CRUZ & CRUZ

[2017] FCCA 650

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRUZ & CRUZ [2017] FCCA 650

Catchwords:
FAMILY LAW – Parenting and property dispute – father’s relationship with child presently fractured – both parties agreeing to counselling to try and re-establish the relationship – whether interim or final orders should be made – modest property pool – the significant asset in India – orders for sale impossible, or very difficult to enforce – consideration to be given to form of orders to be made.

Legislation:

Family Law Act1975, s.60CC

Stanford & Stanford (2012) 247 CLR 108

Applicant: MS CRUZ

Respondent: MR CRUZ

File Number: MLC 6359 of 2016

Judgment of: Judge Burchardt

Hearing date: 15 March 2017

Date of Last Submission: 15 March 2017

Delivered at: Melbourne

Delivered on: 6 April 2017

REPRESENTATION

Counsel for the Applicant: Ms Weiner

Solicitors for the Applicant: RRR Lawyers

Counsel for the Respondent: Mr Messina

Solicitors for the Respondent: Viclaw Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Cruz & Cruz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6359 of 2016

MS CRUZ

Applicant

And

MR CRUZ

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting and property dispute.  The sole child of the parties is X, born (omitted) 2003 (‘X’).  The only property of any moment that the parties own is in India and there is a tiny amount of superannuation in Australia.  The mother proposes, in effect, that the child spend time with the father in accordance with her wishes (which will lead to no time being spent) and that the property in India be sold and the proceeds thereof divided 65/35 in her favour.  The father’s position is less clear.  As best I understand it, he wants to engage in counselling to enable his relationship with X to be re-established.  He appears to suggest that he would pay the mother $40,000 upon the sale of the property in India in two years time.  The mother also seeks spousal maintenance in the sum of $400 per week for two years.  The father proposes that spousal maintenance continue at the rate of $400 per month, as previously ordered by the Court. 

Agreed or uncontroversial facts

1. The father was born on (omitted) 1977 and the mother on (omitted) 1980.  They were both then, and remain, citizens of India.  There is a slight dispute, somewhat surprisingly, about the date of the marriage, but from the material annexed to the father’s affidavit, it seems to have been on 27 October 2001. 

2. In 2007, the father bought a property in (omitted), India for approximately A$43,000.  The property was the subject of a mortgage.  The father has deposed, and was not cross-examined about, an assertion that the property was bought with no financial contributions from the mother and all repayments on the mortgage have been made solely from the father’s bank account in India.  The father’s parents are retired and currently reside in the property. 

3. No sworn valuations have been obtained for the Indian property and, indeed, there is no direct evidence from anybody who is remotely qualified to give it, about this matter.  In the ultimate, the husband’s sworn Financial Statement dated 28 February 2017 allots a value to the Indian property of $131,186, with a mortgage of $10,693.  Under cross-examination, the father asserted a value of approximately $140,000 and a mortgage of $10,000.  I would interpolate and say I will accept those latter figures as concessions against interest. 

4. X, as earlier indicated, was born on (omitted) 2003 and it seems common cause that thereafter, the father continued to work and the mother devoted herself exclusively to home duties.  In November 2014, all three came to Australia and all three are now permanent residents. 

5. The father has remained in employment throughout the relationship and is presently employed at a salary of over $3,000 per week, on a contract which will come to an end in July 2017.  He is described in the contract document (exhibit A3) as an (occupation omitted). 

6. The parties separated in late 2015 or January 2016.  It is common cause that in early January 2016 (the precise dates are disputed) the mother and child left the matrimonial home and went to live, initially, with her sister.  The mother now has a one bedroom flat.  The father, on his own material, withdrew from the child for a period of time following separation and has only spent very limited amounts of time with her since.  He spent several nights with her in July 2016 while the mother was in hospital and, according to him, there was further time spent in August 2016. 

7. The mother obtained an interim Intervention Order on 13 October 2016 which is listed for final hearing on 31 March 2017. 

8. From exhibits C9 and C11 to the mother’s affidavit, sworn 28 February 2017, it is apparent that in January 2017, the father twice refused to look after the child while the mother was in hospital.  The reasons expressed are unconvincing on their face, including an alleged fear of the mother in the event that she were to find out where the father lives.  He has consented for the mother to send X to India for four weeks while the mother undergoes surgery.

The parties’ affidavit material

1. Much of what the parties say in their voluminous (and at times repetitive) affidavit material is, in fact, covered by the account of agreed matters set out above.  Rather than repeat the various snippets of individual additional information in the parties’ affidavits, it is appropriate to record matters as they arise in the parties’ oral evidence given at Court, as many of the assertions made from time to time prove to have been overtaken by events. 

The evidence of the mother

1. The mother was called and adopted her trial affidavit and Financial Statements as true and correct.  She is a homemaker and student.  She gave evidence denying that the father gave her $5,000 after separation (I have not dealt, nor do I propose to deal, with the parties’ minor disputes as to the extent of financial contributions and assistance given after separation.  The amounts involved are simply not sufficiently great to be worthy of any detailed analysis). 

2. Under cross-examination, the mother took issue with the amounts given to her by the father following separation.  She also took issue as to the character of moneys given to her.  She confirmed that she applied for an Intervention Order on 13 October 2016 and that the last time the child had been with the husband was on 9 September 2016. 

3. When asked why it was that the child had not spent any time with the father, she replied that her daughter was not comfortable with him.  The daughter is undertaking counselling at school and does not want to see her father. 

4. The mother is undertaking a (course omitted).  She cannot do lifting and therefore cannot work with children.  (employment omitted) is a good field of employment for her. 

5. She is to undertake a further medical assessment on 27 March 2017 and is due to have an operation on 8 August 2017.  After 27 March 2017, she may know more precisely what her medical problems are.

6. The primary thrust of cross-examination appeared to be an endeavour to establish that the Intervention Order applied for on 13 October 2016 was, as it were, contraindicated by the lack of time between the mother and the father since 9 September 2016.  As I endeavoured to make clear at the time, matters to do with the Intervention Order are matters for the State Court and not matters for me.  There was, however, no challenge to the extensive history of alleged family violence in the mother’s affidavit material.  This violence, which was said to extend as far as physical assault and included controlling behaviour, bad language and yelling at the mother, was simply not the subject of any challenge whatever. 

The evidence of Dr S

1. Dr S is a psychologist who has been treating both the mother and the child.  She adopted her affidavit as true and correct.  Under cross‑examination, she confirmed that the first time she saw the mother was in February 2015.  She does not meet her every week but sometimes there are phone or text contacts if the matter is serious.  The appointment had taken place through the Federation of Indian Associations of Victoria who, it appears, routinely refer people to Dr S who conducts work on a pro bono basis.  She has a minimum of four clients at any one time. 

The evidence of the father

1. The father adopted his affidavit of 6 September 2016 as true and correct.  He asserted that between August 2015 and January 2016 he had had normal access to his child.  From early January until 9 September 2016, most of his communications with his daughter had been electronic.  He spent time with his daughter on two consecutive evenings at the end of July 2016. 

2. The father confirmed he had not spent any time with his child since the September 2016 orders.  He had tried to contact his daughter but had had no response.  He was new to the country and had thought that the Intervention Order meant that he should not contact his child.  He was not aware that the daughter was being counselled.  He had not heard of Dr S until he read her affidavit.  He referred to the order for $400 per month of spousal maintenance made in September 2016.  His current contract is until 30 June 2017.

3. Under cross-examination, the father confirmed that separation took place in January 2016.  He saw his daughter for two days in July and then again in around August 2016.  

4. The father was taxed with the correspondence to which I have referred from the mother’s solicitors, seeking that he look after X, being exhibits C6 and 7 to the mother’s affidavit.  He replied that his safety was jeopardised and he was being spied on constantly. 

5. When cross-examined about the failure on his part, allegedly, to provide documentation relating to the purchase of his car in February 2015, the father confirmed that of the $64,000 purchase price, only $1,000 was provided by him; the rest was financed through (omitted). The father denied paying any extra money into his superannuation. 

6. He was cross-examined about his earnings and his hours of work and exhibit A2 is a series of wage slips and A3 is a copy of the contract.  He said his contract was not likely to be renewed.  He confirmed that his superannuation is approximately $18,000 as at October 2016, and his superannuation return was tendered as exhibit A5.

7. The father was cross-examined in detail about his expenditure, including substantial sums paid for food and the like, disclosed in his Part N Financial Statement.  It appears that he is paying arrears of child support at the rate of $900 per month until December 2017.  He has had two visits to (country omitted), one for business and one for a two-day holiday, it seems, to (omitted).  He did not agree to sell the property in India as his parents are residing there.  He said he had paid all financial contributions to the Indian property and, as earlier indicated, said that the property was worth approximately $140,000, with a mortgage of $10,000.

The submissions of counsel

1. Counsel for the father noted that the Court had ordered $400 spousal maintenance per month and submitted that this should continue until October 2017.  He suggested that the property in India should be sold by 2018.  He noted that superannuation for the father started in Australia in January 2015 and separation was in August 2015. 

2. Counsel for the mother noted that the father had made no attempt to see the child following separation.  The mother was not opposed to a process of counselling for the father and the child.  She pointed out, entirely accurately in my view, that there should have been a family report.  The mother was not opposed to overseas travel.

3. Coming to the question of spousal maintenance, counsel submitted that the father’s capacity to pay was clear and that spousal maintenance should last two years from now.  The property in India should be sold.  The mother was undertaking a (omitted) course.  The whole of superannuation available should be paid to the mother.  It is a very small amount.  If the property order is not complied with, she should receive it all, and if it is complied with, it should be split fifty/fifty. 

Brief observations about the credit of the parties

1. The mother was only in the witness box for a short time.  As I indicated earlier, the Court did not receive the benefit of any cross‑examination about a number of matters which, in my view, were important.  Notwithstanding that the mother’s version of the violence in the relationship was not challenged, I find it difficult to take seriously her assertions of ongoing fear of the father as expressed to Dr S.  Both while she was in the witness box, but more particularly while she was in the body of the Court, the mother’s demeanour was wholly unafraid.  Rather, she gazed at the father in a fixed way, indicative, at least as I saw it, of a considerable and ongoing anger with him.  The Court has to approach issues of demeanour with some care.  The mother was, after all, not cross-examined about her evidence in this regard.  Nonetheless, while, as I say, she was not significantly challenged, the clear picture I got was that the mother was not in any way scared of the father. 

2. It was also wholly plain that the mother is utterly opposed to the child spending time with the father.  This was clear from the brief answers that she gave about why it was that the child had not spent time with him.  As a more general comment, I would say that the mother was by no means wholly responsive to the questions put to her. 

3. Dr S struck me as entirely honest.  Nonetheless, she also struck me as being entirely partisan.  She has only heard one side of the story and, perhaps understandably, has fully accepted it.  The level of anxiety and concern expressed by the mother and, indeed, by X to her from time to time, needs to be seen in the context of the findings that I have made above about the mother’s demeanour.

4. The father impressed me as particularly meek and mild.  This does not mean that he may not have committed family violence, a matter to which I shall return.  Nonetheless, and once again noting the problems with demeanour evidence, the overall impression I got was consistent with the father’s assertions about his lack of desire to have the mother know where he lives.  He seemed to express a genuine fear of the mother. 

5. Nonetheless, the father’s evidence was extremely unconvincing when being asked as to why he had not come to Court to spend significant time with his child and why he had refused to look after her in the correspondence in January 2017.  Furthermore, his evidence about his expenditure was, in my view, given in a very unconvincing fashion. 

Parenting issues

1. Despite some subsequent statutory amendment, the statutory pathways indicated in Goode & Goode by the Full Court of the Family Court is, in my view, an appropriate starting point.

2. “Summary

   [65]  In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a)     the time the child spends with the parent includes both:

   i)(i) days that fall on weekends and holidays; and

   ii)(ii)     days that do not fall on weekends and holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   iii)(i) the child’s daily routine; and

   iv)(ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

Equal shared parental responsibility

1. The Court is, of course, required to consider making an order for equal shared parental responsibility unless there has been family violence or the making of such an order is not in the child’s best interests.

2. In this instance, as I find, there has been family violence (although not as much as the mother has asserted). Furthermore, the reality is that the father has scarcely seen the child since separation in early 2016, a period now of well over a year. If there is one thing that is entirely clear, it is that the interpersonal dynamic between the parents is exceptionally poor and their capacity to communicate in any kind of sensible way about the child’s future needs is really only assessable as nil. The mutual recrimination and general difficulty of communication revealed by the parties’ affidavit material makes this all too clear. As a matter of practical politics, it is the mother who is bringing this child up, and the chance of disturbing that regime in the near future is, effectively, nil. Given the existence of family violence and, more particularly, the impracticability in these circumstances of an order for equal shared parental responsibility, it is, in my view, in X’s best interests that the mother have sole parental responsibility. It should be noted that this is the position set out in the mother’s Amended Initiating Application filed 8 March 2017. Neither counsel, so far as I can recall (all the above recitations of evidence and submissions are taken from my notes) addressed the question of parental responsibility in terms at all. This leads to consideration of what orders are in the child’s best interests by reference to the matters in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’).

The primary considerations

1. The primary considerations set out in section 60CC(2) of the Act are, on the one hand, the benefit to the child of having a meaningful relationship with both of their parents; and on the other hand, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Pursuant to section 60CC(2A), the Court is to give greater weight to the latter criterion.

2. Here in principle everyone agrees that it is likely to be of benefit to X to have a relationship with both her mother and her father.  The difficulty is the question of family violence.  It is appropriate to address that matter in detail now. 

3. The mother’s unchallenged affidavit material deposes to significant family violence.  It should be noted, however, that there is only one allegation of assault said to have taken place in November 2015.  I note that the parties reconciled thereafter.  The affidavit asserts violence and verbal abuse more generally at paragraph 12 of the trial affidavit but, in truth, little is put forward as to the nature of the same.  Having seen both the parties in Court, I find that the more florid accounts given to Dr S are overstated.  Indeed, it should be noted that when looked at in detail, the disclosures made by the mother to Dr S are consistent with the limited history of one assault and abuse from time to time in the context of discussions about alleged extramarital affairs.  Much of the mother’s difficulties as expressed to Dr S reflect culturally based difficulties associated with her status as a single parent in Indian culture.  The disclosures apparently made to Dr S by X, once again, are consistent with a volatile incident when the issue of infidelity on the father’s part was raised, but do not really seem to me to express much more than that.

4. In saying this, it should be emphasised that the Court is not seeking to minimise or in any way condone family violence.  It goes without saying that all family violence is abhorrent.  Nonetheless, in view of the particular emphasis given to Dr S’s report, it is impossible not to have to evaluate the actual degree of family violence. 

5. Put shortly, there must have been a number of very unpleasant instances when the mother, who impressed me herself as being extremely volatile, lost her temper because of the father’s infidelities as she perceived them.  I have no doubt that the father yelled at and abused her on those occasions.  I find that he assaulted her on one occasion by slapping her, despite his denials.  Nonetheless, overall, the mother is not scared of the father (and I repeat that she reconciled after the slap) and if anything, it is the father who is scared of the mother. 

The additional considerations - section 60CC(3)(a)

1. The child has expressed views about her father to Dr S.  Her concerns have, however, been expressed very much in the context of a report writer and psychologist wholly attuned to the mother’s version of events.  I have no objective evidence about her views and, as counsel for the mother correctly submitted, the absence of a family report is a significant issue.  It is clear that the child has an excellent relationship with her mother, who is her primary carer.  It would seem entirely possible that the child has expressed a disinclination to see her father, not least because the mother would strongly encourage her to do so. 

Section 60CC(3)(b)

1. As already indicated, X has a loving and secure relationship with her primary carer, her mother.  Her relationship with her father is less satisfactory and, indeed, less clearly illuminated by the materials before the Court.  Given that both of the parents are from India and, as I understand it, any extended family is there, there do not appear to be relevant relationships with any other parties. 

Section 60CC(3)(c)

1. The mother is not open to any criticism in relation to the extent to which she has participated in making decisions about major long-term issues in relation with the child, spending time with and communicating with her.  The father is open to criticism under this heading.  He made a conscious decision, in effect, to withdraw from the child following separation for reasons which I find, at best, misconceived.  His refusal to take the child into his care when the mother is undergoing medical treatment likewise speaks strongly against him.  As I have earlier indicated, his failure to prosecute his case more energetically likewise suggests a curious degree of ambivalence.  Nonetheless, as I pointed out to counsel for the mother, in the end, the father has prosecuted his case to judgment.  This suggests that he does have a genuine desire to have a relationship with his daughter, albeit that his failure to prosecute it from time to time has scarcely helped him. 

Section 60CC(3)(ca)

1. The parties have a certain amount to say about the extent of financial support following separation, including child support.  The father is, as noted, paying off arrears of child support, but these may well have arisen because of the dramatic recent increase in his salary.  The father wholly provided for the family while they were together.  This is not a criterion in this case that attracts great weight.

Section 60CC(3)(d)

1. The father’s position as finally articulated is scarcely entirely clear.  In his response, he sought an extensive spend time regime.  Neither his only affidavit nor the submissions made on his behalf really clarify in any meaningful way precisely what he wants.  In the ultimate, as best I understand it, he seeks that a process of counselling be put into place to assist him re-engage his relationship with his daughter.  In these circumstances, and given that, as I understand it, the mother, through her counsel, agrees that counselling is acceptable, detailed consideration of the matters raised by subsection (3)(d) is inappropriate and, indeed, not possible. 

Section 60CC(3)(e)

1. There may well be practical difficulties involved in re-establishing the father’s relationship with X.  Expense, given his substantial salary, should not, however, be a difficulty. 

Section 60CC(3)(f)

1. The mother is well able to provide for the child’s physical and material needs.  Her attitude towards the father, as revealed both in her demeanour in Court and in what she told to Dr S, suggests that she may lack in sufficient insight to fully and properly answer X’s emotional and developmental needs.  The father clearly lacks insight and has not cared for the child, at the very least, for the last year. 

Section 60CC(3)(g)

1. While the matters raised by this subsection are important, the Court has little direct information as to the maturity of the child.  It seems clear that the parties’ Indian background operates significantly upon their view of the world (as revealed by the affidavit of Dr S) but in the absence of a family report, it is difficult for the Court to evaluate the various matters raised.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. This matter has already been traversed in considering the subsections above.

Section 60CC(3)(j)

1. Family violence, as earlier stated, is always important but this has already been dealt with.

Section 60CC(3)(k)

1. There is an interim family violence order in place but it appears to be heading to final hearing.  The result may well be known by the time this judgment is finally issued.

Section 60CC(3)(l)

1. I explored with both counsel the question as to whether the Court was in a position to make final orders.  As I understood the matter, both counsel urged me to make final orders.  Given that I am going to be ordering counselling, in effect, by consent of the parties, it seems, in my view, preferable in the ultimate to make the Court’s orders as interim orders.  The Court would wish to know what effect the counselling has and to maintain some form of ongoing control over whether the process is properly complied with, rather than having the matter return by way of contravention application. 

Section 60CC(3)(m)

1. There are no additional matters. 

Conclusion

1. Accordingly, and doing the best one can in an evidentiary landscape in which many features are, unfortunately, missing, the only order the Court will make in relation to parenting is that the mother have sole parental responsibility and that the parties attend counselling with an independent counsellor, with a view to improving the relationship between the father and the child.

Spousal maintenance

Property issues

1. As the High Court made clear in Stanford & Stanford (2012) 247 CLR 108 the Court’s first task is to identify the legal and equitable property interests of the parties and determine whether there should, indeed, be a property adjustment. Here the parties were in a relationship for some 14 or so years and each of them seek that there be a property division. It is immediately apparent that in these circumstances, the joint basis upon which the parties conducted their finances during the relationship has come to an end and it is therefore appropriate that there be a property adjustment.

The pool

1. Although the mother had much to say in her affidavit about the alleged non-disclosure on the part of the husband, I have no doubt that the husband has only the bank accounts revealed in his Financial Statement filed on 10 March 2017.  His Indian bank account is used to pay the mortgage in India.  His (omitted) Bank and (omitted) accounts have very little cash in them.  The mother’s financial position is no better. 

2. The father’s superannuation is now worth some $18,000 but was estimated at $3,461 (a somewhat precise figure) in his Financial Statement filed 7 September 2016. 

3. It is clear, as I find, having heard the father’s evidence, that the Nissan vehicle that he owns is encumbered by finance in excess of its value. 

4. In real terms, this leaves the property in India, the value of which is, as indicated, $130,000 net.

5. Neither party has led any persuasive evidence to establish the value of any chattels they may hold and each will simply have to retain what they have.

Contribution issues

1. Throughout the relationship, the father worked and the mother was a stay-at-home mum.  She has had to look after X for the vast bulk of the relationship.  She has done so largely on her own. 

2. In these circumstances, absent any other features of note relating to contribution issues, I assess the parties’ contributions as equal. 

Future needs

1. Both these parties are in generally unremarkable health, although I note that the mother is undergoing tests which are likely to make her position clearer in the relatively near future.  Even if, however, she needs to have an operation in August 2017, it does not seem that her health is likely to be seriously impaired over the longer term. 

2. The father earns a salary in excess of $3,000 per week.  Although he says, and I accept, that his contract will come to an end in July 2017, the fact is that he has been in paid employment throughout the entirety of the relationship.  There is no reason to suppose that such employment will not continue. 

3. By way of contrast, the mother is undertaking a course to enable her to work in the (omitted) industry.  While there is no expert evidence before me, I am prepared to accept that it is more probable than otherwise that her earnings in that regard will not, at any stage, approach those of the father.  She will have the predominant, if not total, care of the child on an ongoing basis.  In my opinion, bearing in mind that the only asset of any note has been wholly paid for by the father, a loading of some 10 per cent in the mother’s favour is prima facie reasonable. 

A practical outcome

1. As a matter of practical politics, the father will have to retain his Nissan (omitted) and pay for it himself.  Each of the parties will have to retain their chattels.

2. The mother’s final position is nuanced.  She clearly seeks the sale of the property in India but it is implicit in the submissions made by counsel that the difficulties of an order forcing the father to sell such a property, operating as it necessarily would, extraterritorially, are not insignificant. 

3. This is a case turning on a very particular set of facts.  As I have indicated, the application of the standard methodology would give the wife 60 per cent of the $130,000 net value of the property in India.  The father’s capacity to borrow such a sum must be open to question, given that the only real estate is overseas and that his employment will nominally come to an end in July of this year.  One would question whether a lending authority would lend him the almost $80,000 he would need to pay the wife some 60 per cent of $130,000. 

4. The position is further complicated by the fact that the father’s position is that the property should be sold in 2018, which represents an implicit concession that such an outcome is appropriate. 

5. The difficulty for the Court is, of course, that it is not possible for the Court readily to oversee the outcome of the sale process in India, which I strongly suspect would become embroiled in further dispute, given the fact that the father’s parents actually live in the property overseas. 

6. In the circumstances, in my view, it is appropriate to order the father to pay the mother the $78,000, which is 60 per cent of the Indian property.

7. This will give him ample time to make whatever arrangements he needs to make in respect of his parents.  I note that this will give him time to consolidate his employment in Australia, and should he do so at a salary anything like commensurate with his current one, it will be, in my view, more probable than otherwise that he will be able to borrow the money he needs to pay the mother out. 

8. In the event of default, however, I will make the order that I understand the mother to seek, namely that she receive all of the relatively small superannuation available. 

9. Such an outcome would not, of course, be just and equitable as I would find things, but as counsel for the mother, in my view, correct conceded, it is all the Court would be able to do in such circumstances.

10. In the event that the father does comply with the order to pay the mother the sum indicated, then the submission of the mother that superannuation should, in the circumstances, be equalised is, in my view, irresistible. 

Spousal maintenance

1. It is instantly apparent from the mother’s financial statement filed 8 March 2017, that her very modest income of some $800 per week (including child support and the current orders for spousal maintenance) is less than her needs.  Her part N expenses are uniformly modest and reasonable and, taken with her rent, she has weekly expenditure of some $950, a shortfall of approximately $150 per week.  The mother has deposed (para 73 to 76) as to the financial difficulties she faces.  She was not cross-examined about any of these matters.  I accept her evidence on these points.  The mother, of course, has the primary care and responsibility for the wellbeing of X. 

2. Given the disparity between the parties’ incomes, and the likely increasing expenses of providing for X as she develops into adolescence, in my view, it is entirely appropriate that the father pay spousal maintenance.  Looking at his most recent financial statement, part N, I note that he spends $300 a week on food entirely for himself, and alleges that he spends $150 on household supplies and $50 on household repairs.  Given that he is a tenant, the last expenditure beggars commonsense.  He further pays $125 per week on holidays. 

3. In my view, the father, who presently pays $100 a week, could easily and reasonably find an additional $300 per week out of this discretionary expenditure to pay for the benefit of his child and her mother.  In my view, that spousal maintenance should continue for a period of two years, as the mother seeks, this being a reasonable time, given her health and other difficulties, for her to re-establish herself. 

Conclusion

1. Thought will need to be given to the mechanics of the orders to be made.  The father will need to consider his position.  It may well be that he can relatively rapidly be in a position to inform the Court as to his capacity to meet the orders the Court is minded to make.  I will give the parties an opportunity to consider the matter and hear from them further.  Obviously, this being an interim set of orders in relation to parenting (and indeed possibly property matters also), the matter will require to be listed at a further date, in any event. 

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  6 April 2017