Guler & Kamara
[2021] FCCA 1230
•4 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Guler & Kamara [2021] FCCA 1230
File number(s): PAC 668 of 2020 Judgment of: JUDGE OBRADOVIC Date of judgment: 4 June 2021 Catchwords: FAMILY LAW – parenting – undefended hearing – where the evidence of the applicant is unchallenged – young child – child’s best interest – applicant to have sole parental responsibility for the child – child to live with applicant – child to spend time with respondent as agreed to between the parents in writing
FAMILY LAW – property – undefended hearing – where the evidence of the applicant is unchallenged – contributions during relationship – overall assessment of contributions – justice and equity – no order for costs
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 75, 79
Child Support Assessment Act 1989 (Cth) s 116
Cases cited: Bevan & Bevan [2014] FamCAFC 19
Black & Kellner [1992] FamCA 2Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Slater & Light [2011] FamCAFC 1
Russell & Russell [1999] FamCA 1875
Teal & Teal [2010] FamCAFC 120
Weir & Weir [1992] FamCA 69Number of paragraphs: 82 Date of hearing: 25 February 2021 Place: Parramatta Counsel for the Applicant Ms Haughton Solicitors for the Applicant Soden Legal Appearing for the Respondent No appearance ORDERS
PAC 668 of 2020 BETWEEN: MS GULER
Applicant
AND: MR KAMARA
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
4 JUNE 2021
THE COURT ORDERS THAT:
1.The applicant shall have sole parental responsibility for the child, X, born in 2016.
2.The child shall live with the applicant.
3.The child shall spend time with the respondent as agreed to between the parties in writing.
4.X, born in 2016 is permitted to travel internationally, without the need for the consent of the respondent to be provided to the issue of a passport to X, born in 2016. The applicant shall be the only person with ‘parental responsibility’ of the child X, born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X, born in 2016.
5.The applicant be declared solely entitled to the proceeds of sale of the property at B Street, Suburb C, NSW as held in the trust account of Soden Legal to the exclusion of the respondent and for this purpose such funds are to be distributed as directed by the applicant, without the need for any further direction or authority from the respondent.
6.The applicant thereafter be declared the sole legal and beneficial owner of her right, title and interest in and to:
(a)All cash at banks and monies invested in the applicant’s sole name;
(b)All furniture and personal effects in the applicant’s possession;
(c)The Motor Vehicle 1 in the applicant’s possession and registered in her name; and
(d)Any superannuation entitlements received by the applicant and invested by or on her behalf.
7.The respondent thereafter be declared the sole legal and beneficial owner of his right, title and interest in and to:
(a)All cash at banks and monies invested in the respondent’s sole name;
(b)All furniture and personal effects in the respondent’s possession; and
(c)Any superannuation entitlements received by the respondent and invested by him or on his behalf.
8.Unless otherwise provided for in these Orders, each party shall forthwith be declared, entitled to retain and shall relinquish in favour of the other party any claim to any right, title or interest in all items of property presently in the possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.
9.The applicant and respondent are solely responsible for any liabilities in their respective names and hereby indemnify the other in respect of the same.
10.In the event that either party fails to sign any necessary document or instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then the Registrar of the Federal Circuit Court of Australia in pursuance of the Orders conferred on him or her under Section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
11.The application for a departure order pursuant to section 116(1)(b) of the Child Support Assessment Act 1989 (Cth) is dismissed.
12.There be no order as to costs.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Guler & Kamara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are reasons for judgment in respect of an application for parenting and property orders, made by the applicant (“wife”). The parenting application relates to the parties child X, born in 2016. The final hearing proceeded on an undefended basis as against the respondent, Mr Kamara (“husband”).
The wife seeks orders inter alia as follows:
a.That the wife have sole parental responsibility for X;
b.That X live with the wife;
c.That X spend time with the husband as agreed to between the parties in writing;
d.That X be permitted to travel internationally and be issued with a passport without the husband’s consent;
e.That the wife be declared solely entitled to the proceeds of sale of the B Street, Suburb C property to the exclusion of the husband; or in the alternative;
f.A child support departure order pursuant to s.116(1)(b) of the Child Support Assessment Act 1989 (Cth);
g.That each of the parties be declared the sole legal and beneficial owner of their right, title and interest in and to all cash at banks and monies invested, furniture and superannuation entitlements in their respective names; and
h.An orders for costs.
RELEVANT EVIDENCE
Care of the child
The wife and the husband, who are both 35 years of age, commenced a relationship in or around early 2004 and began living together in 2007.
The parties married in 2015 and separated on a final basis on 10 December 2016.
The parties have one child together, X born in 2016.
During the parties’ relationship, the wife was the primary homemaker and parent. The wife was responsible for the majority of X’s daily needs including feeding, bathing and her overall care. The husband has never had the sole care of X and has only looked after X when the wife was in reasonable physical proximity.
The husband has not spent any time with X since 2018, her second birthday. X is now nearing the age of 5 years.
From the period after separation and prior to X’s second birthday, the husband spent less than 10 occasions with X, which did not last longer than one hour on each occasion. Further, the husband has not spent any overnight or unsupervised time with X since separation.
In or about July 2017, the parties reached an informal agreement whereby the husband would spend supervised time with X, however the husband would often cancel or not show at any arranged visit.
In 2018, the wife arranged for an overseas trip with X to the Country D. The husband initially provided consent for X to travel overseas, however refused to sign the passport application for X.
Since separation, the wife has had minimal contact with the husband. On the few occasions that the husband has contacted the wife, it was to check up on her and not X. For example, on 28 January 2019, the husband emailed the wife stating “fuck I miss you babe”. Further, on 21 July 2019, the wife received an email from the husband, which attached a photograph of correspondence addressed to the wife reminding her that she was overdue for a cervical screening.
Husband’s illicit substance use and alcohol dependency
The husband has a well-documented history of alcohol dependency and illicit drug use, particularly when the Court has regard to the wife’s evidence and police records marked as Exhibit 1 in these proceedings. The wife says that she first became aware of the husband’s drug use in 2014 and that he was largely addicted to crystal methamphetamine (“ICE”). The wife further says that she has found, on numerous occasions, drug paraphernalia, such as glass pipes, ice crystals and foils, throughout their home.
The wife further deposes to arranging counselling and rehabilitation for the husband. She says that he attended some counselling sessions but that he however refused to attend rehabilitation.
The parties’ relationship was toxic and marred by arguments. For example, the wife gives evidence of an argument that occurred between the parties prior to separation where the husband repeatedly asked the wife to “get out of my house”. That same week, the husband sent a text message to the wife stating “just leave. That’s the only thing I want for Christmas and my bday this year”. The wife left the matrimonial home two days later and the parties separated on a final basis.
Family Violence and Gambling
The husband has perpetrated family violence against the wife, including grabbing her by the arms, striking her across the face and shouting verbally abusive names at her. The wife gives evidence of an incident where the husband was throwing items at her. She further recalls an incident where she drew a kitchen knife to protect herself from the husband.
The wife says that the husband, during their relationship, gambled and would attend the local RSL club at least on one and/or two occasions per week and gamble between $300 and $500 each occasion.
Husband’s criminal record
During and post the parties’ relationship, the husband has been convicted for criminal offences, some of those events being briefly summarised as follows:
a.On 5 October 2008, the husband was stopped by police driving with alcohol in his system. The husband was charged with driving with middle range PCA, and as a result disqualified from driving for 6 months and also fined.
b.The same occurred on 25 September 2011. The husband received a section 9 bond, 12 month supervision order, and was disqualified again from driving for 11 months and 5 days.
c.In or about 12 November 2014, the husband was searched by police and found to be in possession of the drug ICE. The husband made a full admission to police, and was subsequently charged and received a fine.
d.In or about 4 February 2019, the husband was arrested and convicted for destroy or damage property, and assault occasioning actual bodily harm as a result of an incident of violence that occurred with his brother. The husband struck the victim twice with an object causing injury, and damage to the object used.
e.In or about 8 March 2019, the husband was charged with and convicted of a number of offences relating to another incident of violence with his brother.
f.On 30 March 2019, the husband was charged with two counts of contravening an Apprehended Domestic Violence Order (“ADVO”). The protected person named in the ADVO was his brother. The husband was convicted of these offences on 3 May 2019.
Parties’ employment and earnings
The wife
At the commencement of the parties’ relationship, the wife was employed as a factory worker and earned $40,000 per annum. She later obtained employment with Employer E and remained employed with Employer E for 10 years until she resigned in 2014. Prior to her resignation, the wife was working as a professional earning approximately $85,000.
The wife later obtained employment as a professional and earned $65,000 per annum plus commission. She remained in that position until X’s birth where she thereafter received Centrelink assistance.
In or about late 2017, the wife returned to full-time work.
The wife currently is employed on a part time basis as a Supervisor and earns $1,308 per fortnight (after tax). The wife was also in receipt of JobKeeper payments, which was reduced at the end of September 2020 reducing her fortnightly income by $1,000.
The husband
In or around early 2004, the husband worked as a tradesman earning approximately $40,000 per annum.
The husband’s employment history throughout the relationship was rather irregular. A few years into the parties’ relationship, the husband began working as customer service officer at Employer F earning approximately $60,000 per annum. He later started working in construction and then in the cleaning industry (which he commenced in or around late 2012).
In or around 2011, the husband was in a car accident and sustained a back injury. He did not work for 1.5 years whilst his compensation claim was being assessed.
In or around 2014, the husband commenced operating as a sole trader in the cleaning industry and as a result his income thereafter became inconsistent and sporadic.
The husband’s current employment and exact income status is unknown to the wife, except that in July 2019 the husband spoke to the wife’s solicitor via telephone, and indicated that he was working in Town G and earning $40 per hour.
Contributions
At the commencement of the parties’ relationship, both the wife and husband had minimal assets. The wife had approximately $6,000 in savings and the husband owned a vehicle.
In or around mid-2007, the parties commenced cohabitation. They moved into a rental property in Suburb H whereby the wife was responsible for making the entire rental payments. The parties both however contributed to other expenses jointly, although when the husband ceased working because of his back injury the wife became responsible for the majority of those expenses as well.
In or around late 2012 or early 2013, the husband received a compensation payment for his back injury that he sustained in 2011 on the way to work. The husband was particularly secretive with his finances when he received this payment. The wife was never made aware how much the husband actually received in compensation or how those funds were exactly spent, except that the husband bought the wife a vehicle for $20,000, that they both went on a holiday to Country J (which the husband paid for presumably from those funds), and that some of the compensation payment was used for the purchase of the property at B Street, Suburb C (“B Street, Suburb C property”).
In or around 2013, the parties purchased the B Street, Suburb C property for $509,950 and moved into that property in 2013. The husband contributed approximately $100,000 to the purchase of that property, which were monies from the compensation payment the husband received earlier that year. The wife purchased all the furniture, including the bedroom suite, dining and lounge sets totalling $7,000 and the husband paid for concreting and ducted air conditioning to be installed at the property.
The parties both contributed to the mortgage repayments of the B Street, Suburb C property equally. The husband was also responsible for paying utilities, rates and groceries.
In or around 2014, the wife received a lump sum payment of $17,000 from accumulated long service leave and other entitlement when she ceased her employment with Employer E.
At the time of separation, on 10 December 2016, the wife and X left the matrimonial home and the husband continued to reside at the home until approximately May 2017. The property was subsequently tenanted for $585 per week. The entire rental income was used to meet the mortgage repayments and other outgoings associated with the property.
During the relationship, the wife was the primary homemaker and carer of X. The wife did the majority of the household and parenting tasks. The husband would occasionally assist with these tasks although this was very rare. The husband would also mow the lawn, do gardening and attend to general repairs around the home.
The parties jointly paid and attended to renovations made to the B Street, Suburb C property, including painting feature walls, applying wallpapers and light features throughout the home.
On 25 March 2020, pursuant to orders made by this Court, the wife was appointed as trustee to have sole conduct of the sale of the B Street, Suburb C property.
On 17 July 2020, the B Street, Suburb C property was sold for $752,500 and the net proceeds, being in the amount $347,803.31 was transferred into the Trust account of Soden Legal (wife’s solicitors), some of those funds being distributed in accordance with orders made on 25 March 2020.
COURT’S DETERMINATION: PARENTING
The husband has not participated in the proceedings, and the only evidence before the Court in respect of matters relevant to the parenting application come from the wife. The Court accepts her evidence.
Relevant legal principles
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (see for example Slater & Light [2011] FamCAFC 1 at [45]).
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]). The focus is not on the relationship as such, but on the benefit the relationship might have for the child (McCall at [122].
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence (s.60CG (1)(b); See the brief discussion of s.60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)). The Court may include in the order any safeguards that it considers necessary for the safety of those affected by the order (See s.60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)).
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms (MRR v GR [2010] HCA 4 at [15]).
Determination
X will shortly turn 5 years of age. She has no relationship with her father to speak of, as he has failed to avail himself of available opportunities to spend time with her. He has completely disengaged from his parenting responsibilities and role.
There has not been any communication between the parties about the child since early 2019. All of the decisions which have been made with respect to meeting the child’s needs have been made by the wife, who has been the child’s sole carer since separation, when the child was 5 months old.
The Court is satisfied that the husband has engaged in family violence and that the presumption of equal shared parental responsibility has been rebutted on the facts of this case. Not only that, but the parties’ capacity to make joint decisions about X is non-existent, and therefore the only order which would serve X’s best interest in respect of parental responsibility is for the wife to have the benefit of an order for sole parental responsibility for X. Such an order will therefore be made.
The wife has demonstrated a capacity to not only meet X’s physical and emotional needs, but she has demonstrated a capacity to meet her obligations as X’s parent and to ensure that she is loved and cared for.
The husband’s lack of engagement in these proceedings demonstrates a lack of commitment to X’s welfare. He has failed to spend time with her and he pays minimal child support, which remains in arrears. The husband’s capacity to parent is no doubt significantly affected by his drug use and drug addiction.
The wife has demonstrated a willingness to facilitate a relationship between X and the husband, and the orders she proposes would see the child being able to develop and maintain a relationship with the husband. The wife will ensure that the child is not placed at any unacceptable risk before agreeing for X to spend time with the husband.
Lastly, the wife seeks orders to be able to travel internationally with X without the husband’s consent. While Australia’s borders at present are tightly shut due to the COVID-19 pandemic which is raging across the globe, given the husband’s attitude to travel in the past where he had agreed and then reneged on that agreement, requiring the wife to make an application, where there is no evidence that the wife is a flight risk and in circumstances where an order will be made for the wife to have sole parental responsibility for the child and for the child to live with the wife, an order permitting the wife to travel with the child is a sensible one which will also serve X’s best interest. She will be able to travel and explore the world with her mother, and also learn about her cultural and familial heritage.
COURT’S DETERMINATION: PROPERTY
The husband has not participated in the proceedings, and the only evidence before the Court about his contributions and general financial position comes from the wife. The Court accepts her evidence.
Doing the best that it can, the Court finds the following to be the current assets and liabilities of the parties:
Asset
Ownership
Value
Funds held in Soden Legal trust account on behalf of the parties
Joint
$308,266
Funds held in Soden Legal trust account on behalf of the Wife
Wife
$31,272
CBA Smart Access account ending ...40
Wife
$2,406
CBA GoalSaver account ending ...35
Wife
$10,034
CBA Youthsaver account ending ...28 (for the child
Wife
$4,013
Motor Vehicle 1
Wife
E $4,500
Bank Accounts
Husband
Unknown
Husband’s Assets
Husband
Unknown
Total: $360,491
Liability
Ownership
Value
Credit Union
Wife
$17,910
Funds Wife owes to her father
Wife
$12,000
Funds Wife owes to her mother and step-father
Wife
$2,000
Total: $31,910
Superannuation
Ownership
Value
Super Fund K
Wife
$69,235
Unknown
Husband
Unknown
Total: $69,235
Relevant Legal Principles
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 of the Act was set out by the High Court in Stanford v Stanford [2012] HCA 52. Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan [2014] FamCAFC 19 (“Bevan”), Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the common use of property by the parties. For reasons explained herein, it is so in this instance.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act (see generally Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120).
The just and equitable requirement is “one permeating the entire process” (Bevan at [86]).
Determination
Determining whether an order is just and equitable requires the Court to know the assets and liabilities held by each party.
Both parties are obliged to make full and substantive disclosure of their financial affairs (Black & Kellner [1992] FamCA 2). Where there is clear evidence of non-disclosure, as is the case in this matter, the Court should not be unduly cautious about making findings in favour of the innocent party (Weir & Weir [1992] FamCA 69).
The husband has made a significant financial contribution by way of a compensation payment he received in 2013, from which he contributed $100,000 towards the purchase of the B Street, Suburb C property, as well as paying for the cost of concreting and air-conditioners. The full amount of his compensation payment is not known, and it is not known whether he retained any funds after the payment of the deposit, the concreting and the air-conditioning.
The husband is also responsible for wastage due to his drug use and gambling, although once again the amounts spent on these endeavours are unknown.
During periods of time, the husband was self-employed. His earnings at those times are not the subject of any evidence from him. His income was irregular. The husband was not in paid employment for an extended period of time due to his back injury. Despite moving back into the former matrimonial home in mid-2019, the husband failed to meet the mortgage payments requiring the wife to apply to the Court for the sale of that property.
The parties cohabited for a period of 9.5 years. There is one child of the relationship, who has been solely cared for by the wife since the child was 5 months old, that is, for a period of some 4 years to date.
Except for a period of less than 2 years, the wife has been in paid employment since the parties commenced cohabitation. The wife applied all of her income to the benefit of the family, including providing financial support for the husband after his motor vehicle accident, and towards rent and the mortgage.
The wife was the primary home maker and carer for the child. Post separation, the wife was the child’s sole carer and the child will remain living with her. It is unlikely that given the lack of engagement by the husband with the child historically, that the situation will change in the future.
The husband has provided minimal financial assistance towards the care of the child and his child support payments remain in arrears.
The husband presently appears to be earning an income, the amount of which is not known. The husband’s provisional income with the child support agency noted on the most recent assessment is $51,151 per annum, although there is evidence to suggest that he could be earning as much as $79,000 per annum.
The wife’s income is approximately $26,000 per annum.
Taking a broad brush approach, and while appreciating the influx of money at the time of the purchase of the former matrimonial home, when all other matters are considered, including the total lack of financial disclosure by the husband and the significant contributions made by the wife, made even more onerous due to the family violence perpetrated by the husband, his illicit substance abuse and gambling, the Court finds that in all of the circumstances it is just and equitable that the declaration as sought by the wife be made.
This means, that the wife will retain the entirety of the proceeds of sale of the former matrimonial home and all of the assets and liabilities currently in her name, possession or control.
Except for the proceeds of sale, whatever assets and liabilities the husband presently has, will remain his.
COURT’S DETERMINATION: DEPARTURE APPLICATION
Determination
The application for a departure order was pressed only as an alternative to the declaration in respect of the proceeds of sale of the former matrimonial home.
The declaration is to be made. The application for departure order is therefore to be dismissed.
COSTS
The wife makes an application that the husband pay her costs on an indemnity basis and fixed in the amount of $25,000.
The wife has done considerably better than her offer to the husband made on 3 October 2019 (Exhibit 2 in these proceedings) and she has been entirely successful in the proceedings.
The Court notes the earlier findings in respect of the parties’ earnings, their respective financial positions and the husband’s lack of compliance with Court orders. However, the husband’s lack of compliance has not meant that the wife has incurred any unnecessary costs or that her costs have increased as a result of the lack of compliance. If anything, the husband’s lack of engagement has made her application travel along a much smoother pathway.
There are no circumstances justifying the making of a costs order, lest of all an indemnity costs order, and departing from the usual rule that each party pay its own costs.
Conclusion
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 4 June 2021
0
10
0