FEDERAL CIRCUIT COURT OF AUSTRALIA
| DARSHA & GANI | [2017] FCCA 663 |
| Catchwords: FAMILY LAW – Parenting dispute – husband seeks residence of children in Sydney – husband’s bitterness and negativity towards the wife – property – initial contribution – non-disclosure of overseas assets. |
| Legislation: Family Law Act 1975, ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 75(2)(o), 78, 79, 79(2), 79(4), 90MT(4), 90MT(1)(a), 90MZA, 106A Family Law (Superannuation) Regulations 2001, pt.6 |
| Cases cited: Preiss & Preiss [2017] FamCA 12 Sampson & Hartnett(No.10) [2007] FamCA 1365 G and G (1984) 9 Fam LR 969 Kuebler & Kuebler (1978) FLC 90-434 Sebastian & Sebastian (No.5) [2013] FamCA 191 Chang and Su (2002) FLC 93-117 Gould & Gould (2007) FLC 93-333 K & K [2002] FamCA 1150 Jamine & Jamine (No.2) [2012] FamCAFC 104 Bell & Nahos [2016] FamCAFC 244 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 |
| Applicant: | MS DARSHA |
| Respondent: | MR GANI |
| File Number: | MLC 7387 of 2015 |
| Judgment of: | Judge Harland |
| Hearing dates: | 10 & 11 November 2016, 3 February 2017 |
| Date of Last Submission: | 3 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mort |
| Solicitors for the Applicant: | Cornish Lawyers |
| The Respondent: | In person |
ORDERS
Children
That all previous parenting orders be discharged in relation to X (“X”) born (omitted) 2009 and Y (“Y”) born (omitted) 2013 (“the children”).
That the children live with the wife.
That the wife have sole parental responsibility for the children on the condition that:
(a)The wife shall contact the husband in writing and provide her views in relation to major long term issues about:
(i)The children’s education;
(ii)The children’s religious and cultural upbringing;
(iii)The children’s health;
(b)The wife shall consult (via email unless otherwise agreed) with the husband with regard to any such issue;
(c)The wife and husband will make a genuine effort to come to a joint decision, in writing, about any such issue; and
(d)If agreement is not reached between the parties within 7 days, the wife shall make the final decision and advise the husband in writing of the decision about any such issue.
That the children shall spend time and communicate with the husband as follows:
(a)For two weekends during Victoria school terms from…
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- AGLC
- Darsha and Gani [2017] FCCA 663
- Case
- [2017] FCCA 663
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary residence of the children, the specific terms of the time the children would spend with each parent, and the allocation of parental responsibility. Additionally, the court had to make orders concerning the transfer and sale of real property, the division of proceeds from the sale of an investment property, and the allocation of a portion of the husband's superannuation interest to the wife.
Judge Harland discharged previous parenting orders and made new orders for the children to live with the wife, granting her sole parental responsibility subject to specific consultation and notification requirements with the husband regarding major long-term issues. The court detailed extensive provisions for the children's time with the husband, including weekends, school holidays, and specific communication arrangements. In relation to financial matters, the former matrimonial home was to be transferred to the wife's sole name, and the investment property was to be sold with the net proceeds divided according to a specified formula. The court also ordered a base amount of $50,000.00 to be allocated to the wife from the husband's superannuation fund, with further provisions for splittable payments. The court also made orders regarding the ownership of other assets and provided for the Registrar to execute documents if a party failed to do so.
Orders
Orders of the court
Children
1.
That all previous parenting orders be discharged in relation to X (“X”) born (omitted) 2009 and Y (“Y”) born (omitted) 2013 (“the children”).
2.
That the children live with the wife.
3.
That the wife have sole parental responsibility for the children on the condition that:
(a) The wife shall contact the husband in writing and provide her views in relation to major long term issues about:
(i) The children’s education;
(ii) The children’s religious and cultural upbringing;
(iii) The children’s health;
(b) The wife shall consult (via email unless otherwise agreed) with the husband with regard to any such issue;
(c) The wife and husband will make a genuine effort to come to a joint decision, in writing, about any such issue; and
(d) If agreement is not reached between the parties within 7 days, the wife shall make the final decision and advise the husband in writing of the decision about any such issue.
4.
That the children shall spend time and communicate with the husband as follows:
(a) For two weekends during Victoria school terms from 7.00pm Thursday until before school on Monday during Victorian school terms, nominated by the husband in writing 21 days, in advance provided that:
(i) The nominated weekend does not include the Mother’s day weekend;
(ii) Shall include the Father’s day weekend;
(iii) Is not for consecutive weekends; and
(iv) Such time shall take place in Melbourne.
(b) During the Victorian gazetted school term holidays in 2017 and 2018 for five nights from the end of school, noting that the husband may take the children to Sydney;
(c) For two periods of 5 nights over the 2017 long summer break and the husband to nominate the dates and provide the wife 28 days written notice;
(d) From August 2018 the husband spend time with the children:
(i) During Victorian gazetted school term holidays: for 7 consecutive nights with the nights to be agreed upon and in default of agreement for nights 1 – 7 in odd numbered years and nights 8 to 14 in even numbered years;
(ii) During the Victorian gazetted long summer holidays on a week about arrangement with the nights to be agreed upon and in default of agreement nights 1- 7 in odd numbered years and nights 8 to 14 in even numbered years and so on;
(iii) by agreement between the parties;
(e) From December 2020 the Husband spend time with the children:
(i) During Victorian gazetted school term long summer holidays: for the first half of the holidays as agreed and un default of agreement for the first half in odd numbered years and for the second half in even numbered years.
(ii) By agreement between the parties.
(f) Victorian gazetted school holidays shall be defined as commencing on the first day after the school term ends and ending on the day before school term commences;
(g) On the children’s birthdays and days of religious significance for a period of 3 hours, with that time being from the conclusion of school or 3.00pm until 7.00pm on a weekday; or from 10.00am to 1.00pm on either a Saturday or a Sunday and the father’s time to be suspended at the aforementioned times when the children are otherwise in his care on those days;
(h) For Diwali in 2017 and every second year thereafter;
(i) On Facetime, Skype, or similar such electronic communication each Monday and Wednesday from 6.30pm to 7.00pm with the husband to initiate the contact and the wife to facilitate same;
(j) Any other such time as agreed in writing between the parties;
5.
That whilst the children are in the care of the Husband, the Wife be at liberty to make electronic contact with the children between 6.30pm and 7.00pm, or at times to be agreed between the parties, once every three days with the husband to facilitate same.
6.
That the Husband be restrained from denigrating the Wife in the presence or hearing of the children.
7.
That the wife shall ensure that the husband is kept informed of:
(a) Any medical problems or illnesses suffered by the children while in the wife’s care;
(b) Any medication that has been prescribed for the children;
(c) Any social, school or religious functions which the children is to attend;
(d) The residential address of the wife and particulars of the others who may reside with the children;
(e) Any other matter relevant to the children’s welfare.
8.
That the husband shall ensure that the wife is kept informed of:
(a) Any medical problems or illnesses suffered by the children while in the husband’s care;
(b) Any medication that has been prescribed for the children;
(c) Any social, school or religious functions which the children is to attend;
(d) The residential address of the father and particulars of the others who may reside with the children;
(e) Any other matter relevant to the children’s welfare.
9.
That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the wife do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the husband copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
10.
That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes to these details within seven days of such change occurring.
11.
Orders 1 and 2 of the orders made on 7 September 2015 be discharged.
12.
It is requested that the Australian Federal Police remove the names of the children X born (omitted) 2009 and Y born (omitted) 2013 from the airport watch list at all points of international arrival and departure in Australia.
13.
In the event either parent wishes to take the children on a holiday out of the Commonwealth of Australia then the parent proposing such holiday shall notify the other parent no less than 60 days prior to the departure date of such proposed trip, and shall provide to the other parent at this time:
a. Particulars including the proposed itinerary and proposed period of such trip;
b. At least 10 days before departure, a final itinerary including contact telephone numbers and full street addresses of where the children will be staying;
c. copies of return airline tickets and details of flights once booked and irrespectively at least 10 days before departure.
14.
That pursuant to s65Y(2) of the Family Law Act 1975 (Cth) each party be permitted to travel with the children out of the Commonwealth of Australia, provided such period of proposed travel takes place during the time the children are living with that parent pursuant to these orders unless otherwise agreed between the parties in writing via email.
15.
That upon the parent giving notice to the other parent of their proposal to travel out of the Commonwealth of Australia pursuant to order 13 (“the travelling parent”) the non-travelling parent shall release the passport they hold of the child to the travelling parent not less than 14 days prior to the notified date of departure and the travelling parent not less than 14 days prior to the notified date of departure and the travelling parent shall return the passport to the non-travelling parent within 7 days of returning from any travel with the children in accordance with these orders.
Financial
16.
That within 60 days of the date of these Orders the parties’ do all acts and things and sign all documents necessary to:
(a) Transfer the real property situated at Property C being the whole of the land contained in volume (omitted) folio (omitted) (“former matrimonial home”) into the wife’s sole name at her cost; and
(b) Simultaneously with the transfer in (a) the wife shall do all acts and things necessary to discharge and refinance the mortgage into her sole name and to discharge the current mortgage, (omitted), encumbering the former matrimonial home and refinance in the wife’s sole name.
17.
That in the event that the wife is unable or unwilling to comply with order 12, then within a further 14 days each party shall do all things necessary to cause the former matrimonial home to be sold by private treaty or auction as recommended by the agent nominated by the parties at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and that the net proceeds of sale shall go to the wife.
18.
That within 60 days of the date of these orders each party shall do all things and execute all documents necessary to cause the property situated at Property E, being the whole of the land contained in volume (omitted) folio (omitted) (“investment property”), be sold by private treaty at the earliest possible date and that the proceeds of sale be disbursed as follows and in that priority:
(a) In payment of agents commission, advertising expenses, conveyancing adjustments and legal expenses of the sale;
(b) In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any), and in payment of costs in relation to determination of value or selling price by the President of the Victorian Division of the Australian Property Institute or his/her nominee (if any);
(c) Discharge of mortgage to (omitted) Bank (omitted) secured on title;
(d) The net balance then to be divided as to:
(i) 9% to the wife; and
(ii) the remainder to the husband less $5000 plus interest, being the amount of modified costs owing pursuant to [253] of the reasons, paid from the husband’s share to the wife.
19.
That simultaneously with compliance with orders 15 & 17 the parties do all acts and things and sign all documents necessary to close the mortgage offset account and divide the proceeds as to 9% to the wife and 91% to the husband.
Superannuation
20.
That Orders 19 to 24 (inclusive) bind the Trustee (“the Trustee”) of (omitted) Super (“the fund”) in respect of the interest held by the husband in the fund (member name Mr Gani, member number: (omitted)).
21.
That the Court allocate, pursuant to Section 90MT(4) of the Family Law Act 1975, (“the Act”), a base amount of $50,000.00 to the wife out of the husband’s interest in the fund.
22.
That pursuant to 90MT(1)(a) of the Act, whenever the Trustee makes a splittable payment from the interest held by the husband in the fund, the Trustee:
(a) Pay to the wife or her legal representative and assigns the entitlement in accordance with part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) Make a corresponding reduction in the entitlement the husband would have had in the fund but for these Orders.
23.
That Orders 19 and 20 have effect from the operative time, and the operative time of these Orders is 4 business days after the day on which the final sealed, signed Orders are served on the Trustee.
24.
That the Trustee of the fund do all such acts and things and sign all such documents as may be necessary so the Trustee, in accordance with the obligations set out under the Act and the Family Law (Superannuation) Regulations 2001, can calculate the entitlement of, and make payment to the wife in accordance with Orders 19 and 20 hereof.
25.
That until the happening of any of:
(a) The establishment of a separate account in the name of the wife in the fund;
(b) The transfer or rolling over into another superannuation fund the payment split created by Orders 19 and 20 hereof;
(c) The wife satisfies as a condition of release and is paid the payment split which is created by Orders 19 and 20 hereof; or
(d) The wife executes a waiver of rights within the meaning of Section 90MZA of the Act in relation to the payment split granted by Orders 19 and 20 hereof.
the husband be and is hereby restrained by himself, his servants or agents from executing a Binding Death Benefit nomination in favour of any person or from doing such act or thing which would render any part of his interest in the fund a non splittable payment within the meaning of the Family Law (Superannuation) Regulations 2001.
26.
That the husband forthwith serve a copy of these Orders upon the Trustee.
Other
27.
That pursuant to s.78 of the Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a) all items of furniture, furnishings, personal, chattels and jewellery;
(b) all monies (whether held in cash or in deposit with any financial institution);
(c) any motor vehicle;
(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.
28.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to s.106A of the Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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