Darsha and Gani
[2017] FCCA 663
•5 April 2017
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 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;
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.
That the Husband be restrained from denigrating the Wife in the presence or hearing of the children.
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.
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.
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.
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.
Orders 1 and 2 of the orders made on 7 September 2015 be discharged.
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.
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.
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.
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
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.
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.
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.
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
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)).
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.
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.
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.
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.
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.
That the husband forthwith serve a copy of these Orders upon the Trustee.
Other
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.
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.
IT IS NOTED that publication of this judgment under the pseudonym Darsha & Gani is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7387 of 2015
| MS DARSHA |
Applicant
And
| MR GANI |
Respondent
REASONS FOR JUDGMENT
This case concerns a bitter dispute between X and Y’s parents about parenting and financial issues.
X, born on (omitted) 2009, is 7 years old. Y, born on (omitted) 2013, is 3 years old.
Both parties are from India.
The parties started living together in June 2007. They were married in (omitted) 2008.
There is some controversy about when the parties separated. The wife says they separated in July 2015.
The husband is self-represented. He worked for the (employer omitted) in Sydney. He is clearly a very particular man and he is easily offended. He is exacting. He was across his material.
Evidence relied on by the parties
The husband relied on his trial affidavit, which is in two volumes totalling 787 pages, filed on 7 October 2016. I expressed concerns about the volume of material the husband filed being disproportionate to the issues in dispute. Several parts of the husband’s affidavit contain argument and some scandalous statements rather than evidence. The husband accuses the wife of being a bigamist and of engaging in financial deception. The husband has now filed an application for nullity in the Family Court of Australia in response to the wife’s application in this Court for divorce. The text of the husband’s affidavit runs to 75 pages. The bulk of the affidavit is annexures. I indicated to the husband that I would not read all of the annexures and that he would need to indicate which particular annexures he wished me to read.
The husband complains that the wife has lied to this Court and that she has lied to the Magistrate’s Court of Victoria during intervention order proceedings.
Much of his affidavit material contains argument and at times offensive commentary about what he thinks is his wife’s state of mind, her motivations, and her moral fibre. It says much about him, rather than about his wife, and raises real concerns about how he can co-parent his children with the wife.
The husband’s case outline also contained inappropriate comments and complaints particularly directed at the wife’s lawyer.
The husband did not rely on any of his earlier affidavits.
Some of the annexures to the husband’s affidavit are inadmissible as they are statements from other people who are not on affidavit and not available to be cross-examined.
The husband seeks to carry out an analysis of financial contributions post separation by going through transactions line by line and annexes these documents to his affidavit. The determination of the parties’ contributions is not an accounting exercise.[1]
[1] G and G (1984) 9 Fam LR 969.
Mr Mort filed a list of objections to the husband’s affidavit. I ruled that rather than going through the objections individually I would put such weight on the material of both parties as is appropriate in order to save hearing time in Court.
The wife relied on her trial affidavit prepared for the first hearing sworn and filed on 24 March 2016 and her further trial affidavit sworn and filed on 10 October 2016 together with an updated financial statement filed on 10 October 2016.
General Legal Principles with respect to evidence
In a recent appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
“Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.”
Issues in dispute
The main issues in dispute are:
Compliance with orders
a)Compliance with interim orders;
Parenting
b)Whether the children should live primarily with the husband in Sydney or with the wife in Melbourne;
c)The allocation of parental responsibility;
d)Whether or not the children should be permitted to travel overseas with their parents and who should hold the children’s passports;
e)Wife’s allegations of family violence;
Financial
f)Weight to be given to the husband’s initial contributions;
g)Contributions during the relationship;
h)Whether or not the husband has assets in India; and
i)Disclosures.
Compliance with Orders
Compliance with interim orders
The wife filed her initiating application seeking parenting and property orders. She sought various interim parenting and financial orders on 5 August 2015.
The husband filed his responding documents on 25 August 2015.
Both parties were legally represented at the first return date on 7 September 2015. The orders made include:
a)That the children were placed on the watch list for 2 years;
b)That the matter was listed for final hearing commencing on 7 April 2016 and associated trial directions were made;
c)That the husband was ordered to repay the sum of $52,000 and $38,000 by close of business on 9 September 2015; and
d)That consent orders were made with respect to parenting and financial matters.
Significantly the following orders were made as part of the consent orders. It is in the handwritten version of the orders handed up in Court and in the typescript.
“8. The parties be and are hereby restrained by injunction from disposing, transferring or otherwise dealing with any funds in offset accounts and bank accounts in joint names.
11. The husband be and is hereby solely responsible for all mortgage and rate payments and outgoing of the property at Property E (“the investment property”).
12. The rental income from the investment property be paid into the (omitted) Bank Account number (omitted).”
The wife filed a contravention application on 5 November 2015 with respect to several of the interim financial orders. That application was returnable on 22 February 2016. The orders for the husband to return the funds taken from the offset account were complied with long before the contravention application was filed although it was not done on time. The contravention also complained about the husband’s failure to comply with the order with respect to the rent payment on the investment property. That order has never been complied with. In his case outline the husband seeks his costs associated with the contravention application. The contravention order was properly brought and was not vexatious. The issue of the rent was deferred to the final hearing which saved the parties further costs of a separate contravention hearing. He is not entitled to costs.
One of the issues in dispute was the payment of the rental income. The consent order makes it clear that the rental income must be paid into the offset account named in order 12 as set out above. When the consent orders are read together, in particular order 8 and 12, it is clear that the intention of the parties was that the rental income would not be used to pay the mortgage on the rental property but rather would be deposited into the offset account. The husband argues for a different interpretation and says he has complied with the orders when he used the rental money to pay the mortgage on the rental property. The parties were represented by experienced legal practitioners when they agreed to the interim orders which are clear.
The husband was cross-examined about this issue. The husband’s answer was that he continued to manage the rental property in the way that it was managed over the past six years applying the rental income to the mortgage payments and that to do it any other way would be unfair. That, of course, misses the point that it is not what he agreed to when he was represented.
Exhibit L is a bundle of (omitted) Bank mortgage account statements from mortgage number ending in (omitted). Exhibit M is another bundle of mortgage statement documents from any bank for account number ending in (omitted). These accounts have been identified as being the mortgages secured over the investment property. The husband was asked to read the order which is clear on its face. It is a consent order that the husband consented to when legally represented. Despite this, instead of simply by answering questions he was asked he kept repeating that he has maintained the investment property in the same manner he has for the past six years. He would not admit to the clear meaning of the order. The husband says he never would have agreed to that order as he does not have the financial capacity to pay that on top of his costs of coming to Melbourne to see the children and other expenses. He may have regretted consenting to it but that is a separate issue. He was legally represented when he did so. It is an example of the husband’s rigidity of thinking. It is consistent with the wife’s descriptions of him and the difficulties she said she was handed with respect to discussing issues with him.
The wife seeks an addback of the rental income the husband has used to pay the mortgage which pursuant to the interim order should have been left in the offset account. The wording of the interim order is clear. The husband may think it is unfair but he was represented when he consented. Not adding the amount back would send a message that parties do not need to comply with orders to which they regret consenting or to which they disagree.
There was some difficulty with contravention proceedings on that occasion because the husband’s solicitor briefed counsel that morning as he was required to attend hospital with his wife for the birth of his child. Further orders were made and the balance of the contravention application was adjourned to the final hearing.
The husband’s answers in cross-examination are telling in that he simply cannot countenance the fact that a Court order does not say what he thinks it should because as he said it is not the way investment properties are ordinarily managed.
The matter next came before me on 7 April 2016 for the final hearing. Ongoing issues were raised about disclosure and non-compliance. It was stood down for discussions. In the afternoon the parties returned saying that parenting orders were agreed except for three issues which were identified. The parties signed those orders subject to the three issues relating to whether or not a security bond should be required for travel, who holds the passport, and if the husband is unable to spend weekends with the children on three occasions whether or not it should reduce from alternate weeks to every third weekend.
They hoped to speak to Dr D who prepared the family report for his input with respect to the outstanding parenting orders. The parties returned the next day for the second day of the trial.
With respect to the property matter the wife was ready to proceed. The wife no longer pursued the contravention application. The husband had not obtained a retrospective valuation, despite being represented. The husband’s application was granted subject to the husband consenting to an order to pay the wife’s costs in the sum of $5,500 and further orders with respect to disclosure.
It was highly unsatisfactory that the husband sought to rely on what was called a retrospective valuation by a real estate agent, only obtained a few days before the final hearing and being in an inadmissible form.
It is clear from the transcript of 8 April 2016 that there was discussion back and forth about whether or not the parenting orders that are agreed should be made. The parenting orders were handed up with the agreement of the husband’s then solicitor Dr T who indicated that the parties had signed the parenting orders but that there were three issues that were unresolved. Further orders were made with respect to further documents to be disclosed as well as costs and a new trial. The minute handed up had in the heading “consent” with the word crossed out. The minute of order was engrossed by the wife’s solicitor. In the order in error the word consent remained in the title. That was corrected pursuant to the slip rule and amended orders were issued on 8 August 2016. The husband makes many allegations about this. He was represented until 9 June 2016. I reject the suggestion that there was something sinister in this error. The husband’s complaints are misconceived and unwarranted. He complains in his affidavit that the wife’s solicitor added clauses to the proposed parenting orders including the self-executing clause. This is plainly wrong. That was one of the orders which was circled on the original copy handed up in Court and marked as one of the items not agreed. As the transcript plainly shows I did not make the parenting orders that day as not everything was agreed. The original of the second document handed up which was entitled consent orders comprised of various orders the wife sought with respect to disclosure. This is the document Mr Mort said should not have been headed consent. I crossed through that word in Court. I also made a handwritten amendment crossing out probate and letters of administration and inserted “legal documents with respect to the estate.” Clause 2(b)(i) remained unchanged which refers to the a copy of the husband’s mother’s last will and testament. The engrossed order was clearly incorrect when it referred to the orders being made by consent. This was corrected by the slip rule albeit several months later. The content of the orders is accurate. [2]
[2] The husband’s complaints about these orders are contained in [284] of his October trial affidavit.
The husband concedes that he has not paid the costs order in the sum of $5,500. He complains that the wife’s solicitor would not agree with him having access to the mortgage account to pay that sum. Of course that would not be appropriate as the wife would be contributing to the costs order that she has the benefit of due to the first hearing being adjourned on his application
The matter returned for final hearing on 10 November 2016 and proceeded on 10 November 2016, 11 November 2016 and 3 February 2017.
Each of the parties make numerous complaints against the other about alleged nondisclosure.
Order one of the orders made on 8 April 2016 required both parties to provide the other with a list of documents within 21 days of the order (being 29 April 2016) with inspections to take place seven days thereafter. The wife did not comply with that until September 2016, which was many months later.
Both parties annex correspondence to the affidavits where both complain about the other’s disclosure. The obligation to provide disclosure is ongoing. When new documents come into existence they must be disclosed up until the hearing. The dispute between the parties is not that disclosure has not been made at all but that it has been incomplete.
It is clear that the husband failed to comply with the orders made on 7 September 2015, when the husband was in Court and was legally represented, where the Court ordered that the husband repay by no later than 9 September 2015:
“8. The Husband forthwith (and no later than close of business on 9 September 2015) repay the following sums:
a. $52,000.00 into (omitted) Bank Account number (omitted); and
b. $38,000.00 into (omitted) Bank Account number (omitted).”
The husband said he transferred the funds within 4 or 5 days of his return to Sydney. He considered this was acceptable as he had to travel from Melbourne back to Sydney. That is not an excuse. The orders were precise. The husband works for the (employer omitted). In modern times parties are easily able to access bank accounts online and make such arrangements as may be necessary to transfer funds within the timeframe. He could have, and should have, complied with the timeframe set out in the order.
It is somewhat telling that the husband has not complied with the costs order made against him when he successfully sought an adjournment of the final hearing. He says he will pay interest but has complained that the interest rate has changed. When asked under cross-examination why he has not paid those costs he said he has repeatedly asked the wife’s lawyer to agree to a partial release of funds to the parties to cover the costs. In essence that is asking the wife to contribute to her own costs. The wife has already incurred those costs some months ago now. I do not accept the husband’s explanation that he does not have the disposable income to pay that sum. It is another example of the husband’s intransigence.
Parenting
Whether the children should live primarily with the husband in Sydney or with the wife in Melbourne
The husband says that since separation the wife has thwarted his relationship with the children in an attempt to alienate them from him. He struggles to say anything positive about her.
The husband’s position is that the children should live in his primary care in Sydney and that the mother should move to Sydney as well. Even if the mother moved to Sydney the husband’s position is that children should live primarily with him. As was explained to him, the Court cannot compel the mother to relocate in these circumstances.[3] In his affidavit he proposed that the wife spend alternative weekends with the children in Sydney.
[3] See the recent decision of Cronin J Preiss & Preiss [2017] FamCA 12; Sampson & Hartnett (No.10) [2007] FamCA 1365.
The wife did not require Dr D for cross-examination as she largely adopts his recommendations. The husband also did not seek to cross-examine Dr D.
The wife says that X was very ill as a baby and pre-schooler with silent reflux and brittle asthma. She says he was admitted to hospital several times and she left work to be able to care for him full-time. He is now seven years old and his asthma is much improved but he needs to be monitored when he has a cold as that can trigger severe asthma attack.
In August 2014 she returned to work four days a week working 9.00am to 5.00pm with some flexibility and the ability to work from home for a few hours. She says when she was working the children were either in after school care or family day care. She says that from August until September of that year when the husband had to go to India because his mother was dying he looked after Y for one day a week.
The husband denies that the wife was the primary carer of children. He refers to looking after the children at night and on weekends when he was not at work. Whilst I accept that the husband assisted in the care of children, I do not accept that he provided a greater proportion of care and even the same amount of care with the wife given his work commitments on his own evidence that his worked hard to build up assets.
The husband’s mother came to Australia for two months to assist with care of X, who was nine months old, when the wife returned to work. The husband claims that the wife was focused on her (omitted) business and taking appointments after hours.
The wife studied an online counselling course in 2011 and 2012. She says she mostly studied at night and when X was asleep and that the husband did look after X on weekend if she had an assignment and there were four occasions when she had to go into the city on a Saturday for a few hours.
The wife returned to work in mid-2014 and she commenced working four days a week. I accept that the husband reduced his work so that he was at home one day a week looking after Y. This was for a period of a month or so.
The wife says that most of the time she picked up the children from after school care day care. She returned to work when Y was about 18 months old.
The wife disagreed with husband’s assertion that he looked after the children for the whole of the weekends.
The husband cross-examined her about the management of X’s brittle asthma. She said she does have concerns about husband’s management of X’s asthma and refers to an incident where the GP added Flixotide to X’s medications in addition to Singulair. Those preventers are not taken constantly but are taken whenever he has a cold. She says the husband was present when it was prescribed and he was to take two puffs for three weeks until 4 October but X told her that the husband only gave him one puff during his weekend between 22 and 26 September. She says she sent an email to him about this. X is under the care of a paediatrician.
The husband then referred to the annexures which appear at pages 573 to 598 which are email exchanges with respect to X’s asthma. He then said that according to his calculations X has needed Ventolin 22 times in the year and asked the wife if this was excessive. I disallowed the question as that is a question for medical expert.
One of the mother’s complaints about the parenting arrangements is that it is difficult for her to plan ahead because the husband does not confirm which weekends he will be visiting. She also says the children have been disappointed when he has cancelled or changed his visits at short notice. The wife says the husband has never travelled to Melbourne as frequently as every second weekend as provided for in the interim orders.
An example of the lack of effective communication between the parties and the difficulties between them is with respect to the children spending time with their father whilst the husband is in Melbourne for Court cases. When cross-examining the wife on the second day of the hearing, the husband asked if the children had asked to spend time with the husband on Skype as he was in Melbourne. The mother said she was put on the spot and does not want the children to be used as messengers. The husband said that it did not come from him but the children because they could see on Skype that he was staying with his friend. The husband then sent an email to the wife about spending additional time with the children to which the wife has not responded.
The wife says the children kept asking her to spend extra time with the husband. The husband travelled to Melbourne for a Court hearing on 24 November 2016 and asked to see the children that weekend. The wife gave evidence that she had plans and was not able to swap weekends. The husband said he had indicated that he would be happy just have the children for a couple of hours or overnight working around her commitments.
The wife complains that the husband talked of the children and said “do you want to see me?” And X said “yes daddy” and that’s how it started. If that’s the case then certainly that is putting the children squarely in the middle and is inappropriate. However, it would have been clear to the wife that the husband would be in Melbourne for additional time for this Court hearing and the other Court hearings. It would have been a simple thing for the parents to communicate with each other well in advance of the dates to arrange extra time for the husband to spend with the children. It does not reflect well on either of that they seem unable to do this. Both have to take responsibility for it. The parents are going to have to deal with each of the other children’s sake for years to come.
The wife says that she no longer has concerns about the husband’s friend that he stays with when in Melbourne. She had expressed concerns about that arrangement to the family report writer. She says she no longer holds those concerns and that the children speak positively about the husband’s friend and his daughter.
Dr D prepared a family report and an updated report responding to specific questions. Neither party required him for cross-examination.
The husband complains that since separation the wife has obstructed his relationship with children. He speaks about how the children want to spend time with him in Sydney. He confirms that he is currently living in shared accommodation in Sydney. One of his other complaints is the wife’s refusal to allow him to have access $45,000 in the mortgage offset account. In correspondence, which is annexed to his affidavit, he refers to that being his money, presumably due to his earnings. He seemingly fails to appreciate that those funds are part of the funds to be divided between the parties and the task of the Court is not to simply engage in a mathematical exercise looking at financial contributions without looking at the breadth of the other contributions.
The husband complains that the wife did not allow him to see the children for two months after separation and then only allowed him to see them for five hours. He denies the wife’s allegations that he was violent. He further complains that the wife delayed in allowing him to have overnight time after previously indicating that she would consider that after receipt of the family report.
The husband also complains that the wife is not using child support for the children’s expenses and complains about their clothes and shoes. He goes to the extent of annexing photographs to his affidavit.
In his affidavit the husband also complains that the wife made several misleading and disparaging remarks to the family report writer about him and his friends, yet he chose not to cross-examine the report writer about these issues.
The husband spends several paragraphs in his affidavit complaining about medical issues and the treatment of X’s asthma. He then goes on to make several other complaints about the wife’s parenting of children. He again chose not to cross examine the expert nor put these concerns to the expert.
The husband is denigrating of the wife and her extended family in India in his affidavit. It is clear that the dispute between the parties has extended to involving their families in India. There are Court proceedings in India between the extended families.
The husband was cross-examined about things he is alleged to have said to the children. There was one incident where the husband sent an email to X (omitted) after he returned the children to the wife. In the email the husband said to X “I will never let you go”. The husband said this was quoting a song they liked. I accept that the husband did not mean anything by it. I also accept that it troubled the wife. To her it would have appeared that the husband was putting pressure on the children. These parents interpret things the other does in the most negative way possible.
The more important issue the husband was cross-examined about were the allegations that he has told the children that he will be taking them to live in Sydney. At [79] of the wife’s March 2016 affidavit she deposes to a conversation she has with X when he told her that his father told him a secret about taking the children to Sydney and that the wife would have to come every two weeks to see the children. X said he did not want to go because he did not want to leave his friends and his school. Tellingly the husband did not answer the question. The following exchange took place:[4]
[4] Transcript page 266.
“MR MORT: And have you ever told the children that they will be coming to Sydney to live?
MR GANI: There’s current Court orders that your client thought that I was abducting – I was going to abduct the children and I cannot …
MR MORT: No. No. I didn’t ask you about current ‑ ‑ ‑
HER HONOUR: Just answer the question, Mr Gani
MR GANI: I have not said that. I have no intention of taking the children to Sydney against existing Court orders.
MR MORT: I will give you one more chance, Mr Gani?
MR GANI: I’m telling the truth.
MR MORT: No. I will give you a chance?
MR GANI: I’m telling the truth.
MR MORT: Can you answer – please listen to the questions.
HER HONOUR: Listen to the question and answer the question.
MR MORT: Have you ever told the children that they will be coming to Sydney to live with you?
MR GANI: No. I have not.
MR MORT: So what Dr D says – Dr D says in his report at paragraph 81 – he says:
X’s comments would appear to suggest that Mr Gani and, to a lesser extent, Ms Darsha, have blurred boundaries and over-included him in inappropriate discussions about parental matters.”
I am satisfied that the husband has spoken to the children about moving to Sydney. I am satisfied that both parents have at times overinvolved the children in the dispute just as Dr D has opined. I find that the husband has done so to a greater degree. I do not think he has done this deliberately but I do not think the wife would have made up such a conversation.
The husband has not exercised all the time provided to him in the interim orders. In my view it was unrealistic to think he would be able to sustain travelling from Sydney once a fortnight to spend time with the children. The wife says that there were 21 weekends available to the husband and he did not take up nine of them. Even when this was put to the husband he did not simply answer the question but raised complaints about when the wife has not let him see the children overnight after the release of Dr D’s report and the incident at Y’s daycare. He then said he has always given notice when he has been unable to come. That was still not answering the question.
It took repeated attempts before the husband would answer the question he was asked. Finally, he agreed that he does not visit every fortnight. The husband did not take up the opportunity to spend time with the children in January when they did not have school. This is curious given his complaints about not being able to spend enough time with the children.
I have no doubt that the husband loves his children very much but he also had a sense of entitlement which blinds him at times. My impression is that he lacks child focus because of his sense of being wronged.
The family reports
Dr D’s family report is dated 15 February 2016. The allegations the parties make to the family report writer are consistent with the allegations they make to the Court. The family report writer identified the issues of concern raised by the wife as being:
a)That she was the primary carer of the children;
b)The husband secured employment in Sydney without consulting her;
c)That the husband was extremely financially controlling during the marriage and secretive and deceptive about transfers of monies;
d)That he has used physical discipline on X;
e)That he has over included X in adult conversations and is using financial inducements with respect to life in Sydney;
f)The husband lacks necessary child development skills and practical skills such as cooking; and
g)The husband has threatened to abduct the children to Sydney and she fears that he may take the children overseas for he is not threatened that.
The husband denied the wife’s allegations and characterisation of him and he stated he wanted shared parental responsibility and for the children to spend time with him alternate weekends and half school holidays. The husband alleged that the wife has been following him and expressed reluctance to reveal the details of the friend he stays with in Melbourne because of this.
The husband told the report writer that he intended to remain in Sydney as he worked very hard to earn his current position. He says he and the wife had discussed his current job in March 2015 and the possibility of the family relocating to Sydney in the longer term. He said she had been supportive and they were to review the situation at the end of 2015 after he had settled in Sydney. He said the announcement of the separation via email was completely unexpected. The husband is of the view that the wife continually attempts to limit his contact with the children and referred to the incident when he took the children to the water-park in (omitted) as an example.
There was an incident in January 2016 when the father took the children to a water park in (omitted) and returned children late. The father says he emailed the wife at 3.15pm saying they would be late but that despite this she contacted the police. The wife said she panicked and that she rang him quite a few times after receiving that email before calling the police.
With respect to the incident at the water park she says she was not told where the children were, whether they were okay, and that she had been very worried. This incident is a product of the deep distrust between the parties.
The husband told the family report writer that the children are confused by the separation and do not understand why he cannot come home. He said he has been seeing a child psychologist in Sydney to gain skills and strategies to assist managing the children’s distress and questions. He says he has been actively involved in the children’s care and says he is able to cook and provide for the children’s needs.
He told the family report writer that he does not hold any grudges towards the wife and that he respects her privacy and wishes she would respect his and sees no need for intervention orders which he sees as detrimental to the children. The husband’s written and oral evidence contradicts what he told Dr D. His bitterness towards the wife was palpable throughout the hearing.
The family report writer records that from the outset the wife told him that the children love their father and miss him. She had no concerns about Facetime contact and has no concerns about the children’s physical safety but does have concerns about their emotional safety and she identified her concerns as including:
a)The husband using X as a messenger. That he will list things that the husband says he wants X to bring to his time arrangements and that he appears anxious about this and worried that he will forget something. She says when she reassures him that she will email the husband he checks that she has done so. Her impression is that X is trying to please both parents;
b)She is concerned that the husband is telling X to keep secrets and withhold details about their activities together as X has told her things that he says the husband told him not to tell her;
c)From what both children tell her suggest that the husband has tried to negatively influence them against her and the gain sympathy telling children things such as the husband is not allowed in house, that the wife’s changed the locks, that she has lied and yelled at him, that he would like to spend more time with children but the wife won’t allow him and that the wife’s parents have been mean to him.
She feels that the husband is behaving this way because of feeling angry towards her because she asserted herself and did not act in accordance with his wishes and because he believes that she is trying to keep the children away from him.
She says the children are thriving post separation and that she feels that the emotional tone in the house is better because she is calmer and does not feel like she is walking on eggshells anymore.
She told Dr D that children had never spent a night away from home and that she does not want the children to spend overnights at the husband’s friend’s house.
The family report writer observed that the wife struggled to formulate an arrangement for the children to spend time with their husband and appeared “deeply conflicted”. With respect to overnights she said if she is confident, the children will be confident. She proposed a gradual introduction of overnights in Melbourne. The wife said that the husband’s proposal was all about money to reduce his child support payments. She later added that he also obviously misses the children.
The wife said that the husband is a good provider and he loves and cares for the children.
She feels that counselling to work on better communication between the parents for the benefit of children would not work because “he’s never wrong”.
The family report writer said that X engaged well in the interview and impressed as being a perceptive six-year-old. He was positive about school and spoke about having many friends there. He was sad that his parents are separated. He was positive about both his parents and said that his parents are the people with whom he feels safest. He said he feels sad when he does not have a good time with his father when it is annoying or boring, but he is very happy when he does have a good time with his father.
X said he would tell his parents “you can be friends again if you want”. He said that his father thinks his mother is mean but she is not and that his father told him that his mother screamed at him and lied to him but she did not.
Both children engaged with their parents in a very positive relaxed and happy and confident manner. They competed for their father’s attention. Both parents engaged with the children in inclusive attentive encouraging manner. The family report writer observed that both children asked about their father during the session with the mother and that she “very appropriately reassured them”.
The family report writer observed that the extent to which the parties allegations of the other and accounts of events, accurate or not, is a matter for the Court.
He observed that the children’s interaction and engagement with the father was indicative of a history of a predominantly happy and healthy father and child relationship.
Significantly he observed at [81] that X’s comments suggest that the husband, and to a lesser extent the wife, have blurred boundaries and over included him in inappropriate discussions. He cautioned the parents against exposing the children to commentary or responses with respect to the other parents’ behaviour or allegations with respect to the conflict will separation and said:
“[I]t is significantly better for children’s psychological and emotional health if they do not feel that they are allies or confidants in parental conflicts. Clinical experience in this field shows consistently and unequivocally that children do not want to hear such commentary. Children are defenceless against the negative attack by one parent upon the other; it can be deeply hurtful and confusing, and result in significant functional impairment….”
He also pointed out, that whilst well intentioned, it is misguided to ask the children about their views with respect to parenting arrangements such as with respect to schedules or overnight time as this is beyond the children’s developmental capacity. It also gives the children a sense of choice with respect to these decisions and it can also draws children into loyalty binds between their parents.
The family report writer’s comments are insightful and both parents should be very mindful of the warnings. I have now no doubt that both parents deeply love their children and want what is best for them.
Dr D recommended that the husband have overnight time three nights a fortnight as the husband proposed and that his time be able to occur at his friend’s home rather than a hotel.
He observed that the issue of the children and the wife moving to Sydney was likely to be a source of ongoing tension and that the parents should engage in counselling to improve their communication as email communication is not sufficient to cover everything.
Dr D prepared an addendum to his report at the request of the parties. It is dated 23 May 2016. The type of disputes the parties raised were not ones that Dr D could determine. He was asked to comment on the following issues:
a)Whether or not the husband’s ‘erratic’ behaviour turning up at Y’s child care means that overnight time should not commence. With respect to this issue, Dr D made the obvious point that he could not determine what did or did not happen but referred to his positive observations of the children with the husband and the fact that the wife reported that the children were excited about seeing their father and palpably disappointed when he did not come. He also noted that the wife was proposing one overnight and observed that if the children were not going to be at risk for one overnight it was hard to see how that would be at risk for two or three overnights. He confirmed his recommendation that the husband’s overnight time start immediately. He said that the children should have video or telephone conference with the wife once or twice during their time with the husband. The wife needs to do the same with respect to the husband and this should be non-negotiable:
b)Whether or not the wife should be able to take the children to India once a year to visit her family. The husband objects on the basis that there is an unacceptable risk that she will not return the children to Australia. This issue involves a balancing of the children’s best interests with the obvious benefits in spending time with extended family and being exposed to Indian culture. Unsurprisingly he said this is an issue the Court must determine.
c)The last issue was the wife’s proposal that there be a self-executing order reducing the husband’s alternate weekend time to every three or four weeks if he misses more than three occasions of alternate weekend time in a 12 month period. The wife seeks this because she says the husband cancels visits at short notice including on the children’s birthday and that in April 2016 he failed to collect the children without any notice. The husband opposes such an order saying to could significantly impede his relationship with the children. Dr D expressed concern that given the history of the dispute such an order could lead to further conflict between the parties with allegations and counter allegations. He observed that if the wife’s account is accurate and that cancellations take place other than in emergencies and that communication is poor that this would raise concerns about the importance the husband places on his time with the children, his level of insight, the impact of the cancellations on the children and his capacity to adhere to the fortnightly arrangements. If the wife has fabricated or embellished these concerns that it raises concerns about the wife having an agenda to portray the husband in a poor light and as well as concerns about her capacity to support the children’s relationship with their father.
Dr D again emphasised the importance of the parents finding a way to reduce the conflict and find a way to co-parent for their children’s benefit.
The wife says that she wanted to have the family report to assist the children manage the difficult situation of the parties separation but also for herself to be guided as to how to manage it and assist the children.
The wife says she had concerns about the husband’s parenting capacity but that most of her concerns were put to rest by the family report.
The wife says that now that she has received the family report she is content for the children to spend increasing time with husband but this needs to be gradual given that Y is only three years old. She says she was concerned that the husband’s lawyers wrote to her lawyers on 24 December 2015 demanding that the husband be permitted to take the children to Sydney for a three week block period in January 2016. At that stage the daughter was two and had never spent a night away from home. She says this caused her concern as to whether or not the husband was able to empathise with the children and see things from their perspective. She annexes the correspondence to her March 2016 affidavit. The wife’s concerns are not surprising. In her lawyer’s response she raised concerns that the children have not spent time away from her and as the husband would be in Sydney they could not easily return to her if they were distressed. Seeking overnight time is one thing but a three week block is quite another and appeared to be more about the husband’s needs than the children’s.
The husband’s position is that he was an active parent involved with the children before separation and he cannot understand why the wife says she had concerns about his parenting after separation.
One of the husband’s complaints is that his overnight time with the children did not start until the couple of months after the family report was received. The wife says her lawyer wrote to his lawyer in February 2016 shortly after the contravention hearing and did not get a response. She said that after the matter was in Court in April the following day the husband attended Y’s day-care without notice and without there being orders in place, which caused her such concern that she wanted to review the family report again. The husband annexes an email from the day care centre asking if they had any concerns when he attended the centre to introduce himself and to enquire about Y’s development.
The wife was concerned enough to instruct her lawyer to write to the family report writer. The husband’s solicitors also wrote to him and these appear at pages 572-579 of the annexures to the husband’s affidavit. It provides an example of the high level of distrust between the parties. The wife says her concern was raised because there was no arrangement in place for the husband to collect Y from day care at that time and he acknowledged he had not raised it with her. She says if he had told her that he wanted to attend her day care they could have made that arrangement. She says the day care contacted her and said they found the visit odd.
The wife says the children miss their father. One of the issues that she raises as concerning is when the father cancels visits and the children are disappointed. One of the wife’s other concerns is that the children are being used as messengers and that they are encouraged to keep secrets from her. She says that the husband told X that he was going to drive the children up to Sydney and their mother would see them sometimes. She also says that she found X crying in his room one night because he felt sad because his father had not emailed him and said that the husband taught him how to do that from school. She then said she discussed this with the school. She said the school took steps to remove the email from the iPad as it is a school iPad meant to be used for educational purposes. She said she was also concerned about an email that the husband sent within 30 minutes after returning him to wife’s care say “I will never let you go”. The husband asked her what her concern was with respect to that and she said that X should feel secure in his relationship and by saying “I will never let you go” it is instilling fear that there will be a time when he can be separated from his mother or father. The husband confirmed that he sent that email to his son and that is what he said. That is precisely the type of concern that the report writer raised. It may not be deliberate but it still places pressure on the children.
I have no doubt that the children already feel pressure, not because their parents are doing anything deliberately but because they are acutely aware of the separation and the high level of conflict between their parents and the anxiety in their parents.
The allocation of parental responsibility
The evidence before the Court with respect to the parties’ communication and the husband’s attitude towards the wife raises real concerns about the viability of the parents being able to effectively have parental responsibility for decision making for long term issues affecting the welfare of their children.
The husband has made complaints to the Department of Immigration. When questioned about it he said that he asked the Department not to issue any visas sponsored onto his name for the wife’s parents. He has also complained that the wife did not declare a previous marriage to him. What is of some significance is that part of exhibit W, which is a bundle of email correspondence with the Department for Immigration, is a letter written by Mr S to the Australian High Commission in New Delhi dated 1 April 2014 on behalf of his client the husband. This is significant because the husband earlier gave evidence that he had spoken to Mr S with respect to requesting documents related to his mother’s estate but did not acknowledge that Mr S was his solicitor as well as his sisters’. This is plainly not correct. The letter complains that the husband believes his signature has been used for the purposes of obtaining visitor visas to Australia in the wife’s family. The letter talks about the wife being on a special category visa and not being entitled to sponsor friends or family and that all previous occasions the husband had to sponsor them. The letter also complains about personal items being removed from home illegally. It also states that the husband is pursuing the wife of marriage fraud in Australia. The letter requests immediate action to be taken and thorough investigation as “it is a serious issue which may pose threat to the national security of India as well as Australia.”
The husband made a report registered on 20 June 2016 being a report of a crime where the husband has reported the wife to the Australian Federal Police (“AFP”) of having committed fraud against the Commonwealth of Australia and against himself. It refers to her lying with respect to her marriage and lying in several Court documents in Australia. In the last paragraph he talks about the wife orchestrating a “systematic fraud over a number of years” requesting that the AFP conduct relevant checks and enquiries to ascertain the true extent of the wife’s “identity and fraud to ensure this spree of deception is stopped and further restrained citizens are protected from harm.”
There is no indication that any action has been taken against the wife. One of the things that is concerning about this communication is that it shows the absolute level of disdain husband has for the wife yet he seeks to co-parent with her and claims not to have a grudge against her.
An example of the extent of the bitterness the husband feels towards the wife is found at [217] of his October 2016 affidavit where he states that he can’t be sure if the wife had extramarital affairs and says he wants “absolute confirmation” that he is the children’s biological father. He went on to say that the child support agency asked him that too. This is an extraordinary thing for the husband to say. I find he has said this out of malice and bitterness, not because he had genuine doubts about the children’s paternity. When cross-examined about this he said he was no longer persisting with that claim. He said he put it in after he read the wife’s affidavit where she said she was unhappy for a number of years and they did not share the bedroom. He agreed it was offensive and again referred to the child support agency. I do not accept that the child support agency would have repeatedly raised the issue of paternity. What is clear from his answer is that he felt justified in saying it because he thinks the wife has denied him access to his children and wants to break his relationship with them.
The husband was then questioned about equal shared parental responsibility. He agreed that this requires the parties to communicate with each other and have a degree of cooperation and respect. When it was pointed out to him that as recently as in his October 2016 trial affidavit he said a number of offensive things about the wife he pointed to what has occurred over the last 18 months and said that the wife had denied him “proper access” to the children and that she had said a number of “offensive things” to the children. He claimed that the children are struggling and that he is concerned about their mental health. The husband’s views are not reasonable. The wife has been overprotective but I also accept that the husband has been so bitter and overbearing that this would have caused her further unease. It is also clear that the husband’s proposals for spending time with the children have not always been child focussed. His proposal that he have the children for a three week period in Sydney is a prime example of that.
The husband says that he does not hold a grudge against the wife but his affidavit shows otherwise.
At [200] of his affidavit he said that the wife “carefully planned, executed and called separation after use of deceit, lying, marital fraud and financial manipulation.” He then inexplicably in answer to the question whether he has a poor opinion of the wife said “I do not have a poor opinion. I just wanted to get access to the children and move on with life.” When challenged by me again he simply could not answer the question in a straightforward manner but skirted around it. The issue is important because at the same time he is saying that he wants to co parent with the wife. He then said that it is why he is seeking primary care of the children.
The husband was cross-examined about his statement at [177] of his affidavit where he said that the wife “has no social or moral conscience and continues to be obstructive even after her conduct being close scrutiny at the Court in the moment” {sic}. He was asked if this was his view of the mother of his children and he spoke about the wife being obstructive and not letting him see the children for much of the past 14 months.
He was then asked if he accepts that he was also under close scrutiny of the Court and he responded that he is under close scrutiny at all times and is a law-abiding citizen and respectful human being.
It was necessary to repeatedly remind the husband that he needed to listen to the questions he was being asked and answered those questions rather than making speeches. This was a common theme throughout Mr Mort’s cross-examination of him.
The wife’s counsel then put to the husband that the wife’s comments to the family report writer at [55] in the first family report where she said that she did not want to speak to the husband anymore because she finds it demeaning as he is focused on money and that he believes that she is pursuing his money. The husband would not accept that it fits perfectly with the evidence he just gave. Again when faced with this the husband would not answer the question which was put to him directly. Instead he spoke about being denied access to the children.
Whether or not the children should be permitted to travel overseas with their parents and who should hold the children’s passports
The wife wants to be able to travel to India with the children. Both parents are from India. Both have extended family there. It is important for children’s long term welfare that they be exposed to and have an opportunity to immerse themselves in their culture. They will also benefit spending time with extended family in India and experiencing how their live. They cannot get this in Australia.
The issue of overseas travel with children has been addressed in several decisions: Kuebler & Kuebler (1978) FLC 90-434.
Both parents should have the opportunity to travel with the children to India in the future and introduce the children to where they grew up.
The husband opposes this. He says because of what has happened since the parties separated he is fearful that the wife will take the children to India and not return them.
The wife has not lived in India for many years. Before she came to Australia she lived in (country omitted). She is a (country omitted) citizen and Australian resident. She is employed here. She seeks to retain the former matrimonial home as part of the property settlement.
Both parties have had family members come to Australia to visit. During cross-examination the husband claimed that the wife once made a threat to remove the children to India. He could not give any details and did not refer to this threat in his affidavit. He says he did not think of it at the time. I do not accept his evidence. I find that the wife has not threatened to take the children to India.
I find that it is in the children’s interests that they should be able to travel to India to with either parent. The wife should hold the children’s passports as the children will be in her primary care.
Wife’s allegations of family violence
The wife alleges family violence. In an application for an intervention order in the Werribee Magistrates’ Court, the wife said that after the parties separated in early June the husband attended the home without notice on 14 August 2015 and tried to force his way into the house. She says she, the children, and her mother felt unsafe and threatened. She says he had previously turned up at midnight uninvited on 17 July 2015.
When cross-examined about this the wife said that the husband would yell at her in front of the children. She said she would not be able to say what she wanted to say because she feared either she would not get a reply or she would get a very strong reply and she would feel like she was a bad person.
The wife alleges that the husband hit the parties’ son X several times across the face when he was young and that she told Dr D about this. The husband denies this and cross-examined the wife about this issue. She says she did not report it to the police at that time because she told the husband that she would if he did it again. She says she found the husband in the bathroom with X. The husband had his arm in front of X’s hands so he could not move and the husband slapped him across the face because he wanted to go to sleep with the maternal grandmother. Y was four weeks old and X had recently started kindergarten so it occurred in April or May 2013. She says after the incident she did not leave their son alone with the husband very much.
Legal Principles and Conclusions with respect to Parenting
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. Whilst there are ongoing intervention order proceedings on foot before the Magistrates’ Court, I am not asked to make findings about family violence in these proceedings and little evidence has been led about this issue.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court of Australia (“High Court”) found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each Court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The children have a meaningful relationship with both parents. This will continue even though the parents are likely to remain in different cities.
Nevertheless the level of conflict and distrust between the parties is high. In addition, the husband is so bitter towards the wife that I do not have any confidence that the parties will be able to exercise equal shared parental responsibility in near future. It is only likely to lead to further conflict which is not in the children’s best interests. It is a serious thing to exclude a parent who wants to be involved in the children’s lives and who will be spending regular time with them. The father has valuable things to offer the children and decision-making for the children is part of this.
Nevertheless, in weighing up the evidence I am satisfied it would not be in the best interests of the children for their parents to exercise equal shared parental responsibility. The level of conflict is too high and the level of distain the husband has towards the wife is too high. Examples of the strength of the husband’s negative feelings towards the wife are peppered throughout this judgment. I will require the wife to inform the husband of the decisions she proposes to make about major issues concerning the children’s welfare and to give the husband the opportunity to provide input which she is to consider before she makes the decision. I will also make orders authorising the husband to contact the children’s school and medical practitioners so that he can keep informed of their progress.
What is significant about this is that there are a number of accounts clearly were opened at a branch in India that are in the husband’s sole name that he failed to disclose. The accounts were reduced to 0 shortly after the first scheduled final hearing. The husband makes no reference to these accounts in his affidavit which is all the more surprising given his bitter complaints about the wife’s disclosure.
The husband cross-examined the wife about annexure G99-2 which appears at page 621 of the husband’s October trial affidavit which is the printout of Indian bank account in the joint name of the husband and his mother. The wife says that she took photos of the documents she found in the former matrimonial home before returning the documents to the husband. The husband claims not to have access to the bank account statements for this account. When challenged at first he said he had disclosed the account in August 2015. He then said that he does not have the closing statement showing it was closed in 2015 as it is in an overseas jurisdiction.[9] I do not accept the husband’s evidence. He has family members in India and is clearly in contact with them. The account is in his name. He also has a lawyer in India who he communicated with via email. He also emailed the bank to complain about an unauthorised person accessing his account statements. When Mr Mort pointed out it is his obligation to disclose the husband then claimed again that he had and that he had provided the statement. Mr Mort called on the husband to produce the document. I explained to him what is required to produce that email he says he has showing that he produced it and if he failed to do so the Court would be asked to draw an inference about that. He did not produce the documents.
[9] Transcript page 43, 10 November 2016.
There are several accounts in India in joint names of the husband and his late mother. The husband has not provided complete disclosure with respect to them. The husband says he cannot access them all because they are in an overseas jurisdiction.[10] I do not accept this. His own email to the bank is inconsistent with this. It is within his control to get those documents. I find that he deliberately failed to do so.
[10] Transcript page 43, 10 November 2016
The husband alleges that the wife fraudulently obtained bank statements from the Indian bank. He relies on an email from the bank which appears at page 623 of his trial affidavit. That email does not establish that the wife obtained the statement by deception. The email from the bank is not addressed to the husband; it is addressed to Mr S. He refers to the letter received at the 28 June 2016 regarding the security of the account ending in (omitted) of the husband’s late mother. They say that checked their records which confirm that a copy of the statement of account was issued by them on 17 November 2014. They say they do not share customer account details with any other person and it is only provided at the request of customer. The wife says she took pictures of the husband’s documents on her phone because she handed the originals to him. The copy of the statement appears at page 621. The quality of the copy is poor. I am not satisfied that the wife has obtained copies of the husband’s bank statements illegally. The email from the bank does not prove that the wife obtained the statement illegally. The email from the bank does support the proposition that it was within his power to obtain his statements.
The wife says in addition to the Indian bank accounts the husband failed to provide details of his interests in his late mother’s estate. The husband has taken legal action in India with respect to the estate of his late mother. The wife says he has a potential one third interest in her estate which includes real estate.
The husband was cross-examined about the Indian bank accounts. Although the account is in his name he did not disclose this in his financial statement. He says that the funds are quarantined for his mother’s expenses incurred before she passed away including a number of hospital bills. He says he was a joint account holder with her but the accounts are now in his name. He denied being the executor of her will and says he does not know who is the executor.
It was put to him that the only way that the wife discovered the accounts was through subpoenaing the (omitted) Bank. The husband says the wife knew about those accounts. The wife’s evidence was that she discovered a bank account statement for one of the Indian bank accounts in the former matrimonial home and took photographs before returning the documents to the husband. I do not accept the husband’s evidence that the wife knew about these accounts previously. The husband had an obligation to disclose those accounts and include them on his financial statement as they are in his name. He could easily provide an explanation and under part O of the financial statement which allows for additional information to be provided. He has also failed to provide statements for those accounts for the past 12 month period. Providing one or two statements does not comply with his obligation for disclosure. He produced a two page statement that predated separation.
He then said he would contact the bank and provide 12 months’ worth of statements and talked about how that could take a while because it is overseas. The husband was on notice that he needed to provide those documents well before the hearing. He simply failed to do so. It is consistent with his attitude that he feels those accounts should not be part of the proceedings. As with the issue of not complying with the interim order, to which he consented, this is because it is his belief that it is not relevant and therefore he does not feel that he has breached his obligations. Repeatedly the husband did not answer the question he was asked directly but sought to provide other explanations. The husband was not a credible witness.
The husband failed in his obligations in the face of making numerous complaints about the wife and her legal team when he complains about not providing disclosure. Yet even when he was legally represented he failed to provide his disclosure completely. His stance is hypocritical and is another example of his rigidity in thinking and approach.
What all of the above shows is that in the act of the transactions in these accounts post separation the husband has failed to provide full set of accounts.
The husband also has a (omitted) account which he held jointly with his mother. He says his mother added him into the joint account. He says that is common in India and again said he is not the executor of her will. The husband says he did not receive statements for that account yet says that account was closed somewhere in 2015. The husband claims he did not have the statement in the former matrimonial home. I do not believe his evidence. Given my impression of the husband I do not accept that he would not keep bank statements. He admitted that in June 2014 he accessed the account and moved funds to the (omitted) Bank account that was set up. He said he transferred the entire balance. Despite doing this he denies taking ownership of those funds and claims that he kept those funds to cover payments the sisters made when his mother was in intensive care. That does not make sense. Given his sisters are in India, and in light of his claim that this was to pay for expenses for his mother, he could have simply provided those funds directly to his sisters to cover those payments.
I do not accept the husband’s denials that he does not have any interest in his mother’s estate. I accept that his sisters live in his mother’s house in India and he has not lived in India for many years but that does not mean he does not have an interest in the estate. This is another matter which the husband has been well aware was an issue in dispute in this case. It is for the husband to make his case. Again I do not accept that if what he says is true, he would not have been able to produce documents verifying this. He acknowledged that the wife has asked for a copy of the will.
The husband says he contacted Mr S, a lawyer in India. He claimed that he does not know if he is acting on the estate but is a lawyer of whom his family provided him with the contact details. The husband claims that there is litigation in India by his family against the wife’s family.
The husband claims not to know the details of litigation as he is not a party to it, yet also gave evidence that he spoke to his sister in the last week or so. The following exchange then occurred:
“MR MORT: And you would have known that my client would have been raising these issues relating to your mother’s estate. Is that right?
MR GANI: It’s up to you whatever you want to ask me.”[11]
[11] Page 201 of the transcript 11 November 2016
The husband then continued to give non-responsive replies to questions which was a common recurrence throughout Mr Mort’s cross-examination of him.
Exhibit P is an email exchange between the husband and Mr S. The husband emailed Mr S on 16 April 2016 asking for urgent enquiries to be made and for a copy of his mother’s will, the details of her estate and bank accounts, and any other documents with respect to her assets within 14 days. Mr S responded on 27 April 2016 stating that he would need further time to provide a copy of his mother’s will along with details of her estate and her bank accounts. The husband has not provided any other correspondence and simply says that his sister would not provide him the will and that Mr S has not provided a copy. I find on the balance of probabilities that it is more likely that the husband has made the enquiry he needed to make after the April interim orders but has not made a serious attempt to get further documents. He provides no other documents indicating that he has further followed up and been refused but simply says he was told that orally.
I do not accept the husband’s evidence that he has not discussed the proceedings with his sister except in the most general terms. The husband was cross-examined about an affidavit filed by his sister in the proceedings in India which refers to the wife’s parents fraudulently obtaining copies of documents including statements from the (omitted) bank belonging to her deceased mother and referring to the wife’s affidavit filed in the strutting Court. His sister could not know about that unless the husband had told her.
Exhibit Q is a printout of a financial summary from (omitted) Bank account ending in (omitted) in the husband’s name showing a balance of INR 313,626.99. The print out is dated 28 April 2016. Again the husband has not provided statements for this account but claims he has complied with his disclosure obligations. That is not compliance.
Exhibit R is a letter from the wife’s lawyers to Mr Gani dated 21 September 2016 setting out the items that are yet to be disclosed pursuant to orders made on 8 April 2016.
The husband has not completed his 2015 and 2016 tax returns. It was put to him that he has not done that despite being aware of the proceedings being on foot. His answer was to say that the Child Support Agency has his updated income. That was not the question he was asked and it is yet another example of the husband being more determined to provide answers that he thinks assist his case rather than concentrating on answering the questions that he is being asked.
The cross-examination of the husband continued on the third day of hearing being 3 February 2017. The husband said that he had produced the last 12 months of the bank statements that he had not previously provided at Court. What he provided to the wife’s counsel was an affidavit by his sister. He says that it was sworn for these proceedings and it said that the funds were for his sister to pay for his mother’s hospital expenses and that he does not hold those funds. This is not compliance with what he was required to do. It was completely inappropriate to seek to rely on an affidavit affirmed on 17 December 2016 partway through part heard hearing.
Exhibit B are the statements the husband say are in compliance with his obligation to provide 12 months of statements for the Indian bank accounts. They fall well short of that and the following exchange is telling:
“MR MORT: I suggest to you what you produce as a result of being pressured to produce those documents is very unhelpful, Mr Gani. What do you say about that proposition?
MR GANI: ‑‑‑I’ve always said they are not matrimonial assets. These are my mother’s funds and they have been paid towards my mother’s illness. Your client wants to put them towards the asset pool and they’re not.
Exactly, Mr Gani. And you heard her Honour on the last occasion explaining to you that on the basis that your name is on those accounts, that you have some sort of beneficial or other type of interest, that you’re obliged to produce those accounts and you have failed to do so, haven’t you?‑‑‑I have not. If you look at my affidavit, in August 2015, even before the first interim hearing, (omitted) Bank account statements and (omitted) statements from India were provided, whereas your client did not provide any assets from India.[12]”
[12] Page 233 of the transcript 3 February 2017.
Disclosure
Each of the parties complain that the other have not complied with their obligations to make full and frank financial disclosure. It is clear that some of the disclosure has been very late.
It was also apparent during the hearing that the husband has also failed to produce up-to-date material despite being requested. One example was his superannuation fund. At the hearing he produced statements for restraint superannuation account as at 31 December 2015 almost a year out of date.
The more serious issue was with respect to the Indian bank accounts. I am not satisfied that the husband has not had the ability to obtain statements for those accounts. His own emails show that he is able to contact the bank to make a complaint about the statements. He has produced partial statements then says the accounts were closed and does not provide the account statements showing that. It is not enough to simply produce a single statement. The obligation requires that he should have produced the statements for the past 12 months so that when the husband says he has complied and the wife has not this is simply not the case.
At the end of the hearing Mr Mort submitted that the husband failed to establish that the wife had failed to comply with her duties of disclosure. Certainly she was very late in complying with some aspects of disclosure. I accept the wife’s explanation with respect to the bank account in India.
The same cannot be said of the husband. Mr Mort referred to the decision of Young J in Sebastian & Sebastian(No.5) [2013] FamCA 191 which conveniently summarises the authorities at [1131] to [1135]:
“There are many cases which set out the approach to be undertaken by the Court where a party is found to have failed to comply with their obligation to make full and frank disclosure. The relevant authorities were listed by the Full Court in Chang and Su (2002) FLC 93-117 at [67], including: Stein and Stein (1986) FLC 91-779; Mezzacappa and Mezzacappa (1987) FLC 91-853; Black and Kellner (1992) FLC 92-287 and Weir and Weir (1993) FLC 92-338.
The correct approach to be taken was recently confirmed by the Full Court (Bryant CJ, Finn and Boland JJ) in Gould and Gould (2007) FLC 93-333. In that case the trial judge made a finding that the husband had not complied with his obligation for full and frank disclosure. The trial judge took that finding into account when assessing the parties’ contributions. On appeal, the husband successfully argued that the trial judge erred in taking the lack of disclosure into account at the contribution stage.
In considering past authorities on the approach to be taken in relation to a failure to comply with the disclosure requirements, the Full Court cited extensively from the Full Court decision in K and K (2003) FLC 93-135; [2002] FamCA 1150. After reviewing the relevant authorities, as were set out in K & K, the Full Court concluded that the trial judge had erred and set out the correct approach at [26]-[27]:
While the decision of the Full Court (and indeed also of Holden CJ) in K & K confirms the earlier decisions which were cited by the Full Court and which establish that a robust approach can be taken by the Court in cases of non-disclosure, neither that decision, nor any of the earlier decisions cited, would, in our view, support the approach which the trial Judge in this case took in paragraph 24 of his reasons for judgment, being to reduce his assessment of the husband’s contributions of account of the husband’s non-disclosure.
Rather the appropriate approach for his Honour to have adopted in this case would have been to have increased the asset pool to take account of non-disclosure by the husband…Alternatively, or even in addition, had his Honour been persuaded that on the balance of probabilities there existed assets other than those contained in the asset pool contained in his reasons, his Honour could have made some adjustment in favour of the wife on account of the husband’s non-disclosure pursuant to the provisions of s 75(2)(o), as did Holden CJ in K & K.
This approach was most recently approved by the Full Court in Jamine & Jamine (No.2) [2012] FamCAFC 104 who dismissed an appeal by a husband in circumstances where it was found by the trial judge that the husband had failed to make full and frank disclosure and as a result the wife received a 5 per cent adjustment in her favour, pursuant to s 75(2)(o).
The Full Court in K & K (supra) highlighted the “absolute” nature of the duty to disclose and stated that:
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.”
I am satisfied that the husband has failed to comply with his duties of disclosure particularly with respect to his interests in India. I am left with a most unclear picture. I am satisfied that it was within the husband’s control to provide a set of the Indian accounts. I am also satisfied that it was within the husband’s power to provide evidence as to what money, if any, is required for his mother’s estate. He provides no evidence that he made any serious attempts to provide this evidence.
I am not satisfied that the husband could not have obtained information from the lawyer in India and from his sister if that evidence was going to assist his case. His family in India is suing the wife’s family. He gave evidence that he talks to his sister regularly. He sought to produce an affidavit by her part way through the hearing.
I am satisfied that the husband has bank accounts in India and resources being an interest in his late mother’s estate due to his non-disclosure which I am satisfied is deliberate. The extent of his non-disclosure is such an adjustment should be made pursuant to s.75(2)(o) of the Family Law Act 1975 (Cth) (“Family Law Act”).
The parties legal and equitable interests
The parties’ legal and equitable interests are:
Assets
$
Property C 530,000 Property E 420,000 Holden (omitted) 8,000 Hyundai 18,000 Children’s bank accounts E19,000 Husband’s interests in India Unknown Funds in the mortgage offset account E95,000 Rent payments added back 18,873 Total Assets 1,108,873 Liabilities Property C mortgage 218,000 Property E mortgage 244,258 Total Liabilities 462,258 Net assets 646,615 Superannuation (omitted) Super Fund 133,633 (employer omitted Super Fund) 25,261 (omitted) Super Fund 21,885 Total Superannuation 180,779
There is no valuation of household contents. I will not include the contents in the balance sheet. I will not include the parties’ credit card debts as presumably they have been occurred post separation. No submissions were made about these debts.
The two pieces of real estate were valued in January 2016. The husband sought to rely on council valuations which are not admissible. He says he tried to get agreement for updated valuations that were refused. The first hearing was adjourned at the husband’s request. He could have obtained updated valuations if he wished. It was explained to him that he could cross-examine the valuer. He chose not to take that course.
The husband failed to file an updated financial statement with his trial affidavit. The husband refers to approximately $95,000 being available in the parties’ offset account. The wife does not include this in her balance sheet. I suspect this is an omission on her part.
Jewellery
The husband includes photographs of jewellery as annexures to his October trial affidavit. He says that his wife has not returned many items of jewellery. The wife says she never received any heirlooms or expensive jewellery from the husband or his family but did receive smaller items of jewellery which she says she has returned. She says some items were returned via her counsel at the Court appearance in February 2016 and other items were returned through her counsel at the Court appearance in April 2016. The wife was shown a series of photos annexed to the husband’s affidavit. She identified that she still has the glass bangles that she is shown wearing in one of photographs which she says gifted to her by her parents and that in Indian culture the wife wears glass as the symbol of being married and they are worn on special occasions.
She identified earrings and necklaces that she has returned to the husband.
I do not have any evidence of value of jewellery and I am not satisfied that the wife has jewellery of any significance.
Personal items
The husband complains that the wife has not returned several of his personal items despite numerous requests. He cross-examined the wife about the items listed at pages 346 and 347 of his October trial affidavit. The items include furniture as well as personal items.
The wife says the husband collected 10 boxes of personal items in the presence of police officers. He collected larger items when he collected the car.
The wife says she has not given the husband access to furniture because she and children remain living in the home. She said she found a box of old articles in the garage and would bring them to Court the following day.
Children’s savings accounts
There are two bank accounts in the children’s names. The husband says that the wife set these up after separation without his consent.
The wife says that she and husband agreed during the relationship that they would set up accounts for the children and contribute towards their savings to assist with future needs including education. She says that when their son was born her parents gifted him $2500 and asked that the parties set up a bank account for him. The wife says the husband insisted that it be paid into the mortgage offset account which upset her parents.
She seeks that the children’s bank accounts be held in trust for them for their future educational and other needs.
The husband denied knowing about the children’s bank accounts and complained that the wife failed to disclose them and they were discovered through a subpoena.
The accounts were set up in the children’s names after separation. The wife’s evidence is that she intended to transfer $20,000 into X’s account last year and then split that between his account and Y’s but she has not been able to do so because she did not provide the bank with Y’s birth certificate. The wife says X deposits $5 a week into his bank account through his school.
The wife says that she and the husband discussed saving the Centrelink parenting benefit for the children’s schooling. She says the husband refused but started transferring $250 a fortnight which he labelled for as being for school funds.
The husband’s position is that those funds come out of the relationship and should be divided between them with the rest of the assets.
Given the level of distrust between the parties and disdain husband clearly has towards the wife holding accounts on trust for the children it seems untenable as it is likely to lead to further conflict in argument. In view of this the better approach would be to include the funds to be divided in accordance with the overall property adjustment. It will then be a matter for the parents individually as to whether or not they wish to set up accounts for the children’s future education.
Legal Principles and Conclusions with respect to Property
Until the High Court decision in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”), the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the Court that, in all the circumstances, it is just and equitable to make the order.
“The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.”
[Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1.Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2.Secondly, although s.79 gives the Court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3.Thirdly, when considering whether making a property settlement order is just and equitable the Court must not assume that one or the other party has the right to a property adjustment order. The Court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
The husband referred to three decisions with respect to contributions being Money and Money (1984) FLC 92-485; GWH & PGH [2005] FamCA 388. The third decision is Spiteri & Spiteri (2005) FLC 93-214. In that case the Full Court found that the trial judge had overlooked the husband’s initial contribution. The remainder of the decision focused on the wife’s wastage of assets. He refers to other decisions in his case outline.
In Williams & Williams [2007] FamCA 313 the Full Court states at the [26]:
“We think there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution between the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.”
In the recent decision of Wallis & Manning [2017] FamCAFC 14 the Full Court discussed initial contributions and the significance of the length of the relationship can have a significant impact on how initial contributions are assessed when weighing up the totality of the parties’ contributions.
Mr Mort is correct that despite the first scheduled date for the final hearing being adjourned on the husband’s application to obtain admissible evidence with respect to his initial contributions, the husband failed to do so. The valuation he annexes to his affidavit is inadmissible. He was legally represented when the case was adjourned on his application. If the husband wanted to rely on a retrospective valuation he needed to file an affidavit by the valuer and have that valuer available for cross-examination just as the wife did with respect to the valuations of the current properties the parties own.
The husband exaggerated the extent of his initial superannuation interests. I have no evidence of the value of the husband’s car.
In this case the relationship lasted 8 years. There is no dispute that the husband purchased the property before the relationship. The issue is what the value of that property was and what the value of his initial contributions as against the wife’s. It would be an error to ignore the fact that this was a springboard. The length of the relationship is also relevant to this consideration. The extent of that contribution is unclear but it does require a small adjustment. The adjustment is small because the wife also had initial contributions in savings. I do not accept the husband’s evidence about the wife’s contributions. He sought to minimise her contributions but with respect to financial contributions and non-financial contributions.
In coming to the assessments about contributions it is necessary to refer to the credibility of the witnesses. The wife gave her evidence in a straight forward manner. She answered questions directly and did not obfuscate.
The husband was an unsatisfactory witness. He did obfuscate. He had difficulty in answering questions directly. He has great difficulty in accepting any version that does not accord with his own even in the face of Court orders and transcripts which he ordered or earlier Court appearances.
The wife submits that the parties’ contributions were approximately equal.
The husband says that he is entitled to 70% of the assets. He says he made the greater financial contributions and equal parenting contributions. He says there should be no adjustment under s.75(2) in the wife’s favour. I am satisfied that the wife made greater parenting contributions than the husband. I am not satisfied that the husband’s financial contributions were as great as he said. The husband has failed to make out his case with respect to his allegations that the wife quarantined her funds and hid assets.
I find that the husband overstated his contributions and underestimated the wife’s contribution. Whilst the husband earnt a higher income than the wife, she performed a greater proportion of the parenting and homemaking contributions.
I assess the parties’ contributions as 52.5% to the husband and 47.5% to the wife.
Section 75(2) adjustment
The wife seeks an adjustment of 15% in her favour of the non-superannuation pool. She seeks an order that the parties’ superannuation interests are equalised which requires the husband to make a superannuation split from his superannuation.
The relevant factors under this section are the disparity in the parties income earning capacity. This is fairly modest. The modest size of the pool is also relevant.
Of greater significance is the fact that the wife will have the majority of the care for the children. Child support does not compensate for this and an adjustment under s.75(2) of the Family Law Act of 15% is appropriate. The other relevant factor which I have referred to above is the husband’s non-disclosure.
I am satisfied that it is just and equitable for the wife to receive a 15% adjustment in her favour got s.75(2) factors. The wife is entitled to an adjustment of 62.5% with respect to the non-superannuation pool.
Orders
I will make the orders the wife seeks with respect to the parties’ superannuation interests. The husband seeks orders that both properties be sold. The wife seeks to keep the former matrimonial home. She will be given that opportunity.
The husband has not paid the costs order made against him in the sum of $5,500. He acknowledges this and agrees that he should pay the prescribed amount of interest. In his case outline the husband seeks costs of $5,000 being the costs he incurred when the November hearing date was moved to suit the wife’s counsel. The wife agreed that the time the date was moved that she should pay this. The figure has not been challenged. It is convenient to deduct this from the amount the husband should pay although he should be liable to pay interest on the whole $5,500 sum (“the modified costs order”).
The wife will keep her car and the children’s bank accounts as part of her share. The husband will keep his car and the rental income will be notionally added back to the pool. I will not include those items further when dividing the remaining property. Neither party wants to keep the investment property. I will order that the investment property be sold. The equity in the investment property is $175,742. The equity in the former matrimonial home is $312,000.
The equity of the former matrimonial home, the investment property and the mortgage offset account totals $582,742. 62.5% of this sum is $364,213.75. The wife will retain the former matrimonial home which means she needs to receive a further $52,213.75. Expressed as a percentage of the net pool (excluding superannuation) is 9%.
I will order that the parties divide the mortgage offset account as to 9% to the wife and 91% to the husband. The husband must pay the modified costs order from his share.
As the value of the mortgage offset account is only an estimate and there will be sales costs associated with the sale of the investment property. I will order the wife receive 9% of the net proceeds of the sale of the investment property.
The wife seeks a superannuation splitting order that will equalise their superannuation interests. On current figures this would require a split of $68,504.50 in the wife’s favour. The husband did have superannuation at the commencement of the relationship. Acknowledging this, I will order a superannuation split of $50,000 in the wife’s favour.
It is not appropriate to quarantine the husband’s post-separation superannuation as the wife has primary care of the children.
I am satisfied that this outcome is just and equitable.
I certify that the preceding two hundred and fifty-nine (259) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 5 April 2017
0
13
3