BHATNAGAR & RIJU - [2018] FCCA 283

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHATNAGAR & RIJU

[2018] FCCA 283

Catchwords:
FAMILY LAW – Children’s issues – dispute as to where the child shall live – where the mother seeks sole parental responsibility – where the father seeks equal shared parental responsibility – order for mother and father to have equal shared parental responsibility – order for child to live with father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DA(2), 81, 90MT(1)(a)

Applicant:

MS BHATNAGAR

Respondent:

MR RIJU

File Number:

BRC 11481 of 2015

Judgment of:

Judge Egan

Hearing dates:

24 and 25 January 2018

Date of Last Submission:

25 January 2018

Delivered at:

Brisbane

Delivered on:

25 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr Dodd

Solicitors for the Applicant:

Lewis & Trovas Lawyers

Counsel for the Respondent:

Mr Bunning

Solicitors for the Respondent:

Barry Nilsson Lawyers

ORDERS

BY WAY OF FINAL CONSENT, THE COURT ORDERS:

That within 28 days of the date of these orders, the husband will pay to the wife $10,000.00.
That, should and only if the husband be unable to comply with Order 1, the property located at Property A, Queensland (described as Lot (omitted) Registered Plan (omitted) Title Reference (omitted)) (hereinafter referred to as the ‘Property A’) be listed for sale by private treaty within 60 days of the date of these Orders:
(a)with an agent as agreed between the parties but failing agreement as nominated by the CEO of the Real Estate Institute of Queensland (REIQ) or their nominee;
(b)at a list price as agreed between the parties but failing agreement at a list price as recommended by the appointed real estate agent; and
(c)for an advertising campaign as agreed between the parties or as recommended by the appointed real estate agent; and
(d)the parties will attend to signing all documents to give effect to a sale if an offer is made from a prospective purchaser where the purchase price as at or above 2.5 per cent below the list price.
That in the event of a contract for sale not being entered into pursuant to Order 2 within 90 days of the date the Property A is listed for sale, then the Property A will be auctioned forthwith with and the following shall apply:
(a)the auctioneer to be as agreed between the parties but failing agreement as nominated by the CEO of Real Estate Institute of Queensland (REIQ) or their nominee; and
(b)the reserve price as agreed between the parties not less than seven days prior to the auction but failing agreement at a list price as recommended by the appointed real estate agent referred to in Order 2 (a); and
(c)in the event that the bidding does not reach the reserve price, the parties may sell the Property A to the highest bidder if it is agreed between the parties.
That should the Property A not be disposed of at auction, the Property A is to be re-listed for sale by private treaty for a further period of 30…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BHATNAGAR & RIJU [2018] FCCA 283
Case: [2018] FCCA 283
Decision Date: 25 January 2018

CaseChat Overview and Summary

The parties in this matter were the husband and the wife, who sought final consent orders from the court. The dispute concerned the division of property and superannuation entitlements, as well as parenting arrangements for their child.

The court was required to determine the terms of the final consent orders, which encompassed the financial settlement between the parties, including the sale and distribution of proceeds from a property, the division of superannuation, and the allocation of various assets and liabilities. Additionally, the court needed to establish parenting orders concerning parental responsibility, living arrangements, time spent with each parent, communication, changeovers, and international travel for the child.

The court's reasoning was based on the agreement reached between the husband and wife, as evidenced by the consent orders. The orders detailed a specific process for the sale of a property if the husband was unable to pay a sum of $10,000 to the wife within 28 days. This process included provisions for listing, sale price, advertising, and auction if necessary, with the proceeds to be applied in a defined order. The court also ordered a superannuation split under section 90MT(1)(a) of the *Family Law Act 1975* (Cth), specifying a base amount for the wife. The orders further delineated the retention of other property and liabilities by each party, including indemnities for certain debts. Parenting orders established equal shared parental responsibility, with the child to live with the father and specific arrangements for the child to spend time with the mother, including provisions for communication and changeovers.

The court made final consent orders reflecting the agreement of the parties. These orders included the payment of $10,000 by the husband to the wife, or the sale of a property if that payment was not made, a superannuation split, the allocation of various assets and liabilities, and detailed parenting arrangements for the child, including equal shared parental responsibility and specific living and time arrangements. The court also discharged previous orders and dismissed outstanding applications, with each party to bear their own costs.

Orders

Orders of the court

BY WAY OF FINAL CONSENT, THE COURT ORDERS:

That within 28 days of the date of these orders, the husband will pay to the wife $10,000.00.

That, should and only if the husband be unable to comply with Order 1, the property located at Property A, Queensland (described as Lot (omitted) Registered Plan (omitted) Title Reference (omitted)) (hereinafter referred to as the ‘Property A’) be listed for sale by private treaty within 60 days of the date of these Orders:

(a) with an agent as agreed between the parties but failing agreement as nominated by the CEO of the Real Estate Institute of Queensland (REIQ) or their nominee;

(b) at a list price as agreed between the parties but failing agreement at a list price as recommended by the appointed real estate agent; and

(d) the parties will attend to signing all documents to give effect to a sale if an offer is made from a prospective purchaser where the purchase price as at or above 2.5 per cent below the list price.

That in the event of a contract for sale not being entered into pursuant to Order 2 within 90 days of the date the Property A is listed for sale, then the Property A will be auctioned forthwith with and the following shall apply:

(a) the auctioneer to be as agreed between the parties but failing agreement as nominated by the CEO of Real Estate Institute of Queensland (REIQ) or their nominee; and

(b) the reserve price as agreed between the parties not less than seven days prior to the auction but failing agreement at a list price as recommended by the appointed real estate agent referred to in Order 2 (a); and

(c) in the event that the bidding does not reach the reserve price, the parties may sell the Property A to the highest bidder if it is agreed between the parties.

That should the Property A not be disposed of at auction, the Property A is to be re-listed for sale by private treaty for a further period of 30 days with a further auction to be held forthwith at the expiration of the 30 day period. This auction is to be conducted in the same manner as specified in Order 3 (a) and Order 3 (b) The process specified in this Order (Order 4) will be repeated until such time as the Property A is sold or until such time as the parties agree to one party buying out the other party’s share at a price to be agreed.

The parties shall cooperate in every way with the agent for sale including:

(a) making the key available for the agent; and

(b) allowing inspection of the Property A at all reasonable times requested by the agent; and

(d) ensuring the Property A, including the grounds, are in neat and clean condition at the time of the inspection by the agent and prospective purchasers; and

(e) signing all documents requested by the agent in relation to the listing for the sale of the Property A.

Upon the Property A being sold, the gross proceeds of the sale (including any deposit) are to be applied in the following order and manner:

(a) any commission and selling cost including but not limited to real estate commission, auctioneers’ fees and advertising fees incurred in relation to the sale of the Property A;

(b) legal (conveyancing) costs incurred in relation to the sale of the Property A;

(d) to discharge any mortgage or loan secured over the Property A;

(e) $10,000 to be paid to the wife;

(f) The balance to be paid to the husband.

Superannuation split

That the following Orders (a) – (d) bind the trustee of the (omitted) superannuation fund:

(a) in accordance with 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to or on behalf of the husband from his interest in the (omitted) superannuation fund (account No. (omitted)), the trustee shall pay to the wife, or her legal personal representative an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using the base amount of $45,000, and that there be a corresponding reduction in the entitlement that the husband should have in the (omitted) superannuation fund but for these orders.

(b) that having been afforded procedural fairness in relation to the making of this Order, this Order binds the trustee of the (omitted) superannuation fund.

(c) the operative time for this Order is 4 business days after the date of service of these Orders on the trustee of the (omitted) superannuation fund.

(d) that each party and the trustee of the (omitted) superannuation fund have liberty to apply in relation to the implementation of the paragraphs of these Orders affecting any superannuation interest.

Retention of property

That, except as otherwise provided for in this Order, the Husband is entitled to be the sole legal and beneficial owner of the following:

(a) The property located at Property A;

(b) Funds in any bank accounts in his name;

(d) Superannuation entitlements with (omitted), save for the superannuation split to the husband provided in this Order.

That, except as otherwise provided for in this Order, the wife is entitled to be the sole legal and beneficial owner of the following:

(a) The Toyota (omitted) (registration no. (omitted)) motor vehicle;

(b) Funds in any bank accounts in her name;

(d) Superannuation entitlements with (omitted).

10.

That the husband retain the liability and indemnify the wife in relation to the following:

(a) Any monies owing to the husband’s parents;

(b) The husband’s personal tax liabilities, including Fridge Benefits Tax; and

11.

That the wife retain the liability and indemnify the husband in relation to the following:

(a) The wife’s personal tax liabilities;

(b) The wife’s car loan with (omitted); and

Miscellaneous

12.

That unless otherwise specified in these Orders, each party will retain as their own property absolutely, all other property or financial resource presently in their possession or under their control, to the exclusion of the other party including but not limited to motor vehicles, furniture, carpets, paintings, bank accounts, managed funds, jewellery, choses in action, interest in any business, superannuation entitlements, life insurance and any other property with a real or personal, wheresoever situate and of whatsoever kind.

13.

Save as is otherwise ordered herein each party shall assume and bear liability for and attend to payment individually of all and any debts outstanding in his or her name and indemnify the other party with respect to any liability whatsoever attaching to such debts.

14.

Both parties shall do acts and things and sign all documents necessary to give effect to these orders.

15.

In the event of any party refusing or neglecting to sign within 7 days of a written request to do so, any documents necessary to effect the terms and provisions of these Orders, a Registrar or a Deputy Registrar of the Family Court of Australia is hereby appointed, pursuant to the provisions of Section 106A of the Family Law Act 1975 to attribute all deeds and documents in the name of the defaulting party and to do all such acts and things necessary to give the legacy and operation to the provisions of these Orders. For the Registrar to comply with the powers provided in this Order, it shall be sufficient proof that there has been noncompliance, that the wife or husband provides to the Registrar an Affidavit deposing to noncompliance by the other party.

16.

Within seven (7) days of the date of these Orders, the $9,000 held in the Barry Nilsson Trust Account (from the sale of the paternal grandmother’s car) be released to the paternal grandmother, Ms B and these Orders act as an Authority for that release.

17.

Within fourteen (14) days of the date of these Orders, the husband and wife shall do all acts and things and execute all necessary documents to close any joint bank accounts and divide the proceeds (if any) equally.

18.

That Order 1 of the Orders of Judge Baumann dated 9 June 2017 be discharged.

19.

That Order 6 of the Orders of Judge Demack dated 15 August 2016 be discharged.

20.

That the parties each bear their own costs for their respective applications.

21.

That all outstanding applications before the court be dismissed.

IT IS FURTHER ORDERED:

Parenting

22.

That all other parenting orders be discharged and replaced with the orders as outlined below.

Parental responsibility

23.

That the mother and the father have equal shared parental responsibility for the care, welfare and development of the child X born (omitted) 2006 (“the child”).

24.

That the parties are to consult with each other about decisions to be made in the exercise of their equal shared responsibility as follows:

(a) They shall inform the other parent about the decision to be made;

(b) They shall consult with each other on terms that they agree; and

25.

That notwithstanding the provision of Order 24 herein:

(a) The mother shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her; and

(b) The father shall be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her.

Living arrangements

26.

That the child live with the father

27.

That the child shall spend time with the mother as agreed between the mother and the father, and failing agreement, as follows:

(a) From 8:00am to 6:30pm each alternate Sunday, commencing 11 February 2018.

(b) From 12:00pm on Christmas Day until 6:00pm Christmas Day;

(d) On the Mother’s birthday from 8:00am until 6:30pm if the birthday falls on a non-school day and from after school until 6:30pm if the birthday falls on a school day.

Special days

28.

That in the event the child is due to be in the mother’s care on Father’s Day or the father’s birthday, the child will not spend time with the mother in accordance with Order 27 herein and remain in the father’s care.

29.

That the child spend time with his mother from 12.00pm midday on Christmas Day until 6.00pm Christmas Day.

Telephone communication

30.

The child shall be at liberty to communicate with either parent at all such times as the child expresses a wish to do so and the parent with whom the child is then spending time shall facilitate that communication and afford the child privacy during that communication.

Changeover

31.

That unless otherwise agreed in writing by the parties, changeover shall occur as agreed between the mother and the father, and failing agreement, at Hungry Jacks, (omitted).

Airport watch list

32.

That Order 3 of the Orders of this Court of 15 February 2016 placing the name of the child, X (a male), born (omitted) 2006 on the Family Law Watchlist is hereby discharged AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by forthwith removing the name of the said child from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.

Overseas travel

33.

That the child be permitted to travel overseas in the company of the mother or father as agreed between them by written agreement by each of them.

34.

That the mother and the father shall do all acts and things and sign and/or execute all documents required to obtain a passport for the child within one (1) month of the date of these Orders (if required) and shall renew that passport as required (but no later than six (6) months prior to its expiry date) from time to time, with each of the mother and the father paying one-half of the cost of obtaining or renewing the child’s passport on each occasion.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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