HUDA & HUDA
[2020] FCCA 822
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUDA & HUDA | [2020] FCCA 822 |
| Catchwords: FAMILY LAW – Property – re-hearing following appeal – third party loan alleged – judgment debt – secured creditor – allegations of sham transactions – standard of proof – where the husband deliberately failed to provide disclosure of documents – where the husband deliberately failed to provide disclosure of his financial affairs – where the husband embarked upon a course of conduct which was deliberately designed to diminish the size of the property pool – contributions – future needs – justice and equity – unsecured creditors. FAMILY LAW – Property – Court appointed Trustee. FAMILY LAW – Property – notice served by Child Support Registrar. |
| Legislation: Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth), ss.4AB, 11F, 60CA, 60CC, 65DAA, 75(2), 79, 80, 90AA, 90AE. Personal Property Securities Act 2009 (Cth) |
| Cases cited: Ascot Investments Pty Ltd v Harper & Anor (1981) 148 CLR 337 |
| Applicant: | MR HUDA |
| Respondent: | MS HUDA |
| File Number: | BRC 1238 of 2015 |
| Judgment of: | Judge Howard |
| Hearing dates: | 29, 30, 31 July 2019; 1, 12, 13, 15 August 2019; and 28, 29 and 30 October 2019 |
| Date of Last Submission: | 11 December 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| The Applicant attended as a self-represented litigant on 29, 30 and 31 July 2019; 1, 12, 13 and 15 August 2019; and 29 and 30 October 2019. |
| Counsel for the Applicant | Mr Alford on 28 October 2019 and Mr Fisher by way of written submissions submitted to the Court on 27 November 2019 |
| Solicitors for the Applicant: | Raniga Lawyers on 28 October 2019 and by way of written submissions submitted to the Court on 27 November 2019 |
| Counsel for the Respondent: | Mr Shoebridge |
| Solicitors for the Respondent: | Firm X Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Jones |
| Solicitors for the Independent Children's Lawyer: | Cornerstone Law Offices |
ORDERS
That each party (i.e. the Applicant, the Respondent and the Independent Children’s Lawyer) shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to each other party by 4:00pm on 22 April, 2020.
That leave is granted to the Court appointed Trustee, Mr W, to provide a copy of a proposed final order (reflecting the Reasons for Judgment) in relation to those aspects of the proceedings relevant to the role of the Trustee.
That the parties (and the Trustee) shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 29 April, 2020.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (3) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.
That leave is granted to the Child Support Registrar, to Mr Laham and to Firm Y Lawyers to provide to the Court a draft order (should they wish to) reflecting the Reasons for Judgment. Such draft shall be provided to the Court, to the parties, the Trustee and to each other person referred to in this Order by no later than 4:00pm on 22 April, 2020.
IT IS NOTED that publication of this judgment under the pseudonym Huda & Huda is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1238 of 2015
| MR HUDA |
Applicant
And
| MS HUDA |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant father/husband, Mr Huda, was born in Country Q in 1949.
The Respondent mother/wife, Ms Huda, was born in 1965 in Country Q.
The father arrived in Australia in approximately 1969 or 1970. He stated both years in the witness box. He is an Australian citizen.
The mother arrived in Australia in 2000. The mother is also an Australian citizen.
The parties started living together in 2002 at F Street, Suburb H, Brisbane, Queensland.
The parties married in Brisbane in 2003.
There are two children of the marriage:
(i)C, born in 2005; and
(ii)A son, D, born in 2007.
The Applicant father also has an adult daughter named Ms R from a previous marriage.
Final separation occurred on 3 January 2015 when the father, on his own testimony, barricaded the (then) family home situated at E Street, Suburb G Brisbane. The mother and the children were returning from a holiday in South Australia. Upon arriving back at the family residence neither the mother nor the children were permitted access to the residence. The father prevented access. The mother and the children obtained accommodation at a women’s crisis shelter. They stayed at the shelter for seven months from the date of separation (3 January 2015) until 27 July 2015.
Since the final separation the children have continued to live with the mother. On 27 July 2015 the mother and the children moved into a two-bedroom unit at Suburb T. In July 2016 the mother and the children then moved into a three-bedroom townhouse in Suburb U. This townhouse is close to the school the children attend and it is also close to the mother’s employment. The children currently attend school in Suburb U and the mother works part-time as a customer service officer at Business A at Suburb T.
The father has continued to work in the construction industry. He trades under the name, "Huda Group".
The father filed an Initiating Application seeking parenting orders and orders for property adjustment under section 79 of the Family Law Act 1975 (Cth) (“the Act”) on 17 February 2015.
On 13 April 2015 the Court made procedural orders directing that a section 11F report be prepared and also appointed an Independent Children's Lawyer.
On 11 May 2015, the Court made interim parenting orders and issued trial directions setting the matter down for a final hearing on 4 and 5 November 2015.
On 2 June 2015 an Interim Hearing took place. The mother's interim application was for the sale of the F Street, Suburb H property and for an interim distribution of property. The Application was dismissed and costs were reserved. The matter remained listed in the Federal Circuit Court of Australia for final hearing on 4 and 5 November 2015.
On 14 September 2015 a man by the name of Mr Laham filed an Application in a Case. Mr Laham sought orders allowing him to intervene in the proceedings, claiming that the Applicant and the Respondent owed to him an amount of $595,000.
At the hearing of the Application in a Case on 20 October 2015, The Court made various orders including:-
(i)Joining Mr Laham as the Second Respondent in the proceedings; and
(ii)An order vacating the trial dates of 4 and 5 November 2015 and a further order setting new trial dates with the matter to commence on 17 May 2016.
On 11 February 2016 the mother filed a further Application in a Case seeking the sale of the F Street, Suburb H property and also seeking the sale of the E Street, Suburb G property – along with orders permitting interim property settlement. On 21 March 2016 the Respondent father filed a Response to the Application in a Case seeking that the Application be dismissed.
On 5 April 2016 the mother’s Application in a Case (filed 11 February 2015) was adjourned to the first day of the trial, scheduled to commence in May 2016.
Just prior to the commencement of the final hearing the parties were divorced on 3 May 2016.
In relation to parenting – the parties were able to reach final agreement on 18 May 2016. That was the rescheduled first day of the final hearing. The parties agreed, inter-alia:-
a)That there should be equal shared parental responsibility;
b)That the children would live with the mother and spend time with the father:
i)Each week from 3:00pm Wednesday until 8:30am Thursday;
ii)Every alternate weekend from 1:30pm Saturday until 8:30am Monday; and
iii)Half of all school holidays.
The property proceedings took place on 17, 18, 19 and 20 May 2016 before another Judge of this Court. Judgment was delivered and final property orders were made by the Court on 17 June 2016.
The final property orders made on 17 June 2016 provided, inter alia:-
a)That the properties situated at F Street, Suburb H and E Street, Suburb G be sold and that the wife be appointed as Trustee for the sale;
b)That the net property pool be divided 55% to 45% in favour of the wife; and
c)That the Amended Application of Mr Laham filed 12 November 2015 be dismissed.
On 15 July 2016 Mr Laham filed a Notice of Appeal against the orders of the Court. Also on 15 July 2016 the husband filed a separate Notice of Appeal against the Court’s orders.
On 18 July 2016 the wife filed an Application in a Case seeking an indemnity costs order against the husband and Mr Laham.
On 27 September 2016 the Court ordered that Mr Laham pay the wife’s costs on an indemnity basis in the amount of $73,420.33. No costs order was made against the husband.
On 12 October 2016, the wife filed an application seeking an order for an enforcement warrant against Mr Laham for the non-payment of the indemnity costs.
On 24 October 2016 the wife appealed against the Court’s decision of 27 September 2016 not to make a costs order against the husband. On 25 October 2016 Mr Laham appealed against the costs order.
On 16 February 2017 Justice May sitting in the Family Court dismissed an Application brought by the wife to restrain the husband's lawyer (Mr Y) from acting further in the proceedings. It seems that the Family Court also dismissed the husband's Application for costs on 17 June 2017.
On 10 May 2018 the Full Court of the Family Court of Australia allowed the appeals of the husband and Mr Laham (Appeal No. … and Appeal No. … respectively) concluding that the primary Judge had failed to accord procedural fairness to the husband and Mr Laham. The Full Court ordered that a re-hearing take place in the Federal Circuit Court of Australia before a different Judge.
In June 2018 the Federal Circuit Court made new orders setting the matter down for a rehearing on 4, 5 and 6 December 2018.
On 11 July 2018 the Full Court of the Family Court issued cost certificates pursuant to the Federal Proceedings (Cost) Act 1981 (Cth) in respect of the appeals.
On 22 August 2018 the father filed an Application in a Case, seeking to reopen the parenting proceedings.
The matter did not proceed to a final hearing in December 2018. There was a good deal of activity leading up to the proposed commencement of the trial in December 2018. In November 2018, Mr Laham filed proceedings in the Supreme Court of Queensland, whereby he sought to recover from the husband the sum of $693,369.33 as a debt.
Towards the end of November 2018 an order was made by a Deputy Registrar of the Supreme Court whereby judgment was entered against the husband in the sum of $693,369.33. The order made by the Registrar of the Supreme Court was made with the consent of the husband and Mr Laham (the two parties to those Supreme Court proceedings). The husband then granted a mortgage to Mr Laham over the husband’s interest in the E Street, Suburb G property – as security for the judgment debt in the Supreme Court. Mr Laham filed a Notice of Discontinuance in these proceedings in the Federal Circuit Court of Australia. Furthermore, on 28 November 2018 the husband executed a General Security Agreement (‘GSA’, pursuant to the Personal Property Securities Act 2009 (Cth)) in favour of Mr Laham which had the effect of securing the Judgment debt. The GSA was registered on 1 December 2018. The granting of the GSA in favour of Mr Laham (which then led to the subsequent registration of the GSA) had the effect of transforming Mr Laham into a secured creditor of Mr Huda.
On 3 December 2018 the matter came before the Court and, inter-alia, the Court ordered:-
a)That Mr Laham be joined as a party to the proceedings – as the Second Respondent;
b)That an injunction issue restraining the Second Respondent from taking any steps to enforce the mortgage granted to him by the Applicant husband on 28 November 2018;
c)An order restraining the husband and the wife from encumbering or seeking to further encumber their interests in the properties at E Street, Suburb G and F Street, Suburb H; and
d)An order appointing a Trustee for the sale of the F Street, Suburb H property.
On 6 December 2018 the matter was again before the Court and Mr Hackett of Counsel appeared on behalf of the Applicant husband, Mr Shoebridge of Counsel appeared on behalf of the wife and Mr Wilkins of Counsel appeared on behalf of the Second Respondent (Mr Laham). Certain undertakings were provided and certain orders were made, including:-
a)The wife provided an undertaking to the Court to abandon her claims against Mr Laham;
b)Mr Laham provided an undertaking to the Court to release the mortgage dated 28 November 2018 in respect of the E Street, Suburb G property;
c)By consent, it was ordered that Mr Laham be removed as a party to the proceedings;
d)By consent, it was ordered that the injunction against Mr Laham issued by the Court on 3 December 2018 be set aside – conditional upon Mr Laham releasing the mortgage he had been granted over the E Street, Suburb G property; and
e)An order by consent that Mr Laham pay costs to the wife fixed in the sum of $25,000.
On 10 December 2018 the matter came back before the Court. Mr Hackett of Counsel appeared on behalf of the husband. Mr Shoebridge of Counsel appeared on behalf of the wife. Various orders were made by the Court with the consent of the parties, including:-
a)An order for the sale of the E Street, Suburb G property;
b)An order appointing Mr W as Trustee for the sale of both the E Street, Suburb G property and the F Street, Suburb H property;
c)Various other orders and directions were made in relation to the Trustee’s sale of the two properties;
d)The parties also agreed (and it formed part of the consent orders of 10 December 2018) that the husband would vacate the E Street, Suburb G property and leave the property in good and tenantable repair and deliver all keys and remote controls for the E Street, Suburb G property in good and working order to the Trustee for sale.
The only other relevant order of 10 December 2018 was an order adjourning the final hearing of the property settlement proceedings to a date to be fixed and adjourning the parenting Application for mention to take place on 21 February 2019.
The rehearing of the matter commenced in the Federal Circuit Court of Australia at Brisbane on 29 July 2019.
In relation to parenting, the parties are unable to agree as to the parenting arrangements for their two children. There were in place final parenting orders that have been made in 2016. Both parties pressed for a variation to those orders. Given the number of years that has elapsed and noting the findings I have made in the course of these Reasons for Judgment – I came to the conclusion that it was appropriate to vary the earlier final parenting orders. Further, the parties are unable to agree on how to divide the property. The Applicant husband was self-represented for the entirety of the trial except for Monday, 28 October 2019. On that day Mr Alford appeared for the husband instructed by Raniga Lawyers. The Respondent wife was represented by Firm X Lawyers and Mr Shoebridge of Counsel appeared on her behalf. The Independent Children's Lawyer is Ms Singh-Pillay and the Independent Children's Lawyer briefed Mr Jones of Counsel. Mr W (the Trustee for Sale) appeared on the first day of the hearing (29 July 2019) and on the last day of the hearing (30 October 2019). The Court also granted leave to Mr Laham to appear and make submissions as to the form of the final orders. Mr Coulsen of Counsel (instructed by GG Lawyers) appeared on behalf of Mr Laham on 30 October 2019. For reasons which will become apparent, the Court also granted leave to the Registrar of the Child Support Agency and to Firm Y to make submissions as to the form of the final orders.
Parenting
The current operative parenting order is a consent order reached between the parties in 2016. That order was reached on the second day of the (initial) final hearing – namely 18 May 2016. By that order the parents had equal shared parental responsibility. As noted earlier, the children were to live with the mother and spend time with the father from 3:00pm each Wednesday until 8:30am each Thursday. In addition, the children were to spend time with the father every alternate weekend from 1:30pm Saturday until 8:30am Monday. Various other parenting orders were made. Those orders were made with the consent of the parties. All parties were legally represented.
In the trial currently before the Court, the Applicant father seeks an order that the children live with him and have supervised time with the mother. Mr Huda stated this position in the witness box. In his affidavit filed 7 August 2019 the father actually sought week about with each parent (50-50 custody) with changeovers on Friday. In written submissions forwarded to the Court on 27 November 2019 (on behalf of the father) – Mr Simon Fisher of Counsel reiterated that the father sought the final parenting orders in the terms of his affidavit filed 7 August 2019. There did seem to be an alternative position – in paragraph 19 of the written submissions the father stated that he would seek to return to the final orders made by consent on 18 May 2016 and amended on 2 June 2016.
The mother originally sought an order that the children live primarily with her and spend time with the father as agreed between the parents. However, in written submissions provided on behalf of the mother (prepared by Mr Shoebridge of Counsel) the mother sought orders whereby the children live primarily with her; the mother have sole parental responsibility; and the children spend each alternate weekend with the father from 1:30pm Saturday until 5:00pm Sunday.
The Independent Children's Lawyer, in a case outline filed 22 July 2019 has also sought final orders whereby the children would live with the mother and spend time with the father as agreed between the parents. In the written submissions provided to the Court at the conclusion of the final hearing by Mr Jones (Counsel on behalf of the Independent Children's Lawyer), the Independent Children’s Lawyer sought final orders which were very similar to the final orders sought by the mother – namely that the children live primarily with the mother and spend alternate weekends with the father from 1:30pm Saturday until 5:00pm Sunday and the mother is to have sole parental responsibility. Each party sought various other orders but for present purposes it is not necessary for those orders to be set out in detail.
Section 60CA
Section 60CA of the Act provides that:-
“In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
Section 60CC sets out how it is that the Court is to determine what is in the children’s best interests. Section 60CC(1), (2) and (2A) provide:-
“60CC How a Court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).”
In the particular circumstances of this case, it is necessary to consider section 60CC(2)(b) before considering section 60CC(2)(a).
There are various allegations made by the Applicant father against the mother. It is necessary for the Court to consider the father’s evidence and the father’s allegations that he has made against the mother.
The father’s allegations against the mother
When the trial commenced on Monday, 29 July 2019 the father brought to the Court a memory stick containing three videos and quite a number of single frame images. The memory stick has become exhibit 3.
The first video recording was played on 29 July 2019. I note the transcript from that date at page 30 from line 3:-
“HIS HONOUR: Okay. Hold that there. So what I saw was one bruise on his back, one bruise on the back of his shin, one bruise, what seems to be another bruise on the lack of the leg and a cut on the leg or the shin?
MR HUDA: That’s correct.”
The father maintains that the bruising and cut on D’s body (displayed in the video) occurred in May 2018 and D told the father that the mother had bashed him with a wooden spoon. Further, on page 30 of the transcript the father gave evidence that D had told him recently that the mother was "still hitting him with the wooden spoon". This had allegedly occurred on 26 June 2019. The mother denies this. I accept the mother’s evidence.
The recording continued to play and the father maintained that the recording (which was filmed by D) showed the mother causing harm to the daughter (C) by (according to the father) choking the daughter (page 32 transcript line 31). In fact, the video appears to depict an argument between the mother and the daughter. The son (D) was filming the argument and there then appeared to be a struggle over the phone. I infer from what I have observed that C was upset that D was filming the argument between C and her mother. The video produced to the Court by the father does not show the mother choking or attempting to choke the daughter (as alleged by the father).
The father produced another video (also part of exhibit 3) and claimed that it was further evidence of the mother abusing the children. In this instance, the video shows the children jumping from rocks into the water. The mother is encouraging the children. The father says this is a risky venture and it amounts to abuse by the mother of the children. The father says that one (or both) of the children broke some teeth while jumping from the rocks into the water. I note the following evidence of the father from page 35 of the transcript:-
“HIS HONOUR: So do you maintain that’s some sort of abuse?
MR HUDA: That’s broken teeth. How can mother let the kids to jump off the rocks.”
I observed the video recording (which was played during the trial) of the children jumping from rocks into water – apparently it took place at or near Suburb Z. There was nothing untoward. It is not evidence of abuse.
The father then gave the following evidence from page 38 line 4 of the transcript of 29 July 2019:
“MR HUDA: Shows the mother having a boyfriend there, speaking another man, their language. ..... it up. Probably she have sex with that man on the front of the kids – to my son. Comes out naked and putting himself in that position, and she’s the same behind the curtains and looking son what he’s doing. That’s a mother? Fit mother to have a kids?”
There is no evidence whatsoever that would lead the Court to conclude that the mother was having sexual intercourse with a man in front of the children. The allegation is scandalous. Nothing in the videos or photographs could be interpreted by a reasonable person as depicting any such occurrence.
The father then had a photograph of the mother who was apparently having a wash or bathe in sink at a hotel. This occurred when the parties were together and is contained at page 253 of exhibit 1 (the tender documents prepared for the Court and tendered into evidence by the Independent Children's Lawyer). Also contained on page 253 is what appears to be a photograph of a young male person’s backside. There is nothing to suggest anything untoward from the image. It seems to have been a photograph taken as a joke. I infer from the photograph on page 253 of exhibit 1 (of the mother) that it was the father who took the photograph – when the couple were together. The father now seeks to maintain that it is evidence of abuse by the mother. It is not evidence of abuse. I accept the mother’s version. The mother says she was having a wash in the sink. At page 40 of the transcript the father in fact confirms (line 37) that the photograph of the young boy’s backside on page 253 (at the bottom of the page) was a photograph taken by the child himself.
The photographs on page 253 of exhibit 1 are not evidence of abuse.
At page 41 of the transcript on 29 July 2019 the father referred to a photograph which is number 281 (or page 281) of exhibit 1. It's a photograph which shows the mother lying on a bed and the daughter C and son D also appear to be playfully on the bed as well. The father (page 41) gave evidence from line 34 as follows:-
“MR HUDA: And you can see mother on 281, she’s full of drugs.
HIS HONOUR: Full of drugs?
MR HUDA: Yes. To do that, she’s a drug addict.
HIS HONOUR: Hold – how can you tell she’s full of drugs?
MR HUDA: You can see her face.
HIS HONOUR: All right?
MR HUDA: To do this with the kids on the bundle naked like that, she’s full of drugs and somebody – that – my son and my daughter did not took this pictures. Somebody else was in that room. It’s time there and everything: February. But I disclose that ‑ ‑ ‑
HIS HONOUR: What year?
MR HUDA: This year, but I disclose this in my son telephone in April.
HIS HONOUR: Did you show the police?
MR HUDA: Yes, I did, and there’s police record number there.”
The photograph at page 276 of exhibit 1 seems to have been taken at the same time. The mother gave evidence at page 499 of the transcript on 12 August 2019, in relation to the photograph on page 281. The mother explained that it was a hot day (in February 2019) she was having a rest in a comfortable summer dress and her dress was pulled up slightly for a rest. The mother confirmed that D had taken a “selfie”. The two photographs at 276 and 281 clearly show the children being playful. The mother has a look of annoyance on her face. This is not surprising considering she was trying to have a rest and the children were clearly in a playful mood.
Mr Huda has put forward these photographs to the Court and asked the Court to conclude from the photographs (especially at page 281) that this indicates that the mother is a drug addict; that she is full of drugs; that she and/or the children are naked and there is (in the assertion by the father) to be implied or inferred from the images that there is some form of abuse or sexually inappropriate activity/abuse of the children.
These assertions and allegations made by the father are wrong. The allegations are scandalous. The allegations are outrageous. No reasonable person would bring such material to the Court (as Mr Huda has done) and make the allegations that he has made. I accept the evidence of the mother. The mother’s explanation is much more likely. In relation to this allegation made by the father I am mindful of section 140 of the Evidence Act 1995 (Cth) (‘Evidence Act’). That section states:-
“Civil proceedings: standard of proof
(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
The gravity of the matters alleged by the father is a factor to be taken into account by the Court when considering the standard of proof required. I am mindful of what Dixon J had to say in Briginshaw v Briginshaw (1938) 60 CLR 336. I also note what was stated by the Full Court of the Federal Court in Qantas Airways Ltd v Gama (2008) 247 ALR 273. Branson J stated at paragraph 128 that section 140(2) of the Evidence Act “was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.”
Mr Huda has put forward the photograph at page 281 of exhibit 1 as evidence that:
a)The mother is a drug addict;
b)The mother was "full of drugs" at the time the photograph was taken;
c)The mother is naked or half naked – and so are the children;
d)The Court should infer that the photograph depicts sexual abuse of the children by the mother; and
e)That somebody else was present in the room at the time the photograph was taken.
These are all serious allegations. None of these allegations are proved. I accept the mother’s evidence. The father’s allegations in relation to the photograph at page 281 conclusively shows to this Court that the father in this case, Mr Huda, has no credibility as a witness. Where there is any discrepancy between the evidence of the father (Mr Huda) and the mother (Mrs Huda) I accept the evidence of the mother.
This assessment of credibility goes even further. I do not accept that the father believes that the mother is a drug addict, or that she has sexually abused the children. If he did believe those matters to be true, then he would surely not be seeking (in his written submissions) a parenting order whereby the children live in a week about shared care arrangement between the parents. Mr Huda does not believe the allegations.
What is the Court then to make of a person (such as Mr Huda) who has come to the Court and made outrageous and scandalous allegations – which he does not even believe to be true? The conclusion I have reached is that Mr Huda will say absolutely anything to the Court (whether it is true or not true) in an attempt to persuade the Court that the outcomes that he seeks should be preferred.
This finding against Mr Huda in relation to his credibility and his truthfulness is an important issue in this case – not only in relation to the parenting aspects of the case, but the property proceedings.
There are many other examples of Mr Huda's lack of truthfulness contained in the evidence. It is important for the Court to refer to these items of evidence – even at the risk of repetition.
I have already made findings in relation to the photograph of the mother that is contained at page 253 of exhibit 1. That is another example of Mr Huda’s outrageous allegations and lies. I accept the evidence of the mother. In relation to the photograph of page 253 Mr Huda told the Court (page 43 of the transcript on 29 July 2019 from line 39) that, in effect, the mother was masturbating in front of the child D. This is another outrageous allegation which is made by the father and which I reject. The father does not believe this to be true. I accept the mother’s evidence. The photograph was taken when the family was on holiday at City AA. The father cross-examined the mother and specifically put to the mother various allegations and assertions concerning the photograph contained at page 253 of exhibit 1. This evidence commences at the bottom of page 526 of the transcript on 12 August 2019.
The father says that the photographs contained at page 253 and 256 are linked; and they are evidence of sexual abuse by the mother of the child by – for instance, the mother masturbating in front of the child. All of these matters were put by the father to the mother in cross examination from page 526 of the transcript. The mother rejected such assertions. I accept the evidence of the mother. From the bottom of page 528 I note that the mother stated in answer to the allegations put by the father words to the effect that – somebody who would make such allegations… "is very sick, sir."
The conclusion that the Court has reached is that the father is willing to lie to this Court (including during his sworn testimony – for instance, concerning the photograph at page 281) and the father (Mr Huda), has no hesitation in seeking to mislead this Court.
The father continued to cross examine the mother at some length in relation to his allegations. From page 531 of the transcript the father played a video and asked questions, indicating his assertions and allegations that there was some inappropriate sexual activity (that is the inference that he is asking the Court to draw) going on behind a curtain indicated in a video. The mother explained that the recording in fact showed the two children arguing. The child D had been annoying his older sister. I accept the mother’s explanations.
It transpires (from page 542 of the transcript) that the child D had been taping or secretly recording events inside the mother’s household. At the bottom of page 542 the mother’s evidence is that the father was giving instructions to the child D in relation to the recording of events inside the mother’s household. I accept this evidence from the mother. I note page 543 of the transcript where the Court clarified precisely what the father was putting to the mother. From line 24 I note the following evidence:-
“HIS HONOUR: You can’t give evidence now. Your evidence is over. Listen to me. You seem to be putting to the witness that something wrong, something inappropriate – the connotation is from you…..to be blunt: you are putting to the witness that some inappropriate, incestuous sexual activity is taking place behind the curtain. Is this what you’re putting to the witness?
MR HUDA: That’s correct.
HIS HONOUR: Right. Take a seat.
HIS HONOUR: What do you say to this allegation? That’s what he’s putting to you?
MRS HUDA: That’s part of somebody’s hallucination, sir.
HIS HONOUR: Part of somebody’s hallucination?
MRS HUDA: That’s it.”
The mother rejected these assertions made by the father. I do not for one moment consider that the recording produced to the Court by the father indicates any sexual abuse or incest. I do not consider that the father believes the allegations that he has made. I accept the evidence of the mother.
I also accept the mother’s explanation is that the child C had been (in the past, when the child was much younger) seeking comfort from the mother by touching the mother’s breast, or even putting her mouth on the mother’s nipple. These matters were canvassed by Mr BB in the family report, including from paragraph 4.29. That family report is annexed to an affidavit of Mr BB filed on 23 October 2015. The mother explained that the child would do this to seek comfort. The mother didn't know how to stop the child from doing it. Mr BB suggested that the mother see a psychologist to help her better address C's fixation with being comforted in that manner. The mother stated that she had spoken to a counsellor at the DD School about the issue. The mother also stated (page 480 the transcript) that the child C does not try to open up her blouse. The mother also denied that the child still tries to put her mouth on the mother’s nipple. The mother said, at page 481 that the child used to put her face on the mother’s breast and put her hand on the mother’s breast from line 15 the mother stated:-
“MRS HUDA: I suppose that she has some emotional needs to feel me in some way. I cannot explain why.”
The mother also went on to state that it had not been happening in the last few years, not in the last four or five years. I accept the mother’s evidence. I accept that the child had some emotional issue where the child sought comfort in the manner described. There is no evidence from a psychologist to explain the matter any further. I do not consider that this amounts to sexual abuse of the child by the mother. I note the photograph at page 257 of exhibit 1. That depicts a young child. Not a baby – but perhaps a toddler. It is unclear as to how old the child (C) was at the time of the photograph at page 257. The child looks to be anxious or frightened.
Further, to the extent that the father alleges that any of the other photographs contained in exhibit 1 (for instance, at page 247, 248, 250 are evidence that the mother has physically abused the children) –I reject the father’s allegations. The mother provided evidence in relation to the chipped teeth. Both children suffered chipped teeth in two separate accidents. I accept the mother’s evidence that these injuries occurred by accident.
I accept the mother’s evidence from page 597 and 598 of the transcript (13 August 2019) that she held a wooden spoon in her hand and threatened the children. “You’re going to got smack on your bum." (Note page 598 from line 7).
I accept the mother’s evidence.
I note that the child D told Ms CC that he had been hit with the wooden spoon by his mother. If the mother did in fact hit the child with a wooden spoon I note the opinion of Ms CC expressed at page 633 of the transcript on 13 August 2019. To begin with it was not put to the mother that she had been striking the children with a wooden spoon from the time they were aged 15 months old. In any event, I note what Ms CC had to say about the wooden spoon:-
“MS CC: It depends on a number of factors. It depends on how – how much that happened, how hard it happened, whether – you know, whether it was a one-off or whatever. Yes, in and – in and of itself, it could raise concerns for me. But in the light of the other issues that we’ve just already been canvassing about risks to this – these children, I don’t see that it is at the same level of concern as the other risks to the children in terms of what is being said to them about their mother, their exposure to all of this conflict, etcetera.”
While Ms CC was in the witness box the father continued to insist that the children were complaining to him that their mother continually smack them or hit them with a wooden spoon or otherwise inappropriately was using corporal punishment. At page 637 of the transcript I note from line 11:-
“HIS HONOUR: Just take a seat, okay?
Ms CC, if – the children, when they came to see you, did they, at any time, express to you that their mother had been excessively or inappropriately using a wooden spoon to discipline them?
MS CC: No.”
The father also asked Ms CC during cross examination about the children causing damage to their teeth by jumping into a rock pool (or, in the case of C – apparently some injury to her teeth occurred when she was climbing out of a swimming pool). But in relation to the rock pool at Suburb Z, Ms CC quite rightly pointed out that it is a matter for determination at the time and it is a decision “that a parent needs to make under the circumstances.”
It is a reasonable observation for the Court to make at this stage that the father’s first language is not English. He was born in Country Q. The father is also a self-represented litigant. On many occasions during the course of the 10 day trial the father became extremely agitated and loud in the Courtroom. On occasions he was quite disruptive of the Court process. It therefore occurred that in order to ensure that the trial could continue it became necessary for the Court to listen carefully to what Mr Huda was trying to ask, say, or put to a witness. It was necessary for the Court then to frame a question to the witness. Before doing so, the Court endeavoured to confirm with Mr Huda that the framing of the question by the Court reflected what it was that he was actually trying to put to the witness. This is what occurred for instance in relation to the allegation by Mr Huda that the children had been complaining about excessive physical discipline being meted out to them by the mother.
The father’s conduct in the Courtroom while he was cross-examining the mother was, on occasions, completely inappropriate. For instance, the Court had to adjourn on 13 August 2019 (at 12:18 PM) (note page 606 of the transcript).
The conclusion of the Court is that the mother has not inappropriately or excessively punished the children in any way, whether physical or nonphysical.
At page 600 of the transcript the father put to the mother the following question:-
“MR HUDA: Did you put a knife under my daughter’s throat? Did you?
HIS HONOUR: Wait, wait, wait. This is a very serious allegation. The father is putting to you, Mrs Huda, and the question is, did you put a knife under your daughter’s throat?
MRS HUDA: Not in wildest dreams. No way.”
The father further alleged that the incident occurred in the mother’s bedroom at the premises at E Street, Suburb G in 2013. The mother answered that she considered it another fabrication by the father (note page 600 line 29) of the transcript.
The father then asked the following question:-
“MR HUDA: What happened to you that day? You cried on the bed, pack up your suitcase and walk out to your friend for one months". (Page 600 from line 34).”
Mrs Huda then answered from line 46:-
“MRS HUDA: D was prep and C was grade two.
…
And after one of the verbally fight as one what we have here between me and my ex-husband where I was accused for a million things about how bad woman, how I — a million things I can… Yes about everything and anything is and I tried to defend myself.
…
HIS HONOUR: So that’s okay. So you went and stayed with a friend?
MRS HUDA: I went out of the house and I didn’t know nothing then about the domestic violence centre or somebody who want or can help me, so I remembered one person. She lives by herself. She’s older than I am and I just call her. I needed somebody to talk.
HIS HONOUR: And you went to stay with her?
MRS HUDA: Yes. She ask me, “Come here. Come here,” and I went there and I says I cannot go back, but my kids are in school at that time. She says, “Stay with me.” She live not far away from us.
HIS HONOUR: Take a seat. Right?
MRS HUDA: So I stayed that evening with her.
HIS HONOUR: Okay?
MRS HUDA: In the morning about 5 I am – my son was ringing me because he going to sleep and waking up with hold my hair like this and he called me at 5 o’clock in the morning and says, “Mum, where are you?” and I heard Mr Huda telling him, “Why you calling her. She’s not good. She left you. She don’t like you anymore. She doesn’t like you anymore. We don’t need her anymore and you don’t call her,” and he cancelled the line. So I stayed with that woman for about three days, hopefully – hoping that my ex-husband, Mr Huda, would realise that kids desperately needed me and hoping that he will maybe call me back and tell them that he’s sorry, what he doing and how he behaving in – I had my uniform in my car, so I went on my work. On way to work I go in school and see kids and kiss them and love them and tell them that I love them, that I am around and I will be there very soon and after grade 3 other friend called me and ask me, “Can I come to see you?” I says I am not at home. She says, “Ms Huda, you know Mr Huda going around from house to house to all people he know and telling them that you want to kill the children, that you get crazy, that you run out of the home, that you …” completely opposite of that, what I expecting to go back to house. So I sitting with woman and talking to her and I says, “You know what? I’m going in the school and I going to pick up my kids and I’m going in police,” and she says, “You know what? You are silly. You go back to your home. It’s your home too. It’s not his house. He cannot just dismiss you from the house. Go there and be in your house and call police from there.” So I says “Okay. I’m going back there.” As soon he saw me he start to yelling and screaming, “Why you are back? Why you are here? We don’t need you here. Get out. We don’t want you here anymore. I will go call police right now. I will call police. You will see,” and I thought okay, maybe it’s good you call police because somebody must resolve this madness here. Like, I didn’t feel scared of see police or any things because I haven’t done nothing. So police really came and they says, “What your side of the story? Are we having trouble with dealing with the children?” and I said, “No. I don’t have trouble with the children. I have trouble with him. He want to separate me from the children.” He’s – since they’re two or three years old he’s constantly telling them that how they don’t need me. “We don’t need her here. She is not good. We want her out of here. Don’t listen her.” He was – I couldn’t have any communication with children when he was in the house because he’s constantly interrupting and telling them to ignoring me. So that’s how our drama and our problems actually started. So police men, they recommend me, like, they talk with us and they say you two of you stay together, can we leave us to not kill each other, there in peace and stuff like that and they says, “We will report this to somebody who maybe can help two of you,” and they recommend – I got a link from the United Care – Uniting Care family, some agency. It’s ‑ ‑ ‑
HIS HONOUR: Uniting Care. Yes?
MRS HUDA: So then I contact them then and they come and talk to me and they says, “We can help you out, to get out.” I grow up in family where we was taught children must have parents, so there was – I am not against divorce, But when you have children, like, divorce is easiest option, so I thought we try somehow to work it together to keep marriage because of the children. I understand the children need father too and to get out of the house, so I ask ladies from the United Care is any chance to somebody who is professional and to talk with Mr Huda to we see if he’s any way to be – somehow convince him that it’s not so easy, “Just get out of here. We don’t need you anymore.” Like, to somehow have some mediation or something to put us together to we work together somehow, how to keep a family.
HIS HONOUR: Yes?
MRS HUDA: The lady says, “No. We not doing that. We cannot change nobody. We just can help you to get out with the children.” So I says I really want to try to keep my marriage. I was not happy to be by myself with the children out there.
HIS HONOUR: Okay. So this was 2013?
MRS HUDA: Yes.
HIS HONOUR: And then it wasn’t until January 2015 when you returned from Adelaide that final separation occurred?
MRS HUDA: Yes.”
I accept this evidence from the mother. I do not accept the father’s assertion that the mother at any time used a knife or another sharp object in the house to threaten one of the children to hold a knife under the daughter’s throat.
There is nothing contained in the subpoenaed material from the police concerning the father’s allegation that the mother had held a knife under the daughter’s throat. If this had in fact occurred I’m certain that the father would have told the police.
I also note the evidence of the mother in relation to the progress of the children at the Suburb U State High School. I have come to the conclusion that given the close proximity of the Suburb U State High School to the residence of the mother and the mother’s place of employment – that these are matters which lead the Court to conclude the children are best off remaining at the Suburb U State High School. It is in their best interests.
I accept the mother’s evidence that she finds it extremely difficult to communicate with Mr Huda. I note, for instance, at page 619 of the transcript that Mr Huda stated that he had no problem communicating with the mother. Mr Huda went on to say from line 24:-
“MR HUDA: If she behaves, sir, honour, not accusing me, I don't have any problem.
…
I shake hands with her now.
HIS HONOUR: Okay. Hold on.
MR HUDA: and give a kiss now. Can she do it?
…”
This evidence is disturbing. The father expects the mother to “behave”.
I accept the mother’s evidence that the father gives her orders and commands. I note page 620 of the transcript:-
“MRS HUDA: He is not acknowledging me as a person with voice. It's his view and his orders and his commanding things." (From line 29).”
I accept this evidence from the mother. Having heard Mr Huda give evidence; having listened to Mr Huda cross-examine the mother; having come to the conclusion that the allegations made by the father against the mother are baseless, without foundation and scandalous – the conclusion I have reached is that there is simply no way the parents in this case could share parental responsibility. The order must be that the mother has sole parental responsibility.
I agree with the submission made on behalf the mother. The father was frequently disparaging of the mother during the course of his evidence in the witness box.
The father’s concerns (or some of them) in relation to the mother and the mother’s care for the children – were the subject of complaints (at times) by the father to the Department of Child Safety and the Police. Any concerns reported by the father were investigated and dismissed.
I have no doubt that the father denigrates the mother to the children. Mrs Huda gave evidence that on one occasion she heard the father on the telephone saying to the children "We don't need her”; “she has left you". That was the incident when the mother, at her wits’ end, and looking to protect herself, left the family residence for a period of days. The father’s conduct of himself in the Courtroom and the manner in which he cross-examined the mother and the manner in which the father gave testimony himself leads the Court to conclude that the father has a very low opinion of the mother and that he has no hesitation in voicing this opinion. I have no doubt he voices his negative opinion of the mother in front of the children.
Notwithstanding the father’s baseless allegations against the mother and the disparaging way he addresses the mother and speaks about the mother – the children do yet seem to have a relationship with their father. The mother seeks orders that the children live primarily with her and spend each alternate weekend with the father from 1:30pm Saturday until 5pm Sunday and on Father's Day each year from 9am until 4:00pm.
The parenting orders proposed by the mother would ensure that the relationship between the children and the father remains intact. It also has the benefit of limiting the father’s time in order to minimise any possible negative (or further negative) outcomes that might flow from the manner in which the father conducts himself; and from the manner in which the father speaks about the mother.
It will be apparent that the Court has concluded that the children are not at any risk in the mother’s care. I have come to the conclusion that there is great benefit in the children having a meaningful relationship with the mother. The children do have a relationship with their father. It is difficult to gauge precisely what the children think about their father. The evidence of Ms CC does throw some light on this issue.
The evidence of Ms CC
As to section 60CC(3)(a) – the children had expressed a view to Ms CC that they wanted to live in a 50-50 arrangement but Ms CC had no confidence that the children were speaking their heartfelt wishes. They did not want to be seen to be taking sides. The children were looking for an easy way out. I note page 624 of the transcript during the evidence of Ms CC. I accept her evidence. Ms CC was cross-examined by Mr Shoebridge, Counsel on behalf of the mother from page 623 of the transcript. I note the following evidence given to the Court by Ms CC, especially from page 625 of the transcript on 13 August 2019:-
“MR SHOEBRIDGE: You’re aware because you’ve reported on it that Mr Huda has accused Mrs Huda of some very serious transgressions. If I could summarise in this way. During the cross-examination in this case Mr Huda has confirmed that he believes that the wife has sexually abused their children. So you understood that to be an accusation that he made?
MS CC: Yes. Yes. Yes.
MR SHOEBRIDGE: He has, in the course of cross-examination, accused her of trafficking drugs, he has accused her of engaging in prostitution and he has accused her of having sex within the sight of the children?
MS CC: Yes.
MR SHOEBRIDGE: You were asked and you’ve said in your report you have seen those videos and photographs that Mr Huda produces that he says support at least some of those accusations?
MS CC: Yes.
MR SHOEBRIDGE: You haven’t seen yourself anything in those videos or photographs that enlivened in your mind a concern about any of those things that the mother has been accused of?
MS CC: That’s correct.
MR SHOEBRIDGE: And can I suggest to you that in some – if his Honour finds, as I will ask him to at the end of this trial, that some of Mr Huda’s allegations of fact are simply deluded, first question: it is a matter of concern if one parent adheres to deluded beliefs about the other parent, especially in relation to such serious matters, isn’t it?
MS CC: Yes.
MR SHOEBRIDGE: If a parent presses those allegations, despite having no realistic evidence to support them, that tends to reinforce the concern about that, doesn’t it?
MS CC: Yes.
MR SHOEBRIDGE: And the conclusion you would draw from that is that there is a risk to the children by being exposed to a parent who presses such deluded beliefs unreasonably, isn’t there?
MS CC: Yes.
MR SHOEBRIDGE: If his Honour finds, as I will ask him to based on the evidence that has come out of this trial, that the father encourages both children to record things that occur in the mother’s household that would be a matter for concern, wouldn’t it?
MS CC: Yes.
MR SHOEBRIDGE: If his Honour finds that the little boy, D, has, in fact, complied with his father encouragement and recorded things in the mother’s household and produced it to his father that raises a concern about the father’s relationship with that little boy, doesn’t it?
MS CC: Yes.
MR SHOEBRIDGE: It suggests that the father is prepared to manipulate his relationship with the boy in order to give effect to his need to – your words – take the mother down, doesn’t it?
MS CC: Yes.
HIS HONOUR: You will get a chance later. Yes, Mr Shoebridge.
MR SHOEBRIDGE: If the father encouraged the daughter to also record evidence that would be a matter of concern in relation to her relationship with her father, wouldn’t it?
MS CC: Yes.
MR SHOEBRIDGE: And the conclusion you would draw from those things is that there is a risk to the relationship between the children and their mother as a result of that behaviour, wouldn’t there be? Isn’t there?
MS CC: Yes.
MR SHOEBRIDGE: If the father – if the Court accepts, as I will ask it to based on what it has heard in evidence, accepts that the father has, through the daughter’s telephone using the mother Apple ID account, tracked the movements of the mother that would be a cause for concern, wouldn’t it?
MS CC: Yes.
……
MR SHOEBRIDGE: And the conclusions that you would draw from all of that conduct that I’ve just described, that is the tracking and the recording, is that there are risks to the children if the Court accepts that that’s the sort of behaviour that the father has engaged in, aren’t there?
MS CC: Yes.
MR SHOEBRIDGE: And there are, in fact, risks to the mother of such conduct in the sense of if she is aware that she is being tracked or recorded, isn’t there?
MS CC: Yes.
MR SHOEBRIDGE: Now, if the Court accepted, as I will ask it to based on what it has heard, that there is no evidence to suggest that the father’s deluded accusations will end with this trial that of itself is a matter of concern, isn’t it?
MS CC: Yes.
MR SHOEBRIDGE: If the Court accepted, as I will ask it to, that there is no evidence to suggest that the father will filter the comments that he makes about the mother to the children that would be a concern, wouldn’t it?
MS CC: Yes.
MR SHOEBRIDGE: And if those comments were derogatory in the sense that he accused the mother of being weird or in some other way mentally unstable that is a concern in relation to the relationship between the children and their father, isn’t it?
MS CC: Yes.
MR SHOEBRIDGE: Now, Mr BB, when he filed a previous report, and for his Honour’s benefit that comes from paragraph 8.27 on page 31 of Mr BB’s report, expressed an opinion that if the father continued – in fact, I will pull out the report so that I fairly put the exact words.
HIS HONOUR: And this was Mr BB’s report. What was the date?
MR SHOEBRIDGE: 4 September 2015, your Honour.
…..
MR SHOEBRIDGE: So Mr BB says:
I note from the father’s material that there have been occasions since the separation that the father has raised concerns about the mother abusing the children. If this were to continue there is risk of harm with the children suffering from systems abuse as child welfare authorities and police continue to investigate further complaints made by the father. I note that D was interviewed by police on one occasion following separation because of the father’s complaints about bruises on D.
And these next words are the words that I’m going to ask you about:
If such complaints were to continue in the future without any foundation, in my view, there would be grounds for considering reducing the children’s time with their father further or amending it to supervised time only for a period until the Court is confident that unsubstantiated allegations will not continue.
Would you have the same opinion as Mr BB on that issue?
MS CC: Yes. I think – yes. I would.”
I accept this evidence from Ms CC.
Ms CC went on to state that the children were essentially probably communicating directly with their father and spending time with him as arranged by them directly with the father. From line 47 on page 627, Ms CC stated:-
“MS CC:… the children said that Mum doesn’t stop them from going, that it’s kind of left up to them to decide and they – they essentially gave me the impression that they could take it or leave it and, if you look at their actions, they have scarcely gone at all in recent months.
MR SHOEBRIDGE: If his Honour accepts that the children were succumbing to manipulation when they said they were interested in a 50/50 arrangement or even if his Honour accepted that they were just taking the path of least resistance there is some risk, isn’t there, that if the children manage their own arrangements with their father they could be subjected to manipulation by him ongoing, isn’t there?
MS CC: Well, that’s true. That’s true.
MR SHOEBRIDGE: Would it be – so one of the options that seems to have arisen out of cross-examination is this: the mother talks about essentially the only set aspect of her work roster is that she works on Sundays, every Sunday?
MS CC: Right.
MR SHOEBRIDGE: If the Court felt that there had to be some set arrangements, if you could accept that the most practical time for that to take place seems to be on a Sunday, is there any – would you have any concerns about an order that provided for the children to spend time, and I don’t know if it would be once every two weeks or three weeks or four weeks, but some time with the father during the day on a Sunday while the mother is at work?
MS CC: No. I would be fine with that.
MR SHOEBRIDGE: All right. And I should tell you that one of the things that has arisen out of cross-examination is a concern by the mother that when the children spend time with their father one of the things or one of the differences between the two households is the access that the children have to the internet in the father’s household?
MS CC: Yes.
MR SHOEBRIDGE: And I think she commented on that to you during the interview?
MS CC: She did.
MR SHOEBRIDGE: So there’s an attraction to the daytime-only aspect of my previous question because it tends to minimise that internet difference between the two households, doesn’t it?
MS CC: Yes.
MR SHOEBRIDGE: If the children, though, because of the communication aspects of this case, expressed to their father a wish not to spend that time with him it tends to follow from the other questions that I’ve asked you that they should have some degree of voice in relation to that, shouldn’t they?
MS CC: Yes. Yes.
MR SHOEBRIDGE: Now, given what I’m going to be submitting to his Honour is a really, really poor quality of communication between the husband – between the father and the mother, there really is no hope, is there, for the father and the mother in this case to be able to negotiate with each other and arrive at decisions in relation to long-term parenting matters, is there?
MS CC: No. None at all.”
I accept this evidence from Ms CC.
As to section 60CC(3)(b) – each of the children have a close and loving relationship with the mother.
Given the evidence of Ms CC – I have come to the conclusion that the children are willing to agree to the father’s suggestions and proposals – just in order to achieve a quiet life. The children requested 50-50 time between the parents. But Ms CC did not consider this was their true wishes. She considered that they had been manipulated by the father. I accept Ms CC’s opinion in that regard. I have no doubt whatsoever that the father attempts to manipulate the children in order to achieve outcomes for himself.
Notwithstanding all of those issues the children do seem to love their father and be fond of him. I get the impression from the evidence that the children go along with the father’s suggestions – for instance D taping or filming within the mother’s household. This occurs even if D does not necessarily agree with the act or with the father’s actions generally. C is also very likely to know that the father tracks her mother by reference to the mobile telephone. But C goes along with this – to keep peace with the father. I have formed the view that the children understand that their father is a difficult personality and they “work around him”. It is as though they want to see him but I strongly suspect that they are also aware of his shortcomings. It cannot be easy for the children to hear their father constantly denigrate the mother.
It was apparent from the father’s cross examination of the mother (from page 559 of the transcript on 12 August 2019) that he had been using an Apple ID to monitor the mother’s movements. This had not been disclosed by the father previously and Mr Shoebridge of Counsel on behalf of the mother did not have a chance to cross-examine Mr Huda about this (although he reserved his rights once it was raised by the father during the father’s cross-examination of the mother). Nonetheless, it was apparent to the Court that the father had been monitoring the mother by use of an Apple ID. This was blatantly apparent from the father’s questioning of the mother. For instance, at page 561 from line 35 it is apparent that the father was monitoring the mother’s movements. Mr Huda asked the mother (at line 37):-
“MR HUDA: What reason you go on the 35 places in one night?”
There was an objection to the question. Mr Huda then suggested (either by way of submission or question) that the mother was a sex worker or a drug courier. Mr Huda also asserted that the mother’s boyfriend is a drug addict. All this evidence/submissions are contained on page 562 of the transcript.
The mother denied being involved in the sex industry and the mother denied being involved in any illegal drug activity. Furthermore, the mother denied dating 35 men in one night. I accept the mother’s evidence.
Section 60CC(3)(c)
Both parents have, at times, participated in major decisions concerning long-term issues. They also wanted to spend time and communicate with the children. There is significant conflict in this case. The parents are not able to communicate. Having had an opportunity to listen to and observe the mother and the father in the witness box and in the Court room for an extended period of time (during the course of the 10 day trial), I have come to the conclusion that the father’s very negative attitude towards the mother has made it difficult for the children. I suspect, though, that the children have come to the conclusion that there is greater stability with their mother. This is the import of the evidence from Ms CC where she noted in the transcript at page 628 lines 3 and 4 that in terms of the children going to spend time with the father – "they essentially gave me the impression that they could take it or leave it. And, if you look at their actions, they have scarcely gone at all in recent months."
Section 60CC(3)(ca)
Each of the parents has fulfilled their obligations to maintain the children.
Section 60CC(3)(d)
There is not likely to be any significant change in the children’s circumstances. Hence this subsection is not particularly relevant.
Section 60CC(3)(e)
There are no particular practical difficulties or expenses in relation to the children spending time with and communicating with the father.
Section 60CC(3)(f)
I have absolutely no doubt that the mother has the capacity to provide for the needs of these two children – including the emotional and intellectual needs.
I am not satisfied that the father has the capacity to provide for the emotional and intellectual needs of the children. The father has denigrated the mother to the children. The father speaks in a very disparaging way about the mother – to anybody who will listen (including the Court) including in front of the children. No person who had any insight would actually conduct themselves in the manner that the father has. It is either the case that the father lacks the necessary insight – or just doesn't care. Either way it is at risk for the children that they are constantly exposed to the father’s strongly negative views of the mother.
Section 60CC(3)(g)
This particular subsection is not relevant in this case.
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i)
There is no problem with the mother’s attitude towards the children. The mother has fully accepted the responsibilities of parenthood and has demonstrated this by her actions. In particular, notwithstanding extreme provocation (in the form of the father’s negative views of the mother), the mother has nonetheless still facilitated the relationship between the children and the father.
In relation to the father – his attitude towards the children seems to me to be – that he loves the children – but he does not care that his negative attitude towards the mother (which he expresses to the children) will have an adverse impact upon the children. Indeed, I strongly suspect, that what has been occurring is that the father’s inability to refrain from expressing negative views about the mother has led to the children voluntarily reducing the amount of time they spend with their father. That is the import of the evidence from Ms CC at the top of page 628 of the transcript.
Section 60CC(3)(k) – Family Violence
There has been family violence perpetrated by the father in this case. I note the occasion in 2013 when the mother packed a suitcase and left – just to get away from the father for a while. His constant verbal barrages of negativity and abuse directed towards the mother and his persistent denigration of the mother became too much for Mrs Huda so she packed a suitcase and left the family home.
There was also another significant instance of family violence towards the end of the relationship. The mother and the children arrived home from holidaying in January 2015 and the father had barricaded the family home at E Street, Suburb G. The father prevented the mother and the children from accessing the property. The mother and the children obtained accommodation at an emergency women’s crisis shelter. They stayed at the shelter for seven months. The act of barricading the family home and preventing access to their home by the mother and the children amounts to an act of family violence by the father. The father is oblivious to or more likely he does not care about the harm that his conduct on that occasion caused to the children. The children could not help but feel distressed in those circumstances. They were not permitted to return to their home. And the person who was preventing their return to their family home was their own father. At that stage C was almost ten years old and D was eight years old. They were old enough to be well aware that their father had barricaded the family home and was preventing access by them and the mother to the home. Whatever the father’s grievances were with the mother at that point in time – it would have been better if he had vacated the family home and left the mother there with the children. As things transpired – the children and the mother had to live for seven months in a women’s shelter. There are many unanswered questions in relation to that series of events. This family was not without assets or financial resources. The father had a good income. And yet, the father did not make money available for the mother and the children to live in reasonable circumstances during that seven month period.
I note the definition of family violence contained in section 4AB of the Act. That section states:-
“(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.”
I have no doubt that the father's actions in barricading the family home and preventing the children and the mother from entering that home in January 2015 was both violent and threatening. It constitutes family violence. The father’s conduct was reprehensible. Furthermore, the father unreasonably withheld financial support for the mother and the children in the immediate seven month period that followed the final separation in January 2015. This was a further act of family violence perpetrated by the father against the mother and the children.
Section 60CC(3)(m)
While Mr Shoebridge (Counsel for the mother) was cross-examining Mr Huda on 29 July 2019 Mr Huda alleged that the mother had been having sexual relations with the children since the children were born. In this regard I note page 100 of the transcript. The questioning appeared to relate to the photographs or some photographs from exhibit 1 – presumably on page 253 and 281. The father indicated that he had made complaints to the police. The police had not taken the matter any further. These allegations made by the father are untrue and they are scandalous. The father knows that they are untrue.
Mr Jones (Counsel on behalf the Independent Children's Lawyer) asked the father whether either of the children had ever been interviewed by the police. The father answered, “I can't answer that question”. The father never explained why he could not answer the question.
I accept the mother’s evidence that the father voluntarily stopped seeing the children on Wednesdays. Furthermore, the father stopped weekend times or at least significantly reduced those times between August 2018 and June 2019. The father only saw the children for four weekend visits. I accept the mother’s evidence that this was the father’s choice.
I accept the mother’s evidence that on one occasion she damaged an iPhone that belonged to her daughter. I accept that the mother was frustrated because the child was spending too much time on the phone and not obeying parental instruction. I accept the mother’s denials in relation to presents the father had bought for the children. I do not accept that the mother had thrown away presents bought by the father for the children.
I accept that the children live in a three-bedroom townhouse at Suburb U with the mother. They have done so for three or four years. I accept that each child has their own bedroom.
Section 61DA – Parental Responsibility
The presumption of equal shared parental responsibility has been rebutted. As indicated, the Court has made findings that the father has perpetrated family violence against the mother and against the children. Furthermore, the Court has made findings that the father has, to a very significant degree, denigrated the mother – including in front of the children. Having regard to the findings contained in these Reasons for Judgment – it would not be in the best interests of the children for the parents to have equal shared parental responsibility. There is no chance these parents will be able to communicate in a reasonable manner. This is the fault of the father and the father's attitude.
I accept the opinion of Ms CC in relation to the question of parental responsibility. The mother will have sole parental responsibility.
Section 65DAA
It will be abundantly apparent from these Reasons for Judgment that it is not in the best interests of these children for there to be put in place an order for equal time and nor is it in the best interests of these children for there to be put in place an order for substantial and significant time between the children and the father.
In any event, it would not be reasonably practicable. The parents do not have a current capacity to communicate with each other to resolve difficulties. Furthermore, there is no likelihood that the parents will have a future capacity to communicate with each other and resolve difficulties relating to the children.
I note that the mother was cross-examined by the father in relation to why she moved the children from the DD School. I have had regard to the mother’s evidence. That evidence commences from page 500 of the transcript on 12 August 2019. The primary reason appears to be that the mother and the children had moved to Suburb U and the mother was working in Suburb T. It was easier therefore to move the children to the Suburb U State High School. I accept that the reasons given by the mother for moving the children to the Suburb U State High School are reasonable. It is in the best interests of the children to remain at the Suburb U State High School.
Conclusion
The Independent Children’s Lawyer generally agrees with the orders sought by the mother. The precise orders sought by the Independent Children’s Lawyer are contained in paragraph 20 of the written outline of submissions. Essentially those orders are that the children would live with the mother. The mother would have sole parental responsibility. The children would spend time with the father each alternate weekend from 1:30pm Saturday until 5pm Sunday with an additional night each week of the school holidays (a Tuesday night). Other orders were proposed for the Eid Observance Day.
The Independent Children’s Lawyer orders also take account of the children's birthdays and telephone contact between the children and the father. The Independent Children’s Lawyer also proposes a changeover point.
As noted, the Independent Children’s Lawyer orders are similar to the orders proposed on behalf of the mother. The Independent Children’s Lawyer’s orders are appropriate and they are in the best interest of the children. There is plenty of evidence to support the proposed orders of the Independent Children’s Lawyer.
The father’s contention that the children to live in a 50-50 arrangement with the parents is not supported by the evidence. I have provided extensive reasons as to why such an approach is not in the best interests of the children.
I have also provided extensive reasons as to why the mother should be granted sole parental responsibility. I do note that the father conceded that whichever parent had primary care of the children should be the parent with parental responsibility.
I have had regard to the written submissions filed on behalf of the father on 27 November 2019. The submissions were sent to the Court by Raniga Lawyers. Mr Fisher of Counsel was retained on the instructions of Raniga Lawyers to draft written submissions on behalf of the father. Mr Fisher did not take part in the hearing. The applicant father had engaged a solicitor (Raniga Lawyers) and Counsel (Mr Lindsay Alford) on day eight of the trial for the purposes of the re-examination of Mr Laham. Those matters will be canvassed when the Court considers the question of property. In relation to parenting I note that Mr Fisher was at a significant disadvantage because he did not observe the father giving evidence. Indeed he did not observe any of the witnesses giving evidence. Furthermore, Mr Fisher did not have access to the transcript of the proceedings.
Noting that the written submissions were prepared by Mr Fisher without the benefit of having been present during the course of the hearing and without the benefit of a transcript – they are of extremely limited utility. This is not meant as a criticism of Mr Fisher. There is nothing in the written submissions prepared by Mr Fisher on behalf of the father in relation to the parenting case that would change any of the findings or observations made by the Court in these Reasons for Judgment.
I have come to the conclusion that the orders proposed by the Independent Children’s Lawyer are appropriate. In addition, I agree with the order proposed on behalf of the mother that the children should have passports and the mother should be permitted to obtain a passport without the necessity of the father’s signature. The mother must hold the children’s passports.
Ms CC identified many risk issues with the children in the care of the father. Mainly they relate to the father constantly and severely denigrating the mother in front of the children. Mr BB also highlighted the risks relating to this issue. I have given serious consideration to an order that the children spend no time with the father. I have also given serious consideration to an order that the children's time with the father should be supervised. Both Mr BB and Ms CC highlighted that the children are at risk in being exposed to the father's negative attitudes towards the mother.
But I am very mindful of the fact that neither the mother nor the Independent Children's Lawyer have sought an order for supervised time. Neither the mother nor the Independent Children's Lawyer have sought an order that the children spend no time with the father. The conclusion I have reached, not without some hesitation, is that the children are mature enough and intelligent enough to understand their father’s shortcomings. The limited time that the children spend with their father will ameliorate the risks identified by Ms CC and Mr BB. I have therefore come to the conclusion that the orders sought by the Independent Children's Lawyer (and essentially by the mother) are in the best interests of the children.
Property
The parties separated on a final basis on 3 January 2015. Section 79(2) of the Act requires that the Court shall not make an order under section 79 unless the Court is satisfied that, in all the circumstances, it is just and equitable to make the order. I note what was said by the High Court in Stanford v Stanford (2012) 247 CLR 108 – page 82 at paragraph 42:-
“…the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.”
That is precisely the situation that exists in the current proceedings. There is still in existence joint property of the parties but there will no longer be the common use of property by the husband and the wife. The majority of that property (so far as the Court is aware – noting that the husband has failed to make any or any adequate disclosure of his financial affairs) is contained in the trust account of the Trustee for Sale. The current balance of that fund is approximately $647,440.76.
As was noted further in Stanford (supra) at paragraph 42:-
“…the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.”
It is just and equitable that the Court in the present case make a property settlement order. In considering what order should be made under section 79 the Court applies section 79(4) of the Act.
Since separation the wife has had to pay rent for accommodation for herself and the children. From the beginning of 2015 until the end of 2018) the husband lived rent free in accommodation owned by the parties. I presume that he paid the rates because there is no evidence to the contrary (which I recall). If there is contrary evidence it will make no difference to my decision.
The wife has also been primarily responsible for caring for the children since separation.
The conclusion I have reached in relation to the contributions based entitlements of the parties as at the date of the final hearing is 50% in favour of the wife and 50% in favour of the husband.
Future Needs
The wife works as a customer service officer. The wife earns approximately $38,000 per annum.
The husband has made no disclosure of financial documents that would assist the Court in ascertaining his current level of income. The husband has provided no recent taxation returns (or any at all). He has not provided notices of assessment or bank statements. The husband has not filed an updated financial statement. The Court knows that Mr Huda is continuing to work in the construction industry. During the course of this trial (during 2019) the husband gave evidence from the witness box that he was engaged in a contract at Suburb ZZ worth $1.8 million. The husband has made no disclosure whatsoever in relation to this contract.
I note that the husband is 70 and the wife is 54.
I note that the husband is behind in the payment of child support. He is in arrears in the approximate sum of $43,000. The Child Support Registrar has issued a notice. I will have more to say about this issue later in these Reasons for Judgment. I note that the husband disputed (in Court) the debt to the Child Support Agency. The husband has not adduced any evidence to prove his assertions.
The wife will have to take care of the children for the foreseeable future. The children will live primarily with the mother. The Court has to work on the basis that the father will not pay any amount of child support voluntarily.
I have given serious consideration to an uplift pursuant to section 75(2) of the Act in favour of the wife. In particular I have given serious consideration to this because of the lack of financial disclosure by the husband. However, there are three issues which have convinced the Court that, in the particular circumstances of this case, notwithstanding the lack of disclosure, there should not be any uplift under section 75(2) in favour of the wife. The first is the age of the husband. He is currently aged 70 years. The wife is aged 54 years. The husband has 16 fewer years to save for his retirement. In addition, the Court will be ordering the Trustee pay to the Child Support Registrar the amount of money contained in the notice – namely approximately $43,000. I am working on the basis that that money shall be paid by the Child Support Agency directly to the wife. Lastly, whilst it is the case that the Court has concluded (for the reasons stated) that Mrs Huda shall not be responsible for any part of the debt owed by Mr Huda to Mr Laham – nonetheless Mr Huda has to repay that debt to Mr Laham. I have concluded that he is very well-placed to negotiate good terms with Mr Laham in relation to the repayment of the debt. However, it is still a matter that the Court should take into account when assessing section 75(2) of the Act.
In the circumstances therefore, I have concluded, when weighing up all the various considerations, that there should be no uplift pursuant to section 75(2) in favour of the wife.
Furthermore, in view of the findings concerning the lack of disclosure by the husband – it is not appropriate for there to be any uplift pursuant to section 75(2) in favour of the husband.
Submissions filed on behalf of Mr Laham
I have had regard to the written submissions sent to the Court on behalf of Mr Laham. Mr Laham was not "invited" to make written submissions. Mr Laham was granted leave by the Court to make a written submission in relation to the form of orders. This leave was granted when Mr Laham voluntarily withdrew from these proceedings.
It often occurs in the Family Law jurisdiction that a loan is made by a friend or a family member to a party to a marriage. Often the loan is secured by registered mortgage. It is often the case that the Court is called upon to evaluate and assess the priorities and the interests of various creditors – including secured creditors and unsecured creditors.
Mr Laham became a grantee under a General Security Agreement (GSA) with Mr Huda in November 2018. The GSA was entered into pursuant to the provisions of the Personal Property Securities Act 2009 (Cth). That does not prevent this Court, when exercising jurisdiction under section 79 of the Family Law Act, from making findings and orders – the effect of which may be to reduce the amount that Mr Laham may be entitled to receive from the fund of money which is currently held by the Court-appointed Trustee, Mr W. This Court is a Court of equity and has available to it broad inherent powers as well as the specific powers conferred on the Court by section 80 of the Family Law Act 1975.
Specific findings have been made by the Court in relation to Mr Laham and Mr Huda. This Court has had the very great advantage of observing Mr Laham in the witness box. This Court also, obviously, has had the advantage of observing Mr Huda in the witness box. The findings which the Court makes concerning the closeness of the friendship and the relationship between Mr Laham and Mr Huda must be looked at in the light of the advantage that the Court has had in observing both of those men give evidence in the Courtroom. The findings to which I refer include:-
a)Mr Laham has been Mr Huda’s friend for a very long time;
b)For a very long time there has been, and there remains today, a close bond of friendship and affection between Mr Laham and Mr Huda;
c)That close bond of friendship and affection led Mr Laham to advance certain monies to Mr Huda – at Mr Huda’s request;
d)Because of Mr Laham's role in the Brisbane Islamic community he has been able to assist Mr Huda in relation to the granting of contracts – for instance, in relation to the construction of various buildings in the Brisbane area. This has been a significant benefit to Mr Huda and, in the absence of any evidence to the contrary, I infer that it is likely that Mr Laham will continue to assist Mr Huda in relation to Mr Huda's business – whether such assistance is provided by Mr Laham in his role as a leader of the Islamic community or merely in his role as Mr Huda’s friend;
e)The close bond between the two gentlemen is also the reason why Mr Laham afforded to Mr Huda such generous terms in relation to the loan – specifically, an advance of $350,000, with no requirement for interest or principal to be repaid (in any amount) for 10 years; interest capitalised at 5%. The loan fell due on 31 May 2015. Mr Laham did not commence proceedings to enforce repayment of the loan until November 2018;
f)Mr Laham has shown generosity and patience towards Mr Huda and I find as a fact that he is highly likely to continue in this similar vein;
g)Mr Laham became concerned at the prospect of remaining as a party in the Huda family’s litigation under the Family Law Act in the Federal Circuit Court of Australia. Accordingly, Mr Laham instructed his lawyers to commence proceedings in the Supreme Court of Queensland – as he said, “to secure my debt”;
h)The friendship between Mr Huda and Mr Laham led Mr Huda to consent to the judgment in the Supreme Court of Queensland. I find as a fact that Mr Huda consented to the judgment because he did not want to put his friend (Mr Laham) to any further cost or expense. The fact that Mr Laham has obtained a judgment against Mr Huda does not, in any way, change my view that the bonds of friendship and affection between Mr Laham and Mr Huda will persist and Mr Laham will continue to show generosity and patience towards Mr Huda in respect of the money that Mr Huda owes to Mr Laham;
i)There was no written loan agreement between these two old friends;
j)Mr Laham lent the $350,000 to Mr Huda without seeking any security. The loan remained unsecured until the registration (or the granting) of the GSA, pursuant to the Personal Property Securities Act 2009 (Cth). This occurred in November 2018. Therefore, for approximately 13 years the loan was unsecured – so close is the bond of friendship and affection between Mr Laham and Mr Huda.
k)The agreement between Mr Laham and Mr Huda is not and never was an ordinary commercial transaction;
l)The closeness of the connection between Mr Laham and Mr Huda was further evidenced in the Courtroom on 28 October 2019 when it was apparent to the Court and is noted in the transcript of that day that Mr Laham's own lawyer (Mr GG) attended at the Court and gave assistance to Mr Huda's lawyers (who had been engaged by Mr Huda to appear on his behalf on that particular date); and
m)I have come to the conclusion that it is highly likely that through negotiation involving Mr Huda and Mr Laham – Mr Huda will not be required (by Mr Laham) to repay the entirety of the debt. At the very least, I am very sure that Mr Laham will continue to afford to Mr Huda generous terms in relation to the repayment of the debt.
In paragraph number 72 of the written submissions on behalf of Mr Laham it is submitted that Mr Laham “due to the GSA", is entitled to 1/2 of the fund”. The reference to the fund is the reference to the money held in the trust account of Mr W, the Statutory Trustee appointed by the Court in December 2018. It is said, on behalf of Mr Laham, that Mr Huda was entitled as a tenant-in-common to the extent of 50% of the "relevant real property". The submissions do not identify the relevant real property. The submissions of Mr Laham do seem to be based upon the unsound proposition that the extent of Mr Huda's assets and financial resources are to be found in the fund of money held by the Statutory Trustee. Mr Huda has failed in his duty to make disclosure of his financial affairs. I find that it is likely that Mr Huda has other assets which he has not disclosed to the Court. This is apparent from his own evidence. Mr Huda told the Court that he was engaged in a $1.8 million contract at Suburb ZZ in July 2019. He has made no disclosure of his income from that contract. Mr Huda's lack of candidness and lack of disclosure leads the Court to conclude that it is likely that he does have other assets. Mr Laham withdrew from these proceedings and has not put before the Court any evidence as to the extent of Mr Huda's assets. There are no title searches, bank statements, business contracts or any other evidence before the Court that would enable the Court to conclude precisely the extent of the property interests of Mr Huda.
In any event, as noted above, in proceedings under Part VIII of the Act the general powers of the Court are set out in section 80. I note in particular section 80(1)(k). Having regard to the findings made by the Court it would be unjust were the Court to permit Mr Laham to receive 50% of Mr Huda's property as at the date of the GSA (or 50% of the fund presently held by the Statutory Trustee for Sale. The conclusion of the Court is that there is a very high likelihood that Mr Huda will not be required to repay the entirety of the judgment debt which Mr Laham has obtained against him in the Supreme Court of Queensland.
The priority which Mr Laham says he enjoys by reason of the Personal Property Securities Act 2009 (in particular the GSA) – must give way to an order of this Court made pursuant to section 80(1)(k) in the section 79 proceedings. If the argument put forward by Mr Laham were accepted by the Court – it seems to me that it is highly likely that there will be an unjust outcome for the wife. There are (at least) three reasons that I have reached this conclusion:-
a)Firstly, it could be the case that Mrs Huda may be contributing in part to the repayment of Mr Huda’s debt that he owes to Mr Laham. This will depend upon the precise wording of the final orders;
b)Secondly, Mr Laham's argument is that he would be entitled to his money before the Trustee is paid his fees. This will effectively mean that Mrs Huda has to pay all of the Trustee's fees. I will refer to this again shortly; and
c)Thirdly, Mr Huda would evade the payment to the Child Support Registrar – which payment is required by reason of the notice issued. I will refer to this again shortly also.
The Trustee’s Fees
In relation to the submissions made by Mr Laham concerning the payment of Mr W's fees. Mr W was appointed by the Federal Circuit Court of Australia as a Trustee for Sale. The order was made on 10 December 2018. On 4 February 2019 the following orders were made in relation to the Trustee and in relation to the Trustee’s costs and outlays. Those orders are as follows:-
“12. That upon sale of each property, the sale proceeds shall be paid in the following manner and priority:
a. Firstly, in payment of all necessary selling costs including agent’s commission, legal costs, costs and outlays of the Trustee for sale, marketing and advertising costs and all other necessary costs incurred in the sale;
b. Secondly the discharge of any liabilities secured against the properties by the registered mortgage; and
c. Thirdly in payment of any other costs, disbursements and liabilities incurred by the Trustee for sale in the course of the Trusteeship for sale;
d. Fourthly in discharge of any Capital Gains Tax or Goods and Services Tax arising as a consequence of the sale;
e. Fifthly, to hold the remaining balance in the trust account of the Trustee until either:
i. further Order of a Court; or
ii. written agreement between the parties.
13. That the Trustee is entitled to charge for all his costs and outlays incurred by the Trustee in the performance of his obligations pursuant to these Orders on an indemnity basis and that his costs and outlays be a first charge on the trust monies.”
Paragraph 13 of the order made on 4 February 2019 is still operative. It was not appealed. In any event, the Court order specifically authorises the Trustee to charge – not only for his outlays, but for his “costs”. This means the Trustee’s professional fees – on an indemnity basis. The Court, of course, has the power to order that the Trustee can be paid his professional fees (as well as his outlays and other expenses). Pursuant to section 80(1)(f) and 80(1)(k), the Court will be ordering the payment of the Trustee’s costs and outlays on an indemnity basis – prior to the payment of any money to either the wife or the husband in this case. The submission made on behalf of Mr Laham concerning Mr W has not addressed the fact that Mr W was appointed by the Court and that the very nature of a Trustee appointed by this Court in the Family Law jurisdiction (pursuant to section 80(1)(e)) carries with it duties and obligations – first and foremost to the Court. It would be an intolerable impediment to the administration of justice for this Court to order that Mr Laham’s claim over Mr Huda's money should somehow take priority ahead of the Court-appointed Trustee receiving payment in respect of his own fees, costs and outlays. It would be unjust in the extreme and I will not entertain such an order. Further, and in any event, it is, and always was the Court’s intention that both the husband and the wife would be equally responsible for the payment of the Trustee’s fees. The effect of the order sought by Mr Laham would leave that responsibility to the wife. That would be unjust: note – section 80(1)(k), Lasic v Lasic (supra). It is worth noting that the primary reason for the appointment of the Trustee was the inability of the parties to cooperate and this, I find, is mainly because Mr Huda is contemptuous of the wife.
Child Support Registrar
Mr Laham has submitted that the obligation of Mr W pursuant to section 72(A) of the Child Support (Registration and Collection) Act 1988 (Cth) (‘Registration and Collection Act’) to pay $43,174.80 to the Child Support Registrar is subordinate to the rights of Mr Laham as a secured creditor. I reject this submission on behalf Mr Laham. I agree with the submission made by Mr Tran, Counsel on behalf of the Child Support Registrar. Section 72(A) has been drafted by the Parliament in imperative terms. Section 72(A) of the Registration and Collection Act relevantly provides:-
“72A Registrar may collect debts from a third person
(1) The Registrar may give written notice to a person:
(a) by whom money is due or accruing, or may become due, to a relevant debtor; or
(b) who holds, or may subsequently hold, money for or on account of a relevant debtor; or
(c) who holds, or may subsequently hold money on account of some other person for payment to a relevant debtor; or
(d) who has authority from some other person to pay money to a relevant debtor;
requiring that person to pay to the Registrar:
(e) if the amount of money is more than the maximum notified deduction total—an amount equal to the maximum notified deduction total; or
(f) if the amount of money is equal to or less than the maximum notified deduction total—the amount of money; or
(g) if the notice specifies an amount of money that is to be paid out of each payment that the notified person becomes liable, from time to time, to make to the debtor—that amount until the maximum notified deduction total is satisfied.
…”
It is uncontested that a previous notice had been addressed to W Pty Ltd. That is the notice which is annexed to Mr W's affidavit, filed 23 October 2019. It is also uncontested that a replacement notice was issued to Mr W. The replacement notice was also issued pursuant to section 72(A) of the Registration and Collection Act. The issue of a replacement notice has no bearing upon the outcome. It does not alter my reasoning.
In relation to section 72(A) of the Registration and Collection Act it is in fact the case that Mr W (and, for that matter, W Pty Ltd) is a person who holds money for or on account of the child support debtor – in this instance, Mr Huda. In this regard I note section 72A(1)(c). Further, I note section 72(A)(1)(e). The amount of money that Mr W holds for or on an account of Mr Huda is an amount of money which is more than the maximum notified in the notice served by the Child Support Registrar upon Mr W. Accordingly, the maximum amount notified (in the Registrar's notice) must be paid by Mr W to the Registrar. There is no basis for Mr W not to comply with the notice that he has received from the Child Support Registrar.
In relation to this issue – I agree with the submission by Mr Tran that it is unhelpful to consider the issue in terms of priorities. Section 72(A) confers power on the Child Support Registrar to require a person holding a child support debtor’s funds to pay the child support debt to the Registrar.
I note the decision of the majority of the Full Court of the Federal Court in Federal Commissioner of Taxation v Park (2012) 205 FCR 1. That case related to a garnishee notice that had been issued to a firm of solicitors under the Taxation Administration Act 1953 (Cth) pursuant to section 260 which required the payment of the debt to the Commonwealth. The majority (Jessup and Katzmann JJ) decided that the notice had to be complied with – as it had been validly issued under the relevant statute. Payment of the money to the Commonwealth in response to the notice issued in Park (supra) – did not disrupt any priority enjoyed by a registered mortgagee’s interest. The majority stated at paragraphs 103 and 104 (inter alia):-
“103. … The silent premise on which the trustee’s argument is based is that the commissioner’s rights under a s 260-5 notice are somehow derivative apropos those of the vendor/taxpayer in a situation in which the purchase moneys were notionally paid to him or her. Such an approach, however, implicitly mischaracterises the way that s 260-5 operates. A notice under s 260-5 (which this one was) imposes an obligation on the addressee immediately money becomes owing to the taxpayer. The money must be paid to the commissioner instead of being paid to the taxpayer. There would, therefore, never be proceeds in the hands of the errant vendor which might be the subject of a charge in favour of the mortgagee.
104. Counsel for the trustee also submitted that, as a matter of construction, s 260-5 should not be understood as entitling the Commissioner to step in and take the moneys promised to be paid to the vendor of a mortgaged property by his or her purchaser, at the expense of the mortgagee. This submission involved four points, to which we shall come, but they were all based upon the proposition which lay at the core of the trustee’s case, namely, that judgment for the Commissioner in a case such as the present would have the effect of turning the mortgagee into an unsecured creditor. Dealing with it at the general level — which must be the approach required in an exercise by way of construction — the proposition cannot be accepted. In the circumstances postulated, nothing but the repayment of the secured moneys or the voluntary act of the mortgagee could result in him or her losing the security. The vendor and the purchaser could not, by their own agreement alone, deprive the mortgagee of the security. A notice under s 260-5, if complied with by the purchaser, would not affect the security. There is no conceivable construction of the section — at least none for which the Commissioner pressed on the present occasion — which could leave an unwilling mortgagee in the position of an unsecured creditor.”
I agree with the submission made by Mr Tran of Counsel. A similar situation has arisen here. Mr Laham remains a secured creditor because of the GSA but Mr W is required to pay (from Mr Huda's share of the fund) the sum of $43,174.80 to the Child Support Registrar. There will be an order of this Court requiring Mr W to do so.
I would also point out that if the Court were to make an order that Mr Huda indemnifies the Trustee in respect of this notice – I am not confident that such an indemnity will be honoured by Mr Huda. It would therefore be, in my view, unjust and, indeed, unconscionable for the Court to ignore the notice served by the Child Support Registrar. Once again, this Court has the power to make an order which it thinks it is necessary to make “to do justice”: section 80(1)(k). It would not be just if the Trustee appointed by the Court is left to repay the father's child-support debt.
I also note that the Court, of course, has a more specific power under section 80(1)(f) to order a payment directly to a public authority, “for the benefit of a party to the marriage”. In relation to the Child Support Registrar – it will benefit one of the parties to the marriage – namely the mother.
Finally, in relation to Mr Laham’s written submissions, I note the extraordinary statement contained in paragraph 65 to the effect that:-
“The secured creditor has not been a party to the entire proceedings giving rise to final orders which would prejudice its rights”.
Mr Laham withdrew from these Family Law proceedings. He did not want to be a part of the Family Law proceedings. If Mr Laham had remained as a party to the proceedings he would have been able to adduce evidence and cross-examine witnesses etc. Mr Laham's absence from these Court proceedings was his own choice. He cannot now claim that, to some extent, his rights have been prejudiced. Mr Laham was given an opportunity by this Court to be heard – and he has been heard. That was what Mr Laham sought and the Court granted him leave in that respect. I do not find it necessary to make any finding concerning the submission made by Mr Laham in relation to the wife's undertaking. I merely note that the Court has reached a conclusion that Mr Laham did not engage in fraud and the Court has reached a conclusion that Mr Laham did advance money to Mr Huda.
Part VIII AA
For the reasons stated – section 80(1)(k) is sufficient to deal with this matter. However, for completeness I will also make reference to Part VIII AA.
Section 90AA (found in Part VIIIAA) also provides the Court with the power to make the types of orders that it proposes – insofar as any such order might be said to alter the “rights, liabilities or property interests of a third party”.
I note section 90AE(2) – to the effect that in proceedings under section 79, the Court may make an order that alters the rights, liabilities or property interests of a third party in relation to the marriage. It may well be said that the type of order proposed is just that kind of order. Such an order can be made if the provisions of section 90AE(3) are satisfied. Section 90AE(3) provides:-
“(3) The court may only make an order under subsection (1) or (2) if:
(a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and
(b) if the order concerns a debt of a party to the marriage--it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and
(c) the third party has been accorded procedural fairness in relation to the making of the order; and
(d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and
(e) the court is satisfied that the order takes into account the matters mentioned in subsection (4).”
Each of the subsections within section 90AE(3) have been satisfied. The making of an order of the kind contemplated is reasonably necessary to effect a division of property between the parties to the marriage. I do not foresee that the making of the proposed order would result in the debt to Mr Laham not being paid in full. I have already made extensive findings in relation to the reasons why I am satisfied that an accommodation will be reached between Mr Huda and Mr Laham in relation to the repayment of the judgment debt – to the satisfaction of Mr Laham. The third party (Mr Laham) has been accorded procedural fairness in relation to the making of the orders. For the reasons stated, the Court is satisfied that, in all the circumstances, it is just and equitable to make the orders and the Court has taken into account all the matters mentioned in section 90AE(4). In that regard, there is no evidence as to the taxation effects upon the parties to the marriage or on the third party. I would not anticipate any adverse taxation effects. I do not anticipate any social security effect on the parties to the marriage and nor do I anticipate any particular administrative costs on the part of the third party. As to section 90AE(4)(e) – there will be an order that from the fund of money held by the Trustee there will be an amount of money paid directly to Mr Laham in partial repayment of the debt that Mr Huda owes to Mr Laham. There will be a further order that Mr Huda continue to repay any balance amount outstanding to Mr Laham – noting the findings, the Court has already made. It is also important to note at this stage that the lack of disclosure made by the husband leads the Court to make a further finding that Mr Huda does have the capacity to repay the entirety of the debt to Mr Laham. There is no requirement (it seems to me – having regard to the amount of time that has elapsed) for the Court to consider that the debt requires repayment immediately. The Reasons for Judgment cover this point – at length. There is nothing referred to in section 90AE(4)(f), (g) or (h) that has not already been referred to.
Accordingly, in addition to the power which the Court has pursuant to section 80(1) to make the kinds of orders proposed in the section 79 proceedings – there also exists in the Court the power pursuant to section 90AA of the Act to make similar orders – in relation to the person in this instance who is a third party to the marriage, namely, Mr Laham.
To the extent necessary, I have also considered the provisions of Part VIIIAA of the Act in relation to Firm Y Lawyers and any other creditors referred to in these Reasons for Judgment. I do not propose to add anything further in that regard. The matters relating to Firm Y Lawyers are canvassed below.
Firm Y Lawyers
In relation to the submissions by Firm Y Lawyers. Firm Y are in the same position as the lawyers for the wife (Firm X Lawyers). Both of those firms of lawyers had registered mortgages in respect of the real estate owned by the parties situated at F Street, Suburb H. The Court ordered the sale of that property. The bank (Commonwealth Bank of Australia) held the first registered mortgage and had to be repaid first. The other mortgagees agreed to the discharge of their mortgages and to be repaid approximately $64,000. I do therefore consider that from that point onwards both of those firms of lawyers (Firm Y and Firm X Lawyers) became unsecured creditors. I do not consider it appropriate for this Court to make any order in respect of a payment to Firm Y.
I consider that I should make some comment in relation to an extraordinary submission by Firm Y lawyers. That submission is contained in paragraph 69 of the submissions forwarded to the Court. The submission seems to be putting forward a position contrary to the interests (or at least contrary to the position) of Firm Y Lawyers’ former client – Mr Huda. I presume that at the first trial – Firm Y Lawyers made a different submission to the Court in respect of the “alleged debt to Mr Laham” (as it is now referred to by Firm Y). I leave open the question of the appropriateness of a firm of lawyers (Firm Y) making a submission of this kind in relation to a former client. Reference has been made (in paragraph 28 of Firm Y submissions) to the Order made by the Court on 4 February 2019. In particular, reference is made to paragraph 12(b). At the time of the completion of the sale in question – it must surely be the case that Firm Y was not the holder of a registered mortgage in respect of the relevant property. Further, I note the submission by Firm Y concerning advice received from the Trustee. The submission from Firm Y ignores one glaring fact. Firm Y, as the former lawyer for Mr Huda, were well aware that Mr Huda maintained that he owed a significant amount of money to Mr Laham. Firm Y must have been aware that there was a possibility that this Court would conclude that a debt was owing from Mr Huda to Mr Laham. Furthermore, by March 2019 (the date that Firm Y say they received correspondence from Mr W) Mr Laham was a secured creditor, pursuant to the General Security Agreement. That was registered on the appropriate register. Firm Y are assumed to have had notice of the secured creditor’s interests. When that is combined with the fact that Firm Y (as noted) must have realised that it was open to the Court to find that the debt is (or at least part of the debt is) due to Mr Laham – leads the Court to conclude that there ought not be any payment directed to Firm Y. I reject the notion that there was anything inappropriate in the advice provided by Mr W (the Trustee) to Firm Y. Firm Y were well and truly on notice in relation to all of the relevant facts and well knew the risks that they would be running by relinquishing their security.
Some of the submissions made on behalf of Firm Y lawyers are concerning to the Court. It seems to me that a Court of equity has an inherent power to make orders, when appropriate, to indemnify a Trustee or, indeed, to relieve the Trustee from personal liability. This is especially so if the Trustee has been appointed by the Court. I will consider any possible orders of the Court in relation to these issues – when the parties (and the Trustee) provide a draft order to the Court.
Justice and Equity and Orders
The property adjustment orders under section 79 will be in the following broad terms:-
a)Payment of the Trustee’s costs and outlays incurred by the Trustee in the performance of his obligations on an indemnity basis;
b)An adjustment in favour of the wife to reflect 50% of the net property pool as found by the Court;
c)An adjustment in favour of the husband representing 50% of the net property pool – however, for the reasons stated, there will be an order requiring the Trustee to directly discharge the following debts:-
i)The amount of $43,174.80 to the Child Support Registrar; and
ii)The balance of the due amount to the husband and still held in the fund should then be paid by the Trustee directly to Mr Laham in discharge or partial discharge of the judgment debt which Mr Laham has obtained against Mr Huda. It must be noted that my view in this regard (as to the precise amount of money that should be paid directly by the Trustee to Mr Laham) remains subject to any further submission by the parties (in the form of a draft order).
d)An order that Mr Huda shall be solely responsible for the judgment debt owing to Mr Laham – such judgment having being obtained in the Supreme Court of Queensland in the sum of $693,369.33;
e)An order, or indeed, a declaration that Mrs Huda is not in any way responsible for any part of the judgment debt that Mr Laham obtained against Mr Huda; and
f)An order that the Applicant (Mr Huda) indemnifies the wife and keeps indemnified the Respondent (Mrs Huda) in respect of the said judgment debt.
I accept the submission made by Counsel on behalf of the wife that the parties should retain what they currently already hold. Orders will be framed in those terms.
In these Reasons the Court has made extensive findings and the justice and equity of the proposed orders under section 79 has been referred to at length. The Court has concluded that orders in the terms outlined are just and equitable.
Orders
I will grant to the parties a short period of time to submit orders reflecting the Reasons for Judgment. In addition I am giving the parties an opportunity to make a submission as to whether or not the Court should refer the Applicant father (and the Court papers) to the Commonwealth Attorney-General for investigation and possible prosecution – in particular having regard to the findings made by the Court concerning the husband’s false allegations against the mother of sexual abuse of the children.
Further matters that may become relevant in the future
I consider it is prudent in the particular circumstances of this case for the Court to include a brief summary of findings and reasons which may become applicable.
In the event that my conclusion that the husband should be solely responsible for the debt to Mr Laham is not correct – then the following findings and reasons are applicable:-
a)The husband has acted negligently, recklessly and wantonly in ignoring the loan. It would be unjust to require the wife to repay a proportion of the actual judgment debt – which, of course, has ballooned to the amount of $693,369.33. At the very least, if the husband had acted with some prudence, he would have paid the interest over the 14 year period from 2005 to 2019 (the date of the final hearing). If he had done so the amount of the debt included in the property pool would have been $350,000 (approximately). It is that figure which the Court would take into account if the Court were considering what proportion the wife would be responsible to repay to Mr Laham;
b)Further, I note, once again, that the wife was not made aware of the existence of the loan. I also note that Mr Huda's earning capacity is and always was significantly higher than the earning capacity of the wife. I note the husband’s lack of financial disclosure; and
c)The close bond of friendship and affection between Mr Laham and Mr Huda has led the Court to conclude that it is highly likely that Mr Huda will not have to repay the entirety of the debt to Mr Laham and at the very least, he will continue to receive very generous terms in relation to any repayment amount.
Accordingly, if the wife were (at some stage in the future) to be held responsible for some part of the repayment of the monies advanced to Mr Huda by Mr Laham – such amount should not exceed 20% of $350,000. In all of the circumstances I consider that such an approach is just and equitable. In this regard I rely upon all the findings made in these Reasons for Judgment, not just the findings referred to in this part.
If it were subsequently decided that the wife should be responsible for some part of the repayment of the monies – then my conclusions in relation to contributions would remain the same but in relation to future needs, I would include an uplift of 5% in favour of the wife – primarily because of the husband’s failure to make proper disclosure.
Further, in the event that my conclusion in relation to the existence of the loan is incorrect – my reasons concerning contributions remain the same, as would my conclusion. In relation to future needs – that would alter. If the husband no longer had to repay any money to Mr Laham – that factor would disappear from the considerations in section 75(2). Accordingly I would include an uplift of 10% in favour of the wife pursuant to section 75(2) – primarily, once again, because of the husband's failure to make financial disclosure.
My conclusions in relation to the payments to the Court appointed Trustee and to the Child Support Registrar would not change in the future.
The matters referred to under this heading (Further matters that may become relevant in the future) will only become relevant in the event that my conclusions (in respect of the matters specifically referred to under this heading) are subsequently found not to be correct.
I certify that the preceding three hundred and three (303) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 9 April 2020
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