BASHIR & ELAMIN
[2020] FCCA 3526
•24 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BASHIR & ELAMIN | [2020] FCCA 3526 |
| Catchwords: FAMILY LAW – Final property – adjustment of property interests – 3 year relationship – significant earning capacity of both parties – assets acquired pre and post relationship – no adjustment. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA, 75, 79 Evidence Act 1995 (Cth), s.141 |
| Cases cited: Banks & Banks [2015] FamCAFC 36 Baghti & Baghtiand Ors [2015] FamCAFC 71 Bevan & Bevan [2014] FamCAFC 19 Bondelmonte v Bondelmonte [2017] HCA 8 CDJ v VAJ [1998] HCA 67 Chapman & Chapman [2014] FamCAFC 91 Goode & Goode [2006] FamCA 1346 Howard & Howard [2016] FamCA 455 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Murphy & Murphy [2007] FamCA 795 Russell & Russell [1999] FamCA 1875 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford [2012] HCA 52 Starr & Duggan [2009] FamCAFC 115 Teal & Teal [2010] FamCAFC 120 |
| Applicant: | MR BASHIR |
| Respondent: | MS ELAMIN |
| File Number: | PAC 3220 of 2017 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 16 and 17 March 2020, 2 and 9 April 2020 |
| Date of Last Submission: | 29 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 24 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Mills Oakley Lawyers |
| Counsel for the Respondent: | Mr Livingstone |
| Solicitors for the Respondent: | Rafton Family Lawyers |
ORDERS
All previous parenting orders are discharged.
The applicant father, Mr Bashir, and the respondent mother, Ms Elamin, shall have equal shared parental responsibility for the child X, born in 2016.
The child shall live with the respondent.
The child shall spend time with the applicant as follows:
(a)From the date of these Orders until the commencement of the school year in 2021:
(i)Commencing on Wednesday 30 December 2020 and each Wednesday thereafter from 9am to 5pm; and
(ii)Commencing on Friday 25 December 2020 and each alternate week thereafter from 9am on Friday to 5pm on Sunday;
(b)From the commencement of the 2021 school year (whether or not the child has commenced school in that year) and for a further period of three months:
(i)Each Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii)Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Monday;
(c)Thereafter and for a further period of three months;
(i)Each Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii)Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Tuesday;
(d)Thereafter:
(i)Each alternate week on Wednesday from 3pm (or after school if a school day) to 6pm; and
(ii)Each alternate week from 3pm (or after school if a school day) on Friday to 6pm on Wednesday;
(e)At all other times as agreed to between the parents in writing.
When the child commences school, the time in sub-paragraphs (4)(b)-(d) above shall occur during the school term only, and the child shall spend time with the applicant for half of each school holiday period as agreed between the parents in writing and failing agreement:
(a)The first half in odd numbered years commencing on the last day of school and concluding at 6pm on the middle Sunday of the school holiday period; and
(b)The second half in even numbered years commencing at 6pm on the middle Sunday of the school holiday period and concluding on the first day of the new school term.
Notwithstanding any other order, the child shall spend time:
(a)With the respondent on Mother’s Day weekend from 3pm (or after school if a school day) on Friday to 9am (or the commencement of school if a school day) on Monday;
(b)With the applicant on Father’s Day weekend from 3pm (or after school if a school day) on Friday to 9am (or the commencement of school if a school day) on Monday.
Notwithstanding any other order, the child shall spend time with the applicant:
(a)In each even numbered year:
(i)On the first occasion of Eid (known as Eid-Al-Fitr) from 5pm the day before the first day of that occasion of Eid until 3pm on the first day of Eid; and
(ii)On the second occasion of Eid (known as Eid Al-Adha) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid.
(b)In each odd numbered year:
(i)On the first occasion of Eid (known as Eid-Al-Fitr) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid; and
(ii)On the second occasion of Eid (known as Eid Al-Adha) from 5pm the day before the first day of Eid until 3:00pm on the first day of Eid.
With the first day of the Eid occasion to coincide with the first day of the Eid occasion celebrated in Australia.
Notwithstanding any other order, the child shall spend time with the respondent:
(a)In each even numbered year:
(i)On the first occasion of Eid (known as Eid-Al-Fitr) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid; and
(ii)On the second occasion of Eid (known as Eid Al-Adha) from 5pm the day before the first day of Eid until 3pm on the first day of Eid.
(b)In each odd numbered year:
(i)On the first occasion of Eid (known as Eid-Al-Fitr) from 5pm the day before the first day of Eid until 3:00pm on the first day of Eid; and
(ii)On the second occasion of Eid (known as Eid Al-Adha) from 3pm on the first day of that occasion of Eid until 5pm on the second day of that occasion of Eid
With the first day of the Eid occasion to coincide with the first day of the Eid occasion celebrated in Australia.
Unless changeover occurs at the child’s pre/school or child care centre, changeover shall occur at the parties’ homes, with the applicant or his nominee to collect the child from the respondent’s home at the commencement of the child’s time with the applicant and the respondent or her nominee to collect the child from the applicant’s home at the conclusion of the child’s time with the applicant.
The applicant and respondent shall be at liberty to communicate with the child on at least two occasions per week when the child is in the other parents’ care and for this purpose:
(a)The applicant shall communicate with the child by Facetime/video call between 6:30pm and 7pm on a number provided by the respondent; and
(b)The respondent shall communicate with the child by Facetime/video call between 6:30pm and 7pm on a number provided by the applicant.
The applicant and respondent shall keep each other advised of their contact telephone numbers and shall advise the other party within twenty-four (24) hours of any change of their contact telephone number.
The applicant and respondent shall keep the other advised of their residential address and provide each other with no less than twenty-one (21) days' notice in writing of any intention to change address.
The applicant and respondent do all things necessary to authorise the child's school/day care to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child's school activities.
The applicant and respondent be entitled to attend all day care/school functions, sports carnivals and other school events in which parents are invited to attend.
The applicant and respondent be entitled to obtain directly from any day care/school attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the applicant and respondent shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
The applicant and respondent immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care. That together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.
The applicant and respondent shall keep the other parent notified of all extra-curricular/sporting activities that the child is enrolled in and attending whilst in their respective care.
The applicant and respondent be restrained from speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child's presence or hearing.
The parties Ms Elamin, born in 1979 and Mr Bashir, born in 1980 and their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X, born in 2016 from the Commonwealth of Australia until the child turns 14 years of age.
X, born in 2016 be and is hereby restrained from leaving the Commonwealth of Australia until the child turns 14 years of age.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 24 March 2030.
Upon expiration of the period referred to in Order 21 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
The respondent is hereby restrained by injunction from causing or allowing the child to have any contact, communication or exposure with any members of or people associated with the B Organisation (Arabic: B Organisation).
The applicant be solely entitled to retain and the respondent has no interest in:
(a)The property situate at and known as C Street, Suburb D in the State of New South Wales;
(b)Any motor vehicle registered in the applicant's name;
(c)The applicant's superannuation;
(d)The applicant's shares;
(e)The applicant's bank accounts; and
(f)The applicant's personal belongings.
The respondent be solely entitled to retain and the applicant has no interest in:
(a)The property situate at and known as E Street, Suburb F in the State of New South Wales;
(b)Any motor vehicle registered in the respondent's name;
(c)The respondent's superannuation;
(d)The respondent's bank accounts;
(e)The respondent's shares; and
(f)The respondent's personal belongings.
Unless otherwise specified in these orders the applicant and respondent each be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders.
The applicant and respondent shall each do all such things as are necessary and sign all such documents as are necessary to give effect to these Orders.
In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
IT IS NOTED that publication of this judgment under the pseudonym Bashir & Elamin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3220 of 2017
| MR BASHIR |
Applicant
And
| MS ELAMIN |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is Mr Bashir and the respondent is Ms Elamin. They are the parents of child X was born in 2016. He is of an age where he can start school in two short months and his parents who have been separated since before he was born, remain at odds as to fundamental issues in terms of X’s upbringing, where he should live and how much time he should spend with each of his parents.
The parties are also at odds about how to divide up the property pool, as they cannot even agree as to when they started living together, who contributed what in terms of property and assets, and what might be just and equitable between them going forward. This is somewhat surprising as they are both highly educated individuals with busy careers.
It is a case in point of conflict and the desire to prove the other party wrong getting in the way of common sense.
The proceedings between the applicant and the respondent were hotly contested and did little to assuage the animosity between them. While the conflict and animosity between the parties is not unusual as far as family law proceedings are concerned, it is a sad state of affairs for 4 year old X, their only child.
The factual dispute is so significant and ugly that it is easy to lose track of what is relevant and what is not relevant for the purposes of determining the dispute between them.
The Court is of course not bound by either party’s application in determining either what is in X’s best interest nor in determining what is just and equitable in terms of property adjustment orders between the parties.
Competing Applications
The applicant seeks parenting orders inter alia as follows:
a)That the parents have equal shared parental responsibility for X;
b)That X live with each of his parents in a week about routine;
c)That each of the parents be at liberty to speak with X in the week he is spending time with the other parent on at least three occasions between 6.30pm and 7pm and at all other times as requested by X;
d)That X’s name remain on the Australian Federal Police Airport Watchlist.
In the alternative, if the Court does not consider an equal shared care arrangement to be in X’s best interest the applicant seeks as follows:
a)That the applicant have sole parental responsibility for X;
b)That X live with the applicant; and
c)That X spend time with the respondent each week from the commencement of school on Thursday until the commencement of school on Tuesday and for half of the school holiday period.
The applicant also seeks orders, inter alia, for the respondent to pay the applicant the sum of $235,000 by way of property adjustment orders.
The respondent seeks orders inter alia as follows:
a)That the respondent have sole parental responsibility for the X;
b)That X live with the applicant; and
c)That X spend time with the applicant until he turns five years of age on each alternate Mondays, each Wednesday and alternate weekends from 9am Saturday to 5pm Sunday. Once X turns five, the respondent proposes that he spend time with the applicant each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and time during school holidays and special occasions.
By way of property adjustment orders the respondent also seeks, inter alia, a payment of $200,000 from the applicant.
Relevant Legal Principles: Parenting
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The central enquiry is for the Court to determine the outcome that will be best for the child the subject of the proceedings.
The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[1]
[1] Goode & Goode [2006] FamCA 1346; (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]; The Full Court in Goode v Goode[1] mandated that the legislative pathway must be followed in all parenting cases. The High Court in MRR v GR [2010] HCA 4 affirmed the legislative pathway
In Starr & Duggan[2] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark[3] also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.[4] Consideration does not mean discussion.[5]
[2] [2009] FamCAFC 115 at [38] per Boland, Thackray & Watts JJ
[3] [2009] FamCAFC 92
[4] See discussion in Starr & Duggan [2009] FamCAFC 115 at [35]-[36]
[5] Banks & Banks [2015] FamCAFC 36 at [39]; Howard & Howard [2016] FamCA 455 at [45] not disturbed on appeal
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
High Court held in MRR v GR[6] that s.65DAA(1) “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent”. The Court held further that s.65DAA(1)(b) “requires a practical assessment of whether equal time parenting is feasible”.
[6] [2010] HCA 4; (2010) 240 CLR 461 at 467 [15].
Decisions in respect of a child’s best interests and decisions in parenting proceedings are discretionary, with such discretion to be exercised within the legislative framework. It is apposite to be reminded of what the High Court has said in respect of the Court’s discretion in this regard, that is:
Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof
…The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.[7]
[7]CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 at 219 [151] - [152] per McHugh, Gummow and
Callinan JJ. Cited with approval in Boyle v Zahur & Anor (No.2) [2017] FamCAFC 263 at [14]
Furthermore, the High Court[8] has stated, being a reminder of the discretionary nature of parenting decisions, that[9]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
[citations omitted]
[8] Bondelmonte v Bondelmonte [2017] HCA 8 at [32]
[9] These were obiter comments in the context of an appeal with considerations different to the present case.
Relevant Legal Principles: Property
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 of the Act was set out by the High Court in Stanford v Stanford.[10] Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[11], Chapman & Chapman[12] and Scott & Danton[13].
[10] [2012] HCA 52; (2012) 247 CLR 108
[11] [2014] FamCAFC 19 (“Bevan”)
[12] [2014] FamCAFC 91
[13] [2014] FamCAFC 203
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the common use of property by the parties. For reasons explained herein, it is not so in this instance.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[14]
[14] see generally Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”[15].
Findings
[15] Bevan [2014] FamCAFC 19 at [86]
Chronology
The parties commenced a romantic relationship in 2009, although it is in dispute when the parties’ commitment to one another as a couple began. At the time, each party was employed, had bank accounts and liabilities such as credit cards in their name and each managed their own financial affairs.
In 2009, the respondent owned the property at E Street, Suburb F which was valued at $360,000 and was subject to a mortgage of approximately $324,860.
In mid-2010 the respondent commenced working full time for Employer G earning a salary of approximately $140,000.
In 2010 the applicant commenced working at Employer H earning a base remuneration of $157,723. In addition to this, the applicant received annual bonuses of approximately $16,000. Also at some time in 2010, the applicant’s mother commenced proceedings overseas in respect of a 10% share in a warehouse in the Country J and granted the applicant a limited power of attorney in respect of that matter.
The applicant purchased K shares for $60,000 in 2011.
In 2012 the parties married in a religious ceremony and commenced cohabitation in 2012, following a wedding reception.
Between 2012 and October 2015 there are various payments by the applicant into the respondent’s bank account, some of which were utilised towards the mortgage over the E Street, Suburb F property. By and large though, the parties kept their finances separate, and when money was transferred, more often than not it was repaid.
Between March 2013 and December 2013, the applicant was on unpaid leave but in receipt of income protection insurance.
On 30 January 2014 the applicant received a termination payment of $29,344.65 from his employer, Employer H. The applicant was then employed as a professional earning $170,000 per year with additional allowances of approximately $20,000 in February 2014.
On 13 March 2014 the applicant received a ‘sign on bonus’ of $40,000. Part of these moneys were used towards the E Street, Suburb F property mortgage.
In 2014 the respondent began working at Employer L with a starting salary of $180,000 per year.
In Mid-2015 the respondent purchased a Motor Vehicle 1 for approximately $57,000. The vehicle was registered in the applicant’s name.
The parties separated in October 2015.
Post separation, the respondent has made a number of withdrawals from the mortgage associated with the E Street, Suburb F property, thus increasing the overall liability as noted later in these reasons.
On 11 January 2016 the applicant sold the K shares for $63,135.82.
In 2016 the parties’ only child X was born.
On 2 April 2016 the applicant began spending time with X for approximately two hours, two to three times per week.
On 16 July 2016 the applicant began spending time with X each Sunday and Wednesday for two hours, away from the respondent’s home.
In mid-August 2016 the applicant purchased a property at C Street, Suburb D for $1,125,000 with a mortgage secured over the property for $900,000. The deposit was made up of a loan by the applicant’s brother of $106,800 and the balance from the sale of the K shares and other savings accumulated by the applicant.
In mid-2017 the Bashir Family Trust was established. The applicant, his father and his brother are the beneficiaries of the Trust. The Trust purchased a property in Suburb M for $600,000.
On 13 June 2017 the applicant was issued with section 60I certificate.
On 30 June 2017 the applicant filed an Initiating Application seeking parenting orders.
On 9 August 2017 the Court made orders by consent for X to spend time with the applicant, such time supervised by N Contact Centre on a graduating basis until 13 September 2017 when X could commence spending unsupervised time with the applicant.
Pursuant to the orders made on 9 August 2017 the applicant spent supervised time with X on 13 occasions.
On 6 February 2018 the Court made orders by consent for the appointment of Dr O as the single expert in the proceedings.
In Mid-2018 the applicant’s self-managed superannuation fund which was established in October 2017 purchased a property in Suburb P, Victoria. At or around the time of the purchase, the applicant transferred $50,824 from the loan offset account for C Street, Suburb D property into the self-managed superannuation account as a self-contribution.
On 24 October 2018 the applicant was notified by his lawyers that X commenced pre-school on 22 October 2018.
On 22 November 2018 the applicant attended X’s pre-school to introduce himself to the Director and to obtain information from the Director about the centre. The applicant was notified by the Director that the respondent had advised the centre that there was to be no contact between X and the applicant.
On 11 February 2019 the applicant spent time with X at his pre-school for approximately two hours and in mid 2019 the applicant had a birthday party for X at his pre-school.
On 17 June 2019 the expert report of Dr O dated 14 June 2019 was released to the parties.
On 12 November 2019 the Court made interim orders for X to commence spending overnight time with the applicant.
Parties’ Relationship
In July 2018, at the time of the interviews with Dr O who authored the family report, the respondent could not report anything positive about the applicant.[16] At the time of final hearing, the respondent’s attitude towards the applicant was similar. Her dislike of him was palpable.
[16] Paragraph 30 of family report
The respondent makes serious allegations of family violence against the applicant. She says that he raped her on their wedding night and that he was coercive and controlling throughout their relationship. The respondent says that the applicant was openly negative and belittling towards her as a result of her choice to wear the hijab.
Allegation of rape
In 2012, after their wedding reception, the parties had sexual intercourse. Although the parties had engaged in sexual activity with each other on numerous occasions before this particular night they had not had sexual intercourse. The respondent says to the Court that the parties’ sexual intercourse on the night of their wedding reception was non-consensual. She has, throughout the proceedings, employed the term “rape” to refer to what happened on that night.
It is not in dispute between the parties that they had penetrative sexual intercourse for the first time in 2012. It is not in dispute between the parties that they had engaged in other forms of sexual activity prior to 2012.
It is important due to the serious nature of the allegation to set out in full the respondent’s evidence about the alleged rape[17].
25. Once Mr Bashir and I began living together his controlling nature towards me became more obvious and consistent.
26. It began on the night of our wedding reception in 2012. I had my periods and according to Islam, sex is not permitted during menstruation. I said to Mr Bashir “sex isn’t allowed according to Islam, you know that, we can’t do it tonight.” Mr Bashir said “you made me wait all these years and now you are saying no? What will I tell people? They will say that I am not a man.” Mr Bashir then raped me. I was a virgin. I felt humiliated and I was in pain. For the rest of our relationship, I experienced pain.
(emphasis added)
[17] Affidavit of Ms Elamin filed 31 January 2020
The respondent said that prior to the proceedings commencing, she had not told anyone about the allege rape apart from her mother. The respondent’s mother was not a witness in the proceedings notwithstanding that she was a witness who was available to give evidence in the respondent’s case.
Prior to the commencement of proceedings, the respondent had at least two clear opportunities of raising the allegations, but did not do so. These were firstly, to the hospital staff at the Q Hospital during the period when she was provided antenatal and postnatal care and secondly, in her long letters to the applicant written after separation which addressed a whole lot of grievances the respondent had about the applicant’s behaviour and attitude towards her.
The respondent did not have any satisfactory explanation as to why she said to the hospital staff as at December 2015, that her relationship with the applicant was a “good relationship” or why she did not make any complaint about the alleged rape. The respondent said in cross-examination that she knew that rape was a form of domestic violence. Her evidence in cross-examination was that she just thought that a husband was allowed to do this to his wife. The Court does not accept that the respondent believed so at the time.
The respondent has given a number of accounts of the same event at various points in time:
a)In her affidavit which was filed on 12 September 2017, the respondent makes her first complaint of the alleged rape, 5 years after the event. She claimed that the rape caused her physical pain while having sex throughout the relationship – a period of 3 years.
b)The Region R Contact Service notes reveal that the respondent claimed that she had been “pinned down” by the applicant, an account which is different to the one described in her affidavit about a week prior. During cross-examination the respondent tried to distance herself from what was recorded in the contact centre notes by suggesting that this is not what she said but rather that it was an interpretation of what she said. The Court finds that the respondent gave the account of the alleged rape as noted in the centre records and that this was not simply a fanciful interpretation by the centre workers of what she had said.
c)In her trial affidavit, the claim that sexual intercourse with the applicant was painful for the duration of the parties’ relationship is no longer pressed by the respondent, leaving only an assertion that she “experienced pain” of a type and frequency unspecified.
d)The family report notes as follows:
[28]… She stated that they had not engaged in sexual intercourse prior to the marriage although they had shared intimacy in other ways. She claimed that, on the evening of their wedding, Mr Bashir behaved disrespectfully and they consummated their marriage in what was tantamount to rape. She claimed that for the following few months she found sexual intercourse painful and found other ways to satisfy Mr Bashir….
Except for the respondent’s differing assertions that sexual intercourse was thereafter painful for her, there is no evidence of any contemporaneous complaint about this, whether to the applicant or anyone else. Indeed, there is ample evidence of the parties enjoying their sexual activities throughout their relationship.
The applicant denies the respondent’s allegation of rape and says that he “was shocked, upset and disgusted to read in Affidavits filed by Ms Elamin in these proceedings that Ms Elamin alleged that I raped her on our wedding night and I strongly deny this”. He says that on the same day “at around 3am Ms Elamin shared with me love songs on Youtube” and that the following day he and the respondent met with friends for dinner and that they were both very happy.
The applicant says that he is “at odds as to why” the respondent would book to stay in the same hotel for their one year anniversary if he had indeed raped her.
There was very little put to the applicant by way of cross-examination as to the alleged rape. This in one sense is understandable, as the evidence in chief of the alleged rape was very scant. The applicant denied that he had forced himself on the respondent.
To suggest, as the respondent does in submissions filed on her behalf, that “the father’s affidavit in regard to this matter is long on details about what happened on nights following the wedding night however is short on detail as to how he went about satisfying himself that he had the wife’s consent on her first time” is to misunderstand the evidentiary burden of proof.
It is for the respondent to prove that which she alleges. An assertion is simply that, an assertion. It does not, by itself and of itself mean that an asserted fact has been proven to the requisite standard. The burden of proof rests on the party who asserts affirmative propositions of fact. The particulars of the allegation as to what occurred are missing from the respondent’s evidence. No explanation has been provided why her evidence is incomplete in this regard. It is not for the cross-examiner to elicit the detail of the allegation.
The respondent was cross-examined in respect of her lack of contemporaneous complaint, conduct inconsistencies with a person claiming to have been raped and inconsistencies in her account of the alleged rape.
The principles in respect of burden of proof on the civil standard are applicable to the conduct of proceedings under the Family Law Act1975 (Cth), even in child related proceedings (subject to Division 12A).[18] The Court must have regard to s.141 Evidence Act 1995 (Cth) in respect of whether the respondent has met the burden.
[18] See for example: Cooper & Cooper [2006] FMCAfam 411; Johnson & Page [2007] FamCA 1235
Justice Carmody[19] summarised the relevant principles in the following manner:
[19] Murphy & Murphy [2007] FamCA 795
[235] …there is no special standard of proof in family matters where criminal or other serious misconduct is alleged. There are not two distinct standards – the Briginshaw approach and the ordinary civil standard. There is only one constant standard of proof in civil cases. That standard is the balance of probabilities. The evidence required to achieve that standard may vary depending on the three factors referred to in s 140(2) of the Evidence Act 1995 (Cth) which relate to the quantum as opposed to the standard of proof required. They are taken into account principally because the more serious an allegation is the less likely it is to occur and the stronger the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.
[236] In other words, as a general forensic rule the usual is more likely to occur than the unusual but the unlikely sometimes happens though not very often. Once the likely is rejected then the unlikely may be more likely to be true.
[237] The civil standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. Civil proof, therefore, is not a simple matter of grave suspicion or belief but of "reasonable satisfaction" following a search for the truth and properly evaluating the evidence adduced with regard to the matters mentioned in s 140(2) (and by Dixon J in Briginshaw) in the light of the parties' respective power to produce or capacity to contradict it.
[238] Consequently, the court cannot legally be satisfied that the case of child sexual abuse has been proved on the balance on probabilities (a positive finding about the allegation) until it has exercised due caution and carefully examined the whole of the evidence.
[239] However, the law looks for probability not certainty. In many aspects common sense and worldly experience may be as good a guide as any. A good starting point is the supposition that fathers do not normally sexually abuse their children. That assumption prevails unless and until the contrary is firmly and adequately established. An allegation or case is not proved where the competing possibilities are of equal likelihood or the choice between them can only be resolved by conjecture.
[240] Hughes LJ stressed in D v B (Flawed Sexual Abuse Inquiry), that just because the case is a family one where the dominant principle is welfare does not mean that unsatisfactory evidence can be afforded a greater weight than it can properly bear.
[241] It is, of course, not necessary for each and every evidentiary fact to be proved on the balance of probabilities. In fact, it is quite wrong to consider each item of evidence separately and disregard the unlikely because, of course, one piece of evidence may resolve doubts about another. For s 140 purposes the evidence must be considered together at the end of the case.
[242] It is the weight to be given to the united force and mutually reinforcing effect of all the circumstances put together that must be considered. Where circumstantial – as distinct from direct – evidence is relied on, all the facts have to be considered together at the final stage of the reasoning process and it is sufficient if the evidentiary circumstances must give rise to “a reasonable and definite inference”. It does not have to be the only rational explanation available. In Chamberlain v The Queen (No. 2 ) Gibbs CJ, Mason and Brennan JJ stated:
“[the jury] should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference … when the evidence is circumstantial, the jury, whether in a civil or criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances may raise a more probable inference in favour of what is alleged.”
(Citation omitted)
The Court is not required to make findings in relation to all of the facts put in issue by the parties. The Court need only determine those facts that are necessary for the determination of the issues between the parties.[20] In terms of the parenting dispute, the paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[21]
[20] Baghti & Baghtiand Ors [2015] FamCAFC 71 at [63]
[21] M & M [1988] HCA 68; (1988) 166 CLR 69
Despite lengthy written submissions[22], the respondent has not addressed with any particularity what the allegation of rape actually involves and how the evidence proves, on the balance of probabilities that the alleged rape occurred.
[22] Unfortunately, some of the submissions made on behalf of the respondent were done so without any evidentiary basis. For example the submission that “the mother’s account of what occurred is that the father physically forced himself on her” is completely without foundation. There was no such evidence in chief and no such evidence given in cross-examination.
The Court is not satisfied that the respondent has established, on the balance of probabilities, that the applicant raped the respondent on the night of their wedding reception.
The Court is satisfied that the respondent feels deep resentment towards the applicant as a result of the parties having sexual intercourse that night, which she believes to have been a sin as she was menstruating.
The issue of the alleged rape, is in one sense, a red herring. It has coloured the proceedings and impacted upon the way the parties have conducted themselves and the evidence which has been filed. It is not a matter which the applicant says should impact any parenting orders in terms of risk, nor is it a matter which the applicant says should impact upon the division of property in terms of a Kennon argument.
It is a matter however which is relevant in terms of the capacity of the parents to communicate and effectively co-operatively, and it is also relevant in respect of the respondent’s attitude towards the applicant and vice versa. As Dr O opines and the Court accepts “…[b]oth the parties are unfortunately enmeshed with their distorted positions of how they perceive the other.”
Allegations of coercive and controlling behaviour
The respondent describes herself as “a practising Muslim… [who] closely follow[s] the traditions and practices of … [her] faith” and explains that the applicant is “not supportive of my observance of the religion and its practices”.
The respondent says that during their relationship the applicant would take compromising photographs of her whilst she was asleep (or not aware) and that he would threaten to show her parents the photographs if she was to ever end the relationship.
The respondent alleges that the applicant introduced her to Bondage and Discipline, Dominance and Submission, Sadism and Masochism (“BDSM”) and that he would insist that she “read up about it” so that she could satisfy his needs. She says that the applicant would make her feel “inadequate and insecure”.
The respondent alleges that the applicant was relentless in his criticism of her wearing a hijab and that he would make comments to her such as “I hate the scarf, when are you going to take it off?”, “you really need to get rid of this”, “the scarf is ugly”, “you are hideous in that scarf and I find you very unattractive, “I won’t kiss you while you have that thing on” and “I hate the scarf and I hate how you look in it and I hate that you refuse to take it off. I find you so ugly in it”.
The respondent says that the applicant’s controlling behaviour towards her intensified when they began living together and alleges that such control began on the night of their wedding reception.
The respondent says that the applicant was always very critical of her family which had the effect of her needing to “choose between Mr Bashir and my family” and that when she spent time with her family the applicant would interrogate her about what was discussed.
The respondent maintains that during their relationship she believed that the things the applicant was asking her to do were things that a wife should be doing for her husband and that she felt obliged to act in a certain way for her husband.
At paragraph 37 and 38 of the respondent’s affidavit filed 31 January 2020 she attests to the following:
During one ocassion when my mother visited our home in or about 2015, he overheard my mother and I discussing my property. He went on a wild rage saying words to the effect of “how dare you discuss the property with your mum, don’t get too comfortable, I have bugged the house and know everything you said” I became paranoid that he indeed had put bugs in the house to overhear my conversations.
On one trip to Country S in 2014, Mr Bashir took me to a store that sold spy wear including listening devices and surveillance cameras. I always check all items and toys that come back with X from his dad’s house out of fear that they may have a listening device in them and always store them in the garage to avoid any concerns.
These were concerns that the respondent continued to hold whilst giving her evidence at final hearing.
The respondent says that the denigration and disrespect of her choice to wear the hijab and follow the cultural traditions of Islam intensified when she became pregnant with X and that she ended the relationship because of this whilst three months pregnant with X.
The applicant’s account of the parties’ relationship is entirely different to that of the respondent.
The applicant denies that he introduced the respondent to BDSM and that it was the respondent that “often spoke to me or texted me about her desire to engage in sadistic sexual acts”. He describes, and annexes to his Affidavit filed 31 January 2020, numerous text messages, emails and photographs of the respondent engaging in highly sexualised behaviors which he submits is inconsistent with someone who felt controlled or violated in the way the respondent describes.
The applicant denies that he was controlling of the respondent, denies being critical of her friends or family and denies interrogating her after spending time with her family. The applicant describes having a close relationship with the maternal family.
In paragraph 28 and 29 of the applicant’s affidavit filed 31 January 2020 he states the following:
When I met Ms Elamin we discussed our religious belief and I openly and clearly stated to her word to the effect of “although I respect religion and I appreciate its role in people’s life I am myself agnostic”. During our relationship Ms Elamin practiced her religion how she liked, and I always supported her and admired her commitment. …
From the time we met Ms Elamin and I had many discussions about her Hijab, and she said to me words to the effect of “Hijab is important for my faith and my image. I grew up wearing it since the age of 10. However, I take it off on occasion and I took it off when I went to Country T after I finished university”. I said to Ms Elamin words to the effect of “I’m happy for you to wear the Hijab and take it off on occasions you deem suitable” and she replied “Yes that would work”.
The applicant denies telling the respondent to ever remove her hijab and that she did so voluntarily at times when she wanted to.
The applicant’s evidence is that the respondent became increasingly more religious following a miscarriage in early 2015 and says that the respondent expected him “to comply with her religious beliefs” which was the cause of the parties separation.
The text messages sent by the applicant to the respondent on the eve of their separation, are an important example of the applicant’s attitude towards the respondent:
Moving forward, please, do NOT accept last minute confirmation to stay outside the house even if that means leaving your job, no sleeping outside the house or working beyond the normal hours while pregnant, at all cost. We need to stick to this while you are pregnant and until we either restore our relationship or leave each other.
Is that clear?
I need to know where you are having dinner tonight.
Where is the dinner, what is your room number?
These are hardly messages of a concerned and worried father to be. These are messages which can easily be seen as threatening and manipulative.
A further example of the applicant’s attitude is contained in a message sent on 24 November 2015, which reads as follows:
Look Ms Elamin, without darting around the subject, and without talking about me to people behind my back, whomever advised you to leave your home requires a 100 spits on his face, if you acknowledge that your actions to leave the house and getting upset with me because you have a trip to Country U while you are pregnant and without getting my permission to travel and you creating a psychology based story staying that you need 30 days off me, and you saying that you don’t have a flight booked while it appeared that you do, and you breaking my oath for divorce, just so you would be able to travel for your work, and you breaking your father’s words, if you acknowledge that all of this is wrong regardless of the reasons and circumstances, and you never ever repeat those actions again, and accept to sit and talk about buying a house together and you start taking care of your pregnancy and your home and how to please your husband and your father, and apologise for all those actions of yours, then come to sit and talk, because if you pay me respect I will pay you further respect… but if you insistent that you are right, or you have the intention to repeat what has happened… then let us be done with this once and for all in front of everyone and God… if you do not answer me today you are playing games… Every time you are with your husband you get greater while dragging this story on and being alone you will shrink you smaller (sic)…
The Court accepts the respondent’s evidence that the applicant was at times critical of her choice to wear the hijab during their relationship and that the wearing of the hijab by the respondent was something which the applicant was not in favour of. The Court finds that the respondent struggled with her own beliefs and morals, and that she felt internally conflicted.
The Court also finds that from time to time, the applicant did belittle the respondent, but that the relationship between the parties was not one marred by controlling and coercive behaviour.
Birth of the parties’ child X
At separation, the parties’ relationship was poor. Following the parties’ separation the respondent distanced herself from the applicant and did not keep him informed as to the details of her pregnancy. The maternal grandmother was acting as the go-between.
On 9 February 2016 the respondent sent an email to the applicant advising that she did not want him to be present at the birth of the child.
Between 26 February 2016 and approximately early 2016 the applicant attempted to speak with the respondent regarding the impending birth of their child and was not provided with any information about the birth plan. In approximately early 2016 the applicant received an email from the parties Financial Advisor wishing them luck for the scheduled cesarean section in 2016.
The respondent says that the applicant was aware of the scheduled procedure date as she was notified by the hospital that they had provided that information to the applicant during a telephone call with him. In any event, it was not the respondent who advised the applicant that the caesarian was booked.
In early 2016 the applicant received a text message from the maternal grandmother advising that the respondent had given birth and that the baby was doing well.
Care of X
There is no contention between the parents that the respondent is the primary carer of X.
The applicant met X for the first time in early 2016 at the hospital. Between this time and mid 2016 the applicant and the maternal grandmother communicated with one another about the applicant spending more time with X. Following mid 2016 the applicant began spending time with X two to three times per week at the maternal grandparent’s home.
In mid 2016 the applicant learned, through the maternal grandmother, that the respondent had registered X’s birth and that the respondent did not name the applicant as the father on the birth certificate. This was despite the applicant raising the need to register the birth and complete the necessary paperwork for the birth of X with the respondent and the maternal grandmother as early mid 2016. This was also in light of the respondent, being aware that the applicant wanted to name the child ‘V’.
The respondent’s evidence was that she and the applicant had agreed that if they had a son she would choose the name and that if they had a daughter the applicant would choose the name.
The respondent conceded in cross-examination that her actions in registering X’s birth without including the applicant’s details were inappropriate. The respondent’s actions were indicative of a high level of anger and animosity towards the applicant.
In mid 2016 the parents attended the Registry of Births, Deaths and Marriages and submitted a new application which included the details of the applicant and included the name ‘V’ as X’s middle name.
The applicant began spending unsupervised time with X on 20 July 2016 for two hours each Sunday and Wednesday.
In September 2016 the applicant requested for X to spend time with him at his home which the respondent refused. The Court finds, that the respondent’s refusal to the child spending time with the applicant at his home was not reasonable.
On 9 October 2016 the applicant spent time with X and took him to his home to spend time with the paternal family. Following this, the respondent advised the applicant that “any future time with X will need to be facilitated via a lawyer”. The applicant says he regrets his decision to take X to his home without the consent of the respondent.
In the circumstances where the respondent had not consented to the child spending time with the applicant at his home, while objectively without risk or danger to the child, the applicant’s actions in taking the child to his home were unwise and resulted in further mistrust and conflict between the parties.
Between 9 October 2016 until 3 August 2017, the applicant did not spend any time with X. This was despite the applicant attempting to negotiate with the respondent about such time occurring, and despite the applicant’s attempts at mediation. Prior to commencing proceedings in early July 2017, the applicant had through his solicitor, again attempted to reach agreement with the respondent to spend time with the child. The respondent proposed to facilitate time between the applicant and the child only with an independent third party.
It was not until after the applicant commenced proceedings that time again commenced. The period of time which X did not spend with applicant was crucial for the building of attachment and bond with his father.
The respondent says that once time resumed between X and the applicant, X would often be “quite emotional and complained that he didn’t want to go”.
In September 2017, at the time she filed her affidavit, the respondent considered that it was in X’s best interest that he start spending overnight time with the applicant from the time he turned 3. Her position changed, without explanation, by December that year, at which point in time her application was that the child start spending overnight time with the applicant from the time he turns 4. After cross-examination it is clear that there was no basis or reasonable explanation as to why the respondent’s case changed in this manner.
The respondent says that following the release of the family report of Dr O on 17 June 2019 X would tell her that “daddy said that he is fighting so I can sleep at daddy’s house” and that he then shortly afterward began waking up during the night screaming “I want my mummy I don’t want to stay at daddy’s house” and that he began wetting himself again, despite being fully toilet trained.
The respondent maintained in her evidence in chief that X continues to struggle with the transition to the applicant’s care.
During cross-examination the respondent conceded that she did not take X’s statements about overnight time with the respondent literally, and that she believed that X has a close, loving and warm relationship with the applicant; a relationship which is of benefit to him.
Evidence of Dr O
At the heart of Dr O’s report is the need for these parents to be able to communicate effectively in a child focused manner that places X’s needs above their mistrust and dislike of each other.
The family report refers to a significant and continued “power struggle” between the parents which has elicited poor behaviour from the parents. However, despite this poor behaviour what the report indicates to the Court is that X is very much loved and idealized by both of his parents.
Dr O opines that given the parents separated prior to the birth of X it would have been ideal for X to spend short periods of time with the applicant on a regular basis to begin forming a secure attachment to both of his parents. She says that whilst the parents were able to negotiate this in first seven months of X’s life the impasse that the parents faced in October 2016 saw them “place X’s needs in the foreground” and that they both “showed a level of immaturity”.
Dr O asserts that it is “imperative that there not be a repetition of any prolonged separations of X from his father” because the impact that this will likely have on X is that he may begin to feel that his father is “unreliable and an inconsistent presences in his life and a person who cannot be trusted to be there for him”.
The observations of X with each of his parents indicated that he has a warm and loving relationship with both of them and that he demonstrated secure attachment behaviours with both the applicant and the respondent.
Dr O’s evidence with respect to X showing signs of distress during changeover is that “this is not a sign of pathology but rather a healthy sign of separation anxiety which is age appropriate” and that as time moves forward it is likely that X will transition more easily between the two households. This is evidence that the respondent ought to find comfort in.
Dr O asserts that it is important for X at this stage in his development to “have confidence that his parents are in charge and will make responsible child focused decisions” which X has not had much experience of to date because of the “hostile power struggle” the parents are engaged with.
Dr O opines that there is a serious risk of X becoming “inappropriately involved in carrying messages between his parents or making disclosures that please each parent”.
In relation to changeovers, Dr O’s opinion is that it cannot be in X’s best interest for the changeover location to continue being at the Region R Contact Centre when there are other options available which include managing this with the assistance of extended family to reduce the conflict that may arise between the parents if they are not able to facilitate changeover independently.
Importantly Dr O points out for the parents that their:
Patterns of communication do not augur well for their future capacity to jointly make child focused decisions and has set a poor tone for how they make decisions. Both of the parties are unfortunately enmeshed with the distorted positions of how they perceive the other, which to a large extent reflect unresolved acrimony from their marriage.
In addition, Dr O says that the behaviour of the parents has “precluded them from moving into a more collaborative co-parenting space and a level of communication that demonstrates healthy co-parenting” and that “this does not work in the spirit of shared parental responsibility.”
In respect of the making an order for sole parental responsibility as sought by the respondent, Dr O asserts that this would marginalise the applicant even further despite him playing a significant role in X’s life and that for X this will minimise the importance of his father in his life.
The recommendations of Dr O were for X to continue living with the respondent and spend substantial and significant time with the applicant with overnight time commencing immediately and increasing gradually to something resembling five nights per fortnight.
Despite the clear recommendations of Dr O and her report being released to the parties in mid-2019, the respondent did not consent to X spending overnight with the applicant until November 2019.
Determination as to Parenting
Parental Responsibility
The question of parental responsibility is a vexed one in the circumstances of this case. The parents are on the one hand intelligent, educated people who should both be able to offer X support and assistance as he grows. Their values about education and upbringing appear to be similar. X would benefit from both of their input into important long term decisions.
On the other hand, there is a great deal of animosity and distrust between the parents, which has not abated in the time the proceedings have been before the Court.
While the parents are able to communicate in a respectful manner and at least prima facie they should be able take into account each other’s opinion about X’s upbringing and long term decisions, they have not done so to date. In this regard however, it is the respondent who has made important long term decisions concerning X without any consultation with the applicant; for example, she had intentionally registered X’s birth without including the applicant’s details and she did not notify the applicant of her intention of enrolling X into daycare until after this was done. To add to this, the respondent believes that it is “none of [the respondent’s]… business” that she recently had heart surgery; which resulted in the applicant being unaware of a possibly life threatening surgery the respondent was having and was not being able to offer the child support during a period of time his mother must have been in serious discomfort.
The respondent maintains that she and the applicant are incapable of effectively communicating with one another and that she is intimidated by the applicant. When pressed about these matters in cross-examination, the respondent conceded that the applicant had been courteous and polite in his correspondence to her about X and that she had the capacity to likewise be courteous and polite when discussing X’s needs.
While the respondent maintains her reluctance at co-operating with the applicant about long term issues concerning X, the Court finds that this attitude is not only self-serving but maintained for the purposes of obtaining a particular outcome in this litigation. It is more likely than not, that once the dust has settled and this litigation is at an end, that the parties will get on with their lives and bury the hatchet.
On considering all of the evidence, the presumption of equal shared parental responsibility has not been rebutted, and moreover, an order for the parties to have equal shared parental responsibility for X is an order which is in the child’s best interest.
Where X is to live and time with each of his parents
X’s age and maturity level is such that his views are not given significant weight, but are such that there should be a staged approach to increased time with the applicant.
The respondent has been the child’s primary carer throughout his life and is no doubt his primary attachment figure. However, the child has a strong and loving attachment to both of his parents and their extended families.
The respondent has since the child’s birth, displayed a strong reluctance to have the applicant meaningfully involved in the child’s life and has needed the encouragement of Court orders to ensure that he is so involved. She has little trust in the applicant.
Dr O, as submitted by the parties, gave important evidence in the proceedings and was an impressive witness. In her opinion, which the Court accepts, the parties are in many ways ideally suited for a shared parenting arrangement.
However, despite their many similarities, including their strong commitment to X’s welfare, care education and development and similar focus on the importance of family relationships, they are not yet in a place where past hurts have been forgiven and where the olive branch has not only been extended but accepted.
The respondent’s clear reluctance to be part of a shared care arrangement, and her clear reluctance to X spending significant and substantial time with the applicant, are strong contra-indicators of an order for equal time.
During the hearing, whilst being cross-examined about the time X should spend with the applicant if he was to be living with the respondent, the respondent said that she was very much against anything which looked like shared care as she did not believe that this would offer any stability to X. She said that rather than have him move between households during the school week, he should live with one of his parents even if this meant living with the father during the school week and with her only on weekends. Such a proposal is against the evidence[23].
[23] And indeed not supported by the objects and principles of the Act
At the time of hearing, Dr O recommended one extra night with the applicant every 3 months. The expert also considered that it was in the child’s best interest that until he was in year 1, that he saw each parent every week. The Court is of course not bound by the expert’s recommendations and the opinions expressed by the expert are but part of the overall evidence in the proceedings.
It is now 7 months since the final hearing concluded and judgement was reserved. X is older and more mature. He is likely to start kindergarten in less than two months, an exciting time in his life. The changes which going to school will bring will likely be compounded by the changes to his living arrangements as a result of these orders. The sooner he has stability as far as his living arrangements are concerned the better. No doubt each of his parents will support him appropriately as he commences formal schooling.
The Court finds that a transition of some 12 months to a final regime of significant and substantial time is too long and that X will benefit from an order that a regime of significant and substantial time is introduced in a staged approach but that the final regime is reached sooner rather than later. It is not in X’s best interest that there be an order for equal time, but something slightly less than that.
A regime of 5 nights per fortnight, an afternoon in the off week and half school holidays is in the child’s best interest. This will see X remaining with his primary carer and attachment figure, it will provide him with the stability which the respondent so values and it will provide him with the benefit of a meaningful relationship with the applicant.
While the respondent has not been the most supportive parent of X’s relationship with the applicant to date, she has facilitated time in accordance with orders and has ensured that the child spends time with the applicant. Despite her animosity towards the applicant, this has not translated into a scenario where X is affected by such animosity; that is, she has been able to ensure that X has a warm and loving relationship with the applicant despite her own feelings towards the applicant. This is a credit to her.
The parties each seek a number of restraints in respect of what they may or may not be permitted to do whilst X is in their care. The only such restraint which shall be made is in respect of the respondent permitting or allowing X to have any contact or communication with a particular organisation as identified in the orders. This is to ensure that the child is not exposed to any unacceptable risk of harm.
Given the deep and continuing lack of trust between the parents, should either of them propose to travel out of the jurisdiction with the child it should be done with the other parent’s consent. If that consent is not reasonably provided, the parent wishing to travel with the child can always approach the Court for appropriate orders, including costs orders in respect of such application having to be brought. The child’s name will remain on the Airport Watch List until he turns 14.
It is appropriate that X see his parents co-operate and to that end, changeover should occur, if not at school, at the parents’ homes. The evidence does not support any finding that the respondent would be at risk of harm if this were to occur.
Determination as to Property
Contributions
The parties commenced a relationship in 2009. Even though they spent regular nights together and were romantically involved, they did not start living together in a fully committed relationship until 2012. They separated in October 2015. The parties therefore co-habited for a period of just over three years.
During the relationship, the parties both worked hard in professional roles in the health care sector, earning substantial incomes as befitting their qualifications and education. During the relationship, the parties each controlled their own income and operated their own bank account.
At the commencement of the relationship the respondent owned the property at E Street, Suburb F which was valued at $360,000 at the time with an approximate mortgage of $324,860. The respondent’s mother managed the receipt of rental income from the E Street, Suburb F property, received in cash, given to the respondent which was then deposited in the respondent’s bank account.
The applicant paid to the mortgage account of the respondent’s property in E Street, Suburb F sums of money which ultimately reduced the mortgage; these included lump sum payments in the amount of $10,000 on 11 September 2013, $14,500 on 6 February 2014 and $13,700 on 16 March 2014.
The parties both agree that during the time they lived together they paid the rent, but the Court is not able to make a finding on the evidence as to how much each of them paid.
As at late 2012, the mortgage balance on the E Street, Suburb F property was $232,175 and by October 2015 it had been reduced to $150,215. During the period of time the parties cohabited, the mortgage was reduced by approximately $82,000. Over 3 years, this is an average of $27,300 each year. Given the parties’ incomes, it is not a substantial reduction in the mortgage. At the time of final hearing, the balance was on the mortgage was $308,000, most of this being drawn down by the respondent post separation for the payment of legal fees.
The applicant acquired shares in 2011, prior to the parties commencing cohabitation. He purchased the shares for $60,000 using his savings. Those shares have been sold post-separation and used by the applicant to purchase the home at C Street, Suburb D in August 2016. When he purchased the home at C Street, Suburb D, the applicant contributed a total of $118,200.
There is no evidence of any financial or other direct contribution by the respondent to the shares or the home at C Street, Suburb D.
In 2017, when the applicant established the Bashir Family Trust, he refinanced the home loan secured over the home at C Street, Suburb D and borrowed $70,000 which was assigned to the Trust as the loan by the applicant’s brother towards the purchase of the property at C Street, Suburb D. The Trust has been valued at ($58,000).
In May 2018, the applicant further refinanced his home loan, borrowing $50,824 which was used as a contribution to a newly established self-managed superannuation fund. Together with money rolled over from the applicant’s Super Fund W superannuation account, the self-managed superannuation fund purchased a property at Y Street, Suburb P.
While much has been made of the assertion that the applicant owns property overseas and that he has inherited property from his late mother, neither of these assertions have been proven on the evidence. The Court accepts the applicant’s evidence that the deductions claimed on his tax returns were as a result of an agreement between the applicant and his late mother in respect of income and expenses associated with a warehouse which she had owned in the Country J.
During the parties’ relationship, the applicant purchased gold using money lent to him by his brother. He has paid his brother back. Neither party apparently knows the whereabouts of the gold and each claims that the other has it. There is no objective evidence as to the whereabouts of the gold or indeed any evidence of its value at the time of hearing. It will not be included in the balance sheet.
Post separation, the applicant received a redundancy payment of $174,000. At the time of hearing, all of these funds have been expended on legal fees and living expenses. The amount received by the applicant as a redundancy payment is a payment made to the applicant by his employer as an entitlement pursuant to his employment contract, which has been terminated.
The Pool
The Court determines that the pool consists of the following[24]:
[24] Rounded to the nearest $1000
a)The applicant has the following assets and liabilities:
i)C Street, Suburb D, net value: $125,000
ii)Savings: $13,000
iii)Motor Vehicle 1: $20,000[25];
[25] This is a vehicle registered in the applicant’s name but which is in the respondent’s possession. It is an asset which is assigned to the applicant’s side of the ledger.
iv)Motor Vehicle 2 with little to no equity in it;
v)Self-managed superannuation fund: $71,000
vi)Bashir Family Trust: ($58,000)
Total: $171,000
b)The respondent has the following assets and liabilities:
i)E Street, Suburb F, net value: $440,000
ii)Savings: $13,000
iii)Shares: $41,000
iv)Motor Vehicle 1 with little to no equity in it;
v)Superannuation: $150,000;
vi)Notional property: $160,000 being moneys drawn down on the mortgage since separation used mostly for the payment of legal fees;
Total: $804,000
The amounts spent by the applicant on legal fees post separation are moneys paid from the redundancy payment, which is for all intents and purposes to be counted as income which the applicant would have received but for the redundancy. It is not a premature distribution of property, unlike the moneys spent by the respondent which were drawn down from the E Street, Suburb F property mortgage thus increasing the overall liabilities.
The net pool is therefore $975,000.
If no property adjustment order is made, the applicant will retain 18% of the pool, while the respondent will retain 82% of the disclosed and known assets, after add-back.
Without adding back as notional property the funds which the respondent has spent on legal fees (and which have increased the overall liabilities) the pool is $815,000. In those circumstances, if no property adjustment order is made the applicant would retain 21% and the respondent 79% of the disclosed and known assets.
What is just and equitable?
The parties’ relationship was relatively short, with a cohabitation period of just over 3 years. The respondent came into the relationship with a significant asset, which she retained at the end of cohabitation and which she retains to date. The property has remained encumbered at the conclusion of the relationship. Both parties made direct and indirect contributions towards the E Street, Suburb F property and overall during the parties’ relationship. However, post separation there have been no direct or indirect contributions by either party towards the assets of the other, except any indirect contribution which the respondent made to the savings and assets accumulated by the applicant during the relationship and which were utilised by the applicant towards the purchase of his home at C Street, Suburb D.
At the time of final hearing the applicant remained unemployed while the respondent continued in her previous employment. The respondent did indicate that she was considering finding a different position and one which did not require so much travel.
The applicant and the respondent each have relatively similar capacity to earn income. They are both highly trained professionals who are by all accounts, well respected in their fields. There is no objective evidence that either party will have any trouble obtaining suitable employment in the future.
There is one child of the relationship who was born following separation. The child has been primarily cared for by the respondent, although he has spent time with the applicant. After the making of final parenting orders, the child will remain in the respondent’s primary care although he will be spending significant and substantial time with the applicant.
The applicant has at all times met his obligations towards financial maintenance of the child, while the respondent has met all of the direct costs associated with the care of the child while the child has been living with her.
Overall, having regard to the parties’ contributions including those after separation and other relevant matters, equity and justice does not dictate that there be any order adjusting the parties’ property interests.
As noted earlier in these reasons, in many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the common use of property by the parties. It is not so in this instance.
It was submitted on behalf of the respondent that:
There is no principled reason why an able bodied holder of a degree who has a capacity to earn a high income and who recently had access to $174,000 should receive property in addition from his wife.
It is a submission accepted by the Court, but not the converse of it.
Likewise, it appears that there is no principled reason why an able bodied holder of a degree who has a capacity to earn a high income and who recently spent over $160,000 on legal fees should receive property in addition from her husband.
It is easy to lose sight of the fact that the parties had high incomes, professional careers and their own financial resources prior to their short 3 year cohabitation. It is also easy to lose sight of the fact that it has been over 5 years since the parties separated. Each of the parties is a capable professional.
Having regard to all of the relevant matters including the parties’ contributions towards the assets of each of them during their 3 year cohabitation, it would not be just and equitable for there to be any adjustment of their legal title and interest.
Conclusion
For all of those reasons orders as set out at the forefront will be made.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 24 December 2020
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