GUPTA & GUPTA

[2010] FamCA 1030

FAMILY COURT OF AUSTRALIA

GUPTA & GUPTA [2010] FamCA 1030

FAMILY LAW – CHILDREN – Parenting orders – Sole parental responsibility – Consent for issue of passport dispensation
FAMILY LAW – PROPERTY – Property adjustment

Family Law Act 1975 (Cth)

APPLICANT: Ms Gupta

RESPONDENT: Mr Gupta

FILE NUMBER: PAC 5828 of 2008

DATE DELIVERED: 18  November 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 25 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Butterfield

SOLICITOR FOR THE APPLICANT: Mr Otto Stichter

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Dispense with compliance with order requiring the wife’s solicitor to notify the husband of the hearing date of 25^th October 2010.

2. Dispense with any service requirements in relation to the wife’s application for leave to remove the children from Australia and to obtain passports for them from time to time.

3. The wife, Ms Gupta have sole parental responsibility for the children J (born … February 2005) and S (born … May 2009) and that the children live with her.

4. The husband spend time with the children as may be agreed with the wife.

5. The husband be and is restrained from removing the children from the care of the wife.

6. The mother be permitted to leave the Commonwealth of Australia with the children J (date of birth ….02.2005) and S (date of birth ….05.2009) and each of them.

7. The mother is permitted to travel overseas with the children and each of them notwithstanding that the consent of the father for the child to so travel has not been first obtained.

8. Dispense with the requirement that the father consent to the issue of a passport for each of the children.

9. Orders 3 - 8 above continue in effect and operation for the children until each child attains the age of eighteen years.

10. That pursuant to section 65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

11. The Husband shall, within 28 days from the date of the making of these Orders, do all such things and sign all such deeds, documents and instruments as may be necessary to transfer to the Wife all his right title and interest in and to the former matrimonial home situate at and known as B property, NSW being Lot … in DP … (‘the property”) and the Wife shall thereafter pay and bear as and when they fall due, land rates, water rates, strata levies and all other outgoings relating to the property and the Wife shall indemnify the Husband in relation to those outgoings

12. Simultaneously with the transfer by the Husband of his interest in the property, the Wife shall cause the mortgage to Suncorp-Metway Ltd registered on the title of the property to be discharged.

13. If Suncorp-Metway Ltd is unwilling to discharge the said mortgage in that it requires the Husband to remain a co-borrower with the Wife, the Husband will transfer his interest in the property subject to such mortgage and the wife shall indemnify the Husband in relation thereto.

14. The Husband be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:

    (a)       all cash at bank and other moneys invested by him;

    (b)       all personal effects and furniture in his possession;

    (c)       all shares in his name;

    (d)all his right, title and interest in respect of his superannuation entitlements.

15. The Wife be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:

    (a)       all cash at bank and other moneys invested by her;

    (b)       all personal effects and furniture in her possession;

    (c)       all shares in her name;

    (d)all her right, title and interest in respect of her superannuation entitlements;

    (e)       property at N NSW.

16. In the event that the Husband fails to sign any necessary documents or instruments or to do any acts required or contemplated by these Orders to be done with such failure continuing for 14 days, then the Registrar of the Family Court of Australia in pursuance of the powers 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 instruments 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.

17. The wife’s solicitor forthwith send a copy of these orders and reasons for judgment to the husband at his parents’ address.

IT IS NOTED that publication of this judgment under the pseudonym Gupta & Gupta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  PAC5828 of 2008

MS GUPTA

Applicant

And

MR GUPTA

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Gupta (the wife) seeks parenting orders in relation to the two children of the marriage J (born in February 2005) and S (born in May 2009).  She also seeks orders for property adjustment as between herself and Mr Gupta (the husband).

2. The wife further seeks an order allowing her to take the children out of Australia without requiring the consent of the husband and that she be permitted to obtain passports for the children without requiring his consent.

3. The husband did not appear at the hearing.

Background

1. The parties married in India in 2003 and in June of that year moved to live in Australia.  The wife is aged 35 having been born in 1975.  The husband is aged 37 and was born in 1973.

2. When the parties began to live together in Australia they rented accommodation and, until the wife was employed, the husband paid rent and other outgoings for the family.  The wife maintained the home and attended to all of the domestic duties.

3. In September 2003 the wife began working with a large insurance company on a salary of $40,000.  The wife’s income was paid into an account over which only the husband had control.  The husband had been living and working in Australia before the marriage for a company, T Company.  His income was paid into the same account.  The husband would pay bills and other expenses of the parties from this account.  

4. From December 2004 until August 2005, the husband worked for a company, D Company and earned approximately $40,000 per annum.

5. The wife said that in 2005 the husband told her that he was starting a business but told her nothing further about it.  Sometime in 2009 the wife applied for a loan from Suncorp and was told that she was registered as a proprietor of the husband’s business and her signature apparently appeared on bank documents.  The wife asserts that she had no knowledge of being included as a proprietor nor had she signed any documents.  From the time the husband said he had started this business, he did not apparently work in any other capacity.  The wife had no knowledge of the purpose of or earnings of the business engaged in by the husband.

6. Throughout the course of the marriage, save for a few months after the birth of the children, the wife has worked in employment outside the home.

7. In December 2006 the parties jointly purchased a property at B for $295,000.  They borrowed $214,763 by way of mortgage.  At this time the wife was earning approximately $70,000 at a bank.  Her income was applied either to meet the mortgage payments or to household accounts.  The husband did not contribute either to the bank account from which the mortgage was made or to the account from which other household accounts were paid.

8. In July 2007 the husband went to India for 6 months.  At his insistence, while he was in India the husband managed the family finances and in October of 2007 withdrew $40,000 from the parties mortgage account and transferred it to his mother in India.

9. The wife deposes that during the marriage the husband was controlling and physically violent to her.  It escalated to a point that prior to their ultimate separation, the wife took the child and left the home.  During one such separation in June 2008, the husband came to her workplace and gave her $12,000 without telling her where it came from.  She deposited it against the mortgage. 

10. The wife discovered that she was pregnant with her second child in October 2008.

11. According to the wife the husband continually hounded her to provide him with her internet banking details and the balance of money in her accounts.  In October 2008 after being assaulted by the Husband, the wife gave him this information and, as a result, he withdrew her savings and a sum of money given to her by her brother to have in case of an emergency.  The wife said some $7000 was removed by the husband and kept by him.

12. In December 2008 the husband told the wife he was going to India.  After he had left Australia, the wife discovered that the husband had withdrawn $54,000 from the home loan account.  Since his departure, the husband paid $5,000 to the home loan.  The wife says that this was in repayment of the money he took from her accounts in October 2008.

13. The husband remains in India. 

14. The wife has continued to meet all of the mortgage and other outgoings on the property.

15. The wife continues to make the payments to the two loans secured over the marital property which are in the order of about $200,000.  The rate of interest on one loan had been fixed for a period that expired in February of this year and after that time, the interest rate has increased by 1 per cent.  The wife is able to refinance the loans to obtain a more favourable interest rate but is not able to do so because the property is in joint names and any application requires the consent of the husband.  The wife took redundancy from her job at a bank and now no longer receives employee benefits in relation to the home loans.

16. Since separation the wife has paid and continues to pay all outgoings in relation to the house and the family expenses including child care expenses for S and after school care expenses for J. 

17. On redundancy, the wife received $47,729 which she used as a deposit on a property that she bought for $450,000.  The contract is to settle in November 2010.

18. She said that she bought this property because she was concerned that while ever the house remains in joint names, the husband may return to Australia and want to live in the house with her and the children.

19. The account of the parties’ relationship and financial history was taken from the wife’s affidavits filed in the matter.   While the husband filed an affidavit in the proceedings in December 2008, it addressed itself to conflict within the relationship and denigration of the wife.  The husband claimed that the wife was abusive of him and their child and neglectful of the child’s welfare. 

20. The affidavit provided no information about his income, resources or claimed contributions to the family assets or the assets of either of the parties.

21. That being the case, I am left to determine this matter based on the material of the wife.

Service of process on the husband

1. The wife has no present means of contacting the husband.  From time to time she has been provided with a telephone number and/or email address for him, but the phone number is occasionally disconnected as is the email address.  The wife does not know of any relatives or friends of the husband living in Australia.  The husband’s mother has declined to provide the wife with an address or phone number for the husband. 

2. In November 2009 the wife received an email from a person unknown to her and who referred to himself as “VS”, apparently living in India and purporting to be a friend of the husband.  The author indicated that he was a friend of the husband and said:

   “neither of you should own this house

   it has to be sold before sankranthri

   [The husband] has no interest in the house and had handed over everything to you.  If I am not wrong you already transferred the house in your name.  So I would suggest you to PLEASE sell this on a priority basis.”

3. The wife’s solicitor sent an email in return to this person and there followed a series of correspondences from the person.  Although quite unusual in tone, the emails refer to conversations that the wife had with the husband’s mother, leading the wife to believe that the author may be the husband. 

4. In July 2010 the wife attempted to ring the husband on a phone number she had for him but it was disconnected.  She then sent an email to him which was not responded to.  On about the 27^th August 2010 the husband rang and spoke to J and then to the wife.  The husband requested that the wife come to India to sign divorce papers.  In the course of the conversation, the husband referred to a court case to have occurred the day before.  The husband indicated to the wife that unless she came to India to sign divorce papers he would do nothing about the house and parenting orders.

5. The telephone number and email address have since been disconnected.

6. On 22^nd June 2010 the Court made orders for substituted service of the husband by sending the relevant documents to his mother and VS and informing the husband that property proceedings have been commenced and that the matter was listed for mention on 27^th August 2010.  The husband was also to be informed that if he did not appear orders may be made in his absence.

7. I am satisfied that the wife’s solicitor complied with the orders for service made on 22^nd June 2010.

8. On 27^th August 2010 the matter was listed before a registrar in chambers.  The wife’s solicitor appeared.  There was no appearance by or on behalf of the husband.  The registrar ordered that the matter be fixed as an undefended hearing on 25^th October 2010.  The registrar ordered that the wife’s solicitor notify the husband of the directions made that day by “writing to him care of his parents’ address as set out in the order of 22^nd June 2010.”

9. While preparing the judgment, it appeared that the direction made on 27^th August 2010 to notify the husband had not been complied with.  My Associate enquired of the wife’s solicitor as to whether the husband had been notified of the date fixed for the undefended hearing. 

10. By email of 3^rd November, the wife’s solicitor conceded that he had not made that notification because he was unaware of the direction being made.

11. Given the oversight, the wife’s solicitor requested that I dispense with that notice requirement.  I am of the view that the circumstances of this matter it is appropriate to dispense with further notice to the husband.  I am satisfied that he has been served with the wife’s application and supporting documents and was notified of the mention date of 27^th August.  I take into account the wife’s evidence to which I have earlier referred which clearly indicated that the husband was aware of that date and had not taken any steps to participate, indeed, his position as indicated by the wife is that he will do nothing about these matters because the wife will not travel to India to speak to him.

12. I will therefore dispense with any further service requirements.

Assets and liabilities of the parties

1. It is appropriate to commence a consideration of this matter by identifying and valuing the property, liability and financial resources of the parties.

2. The wife identifies the assets of the parties or either of them as follows:

(a)	B property (marital home)	joint	$370,000
(b)	N property	wife	$450,000
(c)	Wife’s wedding dowry and jewellery	wife	$20,000
(d)	Wife’s car	wife	$1,000
(e)	Wedding gifts from husband’s family	husband	$1,000
(f)	Household contents	joint	$20,000
(g)	Savings	wife	$65,032
(h)	Superannuation	wife	$34,051

1. The wife identified the following liabilities:

(a)	Mortgage over marital home	joint	$200,000
(b)	Mortgage over N property	wife	$360,000
(c)	Credit card	wife	$10,000

1. The wife asks that the Court take into account the sums withdrawn by the husband from the mortgage loan or from the family accounts and transferred either to himself or members of his family.  The wife alleges that the husband made the following withdrawals:

   i)       February 2005  $3,000

   ii)      October 2007  $40,000 (to his mother in India)

   iii)     August 2008  $9,000

   iv)     December 2008                   $24,249.50

   v)       October 2008  $31,000

2. Of these last two mentioned withdrawals, that in December was transferred to the husband’s account and the other withdrawn by him but the wife was not able to say where the money was deposited.   The wife also alleged that in January 2004 she read an email from her sister in law in which she refers to receiving a gift of $30,000.  The wife was not able to point to an account from which this money was removed, if indeed it was. In those circumstances it is not reasonable to take it into account in determining the appropriate property adjustment as between them.

3. The husband gave the wife lump sums of cash during the relationship.  The wife did not know the source of the money.  The husband gave her $12,000 in June and $5,000 in December 2008.  She paid both of those sums against the mortgage on the marital property.  I will take those into account in considering the parties’ financial contributions to the property.

4. The wife’s case outline document indicates that she received about $7,000 in cash as wedding presents from her parents and used that money for family expenses.

5. Setting to one side the property purchased by the wife after separation using her redundancy payment, I find the net assets of the parties to be $301,083 inclusive of the wife’s superannuation.

Contributions of the parties

1. Save for short periods around the birth of the children, the wife has worked throughout the marriage.  I am satisfied that she contributed all of her earnings towards the family finances.  The husband was employed during the marriage until August 2005.  In this period it seems that he and the wife were earning approximately equal wages.   The husband ceased to be employed in August 2005 and apparently started his own business.  The wife knows nothing of that business, what he did or whether he earned any money from that business.  It seems that he had access to funds because he gave her the lump sums of cash as I have indicated.  The husband made no contribution to the mortgage or family finances other than the sums to which I have referred.  All of the payments to maintain the family and repay the mortgage were made by the wife.  In 2006, the wife’s income significantly increased and has continued to do so, and her contributions to the family finances continued.

2. It was argued that the wife contributed to the husband’s business in the sense that he used her name as a proprietor of that business.  It is impossible to know why the husband did that, although one might speculate that it was to obtain finance relying on her superior income.  However, the evidence is insufficient to make a finding that she contributed in this way.

3. According to the wife’s affidavits it was she who was primarily responsible for the running of the household, the caring for the children and attending to domestic duties. 

4. Since separation the wife has continued to pay all mortgage expenses and the expenses of maintaining the house and the household.  She has received no assistance from the husband

5. I also find that the husband has acted to reduce the value of the net property available to the parties by withdrawing money from the mortgage account and transferring it either for his benefit or for his family.

6. At the commencement of the relationship the wife had little in the way of financial resources other than the marriage gifts.  Very shortly after arriving in Australia she commenced working.  On the material before me, I find that up until August 2005, the parties financial contributions appear to have been equal.  Thereafter I am satisfied that the wife’s financial contributions exceeded those of the husband. 

1. Further, I am satisfied that the wife’s non financial contributions, those to the welfare of the family were and continue to be in excess of those made by the husband.

2. The wife has purchased another property, using funds derived through a redundancy payment which she used as a deposit.   The property is valued at $450,000 and is subject to a mortgage of $360,000.  The property was acquired after the separation; the wife has been solely responsible for all outgoings, mortgage payments and other expenses in relation to that property.  I do not regard it as falling within the property of the parties but is a resource of the wife however I am conscious that there is precious little equity available to her in it.

3. I find that her contributions under s 79(4) are in the order of 70 per cent.

4. Turning to a consideration of the matters referred to in s 75(2) as they relate to the assessment of contributions, I take into account that the wife has the sole care of two young children, one of whom has never met his father, the husband.  It appears that the husband has no present inclination to assist her either financially or in other ways in the care and welfare of those children.  It will fall to the wife to support the children both financially and otherwise in the future without assistance from him.

5. The wife has a capacity to support herself through her work.  There is no evidence before me of the husband’s present financial circumstances, assets or resources.  There is no evidence that he is working.  The husband has, in the past, worked in Information Technology.

6. Taking into account the matters in section 75(2) to which I have referred, I am of the view that the wife’s percentage contribution should be adjusted in her favour.  I therefore find that the wife is entitled to an 80 per cent adjustment of the assets that I have identified.

7. In considering whether any proposed order for property adjustment is both just and equitable, I take into account the husband’s withdrawal of money from the joint accounts without the wife’s consent, most particularly the money removed late in the marriage and transferred to India.  The total of those withdrawals is in the order of $107,249 and those withdrawals in 2008 $64,249.   The amounts withdrawn in 2008 reflect about 20 per cent of the net marital assets as I have found them to be.  In those circumstances I will order that the wife retain the marital home, take responsibility for the associated mortgage and loan and indemnify the husband in relation to any liability or expense arising in relation to the property.

Parenting Orders

1. The wife seeks orders that the children live with her and that she have sole parental responsibility for them.  Any time that the husband spends with the children, she contends should be the subject of agreement between them.  The wife further seeks an order that the husband be restrained from removing the children from the wife’s care.  Although not included in her application, the wife sought orders that she be permitted to take the children out of Australia and obtain passports for them from time to time, without requiring the consent of the husband.  The husband has had no notice of this part of the wife’s application.

2. The husband, acting for himself, filed an application in February 2009 in which he seeks orders that the children spend time with him and that he make decisions in relation to schooling, day care, health and be consulted on important decisions.  As interim orders he seeks orders that the children live 50 per cent of the time with him; his son study in India and the child not leave the country without his knowledge. The husband seeks no orders in relation to the younger child, S, other than an order that he be informed of the identity of the child’s father.

3. The husband asserts in his affidavit that he enjoyed a warm relationship with J.  He has never seen S.  The wife does not suggest that the husband did not have a good relationship with J. She asserts a significant level of domestic violence to her by the husband, some of which took place in front of the child. In October 2008 obtained an interim Apprehended Violence Order and in November 2008 obtained the benefit of a Final Apprehended Violence order for a period of 12 months against the husband.  The husband’s affidavit recognises that there were incidents between the parties and alleges that it was the wife who instigated violence to him and who obtained the orders, it seems, as a ploy to use against him.  The husband too sought and obtained an interim order for his protection against the wife.

4. Since leaving Australia, and apart from a short conversation with J in August 2010, the husband has had no contact with either child nor has he sought to see them.  He has made no contribution to their welfare whether financially or otherwise.

5. In considering parenting orders to make in relation to the children, I am guided by the principle that the best interests of the children is the paramount concern. Section 60CC sets out the considerations relevant to the determination of best interests.

6. I am obliged to consider the presumption that it is in the best interests of the children that they parents have equal shared parenting.

7. In this case, in my view, it is not appropriate to apply that presumption because I am of the view that it is not in these children’s interests that it does. In coming to that finding I have had regard to section 60CC of the Act as to both the mandatory and ancillary matters that inform that decision and to which I will refer.

8. Accepting for present purposes that the husband and J enjoyed a warm relationship when the family was living together, the husband through his failure to contact the children or either of them since leaving Australia has done nothing to preserve that relationship.  There is no evidence that the husband is contemplating a return to Australia.  It seems apparent from the husband’s application that he does not consider himself to be the father of S although the wife asserts that he is.  In these circumstances, while there may indeed be a benefit to J in having a relationship with his father, it seems unlikely to occur. I could not find at this time that there was a benefit to S in having a relationship with the father.

9. On the basis of the wife’s affidavit, it seems that there have been instances of family violence in the past, she has obtained two Apprehended Violence Orders.  His affidavit alleges that there were no grounds for her to obtain those orders but she did so to obtain a tactical advantage in the proceedings between them. The wife’s assertions about the husband’s treatment of her, his controlling conduct and verbal abuse are detailed and did not appear, so far as I can tell, to have been embellished.  In any event, the husband’s affidavit certainly confirms a considerable degree of tension and angry arguments.  It would not be in the children’s interests to be exposed to that level of conflict.

10. The husband is a stranger to S and has not seen J for nearly two years.  He has, in my view, abandoned his responsibilities as a parent.  I have determined that it is in the children’s interests for the mother to have sole parental responsibility.

11. The wife seeks orders that provide for the parties to agree on what time the husband should spend with the children.  In my view, that is an appropriate order.  The father, while seeking orders in his application that J spend either 50 per cent or 80 per cent of his time with him, gives no evidence nor makes any proposal for this application.  It is clear that he seeks to spend no time with S.   It has been some time since J has seen his father, any time that the husband wishes to spend with him will need to be carefully considered against J’s age and developmental stage.  As the husband makes no definite proposal, it is not in the interests of J that a particular order is made.  I will make an order that the husband will need to reach agreement with the wife about any time he spends with J or indeed S if that is his desire.

12. In all of the circumstances, I am of the view that the husband has done nothing in pursuit of his parental responsibility for either child and it is in the best interests of each child is served by making an order that the wife have sole parental responsibility for them and that each live with her.  In exercise of that parental responsibility, she may make arrangements for the children to see their father as she believes is appropriate.

Passport

1. In June 2009 the wife obtained an order from the Local Court that dispensed with the husband’s consent to enable the issue of passports to both children and the Court further ordered that the wife be permitted to take the children from Australia for the purposes of a trip to India.   

2. The wife now wishes for a general order that would permit her to take the children out of Australia to have holidays, perhaps visit her family in India.

3. No notice of this application was given to the husband.  In his application filed in February 2009, the husband sought an order that the children not leave the country without his knowledge.

4. In all of the circumstances of this case and acknowledging that the husband would oppose such an order, I dispense with any service requirements of the wife’s application for the order that the children may leave Australia.

5. It is clear that the wife has made significant ties in Australia, has worked here since her arrival from India, has a responsible job and owns property here.  I could comfortably find that she will return the children to Australia were she to travel with them.

6. I see no reason why she should not be permitted to take the children out of Australia for holidays and the like without seeking the husband’s permission.  I am of the view that she need not consult him about this issue.

7. I will order the wife notify the husband by mail at the address of his parents of the orders made today and further order that if she intends to permanently remove the children from Australia she notify the husband of this 42 days before any proposed departure.

I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 18 November 2010.

Associate: 

Date:  18 November 2010