BHATA & BHATA
[2017] FCCA 2777
•16 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHATA & BHATA | [2017] FCCA 2777 |
| Catchwords: FAMILY LAW – Property – The Wife seeks orders that the former matrimonial home be sold, the mortgage be discharged, monies owing to her father and brother be repaid and she receive 65% of the balance then remaining – the Husband seeks orders that the Wife transfer to him her interest in the former matrimonial home and the parties otherwise retain all property in their possession including superannuation. HELD – The parties son live with the Wife and spend significant and substantial time with the Husband – the Wife receive 55% and the Husband 45% of the parties’ property pool and there be on order equalising the parties’ superannuation entitlements. |
| Legislation: Family Law Act 1975, ss.75(2), 79(2), 79(4), 90MT |
| Cases cited: Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395 |
| Applicant: | MR BHATA |
| Respondent: | MS BHATA |
| File Number: | MLC 2010 of 2016 |
| Judgment of: | Judge Bender |
| Hearing date: | 7 September 2017 |
| Date of Last Submission: | 7 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Not Applicable |
| Solicitors for the Applicant: | Rangi Lawyers |
| Counsel for the Respondent: | Mr Howe |
| Solicitors for the Respondent: | Hughes Watson Marks Kennedy |
| Counsel for the Independent Children's Lawyer: | Ms Elleray |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
Parenting
The Wife and the Husband have equal shared parental responsibility for the child X born (omitted) 2012 (“X”).
X communicate with the Husband by telephone or Skype two times each week as agreed between the parties.
X live with the Husband as follows:
Week 1
(a)for a period of six weeks, from 3.00pm Friday to 5.00pm Sunday each alternate weekend;
(b)thereafter from 3.00pm Friday until 9.00am Monday each alternate weekend;
Week 2
(c)for a period of six weeks, from 3.00pm Wednesday until 3.00pm Thursday;
(d)thereafter, from 3.00pm Wednesday until 9.00am Friday;
Upon X commencing school in 2018
(e)during school term each alternate week from the conclusion of school or 3.00pm if a non-school day Wednesday until the commencement of school or 9.00am if a non-school day Monday commencing the first Wednesday of each school term;
School Holidays
(f)commencing with the first term school term holidays in 2018 X shall spend half of the school term and long summer school holidays with each parent as agreed between the parties and if they cannot reach agreement:
(i)in odd numbered years commencing at midday on the day after the last student day of school with the Wife in the first half and the Husband in the second half commencing at midday on the middle day of the school holiday period with the Husband to return X to the Wife at 5:00pm on the day before school recommences;
(ii)in even numbered years commencing at midday on the day after the last student day of school with the Husband in the first half and the Wife in the second half commencing at midday on the middle day of the school holiday period;
Christmas
(g)for Christmas as agreed between the parties and if they cannot reach agreement:
(i)commencing in 2017 and each alternate year thereafter with the Wife from 6.00pm Christmas Eve until 6.00pm Christmas Day and the Husband from 6.00pm Christmas Day until 6.00pm Boxing Day;
(ii)commencing in 2018 and each alternate year thereafter with the Husband from 6.00pm Christmas Eve until 6.00pm Christmas Day and the Wife from 6.00pm Christmas Day until 6.00pm Boxing Day;
Birthdays
(h)on X’s birthday as agreed between the parties and if they cannot reach agreement X shall spend time with the parent he is not living with where the birthday is a non-school day from 10.00am until 2.00pm and where the birthday is on a school day, with the parent X would not be spending the night with from the conclusion of school until 6.00pm;
(i)on the parents’ birthdays as agreed between the parties and failing agreement, if X is not living with the parent whose birthday it is, he shall send time with that parent on a non-school day from 10:00am until 6:00pm and on a school day from the conclusion of school until 6:00pm; and
(j)such further or alternative times as agreed between the parties in writing.
X shall otherwise live with the Wife.
Changeover not at X’s school occur at the Wife’s residence at the start of the Husband’s time and the Husband’s residence at the start of the Wife’s time.
Provision of Information
If X requires any emergency medical treatment, the parent X is with shall advise the other by email and/or text with full details including information about any injury sustained by, and any treatment administered to, X within four hours of first contact with a medical practitioner or allied health practitioner.
Each party will advise the other of the details of any medical practitioner seen by X while in their care and authorise the medical practitioner to speak with the other in relation to X.
Each party be authorised to speak to any medical practitioner seen by X.
Each party shall keep each other advised as to their current address and telephone contact details and advise of any change within 24 hours of such change being made.
Each party is permitted to attend upon parent/teacher interviews, school concerts, assemblies and such other activities that parents may be invited to attend from time to time.
Each party shall be provided, at their expense, with copies of X’s school reports, notices, newsletters, photographs and such other information that parents may be provided from time to time.
The parties shall utilise a communication book to communicate with each other in relation to X. Such communication shall be child focused and respectful.
Restraints
The parties, their servants and/or agents be and are hereby restrained by injunction from:
(a)denigrating the other party or their family in the presence or hearing of X and from allowing anyone else to do so in his presence or hearing;
(b)physically disciplining X or permitting any third party to do so;
(c)delivering messages to the other party through X;
(d)discussing, or allowing third persons in his presence to discuss, with X the Court proceedings or any of the allegations raised therein;
(e)leaving any Court documents in a place where X may find or read them.
If X is unable to spend time with the Husband due to X’s illness, or because X is not otherwise available to spend time with the Husband, the Wife shall:
(a)provide the Husband with a medical certificate if time cannot occur due to illness or an explanation for why X is unavailable;
(b)arrange makeup time for X as soon as possible to the date of the missed time.
Wife’sMental Health
The Wife shall attend upon her treating medical practitioner and mental health practitioner and comply with all lawful directions of said practitioners.
The Wife will provide to the Husband a report from her medical practitioner or mental health practitioner written confirmation of her compliance with treatment and her mental health stability once every six months for a period of at least two years. If the Wife’s condition is stable during the two year period, such report shall be provided annually for a further two years. If the Wife’s mental health is not stable the Wife shall be required to provide six monthly reports until stability is restored for a period of two years.
The Wife shall nominate a treating psychiatrist and/or mental health service to whom she will be referred in the event of psychiatric instability and advise the Husband of the details of the person or service nominated.
The Wife shall provide a copy of these orders to her treating medical practitioner and mental health practitioner (including psychiatrist) and provide an irrevocable authority to her treating medical practitioner and mental health practitioner authorising them to contact the Husband if the Wife is hospitalised for treatment of her mental health condition.
If the Wife is hospitalised for longer than three consecutive days, X is to be placed into the care of the Husband and remain in his care until the Wife provides a report from her treating medical practitioner or mental health practitioner indicating that she is psychiatrically stable and able to care for X.
Watch List Order
Each of MR BHATA and MS BHATA and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born (omitted) 2012 (Male) from the Commonwealth of Australia.
X be and is hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said child on the Airport 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 for a period of five years.
Parenting Orders Program
The Wife and the Husband forthwith enrol in and commence the Parenting Orders Program with CatholicCare in (omitted) Community Services (omitted) to address their ongoing shared parenting arrangements.
Property
By 4.00pm on 16 December 2017 the Husband provide proof to the Wife’s solicitors by way of written confirmation from a lending institution or other nominated lender that he can refinance the mortgage on the property at Property A, (“the former matrimonial home”) into his name and pay the Wife the sum of $107,595.55 (“the written confirmation”).
In the event the Husband complies with order (24) herein:
(a)the Husband pay to the Wife the sum of $107,595.55 (“the payment”) within 30 days of providing the Husband’s solicitors with the written confirmation (“the date”);
(b)contemporaneously with the payment the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Wife, all of her right, title and interest in the former matrimonial home;
(c)the Husband indemnify the Wife against all payments and liability pursuant to the mortgage and all apportionable rates, taxes and outgoings of or with respect to the former matrimonial home; and
(d)the Husband indemnify the Wife and be solely liable for the monies owed to Mr L and Mr T.
In the event the Husband is unable to, or elects not to comply with order (24) herein or fails to make the payment by the date, then the parties shall do all such acts and execute all such documents necessary to place the former matrimonial home on the market for sale (“the sale”) and upon settlement of the sale the proceeds be paid as follows:
(a)first to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge the mortgage on the former matrimonial home;
(c)thirdly to repay Mr L the sum of $20,500 and Mr T the sum of $10,000.
(d)fourthly the balance remaining be divided between the parties on the basis that the Wife receive 55% of same and the Husband receive 45% of same.
Pending the payment or the sale:
(a)the Husband have the sole right to occupy the former matrimonial home and during such right of occupation the Husband pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the former matrimonial home as they fall due;
(b)the parties hold their respective interest in the former matrimonial home upon trust pursuant to these orders; and
(c)neither party encumber the former matrimonial home without the consent in writing of the other party.
The Trustee of the Husband’s (omitted) Super Fund (“the Fund”) member number (omitted) is directed to split that policy pursuant to section 90MT of the Family Law Act 1975 (Cth) (“the Act”) as set out herein.
Pursuant to section 90MT(4) of the Act, the amount of $17,364.25 be allocated as the base amount to the Wife out of the interest of the Husband in the Fund.
Pursuant to section 90MT(1)(a) of the Act, when the Trustee of the Fund makes a splittable payment out of the Husband’s interest in the Fund, the Trustee shall:
(a)pay to the Wife the entitlement calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and
(b)make a corresponding reduction in the entitlement that the Husband would otherwise have had in the Fund but for these orders.
The operative time for the splitting of the Fund shall be 4 business days after the Trustee of the Fund has been served with a copy of these orders.
The Trustee do all such acts and things and sign all necessary documents to fulfil any obligation set out in the Act and the Regulations so that the Wife’s entitlement can be calculated and paid to her in accordance with these orders.
Until the making of the splittable payment pursuant to these Orders, the Husband be and hereby is restrained from doing any act or thing or giving any direction which would have the effect of reducing or prejudicing the entitlements of the Wife.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner/beneficiary named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Bhata & Bhata is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2010 of 2016
| MR BHATA |
Applicant
And
| MS BHATA |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the parties’ application for both parenting and financial orders following the breakdown of their marriage.
Whilst the Husband formally seeks orders for equal shared parental responsibility for the parties’ son X born (omitted) 2012 (“X”) he is proposing that in the event the parties are unable to agree on any matter relating to X’s education, health, religious and cultural upbringing or any other decision impacting upon his long-term welfare, the Husband make the final decision and provide the Wife written confirmation of that decision.
The Husband also seeks orders that X live with him and spend 5 nights a fortnight with the Wife. The Husband proposes that in 2017, time in school terms be from 3.00pm Wednesday to 9.00am Friday in week one and from 3.00pm Friday to 9.00am Monday in week two. In 2018, when X starts school, the Husband proposes X’s time with the Wife be each alternate week from after school Wednesday to before school Monday and half school holidays.
In relation to financial matters, the Husband seeks orders that the Wife transfer her interest in the property at Property A (“the former matrimonial home”) to him and the parties otherwise retain all property in their possession including superannuation.
It is the Husband’s belief such orders are just and equitable as he made the greater initial contribution and because the Wife had the benefit of $26,350 cash and $20,000 of jewellery he alleges she retained at separation as well as an equitable interest in her brother’s home in (omitted) and an entitlement in her parents’ agricultural land at (omitted) in India under the Hindu Succession Act 1956 (India).
The Wife is seeking orders that the parties have equal shared parental responsibility for X, that he live with her and spend time with the Husband on a gradually increasing basis such that when X commences school in 2018 he spends time with the Husband each alternate week from after school Wednesday to before school Monday. The Wife also proposes that from the first term holidays in 2018, X spends half the holidays with each of the parties. She also proposes a sharing of special days such as Christmas and birthdays.
The Wife’s proposal reflects the proposal of the Independent Children’s Lawyer who adopted the recommendations contained in the family report of Dr O.
The Wife has a long history of mental health issues, albeit her mental health has been stable since early 2016. The Independent Children’s Lawyer proposes orders be made that ensures the Wife’s treating mental health practitioners notify the Husband if the Wife is hospitalised for treatment of her mental health condition. The Independent Children’s Lawyer further proposes that X be placed into the Husband’s care if the Wife is hospitalised for more than three days until the Wife provides a report from her treaters that she is psychiatrically stable and able to resume primary care of X. The Wife agrees with orders being made in these terms.
Both parties are seeking orders restraining them from removing X from the Commonwealth of Australia.
In relation to financial matters, the Wife seeks orders that the former matrimonial home be sold, the mortgage be discharged, that monies owing to her father and brother be repaid and she receive 65% of the balance then remaining. She also seeks a superannuation splitting order whereby she receives 50% of the Husband’s superannuation.
It is submitted on behalf of the Wife such an outcome is just and equitable as there should be a 15% adjustment in the Wife’s favour for s75(2) factors as she will have the primary care of X and because the Husband has a greater earning capacity than the Wife.
Background
The Husband was born in India on (omitted) 1974 and is aged 43 years. He is employed as a (occupation omitted) with (employer omitted) earning $68,000 per annum. The Husband advised the Court he has recently become engaged to Ms K and they intend to marry in (omitted) this year.
The Wife was born in India on (omitted) 1977 and is aged 40 years. She is currently engaged in home duties. She and X reside with her brother Mr L (“Mr L”), his wife Ms L (“Ms L”) and their two daughters aged 7 and 2 in their home in (omitted). The Wife has not repartnered.
As noted in paragraph [8], the Wife has a long history of mental illness. Briefly her history is:
1999
depression and signs of mania
2002
manic/depressive episode lasting 15 days to one month
2003
manic episode lasting approximately one month
2004
attempts suicide by throwing herself out of third floor window – suffers serious physical injuries
2006/7
manic episode lasting 15-20 days – stops talking
2002-2007
medication and treatment including ECT
2010
diagnosed with bi-polar – placed on lithium
2011
stops medication and suffers relapse – hospitalised
17/12/2012
hospitalised due to relapse
14/02/2013-7/03/2013
Baby and Mother Unit at (omitted) Health
17/12/2013
bi-polar episode – catatonic state – involuntary admission – ECT given – hospitalised one month
25/01/2016-4/02/2016
involuntary admission due to bi-polar episode
The parties married on (omitted) 2011 in India. They met on a matrimonial website established by the Wife’s sister. Whilst the parties communicated with each other electronically, they only met on the day they married. At the time of the parties’ marriage the Husband was an Australian citizen living in Sydney. The Wife was living with her family in India.
When the parties married the parties were gifted jewellery by their families. It is the Husband’s evidence that the jewellery is valued at $20,000 and has been retained in its entirety by the Wife. It is the Wife’s evidence that the jewellery is valued at $10,705. It is her evidence that the majority of the jewellery is held by the Husband’s family in India.
After the marriage the Wife remained living in India with the Husband’s family. She suffered a relapse in her mental health and was hospitalised. The Husband returned to India from Australia for 1 month to assist in the Wife’s care.
In (omitted) 2011 the Husband moved from Sydney to Melbourne and lived with the Wife’s brother Mr L.
In (omitted) 2012 the Wife moved to Melbourne. She and the Husband lived in rental accommodation with the Wife’s sister.
In (omitted) 2013 the parties purchased a block of land on which they built the former matrimonial home. Their home was completed in (omitted) 2015. Neither party placed any evidence before the Court of the original purchase price of the land, the cost of construction of the former matrimonial home or the amount borrowed by them to enable the purchase of the land and to build the former matrimonial home. The absence of this information has not assisted the Court given the parties’ inconsistent evidence of their respective initial contributions to the purchase.
It is the Husband’s evidence that at the commencement of co-habitation he had assets valued at $22,891 including a term deposit of $10,000, funds in the (omitted) Bank of $3,891, cash in hand of $5,000 and funds in the (omitted) Indian Bank of $3,500E. The Husband has not provided any independent documentary evidence that supports his evidence in this regard. Further, the Husband does not present evidence as to what, if any, of those funds were used to purchase the block of land or towards the construction of the former matrimonial home.
It is the Wife’s evidence that her brother and father lent she and the Husband money which was used to pay the deposit on the block of land and to subsequently assist in the cost of the construction of the former matrimonial home. Mr L, who gave evidence on behalf of the Wife, set out a spread sheet in paragraph [14] of his affidavit sworn 22 August 2017 that set out the borrowings by the Husband and the Wife from he and the Wife’s father as follows:
Date
Description
Amount Borrowed
Repaid
Running Balance
30/01/2014
Mr Bhata borrowed from Mr L
$10,000 (Bank Transfer)
$10,000
25/02/2014
Mr Bhata borrowed from Mr L
$4,000 (Cash)
$14,000
Date
Description
Amount Borrowed
Repaid
Running Balance
22/05/2014
Mr Bhata returned to Mr L
$14,000 (Bank Transfer)
Nil
26/05/2014
Mr Bhata borrowed from Mr L
$8,500 (Branch Withdrawal)
$8,500
02/07/2014
Mr Bhata borrowed from Mr L
$12,000 (Bank Transfer)
$20,500
03/09/2015
Mr Bhata borrowed from the Wife’s father Mr T
$10,000 (Cash)
$30,500
TOTAL
$44,500
$14,000
$30,500
It is the Wife’s further evidence that her family spent $12,000 on new furniture, white goods and electrical equipment for the newly built former matrimonial home, the vast majority of which has been retained by the Husband. The Wife is seeking orders that the chattels purchased by her family be returned to her.
In late January 2016 the Wife was hospitalised due to a bi-polar episode. Upon her release from hospital on 4 February 2016 she returned to her brother Mr L’s home, not to the former matrimonial home.
On 16 February 2016 the Wife, Mr L and X attended the former matrimonial home to collect some clothing and other items. It is the Wife’s evidence the Husband started verbally abusing her and then assaulted her brother. X was accidentally hit by the screen door during the altercation. It is the Husband’s evidence Mr L forcibly entered the former matrimonial home against his express wishes he not do so and that it was Mr L who first pushed him and the Husband only pushed Mr L back in self-defence.
Both parties agree that their relationship ended on 16 February 2016 following this incident.
On 11 March 2016, after the Magistrate heard evidence from both parties, the Wife obtained an Interim Intervention Order against the Husband for the protection of herself and X. This followed an application made on 25 February 2016 by the Wife.
It is the Husband’s evidence that at or around the date of separation he was pressured by Mr L to repay the monies advanced by the Wife’s family. It is his evidence he initially drew down $20,000 on the mortgage on the former matrimonial home with the intention of transferring these funds to Mr L. It is the Husband’s evidence Mr L told the Husband not to transfer $20,000 to his account because he wanted cash and because the amount withdrawn was not enough to repay the loans. The Husband then returned the $20,000 to the mortgage account.
It is the Husband’s evidence that after Mr L rejected his offer to transfer $20,000 to Mr L’s account, the Husband redrew $25,850 against the parties’ mortgage which was placed in the parties’ joint account. He then withdrew $10,000 and $16,000 in cash from the parties’ joint account which was placed by him “in a drawer” in the former matrimonial home. It is the Husband’s evidence that the Wife attended the former matrimonial home in his absence and took the cash which she gave to Mr L in repayment of monies owed to the Wife’s family.
The Husband’s evidence is he knows the Wife took these monies as she told him she had done so.
The Wife categorically denies any knowledge of the Husband withdrawing any monies from the parties’ joint account. She also denies she removed $25,850 in cash from the former matrimonial home and gave it to Mr L.
It is the Wife’s evidence that immediately after the incident at the former matrimonial home on 16 February 2016, the Husband changed the locks on the security doors to the former matrimonial home and she could not access the property after that date. Bank records show the money was withdrawn by the Husband from the parties’ joint account on 22 February 2016.
It is the Wife’s evidence that after the parties separated, X remained living with her and did not spend time with the Husband.
The Husband filed an Initiating Application seeking parenting orders on 9 March 2016. The Wife filed a Response seeking both parenting and property orders.
On the first return date of the matter on 4 May 2016 orders were made for the Wife to have sole parental responsibility for X, for X to live with the Wife and spend supervised time with the Husband if the Husband chose to avail himself of that time. An order was also made placing X on the Watch List.
On 12 July 2016 further orders were made for X to spend supervised time with the Husband at (omitted) Contact Centre.
On 14 December 2016 interim orders were made for X to live with the Wife and spend time with the Husband, initially each Saturday from 12.30pm to 5.30pm and each Tuesday from 2.30pm to 7.00pm. The orders provided that commencing 4 March 2016, X’s time with the Husband increase to each alternate weekend from 10.00am Saturday to 5.00pm Sunday and on the alternate Saturday from 10.00am to 5.00pm. X has been spending time with the Husband in accordance with the orders since 4 March 2016.
The Evidence
In preparation for the final hearing, orders were made for the Wife to be psychiatrically assessed by Dr C and for the preparation of a family report which was undertaken by Dr O.
Neither the Husband, the Wife or the Independent Children’s Lawyer required Dr C or Dr O for cross-examination. Accordingly their reports/assessments are before the Court without challenge.
Dr C
Dr C is a consultant psychiatrist who undertook a psychiatric assessment of the Wife which is contained in his report dated 19 September 2016 and is before the Court by way of his affidavit sworn 8 December 2016.
In his report under the heading “Mental State Examination” Dr C states the following at paragraphs [33]-[37]:
“33. Ms Bhata presented as a small woman of Indian appearance in neat traditional dress. Rapport was established at a good working level and maintained.
34. Her mood was euthymic which is normal. There was no evidence of depression or anxiety. There was no evidence of depression or anxiety. There was no evidence of disorder of form of thought or content of thought, or anything suggestive of a psychotic illness.
35. There was no defect of cognition. She was well orientated in time and place. Her speech was coherent and had normal flow, however faltering due to her difficulty with English.
36. There was no evidence of intoxication with any drug or alcohol.
37. Her affect was warm, reactive and appropriate.”
Under the heading “Summary of History Obtained, Findings on Mental State Examination, Review of Supplied Documentation, Parental Capacity and Mental Health Assessment” Dr C states the following at paragraphs [39]-[46]
“39. Ms Bhata is a 39 year old woman who came to Australia, after being married in India, marrying a man who she originally met online on a marriage website but with the approval of both families. She describes how she came to Australia and her husband’s behaviour was controlling and not allowing her to go out on her own, sometimes insisting she stay in their bedroom and not speak with her brother or his wife at home. He was, according to her description, denigrating and continually putting her down and criticizing everything about her.
40. She describes also how her husband subjected her to frequent sexual assaults and the degrading experience of getting her to watch pornographic videos and getting her to mimic the videos for him. She kept this hidden from her family and from her treating psychiatric team for some time because of threats of deportation or that she would lose her son.
41. She has had two admissions to a psychiatric hospital in Australia for depression. She sees a psychiatrist regularly at (omitted) Mental Health on a monthly basis. She takes Lithium Carbonate, giving her a blood level of 0.7 which is in the therapeutic range for bipolar disorder and similarly Olanzapine. She describes earlier in her life a suicide attempt by jumping out of a third story building after a failed marriage arrangement due to her parents being pressured regarding a dowry. Following of this, she was told she would never be able to walk again but after a period of rehabilitation and a laminectomy she is now able to walk but has a left foot drop.
42. She has at no time entertained thoughts of murder/suicide.
43. She is living in a supportive domestic arrangement with her brother and has made friends with the neighbours and her son, X attends kindergarten where he is progressing happily.
44. She describes minor episodes of elevated mood, not lasting more than three or four days, which were not psychotic in intensity. She relates how she has difficulty sleeping, she talks more quickly and makes lots of plans. These episodes end with a depression. She is taking appropriate medication for bipolar disorder and has regular follow ups. She accepts the diagnosis and she is conscientious compliant with her medication.
45. She is a non-drinker and she has never taken illicit drugs.
46. Her bipolar disorder is in remission. She was able to demonstrate general affection and conscientious dedication to her 4 year old son. There is no impairment to parental capacity by virtue of a psychiatric illness at this time. Her prospects for staying well appear to be favourable as she is in regular contact with her treating team and in compliance with her medications. Her admissions to hospital have been precipitated by stress of being in an abusive relationship which she felt she could not confide about to other people for fear of being deported or losing her child.”
The Independent Children’s Lawyer provided Dr C with copies of the Wife’s subpoenaed medical records which gave him a detailed history of the Wife’s mental health. Dr C was asked to review his psychiatric assessment in light of the additional material provided to him. Dr C’s supplementary report is contained in his affidavit sworn 19 May 2017. In that document Dr C states as follows:
“These documents support the unquestionable diagnosis of bipolar disorder as acknowledged by Ms R and Ms Bhata. Bipolar disorder is best managed with mood stabilising medication. In Ms Bhata’s case, Lithium and Olanzapine, with her Lithium blood level being in the therapeutic range. Bipolar disorder is worsened by stress such as marital conflict and family conflict and is best managed in a supportive emotional environment with a treating team the patient has confidence in.
The combination of mood stabilising medication, a supportive environment and regular contact with a supportive treatment team produce the best results and these factors appear operative in Ms Bhata’s case at this time. The additional information provided to me outlines additional stressors with Ms Bhata’s sister in additional to marital conflict contributing to decompensation in Ms Bhata’s bipolar mood disorder. Whatever be the case, Ms Bhata herself appears to be in remission and is compliant with treatment and adhering to a treatment plan which includes regular reviews by her treating team. To the extent that these circumstances remain the same, there is no impairment to her parental capacity.”
Dr O
Dr O is a forensic and clinical psychologist and Regulation 7 Family Consultant with the Federal Circuit Court. She prepared a report in this matter dated 14 August 2017.
In paragraph [21] of her report, Dr O describes the Husband as articulate, intelligent and being cooperative with the assessment process. She notes that throughout the interview he remained respectful and complimentary of the Wife though at times was distressed and crying about the lack of time with X and the demise of the relationship with the Wife.
Dr O notes in paragraph [32] the Husband said that the Wife’s family has a “hatred against him” that had made it hard for him. Dr O notes that he perceives the Wife to have always been dependent on her sister and mother.
When describing the Wife, Dr O states the following in paragraphs [38]-[39]:
“38) …Ms Bhata was somewhat difficult to interview in that she was often tangential in providing answers to questions and despite redirection frequently failed to answer the question put to her. It appeared Ms Bhata displayed some evidence of poor concentration and impaired memory. She had evident blunting of affect except when talking about X, at which point she smiled. Her account was not sequential and so timelines and events were difficult to discern.
39) Aspects of Ms Bhata’s presentation are noted to be side effects of Lithium and/or ECT. It is unclear if these are however, issues related to language difficulties, related to her Bipolar Affective disorder or because of her medication and treatment regime.”
In relation to X Dr O reports in paragraphs [59]-[60]:
“59) Observation when with Ms Bhata were more concerning. X was left in the play room with Ms Bhata and interaction between them was minimal. At times Ms Bhata made efforts to play with X and he engaged somewhat reluctantly. Of concern was that he was in a heated room but for the duration of 30 minutes he was left with a thick winter jacket on. Ms Bhata appeared not to notice general care concerns and made no effort to take his jacket off.
60) Interestingly, as soon as Mr Bhata arrived he told X to take his jacket off and offered refreshments. Mr Bhata also bought food that X enthusiastically wanted to eat. At the end of observations Ms Bhata did not want X to finish his food, despite it being lunch time. Mr Bhata then left the food for X to take with him as he was clearly enjoying it. Prior to leaving the centre the food was handed back to reception staff who were told, despite observations to the contrary, X “didn’t want it”.”
Under the heading “Evaluation” Dr O takes issue with Dr C’s assessment that in a low stress environment there is a reduced likelihood of the Wife’s mental health relapsing. Dr O notes there is a clinical nature to bi-polar defective disorder and that the Wife’s history suggests an episodic pattern that has resulted in multiple hospitalisations and a high degree of treatment resistance. Dr O also notes that ECT is used infrequently in contemporary treatment and only used where absolutely necessary and therefore such treatment on the Wife suggests the seriousness of her illness.
When discussing the Husband and the importance of his relationship with X, Dr O states the following in paragraphs [76]-[77]:
“76) The relationship between X and Mr Bhata is clearly imperative to be well established and maintained. The importance of the father’s role in the upbringing of sons cannot be underestimated. Research in unequivocal that fathers play an important role in a child's development from birth through to adulthood. In fact, empirical evidence concludes children with involved fathers have an advantage in social and academic development. Research further suggests in separated families it is the fathers’ degree of involvement, not where the children live, is the crucial factor in stable childhood development and emotional wellbeing and adjustment.
77) What would appear additionally important in this case is that the stability and quality of the relationship between Mr Bhata and X has greater importance and should be increasingly emphasised so that should Ms Bhata suffer what appears inevitable relapse in her mental health, Mr Bhata should be permitted and prepared to take a primary care role with X. In such circumstances X should be cared for by his father and not retained within the maternal family unit to the exclusion of Mr Bhata.”
In discussing parental responsibility Dr O sets out the following view:
“79) Regarding shared parental responsibility there is concern regarding the viability of shared parental responsibility given the absence of communication between the parties, an active Intervention Order and Ms Bhata’s past psychiatric instability. Nonetheless, it would appear imperative that Mr Bhata has input into decision making about X’s ongoing care and welfare. Shared parental responsibility is the optimal position despite considerable concern and apprehension due to reliance on the parties’ active engagement in intervention to resolve ongoing issues. Nonetheless, failure to afford Mr Bhata the opportunity for ongoing input would appear to be a backward step and would without question exclude him from decision making. In addition, shared parental responsibility provides a clear message to both family units that neither parent (or family), even when in the position of primary care giver, has entitlement to unilaterally direct or exclude the other parent from daily care and activities. Recommendations reflect this consideration.”
When discussing X, Dr O quite properly notes that given X’s age, his wishes can only be implied by observations during the assessment, both of his interactions with each parent and with the respective families. In paragraph [80] Dr O sets out the following:
“…X was eager to spend time with Mr Bhata and a close caring and loving bond was observed. Their interactions were fundamentally at odds with the description of Mr Bhata’s alleged history with X. During observations, they played collaboratively and interacted in a calm and warm manner. Any period without continuity of contact between Mr Bhata and X has not created significant limitations in the depth of relationship between them. Without judgement, as to the veracity of the allegations against Mr Bhata the observed relationship appeared at odds with a child who has been subjected to physical abuse by a parent. It would appear necessary that time with Mr Bhata playing a greater role in X’s life is warranted. Most particularly the possibility of relapse of Ms Bhata’s mental health is not beyond the realms of possibility. Adopting a somewhat worst-case scenario, given the cyclic nature of the disorder the potential of relapse would appear at very least moderate. Under such circumstances a well-established, stable and predictable regime of shared care with Mr Bhata, in order that he can take over primary care should the necessity arise would appear sensible if not necessary.”
Dr O under the heading “Recommendations” sets out quite detailed and lengthy recommendations. Despite their length they will be included in their entirety in this judgment.
“81) Recommendations are made with due consideration to the matters set out in Section 60CC, 61DA, and 65DAA of the Family Law Act 1975, and any other matters the writer considers important to the welfare and best interests of X.
82) With respect, shared parental responsibility for X is recommended. This requires that the parents consult on major decisions regarding X prior to making a final decision. Ms Bhata takes responsibility to ensure that Mr Bhata is kept informed. To this end:
- Each party is to keep the other advised of his or her current residential address, postal address, email address and all contact telephone numbers.
- Both parties are to be kept advised of the names of X’s treating medical practitioners and provide all necessary authorities to such medical practitioners to enable Mr Bhata to obtain information in relation to X’ health.
- Each party is to keep the other advised of any serious illness or accident suffered by X during a period in his or her care and advise the other as soon as practicable of each treating medical practitioner or like professional, and authorise each of them to speak with the other parent.
- Mr Bhata to be provided with copies of the following documents (at his expense):
i) School reports for X.
ii) School or class photographs.
iii) Ms Bhata to ensure that Mr Bhata is listed as alternate emergency contact person on all school registration forms for the child.
iv) Each party is at liberty to attend X’s care/school functions, sporting events and extracurricular activities that parents are ordinarily invited to and attend from time to time.
v) Mr Bhata be at liberty to take X on holidays interstate during his allocated time without necessity of seeking approval, but by informing Ms Bhata of the intended dates of travel and location.
83) The parties should be required to attend Round Table Dispute Resolution/ Mediation in order to facilitate decisions regarding X’s school selection, noting the shared care recommendations. Mediation should be attended by the parties ONLY and not assisted or accompanied by family members or other persons.
84) It is respectfully recommended that X live with Ms Bhata and Mr Bhata in a shared care arrangement namely;
- That X live with Mr Bhata as follows:
Commencing from current orders
- During school term time, every second Wednesday from after school (or 3:00 pm if not a school day) until before school (or 9:00 am if not a school day) Friday;
- During school term time, each alternate weekend from after school (or 3:00 pm if not a school day) Friday until before school (or 9:00 am if not a school day) Monday;
- Via phone or Skype twice per week on scheduled times agreed between the parties.
Upon X commencing school (commencing in the second week of term 1 in 2018)
- For five (5) consecutive nights a fortnight from after school Wednesday (or 3:00 pm if not a school day) until before school (or 9:00am if not a school day) Monday;
- For one half of each of the school holiday periods
- In the event that X’s time with Mr Bhata does not occur because of the child’s illness or because of some circumstance other than the unavailability of Mr Bhata, then Ms Bhata is to:
·Provide a medical certificate where applicable; and
·Arrange makeup time for the child with Mr Bhata as close to the scheduled period as is practicable.
85) Ms Bhata should be required to provide Mr Bhata or his legal representative written confirmation of her Ongoing compliance with treatment and mental health stability every six months, for a period of two years from the date of final Orders. After two years of stable mental health this should be provided annually for a further period of two years.
86) Ms Bhata should be required to
- Nominate a single treating psychiatrist or service to whom she will be referred in the event of psychiatric instability.
- A copy of Orders, indicating relevant contact details and that the service is required to notify Mr Bhata should Ms Bhata be hospitalised should be provided to the treating practitioner or mental health service. This is to ensure Mr Bhata be notified and notification is not reliant of Ms Bhata’s family members who have a vested interest in concealing such information.
- At any time, should Ms Bhata be hospitalised for any period greater than three consecutive days X; care should revert to Mr Bhata as primary caregiver. The shared care arrangement should recommence at such time that Ms Bhata provides Psychiatric or General Practitioner report indicating that she is psychiatrically stable.
87) It is respectfully recommended that Ms Bhata be required to continue attending her treating Psychiatrist or General Practitioner and follow all directions until such time that the psychiatrist no longer deems to accept her attendance necessary.
88) It is respectfully recommended that X name be placed on the Airport Watch list.
89) Should either party wish to take X out of the Commonwealth of Australia they be permitted to do so providing;
- The parent has given the other parent at least sixty (60) days’ notice of such intention to travel in advance of the date of travel; and,
- Travel is only to countries who are signatories to The Hague Convention; and,
- Has given the other parent an itinerary which includes departure and return dates, location/s of travel, accommodation and contact details of the accommodation and preferred contact details whilst overseas; and,
- Has given the other parent a copy of return ticket and copies of the return ticket for the child together with travel insurance and details of any vaccines needed; and,
- Has deposited an agreed amount of money (detailed in Orders) as surety into the trust account of a solicitor nominated by the other parent, such surety to be paid directly to the parent in the event the child fails to return from overseas without reasonable excuse seventy-two (72) hours after the return date and time on the ticket.
90) It is respectfully recommended the parties and extended family members are restrained from using corporal punishment on the child and shall use their best endeavours to ensure that third parties are similarly restrained.”
The Husband
The Husband relies on his affidavits sworn 8 March 2016, 24 March 2016, 31 May 2016, 29 June 2016, 4 October 2016, 20 November 2016 and 22 August 2017. He also relies on his financial statement sworn
1 June 2016. The Husband also gave vive voce evidence at the final hearing.
The Husband sought to rely on an affidavit he swore on 6 September 2017 during the running of the matter. He was not given leave to file that affidavit as to do so would have unfairly prejudiced the Wife and because he had had more than ample opportunity to place that evidence before the Court in a timely manner.
It is the Husband’s evidence that he believes it is in X’s best interests to live in his primary care and to spend regular time with the Wife.
Whilst Dr O noted the Husband to be respectful and complimentary of the Wife when she was speaking to him, this was not the case when he was giving his vive voce evidence.
It is the Husband’s vive voce evidence that he does not believe that the Wife is able to independently care for X and that she is totally dependent upon and in the control of her brother and sister-in-law Mr and Ms L. It is the Husband’s belief that the Wife is unable to answer X’s questions, provide him with a safe environment or to independently care for him absent her brother and sister-in-law.
It is the Husband’s evidence that whilst the Wife remains dependent on her family, she will never become an independent confident woman and will always rely on others for the care of herself and for the care of X.
It is the Husband’s evidence he believes he is in a much better position to be X’s primary carer.
The Husband was questioned about his current working commitments. It is his evidence he works Monday to Friday from 6.00am to 2.00pm. He agreed that during the marriage he worked night shift and weekends but that he has now obtained a permanent day shift position which enables him to be available to care for X.
When questioned about who would care for X in the morning given he has to leave for work at 5.45am, it is the Husband’s evidence that his parents currently live with him and that they would be able to look after X in the morning and get him to school.
It was put to the Husband that there was some inconsistency in he being critical of the Wife for being dependent on her family to care for X and yet he would be relying on his parents to care for X in the morning. The Husband differentiated between grandparents caring for a child and an aunt and uncle caring for a child.
It is the Husband’s evidence that he is engaged to be married and anticipates this occurring in (omitted) of this year. It is his evidence that X has met his fiancée as she spends time with he and X when X is in his care. He describes theirs as a good relationship.
When asked why the Husband makes no reference to his fiancée in his affidavit material or when he saw Dr O for the family report, it is his evidence that their relationship has only developed to this serious stage in recent times.
It is also apparent from the Husband’s vive voce evidence that he does not like the Wife’s family and in particular Mr and Ms L. He holds Mr and Ms L responsible for the breakdown of his marriage to the Wife and for interfering with his relationship with X.
The Husband was questioned about the impact on X of moving from his mother’s primary care to living primarily in his care given that since separation X has lived in the wife’s primary care and has only commenced spending one night with the Husband every fortnight since March 2017. It is the Husband’s evidence that he believes that prior to separation he was X’s primary carer because of the Wife’s mental and physical health issues. It is his evidence that he and X have a positive relationship and he believes X will transition easily into his primary care.
It is the Husband’s evidence that he and the Wife have difficulty in communicating with each other. He complains that the Wife fails to consult him prior to making decisions in relation to matters of importance involving X. By way of example the Husband gave evidence that the Wife had recently emailed him advising that she had enrolled X in the same primary school that is attended to by Mr L’s eldest daughter. She further advised the Husband she had named him as the emergency contact person for X on the enrolment forms. The Husband took issue with being told of the enrolment after the event as he believes it would be in X’s best interests to be enrolled in a primary school very near to his home.
The Husband also raises concerns that X is the subject of abuse and bullying by his 7 year old cousin and that despite his efforts to raise concerns about this with the Wife, she does nothing to intervene between X and his cousin.
In relation to financial matters, it is the Husband’s evidence that he believes that he should retain the former matrimonial home without payment to the Wife because she has retained the $25,850 drawn down on the mortgage, $20,000 of jewellery given to the parties when they married and has an entitlement under the Hindu Succession Act 1956 (India) to ancestral agricultural property that is owned by the Wife’s parents.
The Husband also argues that the Wife has an equitable interest in the property owned by Mr and Ms L in (omitted) on the basis that monies that should have otherwise been given to her by her parents were given to Mr and Ms L instead to enable them to buy their home as the Wife already had a home with the Husband.
The Husband did not seek to join Mr and Ms L to proceedings to pursue his claim that the Wife had an equitable interest in their property.
In relation to the Husband’s claim the Wife has an interest in agricultural land in her parents’ name in India under the Hindu Succession Act 1956 (India), it is the Husband’s vive voce evidence he believes that that land is worth somewhere between $500,000 to $700,000 and that the Wife has an entitlement under Indian law to one quarter of that property with her three other siblings. It is the Husband’s evidence the Wife is able to pursue her entitlement even during the parents’ lifetime.
The Husband did not place before the Court any evidence in admissible form confirming that the property in question was owned by the Wife’s parents, that it was ancestral land or its value.
As noted in paragraphs [28]-[31] of this judgment, it is the Husband’s evidence that the $25,850 drawn down by him on the mortgage of the former matrimonial home on 22 February 2016 was taken by the Wife in repayment of monies owed to her family. The Husband refutes the Wife’s evidence that she could not have had access to the former matrimonial home to take those monies because he had changed the locks. It is his evidence that he only changed the locks on the security doors of the former matrimonial home after she took the money.
The Husband also challenges the Wife’s evidence that he has a superior earning capacity to the Wife. It is his evidence that he believes she should be able to obtain employment, noting that she has qualifications in the (omitted) profession in India that she should be able to use as a springboard for similar qualifications in Australia. It is his submission that with such qualifications she will have the capacity to earn a similar or greater income than he.
It is the Husband’s evidence that the monies advanced by the Wife’s brother and father were not loans to the parties but were monies payable to the Wife by the maternal family from her entitlement to land/money in India.
It is the Husband’s evidence that the $14,000 paid by the Husband and the Wife to Mr L on 22 May 2014 was a loan to Mr L to assist him and his wife in building their new home.
The Wife
The Wife relies on her affidavits sworn 29 March 2016, 8 December 2016 and 22 August 2017. She also relies on her Financial Statement sworn 29 April 2016. The Wife also gave vive voce evidence at the final hearing.
The Wife also relies on the affidavits of Mr L sworn 22 August 2017 and Ms L sworn 22 August 2017. Only Mr L was required for cross examination.
In her family report, Dr O was concerned about the Wife’s presentation when interviewed, describing her as having a blunted affect, being tangential in providing answers to questions and her account at times being non-sequential so that timelines and events were difficult to discern. When giving her vive voce evidence, none of the difficulties or concerns noted by Dr O were present. The Wife was able to give her evidence coherently, cogently and was able to answer questions put to her in cross examination directly and succinctly.
It is the Wife’s evidence that her mental health is now stable. It is the Wife’s evidence that she regularly consults her treating medical practitioners. She takes regular medication which involves 2 tablets a day taken morning and night. She explains that she never forgets to take her medication as she has a chart that she marks off to ensure she is compliant with her medication regime.
It is the Wife’s evidence her treaters have taught her techniques to better manage her mental health. These techniques include mindfulness, yoga exercises and regular attendance at the gymnasium. She attends the gymnasium 5 days a week.
It is the Wife’s evidence that it is she who cares for X and not her brother and sister-in-law. It is her evidence that her sister-in-law is employed on a full time basis as a (occupation omitted) working 5 days a week from 9.00am to 4.30pm or 8.30am to 4.00pm.
It is the Wife’s evidence that her brother works part time as a (occupation omitted) and otherwise (employment omitted). He is employed Thursday to Sunday (employment omitted). He works Monday to Wednesday as a (occupation omitted) for 4 months during the height of the tax season.
It is the Wife’s evidence that she is responsible for X’s daily care including feeding, bathing, reading, playing, taking him to and from kindergarten and for any of his medical or other needs. It is the Wife’s evidence that she also helps to care for her 2 year old niece when her brother and sister-in-law are at work.
It is the Wife’s evidence that X is currently in 4 year old kindergarten. He attends on Wednesdays and Thursdays between 8.45am and 4.15pm. It is her evidence that she occasionally places X into day-care when she has to attend medical appointments, see her solicitor in the lead up to these proceedings or undertake other activities that require her to be away from the home.
The Wife expressed concern that during the marriage the Husband would physically discipline X. She also raises concerns that X spends too much time watching the Cartoon Network and playing on electronic devices when in the Husband’s care. She is also concerned the Husband is bribing X by telling him if he lives with him he will buy him chocolates, toys and electronic devices.
However, the Wife was able to acknowledge that X enjoys his time with the Husband and that there had not been complaints made by X of inappropriate discipline by the Husband since separation.
The Wife refutes the Husband’s evidence that X is bullied by his cousin. It is her evidence that there were some arguments between them but she and her sister-in-law have spoken to both children and this has stopped. The Wife describes X’s relationship with his cousins as being like brother and sisters and that they are very close.
It is the Wife’s evidence that she has always been X’s primary carer and refutes the Husband’s evidence that he was X’s primary carer during the marriage. It is the Wife’s evidence the Husband worked full time doing shift work overnight and over time on weekends and as such, she had X’s primary care.
It is the Wife’s evidence that she believes it is in X’s best interests to continue to reside in her primary care and spend significant and substantial time with the Husband in accordance with the recommendations of Dr O.
In relation to financial matters, it is the Wife’s evidence that her brother and father lent she and the Husband $44,500 which was utilised by them to purchase the land and build the matrimonial home. It is the Wife’s evidence that she and the Husband still owe her brother $20,500 and her father $10,000.
The Wife flatly denies the Husband’s evidence that she took $25,850 cash from the former matrimonial home after the parties separated to repay her brother and father. It is her evidence that after the altercation at the former matrimonial home on 16 February 2016 the Husband changed the locks on the security doors of the former matrimonial home and that she was unable to access that property.
It is the Wife’s evidence that her family purchased in excess of $12,000 of furniture, white goods and electrical goods for she and the Husband’s new home and that the Husband has retained those chattels. In the affidavit material filed by the Wife and in her Outline of Case she is seeking a return of the chattels, albeit this was not something raised by her Counsel in his closing submissions to the Court.
It is the Wife’s evidence that she was the primary home maker and parent during the parties’ marriage. It is her further evidence that when she was unwell and during the periods that she was hospitalised, X was looked after primarily by her family and not by the Husband as he was working.
It is the Wife’s evidence that since separation she has had the primary responsibility for X’s care.
It is the Wife’s evidence that one of the identified triggers for her mental health issues has been stress associated with employment, particularly in her job in India. It is her evidence that she would like to return to employment when X commences school but would only do so if able to obtain employment around X’s school hours and only with the approval of her treating mental health practitioners. The Wife expressed some aspirations to work in (employment omitted) if she were to return to employment.
It is the Wife’s evidence that she and X will continue to reside with her brother and sister-in-law into the foreseeable future.
Mr L
Mr L is the Wife’s brother. He swore an affidavit on 22 August 2017 and gave vive voce evidence at the final hearing.
Mr L confirmed that the table of monies loaned by himself and his father to the Husband as set out in paragraph [22] of this judgment and contained in paragraph [14] of his affidavit of 22 August 2017 was prepared by him.
Tendered into evidence in support of the details in the table was a copy of the (omitted) Bank statements for Mr L and his wife, account ending (omitted). The statements show that on 30 January 2014 the sum of $10,000 was transferred from that account to the account of Mr Bhata. Also tendered into evidence was a copy of the (omitted) Bank account in the joint names of the Husband and the Wife showing on the same date a transfer from Mr L of $10,000.
Mr L was questioned as to why there was a cash payment of $4,000 to the Husband rather than a transfer of monies from his account to that of the Husband and the Wife. Mr L explained that at the time he lent that money to the parties he had that amount of cash in his possession from his various employments and it was simpler to give the Husband the cash.
It was put to Mr L that the payment of $14,000 by the Husband to himself on 22 May 2014 was not repayment of the $14,000 that Mr L alleges he had lent the Husband but rather a loan by the Husband to Mr L to assist him in the construction of Mr L’s home.
Mr L rejected the Husband’s evidence that the Husband had lent him $14,000 or money at any time. It is his evidence that the payment made by the Husband of $14,000 on 22 May 2014 was repayment of monies that had been lent to the Husband and the Wife.
In support of the claim by Mr L that he withdrew $8,500 cash to give to the Husband in May 2014 and that he transferred $12,000 to the husband’s account in July 2014, copies of the bank statements for Mr L and his wife’s (omitted) account ending (omitted) was tendered into evidence. That document confirmed the withdrawal and transfer.
In relation to the $10,000 lent by the Wife’s father to the Husband, it is Mr L’s evidence that his parents travelled to Australia in December 2015 and that they had cash with them. It is his evidence he knows that those monies were lent to the Husband by his father as he was there when his father gave the cash to the Husband.
Mr L denies that he demanded repayment of the monies owing by the Husband to his family at the time that the Husband and the Wife separated. He denies absolutely that he has ever been given cash by the Wife in any amount at or around the time of separation.
In Mr L’s affidavit sworn 22 August 2017, he deposes to the Wife’s mental health having improved significantly since separation, of seeing her regain her confidence and becoming a much happier and more independent person.
Mr L deposes to the Wife regularly attending her medical practitioners and maintaining her mental and physical health by meditating, doing yoga and going to the gymnasium.
Mr L deposes to the Wife doing all things necessary to care for X including feeding, bathing and taking him to kindergarten. He notes that he trusts the Wife to babysit his own children and to care for his then 23 month old daughter (omitted) as well as taking her to the playgroup run by the (omitted) Church each Wednesday.
Mr L was not challenged in relation to his evidence as to the Mother’s mental health or her parenting of X.
Ms L
Ms L swore an affidavit on 22 August 2017. Ms L was not required for cross-examination.
Ms L deposes to the Wife being in good health and to her regaining her confidence and being much happier and more independent since separation. Ms L also confirms the Wife maintains her physical and mental health by meditating, doing yoga and going to the gymnasium.
Ms L deposes to the Wife having made friends with neighbours and other parents she has met. She confirms the Wife attends to X’s care including bathing, feeding and taking him to kindergarten as well as liaising with X’s teachers regarding his progress.
Ms L deposes to the Wife taking Ms L’s daughter (omitted) to playgroup in (omitted) each Wednesday and that as Ms L works full time she trusts the Wife whilst she is at work to care for her young daughter. She states “I have no concerns about her parenting capacity”.[1]
Parenting Matters
[1] Paragraph 21 of the affidavit of Ms L sworn 22 August 2017.
The best interests of the child
Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
“1. The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CA of the Act provides that:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
To determine what is in the best interests of the child, the court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the court, must be considered and assessed in the context of each of the parties’ proposals. The court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the court is not bound by the parties’ proposals, is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must consider when determining what is in the best interests. They are as follows.
Section 60CC(2)(a) – The Benefit of the Child having a meaningful relationship with both of the child’s parents
X has a close and loving relationship with both the Husband and the Wife. I am satisfied that during the marriage both parties were involved in X’s care. Since separation he has been in the primary care of the Wife.
Whilst the Husband and Dr O raise concerns about the level of the Wife’s care of X whilst living with her brother and sister-in-law, it is the unchallenged evidence of both the Wife’s brother and sister-in-law that it is the Wife who is the primary carer of X as they are both in full time employment.
It is also apparent from the observations of Dr O that X has a close and loving relationship with his father that has been able to be re-established since regular day and overnight time started in December 2016.
Any orders made by this court should ensure that he continues to have the benefit of a meaningful relationship with both of his parents.
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
The Husband raises concerns about the Wife’s capacity to parent X given her long history of mental health issues and his belief that she is totally controlled by her brother and sister-in-law.
There is no doubt that the Wife’s mental health has been a longstanding issue for her and that there have been periods where she has been incapacitated as a result of her mental health.
It is the Wife’s evidence that her mental health is currently stable, that she is compliant with all directions of her treating medical practitioners including being compliant with her medication regime and that the strategies that she has been taught around mindfulness and physical wellbeing are such that she believes her mental health will continue to be stable going forward.
The Wife in her affidavit material makes allegations of the Husband inappropriately disciplining X during the course of the relationship and of having issues with anger and emotional volatility to which X was exposed.
The Husband denies the allegations that he has ever physically disciplined or abused X and describes having a close and loving relationship with his son.
Dr O’s observations of X with his father were such that she was of the view that X did not present as a child who was fearful of his father or as being scared of any form of physical abuse by him. The Wife makes no complaint that X has raised he has been hit or hurt by his father since recommencing unsupervised time with his father in late 2016.
The recommendations of Dr O which are reflected in the proposals of the Independent Children’s Lawyer and the Wife would see orders put in place that would ensure that if the Wife had a relapse in her mental health, the Husband would be notified and X put into his primary care until such time as the Wife’s treaters confirmed that she had fully recovered.
Given the Wife’s current stable mental health, the proposed orders that would ensure the Husband was notified if the Wife became unwell and the positive relationship observed between the Husband and X, I am of the view that neither parent would expose X to physical or psychological harm.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
As noted by Dr O in her report, X is too young to express any views about his future living arrangements.
However, Dr O’s observations of the interaction between X and the Husband in particular support her view that it is very important for X that he spend significant and substantial time with his father whilst remaining in the primary care of his mother.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).
As has clearly been set out in this judgment, X has a close and loving relationship with both of his parents.
X was cared for by both his parents prior to their separation and has been in the Wife’s primary care since that time. Since December 2016 he has spent increasing time with his father and their relationship now is a close and loving one.
X and his mother live with X’s maternal uncle, aunt and two young cousins and there is no doubt X has a close and loving relationship with his extended maternal family.
Similarly, the paternal grandparents live with the Husband, so that when X is in his father’s care he spends time with his paternal grandparents. He has a close relationship with them as well.
It is the Husband’s evidence he is soon to remarry and that X and his fiancée Ms K have a good bond.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child;
(iii) to communicate with the child.
The parties’ communication is very poor and is exacerbated by the level of antipathy between the Husband and the extended maternal family.
It was apparent when giving his evidence that the Husband harbours enormous resentment towards the Wife’s brother, sister and sister-in-law and holds them responsible for the breakdown of his marriage and for preventing him spending time with X when the parties separated. He is of the belief the Wife is entirely dependent upon and dominated by her family and cannot act of her own free will in terms of her own life and the parenting of X.
When the parties first separated the Wife obtained an intervention order against the Husband which also contributed to their inability to communicate.
The Husband makes complaint that the Wife has not consulted him in relation to major issues concerning X, in particular where he will go to school next year. He feels excluded from X’s life as a result of this.
It is noted however that the Husband takes X to (language omitted) school, his swimming lessons and to temple so that he is actively involved in important areas of X’s life, particularly religious and cultural matters.
As was properly identified by Dr O in her family report, it is vital the parties put aside their current distrust and antipathy as it will be vitally important for X going forward that both his parents are involved in the decisions that will need to be made as he gets older.
Section 60CC (3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
I am satisfied that both parties have fulfilled their obligation to maintain X.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
Neither parties’ proposal would see X separated from either of his parents or other important persons in his life.
Section 60CC (3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
Both parties live in close proximity to the other and there is no practical difficulty in X spending time with each of the parties.
Section 60CC (3) (f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The Husband challenges the Wife’s capacity to meet X’s emotional and intellectual needs because of her mental health and because she is totally dominated by her brother and sister-in-law and is incapable of independent thinking or decision making separate from them.
It is the unchallenged evidence of the Wife’s brother and sister-in-law that the Wife is responsible for parenting X in their household, particularly as they are both in full time employment and the Wife is engaged in home duties.
It is the Wife’s evidence that her mental health is now stable, that she is compliant with her medication regime and she has put in place various strategies taught to her by her treaters to maintain her mental and physical health. Her presentation in court confirmed the Wife’s evidence in that regard.
The Husband is a loving and caring father and as has been noted, takes X to (language omitted) school, to temple and to swimming lessons whilst he is in the Husband’s care.
I am satisfied that both parents in this matter are able to meet X’s needs including his emotional and intellectual needs.
Section 60CC (3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
Both the Husband and the Wife are (religion omitted), as is X. There is no issue between them that he will be brought up in this faith.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Both the Husband and the Wife are responsible and committed parents who love their son. I am satisfied that both will only do what is best for him.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
When the parties separated the Wife obtained an interim Intervention Order against the Husband for the protection of herself and X. It is unclear from the parties’ evidence whether this order ever became final or if it is still live.
The Wife makes allegations that she was exposed to continual emotional and verbal abuse by the Husband throughout the relationship as well as sexual coercion and financial intimidation.
The Wife also alleges that the Husband exposed X to his anger and verbal abuse as well as inappropriate physical discipline.
The Husband adamantly denies the Wife’s allegations in this regard.
There is no evidence before the Court of any further allegations of behaviour of this type since separation.
Section 60CC (3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the majority of parenting cases, the Court seeks to make orders that set up a blueprint for a child’s future living arrangement such that the parties are able to focus on the parenting of their child and avoid the emotional and financial cost of ongoing litigation. This is such a matter.
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.
The Independent Children’s Lawyer in her Outline of Case set out a detailed proposed minute of orders that she believes are in X’s best interests. Those orders reflect the recommendations of the report writer Dr O and were adopted by the Wife at the commencement of the final hearing.
At the close of the evidence, it was submitted on behalf of the Independent Children’s Lawyer that the proposals of the Independent Children’s Lawyer had not changed.
It is submitted on behalf of the Independent Children’s Lawyer that the Wife’s presentation when giving her evidence at final hearing was not blunted and that is was apparent from all the evidence that the Wife is more than capable of caring for X absent the support of her family despite the Husband’s evidence to the contrary.
It was noted by Counsel for the Independent Children’s Lawyer that in the very stressful circumstances of cross examination, the Wife did not buckle, break down or become in any way incapacitated and that the proposal of the Independent Children’s Lawyer had been strengthened by the Wife’s presentation and evidence. It was noted by Counsel for the Independent Children’s Lawyer that the evidence of the Wife’s brother and sister-in-law as to the Wife’s care of X and her nieces also reinforced the observations made by the Independent Children’s Lawyer of the Wife’s capacity to care for X.
Annexed to the affidavit of the Wife sworn 29 April 2016 are copies of the parties’ (omitted) Bank Home Loan ending (omitted) for the period 24 November 2015 to 29 February 2016. Also annexed is a copy of the parties’ (omitted) Bank Account ending (omitted) for the period 15 February 2016 to 14 March 2016.
The Home Loan account shows that on 15 February 2016 there was a redraw of $20,000 and on the same date that amount was credited to the (omitted) Bank Account. On the same date $20,000 is debited from the (omitted) Bank Account and credited back into the Home Loan account.
The Home Loan statement shows that on 22 February 2016, the sum of $25,850 was redrawn and that amount was deposited in the (omitted) Bank Account on the same day. On 22 February 2016 two cash withdrawals, one of $10,000 and one of $16,000, were made from the (omitted) Bank Account.
The Wife raises the issue of the funds being removed from the parties’ account in her affidavit sworn 29 April 2016. Under the heading “UNILATERAL REDRAWS BY THE HUSBAND/ADDBACKS” the Wife deposes at paragraph [45]-[48] as follows:
“45. I advise the Court that the husband has unilaterally redrawn from the mortgage without my consent.
46. On 15 February 2016 the husband redrew from the mortgage the sum of $20,000.00. The said sum was transferred into the joint savings account then transferred to an unknown account controlled by the husband.
47. On 22 February 2016 the husband redrew from the mortgage the sum of $25,850.00. The said sum was transferred into the joint savings account then withdrawn in two transactions of $16,000.00 and $10,000.00.
Now produced and shown to me at the time of swearing this affidavit and marked with the letters “B-3” is a true copy of the (omitted) Bank Home Loan Account Statement from 24/11/15 to 29/02/16 and the (omitted) Bank joint account statement from 15/02/16 to 14/03/16.
48. I seek that the sum of $45,850.00 be added back into the asset pool or otherwise appropriately considered by the Court at the Final Hearing.”
In response to the Wife’s application for property matters and affidavit sworn 26 April 2016, the Husband swore an affidavit on 31 May 2016.
In paragraphs [8]-[13] of the Husband’s affidavit he responds to paragraphs [45]-[48] of the Wife’s affidavit of 26 April 2016 in the following terms:
“8. At paragraph 45 of my wife’s Affidavit, she alleges that:
I advise the court that the husband has unilaterally redrawn from the mortgage without my consent.
9. I deny this allegation by my wife and state that the account was in joint names and the money was withdrawn at the direction of my wife to repay back the purported loan to her father and brother.
10. I admit the contents of paragraph 46 of my wife’s Affidavit to the extent that a sum of $20,000.00 was redrawn from the mortgage and was transferred to the joint account in our name. The money was to be transferred to account of Mr L to repay the purported loan from him and his father. However, Mr L asserted that we owed him funds in excess of $20,000.00 and that the funds must be returned to him in cash. Hence, the money was transferred back to the mortgage account on the same date. The funds were not transferred to ‘unknown account controlled by me’. Further, I did not have any such ‘unknown account’.
11. I deny the claim of my wife in her financial statement that the funds given to my wife by her brother and father was a loan. I was told by my wife that it was her share of income from her properties (including ancestral agricultural properties).
12. I admit the contents of paragraph 47 of my wife’s Affidavit to the extent that a sum of 25,850.00 was withdrawn from the mortgage account and transferred to joint savings account. The money was later taken by my wife on 26 February 2016 on the pretext of repaying loan of her brother & father. The assertion of my wife that I had excess funds in our mortgage account are contrary to her sworn statements in the Magistrates Court whereby referring to me she claimed that “he spends the money and then I have to ask for money from my parents in India, and my brother.”
13. Under the cover of my affirmations in paragraph 12. I deny the contents of paragraph 48 of my wife’s Affidavit and state that I did not take any money from the said account or any other account let alone $45,850.00. On the contrary, my wife is obliged to pay back the stated amount of $25,850.00 plus $500.00 withdrawn by her form joint account on 24 March 2016.”
As can be seen, there is no mention in the Husband’s affidavit of the Wife attending the former matrimonial home to remove cash that he had put in a drawer as was his vive voce evidence at the final hearing.
On 25 February 2016, the Wife made application at the Melbourne Magistrates’ Court for an Intervention Order for the protection of herself and X. In her application she sets out her fear and concerns about the Husband’s anger and her fear of his aggression.
Having considered the evidence of both parties and the Wife’s brother, I do not accept the Husband’s evidence that the Wife attended at the former matrimonial home at or around 26 February 2016 and removed $26,000 cash from a drawer.
The parties’ separation on 16 February 2016 occurred as a result of a physical altercation at the former matrimonial home in which both the Wife and her brother depose to the Husband being the aggressor. Such was the Wife’s level of concern that she made application for an Intervention Order for the protection of herself and X on 25 February 2016. Her application was listed for hearing on 11 March 2016. It is difficult to comprehend that the Wife would return to the former matrimonial home before an Intervention Order was granted given her fear of the Husband and his alleged violence on 16 February 2016.
There are also considerable inconsistencies in the Husband’s evidence as to how the Wife took the $25,850 cash between his affidavit sworn 31 May 2016 and his vive voce evidence.
In those circumstances I am satisfied that the money redrawn by the Husband on the mortgage on the former matrimonial home was retained by the Husband. He has therefore had the benefit of those funds.
It is submitted on behalf of the Wife that the $25,850 drawn down by the Husband on the mortgage should be notionally added back to the pool of assets for division between the parties.
In the matter of Bevan (supra) Finn J questioned whether the long standing practice of notionally adding back into the pool of assets for division between the parties assets that were no longer in existence was appropriate given the decision in the High Court of Stanford (supra) which required as the starting point that the Court determine the parties’ equitable and actual interests in property. The Full Court in the matter of Vass & Vass [2015] FamCAFC 51 at paragraph [138] answered that query by stating as follows:
“There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.”
In circumstances where a finding has been made that the Husband has had the benefit of the money he redrew on the mortgage on the former matrimonial home and has offered no explanation as to how they have been expended, I am satisfied that it is appropriate that this amount be notionally added back to the pool of assets for division between the parties.
How should the alleged loans from the Wife’s brother and father be treated?
Having considered the evidence of Mr L, I am satisfied that the maternal family provided funds to the Husband and the Wife to assist in the purchase and construction of the former matrimonial home in the sum of $44,500. I am also satisfied that an amount of $14,000 was repaid by the parties to the maternal family during the marriage.
It is the Husband’s evidence that he understood that the money advanced by the maternal family reflected the Wife’s entitlement to family monies and that they were not a loan. This is contradicted by the Husband’s evidence that he was prepared to transfer $20,000 of the parties’ money in part repayment of the “loans” in February 2016 and by the finding that $14,000 was repaid to the maternal family during the marriage.
I am therefore satisfied that the monies owing to Mr L and the Wife’s father are a joint liability of the Husband and the Wife.
The Jewellery
It is the Husband’s evidence that the Wife has retained jewellery given to both parties at the time of their wedding and that this jewellery has a value of $20,000. He provides no valuations supporting his estimated value of the jewellery.
In paragraph [106](a) of the Wife’s affidavit sworn 22 August 2017, she responds to the Husband’s claims in relation to the jewellery as follows:
“I deny the allegation that I have $20,000.00 worth of jewellery in my possession. I have only 1 pair of gold ear-ring & one gold ring as jewellery in Australia which is with me. The husband to my knowledge has a gold ring and a watch in his possession. The jewellery in the possession of the husband is worth more than the jewellery in my possession.
I advise the Court that my parents purchased the following items of jewellery prior to the marriage to form part of the Indian “Dowry”;
i. Gold Chain to the Husband valued at AU$1,500.00;
ii. Watch of the Husband valued at $1,280.00;
iii. Wedding Ring for the Husband valued at AU$700.00;
iv. Necklace and Ear Ring Set for the Wife valued at AU$2,150.00;
v. 6 Gold Bangles for the Wife valued at AU$2,250.00;
vi. Ear Studs for the Wife valued at AU$425.00;
vii. Gold Chain valued at AU$450.00
TOTAL – AU$8,755.00
I advise the Court that the parents for the Husband purchased the following items of jewellery prior to the marriage;
viii. Necklace and Earring Set valued at AU$900.00;
ix. 4 Bangles valued at AU$550.00;
x. Wedding Ring valued at $400.00;
xi. Set of Ear Rings valued at AU $100.00
TOTAL – AU$1,950.00
It was agreed that save for items i), iii), x), vi) that the remainder items of jewellery were to be held by the husbands family in India. The reason these items were not brought to Australia is because MR BHATA had concerns that Indian families were targeted by thieves in Australia due to the knowledge of them having jewellery. I have been told by MR BHATA that these items are presently stored in a back security box in MR BHATA’s hometown ((omitted)) in India.
I advise the Court that the only jewellery I have in my possession is my gold earrings (item xi) and my wedding ring (item x).”
Whilst the Wife provides considerably more detail than the Husband in relation to the question of the parties’ jewellery, she too provides no independent evidence of its value.
It is not possible for this Court to determine what the jewellery is worth, where it is and who has which particular items of jewellery in their possession or control.
In those circumstances the jewellery cannot be valued or included as an asset in the property pool.
The Pool
In the parties’ respective Outline of Case documents they include reference to the parties’ post separation bank accounts, a motor vehicle of the Husband with relatively small value and estimates of the value of the contents and chattels retained by each of the parties.
Neither party has filed any material that support the estimates given to the value of various items or bank statements that confirm the current savings held by either of them. In these circumstances it is not my intention to include those items in the pool of assets for distribution between the parties.
The parties are however in agreement as to the value of the former matrimonial home, the current amount owing on the mortgage as well as the Husband’s superannuation entitlements.
Accordingly the pool for division between the parties is as follows:
Assets
Property A (the former matrimonial home)
$425,000
Add-back money redrawn by the Husband on mortgage on the former matrimonial home
$25,850
Sub-Total
$450,850
Liabilities
Mortgage on former matrimonial home
$224,721.72
Monies owed to Mr L
$20,500
Monies owed to Mr T
$10,000
Sub-Total
$255,221.72
Total
$195,628.28
Superannuation
Husband’s superannuation
$34,728.51
Wife’s superannuation
Nominal
Total superannuation
$34,728.51
Contributions during the relationship
It is the submission of the Husband that his was the greater contribution during the course of the relationship. Because of the Wife’s mental and physical health issues, not only was he the primary bread winner for the family, he also assumed a large proportion of the responsibilities as home maker and parent.
It is the Husband’s further submission that post separation he has maintained the former matrimonial home as well as regularly paying child support for X.
It is the Wife’s submission that she was the primary home maker and parent during the parties’ marriage. It is her evidence that the Husband was working on a full time basis, working both night shift and overtime on weekends. It is her evidence that because of the Husband’s hours he had to sleep during the day. In these circumstances she submits that the majority of the home making and parenting duties fell on her shoulders. It is the Wife’s further evidence that when she was hospitalised for her mental health issues, X was cared for primarily by her family.
It is the Wife’s evidence that since separation she has been X’s primary carer as he is in her care 13 out of 14 nights a fortnight.
It is therefore submitted on behalf of the Wife that the parties’ contributions overall should be considered equal.
Whilst I accept that there were periods when the Wife’s health impinged on her capacity to perform the role of home maker and parent, I am satisfied that for the majority of the parties’ relationship, and particularly after X’s birth, she was the primary home maker and parent. I also accept that the Husband was the primary bread winner and contributed to the care of X when home.
Having considered the parties evidence, I am of the view that the parties’ contributions during and post separation should be considered as equal.
Section 75(2) factors
What adjustments should be made in the Wife’s favour?
It is submitted on behalf of the Wife that there should be an adjustment of 15% in her favour for section 75(2) factors on the basis of the disparity in the parties’ earning capacities and because she will have the primary care of X.
It is submitted on behalf of the Wife that if she is able to return to employment it will only be in a part time capacity working in a relatively low paying (omitted) position.
It is submitted on behalf of the Wife that given the Wife’s mental health issues, she will not be able to obtain employment on a full time basis.
It is further submitted on behalf of the Wife that the parenting orders mean she will have the primary care of X albeit he will be spending significant time with the Husband.
It is submitted on behalf of the Husband that the Wife should return to full time employment in order to develop her own independence and to set a good example to X.
It is further submitted on behalf of the Husband that whilst he does at this time have a greater earning capacity than the Wife, the reality is that his income is only $68,000 per annum which is not a large income.
There is no doubt that there should be an adjustment in the Wife’s favour for section 75(2) factors given that she has a lesser earning capacity than the Husband and will have the primary care of X. Given the Husband’s relatively low income and that X will be spending significant and substantial time with the Husband, that adjustment should be 5%.
What adjustment if any should be made in the Husband’s favour arising from his claim the Wife has an entitlement in her parents’ property in India under the Hindu Succession Act 1956 (India) and an equitable interest in her brother and sister-in-law’s home?
The Husband claims the Wife has a one quarter interest in her parents’ ancestral agricultural property in India pursuant to the Hindu Succession Act 1956 (India). It is his evidence the property is valued somewhere between AU$500,000 to AU$700,000.
As previously noted in this judgment, the Husband places no evidence before the Court as to the Wife’s parents’ ownership of this property, its status as an ancestral property that attracts the provisions of the Hindu Succession Act, or of its value.
It is the Wife’s evidence that she holds no legal or equitable interest in any property in India and that it is her parents who own all properties in India.
It is the Wife’s evidence that if a small holding of agricultural property near the village her parents left many years ago is ancestral property then this is a theoretical contingent interest which may only be actualised if she were to “sue her parents for an early inheritance by initiating expensive legal proceedings in India.” The Wife’s clear evidence is she has not commenced nor does she intend to commence any legal proceedings in India to pursue any entitlement she may have in that property as the costs of such litigation would far exceed any potential benefits that she may achieve and would ensure that she would be disowned by her family.
Whilst the Wife may have an hereditary interest in the agricultural property owned by her parents in India, I am satisfied that such interest would only be realisable on the death of the Wife’s parents given the Wife’s evidence that she will not pursue any potential entitlement whilst they live.
The Wife’s entitlement, if it exists, to a one quarter interest in her parents’ ancestral property in India upon their death is analogous to those matters in which the question of how to treat an anticipated inheritance has been dealt with by the Court.
The Full Court in the matter of De Angelis & De Angelis (2003) FLC 93-133 held at paragraph [95] as follows:
“The discussion by the Full Court in White and Tulloch v. White (1995) 19 Fam LR 696 of this question of the treatment of anticipated inheritances in property settlement proceedings indicates that there is no absolute rule and that each case will depend on its own facts. However, we think it important to remember that the Court is required in exercising the jurisdiction under s.79 of the Family Law Act 1975 to accord justice and equity to both parties. The question therefore has to be asked whether, in the present case, it would be just and equitable to the husband for the Court to have ignored the probability that, in what could well be very short period of time (given the ages of her aunt and mother), the wife could well be the owner of two properties having a combined value of almost the same amount as the value of the parties' property currently available for distribution, and particularly in circumstances where the husband had been found to have done substantial improvement and maintenance work on both properties?”
In this matter it is the Wife’s evidence that her parents are aged 68 and 66 and are in reasonable health.
It is the Wife’s further evidence that the ancestral property to which the Husband makes reference is a small acreage of agricultural land in a village that her parents left many years ago. It is her belief that it has minimal value.
It is the Wife’s evidence that the home in which her parents now live was purchased by them during their marriage with their own earnings and is not an ancestral property to which the Indian legislation applies.
There is no evidence before the Court as to the value of the property to which the Husband makes reference nor whether the property that he is referring to is in fact ancestral property.
In circumstances where the Wife will only inherit on the death of her parents, where the amount she will inherit is unknown and where her parents are of a relatively young age, I am of the view that this is not a factor which would cause an adjustment to be made in the Husband’s favour pursuant to s75(2)(o) of the Act.
It is the Husband’s evidence that the Wife has an equitable interest in Mr and Ms L’s home on the basis that monies that should otherwise have been paid to the Wife by her parents from her entitlement in property in India were given to her brother to assist him in the purchase of his property because the Wife already had an interest in the former matrimonial home.
The Husband provides absolutely no proof in support of this claim. It is totally without merit.
Accordingly, there should be no adjustment made in the Husband’s favour for s75(2)(o) factors on the basis of the Wife’s possible interest under the Hindu Succession Act or the Husband’s belief she has an equitable interest in Mr L and her sister-in-law’s home.
The chattels sought by the Wife
The Wife is seeking the return to her of a large number of chattels in the former matrimonial home that she says were either purchased by her brother or from funds provided to her by her parents. She annexes to her affidavit sworn 22 August 2017 a swathe of receipts that confirm the purchase of many items such as a washing machine, fridge, beds, linen, bedroom furniture, coffee tables, televisions by either her brother or by herself. It is the Wife’s evidence that $12,000 was expended by her family in the purchase of this furniture.
Much of this furniture is now over 2 years old and whilst it may have initially cost $12,000, its current value is considerably less than that.
The parties separated over 18 months ago and the furniture in dispute has remained in the Husband’s possession.
The Wife and X reside with Mr and Ms L and it is the evidence of the Wife and Mr L that she and X will continue to reside there for some time going forward.
In these circumstances I am of the view that it is too late for orders to be made for those items to be returned to the Wife.
Should there be a superannuation splitting order
The Wife is seeking an order that there be a superannuation splitting order in relation to the Husband’s superannuation that would equalise the parties’ entitlements.
The Husband is opposed to such an order being made but no submissions were made on his behalf as to why such an order would not be just and equitable.
It is apparent that the Husband accumulated superannuation during the course of the relationship with the Wife. In those circumstances it can only be seen as just and equitable that orders be made that would equalise the parties’ superannuation entitlements.
Just and equitable
As can be seen I have determined that there should be a division of the parties’ property pool on the basis that the Wife receive 55% of same and the Husband receive 45% of same.
That means that the Husband will need to make a payment to the Wife of $107,595.55 in order to retain the former matrimonial home. Given the current level of the mortgage, the Husband would have to refinance the former matrimonial home such that he would have a mortgage of $332,317.27.
Whilst the Husband does not have a large income, I would anticipate that with his pending marriage and with the assistance of his new wife, and perhaps his parents who live with him, the Husband should have the capacity to borrow that amount and retain the former matrimonial home if he chooses to do so.
The payment to the Wife will afford her some measure of financial independence so that she will have savings which will enable her to make decisions about her future.
The debt to Mr L and the Wife’s father has been found to be a joint liability of the parties. The amount the Husband is to pay the Wife if he wishes to retain the former matrimonial home, has been determined on the basis that the Husband will become solely liable for the parties’ debt to Mr L and the Wife’s father. Accordingly the orders will provide that if the Husband chooses to retain the former matrimonial home he will be liable for the debt to Mr L and the Wife’s father.
Given the Husband’s application was to retain the former matrimonial home without payment to the Wife, it is unknown whether he wishes to refinance the mortgage in order to retain the former matrimonial home. Accordingly, orders will be made that will give the Husband 30 days to provide the Wife’s solicitors with proof of his ability to refinance the former matrimonial home to pay the Wife her share in the former matrimonial home. If he fails to provide such proof orders will be made for the former matrimonial home to be sold. If the Husband wishes to retain the former matrimonial home and is able to refinance and pay the Wife $107.595.55, the Husband will have a further 30 days to do so.
If the Husband cannot borrow sufficient funds to pay the Wife or chooses not to do so, orders will be made for the former matrimonial home to be sold and that from the proceeds of sale, sale costs be paid, the mortgage be discharged, the parties’ debt to Mr L and the Wife’s father be paid and the balance remaining be divided between the parties on the basis that the Wife receive 55% of same and the Husband receive 45% of same.
Further, as noted, a superannuation splitting order will be made that equalises the parties’ superannuation entitlements. I note that the Husband’s superannuation fund has already been afforded procedural fairness.
I certify that the preceding two hundred and eighty six (286) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 16 November 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Restitution
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Statutory Construction
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