Chandra and Chandra & Anor

[2018] FamCA 958

FAMILY COURT OF AUSTRALIA

CHANDRA & CHANDRA AND ANOR [2018] FamCA 958

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Where the wife seeks orders for an adjustment of the parties’ property – Where the husband has not engaged in these proceedings – Where the husband has likely absconded from Australia, following criminal proceedings being commenced against him – Where the New South Wales Crime Commission has intervened in the proceedings – Where the Crime Commission are content for property orders to be made as sought by the wife – Where the wife made significant financial and non-financial contributions to the matrimonial asset pool – Orders made pursuant to the wife’s application.

FAMILY LAW – CHILDREN – Child related proceedings – Where the mother seeks orders that the child live with her – Where the mother seeks orders for sole parental responsibility – Where the mother seeks orders that the child spend time with the father as agreed between the parties – Where the mother has been the child’s primary carer since her birth – Where the father has not contacted the mother or the child for two years – Where the father has not engaged in these proceedings – Where the father has likely absconded from Australia, following criminal proceedings being commenced against him – Where the Court finds that it is in the child’s best interests for orders to be made as sought by the mother – Orders made pursuant to the mother’s application.

Family Law Act 1975 (Cth) s 60CC, 79, 79C

Family Law Rules 2004 (Cth) rr 7.18, 11.02

APPLICANT: Ms Chandra

RESPONDENT: Mr Chandra

INTERVENOR: New South Wales Crime Commission

FILE NUMBER: SYC 2238 of 2017

DATE DELIVERED: 13 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 13 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: G Family Lawyers

SOLICITOR FOR THE RESPONDENT: Self-represented, no appearance

SOLICITOR FOR THE INTERVENOR: New South Wales Crime Commission

Orders

THE COURT ORDERS THAT:

1. Orders be made in accordance with the Applicant wife’s Amended Initiating Application filed on 19 September 2018, as follows:

   Property

   1.It is noted for the purposes of these Orders Mr Chandra and Mr B are one and the same person.

   2.It is noted that Ms Chandra and Ms C are one and the same person.

   3.That within 120 days of the date of these Orders the Applicant Wife:

   (i)Pay to an account in the name of Mr B held by the NSW Trustee and Guardian an amount equal, as at that date, to one half of the net equity in the property situated and known as D Street, Suburb E, NSW being property described in certificate of title Lot … in Deposited Plan … ("The Suburb E Property") ("the principal sum");

   (ii)Do all acts and things necessary to refinance the mortgage secured over the Suburb E Property and release and indemnify the husband with respect to the said mortgage.

   4.It is noted that the principal sum referred to in Order 3.1 herein is to remain under the control of the NSW Trustee and Guardian on the basis that it is restrained property of Mr B pending the resolution of the Confiscation proceedings.

   5.That simultaneous with the Applicant Wife's compliance with Order 3.1 and 3.2 herein, pursuant to s106A of the Family Law Act the Applicant Wife be appointed as trustee for the Respondent Husband to do all such acts and things and sign all such documents as may be required to transfer to the wife or such other person as nominated by the wife all of the husband's right title and interest in the Suburb E Property.

   6.That for the purposes of calculating the net equity in Order 3.1 herein, the net equity is equal to the value of the Suburb E Property, namely and unless otherwise agreed, $1,350,000, less the amount of the debt secured by the Mortgage ("net equity").

   7.That the husband indemnify and keep the wife indemnify in relation to all actions, claims, suits and demands as may be made against him from the date of these orders.

   8.That other than as provided in these Orders, the applicant wife and respondent husband are each entitled to all assets in his or her possession and responsible for all liabilities in his or her name, as at the date of these Orders.

   NOTATIONS

   A.It is noted that the matter has proceeded on an undefended basis and the husband has not engaged in the proceedings and has not provided any disclosure

   B.It is noted that the effect of this agreement provides for an equal division of the current assets.

   Parenting

   9.The parties be exempted from attending family dispute resolution pursuant to s.60I of the Family Law Act 1975(Cth).

   10.That the mother have sole parental responsibility for X born … 2014 ("the child").

   11.That the child live with the mother.

   12.That the father spend time with the child as agreed between the mother and father in writing.

   13.The mother be authorised to apply to the Registrar of Births, Deaths and Marriages in and for the State of New South Wales to change the surname of the child currently registered as X.

   14.It is noted that the father's consent is not required for the issue of an Australian passport for the child.

   15.Consistent with the mother’s request to maintain confidentiality, the Court will facilitate the mother being provided with a copy of separate property and parenting orders, in which both parties will be referred to by the surname “Chandra”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chandra & Chandra has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2238 of 2017

Ms Chandra

Applicant

And

Mr Chandra

Respondent

And

New South Wales Crime Commission

Intervenor

EX TEMPORE JUDGMENT

1. These proceedings concern an application for property and parenting orders by the wife.  The proceedings are undefended as a result of the husband having not engaged in them.  The parenting proceedings relate to the child of the parties’ relationship, X, born in 2014 (“the child”) and currently aged four years and seven months. 

2. The current orders sought by the wife are set out in her Amended Initiating Application filed on 19 September 2018. I have made orders in accordance with that application.

3. The documents relied upon by the wife are set out in her case outline document (Exhibit “W-2”), as follows:

   1. Financial Statement of [Ms Chandra] filed 7 April 2017;

   2. Affidavit of [Mr F] filed 19 June 2018;

   3. Affidavit of [Ms Chandra] (service of documents) 5 September 2017;

   4. Affidavit of [Ms Chandra] filed 12 January 2018;

   5. Affidavit Non-Filing of Family Dispute Resolution Certificate of [Ms Chandra] filed 19 September 2018;

   6. Affidavit of [Ms G] (service of documents) filed 8 November 2018

   7. Deed between The New South Wales Crime Commission and [Ms Chandra] dated 29 August 2018 (“the Deed”);

   8. Email from [G Lawyers] to the husband dated 8 November 2018 serving him with affidavit of [Ms G] filed 8 November 2018 and the Deed.

4. The background facts to this matter are also set out in the wife’s Affidavits filed on 5 September 2017 and 12 January 2018.  By way of summary, those background facts have usefully been summarised in the chronology set out in the wife’s case outline document, as follows:

   1978     Wife born

   2008Husband and wife marry and commence residing together.

   The husband is working as a health professional. The wife is working in information technology.

   At the time the parties commenced residing together the wife owned a property with negligible equity and no other assets or liabilities of commercial significance. The wife is not aware as to any assets or liabilities owned by the husband at the time they commenced residing together.

   2010The husband and wife purchase a property at [D Street, Suburb E] (“the [Suburb E] property”) in their joint names. They use joint savings and bank loan to fund the purchase.

   2012Wife is made redundant and receives a sum of $56,239.55.

   The wife thereafter does not return to work and undergoes a number of IVF attempts.

   2014  The parties child, X is born.

   17 May 2016           The husband and wife separate on a final basis.

   This is the last time the wife saw the husband. Since this time the child has been in the wife’s sole care.

   Early 2017A Regulation Agency commences criminal proceedings against the husband.

   Early 2017The wife sees an article in a newspaper inferring that the husband engaged in fraudulent behaviour. The wife had previously no knowledge of the husband’s fraudulent behaviour.

   January 2017           Husband last departs Australia.

   Early 2017The husband is convicted of an offence and given the maximum fine of $30,000.

   Early 2017The New South Wales Crime Commission commence confiscation proceedings in the Supreme Court of NSW under the Criminal Assets Recovery Act. 

   These proceedings are still pending.

   29 August 2018        The New South Wales Crime Commission and the wife enter into The Deed agreeing to equally divide the equity in the Suburb E Property. On this basis, The New South Wales Crime Commission will not stay the Family Court proceedings and the wife will not seek to be joined as a party to the Supreme Court proceedings.

5. The first issue for determination, in these proceedings, is whether it is appropriate for the matter to be heard on an undefended basis and, in that respect, I note that rule 11.02(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that, if a party does not comply with the Rules, the Regulations or a procedural order, the Court may determine the case as if it were undefended. In that respect, I am satisfied that the husband has not complied with Rules as a result of his failure to engage in these proceedings.

6. In terms of the issue of service, rule 7.18(3)(b) of the Rules provides that, if the Court orders that service of a document is dispensed with on a condition that it (service) is complied with, the document is taken to have been served. In that respect, the Court has been provided with an Affidavit of Ms G, the solicitor for the wife, filed on 8 November 2018. That Affidavit sets out the steps that have been taken to serve relevant documents upon the husband. Further, Ms G has tendered an email dated 8 November 2018, indicating additional steps that have been taken to communicate with the husband to notify him of these proceedings and to provide relevant documents to him.

7. I am, therefore, satisfied that the orders made on 6 September 2017 have, in respect to service by email, been complied with. 

8. Further, I note that there are currently proceedings pending in the Supreme Court of New South Wales in which the New South Wales Crime Commission is seeking orders that the husband pay to the treasurer an amount assessed by the Court to the value of the unexplained wealth of the husband. Pursuant to s 79C of the Family Law Act 1975 (Cth) (“the Act”), the Court must stay any proceedings in relation to matrimonial property, upon being notified that the relevant property is covered by a proceeds of crime order. The Crime Commission and the wife have reached agreement in respect to the Supreme Court proceedings, which is set out in a Deed of Compromise marked Exhibit “W-1” in these proceedings.

9. That agreement provides that the wife may proceed with her Amended Initiating Application. Section 79(2) of the Act requires that the Court not make an order under that section unless it is satisfied, having regard to the matters set out in s 79(4) of the Act, that it is just and equitable to do so.

10. In that context, I have read the Affidavits filed by the wife in these proceedings, including, most relevantly, her contentions regarding her contributions to the marital property contained in her Affidavit filed on 12 January 2018.  By way of summary, having regard to that evidence, I note the following:

    a)In terms of s 79(4)(a) of the Act, I am satisfied that, at the commencement of cohabitation, the wife owned a property at Suburb H with a nominal equity. I am further satisfied that, at that time, the wife is not aware of any assets or liabilities of the husband and that there is currently no evidence before the Court as to what his financial position was. Between the time of cohabitation and October 2012, the wife was engaged in full time employment and I am satisfied that she applied her income and savings for the benefit of the matrimonial asset pool. On 3 June 2010, the husband and the wife jointly purchased the Suburb E property for $736,500, funded by $140,000 of savings, $7,000 from the First Homeowner’s Grant and a mortgage from the Commonwealth Bank of Australia. Between May 2010 and September 2012, the wife transferred $138,182 into the husband’s personal bank account for the purpose of repaying that mortgage. In October 2012, the wife was made redundant and received a payment of $56,239.55, which she applied to the benefit of the matrimonial property pool. The wife acknowledges that the husband worked on a full time basis throughout cohabitation. Since the parties’ separation in 2016, the wife has met all mortgage repayments referrable to the Suburb E property.

    b)In terms of s 79(4)(b) and (c) of the Act, I am satisfied that during the period of cohabitation, the wife was predominantly responsible for the household duties and, following the birth of the child, she was her primary caregiver. I am satisfied that the wife’s contributions, in that regard, allowed the husband to increase his income and earning capacity. I am further satisfied that the husband had little interaction with the child. I am further satisfied that since the parties’ separation in May 2016, the wife has been the sole carer for the child and that the child has had no contact with the husband.

    c)In terms of s 79(4)(e), I am satisfied that the wife has been unemployed in the period subsequent to 2013 and that she remains unemployed. As stated, the wife is solely responsible for the care of the child, who is four and a half years of age. That responsibility places an impediment upon the wife’s ability to return to the workforce and hence impacts upon her earning capacity, her income and her ability to accumulate superannuation. Further, in terms of s 75(2)(o) of the Act, I note the Deed of Compromise that has been reached between the wife and the Crime Commission

11. On the basis of those considerations, I am satisfied that the orders sought by the wife reflect an appropriate adjustment of the matrimonial property. 

12. Further, in terms of parenting orders sought by the wife, I again have had regard to her Affidavit material.  On the basis of that material, I am satisfied of the following:

    a)The husband has not been present in the child’s life since May 2016, that is, since she was two years of age, and has made no attempt to contact the child.  In this way, it has not been possible for the child to establish a meaningful relationship with the husband.  This is in circumstances where the husband has, in all probability, absented himself from the Commonwealth of Australia. 

    b)I am satisfied that the husband has not contributed to the physical, intellectual or emotional needs of the child since she was two years of age. I am satisfied that, since that time, the wife has been solely responsible for attending to those needs of the child. 

    c)In circumstances where the husband has effectively removed himself from the engagement with the wife and the child, it is essential that the wife be given sole parental responsibility in respect to the child. 

    d)I am satisfied, in terms of the additional matters that I am required to consider pursuant to s 60CC of the Act, that the wife has demonstrated her capacity to care for the child and that she has exercised appropriate responsibility in respect to the child, as referred to in that section.

13. In terms of the additional matters that I am required to consider pursuant to s 60CC of the Act, I note that the wife seeks orders that the child’s name be changed. The background to the wife’s application, in that regard, is that the child’s surname was determined at a time when the husband was declaring a false name for the purpose of falsely representing himself to be a health professional. The circumstances in which that occurred gave rise to criminal proceedings being commenced against the husband, which continue to be the subject of media commentary and associated public interest. The wife, therefore, wishes to change the child’s name, in order to avoid the child receiving negative attention when she attends school. In those circumstances and given that, as submitted by the solicitor for the wife, that the child’s surname is effectively meaningless, I am satisfied that it is in the best interests of the child for there to be a change of her surname.

14. On the basis of those considerations, I am satisfied that it is in the best interests of the child for orders to be made in terms of those sought in the wife’s application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the ex tempore judgment of the Honourable Justice McClelland delivered on 13 November 2018.

Associate: 

Date: