it seems, from the evidence she gave and the manner in which she gave it, that she knew very little about the financial aspects of running a small business in the time she and her sister have been working at D Business. The Court accepts that her evidence revealed inadequate knowledge about record keeping and related matters.
The wife submits that Mr B presented as a credible witness and that some allowance ought to be made for the fact that English is not his first language.
The wife’s submission is that Mrs B presented as a straightforward and truthful witness. She submits that neither she nor Mr B were sophisticated witnesses and applying unrealistic standards of precision to their evidence is rather unrealistic.
The wife’s submission is that no references or examples are provided to support the husband’s submission that Mrs B’s evidence was as “close to identical to that of Mr [B]”.
The Court accepts that these witnesses were simple folk giving evidence in their own language. The similarity of their evidence is accepted by the Court as being more likely to demonstrate that it is of a commonly perceived truth.
The wife submits that the husband’s credit is such that where it conflicts with the evidence of any other party their evidence ought to be preferred unless it is independently corroborated.
The interveners submit that the husband’s evidence “was unreliable, malleable and extravagant”. Some examples they submit are as follows:
a)the husband attempted to portray D Business as something of an empire when it is just a small neighbourhood business. He attempted to suggest that the wife had access to $5,000 to $8,000 per day in cash
b)the husband revealed in his oral evidence that he received $200,000 from Supreme Court proceedings and repaid monies of that amount allegedly owing to his sisters, none of which was revealed in his affidavits
c)the husband’s final position as against the interveners is reflected in Orders 1 and 8 in his minute of orders. Notwithstanding the husband’s clear demonstration of animosity towards the wife and the wife’s family, the husband’s evidence was that he could successfully work with the wife’s sister and parents as “co-proprietors” of the business. The interveners submit that given the lack of goodwill between the parties to advance such an absurd proposition by seeking orders to that effect does him no credit
d)notwithstanding the absence of adequate evidence, the husband maintained throughout the case that various properties were held on trust by the interveners for the wife.
On a consideration of those matters and evidence that the husband gave and the matters referred to under this heading in relation to parenting matters, the evidence of the wife and her parents is preferred to that of the husband unless otherwise designated. For all matters the interveners’ evidence was accepted as truthful.
Assets and liabilities of the parties
The Court finds the assets and liabilities of the parties are as follows:
| Assets | ($) |
| C Street, Suburb H (h & w) | 610,000 |
| T Street, Suburb A (1/4 share) (w) | 205,000 |
| Proceeds of sale of E Street Property | 479,970 plus interest |
| Ethniki Bank (1/4 share) (w) | 1,500 |
| Holden motor vehicle (1/2 share) (w) | 6,000 |
| D Business (w) said to be $225,000 but the Court finds presently | Unknown |
| O Pty Ltd (h) | 75 |
| Credit Union – …69 (h) | 1 |
| Household contents (h & w) | Not Known |
| Accountants Super – Accumulation Fund (h) | 13,500 |
| Total Assets | $1,316,046 |
| Liabilities | |
| ANZ Bank Home Loan (h & w) | 424,396 |
| Debt to O Pty Ltd | 1,360 |
| General Motors Holden (w) | 5,000 |
| Macquarie Bank Limited (h) | 8,043 |
| Contingent liability with Ms B on sale of D Business (w) | 400,000 |
| Amount due to the Interveners with respect to monies advanced for the purchase of E Street | 465,000 plus interest |
| Total Liabilities | $1,303,799 |
| Net Assets (excluding assets of unknown value and superannuation) | -$1,253 (plus interest) |
| Nett Asset Pool (inclusive of superannuation and excluding assets of unknown value) | $12,247 (plus interest) |
The Court finds that the assets of the parties excluding the C Street property which is to be sold, the proceeds of sale of E Street which are held in the controlled monies account due to be substantially paid to the interveners, and the unknown values of D Business and the household contents, are $226,076.
The liabilities of the parties excluding the ANZ Bank Home Loan for the C Street property which will be discharged on the sale of the property, the contingent liability of the wife together with her sister on the sale of D Business, and the amount due to the interveners with respect to monies advanced for the purchase of E Street, are $14,403.
The Court finds that the available net asset pool, excluding the abovementioned assets and liabilities, for division between the parties is therefore $211,673, plus any surplus otherwise arising on the sale of assets.
Section 79(4) contributions
Initial Contributions
The wife deposes that as at the date of marriage she had the following assets and liabilities:
a)
a one-quarter share of a property known as and situated at T Street, Suburb A. The property was purchased in 2000 with Mr B, Mrs B and Ms B for $590,000 and was secured by a mortgage in the sum of $530,000 with the ANZ Banking Group. The property is a commercial property and houses retail businesses. Mr B and
Mrs B make the loan repayments on this property and collect the rent. The wife asserts that at the date of the marriage the property had a market value of approximately $700,000 and the mortgage was approximately $480,000, leaving the parties then with approximately $220,000 equity in the property
b)nominal cash in the ANZ Bank Account number …41, a joint account in the name of both the husband and wife.
The wife submits that her one-quarter share in the equity of the above property would have been approximately $55,000 as at the date of the marriage.
The wife states that at this time she was assisting in her parent’s business CM Business and was earning what she calls pocket money; enough to cover her expenses.
The husband deposes that as at the date of marriage he did not have substantial assets apart from a car, personal effects and the like. The wife deposes that the husband’s motor vehicle was worth approximately $20,000.
The husband was working in his sister Ms MB’s firm earning approximately $500 a week.
The husband’s evidence in relation to his salary when he worked for his sister was challenged. The husband asserted he was paid $50,000 per year, but his affidavit evidence states that he was given $500 per week. It was put to the husband that if he was receiving $500 per week his annual salary would be $26,000 net and $34,000 gross.
Ms MB was questioned in her oral evidence about the husband’s employment with her and could not recall how the husband was paid when he was working for her. She stated that other employees were paid by cash, cheque or electronic bank transfer to a nominated account.
The husband owned the company O Pty Ltd; however it does not appear that he derived any income from the company prior to the marriage.
Contributions to date of separation
During the marriage the wife was initially employed in her parents’ business, and the husband was working at Ms MB’s firm whilst studying on a part-time basis.
The Court finds that at the time of the marriage when the parties purchased the former matrimonial home that the husband did not make any financial contributions to the purchase of the house, but rather both the wife and the husband obtained loans from the interveners for the deposit. The husband’s denials of this and his assertion that he contributed his half of the deposit are not accepted.
The wife submits that the husband has made no financial contribution towards the acquisition and/or the maintenance of the C Street property throughout the course of the marriage and to date.
The wife’s evidence is that throughout the marriage she or her parents made the mortgage repayments. She also asserts that she paid all the household utilities, rates and so on. This is corroborated by the husband’s evidence.
It is the wife’s evidence that the husband began to contribute money towards a joint account but that he stopped doing so after a few months of marriage. The wife does not know what the husband did with his money whilst employed in the early stages of the marriage.
At the time of their marriage the husband was earning approximately $500 per week working at Ms MB’s firm. He states that most of his income was given to the wife for household expenses and mortgage repayments.
Ms MB gave the husband flexibility at work to allow him to care for the child, and his extended family also assisted him in caring for the child. He asserts that he carried out the majority of the household duties and was the primary carer of the child through most of the marriage.
The wife always controlled the financial aspects of the relationship. The husband states that he is generally unaware of where the monies generated from D Business went during the marriage.
The husband states that the wife would work seven days a week, usually from 5.00 am to 10.00 pm. He states that she rarely took time off work during the holiday period and that her working commitments made it difficult to have family dinners, outings or go on holidays. It is his evidence that the wife insisted she was building their future and encouraged him to stay home and care for the child.
It is agreed between the parties that from mid-2004 the only income generated was the income the wife earned from working initially at CM Business, which later became D Business. It is the Court’s view that the wife would not have been able to benefit to the same degree from D Business had the husband with the assistance of his family not taken on the role of primary carer of the child.
The wife did not pay her parents for D Business but that there was an agreement that she and her sister would pay their parents $400,000 for the business upon its sale.
It appears probable that most if not all of the financial contributions to the acquisition and maintenance of the matrimonial assets came from the wife during the course of the marriage. She also asserts that she contributed to the cost of the husband’s degree including the fees and books. The husband claims the wife’s role in the husband attaining his degree was limited.
It is agreed that after November 2004 when the wife took over D Business the husband took over the role of homemaker and carer. It is submitted by the wife that prior to this she undertook most of the housework and the husband assisted her with the housework and with the care of the child.
It is the wife’s evidence that she was the primary carer for the child for the first 18 months of his life and it was agreed between the husband and wife that she would return to work at D Business and the husband would care for the child and complete his degree full-time by correspondence. The wife states that it was always the intention for the roles to switch after the husband obtained his degree. This however did not happen.
The wife asserts that during the first 18 months of the child’s life the husband continued to work at his sister’s firm five days a week from 9.00 am to 5.00 pm. She states that he assisted her by helping with bathing the child and bottle feeding him at night time. The Court accepts that the husband continued to work for this period. However in the latter part of that period the wife did spend some time in the pursuit of renovations to CM Business in preparation for the launch of the business D Business.
It is the husband’s submission that shortly after the child’s birth he assumed full-time care of the child and the wife resumed work until late 2004. The Court accepts the facts set forth in the prior paragraph.
The wife returned to work at D Business in November 2004 working seven days a week and working very long hours in the beginning. D Business trades on Monday to Friday from 8.30 am to 9.00 pm, Saturday from 9.00 am to 9.00 pm and Sunday from 10.00 am to 9.00 pm.
The husband took care of the child with the assistance of his family members when the wife returned to work at D Business. He continued to care for the child full-time up until he commenced work in 2007 through his company O Pty Ltd. After this time and up until the date of separation the husband and wife shared the care of the child.
It is submitted by the wife that the non-financial contributions have been equal during the marriage. The Court finds that the contributions of the parties balancing both non financial contributions and those of a financial nature ought to be treated as equal. Certainly the wife could not have continued her breadwinning role and her undoubtedly hard work for a significant time had not the husband and his family cared for the child. Such care as is provided by the husband’s family must be treated as a contribution made on his behalf.
The rental monies from E Street were paid in service of the ANZ mortgage.
The husband and the wife benefited from the sale of the E Street property with each of them receiving $50,000 upon its sale, in circumstances where the husband did not contribute financially to the acquisition or maintenance of the property.
The husband appeared to have the benefit of Family Assistance payments from Centrelink during the marriage. The husband was questioned about declarations he made to Centrelink from 2003 up to 2009 with respect to his and his wife’s income. It was put to him that on those applications for social security the husband had indicated that the wife was either earning no income or around about $21,000 income per year, and that this is contrary to his case against the wife, now indicating that the business is deriving large sums of revenue. The husband stated that at the time of making the applications to Centrelink that was his belief, but that he had serious concerns about the wife’s and her parents’ business activities, and that he is now aware that the wife has understated her income. The Court accepts the husband’s authorship of the documents and finds it probable that they were completed to advantage the application made.
It was put to the husband that the wife did not sign any of the Centrelink documents. The husband disagreed and said that she did. The wife denies that she signed any Centrelink forms and asserts she was not aware of family assistance payments being paid into their joint account. The Court accepts her denials.
The husband’s evidence is that from September 2008 to March 2009 he worked as the director of O Pty Ltd due to pressures from the wife to pay his own financial obligations whilst maintaining the primary care of the child.
The husband was questioned about his worker’s compensation payments and his ability to work. The husband stated that he was off work for a few months from February 2009 to April 2009 and received worker’s compensation payments in the sum of approximately $570 per week. It is the husband’s evidence that he had a further injury in mid-2010 and was unfit for work until December 2010. The husband asserts that after undergoing surgery on his knee he was recommended by a doctor that he could work for three hours per day for about five days per week.
It was put to the husband that from May 2009 until the recurrence of the injury there was nothing preventing him from working for O Pty Ltd, and also that there are no reasons for him to not be working full-time at present. It was put to him that he has not shown any indication of pain. The husband disputed this and stated that he needs to bend down and rub his knee. The husband was then challenged to complete his professional registration requirements and get an office job. The husband stated he did not want to do this and preferred to further establish O Pty Ltd.
The husband deposes that since June 2007 he was largely responsible for organising payments towards the hire purchase agreement for a Holden motor vehicle in the approximate sum of $750 per month using his credit cards.
The wife submits that all of the financial contributions made to the marriage, and the acquisition and maintenance of the matrimonial assets, came from the wife, while the husband contributed nothing in this regard. The Court accepts that she was the significant financial contributor but accepts that the husband may also have made some financial contributions, although small by comparison. He nevertheless made significant non financial contributions.
Contributions post separation
Since the interim orders made on 11 November 2009 care of the child has been equally shared between the parties.
It is the wife’s submission that to date the husband has made no financial contribution towards the maintenance of the former matrimonial home. It is in fact the husband’s evidence that the wife has failed to pay the household bills, mortgage repayments and other expenses which suggests that he considered the wife responsible for such payments.
The wife asserts that she has continued to be the primary income earner of the family and primary financial supporter of the child post separation. The Court accepts that this is so.
The husband deposes that after separation he continued to make payments towards the hire purchase agreement for the Holden motor vehicle with the assistance of his family members. He defaulted under the loan and in early 2010 the Holden motor vehicle was repossessed. It is his evidence that the current amount owing as at 31 August 2011 was $16,086 payable to Macquarie Bank. Only one-half of this amount was claimed as a debt by the husband in his financial statement. There is no evidence as to whether it has since been paid.
It is the wife’s evidence that she had been unable to make the mortgage repayments on the former matrimonial home, being the C Street property, and also on the loan and overdraft for D Business.
The mortgage over the C Street property and the overdraft were secured by cross collateralisation against the C Street property; T Street, Suburb A; I Street, Suburb A; and P Street, Suburb K. The wife, Ms B and the interveners were each served with Notices pursuant to Section 57(2)(b) of the Real Property Act (NSW) in April 2010 due to the arrears on the loan. The matter was resolved through negotiations between the wife’s lawyers and ANZ Banking Group.
On 17 September 2010 WS Mortgage Management issued a loan to the wife, Ms B and the interveners in the sum of $550,000 to discharge accounts with ANZ, with security being T Street, Suburb A.
The wife conceded that for the duration of the marriage the loan on the
C Streetproperty was either in good order or ahead, and that it was only upon separation that the loan began to fall into arrears. However, she stated that it was not a deliberate act to allow the loan to fall into arrears, but that after separating from the husband she began to incur significant legal fees as a result of obtaining advice for representation in the proceedings.
Conclusion based on contributions
All in all the Court assesses the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them including such property which is no longer the property of the parties to the marriage or either of them and to the household of the husband and wife to be equal up to the date of separation.
The Court assesses that the contributions made post separation, given that the wife has made the majority of financial contributions, as well as shared the care of the child, should afford the wife an additional 5 per cent.
Section 75(2) considerations
The parties were married for six and a half years.
The husband currently receives worker’s compensation payments of $390 per week for a knee injury he sustained at work. He asserts that his medical condition prevents him from working in gainful employment. It is the wife’s submission that he has avoided tax previously by having these payments made into the business account for O Pty Ltd.
It is the wife’s submission that the husband displayed no signs of discomfort or pain and appeared to move freely during the course of the trial in the court room. The wife submits that the husband has demonstrated no physical or intellectual disability that would disqualify him from gainful employment. She also submits that the husband did not lead any medical evidence to the effect that he was incapacitated for work.
The wife submits that both the husband and wife have an income-earning capacity and therefore are able to re-establish themselves in the workforce. The Court agrees that this is so.
The wife owns the business D Business in partnership with her sister Ms B. D Business has been valued at $225,000 by Professor WL. The wife wishes to sell the business and undertake a secretarial course and hopes to find a job as a secretary in a professional firm. It would be detrimental to her ability and availability to care for the child if she is required to continue to trade the business D Business for another twelve months. The Court will make Orders for the sale of D Business following submissions being received from the parties as to the form of the orders. That sale will crystallise its value.
The wife is relatively unskilled and does not appear to have many choices in the labour market.
The wife is to have sole parental responsibility for the child and she will be his primary carer, with the husband spending time with the child in accordance with the orders made in the proceedings.
The husband is an ex-police officer and also holds a professional degree. He has not completed the practical training requirements in order to go straight into the workforce as a professional; however he has previously worked as a paraprofessional. The husband expresses a preference not to work within the profession but he has the degree and with a short period of practical training could enter that profession.
The husband owns the company O Pty Ltd which has a value of $75.
The wife does not have any superannuation benefits. The husband has $13,500 in his Accountants Super – Accumulation superannuation fund.
It is the wife’s submission that the marriage has had an advantageous effect upon the husband’s capacity to earn an income as the wife supported the husband while he finished his degree. The wife has been enabled to run the business D Business and be occupied in it as extensively as she has by reason of the husband’s contribution and that of his family to the care of the child.
It is the husband’s submission that the wife’s role in him obtaining a degree was limited. He submits that he was enrolled in the course well prior to marriage and received his degree when the child was a small child. He submits that significantly he has been unable to complete his practical training in order to practice his profession. The Court accepts that the husband could, if he so chose, complete his practical training.
The husband currently lives in his parents’ home with his siblings Ms MB, Ms DB, Ms GB and Mr LB.
The wife currently lives in the former matrimonial home, and it is understood her sister Ms B has been residing there with her also. Following the sale of the C Street property the wife will be required to find new accommodation.
The wife has had a demonstrable capacity to borrow from her parents on favourable terms and the husband has had it seems assistance from his family also.
The wife has debts to her parents in relation to the $465,000 borrowed by her parents from the ANZ Bank to assist in the purchase of the E Street property. The wife also has to pay her parents jointly with her sister $400,000 upon the sale of D Business.
The wife’s submission is that the husband has benefited from the sale of the E Street property in circumstances where he has not put any money into the acquisition or maintenance of the property.
The husband has an American Express credit card debt of approximately $5,350.
The wife submits that there was no evidence led in the husband’s case about his involvement in the Baghti family company FP Pty Ltd.
The wife has a taxation liability in the amount of $27,000 which was incurred post-separation in the period from 1 July 2009 to 30 June 2010. The wife has also had to pay tax liabilities post-separation for the tax years ended 30 June 2005 and 2006 in the sums of $1,725 and $3,107.65 respectively, for income derived during cohabitation. The Court notes that the wife did not incur any tax liabilities for the years ended 30 June 2007 to 2009.
The Court notes that each of the husband and wife has paid large sums in legal fees, and has borrowed substantial amounts of money to pay their legal fees. The husband asserts that he has borrowed $350,000 from his siblings, and the wife asserts she has borrowed $150,000 from WS Mortgage Management, and $300,000 from the interveners which is in turn owed to WS Mortgage Management.
Conclusion on section 75(2)
For all the reasons referred to above the Court considers that having regard to the financial positions of each of the parties and balancing all the factors required to be taken into account under the section that it is inappropriate to require an adjustment to the division of property in favour of either the husband or the wife.
Overall division of assets
The above determination will see the wife receive 55 per cent of the parties’ assets and the husband receive 45 per cent.
Just and equitable
The division of assets would see the wife receive $116,420 worth of net assets and the husband receive $95,253 worth of assets plus those entitlements arising by way of division of any balance available of the net sale proceeds of the C Street property, the E Street property and the business D Business which are to be divided as to 55 per cent to the wife and 45 per cent to the husband.
In the circumstances of this case I determine that result to be just and equitable.
Orders which should be made
I propose orders which will give effect to the following division.
The wife will receive:
| Assets | ($) |
| · T Street, Suburb A (1/4 share) | 205,000 |
| · Ethniki Bank (1/4 share of funds) | 1,500 |
| · Holden motor vehicle (1/2 share) | 6,000 |
| Total Assets | $212,500 |
| Liabilities | |
| · General Motors Holden | 5,000 |
| · Amount to be paid to the husband | 91,080 |
| Total Liabilities | $96,080 |
| Net Assets | $116,420 |
The wife will also receive 55 per cent of the balance of the proceeds of sale of the C Street property.
The husband will receive:
| Assets | ($) |
| · O Pty Ltd | 75 |
| · Credit Union – …69 | 1 |
| · Accountants Super – Accumulation Fund (h) | 13,500 |
| · Payment by the wife to the husband | 91,080 |
| Total Assets (including superannuation) | $104,656 |
| Liabilities | |
| · Debt to O Pty Ltd | 1,360 |
| · Macquarie Bank Limited | 8,043 |
| Total Liabilities | $9,403 |
| Net Assets (including superannuation) | $95,253 |
The husband will also receive 45 per cent of the balance of the proceeds of sale of the C Street property.
The husband and wife will also receive household contents.
As discussed above, the husband and wife will be required to do all things necessary to release the monies in the controlled monies account held by
Pigott Stinson and cause the said money to be paid to the interveners for the purposes of paying the monies to the ANZ Bank to discharge the mortgage in the name of the interveners. Each of the husband and the wife are to pay half each of any capital gains tax payable with respect to the sale of the property. Should there be any balance existing after such payment it is to be divided between the husband and the wife as to 55 per cent to the wife and 45 per cent to the husband.
The Court has decided that the wife’s share in the business D Business should be sold, noting that her partner Ms B informs the Court that she is willing to join in with the wife on the sale of the business, and also noting that the interveners agree to providing a lease on specified terms to the prospective purchaser(s), and also noting that the expert evidence is that a period of time observing the business be provided to the purchaser(s) so as to allow the purchaser(s) to observe it and form a view as to the value of it if required by the purchaser. The net proceeds of sale of the business after payment to the interveners, if any, are to be divided 55 per cent to the wife and 45 per cent to the husband.
The wife has advised the Court that she wishes to be heard on the form of the orders for the sale of D Business. Accordingly, the Court will afford the husband, the wife, Mr and Mrs B and Ms B the opportunity to address the Court on this issue.
I certify that the preceding nine-hundred and ninety-three (993) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 22 August 2012.
Associate:
Date: 22 August 2012
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Costs
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7
3