DAGAN & SADDLER
[2019] FCCA 3027
•25 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAGAN & SADDLER | [2019] FCCA 3027 |
| Catchwords: FAMILY LAW – Property – short marriage – whether it is just and equitable in all the circumstances to alter the property interests of the parties – whether a factory owned and used by the husband is subject to a loan from the husband’s father – contribution issues. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65Y, 75(2), 78, 79, 106A |
| Cases cited: A v A (2000) FCL 93-035 Bevan & Bevan [2013] FamCAFC 116 Kennon v Spry (2008) FLC 92-388 Mazorski v Albright [2007] FamCA 520 Stanford v Stanford (2012) FLC 93-518 Tait & Densmore [2007] FamCA 1383 |
| Applicant: | MR DAGAN |
| Respondent: | MS SADDLER |
| File Number: | DGC 2345 of 2015 |
| Judgment of: | Judge Small |
| Hearing dates: | 23, 24, 25, 26, 27 and 30 July 2018 |
| Date of Last Submission: | 24 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 25 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dunlop |
| Solicitors for the Applicant: | Roberts Beckwith |
| Counsel for the Respondent: | Mr Hoult with Mr Weerappah |
| Solicitors for the Respondent: | Carroll Goldsmith Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr S Taghdir |
| Solicitors for the Independent Children's Lawyer: | Taft Lawyers |
ORDERS
PARENTING ORDERS
All previous parenting orders in relation to the child X born … 2015 (“the child”) are hereby discharged.
The mother shall have sole parental responsibility for making decision about the child’s care, welfare and development in the areas of health (including medical treatment), religion and education.
The parties shall otherwise have equal shared parental responsibility for the child.
In the exercise of her sole parental responsibility for the child, the mother shall inform the father in writing within seven days of making any major decisions about the child’s education, religion, health and/or medical treatment.
The child shall live with the mother and the mother shall be at liberty to live in Suburb L or such other place as she might choose, provided that the child does not move more than 120 kilometres from the father’s home, save that if the father should then move further than 120 kilometres away from the mother, the mother shall be permitted to remain where she is then residing with the child.
The child shall spend time and communicate with the Father:
(a)until the child commences school:
(i) on each alternate weekend during school terms from 10:00a.m. on Friday, with the father to collect the child from her kindergarten, to 5:00 p.m. on Sunday, or 5:00 p.m. on Monday if the Monday is a public holiday, save that if the father is unable to collect the child from kindergarten on the Friday, time shall not commence until 10:00 a.m. on the Saturday, and changeover at the commencement of time shall occur at the Suburb A Police Station, H Street, Suburb A;
(ii) for four consecutive nights in each of the school term holidays by agreement between the parties, and failing agreement, from 5:00 p.m. on the first Saturday to 5:00 p.m. on the following Wednesday in even-numbered years, and from 5:00 p.m. on the Saturday at the end of the first week to 5:00 p.m. on the following Wednesday in odd-numbered years;
(iii) for one week of the long summer holidays each year by agreement between the parties, and failing agreement, from 5:00 p.m. on the second Saturday of the new year to 5:00 p.m. on the following Saturday;
(b)Commencing in the year that the child commences school:
(i) during school terms on each alternate weekend from the conclusion of school on Friday to 5:00pm on Sunday, or 5:00 p.m. on Monday if the Monday is a public holiday, save that if the father is unable to collect the child from school on the Friday afternoon, time shall not commence until 10:00 a.m. on the Saturday, and changeover at the commencement of time shall occur at the Suburb A Police Station, H Street, Suburb A;
(ii) for one week in each of the school term holidays by agreement between the parties and failing agreement from 10:00a.m. on the first Saturday to 10:00 a.m. on the second Saturday in odd-numbered years, and from 10:00 a.m. on the second Saturday to 10:00 a.m. on the third Saturday in even-numbered years;
(iii) for two weeks in the long summer holidays at the end of the first year that the child attends school by agreement between the parties, and failing agreement from 10:00 a.m. on the first Saturday of the new year to 5:00 p.m. on the Saturday two weeks later;
(iv) for half of the long summer holidays commencing at the end of the second year that the child attends school by agreement between the parties, and failing agreement for the first half in that year and in each alternate year thereafter, and for the second half in the next year and in each alternate year thereafter, and the long summer holidays shall be deemed to commence at 10:00 a.m. on the first Saturday and to conclude at 5:00 p.m. on the last Saturday;
(c)From 4:00 p.m. on 25 December to 4:00 p.m. on 26 December 2019 and in each alternate year thereafter;
(d)From 4:00pm on 24 December to 4:00pm on 25 December 2020 and in each alternate year thereafter;
(e)From the conclusion of school or 5:00 p.m. on the day before Good Friday to 5:00 p.m. on Easter Saturday in even-numbered years and from 5:00 p.m. on Easter Saturday to 5:00 p.m. on Easter Monday in odd-numbered years;
(f)From 5:00 p.m. on the day before Father’s Day to 5:00 p.m. on Father’s Day each year;
(g)For the father’s birthday as agreed between the parties each year and failing agreement from the conclusion of school for three hours if a school day and from 3:00 p.m. to 6:00 p.m. if a non-school day;
(h)for the child’s birthday:
(i)if the birthday falls on a school day, from the conclusion of school or 3:30 p.m. to 6:30 p.m. on the day before the birthday in odd-numbered years, and from the conclusion of school or 3:30 p.m. to 6:30 p.m. on the birthday in even-numbered years;
(ii)if the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in odd-numbered years and from 2:00 p.m. to 6 :00 p.m. in even-numbered years;
(i)By telephone, Facetime, Skype or other electronic means on each Tuesday and Thursday when the child is not otherwise in his care pursuant to these orders, at the father’s instigation between 4:00pm and 4:15pm, with the mother to provide a telephone number, Skype or Facetime address, and the father to place the call and the mother shall ensure that the child has access to a charged and properly working telephone, tablet or computer, that she is available to take the call, and that the child has privacy throughout the call;
All time the child spends with the father pursuant to paragraphs 6(a)(i) and 6(b)(i) hereof shall suspend during school holidays and recommence after the holidays as if the holidays had not intervened.
If necessary, the child’s time with the father shall suspend on the following occasions:
(a)From 4:00pm on 24 December to 4:00pm on 25 December 2019 and in each alternate year thereafter;
(b)From 4:00 p.m. on 25 December to 4:00 p.m. on 26 December 2020 and in each alternate year thereafter;
(c)From 5:00 p.m. on Orthodox Christmas Eve to 11:00 a.m. on the day after Orthodox Christmas Day each year;
(d)From 5:00 p.m. on the day before Orthodox Good Friday to 5:00 p.m. on Orthodox Easter Sunday each year;
(e)For the mother’s birthday as agreed between the parties each year and failing agreement from the conclusion of school for three hours if a school day and from 3:00 p.m. to 6:00 p.m. if a non-school day;
(f)For the child’s birthday:
(i) if the birthday falls on a school day, from the conclusion of school or 3:30 p.m. to 6:30 p.m. on the birthday in odd-numbered years and from 3:30p.m. to 6:30p.m. on the day before the birthday in even-numbered years;
(ii) if the birthday falls on a non-school day, from 10:00 a.m. to 2:00 p.m. in even-numbered years and from 2:00 p.m. to 6:00 p.m. in odd-numbered years;
(g)By telephone, Facetime, Skype or other electronic means on each Tuesday and Thursday when the child is not otherwise in the mother’s care pursuant to these orders, at the mother’s instigation between 4:00pm and 4:15pm with the father to provide a Skype or Facetime address, and the mother to place the call, and the father shall ensure that the child has access to a charged and properly working telephone, tablet or computer, that she is available to take the call and the child has privacy throughout the call.
Changeovers that do not take place at the child’s school or kindergarten on Fridays pursuant to these orders shall take place at the commencement of time, inside the Suburb A Police Station at H Street, Suburb A, or such other venue as the parties might agree in writing and at the Suburb J McDonalds’s restaurant, K Street, Suburb J at the conclusion of time.
The mother shall ensure that the child’s school makes available to the father, at his cost if any, all school reports, information about parent-teacher interviews and other school events, and information about all prizes or awards won by the child, and the father shall be at liberty to attend parent teacher interviews at a different time to the mother.
Subject to any protocols determined by the relevant organisation, the father shall be at liberty to attend any of the child’s school functions, sporting events, or extracurricular activities, save that the father shall not approach the mother or be within 20 metres of her at such functions or events, and he shall inform the mother of his intention to attend such events no later than 48 hours before they commence.
The mother shall inform the father of any serious illness or injury suffered by the child which requires hospitalisation, and she shall authorise any medical or allied practitioners who are treating the child to provide information to the father about the child’s treatment.
The father shall inform the mother as soon as practicable of any illness or injury suffered by the child while she is in his care, and of the contact details of any doctor treating the child, and he shall inform the treating doctor, if any, of the fact that the mother has sole parental responsibility for the child in matters of health and medical treatment.
Each party shall ensure that the other is informed as soon as is reasonably practicable, and in any event within 24 hours, of the following:
(a)any medication that has been prescribed for the child, including details as to dosage and method of application/ingestion; and
(b)any change in their contact details including mobile telephone number, email address, Skype address and the like.
That until further order each party, the Applicant father Mr Dagan born … 1978 (“the father”), and the Respondent mother Ms Saddler born … 1985 (“the mother”), and their servants and agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of X (also known as X) born … 2015, female, (“the child”) from the Commonwealth of Australia.
X (also known as X) be and is hereby restrained from leaving the Commonwealth of Australia.
AND IT IS REQUESTED that the Australian Federal Police give effect to the preceding order by placing the name of the child on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for a period of two years.
Upon expiration of the period referred to in Order 17 above, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watchlist.
The parties are hereby restrained by injunction from:
(a)criticising, insulting, belittling, or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain the effect of these parenting Orders to her, and from allowing her to remain in the presence or hearing of any third party who is engaging in such conduct; and
(c)allowing the child to access, read or have read to her any portion of the Court’s Reasons for Judgment in this matter.
The Order of Judge Small of 9 October 2015 appointing the Independent Children’s lawyer is hereby discharged.
Prior to either party initiating further parenting proceedings in this Court or in the Family Court of Australia, they shall attend upon a Family Dispute Resolution Practitioner and make a genuine attempt to resolve their differences.
BY CONSENT
THE COURT DECLARES THAT:
It is in the best interests of the child X born … 2015 to be known as X.
THE COURT ORDERS THAT:
The mother is hereby authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the child previously registered as X born … 2015 to X, and the said Registrar shall register the child’s new name as X.
THE COURT DIRECTS THAT:
A sealed copy of these orders be served by the mother upon the Registrar of Births, Deaths and Marriages who IS REQUESTED to give effect to them, and to any application made to the Registrar pursuant to them.
B. PROPERTY ORDERS
PURSUANT TO SECTION 78(1) OF THE FAMILY LAW ACT 1975 (Cth) THE COURT DECLARES THAT:
The husband holds his interest in the real property situated at and known as F Street, Suburb G in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”) as trustee on behalf of himself, his brothers Mr D and Mr C, and his sister Ms E, in equal shares.
The husband therefore currently owns a one quarter share in the real property, that share being valued at $142,500.
AND THE COURT ORDERS THAT:
Within 60 days of the date of these orders (“the due date”), the husband shall pay to the wife the sum of $42,750.00 (“the payment”).
Contemporaneously with the payment, the wife shall do all acts and things and sign all documents as might be necessary to remove any and all caveats she has placed over the real property.
In the event that the husband fails to make the payment by the due date, he shall immediately do all acts and things (including ensuring that the caveat placed on the real property by his father, Mr B, is removed) and sign all documents as might be necessary to place the real property on the market for sale (“the sale”), and upon completion of the sale, the sale proceeds shall be disbursed:
(a)First to pay all costs and commissions of the sale;
(b)Second to pay the wife such sum as may be necessary to ensure that she receives 30% of the parties’ property including superannuation interests, plus interest at the rate of 8.5% per annum from the due date to the date of payment;
(c)Third, the remainder to the husband, to be held by him on trust for himself and his siblings Mr D, Mr C, and Ms E in equal shares.
Should either party fail to comply with their respective obligations under paragraphs 27 to 29 hereof, then pursuant to s.106A of the Act a Registrar of the Federal Circuit Court of Australia at Melbourne shall be appointed to sign any and all such documents on his or her behalf as may be necessary to give effect to these orders, and the Registrar shall be satisfied as to his or her authority under this order upon the complying party or his/her legal representative filing an Affidavit setting out the defaulting party’s failure to comply.
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) in the possession of such party as at the date of these Orders;
(b) monies standing to the credit of the parties in any joint bank account shall be divided between the parties in the proportion of thirty per cent to the wife and seventy per cent to the husband;
(c) insurance policies remain the sole property of the owner named thereon;
(d) each party shall 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;
(e) each party forgoes any claim they may have to any inheritances to which the other party is entitled either presently or in the future; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
A. If, after the expiration of the period set out in Order 17 above, any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
IT IS NOTED that publication of this judgment under the pseudonym Dagan & Saddler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2345 of 2015
| MR DAGAN |
Applicant
And
| MS SADDLER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property dispute between Mr Dagan (“Mr Dagan” or “the father” or “the husband”) and Ms Saddler (“Ms Saddler” or “the mother” or “the wife”).
There is one child of the marriage, X born … 2015 (“X” or “the child”).
X lives with her mother and has spent regular time with her father since he obtained orders from this Court on 9 October 2015, the parties having separated in July 2015 when X was only weeks old.
The mother seeks orders that she have sole parental responsibility for X, and for the child to remain living with her in Suburb L and spend time with the father in Suburb W for one overnight per fortnight.
She also seeks permission to change the child’s surname from “Dagan” to “Dagan-Saddler”. I note that that proposal was accepted by the father while giving oral evidence at trial, and I will therefore make that order by consent.
The wife also seeks orders for a property settlement which would see the husband’s factory sold and the wife retaining the nett proceeds of sale.
The father seeks orders that the parties have equal shared parental responsibility for the child and that the child remain living with the mother and spend substantial and significant time with him on each alternate weekend, half of school holidays and special occasions.
He seeks a division of the matrimonial asset pool in the proportions of 90% to him and 10% to the wife.
The issues to be decided in this case, agreed between the bar and bench at the commencement of the trial, are:
PARENTING
A.Whether the parties should equally share parental responsibility for X or whether that responsibility should solely rest with Ms Saddler
B.How much time X should spend with Mr Dagan and in what configuration
C.Where changeover should take place
D.Whether Ms Saddler should be permitted to travel internationally with X
E.Whether Ms Saddler and X ought to be permitted to continue to live in Suburb L indefinitely
PROPERTY
A.Whether it is just and equitable to alter the parties’ property interests
B.If it is just and equitable, what are the property interests of the parties and what is their value?
C.What were the parties’ contributions to the property?
D.Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
E.In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
Background
Mr Dagan was born on … 1978 in Australia and is therefore now 41 years old. He is self-employed as a tradesman at his business N. He is in good health. Mr Dagan has not re-partnered and lives at his parents’ home.
Ms Saddler was born on … 1985 in Country T in what was then the Country R, and is therefore now 34 years of age. She is currently engaged in home duties. In Country T, she obtained qualifications as a health care worker. Ms Saddler worked as a health care worker in Australia prior to X’s birth. It was her evidence at trial that she intends to return to study in order to obtain qualifications when X starts primary school. At the time of the trial, she resided in rental accommodation in Suburb W, but orders were made at the conclusion of trial permitting her to move to Suburb L with her new partner.
Ms Saddler has repartnered with Mr O (“Mr O”). Mr O does not have children. At the time of the trial, Ms Saddler and Mr O informed the Court that, subject to the Court’s permission, they intended to move to Suburb L in … 2018.
The parties met in … 2012 whilst Ms Saddler was visiting Melbourne, and formed a relationship. Ms Saddler returned to Country T on … 2013 due to her visa expiring. When Ms Saddler accepted Mr Dagan’s proposal of marriage, she applied for a Prospective Marriage Visa, which was eventually granted. She returned to Australia and commenced cohabitation with Mr Dagan in … 2014.
The parties were married on … 2014. X, who was born on … 2015, is the only child of the marriage.
The parties separated on 23 July 2015, and their divorce order was made final on 8 July 2017.
At the time of separation, the parties, X and Ms Saddler’s mother Ms M (“the maternal grandmother” or “Ms M”), who had come to Australia from Country T to assist her daughter and newborn granddaughter, had been living in an apartment in Suburb P for about a month or so. Unknown to them, the property belongs to the Department of Housing, and the tenant had sub-let it to Mr Dagan unlawfully.
The mother, X and the maternal grandmother were collected from that property by a taxi organised by a women’s family violence service and taken to a women’s refuge, where they stayed for some time before finding appropriate rental accommodation.
There is a Family Violence Intervention order in place which names Mr Dagan as the respondent and Ms Saddler, Ms M and X as Affected Family Members.
X has lived with her mother since her birth, and has spent regular time with her father pursuant to court orders since October 2015.
Procedural History
The matter commenced with Mr Dagan filing an Initiating Application, Affidavit in Support and Notice of Risk on 27 July 2015 seeking a recovery order and an Airport Watchlist Order. He filed an Application in a Case and an Affidavit in Support on 28 July 2015.
The mother filed a Response, Affidavit in Support, Notice of Risk and Financial Statement on 9 September 2015.
Interim parenting orders were made by consent on 9 October 2015. On that day, I ordered that the child spend time with the Husband twice per week for approximately two hours each time with such time be supervised by a professional supervisor. I also ordered that an Independent Children’s Lawyer be appointed.
Orders were made in Chambers on 25 November 2015 for the parties to attend a Conciliation Conference on 11 February 2016. The matter was otherwise adjourned for Mention on 24 February 2016.
The parties attended the Conciliation Conference on 11 February 2016, however were unable to reach agreement in relation to property matters at that time.
On 24 February 2016, interim parenting orders were made by consent for the father to spend unsupervised time with X. I ordered the preparation of a Family Report, and adjourned the matter for an Interim Defended Hearing on 15 September 2016 with respect to parenting matters only.
On 15 September 2016, interim parenting orders were made by consent for the father to spend supervised time with X multiple times per week and an updated Family Report was ordered. I adjourned the matter for a Final Hearing on 10 May 2017.
On 14 November 2016, the Wife filed an Application in a Case. On 19 December 2016, the Husband filed a Contravention Application and an Application in a Case. On 24 January 2017, the Wife filed a second Application in a Case.
On 15 February 2017, the matter came before me for Directions. I vacated the Final Hearing listed for 10 May 2017 and a Duty List hearing date of 18 April 2017. I adjourned the matter for an Interim Defended Hearing on 10 May 2017 and ordered that each party make, file and serve an updated Financial Statement no later than 1 May 2017. Otherwise, I ordered that the Orders of 15 September 2016 remain in full force and effect.
When the matter came before me for an Interim Hearing on 10 May 2017, interim parenting orders were made by consent. I ordered an updated Family Report to be released by 31 March 2018. I adjourned the Contravention Application for Final Hearing on 17 November 2017 and the remaining Applications for Final Hearing on 23 July 2018 for an estimated hearing time of 3 days.
On 17 November 2017 the Contravention Application was withdrawn and further parenting orders were made by consent, those orders extending X’s time with her father. A Notation was made to those orders to the effect that the husband believed that the wife had indeed contravened the previous orders, and that the wife asserted that she had a reasonable excuse for having done so.
The Wife filed an Application in a Case on 21 May 2018. The Husband filed a Response to an Application in a Case on 21 June 2018. The Application in a Case was heard before me as an abridgment in the Duty List on 25 June 2018. Orders were made by consent for the Husband to file an updated Financial Statement and an Affidavit within 7 days and to provide full and frank disclosure.
The Husband filed an updated Financial Statement and an Affidavit on 2 July 2018. The Wife filed an Amended Response and an Affidavits in Support on 9 July 2018. The Husband also filed an Affidavit on 9 July 2018.
The Wife filed an Outline of Case on 18 July 2018. The Husband and Independent Children’s Lawyer filed their Outlines of Case on 20 July 2018 and 22 July 2018 respectively.
Final Hearing commenced on 23 July 2018 and despite it having been listed for three days, the trial ran for six days. The mother, father and Independent Children’s Lawyer were all represented by counsel.
Witnesses at trial included the father, the mother, the father’s brother Mr C, the paternal grandfather Mr B, the maternal grandmother, the mother’s partner Mr O (“Mr O”) and the family report writer, Ms Q (“Ms Q”).
Following the conclusion of evidence on 30 July 2018, I made Interim Orders allowing the mother to relocate with X to Suburb L, and for X to spend time with her father in a regime of graduated day time ultimately leading to overnight time on weekends. I ordered that changeover occur at the Suburb A Police Station.
I otherwise reserved my decision.
Delays in judgement delivery
At the conclusion of evidence on 30 July 2018, Counsel for the mother informed the Court that the parties’ counsel would confer and set a timetable for the filing of written final submissions, and he informed the Court that all written submissions would be filed by 30 September 2018.
The mother’s final submissions were not filed until 26 October 2018 and the father’s not until 21 December 2018, almost five months after the conclusion of the trial.
The Independent Children’s Lawyer’s submissions were filed on 24 January 2019, almost six months after the conclusion of trial.
As it is my practice not to write judgments until all final submissions have been received, this matter lost considerable priority in my list of reserved judgments due to the parties’ lawyers and the Independent Children’s Lawyer not filing their final submissions within the timeframe stated to the Court. In fact, six matters whose final submissions were received between the end of September 2018 and 24 January 2019 took precedence over this matter.
In addition, the mother filed an Application in a Case on 8 February 2019, which meant that I was unable to continue writing this judgment until that Application had been resolved by another judge. Again, this matter lost its place in the “queue”.
On 22 August 2019, the mother’s Application, and the father’s Response to an Application in a Case, were “withdrawn and dismissed”, those orders being made by consent before Her Honour Judge Mercuri.
The delay in delivering judgment in this matter is most unfortunate, and the parties deserve to know the reasons for it.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the six-day trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial on all six days that it ran, as well as counsels’ written submissions, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Parenting issues
Issue A: Whether the parties should equally share parental responsibility for X or whether that responsibility should solely rest with Ms Saddler
The mother seeks an order that she have sole parental responsibility for X, while the father wishes to share that responsibility with X’s mother.
The Independent Children’s Lawyer’s position is that the mother should have sole parental responsibility for X with respect to health and education.
The Law
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
Section 61DA(4) states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to equally share parental responsibility for that child.
In this case, the mother alleges quite serious family violence: sexual; physical; emotional; and financial; against the father, in addition to emotional abuse by his family. She says that she was subjected to that abuse during the marriage and that the father’s abusive behaviour and attitude towards her have continued since separation.
The allegations set out in her Affidavit material include, but are not exhaustive of the following behaviours:
· The husband’s family excluded her from conversations, did not allow her to sit with the family for meals, and told her to forget about her Country R culture and religion as she was now in Australia.
· While she and the husband lived in a bungalow/shed on the property owned by the husband’s parents, it had no running water and she had to ask permission to enter the house to bathe or use the toilet.
· As soon as she arrived in Australia in 2014, the husband and his family harassed her to find work.
· The husband checked her mobile telephone accounts and “commenced ringing and messaging my contacts after he discovered I had received incoming calls or sms”. He also answered her telephone if he was at home when it rang, preventing her from doing so.
· The husband expected her to clean up after him, including doing all his washing, cleaning, shopping and cooking, telling her that it was her job to perform these tasks, despite her working outside the home for some of that time.
· The husband gambled frequently, spending large amounts of money at poker machine venues while telling her that she could not have money because he was saving for a house. He would sometimes give her small amounts of money to do the food shopping.
· The husband swore at her, screamed at her, and belittled her in front of his family and friends, referring to her as “Potato” or “Fruit Loop”.
· The husband whistled at her as though calling his dog when he wanted her attention.
· The husband refused to allow her to attend English lessons.
· The husband smashed her laptop screen when he was angry, and at times, threw her mobile telephone to the floor.
· The husband assaulted her when angry, pushing her into furniture or a wall to the extent that she suffered bruising, including while she was pregnant with X.
· The husband threatened to hurt her further on multiple occasions.
· The husband refused to assist her to have her health care qualifications recognised in Australia, telling her she was “not smart enough to be a health care worker in Australia anyway”.
· The husband told her that she was “sick and stupid and that he was perfect and that (she) should be very grateful and happy just to be around him”.
· The husband controlled the time she spent on Skype with her parents in Country T, telling her that the internet was expensive.
· When she told the husband that she was unhappy, he misinterpreted her statements as suicide threats and accused her of not being “normal”.
· The husband waited four months to apply to change her visa from Prospective Marriage Visa to a Spouse Visa, saying he was “trying (her) out”.
· The husband took money from her earnings and deposited it into his own account after telling her he would open a joint account for the parties to save for a house.
· The husband complained that she sent small amounts of her earnings to her parents in the Country T, saying it was like “throwing money to the wind”.
· The husband told her that her parents did not love her, and that they had “tried to get rid of (her) by sending (her) to Australia”.
· When the husband took her to the doctor to talk about her stress, he commandeered the conversation, telling the doctor that she had “mental issues i.e. depression, bulimia, anxiety disorder and suicidal thoughts”, so that she was unable to tell the doctor about the reality of her living conditions.
· The husband insisted that she see a psychologist for counselling, and the husband chose the psychologist, refusing to allow her any say in that matter. The husband told her that he would know what she said to the psychologist.
· The husband had intercourse with her against her will on multiple occasions.
It was her evidence at trial that she is still very afraid of Mr Dagan and wants nothing to do with him. Her presentation at trial was certainly consistent with that evidence.
At trial, the wife, who gave her evidence with the assistance of a Country R interpreter[1], was cross-examined about this issue at some length.
[1] Ms Saddler gave most of her oral evidence in English, although there were times when she referred to the interpreter for clarification of concepts.
It was her evidence that: “I didn’t know who Mr Dagan was till we start live together. Even till we get married, I didn’t know who Mr Dagan was” because “he pretend to be one person and then he end up being completely different person that I thought he was”.
She said that she had kept a diary of abusive incidents to “make me feel better, because at least I can tell it to the diary”.
She denied that she had exaggerated her allegations of violence and abuse, saying that she had not mentioned her allegation that the husband had raped her during the marriage until giving her police statement in February 2018, because: “it has taken me lots of time and courage to talk about it. It’s very private. It’s very stressful for me to remember that and it’s – it’s not comfortable at all for me to talk about it. It’s not easy. It was very difficult for me to make the statement”.
I note, in this context, that during the trial, the Court was informed that Mr Dagan had been asked to attend a police station to answer questions about the allegations raised in the wife’s police statement. The Court is unaware whether Mr Dagan was ever charged with any sexual offences against Ms Saddler. I include this evidence here simply as one of many allegations of family violence made by the wife against the husband in this case.
When informed that the husband had been asked to attend for an interview with the police, I made it clear to the parties and counsel that I would not be making any finding of fact in relation to that particular allegation in these proceedings.
Later in her evidence, the wife said she had not told her parents about the husband’s abuse because she had previously had an abusive boyfriend who had met her parents, and they had been reluctant to support her moving to Australia to be with Mr Dagan, whom they had not met. It was her evidence that: “I felt a bit ashamed and I didn’t want to tell my parents that it doesn’t work out”.
She stated that she took her marriage vows very seriously and that she did not “just marry to marry”. It was her evidence that she had loved her husband, and that she wanted to make the relationship work, believing that “maybe he will change. Maybe he will, like, understand, take my side”. I found that evidence quite compelling. It is typical of evidence heard whenever the survivors of family violence speak about their experiences.
The husband completely denies any of the abusive behaviour set out in the wife’s Affidavits, believing himself to have treated his wife with care and attention. It was his evidence that he was surprised to come home on 23 July 2015 to find his wife, daughter and mother-in-law had left.
At trial, he emphatically denied ever physically abusing his wife, or screaming at her, or verbally abusing her, or threatening her.
He was defensive about the bungalow/shed that the parties lived in until they left to live in an apartment owned by the Department of Housing, saying that he saw nothing wrong with it and that it was “a decent place”.
He denied that the wife was unwelcome in his parents’ home or that he had mistreated her in any way. He said allegations that he had physically abused her were “fucking disgusting” (sic).
Ms Saddler impressed as an intelligent and artless witness. She became emotional at times, which was absolutely understandable given her evidence that her husband led her to believe that she was coming to Australia to marry a man who owned his own property and who was a successful businessman, only to find herself living in a bungalow/shed without a kitchen, bathroom, toilet or running water in circumstances where she felt trapped and isolated.
I did not gain the impression that she had concocted her evidence about the abuse she suffered as a result of her disappointment at the reality of her living conditions. I found her a credible witness, and where her evidence about family violence conflicts with that of the husband, I prefer her evidence.
The father, on the other hand, shows little insight into the meaning of the term “family violence”, insisting that he had never “laid a hand on” his wife and “never pushed her, never done nothing”. He showed no understanding of the emotional and psychological impact of his behaviour, and that of his family, on the mother, and while he clearly loves X and wants only what is best for her, he impressed as a man who has considerable contempt for his wife and who expected her to obey him in all things. He is not a particularly sophisticated man, and I found him a defensive witness who minimised the family violence, in the form of physical, financial and emotional abuse, that he inflicted on his wife.
I note that Mr Dagan’s evidence was that he is a member of the Australian Brotherhood of Families[2] and its political party Australian Better Families.
[2] Mr Dagan was asked what “ABF” meant and gave this definition. However, it is my understanding that “ABF” in this context stands for “Australian Brotherhood of Fathers”.
At trial, several postings he had made as part of online conversations with other members of those and other similar groups were put to him. He conceded that he had posted the following statements:
· Look up Women’s Housing Limited financials as it’s a charity. 36 million reasons to keep saying screw the men, we’re making serious coin.
· Next thing you need to push is the Family Court’s cash for kids policy. Poor men are treated as second-class citizens and pay everything and end up broke or dead to see their kids after a separation.
· Here’s an idea. Cut funding from Women’s Legal Services etcetera, so they don’t help and encourage women to lie to gain financial advantage in the Family Court proceedings. You only need to sit at a courthouse and then watch them walk out of court high-fiving each other “yeah, we got him”. Majority are not in fear of man but courts aid them in hurting men.
· Therein lies the problem. Silence the men and collect the cash. Get out on the streets and talk to homeless men, why they are homeless, comes back to Family Court stripping them broke and stealing his children. I’m speaking from experience, not hearsay.
· Yet when a young girl kills herself from bullying (rest in peace), the Prime Minister gets on TV and gives a speech condemning it. I don’t mean to be taken the wrong way, but what about the bullying from Child Support Agency and Family Court towards fathers, leading (sic in transcript) fathers no other way out from the constant bullying from said government departments end their lives.
· Domestic violence has no gender. One Nation believes that a fair and just system is – until it’s found for both parties to be fair and just regarding family law we’ll see a continual rise of domestic violence and suicide and murders associated with custody battles.
Mr Dagan did not resile from the sentiments of any of those postings at trial, saying that “Australian Better Families” was not “a men’s thing”, but that it was “fighting for equal rights and fairness”. He specifically denied that the statements indicated a hatred of or a contempt for women, or a “complete disrespect for the court and the legal system”. I am unconvinced by that evidence.
In all the above circumstances, I am satisfied that there are reasonable grounds to believe that the father has committed acts of abuse against the mother which fall under the definition of family violence in s.4AB of the Act.
Therefore, the presumption of equal shared parental responsibility does not apply.
The question then becomes whether it is in X’s best interests for her parents to have equal shared parental responsibility for her.
For the reasons set out in paragraphs 85 to 185 of these Reasons, I find that it is not in X’s best interests for her parents to equally share responsibility for making major decisions about her life, especially in the areas of education, health and medical treatment, and religion.
It is clear from the evidence before the court that an order for equal shared parental responsibility would simply create further fertile ground on which these parties could play out their dispute in relation to X’s care.
In particular, it is likely that the father might use the connection with the mother which is necessary for the parties to exercise equal shared parental responsibility, in order to further abuse her emotionally and psychologically.
The parties appear incapable of consulting each other in order to come to agreement about X’s schooling or her health needs, and several examples of that fractious relationship were provided at trial.
In addition, the mother follows the Country R religion, and had X baptised into that church when she was an infant.
The father follows no religion and was critical of the mother for having X baptised.
As this could be yet another area where the parties are likely to be unable to agree, and as X lives with her mother, it is appropriate that she have sole parental responsibility in matters of religion.
Decision: Issue A
In the circumstances set out above, where there is no contention between the parties that X will continue to live with her mother, and there is little communication between the parties, I will make an order that the mother have sole parental responsibility for her in the areas of education, health and medical treatment, and religion, although I will require her to advise the father of all major decisions made in those areas. I will otherwise make an order that the parties share parental responsibility for X.
Issue B: How much time X should spend with Mr Dagan and in what configuration?
The father seeks orders that he spend time with X in a gradually increasing regime whereby she would eventually spend time with him from 10:00 a.m. on Friday to 6:00 p.m. on Sunday on each alternate weekend until she attends school, and for half of all school term holidays and for two weeks in the long summer holidays each year. He also seeks time with X on special occasions such as birthdays, Christmas, Easter and Fathers’ Day. The father’s written submissions do not reveal what he seeks in terms of regular fortnightly time with X once she begins school.
The mother seeks orders that would allow for X to spend time with her father for one overnight visit per fortnight.
The Law
An order providing for a child to spend time with a parent is a parenting order[3].
[3] See s.64B(1)(a) and s.64B(2)(b)
The law in relation to parenting orders is found in Division 5 of Part VII of the Act.
S. 60B sets out the objects and principles of Part VII and I set them out here for the benefit of the parties.
Section 60B(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 and 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.
Section 60B(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 states that when deciding whether to make a parenting order, the court must regard the best interests of the child as its paramount consideration.
Section 60CC then sets out the factors the court must consider when deciding what orders would be in the child’s best interests, and I will address each of those factors in turn.
There are two primary considerations set out in s.60CC(2) as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time.
S.60CC (2A) states that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b).
That is, while I must make orders which allow for meaningful relationships between X and her parents to flourish, my main concern must be to ensure that she is protected from any harm, either directly, or that caused by being exposed to any conflict in her parents’ relationship.
In this context I note that exposing a child to family violence is an act of child abuse under s4 of the Act.
S.60CC(3) then sets out 14 “Additional considerations” as follows:
(3) Additional considerations are:
(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;
X is not said to have expressed a considered view of her living arrangements, and even if she were to do so, that view would be given little weight because of her young age.
(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);
It is clear from the evidence before the Court, in the form of each parent’s evidence, and the evidence contained in the Family Report and in the report of the contact supervisor, that X has a positive and loving relationship with both her parents, and with her maternal and paternal grandparents.
Of course, her relationship with her paternal grandparents is closer, as she sees them whenever she is in her father’s care.
(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; and
(iii) to communicate with the child;
I note that the parties separated when X was only one month old, so there was little opportunity for them to develop any kind of positive co-parenting relationship as a couple.
It is the mother’s evidence that the father took little interest in X during that first month in terms of spending time with her or assisting with her care.
The mother says that the father was domineering and critical of her parenting during those few weeks, and that he seemed to see X as a possession. She says he was rude to her mother, who had come to Australia from Country T to assist her in her first weeks of motherhood, and that he took his mother’s advice about the way the parties should care for X over her own.
The father denies those allegations and says he was a loving, caring and attentive father in the first month of X’s life, and ever since.
After separation, the mother unilaterally decided to have X baptised into the Country R Church, a decision of which Mr Dagan was very critical, saying he was not consulted or indeed even informed about her baptism until after the event. While Mr Dagan does not profess to be a religious man himself, it would be usual for such decisions to be made jointly by a child’s parents.
Since separation, the father has taken every possible chance to spend time with X, including by way of instituting these proceedings, although he criticises and blames the mother for any difficulties he has experienced in that regard.
As far as the Court is aware, and certainly at the time of trial, X had never spent a night away from her mother, and there is no doubt that Ms Saddler has been her primary carer since her birth.
(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;
The mother predominantly supports X financially, with some assistance from the father, whose uncontroverted evidence at trial was that he pays child support of $202.00 per month, despite his Child Support Assessment from the Department of Human Services (Child Support) being only $34.00 per month.
The father acknowledged under cross-examination that his contribution was “not much”, but then said “and it’s not much for me to live on either”. I note, in that context, that Mr Dagan is self-employed.
The father pays for X’s immediate needs when she is in his care, but otherwise the mother is almost totally responsible for her financial support.
(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;
There is no suggestion that X will be separated from either parent. Indeed, the evidence before the Court indicates that X’s time with her father should increase on a gradual basis, to the extent that that is practicable given the distance between the parties’ residences.
(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;
Mr Dagan lives in Suburb S and Ms Saddler lives in Suburb L. The distance between those places is about 107 kilometres. It is therefore significant in terms of the amount of time Mr Dagan might spend with X, especially during school terms.
That difficulty is exacerbated by the fact that the mother does not hold a driver’s licence and is dependent on public transport while her partner, Mr O, is at work.
It is Ms Saddler’s evidence that it would take her about an hour-and-a-half to travel by public transport to the current changeover point at Suburb A Police Station on the corner of H Street, Suburb A during the week. She and X would have to walk, then catch an infrequent bus to Suburb L station, where they would catch the train to the city. That trip is tiring for X, and it is for that reason that the current arrangements provide only for weekend changeovers in the city, when Mr O can assist her with transport.
(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;
There is little, if any evidence to suggest that either parent is unable to provide for X’s material needs. She is appropriately housed, fed, clothed and socially engaged.
However, there is some evidence to give the Court concern for her emotional wellbeing.
The continuing dispute between her parents does not help her develop as strongly as she otherwise might, and unless each party ensures that there is no criticism of the other party in X’s presence or hearing, she will grow up confused and conflicted about her identity and her place in the world.
It is vital, therefore, that both parents speak of each other in neutral or positive terms so that X can grow to maturity knowing that both parents (and both sets of grandparents) love her and will protect her from harm.
It is also necessary for both parties to ensure that as X grows older and goes to school, she is encouraged in her academic endeavours to achieve at her maximum potential, whatever that level of education might be.
(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;
The father does not impress as a particularly mature man.
He still lives with his parents in his forties and pays no board or living expenses while doing so. There is no suggestion that that situation might change in the future, and it is likely, therefore, that X will always spend time with him at the home of her grandparents unless she is taken away on holidays.
Mr Dagan is self-employed, but (on his evidence) does not earn a particularly significant income, as he is not a registered tradesman.
Mr Dagan’s statements about women in general, and the “Family Court”, set out elsewhere in these Reasons, do not reveal a man of maturity or deep thinking, and as X will grow to be a woman, his views of women are particularly concerning. Mr Dagan would do well to think carefully about what he is teaching his daughter about her identity as a female child when he criticises her mother, and women in general.
Mr Dagan was ordered to attend a parenting program during these proceedings but failed to do so. He has therefore been entirely dependent on his family in learning how to look after X’s needs.
That is not to be seen as a criticism of Mr Dagan’s family. They have been involved in X’s life from the beginning, and clearly love her.
However, there is some evidence to show that they have not been prepared to see the father in anything but a positive light, and he would benefit from some positive criticism in relation to his level of maturity.
The mother behaves in a more mature way than the father does, despite her being some years his junior. She is more measured in her thinking and speech, and appears more able to consider other points of view than her own. She is also impresses as more able to plan a positive future for her daughter.
She has committed her life to X’s care, and hopes to study in order to support her. I note in that context that Ms Saddler was a qualified health care worker in Country T.
The mother is from Country T and her first language is Country R. X therefore has a rich cultural history to experience, and that part of her identity will no doubt be encouraged by her mother and her maternal family.
It is important that X's Country T heritage is not criticised or denigrated by her father and his family. It is part of her identity, and if she is made to feel uncomfortable about it, her emotional development may suffer as a result.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
On 15 September 2016, the father was ordered to attend a post-separation parenting course. At the time of trial, in July 2018, he had not complied with that order.
The mother had complied with an identical order for her to attend such a course.
When asked why he had not complied, he responded: “Well, I didn’t think it was ordered. Like, there has been so many orders and that, you try to keep up with it – you’ve obviously seen the amount of paperwork you get flooded with and I’ve obviously missed it”.
The following exchange then took place between the bench and the father:
Her Honour: That shows a fair contempt for court orders, doesn’t it?
Mr Dagan: I’ve – to be honest I’ve probably forgot to do it. I didn’t mean not to do it. There is so many court orders. Like, some cases you go it says court orders (sic in transcript) – previous ones are dismissed. I’ve probably got confused in the amount of what of – what it is – mentions.
Her Honour: You see, you’re the one who brought the matter to court Mr Dagan.
Mr Dagan: Yes.
Her Honour: You’re the one who asked the court to make orders and now when the court made an order, which is a pretty significant order […] you just haven’t complied with it.
Mr Dagan: I admit that I haven’t done an after separation course.
I gained the impression that Mr Dagan simply did not see that such a course might be beneficial not only to him, but to his daughter. Indeed, throughout his evidence he impressed as a man who thought he knew everything he needed to know in relation to parenting, despite his own evidence, corroborated by the mother, that he often asked his own mother for help in that area in the month or so between X’s birth and the parties’ separation.
I have already stated that exposing a child to family violence is an act of child abuse in itself under the Act, so if what Ms Saddler says in relation to Mr Dagan’s abusive behaviour during that month is true, he has little insight into how a parent ought to behave.
It is often said in this Court that while a party might have committed acts of family violence against the other party, the first party has never been abusive to the child or children.
I have said many times from the bench, paraphrasing a professor of law at Melbourne University, that it is impossible for a person to be an abusive partner and a good parent at the same time.
Mr Dagan’s rather cavalier attitude to the effect on X of his behaviour towards her mother does not display a mature attitude either to X’s welfare, or to his responsibilities as a parent.
The responsibilities of parenthood do not end at the point where a child has been provided basic housing, food, clothes, education and social skills. For a parent to be a responsible parent, he or she must also provide a positive role model for the child as a party to a relationship and as a citizen in our community[4]. It is very difficult for a parent to do that if there is continual conflict between the parents in relation to the child’s care and welfare.
[4] See Tait & Densmore [2007] FamCA 1383 per Cronin J
Ms Saddler has not behaved perfectly in terms of her parental responsibilities either, in that she had X baptised without any reference to X’s father. Otherwise, she has shown an entirely appropriate and protective attitude to both X and to her responsibilities as X’s parent.
(j) any family violence involving the child or a member of the child’s family;
I have already discussed some instances of family violence earlier in these Reasons, and do not intend to repeat that discussion here, save to confirm my finding that the father committed acts of family violence against the mother during the marriage and after separation. Those acts constituted physical, emotional and financial abuse.
When asked about the evidence of the maternal grandmother, Ms M, which supported that of her daughter in relation to the very short period when Ms M lived with the parties from X’s birth to separation, Mr Dagan appeared to say that as he believed that the maternal grandfather had been abusive towards Ms M, her evidence was confused. When questioned further, he said:
Not confused, but there is physical violence at home in the Country T from the father. I don’t know if that extended to the daughter. It could attribute (sic) to the mental health condition (of X’s mother).
He minimised or simply denied his behaviour at every turn, deflecting his answers to the mother and/or her family, and his manner was particularly defensive in relation to this issue. I found his evidence in relation to family violence in general self-serving and unconvincing.
When he was shown a photograph of bruising to Ms M’s arm, which both she and the mother say was the result of him hitting Ms M on the day of separation, the following exchange took place:
Mr Dagan: Not to be rude, but is there a time or date on the photo? I’m not admitting that I ever pushed her.
Counsel for the mother: She says she took the photo the next day. The 24th of July […] it was taken.
Mr Dagan: Usually you get, on the photo, the timestamp.
[…]
Counsel for the mother: She says….
Mr Dagan: What I’m saying – but that could have been done two weeks later
Counsel for the mother: I see. Well, her evidence…
Mr Dagan: I’m not admitting that I ever laid a hand on either of them. […] And I never would raise a hand to a woman […].
Counsel then read to the father a passage of Ms M’s affidavit, which stated, at paragraph 18:
He constantly screamed and swore at us in the presence of X. As a result he made my daughter and granddaughter cry very often. Ms Saddler was scared of him and did not know what to do to make him happy. Ms Saddler was in full control of Mr Dagan.
Mr Dagan immediately latched onto the final sentence of that extract, saying that it was contradictory. He was asked to read the passage to himself and he then had the following exchange with the bench:
Mr Dagan: Sorry. Yes. I still don’t understand it because in the middle it contradicts – it says she’s in full control of me. Then it says…
Her Honour: Well, that’s your interpretation of those words.
He was then taken to the remainder of paragraph 18 of Ms M’s affidavit, which states:
During their relationship she was not allowed to go to Church, choose her own friends and had no control over her finances. She was not allowed even to open her own mails or to use her mobile phone without his knowledge. He constantly threatened to get my daughter deported, so she would never see X again. This was happening almost every evening since we moved into the rental property and I was a witness to those threats.
Mr Dagan simply denied all of those allegations, insisting that Ms Saddler had full access to his bank accounts and “would spend whatever she wants”. He repeated that he did not “admit any violence”, saying that the relationship between the parties had been “pretty much fine up till the end, when it disappeared”.
That evidence completely contradicts that of both the mother and the maternal grandmother.
Ms M gave evidence through a Country R interpreter, in support of her daughter at trial. She is a health care worker in Country T with her husband, who is a health care worker, and once she had confirmed that the contents of her affidavit were true and correct, she was cross-examined about its contents.
She was asked specifically about the events of 23 July 2015, when the parties separated, with Ms Saddler and her mother and X leaving the small apartment into which they had moved with Mr Dagan a short time prior to that date.
I note that it was Ms M’s evidence that it was she who had insisted that the parties and X move out of the shed/bungalow at the paternal grandparents’ property, and she described that structure as follows:
[…] There were no toilet, no bathroom, no kitchen. Everything was mouldy. The roof was leaking. There were holes in the walls. No heating, only a portable heater. Only one small window, so the whole premises were very dark. And at the same place was living a very old dog, so it was the dog smell, the dog’s hair.
It was her evidence that on the day of separation Mr Dagan had left for work at about 10:00 a.m., and that she and the mother had gone shopping “to buy for X (sic in transcript) the formula and the nappies, because the nappies was almost finished.”
Ms M said that when she and her daughter went to pay for their purchases at the supermarket, her daughter’s debit card had been refused as there were no funds in the account to which was connected, and they had had to return home without nappies or formula.
She says that on the way home the mother called the father to ask why there was no money in that account, and that the father had told her that he had transferred the money to his account, and that from then on “he is going to purchase all what needs for the household (sic)”.
Ms M described her daughter as being “absolutely outraged”, and that when she, her daughter and granddaughter had arrived at the apartment, Mr Dagan had come outside and the parties had begun arguing, in response to which X had begun to cry.
Ms M said that the parties, and she and X then entered the apartment and that Mr Dagan had been sitting in an armchair holding X. It was her evidence that she had attempted to take X from him so that she could calm her, and that Mr Dagan had hit her (Ms M) on her arm. She said that the mother then placed herself between her and the father “in order to stop this conflict”. When it was suggested to her that that the father says that he did not touch her at all on that day, Ms M said: “That’s not true”.
Ms M then stated the following:
Well – and then he started saying – that’s what Ms Y (sic in transcript) interpreted for me later, he started saying that the police won’t even find out what happened with us here because he has a lot of friends and he has brothers. At that moment, somebody called him on his phone, so – and he left for work. And this words – this words of his, they were the last drop, the last straw, because I was very scared – I’m a foreigner, and that’s why we called the service – I don’t know how it’s called exactly, the service helping – with helping women, and in 50 minutes they sent a car for us. Well, we didn’t take anything, any belongings whatsoever, and left everything there in that unit where we used to live, and even my documents were left there. We didn’t even take the clothes to change.
She denied, when it was put to her, that the bruises on her arm had been “actually incurred prior to 23 July”.
It was Ms M’s evidence that she had not personally reported that incident to the police, but that only on the day that she gave evidence, the police had called her at 8:00 a.m. to ask her to make a statement in relation to it. She said that “maybe my daughter told them” about the alleged assault against her.
When it was suggested to her that Mr Dagan had not caused the bruises in the photographs shown to her, she stated the following:
What – if it would be just, you know – if it would be just the bruises, I probably wouldn’t tell anybody about that, but what scared me a lot, that’s his last sentence where he said, “I can do anything I want with you, and the police will not even find out about it at all”. And that’s why I was very, very scared. That was the last straw.
Ms M was then cross-examined in fine detail about the alleged assault against her, explaining exactly where she was standing in relation to the chair upon which Mr Dagan and X had been sitting, and she was able to demonstrate how he had been able to hit her.
She conceded that Mr Dagan might not have hit her deliberately, saying: “maybe he didn’t count on his weight because, you know, on his strength. We have different weights.” Nevertheless, she said, he had been angry at the time, and while she had suffered no broken bones, her age meant that being subjected to any kind of physical abuse would produce bruises. It was her further evidence that she had never been hit or assaulted by a man before that day, and she specifically denied that her husband had ever committed acts of family violence against her.
I found Ms M a credible and forthright witness, and I accept her evidence about the family violence perpetrated by the father upon the mother, and in particular her oral evidence about the state of the shed/bungalow at the time of X’s birth, in its entirety.
(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;
An initial Interim Intervention Order was made against the father on 29 July 2015 naming the mother and the child as Affected Family Members. That Order was made final on 26 November 2015, and a second final Order was made on 30 May 2017. At the time of trial that Order remained in force.
Mr Dagan consented without admissions to the making of those orders, and it was his evidence at trial that he had done so essentially because he had not wanted to go back to the Magistrates Court for a contested hearing.
It is also the case that Mr Dagan’s sister, Ms E, was, at the time of trial, subject to an Intervention Order brought by Ms Saddler.
In addition, Mr Dagan’s mother had provided an undertaking to the Magistrates Court to resolve Ms Saddler’s application for an Intervention Order against her.
Both Mr Dagan and Ms E have been found guilty of breaches of their intervention orders, Ms E for posting a photograph of X on her Facebook page, and Mr Dagan for being within five metres of Ms Saddler, and for what he described as “talking at changeover”.
In all, Mr Dagan has been charged with 14 breaches of his intervention order, although all but four of those charges were later withdrawn.
He pleaded guilty to those four charges and was fined $1500.
Mr Dagan pleaded guilty to a further breach, as a result of which he was fined a further $1000.
Mr Dagan’s attitude to his Intervention Order, and indeed to Intervention Orders in general, was the subject of some considerable cross-examination at trial.
When asked to agree that Intervention Orders are made for good reason, and that they are expected to be respected, Mr Dagan said: “a lot of it’s a game, pretty much, the Intervention Orders”.
He was particularly aggrieved about the Interim Intervention Order which had been made against his mother, saying that as he lived with his parents, he was unable to bring X to his home for the eight months of that Order as his mother would have been in breach. He agreed that that situation had been “a major inconvenience” to him, as he had been forced to spend time with X at play centres during that period.
He did not see any of the breaches, to which, I note he had pleaded guilty, as serious, saying: “you get pushed in the corner. Either accept it, pay the fine, or run it through a contested, which again, is a waste of money”.
He clearly did not accept that any of the breaches for which he had been convicted were reasonable, saying that “waving to a child goodbye isn’t a breach”, and “I think one of them charges was talking at changeover, saying “here’s the communication book”. He described the charges as “very petty”, saying “I didn’t want to run a contested hearing because it’s more money, more time. Which, in theory, I should have fought them.”
The following exchange then took place between the father and Counsel for the mother:
Counsel for the mother: Do you accept that an IVO of itself is serious?
Mr Dagan: Yes, I do.
Counsel for the mother: Right. Does it follow then in your thinking that if an IVO is serious if you breach it it’s pretty serious?
Mr Dagan: Yes. […] The terms of the IVO – you can be breached on anything. It’s wide and varied. You can breach someone on pretty much anything. Like they are there for women that do need the help…
Counsel for the mother: They do what?
Mr Dagan: Do need the protection. They’re there for the protection of a woman.
Counsel for the mother: Are they?
Mr Dagan: Yes.
Counsel for the mother: Okay. So what are you saying they’re for?
Mr Dagan: Well, there they’re for the women that are getting beat up, family violence.[…] If you’re – if you’re waving goodbye to your daughter […] I don’t see that as a breach.
Later, a further exchange took place in the context of Ms Saddler having applied for an Intervention Order a week after Mr Dagan had initiated proceedings in this Court:
Counsel for the mother: Are you saying to her Honour that she didn’t – shouldn’t have asked for an intervention order?
Mr Dagan: No, she had it.
Counsel for the mother: What are you saying? That she….?
Mr Dagan: My application – initiating application for it here was served. A week later, I get intervention order (sic in transcript).
Counsel for the mother: Yes. And does that make her application – what – false, or something?
Mr Dagan: Interpret it how you see.
Counsel for the mother: Well, how are you interpreting it?
Mr Dagan: You get intervention order, you’ve got to fight it, and they try to make you fight it, spend all your money, then you can’t fight in the Family Court.
Her Honour: I’m sorry, what was that? You think that the intervention order is a ploy to make men lose money by paying to go to the intervention order court?
Mr Dagan: They spend – you go contest it – yes. Yes. So you run it to a contested…
Her Honour: So that then they can’t afford to come to the Family Court?
Mr Dagan: Yes.
While Mr Dagan professes to understand the nature of family violence, it is clear that he does not include his behaviour in its definition at all. That belief, and his beliefs and attitudes in relation to intervention orders in general, show a significant lack of insight into his own behaviour and that of his family, and its effect upon his daughter and her mother.
(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;
These proceedings have been on foot now for more than four years, since X was only two months old. She is now four, and it cannot be anything but in her best interests for the Court to make orders which are final in nature.
Nevertheless, the practical reality is that her age means that any orders I make might become impractical or inappropriate as she grows older, and I will therefore make an order for the parties to engage in family dispute resolution before either party institutes further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other circumstances the court thinks are relevant.
Decision: Issue B
In circumstances where X has a close and loving relationship with her father despite the acrimony between her parents as a result of the family violence he perpetrated upon her mother, it is appropriate to make orders for her to spend substantial and significant time with him, as long as the conflict between the parents can be kept to a minimum in her presence.
I will therefore make orders for a graduated regime of time, including, eventually, full weekend and school holiday time, so that Mr Dagan can be as involved in X’s life as he says he wants to be.
Issue C: Where changeover should take place
The father seeks orders that changeover take place at the McDonalds restaurant in Suburb J McDonalds, which, he says, is approximately mid-way between his home in Suburb S and the mother’s home in Suburb L.
The mother seeks an order for changeover to occur at the Suburb A Police Station. It was her evidence that the travel to Suburb J McDonalds would be too onerous on both her and X, involving as it would, a walk to the bus stop, then a bus to Suburb L train station, a train into the city, and then a tram or train trip to Suburb J McDonalds.
It was her evidence that on weekends, Mr O would be able to assist as he could drive her and X to the changeover.
During the father’s cross-examination by counsel for the Independent Children’s Lawyer on this issue, the following exchange took place:
Counsel for the Independent Children’s Lawyer: So do you say that you would be able to – you would have no issues collecting X from her school?
Mr Dagan: Yes.
Counsel for the Independent Children’s Lawyer: And that would include a school that might be in Suburb L when she starts that school?
Mr Dagan: Yes, allegedly it would be over that way.
Counsel for the Independent Children’s Lawyer: So you’re prepared to make the travel to Suburb L to collect X (sic in transcript)?
Mr Dagan: Yes. If I have to go that way, I would be. Can I further add – can I add something?
Her Honour: Sorry?
Mr Dagan: Can I add something?
Her Honour: Sure.
Mr Dagan: Now, even if, hypothetically, she moves to Town Z or Town AA (sic in transcript), I will still drive to see X, so you’re pretty much – you’re going to drive anywhere to spend time with your child.
Counsel for the Independent Children’s Lawyer: I have no further questions, your Honour.
Decision: Issue C
In those circumstances, where Mr Dagan is self-employed and therefore able to organise his work and time to suit himself, and where he wishes to be involved in X’s kindergarten and school life, I will make orders that provide for him to collect X from her kindergarten or school on alternate Fridays.
That was some of the clearer evidence about the plant and equipment at the factory.
Mr Dagan denied that he had bought spray painting equipment for $16,500 as alleged by the wife, saying that the photograph used as the basis for the question was of “a bit of scrap metal”. As there is nothing in the photograph tendered to say when it was taken, nor to say that the photographed object has any connection to Mr Dagan, I can make no finding in relation to that object.
It would appear that none of the plant and equipment alleged to be at the factory has been valued, so that even if the Court were to accept its existence, there is no way to consider its value.
Mr Dagan was then taken in some considerable detail through several bank statements for various periods from 2012 to 2018 which were tendered to the Court. The purpose of that exercise was not immediately apparent, and only became so when Counsel for the wife put to the husband that “Business N is transacting quite a deal of business” during that period. When asked if he would agree with that proposition, Mr Dagan replied: “Not really”.
He was then asked, again in some detail, about his usual recurrent business expenses, but it was clear that such details do not trouble Mr Dagan very much. When he was asked whether he kept track of his expenses “as a businessman”, he replied: “No, I don’t”.
One thing he was clear about was that he did not agree with a document, apparently prepared by the wife from his bank statements, which calculated his income and expenditure over the past several years.
When he was asked for the source documents for those calculations, his counsel could not provide any but those for the year ending 30 June 2017.
The trading Profit and Loss Statement prepared by the husband’s accountant from the husband’s entries into the QuickBooks program for the 2016-2017 year was tendered to the Court and Mr Dagan was asked several questions about that document.
The following exchange then took place:
Counsel for the wife: Now, Mr Dagan, you would agree we’ve gone through the bank statements for the year ending 30 June 2017. You’ve got your profit and loss statement in relation to what you say your net sales are. There’s a considerable difference in the figures, isn’t there, into what went into your bank account compared to what that document says your net sales are; would you agree with that?
Mr Dagan: There might be some stuff that isn’t put through. There’s a lot of other sales, like online sales.
Counsel for the wife: And they’re not disclosed in your profit and lost statement you’re saying.
Mr Dagan: They go through the bank statements.
I am uncertain as to the import of that exchange but it does raise questions about whether the husband declares all his income to his accountant.
Mr Dagan was then asked about a business known as “Business V”, whose logo was seen on shirts he was wearing in photographs annexed to the wife’s affidavit material.
It was his evidence that “Business V” is the business operated from the factory by his brother Mr C, and that the photographs were taken in 2012. He denied that he had operated that business while his brother was recovering from cancer surgery and chemotherapy in 2013 and following, saying that his brother is a licensed tradesman who has specific knowledge about computer controlled products with complex electronics, whereas he is merely a tradesman. He said that his brother had continued to operate his business, albeit at a reduced rate, throughout his illness, as he needed to support his family.
Mr C gave evidence at trial, some of which appeared to contradict the husband’s evidence. For instance, he said that the husband worked as a “tradesman” before agreeing with counsel that his brother was not a qualified tradesman, but that he “works as a tradesman”.
In addition, he denied that the husband had worked as a tradesman in recent times when the husband had stated that he had occasionally performed some repairs for friends. Mr C also initially denied that the husband sold “stuff” from the premises, when the husband had stated that he had indeed held motor vehicles at the property which he had sold for friends. Mr C later gave quite detailed evidence about motor vehicles that the husband had sold from the premises.
He did confirm that the husband owned some of the equipment at the factory, although he asserted that the hand tools were all his, while the husband owned a welder. I note that the husband denies that a spray painting machine at the factory was his, and that the husband values his tools and equipment at $5,000 in his Financial Statement sworn and filed 2 July 2018.
He also confirmed that he used the husband’s EFTPOS facility, and that the brothers would informally reconcile that account from time to time such that the husband would pay him in cash for income received by way of that facility. He was clear that the husband did not transfer those monies to his (Mr C’s) bank account.
When asked why of his business was named “Business V”, the husband’s initials, when his initials are “…”, Mr C explained that “…” are the initials of his paternal grandfather Mr Dagan, and that he had wanted to honour his grandfather in naming his business. It was his evidence that he deliberately named his son CC “so hopefully he can follow on and take it over”. He was adamant that the “…” in the name of his business did not refer to the husband.
I am somewhat sceptical about that evidence but cannot make a finding in relation to it, save to say that the way the husband runs his business must cause headaches for his accountant.
I am satisfied that the evidence about the property the husband owns as part of his business dealings, and the evidence about his income from those dealings (it was his evidence that he has performed significant amounts of work for no payment for friends), is incomplete to say the least.
The husband impresses as a man with his eye on the main chance – a man who has no compunction about deceiving his customers or performing work for cash so that it does not come to the attention of the Australian Taxation Office, and whose business records are almost non-existent.
I found him and his brother, in contrast to their father, to be unsatisfactory witnesses in the context of these property proceedings.
Decision: Issue G
The property interests of the parties at the time of trial can therefore be set out as follows:
Asset
Ownership
Value
The husband’s share of the factory
Husband
$142,500
Business N
Husband
Unknown
Plant and Equipment
Husband
At least $5,000
Total non-superannuation Assets
At least $147,500
Superannuation Entitlements
Wife
Wife
$2,703
Husband
Husband
Nil
Total superannuation
entitlements
$2,703
Liabilities
Nil
Total nett assets not including superannuation
Unknown but at least $147,500
Total nett assets including superannuation
Unknown, but at least $150,203
Issue H: What were the parties’ contributions to the property?
This question arises from the requirements of s.79(4) of the Act which states as follows:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Initial contributions
The wife came into the marriage with nothing but her personal possessions.
The husband owned a one quarter share in the factory pursuant to the trust I have found to exist from the date of the factory’s purchase. He also owned a motor vehicle and some personal possessions, and his interest in Business N which is unquantifiable.
The husband’s initial contributions, therefore, outweigh those of the wife.
Contributions during the marriage
The marriage was very short, lasting only about 17 months, but the evidence before the Court suggests that while the husband worked throughout the marriage, the wife was either working herself, and/or contributing to the welfare of the family by way of her role as homemaker and, in the last month of the relationship, as X’s primary parent.
The husband made an indirect contribution by way of the parties’ accommodation at his parents’ property, albeit that that accommodation, where the parties lived for all but a few weeks of the marriage, was unsuitable.
In those circumstances, I find that the contributions made by the parties during the marriage also fall in favour of the husband.
Post-separation contributions
Since the parties separated in July 2015, the wife has continued to make a major contribution to the welfare of the family as X’s primary parent. The husband has made some contribution in the form of child support but I will consider that issue later in these reasons when I discuss the matters set out in s.75(2) of the Act.
Decision: Issue H
On the basis of all the above evidence, where the husband’s contributions exceed those of the wife at the commencement of the marriage and during the marriage, and the wife’s contributions exceed the husband’s after the marriage, I find that the parties’ contributions to their property fall 85% to the husband and 15% to the wife.
Issue I: Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by s.79(4)(e).
Section 75(2) states that the court must consider the following matters:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the husband is 43 years old and in good health. The wife is 34 years old and also in good health.
The husband works in his own business, and while it is not possible on the evidence before the Court to say with any precision what his income is, he is apparently able to meet his monthly expenses. He owns the factory, which, I have found, he holds on trust for himself and his siblings.
The wife is in receipt of Centrelink benefits, but has qualifications as a health care worker in Country T. While she would need to do supplementary study to have those qualifications recognised in Australia, it was her evidence at Court that she intends to study in the future. Her current earning capacity is constrained by her need to care for X. She owns no property.
The wife has the primary care of the parties’ child, who is currently four years old, and she will be X’s primary carer until she reaches the age of 18.
Neither party has any obligation to provide for or financially support any other person.
It was Mr Dagan’s unchallenged evidence at trial that he had no superannuation entitlements as he works for himself and has not made any superannuation contributions. The wife has minimal superannuation entitlements.
The parties’ standard of living is dependent on third parties. The husband lives with his parents rent and board free, and appears to have no plans to change that situation. That situation is secure for as long as his parents continue to consent to it.
The wife lives with her partner, and the security of that accommodation, too, is dependent on Mr O’s continuing consent.
As I have stated, this was a very short marriage, lasting only 17 months or so, and its duration has had no effect on either the wife’s or the husband’s earning capacity.
Ms Saddler has repartnered and is supported to a significant extent by her partner, while Mr Dagan has not repartnered, but is significantly supported by his parents who charge him no rent or board for his accommodation.
The husband pays child support for X at the rate of about $202.00 per month and I note that that is more than his Child Support Assessment requires. Nevertheless, his Child Support Assessment is only for a minimal amount based on his taxable income, and Ms Saddler cannot rely on any receiving more than the Assessment requires.
The wife came into this marriage in good faith, but found herself in very difficult circumstances in terms of the family violence I have found occurred. In addition, the stress and distress caused to the wife by the accommodation she found herself living in is likely to have made her life even more difficult.
I also take into account, under s.75(2)(o) of the Act, the husband’s lack of clear evidence about the state of his business, and the fact that he is, on his own evidence, prepared to act in a dishonest manner where money is concerned (as evidenced by his use of the “Business U” branding to deceive customers, and his acquiescence in his father’s deception of Centrelink in relation to funds received from the paternal great-grandmother’s estate). That evidence gives the Court serious concern about the credibility of the husband’s evidence overall, and in particular about his evidence in relation to the way he conducts his business and the ownership of its plant and equipment.
Decision: Issue I
In all of the above circumstances, I find that there should be an adjustment to the wife of 15% on the basis of the matters set out in s.75(2) of the Act.
Issue J: In light of those findings, what Orders should be made to effect a just and equitable division of property between the parties?
The findings set out above lead to a conclusion that the husband should receive 70 per cent of the parties’ known assets, and the wife 30 per cent.
The only quantifiable assets are the husband’s interest in the factory and his tools of trade, which I have found to be worth $147,500. I also must take into account the wife’s minimal superannuation entitlements of $2,703, and the fact that husband has no superannuation entitlements at all.
The property pool, including the wife’s superannuation, is valued at $150,203.
I have found the wife to be entitled to 30% of that property pool.
Thirty percent of the pool at the time of trial is $45,061. Ms Saddler already holds her superannuation entitlements at $2,703, so in order for her to receive 30% of the property overall, Mr Dagan, who will retain his interest in the factory and his tools of trade, will have to pay her $42,358.
Decision: Issue J
I will therefore make orders for Mr Dagan to pay Ms Saddler the sum of $42,358 within 60 days by way of property settlement, and he will retain his interest in the factory, and his business and tools of trade, while Ms Saddler will retain her superannuation entitlements.
If he fails to make that payment, the factory will be sold and from its sale proceeds, Ms Saddler will receive 30% of the then value of Mr Dagan’s one quarter share plus tools of trade, plus interest from the date of due payment to the date of actual payment.
Conclusion
This has been a drawn out and very sad case.
Ms Saddler came to this country hoping and prepared to settle into the marriage and lifestyle that Mr Dagan had promised her, only to find that he had deceived her about his financial situation and his property holdings.
In addition, she found herself married to a man who showed her little or no respect, who called her names, and who abused her verbally and physically.
If it were not for X’s birth, it is probable that Ms Saddler would have left Australia and returned to Country T well before now. Nevertheless, she has accepted that X has a right to have a relationship with her father, and she has arranged her life accordingly.
It is to be hoped that the parties will settle into a violence-free and more peaceful life, with both having a close and loving relationship with their daughter, who deserves no less.
I certify that the preceding three hundred and nineteen (319) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 25 October 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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