Hazra & Mallik
[2024] FedCFamC2F 1213
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hazra & Mallik [2024] FedCFamC2F 1213
File number(s): MLC 4823 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 26 August 2024 Catchwords: FAMILY LAW – Parenting and property – Application to proceed undefended – Where respondent mother has failed to attend hearing – Where there was sufficient notice and opportunity for respondent mother to attend – Decision to proceed undefended – Child left in applicant father’s care indefinitely and without notice while mother overseas – Mother yet to return from overseas – Father to have sole parental responsibility for child – Child live with father – Watchlist order for five year period to prevent mother from removing the child if she returns to Australia – Parties to retain all property in their possession – Where mother has retained substantial value of gold owned by parties – Parties to be solely liable for and indemnify the other against any liability – Where father’s mother has contributed significant sums to parties – Father to retain equity in former matrimonial home. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 15.19
Division: Division 2 Family Law Number of paragraphs: 61 Date of hearing: 26 August 2024 Place: Melbourne Counsel for the Applicant: Mc McIntyre Solicitor for the Applicant: Bentleys Barristers and Solicitors The Respondent: No appearance ORDERS
MLC 4823 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HAZRA
Applicant
AND: MS MALLIK
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
Child’s living arrangements
1.The child, X born in 2022 (‘the Child’), live with the applicant father, MR HAZRA (‘the Father’).
2.The Father have sole parental responsibility and sole decision making about key long-term issues relating to the Child.
Watchlist order
3.MR HAZRA born in 1990 and MS MALLIK born in 1994 (‘the Mother’) and their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child X born in 2022 from the Commonwealth of Australia. This order ceases to have effect 5 years after the date on which it is made.
4.The Court requests that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties. This order ceases to have effect 5 years after the date on which it is made.
5.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
6.The Father be at liberty to make an application to the Court in the event he intends to travel overseas with the child.
7.The Father be at liberty to provide these orders and the reasons for judgment to any Legal, Court and/or Police Authority in the Commonwealth of Australia and Country B.
Property
8.The interim order made 27 September 2023 (the sale of the former matrimonial home) be, and is, discharged.
9.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date. The contents of the former matrimonial home are deemed to be in the possession of the Father;
(b)Monies standing to the credit of the parties in any joint bank account are to be the property of the Father;
(c)Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(d)All insurance policies remain the sole property of the beneficiary named hereunder;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)The Father be solely liable for and indemnify the Mother in regard to any claim, action, loan or money alleged to be due to, the Father’s parents (or either of them), or any member of the family; and
(g)The Mother be solely liable for and indemnify the Father in regard to any claim, action, loan or money alleged to be due to, the Mother’s parents (or either of them), or any member of the family.
10.The Final Hearing listed for 27, 28 and 29 of August 2024 be and is vacated.
11.All extant applications be and are dismissed.
AND THE COURT NOTES THAT:
A.The matter proceeded this day in the absence of the Respondent Mother after the Court was satisfied that she had been made aware of the proceedings this day.
B.Pursuant to sections 65DA(2) and 62B 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 Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore, or immediately after the hearing. These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
The matter of Hazra and Mallik comes before me on Monday, 26 August 2024 for the purpose of a final hearing pursuant to the Act. The matter had been listed as a final hearing this day back on 25 March 2024. At that time, the parties were each represented by solicitors well familiar with this jurisdiction. Today, there was no appearance for the respondent Mother, Ms Mallik (‘the Mother’). The applicant Father, Mr Hazra (‘the Father’) appeared by solicitor and counsel before me. The matter is governed by the Family Law Act 1975 (Cth) (‘the Act’).
The first question that I need to answer is whether I should proceed in the absence of the Mother. I will refer to some procedural aspects for the purpose of informing that decision. To commence with, I note rule 15.19 of the Court's rules, which provides as follows:
Rule 15.19 Failure to attend a court event
(1)If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
(a) adjourn the court event to a specific date or generally;
(b) order that there is not to be any court event, unless:
(i) a new date for the court event is fixed; or
(ii) any other steps that the court directs are taken;
(c) if the absent party is an applicant--dismiss the application;
(d) if the absent party is a party who has made an interlocutory application--dismiss the interlocutory application;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the court thinks just.
BACKGROUND
The parties married in Country B in 2018. At this time, the Mother is 29 and the Father is 34. The Father and the Mother are both employed professionals. The parties have one child, X born in 2022 (‘the child’), who is now almost two. The parties lived for a short time in New Zealand and then migrated to Australia. The Father had lived the bulk of his life in New Zealand and had lived nearby to his mother, Ms C, in New Zealand. Ms C followed her son to Australia when the Father and the Mother moved to Australia. The parties have lived in Australia since 2019. The child was born in Australia and has lived in Australia since.
The Father commenced proceedings in this Court on 8 May 2023. In those proceedings, he recited in his application that the parties had separated on 15 September 2022. It appears that the parties were living together but unhappily at that time. The date that was ultimately common ground as to the date of separation is 6 April 2023, when, in circumstances that are in dispute between the Father and the Mother, the Mother left the former matrimonial home.
The parties had purchased a vacant block of land in a Melbourne suburb and built a new home on that property. The property was registered in the sole name of the Father, and he remains the sole proprietor.
The Father initiated the proceedings relating solely to the care of the child. At that time, the child was a little over six months old. In his initiating application, the Father sought that he had the sole parental responsibility for the child and that the child live with him. However, the bulk of the application related to the issue of an airport watchlist order. The Father at that time alleged that he feared that the Mother would take the child from Australia and go back to Country B (her country of origin) where her family continued to live. An airport watchlist order was made on the first return of that application on 14 June 2023. The matter was then adjourned for a directions hearing on 27 September 2023, where, by consent, an order was made before a Judicial Registrar that the former matrimonial home (‘the J Street property’) be sold as soon as practical, the parties to have joint conduct of the sale and the proceeds of the sale after payment of the mortgage to be held on trust pending resolution of the proceedings.
The Mother retained solicitors and filed a response on 11 August 2023. In that response, she sought different orders in regard to the child and, in summary, sought that the parents have equal shared parental responsibility but that the child live with her and that, by a very gradual process, the child’s time with the Father increase stage by stage so that, by the time 8 October 2025 came about, he would be spending four hours with his father of a Tuesday and Friday from 2.00pm until 6.00pm, and from 10.00am Saturday to 4.00pm Sunday. That response sought that the child's first overnight time with his father not commence until 8 October 2025.
The properties that were sought in that application sought that the parties' property be divided between them, 70% to the Mother and 30% to the Father, with their respective superannuation to be equalised by a superannuation payment split.
Family Report
By the orders referred to above, an order had been made for a family report in an attempt to assist the parenting decision. The family report interviews occurred between 2 January 2024 and 5 February 2024. The family report is in evidence before me. Relevant passages include:
25.[Mr Hazra] is proposing that [X] spend 6pm to 8pm with him on a weekday and “whole weekends with him as much as possible.” He also suggested that he is seeking primary care of [X] or week about arrangements.
26.[Ms Mallik] stated she is “open to [X] spending time with his father”. She stated she would like the father to “bond more with [X] and have a gradual increase in time with [X]”. [Ms Mallik] stated that at the moment while [X] is young, she is “offering Wednesday from 4pm to 7pm and Saturday from 10am to 2pm.” She stated that when [X] is older time spent with his father could gradually increase to 6 nights per fortnight.
…
29.[Mr Hazra] stated that his mother-in-law [Ms E] consistently advocated for permission to take [X] back to [Country B] for the first 5 years of his life and care for him so that [Mr Hazra] and [Ms Mallik] could focus on work. [Mr Hazra] reported that he rejected that offer because his view is that he had a child to care for and raise the child and he had no intention of sending the child away to be raised in [Country B] without him. [Mr Hazra] reported that [Ms Mallik] appeared to maintain a neutral position on this offer explaining to [Mr Hazra] that her parents were trying to help them financially by making this offer. He reported that ultimately, both he and [Ms Mallik] rejected the grandparents offer but he remains concerned that the mother may take her parents up on this offer and for this reason [X] has been placed on the airport watchlist.
…
32.[Ms Mallik] aged 29 was well-presented, somewhat reserved in her manner, quietly spoken but clear and concise in her answers to questions. Her mood seemed quite low subdued, and she seemed sad and concerned at times about [X]’s future welfare when reflecting on her decision to end her relationship with [Mr Hazra].
…
35.[Ms Mallik] stated that she is “open to [X] spending time with his father” but noted that he is “too limited, he doesn’t even know how to turn on a washing machine”. She stated “he can’t cook, can’t turn on a stove, or that you don’t boil milk.” She stated that when [X] cries “he can’t handle it”. She stated that she would like [Mr Hazra] to “bond with [X] with a gradual increase in time”.
…
49.Both [Mr Hazra] and [Ms Mallik] stated that there was no physical violence or sexual abuse in the relationship. However, [Ms Mallik] stated that once in anger [Mr Hazra] threw [an object] at the wall and that every time she would raise her voice in anger [Mr Hazra] would record her on his phone.
…
55.[Mr Hazra] noted that post separation [Ms Mallik] twice offered [Mr Hazra] full ongoing care and responsibility for [X]. [Mr Hazra] stated [Ms Mallik] suggested “if you can take care of him, I will go to [Country B] … I don’t want to live in Australia”. He reported that once this occurred via phone directly from [Ms Mallik] and once by proxy from a friend of the family residing in [Country B]. He noted that he was surprised but accepted the offer of caring for [X] full time, but it did not eventuate. He explained that his understanding is that it may have been related to [Ms Mallik]’s prospects of remarriage as in [Country B] culture it may be hard for her to re-partner now that she has a son.
56.[Ms Mallik] denies that her offer to [Mr Hazra] was for permanent care of [X] and suggests that he is misrepresenting the offer. She explained that at the time she was feeling helpless and hopeless living with a work colleague and was unsure what to do. She reported that she wanted [Mr Hazra] to care for [X] temporarily while she sought help and sorted things out work and living arrangements.
…
74.[Mr Hazra] stated that children need “love and attention”. He stated that “parents need to be available for them, to mentor and educate them”. He relayed that “they need time spent as a family.”…
…
76.[Ms Mallik] stated that [X] “needs my care, needs me to guide him, needs me as his family, for anything and everything”. She stated “[X] needs be disciplined and guided properly, explained consequences, all the activities to help him develop for example sports. He needs love and nurturing even when he is 30. I want him to have love”.
77.[Ms Mallik] stated that she “would like [X] to be kind and nice to everyone, even his father and grandmother and not put girls down. Everyone is equal and to be respected”. [Ms Mallik] stated “[X] is the reason I’m alive, the reason for my life. He’s the reason I work hard.”
…
101.A complicating issue is that the parents live a significant distance from each other and the father’s time with [X] on weekdays and weekends is necessarily spent walking around the streets and in shopping centres as it is too far for him to drive home and return [X] to his mother. Arrangements are further complicated because the mother does not drive. It is in [X]’s best interest to spend quality time bonding with his father and his paternal grandmother and not short two-hour stints in a shopping centre. …
…
103.The father believes that the fact the mother offered [X] to him at the outset of the dissolution of their marriage holds great significance and should determine future parenting arrangements. The request from the mother to care [X] however needs to be viewed in context. It is possible it reflects a weak bond with her son but it may also reflect the dire situation faced by the mother adjusting to motherhood, independence from a tight family unit, becoming a single parent, not having a secure place of residence, being in a foreign culture with no family supports in Australia at that time. The mother currently has a home, work, family supports and friend and childcare arrangements in place. She expresses love for her son and a clear desire to be her son’s primary carer. This period of time when the mother was in a crisis period during the aftermath of the dissolution of her marriage should not be used as a weapon by the father against her now or in the future. …
104.It is clear that both parents are committed to raising their son to be a well‑rounded happy productive and successful member of society…
105.Although [Ms Mallik] states she intends to live in Australia permanently. It is possible that she is not entirely comfortable in Australian society as yet and very connected to family and friends in [Country B]. This coupled with the fact that the breakdown of the marriage and the property settlement is very acrimonious as well as the maternal grandmother’s suggestion she will raise [X] until he is 5 years old suggests that there is a flight risk for [X]. Relocating to [Country B] with [X] may seem tempting to [Ms Mallik] in order to raise [X] on her own without acrimony and tension with [Mr Hazra]. The lack of trust between [Mr Hazra] and [Ms Mallik] is problematic and while it would be enriching for [X] to visit family in [Country B] it is recommended that [X] should remain on the airport watch list.
…
107.[X] live with his mother 9 nights per fortnight.
108.[X] spend 5 nights per fortnight with his father. That the time spent with his father does not occur in one block but rather is spread over the fortnight including one weekend. For example, [X] could spend Friday, Saturday Sunday night in week one and Wednesday and Thursday in week two with his father.
…
111.That both parents retain equal shared parenting responsibility for [X].
History of the child’s living arrangements
It is significant in the history of this matter that at a very early stage after the parties ceased living in the same home a watchlist order was made. The effect of the watchlist order was that it prevented the Mother from taking the child with her when she wished to visit her family in her country of origin. And prevented her from taking the child to live with her in her country of origin, if that was what she intended.
Subsequent to the family report interviews (but before the report was released), the Mother left the child in the care of the Father in early 2024 for about 10 days. Unsurprisingly, the report writer was informed of that event prior to the release of the report. The report was released and provided to the parties soon after 5 March 2024.
97.More recently post interviews and observations [X] has been handed over to his father for a two-week period while the mother and maternal grandmother have left to care for [Ms Mallik]’s father in [Country B]. While it is helpful to have family assistance if the maternal grandmother was in fact co-sleeping with the child from birth, bottle feeding him and acting as the primary carer before her departure to [Country B] when [X] was [a baby] may have been felt by [X] acutely as a disruption. However, this is just one hypothesis and may be incorrect.
However, the Mother returned to Australia and resumed the care of child. The Father continued to see the child in accordance with the previously agreed arrangements. In early 2024, at very short notice, the Mother again left the child with the Father, returning a week later. I understand that event related to the Mother being unwell.
I also note that in about early 2024, in Country B, the Mother filed a detailed complaint of many pages with the Police against both the Father, his mother and other relatives of the Father. Therein, the Mother, complained of what she characterises as unreasonable demands for a further sum of money to be paid, of one occasion of being beaten by the Father and of being disparaged and denigrated by the Father and his mother, and complains about a lack of support for her within the relationship.
At that time when she was living with the Father, the Mother describes: “I was compelled to be suicidal” and “I was unable to handle the tremendous pressure”. And she describes herself as having:
...silently tolerated all that harassment and humiliation which I suffered at the hands of my Father and his family members, with a great hope that they would change.
The Father's affidavits, and account, complains of being harshly denigrated and criticised by the Mother's parents (including when the Mother's mother was living in his home) and criticisms of a most particular and personal nature. Hence, each party to the marriage paints a picture of being, they say, unreasonably and harshly criticised by the parents of the other.
It is significant to me that when face-to-face with the family report writer in that interview process between January and February of this year (2024) that the complaints were described by the report writer as:
46.[Ms Mallik]’s account of her marriage to [Mr Hazra] contained reference to being criticised and denigrated and subjected to forms of control…
…
48.[Mr Hazra] refuted this account stating that he “did not verbally abuse her ([Ms Mallik]) but it was the other way around” with her making demeaning comments to him…
49.Both [Mr Hazra] and [Ms Mallik] stated that there was no physical violence or sexual abuse in the relationship.
Knowledge of proceedings to Mother
The Father has taken considerable efforts to ensure that the evidence he relied upon was well known to the Mother. The Father’s solicitor filed an affidavit and relevant passages are as follows:
3.On 14 June 2024 I attended the Judicial Settlement Conference in this matter before His Honour Glass. I appeared in person, alongside counsel and the Applicant. For the Respondent, [Mr F of G Law Firm] appeared in person. The Respondent appeared by Video-Link from [Country B]. I had been informed by my client [in] or around [mid] 2024, that he had been told by the Respondent to collect the child, [X], from Daycare on that day, as she was travelling overseas. The international destination of the Respondent was not confirmed until [mid] 2024, when the Respondent's solicitors at the time informed me by email that the Respondent had travelled to [Country B] and remained there.
4.On 30 July 2024, I received by email, a Notice of Ceasing to Act from the Respondent's former solicitors. I note that the Notice of Ceasing to Act is dated 23 July 2024. The email address of the Respondent noted on the Notice of Ceasing to Act is [###]. No Notice of Address for service has been filed. I understand that this is the Respondent's correct email address, as I have seen emails from the Respondent from this address, including most recently on 13 May 2024, when the Respondent emailed the day care provider of the child, [X], to withdraw his enrolment.
5.On 31 July 2024, I sent two emails to the Respondent.
6.On 2 August 2024, I again emailed the Respondent, with further Court documents, with a request that she confirm receipt.
7.On 14 August 2024, I received an email from the Associate of Judge O'Shannessy. I noticed that this communication had not been copied to the Respondent and informed the Associate of this. The Associate emailed the Respondent directly with a set of procedural questions. There was a deadline to provide a response of 21 August 2024.
8.On 20 August 2024, having not received a response to my emails, nor a response to the Associate's email, I again emailed the Respondent, serving the Applicant's Case Outline, as well as requesting that she respond to the questions of the Associate so that we could jointly inform Court of the proposed conduct of this matter.
9.Having not received a response, on 21 August 2024, I sent the Applicant's answers to the questions posed by the Associate.
10.As at the date of affirming this affidavit, I have not received any response from the Respondent to my email communications.
Apart from the Father's solicitor attempting to remind the Mother of the final hearing fixed and ensuring that all affidavit evidence was provided to her in a timely manner, the Court has attempted to keep the Mother involved. I note that the Mother was represented on the following occasions.
She was represented and filed a response on 16 May 2024. She was represented and appeared before the Court on 27 September 2023. She participated in the family report interviews over the period 2 January 2024 to 5 February 2024. She was represented at and participated in a judicial settlement conference before another Judge on 14 June 2024. The last communication that the Father's solicitors received from the Mother was on 16 July 2024.
On 30 July 2024, the Mother's previous solicitors filed a Notice of Ceasing to Act. That Notice of Ceasing to Act referred to the email address of the Mother that I will refer to as ‘the Mother's email address’.
On 14 August 2024, my associates sent to the parties a document that could be described as a compliance and readiness check in writing. That was sent by email to the Mother at the address that was recited in the Notice of Address for Service filed by her previous solicitor. That document was sent on 14 August at 12.03 pm and is exhibit C3.
This day, anticipating that the Mother may be not in the country, my associates sent to her at that same email address (the Mother's email address) an email reciting as follows:
Dear party and practitioner,
Re: MLC4823/2023 – [Hazra & Mallik]
The above matter is listed for Final Hearing to commence this morning at 10.00 am.
We note that Chambers is yet to receive a response from the respondent, [Ms Mallik], to the compliance check request sent Wednesday 14 August 2024.
The hearing will proceed today in person in the Melbourne Registry of the Federal Circuit and Family Court of Australia at 305 William Street. However, we note that [Ms Mallik] may not be present in Australia at the moment. As such, [Ms Mallik], please find below a link to join the hearing via Teams should you wish to participate…
My associates informed me, and I accept, that there has been no response by the Mother to either the email this morning inviting her to attend by a video link or to the email of the compliance and readiness in writing check of 14 August 2024.
Proceed undefended
In all of those circumstances, I am satisfied that it is appropriate to proceed in the absence of the Mother and to proceed by having regard primarily to the evidence of the Father and his mother. The long and the short of it is that that evidence filed in trial affidavit is not challenged or contradicted by the Mother in these proceedings. The proceedings, however, are marked by the following events described in the Father’s affidavit.
107.On 15 February 2024, the Mother’s representatives wrote to my representatives, noting that the Mother needed to travel to [Country B] to care for her sick father, and care for her. The Mother asked if she could take [X] with her to [Country B]. I was concerned that the Mother would not return with the child. As such, I did not consent to her travelling to [Country B] with [X] but I was happy to look after [X] while she cared for her father. The next day, the Mother’s representative’s informed me that the Mother would be travelling to [Country B] and would be handing over the child for me to care for, stating,
“Dear Mr Mitchell,
Our client is very concerned for the welfare of her Father, who is in a critical condition.
Her siblings are very young and she has the responsibility to look after her family.”
…
110.On the Mother’s return, I returned [X] to the mother’s care, and reverted to being provided 2 hours, twice a week. [In early] 2024, the Mother sent me a text message, indicating that she was unwell, and asked me to collect [X] to care for him with just few hours’ notice. I cared for [X] for a total of 6 days.
111.[In mid] 2024, at 4.34pm I received a text message from the Respondent that read as follows,
‘Pick up [X] from day care, I have an emergency and leaving to overseas’.
112.I had to rush to collect [X] from daycare as the daycare closes at 6pm and have been caring for him since this date. [In mid] 2024, the Respondent wrote to [the early childhood] centre an email removing [X] from daycare,
‘I wanted to let you know that I had to travel overseas due to some unanticipated events, therefore I won't be able to send [X] to daycare for a bit. Please take [X] out of the system, and when I get back, I'll join him. I have no idea how long it will take. Could you possibly modify my next payment to the days [X] has attended day care up to this point and remove the future payments? possibly let me know what needs to be done on my end to accomplish this as well as the payment I need to make so far.’
…
114.On 6 June 2024, the Respondent’s representatives wrote to mine, stating that their client had,
“been [in an accident] which has caused her to be bedridden and unable to travel. Please see attached a Medical Certificate dated [mid] 2024 from [a hospital] in [Country B] stating she sustained [an] injury and has been advised “absolute rest” for forty five (45) days. We also attach a photograph of her injury.
As a result of the injury, our client has instructed us that she is unable to travel back to Australia for in person attendance at the Judicial Settlement Conference.”
Other significant evidence that may shed a light on the Mother's absence is the affidavit of a Mr H, an interpreter who has interpreted a recording of a conversation between the Father and the Mother. This recording appears to be soon after separation and on or about early 2023. I have not listened to it but only read the transcript. It is significant to me that, at that time, early 2023, amongst other things, included the following:
I never said that you didn't support me. You definitely did that. One thing, [Mr Hazra]. Why I am saying postnatal, postnatal you search online and see. My mind is not in good condition.
And then towards the last part of the conversation transcribed with the passage:
So, I said [Mr Hazra] was helping me a lot with regards to baby, but issues started between us when parents arrived. There are problems. My mind is also not in good condition. I got this depression feeling. When I went to hospital… and when I told all these things, then what happened is “now if you have 2 days break, and feel that you will be better off, please call me whenever you like.”
Hence, there is the real prospect that in the tension between feeling an obligation to care for her father in Country B and to care for her son in Australia, the tension between those two obligations combined with the Mother's mental health fragility means that, in ways that cannot be determined, an otherwise fragile mental health has contributed to the Mother's decision to leave the child with the Father.
However, it is significant to me that at the time that the Mother has left the child with the Father, (on an apparent permanent basis, or at least an indefinite basis), that was, or would have been (according to the response of the Mother filed on 11 August 2023) the period when the child would have been living with the Mother, and the Father would have been spending time with him only as follows:
3(b) From 8 October 2023 to 8 October 2024 in a fortnightly cycle, as follows:
(a)In Week 1
(A)On Tuesday and Friday for 3 Hours from after childcare or if not a childcare day from 10.00am to 1.00pm; and
(B)For 3 hours from 11.00am to 2.00pm on Saturday.
(b)In Week 2
(A)On Tuesday and Friday for 3 hours from after childcare or if not a childcare day from 10.00am t 1.00pm; and
(B)For 3 hours from 11.00am to 2.00pm on Sunday
Hence, this appears to be a case whereby the Father was able, by dint of expensive and stressful court proceedings, able to achieve an arrangement whereby he was able to spend very modest time with his son in the face of opposition to any extended time with his son. However, whether by reason of poor mental health or otherwise, at a time of the Mother’s choosing and with very short notice, the child (still a baby) was simply left with the Father to care for.
The disparity between the formal position taken when with lawyers, to limit the Father's time with the child and then, during the same proceedings, to leave the child with him full time is stark.
Property proceedings
In these proceedings, different property orders are sought. Before me this day, the Father seeks orders that effectively leave each of the parties to retain the assets and liabilities that they each have. The Father's counsel presses that there be the usual orders that would cause each of the parties to the proceedings to indemnify the other in regard to any claim made against the other by the parents of that party.
The significance of that, what might be seen as a generous concession by the Father, will be apparent when the financial history of the relationship is discussed. The unchallenged evidence of the Father's mother (who was present in court during the hearing) includes the following:
3.When I travelled to Australia in [late] 2019, I brought with me my personal jewellery, and my son's, and daughter-in-law's (the Respondent's) jewellery. I carried this jewellery with me in my stowed luggage. Prior to this, the jewellery was stored in mine and [Ms Mallik]’s joint safe deposit box in New Zealand.
4.When I arrived in Melbourne, I stayed with my son in his apartment and provided them their jewellery, which I believe remained stored in the suitcase in their apartment.
5.There was a large amount of gold jewellery, in excess of $110,000.00 at the time. I knew roughly the value of the gold as I had spent [over $50,000.00] on purchasing approximately half of it.
6.[In early] 2020, I along with my daughter-in-law, arranged for a safe deposit box at [the bank], to secure the gold. On the same day, we deposited the gold. We were provided with one key, which the Respondent kept.
7.Because the Respondent had the only key, if I wanted to remove some jewellery, I would attend or ask my son and daughter-in-law to bring my jewellery, or I would go with them if I was not busy. The jewellery I had stored was mostly ceremonial, so it was only required on certain special occasions.
8.The last time I took jewellery from the vault was [in late] 2022. This jewellery was returned to my son [two months later]. I have not removed any jewellery from the locker since this time.
9.I started providing my son financial assistance after I became aware that he was getting married. As is our culture, the maternal family traditionally pays for the ceremony, and the paternal for the reception and other festivities. We discussed this, and both families spent approximately $100,000.00 on gifts, jewellery and the events. These expenditures were my gift to my son so that he could start his new life.
10.Following this, my son required additional funds to start his new family in Australia. I did not have additional funds following the wedding, so it was agreed that I would loan money to him and the Respondent to help them move, and that these funds would be repaid once they had settled.
11.I continued to provide loan funds to the couple and helped provide enough funds in order for them to place the deposit on their new home. I also gave them access to my credit card when they were travelling to Australia to make the moving process smoother.
12.In order to finance this money, I remortgaged my properties in New Zealand. I was not in a financial position to provide this money as a gift. It was also known that I would require this money returned. The respondent was aware that I would require these funds back.
13.In total, I have lent my son and the Respondent $168,715.00. My son has repaid $21,900.00.
The assertions as to money advanced and money repaid are corroborated by bank records and contemporaneous documents. I accept the evidence of the Father’s mother.
The end result of that is that the Father asserts the following assets available for distribution between he and the Mother:
Property interests, superannuation and financial resources Description Ownership Applicant’s value Respondent’s value ASSETS 1 J Street, Suburb D Applicant $700,000.00 $700,000.00 2 Motor Vehicle 1 Applicant $27,900.00 $27,900.00 3 CBA #...92 Applicant NIL NK 4 CBA #...84 Applicant $445.92 NK 5 Gold Jewellery Respondent $207,817.32 NK 6 Jewellery (Father) Applicant $5,745.00 $5,745.00 7 Respondent’s Personal Jewellery Respondent $7,000 $7,000 8 Westpac #...82 (as at 14.07.2023) Respondent $1,233.00 NK 9 Westpac #...34 (as at 14.07.2023) Respondent $5,181.00 NK 10 Furniture / Whitegoods Joint $10,000.00 NK 11 Money withdrawn by Respondent (Add-back) Respondent $15,000 NK Assets subtotal $980,322.24 $740,645.00 LIABILITIES 12 J Street Mortgage Applicant $472,096.54 NK 13 Car Finance Applicant $12,649.33 14 Loan to Ms C Applicant $146,815.99 Liabilities subtotal $631,560.87 SUPERANNUATION Name of Fund Type of interest Member Applicant’s value Respondent’s value 15 Super Fund 1 Accumulation Applicant AUD $53,280.34 16 Super Fund 2 Accumulation Applicant NZ $29,712.19 17 Super Fund 1 (as at FYE 2022) Accumulation Respondent $24,282.00 Superannuation subtotal AU $104,849.31 TOTAL (assets – liabilities) $348,761.37 TOTAL (assets – liabilities + superannuation $453,610.68
In terms of the vault containing the balance of what was described as the matrimonial gold, the Father has produced bank records which show that the vault (or what was once called safety deposit box) was registered in the joint names of the Mother and the Father’s mother. His mother is being pursued for some remaining fees in the sum of $400 in regard to that account. Those records show that the last access to that account or that vault was in mid-2023. I am satisfied that that was the Mother that attended on that day and removed the remaining gold from the vault.
The preceding few days had been turbulent for the parties. In or about early 2023, the Father’s mother had forwarded to the Mother a request (by a body corporate managing body) that requested property holders (including the Father’s mother) of a New Zealand property contribute the sum of $42,593 to that property. The Mother had responded by asking how much the parties were indebted for. She did that by email using her email account at 3.13 pm, asking, “How much do we owe?”.
That evening, the Father’s mother attends the former matrimonial home of the parties where there is a significant dispute, and confrontation, between the parties and the Mother and the child leave the former matrimonial home. A few days later, the Mother withdraws from the parties’ joint bank accounts (and I infer their savings or at least savings and partly funds left over from the advances of the Father's mother) in a number of different tranches, a total sum of $15,000.
As discussed with the Father's counsel, I see the asset pool as more straightforward than as described by the outline of case. I do not proceed in this case on the basis that the gold jewellery in the possession of the Mother is in the order of $207,000. It may be. It may be considerably less. That jewellery is not available to the Father to be valued for the purpose of this hearing.
It is asserted that the price of gold has increased very significantly due to market forces since that gold was purchased for the Father and Mother by their respective families. I accept that the Mother's family made a significant contribution to that gold.
Former matrimonial home
The parties had previously agreed to sell the former matrimonial home back in late 2023. The Father now wishes to keep that home, and he tells me that he intends to live in it. The home, for the purpose of the Judicial Settlement Conference, was said to have an agreed value of $700,000. I do not have any single expert evidence as to the value of that home. It may be worth more than $700,000, but I proceed on the basis that it's worth about $700,000, that being the value that had been attributed to it in the documents sent by the Father's solicitors to the Mother, and not disputed.
Secured against that home is a first mortgage to the Commonwealth Bank in the sum of about $472,000, leaving equity of $228,000 before the debt to the Father’s mother is taken into account. I am satisfied that the Father’s mother remains out of pocket for the sum of about $146,000, being money that she regards as due to her by her son and the Mother. I am satisfied that I should take into account that sum as a liability or a debt. That then leaves an equity of about $82,000 in that property.
In addition, the Father has a Motor Vehicle 1 (again I do not have an expert valuation of that motor car). I am sceptical that he would be able to achieve a market value of almost $28,000 (as he asserts) for the four-year-old car at this time. That is encumbered by a finance obligation in the sum of $12,600. I do not accept that the Father has sufficient expertise to be able to give me a reliable value of the second-hand market value of his Motor Vehicle 1, however highly he may regard that motor car. I am satisfied for the purpose of these proceedings that it is appropriate to regard Motor Vehicle 1 as worth roughly something in the order of a bit more than the entire finance obligation on the car. I do not regard the Father as having any significant equity in that car.
I do not regard the furniture and whitegoods of the parties as being or having a market value of $10,000. I accept it would likely cost that much or more to replace, with new items, the contents of the home, however the nature of our society is that most people have too much stuff rather than too little, and that is self-evident from what are known as the “hard rubbish” collections in any suburb around greater Melbourne where most of the “hard rubbish” is in fact second-hand furniture that people no longer want.
I am satisfied that there is value in the contents of the home and in the second-hand furniture and whitegoods that the Father has, but I do not accept that it should be treated as having a value of $10,000 or half of $10,000 or any other figure.
I am satisfied that each of the Father and Mother would each have some personal jewellery, which the Father attributes as having roughly equivalent values. I do not accept that the personal value of the Mother would be worth much more than his and treat them as equivalent. Again, I am not satisfied that either party has the expertise to give me proper market value.
It is also sought that the sum of $15,000 withdrawn by the Mother soon after separation be treated as an addback and be added back to the pool. I am not satisfied that it is just and equitable to so treat those funds.
It is common ground that, after separation, the Mother established herself in her own rental accommodation and thereafter got on with life with full-time work in her chosen profession and caring for the child at that time. I am not satisfied that that money was not applied to the ordinary everyday necessity of establishing a new home for herself, albeit some of that may have been left over for a trip back to Country B. Even in that event, that is a perfectly reasonable thing to spend money on, and I am not satisfied it is just and equitable to treat the Mother as having that money in her hands today.
It is asserted that there are two other bank accounts whereby something in the order of $6,500 should be treated as an asset in the hands of the Mother. This is because, as at 14 July 2023, she had that amount or thereabouts in two bank accounts. I am not satisfied at this time she still has those funds or that it is appropriate to treat that as money in her hand.
Essentially, that leaves the Mother with the substantial gold that was the matrimonial gold and gifts from her family to both parents, and gifts from the Father’s mother to both parties. I do not accept that the value of that gold is $207,000, but I am satisfied that it is of substantial value and greater than the remaining equity that the Father has in the former matrimonial home.
The parties otherwise have some modest superannuation. The Father has two superannuation accounts that total the equivalent of about $80,000 in superannuation and the Mother has about $24,000 in superannuation. I am satisfied that the Father brought in more superannuation than the Mother to the relationship. The interest-free loan as well as the gifts of money by the Father’s mother to either her son or her son and his then-Mother is substantial. Without that assistance and generosity, there would be no equity in the former matrimonial home.
Conclusion
Balancing all those matters and the practical impossibility of valuing the matrimonial gold and making it available for distribution between the parties, it is with some regret that I come down to the position of simply leaving the assets where they are. The Father will retain the modest equity he has in the former matrimonial home in addition to his motor car, subject to finance, and his superannuation. I am satisfied that the Father – including by the contribution or generosity of his mother – has made a significantly greater contribution to the total assets of the parties, including the matrimonial gold, than the Mother.
I am also satisfied that it is unlikely that the Father will receive any day-to-day practical support, at least for some time, in regard to the child. He has the entire burden and expense of providing for the child, and that is a significant matter to be taken into account. Further, I am satisfied that it is unlikely that he will receive any substantial child support, at least in regular payments, from the Mother or at least for some time. That is also a significant matter to be taken into account.
Were I able to determine that the matrimonial gold jewellery is actually valued at $207,000 and it was available to the Court to be divided between the parties, it is likely that I would have ordered some part of that be paid to the Father or transferred to him. However, in the circumstances, I simply do not know the value of that gold; other than that it is valuable and it is not available for distribution.
In all those circumstances and bearing in mind section 81 of the Act, I accept the submissions of counsel for the Father this day, that a just and equitable outcome, and indeed, the only just and equitable outcome in all the circumstances, is that each party should retain all of the assets and liabilities currently in his or her possession.
That will mean the Mother will retain the remaining matrimonial gold in her possession and that she has had free from any claim by the Father or his mother.
Further, that will mean, in the event that the Father’s mother pressed a claim for debt against her former daughter in-law, that the Father, by reason of the indemnity, could be called upon to answer that claim. That is effectively a block on the Father’s mother claiming repayment of the substantial funds that she has lent to the Father and the Mother. Likewise, I am satisfied that there should be an equivalent indemnity by the Mother in regard to any claim against the Father in regard to any funds advanced by her side of the family to the purchase of the matrimonial gold or otherwise.
I am satisfied that that would be just and equitable notwithstanding whether or not any part of the gold jewellery could be or should be or would be regarded as a valuable resource-like payments. I am satisfied that it is in the interests of the Mother and the Father that there be no further financial claim one against the other or one family against the other.
Watch list order
In regard to the watch list order, the Mother had originally joined issue in the proceedings seeking to discharge the interim watch list order. The Father is now caught by the conundrum that the existing watch list order and a further one, if I make such an order, provides him the comfort and safety that in the event the Mother returned to Australia and he and her were able to agree on or achieve a time that the child would spend with his mother as well as living with his father, that he could negotiate such arrangements with the security that the Mother could not remove the child from the Commonwealth of Australia.
The other side of that coin is that that prevents the Father from, without any trouble or at short notice, himself travelling to his country of origin to visit any family or for cultural activities that he might wish to attend.
After balancing those two conundrums, the Father via his counsel asked that I make a watch list order to expire at the end of five years from this date. I am satisfied that that is in the child's interests, and I will make that order. I accept, as Mr McIntyre has put to me, that in the event that the Father needed or wished to travel to Country B or anywhere overseas, that he could make application to the Court and would likely obtain a discharge of that order. However, that would be a matter to be dealt with at the time of the application, so I will make that order.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 9 September 2024
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