Gade & Jabbar (No 11)
[2018] FCCA 1056
•11 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GADE & JABBAR (No.11) | [2018] FCCA 1056 |
| Catchwords: EVIDENCE – Where the mother is fixated on whether two video recordings which depict her threatening the father and the children and assaulting one of the children and two text messages in which she threatened to harm the children and herself and destroy property should be admitted into evidence – where the mother maintains that the text messages and the videos should not be admitted into evidence because the father has never made the phone on which he took the videos and on which he received the text messages available for forensic examination – where the father wiped the videos off his phone after transferring them to his computer and wiped the phone of all messages when he gave the phone to his mother for her use – where the mother was convicted in the Local Court of offences arising out of the content of the videos and text messages but where the District Court overturned the convictions on appeal – where the District Court accepted that copies of the messages and videos were admissible and the decision to overturn the mother’s convictions rested on other issues – where copies of the videos and text messages are admissible in this court pursuant to the Commonwealth Evidence Act – where the father’s failure to produce his mobile telephone for examination does not on the totality of the evidence cause this court to doubt that the mother sent the messages and that she and the children are depicted in the videos. PROPERTY – Small pool – where the mother removed $132,000.00 from the parties’ joint account shortly after separation and failed to properly account for what had happened to it – where the mother claimed that two flats she acquired in India during the marriage should not be included in the pool because she had gifted them to the children – where it is appropriate to include the flats and the $132,000.00 in the pool – father seeks to retain all assets in Australia including all of the superannuation he acquired during the parties 13 year relationship– where the father will have the primary care of the children but where he is a high income earner – outcome proposed by the father not just and equitable – order made for the father to retain all the non-superannuation assets in Australia bar a motor vehicle and subject to a payment to the mother and where the court intends to make a splitting order upon the mother providing evidence that the Trustee of the father’s fund has been accorded procedural fairness. COSTS – Order for the mother to pay certain fixed costs to the father and the Independent Children’s Lawyer contemporaneously with her receiving the property settlement payment from the father – costs applications otherwise adjourned to a future date for further consideration. |
| Legislation: Evidence Act (Cth), ss.48, 51 Family Law Act 1975, ss.4AB, 60CC, 61DA, 75, 79 |
| Cases cited: Black & Kellner (1992) FLC 92-287 Townsend & Townsend (1995) FLC 92-659 |
| Applicant: | MR GADE |
| Respondent: | MS JABBAR |
| File Number: | NCC 2265 of 2015 |
| Judgment of: | Judge Terry |
| Hearing dates: | 7, 8, 9, 10, 11 August, 7 September & 18 October 2017 & 19 March 2018 |
| Date of Last Submission: | 19 March 2018 |
| Delivered at: | Tamworth |
| Delivered on: | 11 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bithrey |
| Solicitors for the Applicant: | NLS Law |
| The Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Boyd |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
PARENTING
All previous parenting orders concerning [X] born (omitted) 2006 and [Y] born (omitted) 2012 (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
The children shall spend no time with and have no communication with the mother.
Pursuant to s. 68B of the Family Law Act 1975 the mother is restrained and an injunction is granted restraining her from:
(a)Removing the children from the care of the father or from any school, after school care facility, extra-curricular activity or from the care of any other person in whose care the children are from time to time.
(b)Approaching the children or approaching or loitering within 200 metres of the children’s home, school campuses or any place where the children are known to be present or are engaging in any extra-curricular activities or religious observance.
The order made on 18 October 2017 placing the names of the children on the Airport Watch list is discharged.
The father may obtain passports for the children and travel internationally with the children or permit the children to travel internationally notwithstanding that the consent of the mother has not been obtained.
PROPERTY
The father shall within 60 days of the date of these orders:
(i)Pay the mother the sum of $81,956.82 and
(ii)Refinance into his sole name the loans secured over Property A and Property B.
Contemporaneously with the father complying with Order (8) the mother shall sign all documents and do all acts and things necessary to transfer to the father her interest in the properties known as Property A in the state of New South Wales (“the Property A property”) and Property B in the state of New South Wales (“the Property B property”) on the following terms and conditions:
(a)That on or before settlement of the said transfer the father and the mother are to sign all documents and the father is to pay all monies necessary to discharge the loan to (omitted) Bank secured by way of mortgage on the Property A property and the Property B property.
(b)Pending the implementation of Order (9) and (9)(a) above the mother shall pay all outgoings in respect of the Property A property as and when they fall due including but not limited to mortgage instalments and rates in relation to the property.
Upon the mother providing evidence to my Associate in chambers that procedural fairness has been accorded to the trustee of (omitted) Super a splitting order pursuant to s.90MT of the Family Law Act providing for $102,810.00 of the father’s superannuation with (omitted) Super to be transferred to the mother.
The mother is declared the owner to the exclusion of the father of the Toyota (omitted) (Registration Number (omitted)) and the father shall upon the request of the mother sign all documents and do all acts and things required to transfer to the mother at the expense of the mother his interest in the motor vehicle.
Each party is otherwise declared the owner of all assets and superannuation in their possession or under their control.
If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so then the Registrar of the Newcastle Registry of the Federal Circuit Court is appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
COSTS
Contemporaneously with the father making the payment to the mother pursuant to Order 8(i) the mother shall pay to the father the amount of $7,378.00 which she was ordered to pay by way of costs on 28 July 2017 and the amount of $5,324.56 which she was ordered to pay by way of costs on 19 March 2018, a total of $12,702.56.
Contemporaneously with the father making payment to the mother pursuant to Order 8(i) the mother shall pay to Legal Aid NSW the sum of $5,160.00 being the costs she was ordered to pay by the Full Court on 7 June 2017.
The matter is adjourned to 9.30am on 17 May 2018 for the purposes of the court making directions for the disposition of any other costs applications which any party wishes to make.
The parties and their legal representatives and the Independent Children’s Lawyer are granted liberty to attend by telephone on 17 May 2018.
THE COURT NOTES THAT:
(A)The parties and their legal representatives and the Independent Children’s Lawyer can take part in the AAPT telephone link by:
a)Dialling the free call number (omitted).
b)When prompted dial in the Guest Code Number (omitted)
c)Waiting on the line until the court dials in as “the moderator”.
d)Please ensure you have dialled in several minutes prior to the listing time.
IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.11) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2265 of 2015
| MR GADE |
Applicant
And
| MS JABBAR |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings involve competing applications for parenting and property orders. The parties were formerly married but are now divorced and I will refer to them as the father and the mother in these reasons.
The parenting matter involves [X], 12 and [Y], 6, and the proposals of both parties were at the extreme end of the spectrum.
The father, with whom the children currently live, proposed that the children live with him and have no contact with the mother. He said that if he obtained this order he would consider moving out of the area, so concerned was he that the mother would not abide by court orders and would subject him and the children to ongoing harassment.
He also sought an order which would permit him to obtain passports for the children and travel internationally with the children.
The mother proposed that the children live with her and spend no time with the father pending the final settlement of criminal cases pending against him (by which I presume she means the litigation she has commenced in the District and Supreme Courts). She said that once those cases were resolved the father could file a fresh application to decide his time with the children.
Both parents sought an order for sole parental responsibility.
The outcome supported by the Independent Children’s Lawyer was for the father to have sole parental responsibility and for the children to live with the father and spend no time with and have no communication with the mother.
The Independent Children’s Lawyer supported the father being free to move out of the area if he wished.
The parties’ property proposals for the division of their relatively modest property pool were also at the extreme end of the spectrum.
There are issues to do with the composition of the pool: the mother removed $132,000.00 from the parties’ joint bank account shortly after separation and claimed that none of this money remained. She also executed Deeds of Gift after separation purportedly divesting herself of ownership of two flats in India and it was her case that neither the flats nor the money she took from the joint account should not be included in the pool of property available for division between the parties.
However even if both assets are included in the pool as the father proposed, the pool would still only consist of non-superannuation assets of $743,057.00 and superannuation of $213,220.00.
The father proposed that the mother transfer her interest in the former matrimonial home at Property A and the parties’ investment property in Property B to him and that she pay him $67,850.00 and transfer her interest in the Toyota (omitted) motor vehicle to him. He proposed that the parties otherwise retain the assets and superannuation in their possession.
On his figures this would leave the mother with $67,850.00, the flats in India and her very small superannuation account. The effect of it would be to divide the pool as he calculated it as to about 80% to him and 20% to the mother.
The parties had a 13 year marriage, the father is a high income earner and the mother has a limited employment history in Australia and it is difficult to see how such an outcome could be justified even if the father obtained the parenting orders he sought.
The mother proposed that the father transfer his interest in the Property A and Property B properties to her free of encumbrances and that she retain the other assets in her possession. She proposed that a base amount splitting order be made transferring $120,000.00 of the father’s superannuation to her.
Using the father’s pool as a yardstick this would result in the assets and superannuation being divided as to over 85% to her and less than 15% to the father. This would be well outside the range of just and equitable outcomes even if the mother obtained the parenting orders she sought.
The evidence
The father relied on his further amended initiating application filed on 2 August 2017, his affidavit filed on 2 August 2017, his amended financial statement filed on 2 August 2017, a proof of evidence dated 4 August 2017 which contained evidence about a garnishee of his wages for unpaid council rates in respect of the Property A property and the affidavit of the paternal grandmother Ms S filed on 2 August 2017.
On 19 March 2018 I received some additional evidence about a further garnishee on the father’s wages for unpaid council rates in respect of the Property A property.
The mother relied on an amended response filed on 3 August 2017, her affidavits filed on 2, 3 & 4 August 2017, her amended financial statement filed on 9 August 2017, the affidavit of her friend Ms J filed on 31 January 2017 and the affidavit of Mr A (no relation to the father) filed on 24 September 2015.
The Independent Children’s Lawyer put into evidence a Child Inclusive Child Dispute Memorandum prepared by Dr T, a family consultant, on 31 August 2015 and two reports prepared by Dr K, a psychiatrist, prepared on 11 October 2016 and 20 March 2017 respectively. She also relied on the affidavit of Dr B filed on 7 August 2017 which went to a forensic analysis of the videos taken by the father on 9 March 2013 and on the affidavit of Ms M filed in court on 11 August 2017. Ms M translated the audio content of the videos and subtitled them.
I concur with the submission by the father’s counsel that there are many reasons to be concerned about the mother’s credit as a witness.
On numerous occasions during her cross-examination by both the father’s counsel and by counsel for the Independent Children’s Lawyer, her answers were avoidant, evasive and contradictory. I will refer to specific instances of this during the course of the judgment.
The evidence in the mother’s affidavits was sometimes just wrong, for example her assertion that the father admitted during Local Court proceedings in 2016 that nothing untoward happened on 9 March 2013 and that he prepared the “alleged assault video.”[1]
[1] Mother’s 4 August 2017 affidavit paragraph 31
I did not have the same concerns about the father’s evidence. His answers in cross-examination were straightforward and there was no flavour in his evidence or during cross-examination of him being evasive or seeking to embellish the truth.
I will need to assess the evidence about each issue in dispute as it arises but the mother’s lack of credit as a witness will be one matter I take into account when determining factual disputes.
The paternal grandmother gave evidence through an interpreter. She was quietly spoken and I have no reason to be concerned about her credit. The paternal grandmother’s evidence went to her care of the children since separation and to the whereabouts of a mobile phone.
Ms J met the mother after separation and spoke positively about her but her evidence does not assist me to determine the issues in dispute. I have a concern about her credit insofar as her answers about whether she was near [Y]’s school with the mother are concerned.
Mr A gave evidence about a particular set of events and I will refer to his evidence when considering that set of events later in the judgment.
Dr K is a very experienced child, adolescent & family psychiatrist. His report was impressive; it was measured in tone and included careful consideration of alternative hypotheses and a clear and cogent explanation of why he came to his conclusions. He calmly and patiently explained himself during cross-examination.
I will have to take into account all the evidence in the case in determining the weight I should place on his opinions about family violence, the mother’s mental health and the outcome which would be in the best interests of the children but I am satisfied that his account of his observations of the children and their interaction with the adults who attended the interviews in October 2016, his report of what the children and the adults said to him at the interviews and his account of what he read in the subpoena material are accurate and indeed he was not challenged about the accuracy of any of this information.
Background
The parties relationship
The parents are Indian. They married in India on (omitted) 2002 when they were both 24 and separated in Australia on 19 August 2015. They have two children, [X] born in India on (omitted) 2006 and [Y] born in Australia on (omitted) 2012.
The parties migrated to Australia in 2008. They initially lived in Melbourne but in (omitted) 2010 they moved to (omitted) after the father secured a position with (employer omitted) in (omitted) as a (occupation omitted). They became Australian citizens in 2014.
The mother obtained a (qualifications omitted) and then a (qualifications omitted) in (omitted) in India. She was employed in several different positions while the parties lived in India but did not work in paid employment after the parties came to Australia.
In about (omitted) 2015 the mother commenced working for the (employer omitted) in a voluntary capacity.
Prior to separation the mother was the children’s primary carer and although it was not much stressed in the evidence, also the primary homemaker.
In one of her August 2017 affidavits, the mother claimed that she did not have any support from the father (or his family) in the operation of the household and taking care of the children. However the father gave detailed evidence in his trial affidavit about his involvement in the care of the children prior to separation and I prefer his evidence. I found him a generally reliable witness and his account is consistent with the nature of the children’s interaction with him at the interviews conducted by Dr K.
Dr K also referred in his report to some objective evidence of the father’s involvement with the children prior to separation namely his contact with [X]’s school in 2013 in regard to concerns about her social development, his contact with a speech pathologist in connection with [Y] in June 2013 and his attendance at speech and paediatric appointments for [Y].
The parties acquired several properties during their relationship.
In 2012 they purchased Property A in joint names and it became their home for the remainder of the relationship.
In or about 2010 the parties decided to purchase two flats in India “off the plan.” Initially the purchase was to be in joint names but ultimately at the mother’s insistence the flats were registered in her sole name. There was a high level of conflict between the parties in connection with whose name the flats were to be in.
In 2014 the parties purchased Property B in joint names as an investment property.
In their affidavits and to Dr K, each party described an unhappy, abusive relationship. [X] told Dr K that the parties had been fighting since she was born and each party alleged that the other was the perpetrator of family violence.
I will consider these allegations in depth later on but will refer here to two matters connected with these allegations which consumed a vast amount of time throughout the proceedings, namely the father’s allegations that:
i)on 9 March 2013 he used his phone to make a video recording of the mother threatening and assaulting [X] & threatening and verbally abusing him.
ii)On 25 July 2015 he received two text messages from the mother in which she threatened to cause catastrophic harm to herself and the children if she found out that he had been financially helping his brother.
The mother made an admission to Dr H, a psychiatrist she saw in September 2015 shortly after separation, that the father had filmed her in March 2013, but in the face of this court, the Local Court and the District Court she maintained that the videos were fake and that the woman perpetrating the abuse in the videos (because she conceded it was abuse) was not her.
The mother gave contradictory evidence at different times and in different places about the text messages, sometimes admitting that she sent them but downplaying their seriousness, on other occasions agreeing that she had sent text messages but not those exact messages and on yet other occasions flat out denying sending any messages.
I will discuss the content of the videos in greater detail later but the text messages played a major role in how this matter unfolded immediately after the parties separated on 19 August 2015 and I will at this stage set out in full the messages the father said he received. They were as follows:
This is a warning. Listen to me attentively. I am 99 per cent sure that you have paid your brother’s fee. Either you tell the truth otherwise the day it will be 100 per cent confirmed to me on that day, I will set the house on fire, shutting myself with the children inside this house. You still have time to tell the truth otherwise think. Now, I don’t have any limits…
AND
I need response within five minutes otherwise I’m standing next to the gas. I will set fire to this whole house. You don’t give me the answer I have boiling oil and your son is standing beside me. I will pour this wok over him.
Following receipt of the messages, the father contacted the Department of Community Services (DOCS) to discuss his concerns about the messages and he sought their advice about what he should do but nothing came of this. The parties continued to live under one roof and in early August 2015 they went on a short holiday in the snow.
However the father said, and I accept, that he was very worried about situation and in August 2015 he called DOCS again to find out if they planned to take any action. Nothing came of this either.
The father said, and I accept, that on 19 August 2015 the mother rang his mother in India and on speaker phone yelled at her and called her names. He said that he asked the mother to calm down for the sake of the children but she began shouting even louder and said that she didn’t care if the children could hear.
The father went to the police station later that day (confirmed in the documents produced on subpoena[2]) and talked to them about the text messages and video and sought advice. He decided to separate from the mother and he arranged temporary accommodation in a hotel and collected the children from pre-school and school at 12 noon.
[2] Exhibit “I”.
The father contacted the mother by text message to tell her the children were with him. He said, and I accept, that the mother rang his mobile and [X] answered it. He said that he could hear the mother screaming and saying that she was leaving for India that afternoon and would not be seeing [X] again. The father terminated the call.
On 21 August 2015, the father filed an urgent application in this court seeking orders that the children live with him and spend supervised time with the mother. He relied on the text messages in support of his case that the children would be at unacceptable risk of harm if they spent unsupervised time with the mother. The application was given a first return date of 31 August 2015.
On the night of Saturday 22 August 2015, the mother left a voice message for the father saying that she wanted to say one last goodbye to the children. Later that night a friend informed the father that the mother was threatening to hang herself unless the father let her see the children. The friend contacted police and the mother was taken by ambulance to the (omitted) Hospital where she remained overnight. [3]
[3] This was the father’s evidence but it was confirmed in broad general terms by the mother in paragraphs 59 & 60 of her affidavit filed on 4 August 2017.
On 31 August 2015 the mother filed a response seeking mirror image orders to those sought by the father namely that the children live with her and spend supervised time with the father.
The mother did not at that stage dispute that she had sent the text messages but she denied that they were evidence of family violence and strongly disputed that the children would be at any risk of harm in her care. She stressed that she had always been the children’s primary carer and alleged that the father had subjected her to family violence.
The parties attended a child inclusive child dispute conference with Dr T on 31 August 2015. Later that day, I conducted an interim hearing and for reasons set out in my judgment handed down that day I made interim orders that the children live with the father and spend supervised time with the mother. I also ordered the appointment of an Independent Children’s Lawyer.[4]
[4] Gade & Jabbar (2015) FCCA 3607
Events after interim orders were made
On the night of 31 August 2015 the father took the children at the home of Mr A and his wife, people he regarded as friends of both himself and the mother, and the mother came to the house and the parties had a discussion.
On the father’s evidence, the mother then left and he went back to his hotel leaving the children in the care of the Gades so that he could make plans for work, accommodation and childcare following the court making its orders.
The next morning the father went to the Gade’s home to collect the children but only [X] was there. Mr Gade informed him that the mother had taken [Y] to Sydney to see off one of her family members at the airport.
The father took [X] to school and went to the Property A home and found that the mother was there with [Y]. He collected [Y] and some of his personal belongings and left.
It was the father’s case that the mother took [Y] in breach of the court orders. The mother claimed that during the discussion at the Gade’s the previous evening, the father had agreed notwithstanding the court orders to let the children remain living with her and had told her that would be happy to spend some quality time with them on weekends but that he would not come back home because he wanted to be free.
Mr Gade’s affidavit was directed to this incident and his evidence was in near identical terms to the mother’s about what happened during the discussion between the mother and father on 31 August 2015. He claimed that the father left the children’s clothes at his home saying that he did not need those things any more.
Mr Gade was cross-examined (regrettably he was only available by telephone) and he did not change his story but I do not accept the evidence he and the mother gave. The father was generally a witness of credit and his actions on 1 September 2015 and his actions throughout these proceedings are not consistent with the evidence given by Mr Gade and the mother. I do not accept that there was a brief period when the father considered relinquishing the care of the children to the mother.
Shortly after the orders were made, the father commenced living in a rented flat in (omitted) with the children. The paternal grandmother Ms S flew to Australia and moved in with the father and commenced assisting him with the care of the children.
On 11 October 2015 the mother commenced spending time two hours per fortnight with the children supervised by Big Brown House, an accredited supervision service which conducts supervision outside of a contact centre.
There were a number of further incidents between the parties.
On 25 September 2015 the father was contacted by the (omitted) to advise that they had received an anonymous complaint by email and post about him (omitted) for [X]. The email version was sent from an account in [X]’s name and the father said that he recognised the mother’s handwriting on the envelope containing the written complaint. The complaint was heard and dismissed.
In October 2015 the parties had a dispute about possession of a motor vehicle which was followed by the mother applying for an apprehended domestic violence order (ADVO) against the father. The father defended the application and it listed for hearing on 13 January 2016.
On 9 December 2015 orders were made by consent which provided for the mother to have sole occupancy of the Property A property and to pay the mortgage and outgoings for that property and for the parties to put the Property B property in the hands of an agent to be rented out.
The father complained that the mother was approaching the children outside the times allowed for the supervised visits and on 9 December 2015 an order was made, also by consent, prohibiting the mother from coming into contact with or spending time with the children save at the supervised visits.
Orders were also made for the parties to put their names down for a place at (omitted) Children's Contact Centre so that supervised time could commence there once a place became available.
On 13 January 2016 the mother’s application for an ADVO was heard and the application was dismissed. Immediately following this, the mother made a complaint to police that the father had assaulted her on 2 March 2013 and the police charged the father with assault.
During their marriage the parties had attended the Hindu temple in (omitted) and on 25 January 2016, mindful of the injunction contained in the 19 December 2015 orders, the father had his solicitors to write to the mother asking her not to come to the temple on Sunday 7 February 2016 as he intended to be there that day.
The father went to the temple on 7 February 2016 with the children and the paternal grandmother. He left [X] and the paternal grandmother by themselves and took [Y] to the play area and while he was absent the mother appeared and approached [X].
At trial the mother maintained that she was not aware of the solicitors’ letters but I do not accept this. I am satisfied that she deliberately went to the temple to see [X].
When the father returned and saw the mother there he asked [X] to come with him but the mother held onto her and said “You can stay with me [X]” and [X] said that she wanted to stay with the mother.
The father called the police but they declined to interfere and allowed the mother to leave the temple with [X].
The father applied for a recovery order and a recovery order was made four days later and [X] was returned to the father’s care.
During the four days the mother had [X] in her care she took her to the emergency department at (omitted) Hospital and to a GP.
On or about 11 February 2016, [X] left the father’s care and went to the police station but she was returned to him almost immediately. No such event has occurred since.
On 17 February 2016 the father went to (omitted) Police Station and gave them a USB stick containing the videos he said he had taken on 9 March 2013 and reiterated concerns about the text messages he had received from the mother on 25 July 2015. The police charged the mother with assaulting [X] on 9 March 2013 and with stalk intimidate in respect of 25 July 2015 messages and they applied for an ADVO for the father’s protection.
In April 2016 a place became available at (omitted) Children's Contact Centre and the mother commenced spending two hours per fortnight with the children there.
On the first mention date of the assault charge the father pleaded guilty to assaulting the mother by slapping her face and in June 2016 he was found guilty and placed on a s.10 Bond to be of good behaviour. A mandatory ADVO was made for the protection for the mother.
Subsequently a complaint was made to the (employer omitted) citing the finding that the father had assaulted the mother as a reason to be concerned about his fitness to (employment omitted).
During cross-examination, the mother initially denied that she had made the complaint and said that it was made by another concerned person. She prevaricated when asked to reveal the name of the person and the following exchange then occurred:
Must I tell you the name?
Yes
You can consider that I did it.
At the time of trial, this matter was unresolved but the father has not sought to re-open the case on the basis that his livelihood has been affected by a decision of the (employer omitted).
Soon after the proceedings commenced, the parties agreed to obtain an expert’s report from Dr K and on 10 October 2016, Dr K conducted interviews for the preparation of the report.
The mother pleaded not guilty to the charges laid against her by the police but in December 2016 she was found guilty by a Magistrate after a hearing of the charges of common assault and stalk/intimidate. She was convicted and placed on a bond and an ADVO was made for the protection of the father and [X].
The mother appealed her conviction to the District Court and on 14 February 2017 her appeal was allowed and the convictions were quashed and the ADVO was discharged. Dr K was kept apprised by the Independent Children’s Lawyer of the state of the criminal proceedings and he provided his main report on 20 March 2017 after the District Court appeal was concluded.
On the day the report was released, the Independent Children’s Lawyer applied to have the order concerning the mother spending time with the children discharged. That order was not made but the order for the mother to spend time with the children was suspended until the next adjourned date and on 20 April 2017, for reasons set out in my judgment handed down that day suspending the mother’s time until the final hearing of the parenting and property matter which was anticipated to commence August 2017.[5]
[5] Gade & Jabbar (No.7) [2017] FCCA 779
When the trial commenced on 7 August 2017 the mother was still living in the Property A property and the father was continuing to live in a rented flat in (omitted) with [X], [Y] and the paternal grandmother. Neither party has re-partnered.
Close to trial there were a couple of incidents where it appeared that the mother had deliberately approached or tried to approach the children. I will discuss the allegations about those matters later in the judgment.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC (2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
The primary considerations in s. 60CC (2) are:
a)the benefit to the children of having a meaningful relationship with both of the children's parents; and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S.60CC(2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).
I intend to make findings about the additional considerations in s.60CC (3) first. They include the children’s views, the nature of their relationship with each of their parent’s, the capacity of each parent to provide for the needs of the children and whether there has been family violence. Sometimes it is necessary to make findings about the s.60CC (3) matters to inform considerations of the s.60CC (2) matters and this is such a case.
I also intend to consider the s.60CC (3) matters slightly out of order. I will consider the issue of family violence before considering the capacity of each parent to provide for the needs of the children.
The first of the s.60CC(3) matters is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
[X]’s strong wish after the parties separated was to live with her mother. She told Dr T that was what she wanted, she said it to her mother during the early Big Brown House visits, she insisted on going with the mother when the mother came to the Hindu Temple in February 2016 and she ran away from the father on or about 11 February 2016 with a view to joining her mother.
Dr K carefully and conscientiously spoke to the children about their views in October 2016 and his evidence about this is appears at paragraphs 364 to 368 of his report.
Dr K told the children that they didn’t have to decide but that the court was interested in how they thought and felt. He said that [X] identified more with “it’s my life I want to decide”. He reported her as saying that if she had a magic wand she would get her parents back together although when asked to reflect on the information she had given about their fights she said that no, she would keep them in separate homes.
A reasonable summary of [X]’s views as expressed to Dr K is that she wanted her and her brother to live with her mother and wanted to go to the mother’s house. She said that she wanted to spend more time with her mother because she was a female.
Interestingly, as I observed in my June 2016 judgment, when [X] said at Big Brown House that she wanted to live with her mother, [Y] piped up and said that he wanted to live with his Dad. When Dr K told [Y] in October 2016 that he didn’t have to decide where he lived, he told Dr K that he wished that he could decide and if he decided he would keep the two parents in two separate houses and would live:
Mostly with dad…my dad is good at playing games.
Dr K expressed the opinion that the court should be cautious about placing weight on the children’s views, first because risk was the most important issue in the case and second, because of the possibility that what he described as the mother’s “coercive, contingent approach” might have distorted the children’s wishes. I will only be able to determine what weight to give to this second opinion after making further findings about the s. 60CC(3) matters, but even absent that second opinion I concur with Dr K’s view that this is not a case in which the children’s views should carry the day.
I must consider the nature of the relationship of the children with:
i)each of the children's parents; and
ii)other persons (including any grandparent or other relative of the children).
Prior to separation the mother was the children’s primary carer. After separation [X] expressed a preference to live with her mother and that was still her preference at the report interviews fifteen months later. Both children willingly engaged with the mother at the supervised visits and they both spoke positively to Dr K during the report interviews about the supervised time they had been spending with her. [6]
[6] Dr K’s report paragraphs 329, 330, 332, 334-336, 337
Dr K considered however that the nature of the children’s relationship with the mother was complex, and it will only be possible for me to consider that issue further after making findings about family violence and then parenting capacity.
Although the mother was the children’s primary carer prior to separation it seems that [Y] transitioned relatively easily to the father’s primary care. This suggests that the father was more rather than less involved with the children prior to separation. I am satisfied that [Y] has a good relationship with his father.
The transition was much more difficult for [X]. She left the Hindu Temple with the mother in February 2016 and briefly ran away from the father on 11 February 2016, the day after a recovery order was made.
She was returned to the father shortly after running away and since then she has stayed with him without incident. Later in 2016 she told her counsellor Mr J that she was feeling more settled with the father.[7] She did not attempt to leave with the mother when the mother came to the flats in late July 2017 to deliver documents and spoke to her, an incident I will refer to again later on.
[7] Exhibit “R”.
Dr K said that he observed an attachment relationship between the children and the father at the interviews on 10 October 2016. He described their interaction at length in his report and there is ample foundation for his conclusions about the nature of the relationship. There are also little snippets in his report suggesting that [X] has a fond relationship with her father.
Dr K observed a strong and positive sibling relationship.[8]
[8] Dr K’s report paragraph 317-320, 325,
The paternal grandmother has lived with the father and the children since September 2015. Dr K’s observations in October 2016 suggested that [X] had a warm relationship with her paternal grandmother.[9]
[9] Dr K's Report paragraph 321-324
The paternal grandfather visits every six months and stays for about three months, the father’s brother recently visited the father in Australia for about six weeks and the father has extended family living in Melbourne. There was no independent evidence about the children’s relationship with these extended family members but there is nothing to suggest that there were any problems in these relationships.
There was no independent evidence about the children’s relationship with members of the mother’s maternal extended family but again there is also nothing to suggest that there were problems in these relationships.
I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the children; and
ii)to spend time with the children; and
iii)to communicate with the children.
This is not a relevant consideration.
I must consider the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
The father financially maintains the children.
The mother was not working when the parties separated and her income since she obtained work in October 2015 has been very modest. The father has not sought child support from her.
There is nothing to suggest that either party is motivated by child support considerations in making their application to the court.
I must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from:
i)either of their parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The proposal of the father and the Independent Children’s Lawyer would see the children having no relationship with their mother until they were 18. This was not the father’s proposal when he commenced proceedings but he said that after reading Dr K’s report he accepted that it was the outcome which was necessary to protect the children from physical and psychological harm.
The proposal by the mother would have a similar effect in relation to the father and the explanation the mother gave at trial for the orders she sought was as follows:
I want to save [X] & [Y] from a revengeful, conspirator, criminal minded father. Any contact in any form with Mr Gade will be detrimental for the emotional and psychological development of [X] & [Y].[10]
[10] Mother’s affidavit filed 4 August 2017 paragraph 129
It is always regrettable if children cannot have a relationship with one of their parents and it would be particularly so in this case. Both parents are highly educated. They both function well in areas of study and employment and they both have admirable aspirations for their children. Not only that the children are content to spend time with both of their parents. [X]’s preference is to live with her mother but she is not rejecting of her father and [Y] is not rejecting of either of his parents.
I will have to weigh up at the end of the case whether there is any justification for an order that the children spend no time with one of their parents and whether the detriments of them spending time with one of their parents outweigh the benefit of them having a relationship with both of their parents.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
The parties both live in (omitted). While they continue to do so an order for the children to live with one of them and spend time with the other will cause no practical difficulty, and in the circumstances of this case an order for professionally supervised time is also not something which would cause a practical difficulty.
I must consider any family violence involving the children or a member of the children's family.
The mother’s allegations
The mother told Dr H in September 2015 that the father had been trying to leave the marriage since 2005 and was often threatening to remove her from accommodation. She said that he hit her in 2007 and pushed her off the bed and assaulted her in March 2013. She said that she had photos on her phone with bleeding lips and swollen face. She said that she and her daughter joined a karate club so she could protect herself.
In her affidavit filed on 4 August 2017 the mother said as follows:
Mr Gade used to hit me physically. In March 2013, Mr Gade slapped me hard several times on my face causing 3-4 cuts on my face with bleeding. The children witnessed this incident and saw the injuries to my face.
The father admitted assaulting the mother in 2013 by slapping her face. He admitted it to Dr T at the Child Inclusive Child Dispute Conference in 2015 and he pleaded guilty to assault in March 2016.
The father said that he slapped the mother’s face once. The father was cross-examined in June 2016 in the Magistrates Court after he pleaded guilty and his response to questions was as follows:
I try to do everything but it was not making any difference and then I slapped her across, on the left cheek actually, as I did that I looked at – sorry I looked at my children and I thought “No, I committed a mistake” and I went outside the bedroom.
The mother has never produced any photographs depicting cuts or bleeding to her face and the father was a witness of credit while the mother was not. I accept his evidence that he slapped the mother once only.
The mother alleged that in April 2014 the father threw chairs and a number of other small objects and her and her father while [Y] was on her lap. The father denied that any such events occurred and I have no reason to prefer the mother’s evidence to his in this regard.
At trial the mother alleged that on 14 July 2015 the father punched her on her bottom and legs several times. She said that she had severe pain [in] her lower abdomen which continued for several days and that she informed her doctor about it and he suggested that she go for an ultrasound to rule out the possibility of any internal injury.
However at trial the notes of Dr P who saw the mother on 28 July 2015 were tendered and his notes in summary say as follows:
28/7/2015 – seen for the first time today – no periods for last 2 months – not pregnant - feels pain in the stitch line of her scar – under stress marital discord ?early menopause [the mother told the doctor that there was early menopause in her family]
I do not accept the mother’s evidence that the father assaulted her on 14 July 2015. The mother was not a witness of credit and the doctors’ notes do not support her story, but most importantly I consider it inconceivable that if this assault had occurred, the mother would not have mentioned it when she made a complaint to police in January 2016 about the father slapping her face in March 2013.
Dr K said in his report that at interview the mother alleged that the father raped her in July 2015.[11] There is no reference to this in the mother’s trial affidavit nor was this allegation explored at trial but during final submission the mother said as follows:
What is family violence? Is it when the father is trying to rape the mother in front of a 9 year old girl on 14 July 2015?
[11] Dr K’s final report paragraph 186
There is absolutely no evidence that any such event ever occurred and the mother’s willingness to make such random, unsubstantiated allegations against the father causes me to be gravely concerned about her parenting capacity.
The mother made other allegations which may have been intended to illustrate family violence namely that the father did not let her have a phone in her name, compelled her to leave the former matrimonial home from time to time, made derogatory comments [about] her and her family, did not allow her to talk to friends or extended family, and kept such tight financial control to the point [X] offered to let the mother use her piggy bank money.
The father did not admit to any conduct which was in the nature of coercive and controlling behaviour and everything in the evidence suggests that the mother was always free to come and go as she wished and that she had free access to the parties’ resources. The parties had a joint bank account (from which the mother removed $132,000.00 soon after separation) and the mother had a second card on the credit card in the father’s name (and was able to use it to withdraw $3,700.00 soon after separation). The phone the mother used may have been in the father’s name but both real properties in Australia were purchased in joint names and the mother was successful in ensuring that the flats in India were purchased in her sole name.
I do not accept that during the marriage the father behaved in a coercive and controlling way by restricting the mother’s movements or associations or preventing her from having access to financial support.
The father’s allegations
The father alleged that throughout the marriage the mother behaved in an abusive way to him and the children which included screaming, hitting, kicking and pulling and pushing the children and himself. He said that the mother would snap and lash out at him and the children. He said that he would ask the mother to stop screaming and hitting us and would also agree with the mother just to get her to stop screaming and hitting.
The father said that in the early part of 2013, the mother was verbally abusing him on a daily basis and was also abusing the children by calling them names, slapping them and hitting them with sticks. He said that if [Y] wouldn’t eat the mother would hit him with a stick and he would intervene.
The father said that he began going to work late and returning early so that he could be with the children.
He said that it was common for the mother to send him up to 20 to 30 text messages a day which included abusive, derogatory and threatening comments.
This culminated in the incident which the father videoed on 9 March 2013.
9 March 2013 was a Saturday and the father said that after he woke up he helped the children get ready. He said that when he came downstairs with the children the mother appeared agitated and was talking to herself.
He said that at about 9.00am he and the mother had an argument about the flats in India. He said that the mother asked when he was going to transfer his rights in the properties to her and when he asked why she wanted him to do that, she said that he would involve his parents in the properties.
The father said that at about 10.30am or 10.35am the mother began verbally and physically abusing [X]. He said he did not know what to do and began video recording the mother on his phone. The father said that he:
…felt overpowered by Ms Jabbar. I was completely overwhelmed and felt unable to cope and defend myself and the children against her.
The father produced at trial two videos on a USB stick, IMG_0633 and IMG_0635.
IMG_0633 lasts for 3.50 minutes. It shows an adult female and the two children, one a female child and the other a young baby, who the father said were the mother, [X] and [Y]. It is necessary to view the video to get the full flavour of what occurred but the adult female is extremely agitated and is screaming in Hindi at a person who is not depicted and the person off-camera makes some responses.
Ms M who was asked to translate the speech and subtitle the videos, found some of the words the adult female said incomprehensible but some of the things which she said were translated as follows:
Female:…you should die.. your whole family should rot. You should get infested by worms.. you should die being infested by worms.. you want both of my flats…
Female to girl child: Are you going to eat the food or (incomprehensible one word) from here to you..well.. today you all three get out from the house.. look, after killing you all three at that place, after chopping you.. shall throw there somewhere in this bushland.
Female:Bloody dog wants two flats… I will give flats…
Female:Bloody dog... I’m being punished for that... That’s why I’m getting distressed, that’s why you are laughing sitting down… because today, I have nothing in my hand... bloody you (Incomprehensible several words) I have worked for four years … and all my previous savings … all are being stuck because of you. I cannot do anything about them.
Female to girl child: Slam him down.. slam down.. slam him down.. slam down.. otherwise (I) will kill him. Have you understood?[12]
[12] Exhibit “PP”.
IMG_0635 lasts for 2.37 minutes and is very disturbing to watch. The adult female can be seen wandering around the room screaming for several minutes while a baby crawls on the floor and on a couple of occasions tries to pull himself up on her leg. The female child tries to get the baby. On several occasions adult female grabs hold of the female child and whacks her repeatedly on the upper and lower back before letting her go. The father’s counsel submitted that on one occasion he counted 13 blows and I have no reason to doubt that although viewing the video would confirm it or otherwise.
Some of the things said during this video were as follows:
Female to girl child: I can’t do anything to this dog; I can beat you…
Female to girl child: Come..come..you..come here….you come…You come here….
Female:I can do no harm to this dog nah….this dog my………(Some incomprehensible words)
Female:even after that… even after that.. bloody dog can’t get the registry done so that I can get rid of …
Girl child:(Crying and screaming)
Female to girl child: I will not leave you alive, will not leave you alive… I to you
Girl child:Crying, said few incomprehensible words
Female to girl child: I will hit, I will hit only you, I can hit only you
Girl child:No..no (crying and saying) no…no…
Female to girl child: You will get hit four time, you will get four because I can’t hit this dog….
Female:(Some incomprehensible words) …Look, I will not leave this girl alive, will not leave her alive
Female:you take.. you take two-two flats, either get it registered in your name immediately after getting (omitted) done, and if (you) will not get it done then see, even if you get the registry done, you see, I am cursing you and your whole family so much so.. that whoever will step in into this home as an owner…that bloody dog will die being infested by worms….
Female:on the day when I will wish..(incomprehensible words) ….you are showing your worth.. you show your worth… bloody dog… (you) will die…
Female to girl child: Him… (incomprehensible words) put him down… you still have to get four more… put him down… leave him…[13]
[13] Exhibit “PP”.
The father said that after he stopped filming he took [X] and [Y] into the next room and tried to comfort them. He said that the mother ordered [X] into the kitchen and took [Y] from his lap.
The father said that he left the house because he was upset and went to his office and at about 11.00am he transferred the video files to his computer so that he could erase them from his phone. He said that [X] played with his phone and he didn’t want her finding the videos. He said that after he transferred the files he tried to make a smaller version so that he could send it to the mother’s father in India but in the end he decided not to do this as he felt it would have made the situation worse.
Independent evidence referred to in Dr K’s report suggests that after this incident, the father sought assistance through the Employee Assistance Program and was referred to a psychologist. He discussed with the psychologist what was happening in the family and told him about the videos. On 21 March 2013 two separate reports were made to the Department of Family and Community Services (DOCS), one apparently by the therapist and one apparently by the father.[14] DOCS did not take any action as a result of the notifications.
[14] Dr K’s report paragraph 206-207
The therapist saw the parties for one couple session in May 2013.
The issue with the flats was subsequently resolved; the father agreed to the contracts being amended so that the flats were purchased in the mother’s sole name.
In his report, Dr K referred to another specific incident described by the father which he said that [X] without prompting also referred to although no time frame is given for it.
The father told Dr K that the mother had “totally lost it” and had become “extremely violent…hitting the children.” Dr K went on to say as follows:
…The father said to me, “she made a video of me begging her… in front of the children… I was touching her feet… she was being triumphant… she was saying ‘you will do anything to save the marriage’, and ‘you will have no link with your parents’, and ‘you will protect [our nuclear family]”. The mother was demanding that the father give his word on these things. The father recalled that “[X] was saying, ‘Papa, do it… everything will be fine after that’”.
I did not ask [X] about this incident. But, she raised it, in response to a question that I asked her about parental conflict.
[X] had been explaining to me that the mother had hit her and threatened her only for the purpose of “get[ting] back at dad”, or “getting dad to stop” doing certain things.
I asked [X] whether she had ever thought that dad should just stop doing those things, and stop annoying mum, and whether she had ever been angry with dad for making mum angry.
[X] said, “dad did say sorry… mum was videotaping it… he tried… he was really saying sorry… she was going to send it [she did not elaborate to whom]”. At the time, [X] had been hoping that dad saying sorry might stop the fighting. But, it had not done so.
I asked the mother about this incident of her video recording a paternal apology or undertakings.
The mother spoke with dismissing and mocking facial expression and tone. The mother said, “yes… he did that drama… he said, ‘if you want, you can make that video’… me, I videoed for three seconds, then I stopped.[15]
[15] Dr K’s final report paragraphs 170 – 176
Dr K also referred to another specific incident not mentioned in the father’s affidavit which was mentioned by [X] when talking to him about the fights between the parents and about what she and [Y] did when there was fighting and yelling. He said as follows:
Later in her narrative, when [X] was speaking of maternal threatening aggression, [X] described an occasion when, “my mum accidentally broke the bucket… she threw it on the floor, and it broke… she got so much anger, that she broke the bucket”. [16]
[16] Dr K’s report paragraph 166
The father’s evidence about the text messages was as follows.
The father said that on the morning of 25 July 2015, he was upstairs in the bedroom and the children were downstairs with the mother. He said that the mother sent him a number of text messages including the two referred to earlier. He said that the messages came up under the name “Ms Jabbar” on his phone and were sent from phone number (omitted). He said that this number was registered in his name but the mother had exclusive use of this phone from April 2012.
The father said that upon receipt of the message he raced downstairs and saw the mother pulling both children towards the stove screaming:
I’ll pour boiling oil on you.
The father said that the children were shaking, crying and trying to escape. He said that he begged the mother to stop but she didn’t and he stepped between the children and the mother.
The father alleged that [X] said:
Stop it Mummy. You are hurting me.
The father said that he was worried and didn’t know what to do and that is congruent with the evidence that he rang the Department of Family & Community Services seeking advice.
The mother’s response to the father’s allegations
The mother denied committing any acts of family violence. She admitted hitting [X] in March 2013 but did not concede at trial that it was the hitting depicted in the video. She did not concede that she had done anything wrong during the incident where the father begged her (which she admitted occurred) and while she eventually put it down to misinterpretation by the court and others of a reference to oil which would not have been seen as threatening by an Indian person and she denied all the other allegations of family violence made by the father. It does not appear that Dr K asked her specifically about the bucket incident raised by [X].
It was the mother’s case that the father well knew that she would never harm her children. She referred to the fact that after the text messages were sent the father did not immediately separate from the mother or attempt to remove the children from her. He continued to go to work and went away for a few days to a conference in (omitted) leaving the children with the mother. If he took the mother’s threats to harm the children seriously, why would he do that?
Findings about the father’s allegations
The videos and the text messages if they are as the father maintained, not only discredit the mother’s denial of having perpetrated family violence on those and on other occasions, they are very damaging to her case as regards parenting orders and the mother devoted a tremendous amount of time and energy throughout these proceedings to impugning their validity.
The mother passionately argued that this court should reject these pieces of evidence, firstly because the District Court overturned her convictions for assault and stalk/intimidate which were based on this evidence and secondly, because the father had failed to produce for forensic examination the mobile phone which he had used to record the video and on which he had received the text messages.
The mother’s argument that the fact that the District Court overturned her convictions means that this court should have no regard to the videos and text messages is not a sustainable argument and the starting point is to consider the reasons given by Judge Bright for overturning the convictions.[17]
[17] Only one of the two videos was relevant to the charge of assault which the mother faced and the District Court therefore referred to a video rather to videos. Both videos are potentially relevant in the family law proceedings but the mother’s arguments about the videos are the same in relation to both.
The mother argued before Judge Bright that the Local Court Magistrate should not have received the evidence about the text messages and the video because the father had failed to produce the phone on which the messages were received and the videos were taken. Judge Bright did not accept this. She held that the Crown was entitled to rely on a copy of the video pursuant to s. 48(1) (b) of the NSW Evidence Act and that a photograph of the text messages taken from the father’s phone was also admissible.
The Commonwealth Evidence Act applies before me and it contains the same provision namely:
Proof of contents of documents
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
(b)tendering a document that:
(i)is or purports to be a copy of the document in question; and
(ii)has been produced, or purports to have been produced, by a device that reproduces the contents of documents;
However, although Judge Bright ruled that the evidence was admissible, she overturned the mother’s convictions and the reasoning behind this decision insofar as the text messages was concerned was as follows:
·There was sufficient evidence that a text message was received by the father on the date alleged and the real issue in the appeal was whether the prosecution had established beyond a reasonable doubt that it was the mother that sent the text message.
·The mother denied sending the text message and told the Local Court that she did not even have a phone.[18]
·The father’s evidence was that the mother sent the message and there was some reason to doubt the mother’s claim that she did not have a phone but having regard to the acrimony that existed between the parties the Court would require independent evidence or a reliable admission in order to be satisfied beyond reasonable doubt that the mother did send the SMS message.
·The Crown could not rely on the admission the mother made about this to Dr T at the s.11F conference as she was not called as a witness and what the mother said to a police officer about it was equivocal. That left only the father’s evidence and Judge Bright found that she could not be satisfied beyond a reasonable doubt that it was the mother who sent the text message and overturned the conviction.
[18] District Court Judgment top of page 8
None of this means that I cannot separately consider in the context of the family law proceedings, whether I am satisfied that the mother sent the messages and if so what the content of the messages was.
There is absolutely no doubt on the evidence before me that on 25 July 2015, the mother had a phone which she habitually used and that the phone number was (omitted). On a telegraphic transfer request the mother made on 28 August 2015, she gave this as her phone number[19] and on 24 September 2015 she informed the father that her previous phone number (omitted) was no longer working.
[19] Exhibit “CC”
It is a credit issue if the mother conveyed to the Local Court that she did not have access to a phone on 25 July 2015. However at trial before me, she did not maintain that she did not have a phone and she also admitted that she had sent the father some text messages that morning and that they contained a reference to hot oil or burning oil. It was her case, however that the messages she sent were not those the father claimed to have received.
For the following reasons I am, however, satisfied on the balance of probabilities and indeed would be satisfied beyond reasonable doubt if necessary that the father received from the mother the messages he said he received.
The father’s evidence about the receipt of the text messages was cogent and coherent and he gave evidence about the mother’s actions at the time and about additional conversations at the time the messages were sent which make credible his assertion that the mother sent the messages.
Unlike the District Court, however I have much more than the father’s bare assertions that the messages he received were sent by the mother.
The father attached copies of the messages to the affidavit he filed on 21 August 2015 and in the early stages of these proceedings, the mother admitted sending the messages and sought to explain away their significance.
Dr T said as follows in the s.11F Child Inclusive Child Dispute Conference memorandum dated 31 August 2015:
Mother admitted that she threatened to pour boiling oil over children in a text to the father but denies any risk of this actually occurring. She stated in interview that this was to get the father’s attention and denied that she has ever physically hurt the children. The mother appeared to have little insight into the seriousness of this incident.
Both parents report a similar story. The father was upstairs with the children and mother was downstairs in kitchen. Mother texted father and became angry when he did not text back immediately. Mother continued to send texts and then escalated to threatening to pour burning oil over herself or the children. The parties differ from this point on. The father asserts that mother dragging children down to the kitchen. The mother denies this and says that she was halfway upstairs. The mother asserts that the father told the children of her threat.
Dr T was cross-examined at the hearing before me and I accept her evidence about what the mother said to her on 31 August 2015.
Soon after separation the mother went to see Dr H, a psychiatrist, and on several occasions in September and October 2015 she made admissions to him about sending the messages.
Dr H said as follows in his letter to the mother’s GP dated 30 September 2015:
…It appears that the husband gaining custody occurred largely on the back of threats that Ms Jabbar had voiced to him that she would possibly harm the children and herself by pouring hot oil on them. Ms Jabbar explained to me that this was a threat which she did not intend to carry out but which was meant as an ultimatum. Evidently, her husband has a life insurance policy and his mother is the stated beneficiary. Ms Jabbar wanted this changed so that she was the beneficiary so that her and her children would be looked after in the event of her husband’s death. Evidently, he had stated on making the changes and she gave him the ultimatum as previously mentioned. Ms Jabbar was adamant that she would never have carried out the threat and said that threats are often used as an ultimatum within Indian culture.
Dr H said as follows in his letter to the mother’s GP dated 6 October 2015:
I spoke with Ms Jabbar about why she threatened to pour boiling oil over her children and herself. She corrected me when I suggested it was due to her husband having not made changes to a life insurance policy. She said that in fact it was due to her husband having made payments to his uncle, evidently to pay for his uncle’s son’s (omitted) studies, and him not making Ms Jabbar aware that this was happening. Again she reiterated that she would never harm her children.
The mother was asked about the content of Dr H’s notes during cross-examination and responded:
I informed him I sent some silly text messages but not that one.
Dr H was not made available for cross-examination but in the light of the evidence generally, and the mother’s response above, I am satisfied that his records are accurate.
Dr K said as follows in his report about his interview with the mother on 10 October 2016:
At interview with myself, the mother told me that she had made a threat to pour boiling oil on the children and father, and that this was a figurative way of saying that she would be extremely angry, if the father did not comply with her request. She made reference to Indian culture, and to a line in an Indian movie, where this phrase of “pour[ing] boiling oil” was used in such a way.[20]
[20] Paragraph 106 of the Expert Report.
The mother took a similar line at trial. In her 4 August 2017 affidavit she said as follows:
In July 2015, I gave offers for few properties in (omitted). I was aware of this fact that Mr Gade was financing one of his relative’s higher education in India. I was in need to know my family’s exact financial situation. From mid-June, 2015 to 25th July, 2015, I asked Mr Gade several times, Mr Gade did not give me any response. On 25th July I used one phrase of my native language with words “hot oil”.[21]
[21] Paragraph 45 of the mother’s affidavit filed on 4 August 2017.
The mother put to the father in cross-examination that there was argument between them about payment of his cousin’s fees and that she sent text messages because she needed to know if he had paid the fees. She put to the father however that she had not made a threat. She said:
I was working in the kitchen everyone was upstairs it was Saturday morning. I was in need of the information so I sent him a text message that’s all.
The mother asked the father questions which suggested that she had said something about “hot oil” or “boiling oil” in those messages. She asked him if he had heard of an Indian comedy group called the (omitted) (the father obviously had as he smiled) and asked him to concede that they used a threat to pour hot oil on someone as a part of a comedy sketch.
The father’s counsel pressed the mother during cross-examination to be more specific about what she said but she declined to be more specific.
During her own cross-examination by the father’s counsel, the mother admitted that in her affidavit filed on 17 February 2016 she said as follows:
I understand my mistake that I should not have sent that text message. I got enough punishment for that mistake by separating [X] and [Y] from me for such a long time.
The mother also admitted that during cross-examination by the father’s counsel, that in the Case Outline document she prepared for the interim hearing in June 2016 she said as follows:
The Mother admits sending an inappropriate text message on 25 July 2015 and states that this was the only time she sent an inappropriate text message to the Father and apologises for this irrational behaviour.
During final submissions the mother said as follows:
In July 2015 I used one inappropriate word from point of view of Australian culture but nothing inappropriate to Mr Gade.
There are clear admissions by the mother to sending text messages and using the phrase hot oil or boiling oil. Otherwise her evidence about the content of the messages at trial was avoidant. She failed to be specific about what was in the messages she sent if they were not the messages the father said he received. I accept the father’s evidence that the mother sent the text message he claimed to have received.
The reasoning of Judge Bright leading to the mother’s conviction for common assault, which turned on video IMG_0635, being overturned, was as follows:
·Because of the acrimony between the parties it would be difficult for the court to accept the evidence of the father unless it was corroborated.
·There was a significant factual issue about whether the video had been edited, and the original device was not available for forensic examination.
·The admission the mother had allegedly made to a police officer about the authenticity of the video was equivocal.
·The mother alleged that she had an alibi in that her daughter was at (omitted) at the relevant time on 9 March 2013[22] and therefore the alleged assault could not have happened on that day. The mother conceded that her daughter’s name was not on the (omitted) attendance sheets for that day but said that it could have been due to human error or that they were running late.
·There was no translation available of the sound on the video and the only evidence in English of what was said was the father’s evidence.
·While the video did depict what appeared to be an assault upon the child, there was no evidence other than that from the father about what was occurring at that time and in all the circumstances Judge Bright was not prepared to rely on the father’s evidence about what is depicted in the video.
·Judge Bright held that the Court could not be satisfied beyond reasonable doubt of the reliability of the video could not be satisfied that the Crown has established its case that the mother had assaulted [X].
[22] The mother’s affidavit filed on 16 July 2016 referred to at paragraph 131 of Dr K’s report in which she alleges that [X] attended a (omitted) lesson between 11.30am and 12pm that day and makes no mention of [X] attending (omitted).
This court has evidence about the videos unavailable to the Local Court Magistrate and the District Court in that prior to the trial the Independent Children’s Lawyer arranged for Ms M of (omitted), a NAATI accredited translator from the Hindi Language into the English Language, to translate the sound on the videos and also sub-title the videos.
The father and mother both speak Hindi and neither took issue at trial with the validity of the translation.
In answer to questions by father’s counsel about what the video depicted the mother was evasive saying “I know my house but not this video house” and then saying “maybe” it was her house. She was asked if the people in the video were [X] (I’m not sure) [Y] (I’m not sure) and her (No its not me).
When questioned by Counsel for the Independent Children’s Lawyer the mother said:
..Those two looking like my children and look like me but my point is I never did it.
In answer to another question from Counsel for the Independent Children’s Lawyer the mother said:
That woman in the video is looking like me and the children look like my children --- that is showing my house and those two children and me. Everything is perfect.
The mother went on to deny however that she had ever assaulted her daughter.
I have absolutely no doubt that the people depicted in the videos are the mother and the children. Not only is that apparent from seeing the mother and seeing photographs of the children, the mother made partial admissions about it during cross-examination by both the father’s counsel and Counsel for the Independent Children’s Lawyer.
The mother has also made admissions on various occasions about hitting [X]. Dr K set out in detail in his report information given by the mother on various occasions about striking [X] in March 2013.[23] There is also reference in Mr J’s notes to [X] stating that the mother had hit her on the back to get back at the father.
[23] Family Report paragraph 131 & 132
Interestingly, the following appears in Dr H’s notes of a consultation with the mother on 6 October 2015:
…she told me that in March 2013 she hit her daughter across the back and buttocks when she felt her daughter was not listening to her. Evidently the husband filmed this and made a complaint to DOCS and the police which Ms Jabbar only found out about at her recent interview with the family consultant. She denied ever hitting her son and now realised this was not the right thing to do. Cultural differences re physical discipline.[24]
[24] Exhibit “WW”.
At trial the mother agreed that she had admitted to others including Dr H and Dr K that she hit [X] in March 2013 but continued to deny that the hitting which occurred was the hitting depicted in the video.
At times during the course of the proceedings the mother raised from the bar table the issue of the father producing the mobile device (the phone) used to record the videos and on which the text messages were received for examination but she never made a formal application for this to occur.
In his trial affidavit, the father said that in December 2015 he gave the phone he had been using to his mother and prior to doing so he wiped the phone of all data. He said that his mother gave the phone to his father as she didn’t feel comfortable using it and his father took the phone to India. He said that in February 2017 his father brought the phone back to Australia and that he could provide it to the court.
I have no means of knowing whether the mortgage balance has increased due to the mother’s actions but her failure to comply with the court orders about payment of the mortgages has forced the father, on two occasions, to file applications in this court and incur costs in doing so, costs which he will never fully recover.
The mother has also not always paid the rates and water rates on the home resulting in legal action being taken against the father. On or about 2 August 2017, $2,059.10 was garnisheed from the father’s wages to pay outstanding council rates following the father obtaining a judgment against the father and the mother.
On 31 October 2017 (omitted) City Council issued a further statement of claim namely the father and mother as defendants and seeking to recover $1,396.16 being unpaid council rates and costs.
The father was also pursued by (omitted) Water in December 2017 for unpaid water rates of $386.27.
Conclusion about contributions
Contributions to the date of separation should be assessed as equal.
The father was the primary income earner throughout the marriage and the sole income earner after the parties came to Australia but the parties tacitly agreed on a division of labour which saw the father employed and the mother remaining at home caring for the children. At the time of separation [Y] was only three and it was entirely reasonable for the mother to adopt the homemaker and parent role.
Since separation the father has exclusively supported the children financially and has provided the overwhelmingly majority of their non-financial support. He has been put to the expense of employing a part time babysitter to enable him to continue to earn his income. Notwithstanding that he is a high income earner and left the marriage in a strong financial position, in my view his contribution to the care of the child should attract a small adjustment in his favour.
The father has been put to a good deal of trouble since separation because of the mother’s non-payment of the mortgage and rates for the Property A property, bearing in mind that she consented to an order in December 2015 that she be responsible for these payments. He has had to bring applications to the court because of failure by the mother to pay the mortgage and outgoings and has had his wages garnisheed to recover unpaid council rates.
Costs were recently awarded against the wife when yet another application was brought by the father in connection with this issue and in due course he may be able to recover those costs and may seek costs in relations to other applications and I have to be careful not to create a situation where he is allowed to double dip but in my view, the trouble he has been put to in trying to ensure that property was conserved and not lost in the face of the wife’s actions does require some recognition.
I intend to assess contributions separately to the superannuation and non-superannuation pools however, as the issues to do with support of the children and payment of the mortgage and outgoings for the Property A property relate to this pool and not to the superannuation pool.
The non-superannuation pool is worth $743,067.00. I intend to give the father a 2.5% adjustment in respect of this pool for post-separation issues. It gives the father an additional $18,576.68 but creates a differential of $37,153.35 between the parties’ entitlements. In my view this is an adequate adjustment given that the father did take the high income earning capacity out of the marriage and had a much greater capacity to contribute to the care of the children post-separation.
Both parties have acquired superannuation since separation and given his income the father must have acquired a lot more than the mother. I was not provided with any information on this topic by the father however and have no means of assessing whether and if so to what extent and adjustment should be made in the father’s favour for post-separation contributions to this pool.
I assess contributions to the superannuation pool as 50% by the father and 50% by the mother.
These findings entitle the father to non-superannuation assets of $390,110.18 and superannuation of $106,610.00 and the mother to non-superannuation assets of $352,956.82 and superannuation of $106,610.00.
S. 79(4) (d) (e) (f) and (g) matters
I am required to consider the matters in s. 79(4) (d) (e) (f) and (g) of the Family Law Act. The only relevant subsection is (e) which requires me to have regard to the matters in s. 75(2) of the Act.
S. 75(2) matters
The mother is 40. In her financial statement she described her occupation as “(occupation omitted)”. She has a (qualifications omitted) in (omitted) and a (qualifications omitted). She completed a TAFE course in (course omitted) in 2015.
The mother began working as a volunteer at (employer omitted) in (omitted) 2015 and in October 2015, she told Dr H that she had been offered a job as a (occupation omitted) at (employer omitted). She said that she was paid an “allowance” of $500.00 per week (equating to $26,000.00 per annum) by (employer omitted). She said that she was also in receipt of Newstart Allowance of $E230.00 per week. I have no means of verifying the mother’s income from (employer omitted). Despite being requested to do so, she has never produced any pay slips or bank statements or any other evidence to support her claim.
There was no evidence that the mother had to do further study and could not find better paid employment. She was employed in India and Dr K commented in his report that all the evidence suggested that she was able to function better in environments other than the home. He said as follows:
The mother’s dysfunction has particularly been evident in the family home and in her relating to the father and the children. She has shown comparatively better function in other settings such as in her (omitted) work, where there is a clear hierarchy and a clear self-interested purpose for the mother in behaving within and above the expectations of powerful others within such a hierarchy, and where the mother receives consistent acknowledgement and admiration for her efforts.[56]
[56] Paragraph 235 of the Expert Report.
Due to the dearth of information provided by the mother, it is impossible for me to be sure about her future income earning capacity but she does have one and she does not have any problems with her physical health which would prevent her working.[57] She strongly denied having any mental health issues and the diagnoses proffered by Dr K do not of themselves mean that the mother will be unable to work in the future.
[57] Mother’s affidavit filed 4 August 2017 paragraph 43
It is a relevant matter that the mother did not pursue employment in Australia between 2008 and 2015. There was no evidence that the father pressed her to look for a job and she was engaged in home duties including caring for [Y] who was still not four at the time of separation. The mother is very highly qualified and it is difficult to see why well paid employment should not be available to her but because of the roles the parties adopted during the marriage, she is behind the father in being established in the workforce with a good reputation and relevant experience and she is also well behind him in accruing superannuation.
The mother has not re-partnered and does not have financial responsibility for any other person.
On the basis of contributions, the mother is entitled to $352,956.82 non-superannuation assets. If she retains the flats, the cash and the Toyota she has non-superannuation assets to the value of $271,000.00 and the father would have to pay her $81,956.82 if he wished to retain the remaining assets. The mother is also entitled to $106,610.00 of the superannuation pool.
The mother alleged that she owed $150,000.00 to her family and $35,000.00 to friends. In the absence of documentation, I cannot make a finding that she owes such money or make an assessment of the likelihood if it is owed of her being required to repay it.
The remaining issue in respect of the mother is the extent to which there are matters relevant to s. 75(2)(o) in other words, matters I need to take into account because the justice and equity of the case requires me to do so.
Something which is frequently taken into account pursuant to s.75(2)(o) is the failure by a party to make full and frank disclosure and the mother has certainly failed to make full and frank disclosure in relation to financial matters. She conceded in cross-examination that she had not produced documents which had been requested of her. She alleged that she did not have any records concerning financial matters but she immediately undermined that claim by producing documents which she said evidenced the gifting of the flats in India to the children.
However, I have included the flats and the $132,000.00 the mother removed from the joint bank account in the pool and I cannot use a finding of failure to make full and frank disclosure to then make a finding of some kind that the mother has savings in India when the father did not provide any documentation to demonstrate that this was likely.
The parties lived together for 13 years. The father claimed that the mother had bank accounts in India. She probably does given the parties connection with the country and regular visits there, indeed the father has an account in India. The problem is that the father did not suggest that he was unaware of the name of the bank in which she might have an account or accounts. He did not produce any evidence about the identity of the bank or any evidence that it was either difficult or impossible to obtain information from the bank about whether the wife had accounts. He did not say on what basis he reasonably believed that the mother had once had $40,000.00 in accounts in India and I have no means of assessing what it is the mother might be hiding in accounts in India.
In Weir & Weir the court made an adjustment in the wife’s favour because there was credible evidence that an amount of $100,000.00 was missing from the pool.[58] In Black & Kellner the court accepted that the father had seriously understated his income which in turn affected the value which had been placed on his business.[59] In both cases the Full Court said that a court should not be unduly cautious about making findings in favour of the innocent party where there had been non-disclosure but in both cases it had a yardstick against which to consider what sought of an adjustment might be appropriate to deal with the issue. I have no such yardstick and I am not satisfied that I should consider making an adjustment in the father’s favour based on nothing more than the bare fact of non-disclosure.
[58] Weir & Weir (1993) FLC 92-338
[59] Black & Kellner (1992) FLC 92-287
I will take the mother’s failure to provide proper information about her employment and income earning potential into account as a specific matter but other than that, I cannot do anything with the mother’s failure to make full and frank disclosure.
A relevant s. 75(2) (o) matter arising out of the mother’s conduct however is that the father has repeatedly incurred legal costs dealing with applications to the court by the mother, some of them completely meritless and repetitive, and in dealing with appeals to the Full Court and the High Court and with litigation commenced by the mother in the Supreme Court and the District Court. Some awards of costs have been made in his favour but on some occasions no costs were awarded and it is beyond doubt that the father will never recover all of the legal costs he has incurred dealing with applications filed by the mother no matter how many costs orders are made against her.
The father is also 40. He is a (occupation omitted) employed by (employer omitted) and earns $324,896.00 per annum.
The father had polio as a child and it has affected his gait but he does not suffer any health conditions which impact on his capacity for employment.
The father has not re-partnered and does not have financial responsibility for any other person.
Although the father is a high income earner, he has some significant financial commitments. Both children attend (omitted) School and the fees are about $26,000.00 per annum and there are additional costs for uniforms and activities. However this is his choice. [X] was attending a public school prior to 2017.
The father said that he had paid $58,260.00 to enable his parents to obtain permanent residency visas so that they could live with him and assist him with the children and would have to pay another $40,000.00 in the next two years. This is not something which weighs in the father’s favour in the property matter. He did not provide any evidence that this was essential (as opposed to comfortable and preferable for him) in that the cost of employing casual assistance with the children would be more expensive.
The father owes $11,000.00 to a friend and has some credit card debt and he has incurred legal costs as a result of the mother filing numerous appeals against interim orders in the family law proceedings and an appeal to the High Court against some of the Full Court decisions and the mother recently commenced proceedings against him in both the district and supreme courts.
Some of the father’s costs in proceedings in this court have been reserved and I will need to deal with an application in respect of those costs in due course.
The mother is not currently paying child support. I consider it most unlikely that any will be paid in the future unless the father is prepared to fight for it and given the amount of litigation to date and the mother’s propensity to keep matters going with numerous appeals, it might well be that the father will not consider it worthwhile to pursue child support in the future.
The father is entitled to non-superannuation assets of $390,110.18 and superannuation of $106,610.00 on the basis of contributions.
Conclusion about s. 75(2) matters
The father’s counsel argued for a s.75 (2) adjustment in the father’s favour in favour, to be applied to the combined asset pool. He sought that the father receive overall about 80% of the pool.
I have made many adverse findings about the mother in relation to parenting matter but I do not accept that an outcome where the mother is left with only 20% of the assets after a 13 year relationship would be just and equitable.
It is true that the father will have the sole care of the children in the future. [Y] is only 6 and [X] is just starting her expensive high school years and based on the mother’s conduct during these proceedings, it is most unlikely that she will voluntarily pay child support and the father may well be loath to chase it.
However the father left the marriage with a good reputation in the workforce and a high income earning capacity. He is better placed than most parents to meet the costs of the children including the additional costs associated with providing child care during school holidays or if a child becomes sick which a working parent often has to pay.
The father is entitled to 55% of the non-superannuation assets and 50% of the superannuation and when the high income earning capacity with which he left the marriage is balanced against his future care of the children, I do not consider that an adjustment in his favour for s. 75(2) matters can be justified.
There is in particular no justification for making an adjustment in the father’s favour in respect of the superannuation pool. The care of the children will not impact on his capacity to accrue superannuation and the children will long be off his hands by the time this money is available to him so an adjustment to this pool will not help him support the children.
An argument could be made for an adjustment in favour of the mother given the parties comparative circumstances at the end of the marriage. The mother remained out of the workforce and engaged in home duties after the parties migrated to Australia in 2008. She left the marriage without an established employment history and reputation in Australia.
However, the factors which mitigate against making such an adjustment are the mother’s conduct in causing the father to be engaged in litigation in several different courts and repeated litigation in this court which has resulted in him incurring extensive legal costs not all of which will ever be recoverable from the mother. The other is that because of the mother’s failure to make full and frank disclosure about financial matters, I am unable to form any view at all about her future income earning capacity and she has some high level qualifications.
In all the circumstances, I do not intend to make any adjustment for s.75(2) matters. The father will remain entitled to $390,104.93 non-superannuation assets and superannuation of $106,310.00 and the mother to non-superannuation assets of $352,948.75 and superannuation of $106,310.00.
The orders
The father sought an order that he receive both real properties, the former matrimonial home and the investment property in Property B. The mother sought similar orders.
I intend to order that the father receive the Property B property but some thought needs to be given to what is to happen to the Property A property.
The mother has lived in this property since separation but on balance I consider that an order should be made that it be transferred to the father. There was no evidence that the mother would be able to refinance the mortgage aside from an assertion she made during final submissions when I put the question to her, and there have been repeated problems with payment of the mortgage and outgoings on the property during the life of these proceedings. If I did give the mother the chance to keep the property there is too high a risk that there would be further issues with payments, further garnishees on the father’s wages and further court proceedings to enforce the sale of the property if the mother did not manage to obtain refinancing. Given all that this family has been through, I do not consider this an acceptable path to take.
I intend to order that both properties be transferred to the husband who will be required to refinance.
If the father cannot refinance then the properties will have to be sold but there seems little likelihood of this occurring.
The father will therefore receive $390,110.18 made up of:
Description
Value
Property A
$780,000.00
Property B
$370,000.00
Nissan (omitted)
$2,500.00
Furnishings and effects
$7,000.00
(omitted) Bank loan secured by mortgage over Property A
($371,202.00)
(omitted) Bank loan secured over Property B
($316,231.000
Payment to the mother
($81,956.82)
Total
$390,110.18
The father will also retain superannuation of $106,310.00.
The mother will receive $352,956.82 made up of:
Description
Value
Cash
$132,000.00
Flats (omitted) and (omitted) in India
$119,000.00
Toyota (omitted)
$20,000.00
Payment from the father
$81,956.82
Total
$352,956.82
The mother is entitled to superannuation of $106,310.00. To achieve this, a splitting order will need to be made transferring $102,810.00 of the father’s superannuation to the mother. I cannot make that order at present because procedural fairness has not been accorded to the trustee of the father’s superannuation fund. That order will be made upon the mother providing evidence to my Associate that procedural fairness has been given to the trustee.
I am conscious of the fact that as a result of my orders, the father will retain two properties in Australia and the mother will have to move out of the former matrimonial home. However she has the flats in India and I am unconvinced that she does not still have some or all of the $132,000.00 and these assets could assist her to rehouse herself in due course.
I am satisfied that this outcome is just and equitable.
In his further amended initiating application, the father sought an order that he be declared the owner of a three seater lounge, 2 single lounge chairs, home entertainment system, professional camera and dining table and chairs from Property A. This was not referred to either during cross-examination or in submission and I do not intend to make this order.
In his application in a case filed on 13 March 2018 which he brought because the mother had yet again ceased paying the mortgage, the father sought an order that all amounts paid by the him which the respondent was meant to pay pursuant to the orders made on 20 December 2016 as amended on 12 January 2017 be reimbursed him from the final property settlement.
I have however taken the amounts garnisheed from the father’s wages into account in assessing contributions and I would be loath to make an order in the general form sought by the father, or an order in a general form that sought to make the mother responsible for any increase in the mortgages because of her non-payment of instalments, either on time or at all which is another issue in the matter. It would simply mean further litigation and further costs because the amounts would never be agreed and would have to be fixed by me upon receipt of further evidence and in my view it is simply not worth going down this path.
Costs
On two occasions during these proceedings, orders have been made following interim events for the mother to pay the father’s costs with a time frame for payment to be considered following the delivery of the decision in the parenting and property. On other occasions costs have been reserved.
I intend to make an order that the mother pay the costs awarded on 28 July 2017 and the costs awarded on 19 March 2018 simultaneously with the receipt of the payment from the father pursuant to these orders which will in effect, mean that the father will be required to pay her $7,378.00 and $5,324.56 respectively less pursuant to the property settlement orders I make.
I also intend to order that contemporaneously with the father making the payment to the mother pursuant to the property settlement orders, the mother pay $5,160.00 to the Legal Aid Commission being the fixed costs payable to the Independent Children’s Lawyer pursuant to orders made by the Full Court on 7 June 2017. The Full Court ordered that these costs be paid from the mother’s entitlement as ordered pursuant to s.79.
I will otherwise list the matter at 9.30am on 17 May 2018 for the purpose of making directions for the disposition of any other costs applications which any party wishes to make in the matter.
I certify that the preceding four hundred and seventy six (476) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 11 May 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Costs
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Remedies
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Jurisdiction
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