KADAM & GAVDE

[2011] FamCA 903

FAMILY COURT OF AUSTRALIA

KADAM & GAVDE [2011] FamCA 903

FAMILY LAW – CHILDREN – Best interests – What time should the child spend with the father – Whether the father was violent to the mother and the mother’s father -Whether the mother should be permitted to remove the child from Australia for the purpose of holidaying overseas
FAMILY LAW – PROPERTY SETTLEMENT – No alteration of property interests

Family Law Act 1975 (Cth)

Ferraro and Ferraro (1993) FLC 92-335
McLay and McLay (1996) FLC 92-667
Hickey and Hickey (2003) FLC 93-143

APPLICANT: Mr Kadam

RESPONDENT: Ms Gavde

FILE NUMBER: SYC 6982 of 2008

DATE DELIVERED: 2 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 23, 24 and 25 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Willis Lawyers

COUNSEL FOR THE RESPONDENT: Ms Bell

SOLICITOR FOR THE RESPONDENT: Leslie Hargreave Lawyers

Orders

PARENTING

1. The father and mother are to have equal shared parental responsibility in relation to the child of the marriage, S Kadam (“the child”) born … November 2007.

2. From the date of these orders, the child shall live with the mother except when she is living with the father pursuant to these orders.

3. The child shall live with the father as follows:  

   (a)       From the date of these orders until 2 March 2012:

   (i)From 7.00pm Friday (or the conclusion of daycare if the child is in day care) to 6.00pm each Saturday; and

   (ii)From 2.00pm Christmas Day to 6.00pm on 27 December

   2011; and

   (iii)From 2.00 pm New Years Day to 6.00pm on 2 January 2012.

   (b)       From 2 March 2012 to 1 June 2012:

   (i)From 7.00pm Friday (or the conclusion of daycare if the child is in day care) to 5.00pm Sunday each alternate weekend. The first weekend to commence on 1 June 2012.; and

   (ii)From 6.00pm (or the conclusion of daycare if the child is in day care) each alternate Monday to the commencement of daycare each Tuesday (8.30am). The first occasion to be 11 June 2012 unless otherwise agreed between the parties.

   (c)From 1 November 2012 until the commencement of the child’s school year in 2013:

   (i)Each alternate weekend from 7.00pm Friday (or the conclusion of daycare if the child is in day care) until the commencement of daycare on Monday. The first such weekend to commence on 2 November 2012; and

   (ii)From 6.00pm (or the conclusion of daycare if the child is in day care) each alternate Monday to the commencement of day care Tuesday (8.30am). The first occasion to be 12 November 2012, unless otherwise agreed between the parties.

   (d)From the commencement of the child’s school year in 2013 and during each school term;

   (i)Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday. The first weekend of such time in each school term to commence on the first weekend of the term unless the father has spent holiday time with the child in the last week of the school holidays immediately preceding the commencement of that term.

   (ii)Each alternate Monday from the conclusion of school until Tuesday at school time. This is to occur on the Monday of the weeks when the child has not spent the Sunday night immediately before that Monday with the father pursuant to these orders.

   (iii)One half of the school holiday periods as agreed between the parties with the proviso that during the end of year school holidays in 2013 the child spend no more than one week blocks with her father to make up the half of those school holidays.

4. When the changeover does not occur at school or daycare the father shall collect the child from the mother’s residence and the mother shall collect the child from the father’s residence.

5. When the child is in the care of one parent on Christmas Day, Easter Sunday, the mother's birthday, the father's birthday, the child's birthday, Mother’s Day or Father’s Day, the other parent shall spend time with the child as mutually agreed between the parties or in the absence of agreement, from 4.00pm to 8.00pm or when such day is a business day, from 6.00pm to 8.00pm.

6. Each parent shall communicate with the said child by way of telephone each Tuesday between the hours of 6.30pm and 7.30pm, when the child is in the care of the other parent and the parent with care of the child shall cause a telephone call to be made directly to the other parent and ensure that the child is made available for such calls.

7. On any occasion when the mother is unable to care for the child over night she is to offer the father the first opportunity to care for the child before the mother proceeds to make other arrangements for the care of the child. This is to be the case irrespective of the mother’s relatives residing with her and being able to provide care for the child in such circumstances.

8. Whenever the child is in the care of the father he is not to consume alcohol to excess.

9. Each party shall give the other party seven days notice in writing prior to a change of their residential address. 

10. The mother’s application to remove the child from Australia for the purpose of holidaying in India is dismissed.

11. Neither party is to remove the child S KADAM (a female) born … November 2007 from Australia.

12. The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

13. The Court requests that the Australian Federal Police place the name of the child S KADAM (a female) born … November 2007 on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.

14. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY

1. Pursuant to section 79 of the Family Law Act 1975(Cth) neither party is required to make any payment or adjustment of property to the other.

2. Each party is declared the absolute owner of items of personalty, superannuation and resources standing in their sole name. Each is to be responsible for repayment of any liability standing in their sole name.

3. I note the matter has now concluded in the Court and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 6982/ 2008

Mr Kadam

Applicant

And

Ms Gavde

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court are parenting and property proceedings between Mr Kadam (“the father”) and Ms Gavde (“the mother”).The parenting dispute relates to the parties’ only child S Kadam born in November 2007 (“the child”).The dispute relates to the duration and frequency of the time the child should spend in the care of the father. There is also an issue as to whether the mother should be permitted to remove the child from Australia for the purpose of holidaying overseas.

2. The property dispute is somewhat unclear. Determining the assets and liabilities of the parties, which might be the subject of an order under section 79 of the Family Law Act 1975 (Cth) (“the Act”),is a difficult exercise, which I will address later in these reasons.

3. Both the parties were born in India and have family in that country. This fact has apparently given rise to further disputes between the parties and allegations of physical conflict between the father and the mother’s father. There are also allegations by each party against the other of physical violence.

4. In these proceedings I have been told that there are proceedings on foot in India involving the parents of the parties. Those proceedings have been referred to in this hearing as the “Dowry Harassment” proceedings.

5. There are issues of credit between the parties and this is a case where the Court is required to determine, if possible, whose evidence is to be preferred in relation to various factual disputes.

6. I need to have noted here an extraordinary fact about this case. When the parties specified the documents sought to be read in the property case neither nominated a financial statement. I was somewhat troubled by this fact having never been required to determine a property application in this Court where neither of the parties had relied upon a recent financial statement, however, in this case I had required, by orders made 28 June 2010, each of the parties to provide details of their assets, liabilities, resources and superannuation in their primary property affidavit.

7. The mother’s affidavit was sworn on 1 March 2011 and the father’s affidavit sworn on 28 February 2011. I consider, in the circumstances of this case, the information relative to the parties’ financial circumstances at the date of the trial given in their affidavits is sufficient for me to be able to proceed to determine the case in a way which may permit the making of orders which are just and equitable as between the parties.

Orders Sought by Each Party

1. Each of the parties provided minutes of order sought in the proceedings. The mother’s orders are contained in exhibit M1 and the father’s orders are contained in exhibit F1. Those documents are set out here.

2. The mother’s Minute of Order is as follows:

   PARENTING ORDERS

   1.The Mother and have equal shared parental responsibility of [S Kadam], ([S]),  the child of the marriage. 

   2. [S] shall will live with her mother and have contact with her father as follows:

   Until … November 2011, as currently ordered by the Court

   From … November 2011, until [S] commences school in 2013, from 4:00pm Friday until 6:00pm Saturday and between 6:00pm and 8:00pm on a Wednesday 

   After [S] commences school and until … November 2013, every alternate weekend, from after school Friday until 5:00pm on Sunday, 600pm in daylight saving hours.  

   After … November 2013, ever alternate week from after school Friday until before school Monday.

   PROPERTY

   3.The Husband pay the Wife the sum of $69,250.00.

   4.The Husband also pay the Wife the 50% of the value of any property(ies) located in India acquired by the or in the name of the Husband during the marriage.

3. The father’s Minute of Order is as follows:

   PARENTING ORDERS:

   The Court makes the following Orders:

   1.        That the father and mother have equal shared parental responsibility in relation to the child of the marriage, [S Kadam] (“[S]”) born in November 2007.

   2.        That from the date of these orders the said child shall live with the mother except when the child is living with the father pursuant to these orders.

   3.        That the said child shall live with the father as follows:         

   (a)      From the date of these orders until 03 January 2012:

   (i)From 7.00pm Friday to 6.00pm Saturday for the first two (2) of every three (3) weekends; and

   (ii) from 6.00pm each Wednesday to the commencement of daycare each Thursday (8.30am);

   unless otherwise agreed between the parties.

   (b)      (i)       From 2.00 pm Christmas Day to 6.00pm 27 December

   2011; and

   (ii)      from 2.00 pm New Years Day to 6.00pm 03 January 2012.

   (c)      From 04 January 2012 to 01 January 2014:

   (i)       From 7.00pm Friday to the commencement of daycare on

   Monday (8.30am) for the first two (2) of every three (3) weekends; and

   (ii)      from 6.00pm each Wednesday to the commencement of

   daycare each Thursday (8.30am);

   unless otherwise agreed between the parties.

4.        That from 01 January 2014 the child shall live with each parent on a week about basis from 7.00pm Friday to 7.00pm the following Friday.

5.        That when the changeover does not occur at school or daycare the father shall collect the child from the mother’s residence and the mother shall collect the child from the father’s residence.

6.         That commencing Easter 2013 the said child shall spend half of the New South Wales Gazetted school holiday periods with each parent, the first half with the father and the second half with the mother in odd numbered years and alternating each year thereafter.

7.         That when the child is in the care of one parent on Christmas Day, Easter Sunday, the mother's birthday, the father's birthday, the child's birthday, Mother’s Day or Father’s Day, the other parent shall spend time with the child as mutually agreed between the parties or in the absence of agreement, from 4.00pm to 8.00pm or when such day is a business day, from 6.00pm to 8.00pm.

8.        That each parent shall communicate with the said child by way of telephone each Tuesday between the hours of 6.30pm and 7.30pm, when the child is in the care of the other parent and the parent with care of the child shall cause a telephone call to be made directly to the other parent and ensure that the child is made available for such calls.

9.        That if special occasions such as weddings and birthdays should occur, the parent requiring the child to attend such function shall give at least seven (7) days notice to the other parent and the child shall be made available to attend such special function from a reasonable time prior to the commencement of the function until 10.00am the following day.

10.       That each party shall give the other party seven (7) days notice in writing prior to a change of their residential address.    

FINANCIAL ORDERS:

11. That there be no adjustive property order pursuant to Section 79 of The Family Law Act 1975.

1. It is important to note that prior to the filing of the minutes of orders sought by each party, each was on notice of the orders being sought as set out in their application for final orders and a response to that application. On the mother’s part the response last filed was on 15 January 2009 and sought a property order in the following terms:

   That the husband pay to the wife the amount of $8,500.

2. The order sought by the mother in this hearing is substantially different to that sought in January 2009. No objection was taken to the mother being permitted to proceed on the amended order sought.

3. At the conclusion of the submissions, the mother’s counsel told the Court that the mother would offer a bond of $10,000 as security against her failure to return the child to Australia after an overseas trip. This was apparently in response to a submission by the father that the mother had failed to offer any security bond to support her application to be able to remove the child from Australia for the purpose of short holidays, at any time in the future.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. On 4 March 2011 I made directions requiring the parties to file their evidence in chief for the purpose of the hearing. I directed that the affidavit address specific matters which I set out in the order. I granted leave to the mother to file an affidavit by her father, such affidavit to address any of the topics identified in the orders made for the filing of the parents’ affidavits on 4 March 2011.

3. On 28 June 2010 I made orders for the parties to file evidence in chief in relation to property matters. The orders required the parties to address specific topics. The orders were made without objection.

4. The orders permitted each of the parties to file affidavits by their parents to address allegations that the mother’s parents paid a substantial dowry to the father’s parents.

5. Although not complying with the order to file his affidavit evidence in the time required, the fact is that the father filed his affidavit evidence on 1 March 2011 and 11 April 2011. No objection was taken to the Court accepting that evidence from the father other than objection to the father’s property affidavit on the basis of form and/or relevance.

6. The mother filed her evidence in chief in this matter on 4 March 2011. One of her affidavits addressed the topics referred to in the orders of the Court made 28 June 2010. One affidavit addressed her specific application to be able to remove the child from Australia for a period of four weeks per year. She did not file an affidavit which addressed the orders of 4 March 2011.

7. As a consequence of the mother not filing her evidence in chief in relation to the parenting case, on her application, I permitted her to provide that evidence orally.

8. The following are background facts which appear non contentious.

9. The parties married in January 2006 and commenced to live in Australia together in August 2006. They separated on 21 November 2008.

10. The father was born in 1977 and is 34 years of age. The mother was born on in 1982 and is 29 years of age.

11. As stated earlier, the parties’ only child is S. She was born in November 2007 and is 4 years of age.

12. The mother lives at P, a north west suburb of Sydney, and the father lives at W, a north east suburb of Sydney. These addresses, although both in the Sydney metropolitan area, are a considerable distance apart. This was the subject of comment by the family consultant. The father told the Court in oral evidence that he has been looking for accommodation (a two bedroom unit) in the D area so that he would be closer to the mother’s residence and thereby answer a concern the family consultant had expressed.

13. The proceedings in this Court were instigated by the father in November 2008. Since that time there have been a number of orders made in relation to the time the father is to spend with the child and ancillary orders.

14. On 3 December 2008 orders were made restraining the removal of the child from Australia and placing the child’s name on the airport watch list.

15. On 23 September 2009 the mother’s application to remove the child from Australia was refused by me. She sought to have an overseas holiday for herself and the child in America. On that date I made orders for the father to spend time with the child each Saturday from 9.00am to 5.00pm.

16. On 14 December 2009 orders were made by me for the child to spend time with the father as follows:

    ·Each Saturday from 9.00am to 5.00pm; and

    ·Each Wednesday from 5.30 p.m. to 7.00pm.

17. There has been no advance in the time the child is spending with her father beyond the orders of 14 December 2009.

18. In the family report dated 31 May 2010, the family consultant recommended that the child’s time with the father be gradually increased to include time overnight. The evidence is that the parties have not been able to put that recommendation into effect.

19. The father pays a child support assessment in the sum of $636.17 per month. That payment commenced on 13 January 2010. Prior to that date the father paid $458.90 per month.

The Issues

1. The issues to be determined between the parties arising from the disputed evidence appear to be as follows:

• Has the father been violent to the mother? (sec 60CC(i))

• Was the father violent to the mother’s father in about October 2008?

• Has the mother engaged in conduct designed by her to permanently relocate the child to India?

• What is the level of risk that the mother would not return the child to Australia should she be permitted to remove the child from Australia for the purpose of holidaying in India. Is it of such magnitude to warrant the Court refusing to allow such travel? Would the requirement for the mother to post a bond as security for her promise to return the child sufficient to countermand the potential risk of non return?

Credit

The Father

1. The father presented as a serious person who was apparently careful in the way in which he gave his oral evidence. He appeared to listen carefully to the questions he was asked and addressed that question on most occasions.

1. There was nothing about the presentation of the father in the witness box which led me to consider he was being untruthful with his evidence.

2. Unless I find otherwise as specifically expressed elsewhere in these reasons I have accepted the father’s evidence in preference to that of the mother.

The Mother

1. The mother presented at Court as a quietly spoken, respectful and a contained person. There was no sign of anger or overt emotion from her in the giving of her evidence. She is an attractive woman who spoke well. She appeared to me to have a good understanding and command of the English language. She did, however, evade answering questions on occasions such that I felt constrained to warn her about the impact on her case of continuing to evade answering questions asked of her by counsel for the father.

2. The mother spent a lengthy period of time in the witness box. She was cross-examined at length by the father’s counsel. The cross-examination was well crafted and specifically targeted to the issues in the case.

3. There were aspects of the way in which the mother gave her oral evidence which led me to conclude that she was untruthful in some of her evidence.

Parenting

Affidavit Evidence of the Father in Relation to Parenting Matters

1. The father proposes that the time he spends with the child will be supervised by him at all times. Should emergency circumstances arise which prevent him from personally supervising the child he will contact the mother.

2. The parties presently communicate by SMS text message. The father asserts that the communication is minimal. In the future the father proposes that a communication book as well as SMS text messaging be used.

3. The father asserts that should the child become distressed at any times whilst in his care and asks to be returned to her mother, he would contact the mother for that purpose.

4. The father makes no specific complaint about the mother’s parenting capacity. He does have a concern that she is not as supportive of the relationship between the child and him as is desirable.

5. The father is completely opposed to the mother removing the child from Australia. He fears that she will take the child to India and not return her. The father asserts that the mother has no substantive ties to Australia. He refers to the “dowry harassment” proceedings on foot between the mother’s parents and his parents in India. It is common ground between the parties that such proceedings are on foot in India.

6. The father’s parents have given him information in relation to the mother and child possibly returning to India on a permanent basis and this possibility is of great concern to him.

7. The father annexes to his affidavit a series of correspondence between the parties’ lawyers in November 2009. That correspondence commenced with the mother’s solicitors as follows “We have since been advised by our client’s father that your client intends to discontinue his opposition to the orders sought by our client regarding the travel restrictions and intends discontinuing the application filed in the Family Court.” In a letter which shortly followed the first, a draft minute of order was provided facilitating that instruction. In a letter of response from the father’s solicitor to the mother’s solicitor, any such intention asserted to have been conveyed to the mother’s father by the father in these proceedings was denied. The father offered to care for the child should the mother wish to travel to India.

Oral Evidence in Chief of the Mother Relative to the Parenting Orders

1. Somewhat surprisingly the mother had failed to comply with the orders of the Court made on 4 March 2011 requiring that she file an affidavit in respect of the parenting matters. This circumstance was overcome by my permitting the mother to give her evidence orally, addressing the topics as required to be addressed by the order of 4 March 2011. The mother’s evidence was as follows.

2. The mother will be supervising the child whilst she is in her care. If her parents are in Australia they will assist. The mother’s parents have been visiting on tourist visas. The mother’s father is currently in Australia and has a visa which allows him to stay for 6 months. His ability to obtain future tourist visas is apparently a matter of discussion between the mother’s father and the Australian authorities.

3. The mother became an Australian citizen in August 2011.

4. If the mother was to become ill or incapacitated to the point of not being able to properly care for the child at any particular time she has many friends, in the Sydney area, who she could call on to assist her.

5. The mother said that she uses SMS text messaging to communicate with the father. The communication is about the change to the time the father is to spend with the child. In the future the mother would not object to communication by email.

6. If the mother’s brother, who lives in the United States of America, is to come to Australia at any time he may assist in the care of the child whilst here.

7. The mother told me that her main concern in relation to the child spending any overnight time with the father arose as a result of violence. She said the father would come home from work during the time that they were cohabiting and “always go to the … Club and come home drunk.” The mother described in detail her allegations in respect of violence by the father. She described being pushed, punched and kicked by the father. On one occasion she was head butted and that assault caused injury to her nose. On another occasion the father struck her on the ear and damaged her ear. She required hospital treatment in respect of injury to her ear and her nose.

Mother’s Affidavit Evidence in Support of Application to Remove the Child from Australia for the Purpose of Holidaying Overseas

1. On 22 February 2011 the mother swore an affidavit which addresses the abovementioned topic. In that affidavit the mother gives the following evidence.

2. The mother has desired, for a considerable period of time, to take the child to India to meet extended family. She is unable to do so because the father will not consent. The mother says that she does not intend to remain in India permanently if permitted to take the child there. She considers Australia to provide a far better way of life for herself and her daughter.

3. The mother’s parents live in a small cottage in a remote rural area which is not suitable for the child or the mother. Her parents are getting older and may no longer be able to visit Australia. I note the mother’s father is currently in Australia and is permitted to stay here for a period of six months. The mother’s mother works full time. In 2009 the mother’s mother stayed for one year. The mother’s father is retired. He has more ability to travel to Australia. He does have some health concerns.

4. The mother asserts that she has a permanent connection to Australia. She says that she has lived here for three years and she is now an Australian citizen. She has full time employment. The father lives in Australia and the mother considers it is important for the child to be able to maintain and develop her relationship with the father. The mother has friends in Australia. The child is to attend childcare in 2011 and the mother has enrolled her for the 2011 year. The child has friends at that childcare centre.

The Father’s Oral Evidence in Relation to the Parenting Matter

1. The father gave evidence that he was looking to move his residence to a two bedroom unit in the D area. The rental will cost about $400 per week. He has been looking for some time and has not yet found a single unit.

2. The father was asked about litigation in India described as “the dowry harassment” litigation. He said his understanding was the litigation will take 5 years to conclude. He said he was terrified about being arrested if he returned to India prior to the conclusion of that litigation because of allegations he understood had been made against him.

3. The father was asked about the mother’s allegations made in oral evidence the previous day when she alleged she had been assaulted in the hallway outside their apartment following an exchange which had taken place at a Bunnings shop. The father claimed it was the first time he had ever heard that allegation.

4. The father agrees that prior to the birth of the child, he and the mother had argued and he had pushed or shoved her and she had pushed or shoved him. Following arguments between the parties the father claimed that if he sought to leave the residence to absent himself from the home the mother would physically try to prevent him from leaving.

5. In about March 2007 the father agreed that there was an argument between him and the mother at the house. He alleged she had slapped him. He alleged she was aggressive to him. She slapped him to the left hand side of his face.

6. The father denied he had ever hit the mother. The mother’s allegations that the father had kicked, shoved, put her down, punched and otherwise assaulted her were put to the father and he denied the allegations except for “some shoving.” He admitted that on a few occasions early in 2007 and prior to the separation he had “shoved her onto a sofa.” He claimed that she was “shoving” him at the time.

7. The father denied that he consumed alcohol to excess during the marriage or otherwise. He claimed to be a social drinker. He currently consumes alcohol, on average, on one occasion every two weeks.

8. The father confirmed he transported the mother to a hospital at a time when she complained of a sore ear. He denied he had caused that injury. He denied that he had ever “head-butted” her.

9. The father confirmed that on three occasions when the mother said that the child was not available to spend time with him she had offered alternative times. He said there were other occasions where she did not so offer. He estimated on eight to ten occasions she had failed to offer any make up time.

10. The father confirmed that he and the mother attended a Legal Aid conference in an endeavour to settle the parenting dispute in February 2009. He confirmed at the conclusion of that conference an agreement was reached and terms of settlement signed by each of them.

11. The father was cross examined. He was asked about an occasion when he took the child to a Police station to show an injury to Police. He claimed it was an injury to the child’s eye. He said that he had received a text message from the mother saying the child was not well. He went to the house to see her. He observed an injury to her eye. He asked the child what happened and she said “mummy hit me.” The father said he went to the police because he could not communicate with the mother about the matter.

12. Asked about communication, the father said that it had improved between himself and the mother. He said that they had participated in some Court directed counselling.

13. The father conceded there were occasions when he had to cancel his time with the child.

14. In relation to the father’s proposal to relocate his residence it was put to him that he has been talking about doing that for two years. He agreed that was the case.

15. The father was asked about an injury to his wife in the nature of a split lip. He said that it occurred on 12 November 2007 he believed. He was not aware of the incident until he read it in documents at a later time. He agreed that he was charged arising from that incident. However, that charge did not proceed to finality.

16. The father was asked about the mother’s evidence that on one occasion she had to lock herself in the bathroom to avoid being assaulted by him. He agreed that she did lock herself in the bathroom. He denied that he had hit her eight or nine times as she had alleged. He agreed an Apprehended Violence Order (“AVO”) had been taken out against him. He agreed he was charged with assault. He further agreed that there were complaints made to the Department of Community Services about him.

17. In relation to the mother and the child travelling overseas, it was put to the father that he had bonded with the child, to which he agreed. He agreed that it would be of benefit to the child to see her relatives in India. He confirmed that he was fearful that the child will not be brought back to Australia. He said his main fear arose when the mother removed the child from the family home and did not tell him of her whereabouts for a couple of months. He agreed he had received a telephone call from a friend of the mother’s advising that she had left the home. He agreed that he could have telephoned that friend to ask where the child was.

Oral Evidence of the Mother, Under Cross-examination, in Relation to Parenting Matters

1. The mother confirmed that her father was in Australia at the time of the hearing and had been here since 8 August 2011. He has a six month visitor’s visa. He will most likely stay for six months.

2. The mother confirmed that if the child is not permitted to leave Australia then she will not travel to India alone. She confirmed she is now an Australian citizen and claimed that her Indian passport is no longer valid. Her source of knowledge is anecdotal. She has made no enquires with Indian passport authorities. She understands, anecdotally, that Indians are not permitted to hold dual citizenship. She had looked at the Indian consulate website (Australia).

3. The mother said the child does not hold an Indian passport but she is “an overseas citizen of India.” The mother does not know whether the child could obtain Indian citizenship or not.

4. If the child is to commence overnight time with her father then the mother says that Friday would be the best day to commence overnight time. The father could collect her from her day care.

5. It was put to the mother that she knew the father was pursuing overnight time with the child since 2008. She said “he put that in his application, however, I thought he was not pursuing it.”

6. It was put to her that she had known since 23 February 2009 that he was pursuing overnight time the child. She denied that. She was shown a document which she agreed was an agreement signed by her on 23 February 2009. She agreed that at the time she signed the document she had legal advice. She also confirmed she withdrew her consent to the Court making an order pursuant to that agreement in early March 2009. She denied that when she signed the agreement she knew it was in the child’s best interests. She said “We were in the process of reconciling.” She was unable to state what the connection might be between the proposed reconciliation and the agreement she signed. Soon after signing the agreement she said “I realised I had made a mistake.”

7. The mother agreed that in February 2009 she was anxious to reconcile with the father. The mother was asked whether she made any allegations of violence against the father post separation. She said “Yes.” It was put to her that she had not put in any affidavit filed by her in the proceedings that the father had been violent to her post separation. She denied that.

8. The mother said that shortly after the birth of the child the father took up residence with her again.

9. The mother was asked whether she had requested the Police not proceed with any criminal charges against the father. She replied “Yes.”

10. It was put to the mother that on 12 November 2007 she told Police officers at the home that the father had done nothing wrong. She confirmed that was the case. She confirmed that she refused to provide a statement to Police. She told the Police “Nothing had happened.” She denied that statement was correct. It was put to the mother “You were prepared to lie to Police on that occasion?” She replied “No.” She agreed that she had told the Police an untruth.

11. On the resumption of cross examination, on the following day, the mother was asked whether she found any part of an affidavit she had filed in the proceedings where she alleged that the father had been violent to her after November 2008. She replied that she had found one affidavit. She was asked where that affidavit was and she replied “My lawyer will have it.” (I note no affidavit was thereafter brought to my attention by the mother’s lawyer.)

12. The mother was asked whether she had signed any document for the purposes of the dowry harassment proceedings in India. She replied “No.” She was then shown a document attached to the father’s affidavit sworn 24 February 2010. The document is in the Telugu language. She acknowledged that fact. She was asked whether her signature was on the document and she said “Yes.” She was asked whether she reads Telugu and she said “I only read bits and pieces.” She was asked whether she signed a document not knowing what it said. She said she knew “bits and pieces.”

13. The mother was taken to parts of the Telugu document and a purported English translation of that document was put to her. She declined to accept the translation as accurate. She was asked to look at the last sentence of the Telugu document and asked whether there were any words she recognised. She said there were no such words. The mother denied that she had discussions with her father in November 2008 or since about the possibility of returning to live permanently in India.

14. The mother acknowledged that her father had told her the documents she signed for the Indian Court were for the purpose of having Police charges laid in India. She said her father had provided her with an explanation of what the document was before she signed it. She denied her father had told her the document contained the following “I request you take necessary action to get me and my daughter back to India.” She denied she had been told the document she signed contained the words “In November 2008 my husband man handled me and threatened to kill me and forced me and my daughter to leave the home.” She said that her father had told her the words contained, which she signed, were “along those lines.”

15. The mother was shown another document attached to the father’s affidavit sworn 24 February 2010. She acknowledged seeing a document signed by her father. She acknowledged that in the translation of the document the words “my daughter informed me that her life is in danger and requested that she be brought back to India.”

16. The mother was asked about an allegation she made that on 5 December 2009 the father attended at her house and said he would kill her if she went back to India with the child. She said those words were said by the father. It was put to the mother that on 14 December 2009 she was before the Court and said nothing about threat. It was brought to her attention that there was a hearing before the Court on that day. She acknowledged that fact. She agreed that there was no evidence before the Court on that occasion about any such threat. She agreed that she had requested her father with words to the effect “He should do anything necessary to get the mother and [the child] returned to India.” She denied that she wished to return to India on a permanent basis.

17. The mother denied that she had made requests of her father which were set out in document signed by him in the Telugu language and shown to her. She denied that she, in concert with her father, was using the complaint in India as a tool to get the child out of Australia.

18. The mother denied that in about October 2008 she commenced procedures to remove herself and the child from the home. She agreed that on 21 November 2008 she left the home without notifying the father. She further agreed that was the date upon which her mother arrived in Australia from India. She asserted that she had made arrangements for her mother to come to Australia approximately 3-6 months before 21 November 2008. She agreed that before her mother arrived in Australia she had told her she was planning to move herself and the child out of the house. She claimed that she had only told her mother that on 21 November 2008. She confirmed that she had planned to move out some weeks before hand. She agreed that on 5 November 2011 she had signed a lease and paid a rental bond for accommodation to move to.

1. The mother was taken to the family report dated June 2010. She agreed she read it in about June 2010. She said that the recommendation was clear to her. She had no intention to change the regime. She thought the child was too young. It was put to the mother that she made no complaint to the family consultant about being the subject of violence at the hands of the father in 2009. She alleged that she had told the family consultant.

2. The mother was asked whether she has done anything since the release of the family report to withdraw the proceedings in India. She said no. She was asked whether she thought it was appropriate for the Indian proceedings to run their full course. She replied “Yes.”

3. The mother was taken to paragraph 24 of the family report. She confirmed that as at May 2010 that paragraph was accurate. She confirmed that since that time her view has changed. She was then asked “between May 2010 and now have you been telling the father details of how [the child] spends her day?” Answers “No.”

4. The mother agreed that she gave no notice to the father when she changed the child’s preschool in May 2011. She agreed further that when she registered the child at the preschool she gave no emergency telephone contact for the father but instead provide an emergency contact for a person described as “Aunty.” The mother explained that this was a person she would sometimes go to the park with. In summer sometimes they go three times a week. In winter they go about once a month.

5. The mother agreed that it would be a good idea if the father could look after the child at any time she could not. The mother conceded she had not attended any counselling or parenting courses since the family report was released.

6. The mother was granted leave to reopen her case to explain the circumstances which gave rise to an AVO being taken out against the father in November 2007. Her explanation was as follows “because of the violence on that day my ex-husband tried to strangle my father and my mother was pushed down by him and I was pushed down and I was pregnant. My father was badly injured. The reason I said my husband has done nothing wrong and nothing has happened was because I was expecting a baby.”

7. The mother was taken to paragraph 22 of the family report. She was asked whether that paragraph represented what she had told the family consultant and she replied “yes.”

Oral evidence of interpreter Ms H

1. Ms H was engaged for the purpose of interpreting the evidence of the mother’s father, however, he did not give oral evidence. Nonetheless, she was asked to translate the portions of the documents which had been marked for identification 3 and 4. She confirmed that the portions highlighted in the document in the Telugu language were identical with the purported translation into the English language of that document.

Family Report

1. A family report was prepared on 31 May 2010. The report outlines the time which the father spends with the child. The father, after learning where the mother and the child had moved to in early 2009, began spending half an hour every day with the child, but this arrangement was stopped by the mother after about one month. Subsequently, following Court orders, the father has since spent time with the child on Wednesdays and Saturdays, but with no overnight time.

2. In the report is an overview of the parties’ relationship pre and post separation. The report details the mother’s allegations of physical violence by the father and her allegations of excessive drinking. Post-separation, the parties had engaged in mediation at one point to attempt reconciliation, but that did not eventuate. The mother told the family consultant that she “is clear that she does not want anything to do with him [the father] at all”. The parties’ families have also engaged in litigation in India in relation to the accusation by the mother’s family of Dowry Harassment.

3. The family consultant noted that the parties do not speak to one another. The parties have had a communication book, but the father has complained that the mother does not put in information relevant to the child’s care. The mother stated that “she does not think that she should tell [the father] how she does things, like toilet train [the child], because she feels that if he wants to have more time with [the child] he should know how to do these things already”.

4. In her evaluation, the family consultant stated that the child had been exposed to her parents’ conflict since birth, and that this conflict had impacted on the child’s care as the parents are unable to agree on a range of care issues for the child. The report also noted the loss of face-to-face contact and regular time with attachment figure other than the mother is likely to have promoted some anxiety in the child, which was observed by the family consultant.

5. The family consultant made the following recommendations:

• That the time the child spends with her father be gradually increased to include time overnight;

• That changeover occur at the child’s long day care centre, or at a contact centre; and

• That the parents be ordered to participate in a Parenting Orders Program.

1. In addition to this, the report states that “it may be appropriate for [the child] to remain on the airport watch list”.

Oral Evidence of the Family Consultant

1. The family consultant was asked whether she had raised with the mother why she had not advanced the time that the child spends with the father. This question was directed to the period following the release of the family report which had recommended increasing that time. The family consultant said that she had discussed that with the mother and asked why the time had not increased and was told by the mother that the father had not sought advancement and there was no order for it.

2. There were occasions where arrangements for the time that the child spent with the father were changed by communication between the parties. Each of the parties told the family consultant that the other had accommodated changes sought, although the father said he did not feel the mother had been as flexible as he would have liked.

3. The family consultant was asked about the impact of the lack of increased time the child spent with the father, as had been recommended in her report, given the time that has passed since she made the recommendation. She was asked whether she would recommend that the time the child spends with the father move immediately to overnight time. She said that the child is now older and further developed than when she saw her for the purposes of preparing the family report. She has been able to maintain her relationship with her father. However, she doubted whether she would be able to develop that relationship further given the limited time that the child has had with her father.

4. The oral evidence of the family consultant was that the child should move to commence spending overnight time with her father immediately.

5. The family consultant was asked whether she formed the view that the mother was seeking to restrict the time the child spends with the father. She said the mother took the view that if she provided information to the father about the way in which she cared for the child it made it easier for him. The family consultant understood that the communication book the parties had created did provide details in relation to the child’s health and other important matters. Both parties reported to the family consultant that they were content with communication by SMS. However, the father complained that he did not receive important information about the child’s health issues.

6. The family consultant said that the child cannot start school until the 2013 school year. She recommended that a regime of overnight time over a series of days should be in place and participated in by the child prior to the commencement of her schooling in 2013.

7. Under cross-examination from the mother’s counsel the family consultant confirmed that the mother had raised allegations of family violence during the preparation of the report. She confirmed that the mother said that she was fearful of the father. She agreed the mother had told her that her fear was that angry outbursts could occur in the presence of the child if she was with her father.

8. It was suggested to the family consultant that if the child spent long periods of time in the care of her father it could provoke anxiety in the mother. The family consultant agreed that was the case.

9. The family consultant said that when she prepared her report there were no documents from the Department of Community Services provided to the Court under subpoena. The family consultant agreed that the increase in the time the child spends with her father must be gradual. The family consultant was aware that in the mother’s Minute of Order before the Court the graduation of the increase in time for the child to spend with her father was much slower than that sought by the father.

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975 (“the Act”).  In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA).  In determining what is in the child's best interests, I must consider certain matters under section 60CC.  Those matters are the "primary considerations" and the "additional considerations" set out in that section.

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that:

   …  When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Subsection (4) provides as follows:

   …  The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Determination of The Issues

Has the father been violent to the mother? (Section 60CC(i))

1. As set out earlier in these reasons the mother has made allegations that the father was violent to her. The father denies that violence with the exception that he admits he pushed the mother on some occasions.

2. The mother’s allegations include the following:

• The father pulled her by the hair;

• The father punched her with his fist;

• The father slapped her with his hand;

• The father kicked her with his foot;

• The father head butted her; and

• The father pushed her.

1. The more serious of the assaults which the mother alleges took place occurred during the marriage, at a time when the parties had been on a shopping expedition to Bunnings, a hardware store with multiple outlets in the Sydney metropolitan area. This occurred a couple of months after the mother first came to Australia. The mother alleged the father was very angry with her about something which had occurred between them on that shopping trip. He accused her of crying in public and “making him look bad” in public.

2. When they arrived home she said he “manhandled her”. He pulled her from outside the unit into the unit. When inside the residence she said he attacked her pushing, hitting, punching, kicking and “putting her down” in the bedroom. She escaped to the bathroom and locked herself in. He banged on the door. She eventually opened the door. He came in and pushed her more. He said to her “oh you think you are very beautiful that is why you have so much attitude” and “because you are earning you think you have so much attitude”. He then became remorseful and apologised to the mother for his actions. The father told her the assault had happened because “she did not listen to him.”

3. The mother’s evidence is that over the period of 18 months from August 2006 when she arrived in Australia until separation in November 2008 the father was physically violent to her on about nine occasions. On one occasion the mother said the father had perforated her ear drum with a slap to the ear. On that occasion the mother said the father drove her to hospital for medical attention. On another occasion she said he head butted her causing injury to her nose.

4. On a couple of occasions during her pregnancy the mother said the father pushed or shoved her and she started to have bleeding. She attended at hospital. When she was pregnant the mother conceded she would push the father away and say to him she was pregnant. The mother said during the pregnancy the father slapped, kicked and pushed her.

5. Tendered in evidence were hospital records. These records have the following entries which confirm or detract from the mother’s evidence in relation to violence.

6. Exhibit M7 is a copy of the mother’s medical record at M Hospital. Of importance is the notes taken by the social worker at M Hospital during the mother’s admission to hospital following the incident of 12 November 2007. According to the notes, “the patient [was] referred [to the social worker] because of circumstances of admission”, those circumstances being “[Ms Gavde] this evening was caught in between her husband abusing her parents”. In the social worker’s notes of an interview at 11.15 on 13 November 2007, the social worker notes that the father was not present for the early part of the interview. There is a description of the mother’s short period of residence in the country and her lack of support network close by. The notes go on to state that the mother “disclosed previous incidents of physical assault by husband”. There seems to be more detailed information, but the page cuts off at that point and there appears to be a gap in the notes. Further notes of (presumably) the same interview state that the mother:

   Feels husband is remorseful and feeling ashamed of his behaviour. Is now backtracking on history of domestic violence and states now says isolated incident. Attempted to discuss cycle of domestic violence but [the mother] dismissive of this. Says she and parents want her to be reunited with husband.

7. The records also note in discharge records of 5 November 2007 that there had been a domestic violence incident, and on her admission on 13 November 2011 it is noted that “The husband has a DV Hx”, DV presumably being shorthand for “domestic violence” and Hx used throughout the records as shorthand for “history”.

8. Another piece of evidence in relation to domestic violence is found in exhibit F13, which is a translation of a complaint purportedly made by the mother on 10 December 2009, as part of her parents’ dowry harassment matter. The following claims are made in that document:

   In 2008 November my husband manhandled me and threatened me that he will kill me and asked me to leave his home and forcibly made my daughter and me to leave his home.

   On 01-12-2009 at morning 9.00A.M he came and threatened to kill me if I go to India along with our daughter. I am having a threat to my life.

9. The original document was written in Telugu. The mother gave oral evidence that she could not read or write in this language, but could speak it. The father raised the question of whether the mother understood what was alleged in the document, and submitted that the mother was influenced by her father into signing the document.

10. Having heard and read all the evidence in relation to the allegations made by the mother that the father was violent to her during the cohabitation I conclude on balance that her version is correct. I find that the father was violent to the mother as she has alleged. In reaching this conclusion I have relied upon the manner in which each of the parties gave their evidence on this issue. I have also had regard to the documents exhibited in the proceeding as identified earlier in these reasons. The mother gave her evidence orally in relation to the alleged violence. That gave me an added advantage in observing her as she gave this evidence for the first time. If she did anything, in relation to the evidence of violence, she had a tendency to downplay it rather than to exaggerate.

Was the father violent to the mother’s father in about October 2008?

1. Tendered in evidence were documents relating to the occurrences between the parties on 12 November 2007. The father was charged with assault and an AVO issued against him in relation to that incident.

2. Exhibit M3 contains a police report which details the main allegation of domestic violence, and the only incident on record. The event took place in the parties’ home on 12 November 2007.

   victim 1 [Ms Gavde] has told the accused to be careful of the watch which was sitting on top of the ironing board. The accused has become upset by this remark and thrown the cord of the iron at victim 1. Victim 2, [Mr Gavde], the father of Victim 1, has walked over to the accused and confronted him. Both the victim and the accused have commenced to wrestle inside the premises. As a result victim 2 has received two lacerations on his throat. Victim 3 [Mrs Gavde], the mother of victim 1, has attempted to stop the wrestle. As a result she was pushed to the ground by the accused and sustained an injury to her left leg.

3. Exhibit M2 contains the hospital records relating to the maternal grandmother’s medical treatment immediately following the incident of 12 November 2007. As a result of the incident, an interim AVO was made against the father.

4. After examination of the evidence presented to the Court, I conclude that on balance the father was violent to the mother’s father. The police report of the matter, made at the time of the incident, notes the injuries sustained by the mother’s parents and the cause of those injuries, which I have no cause to doubt.

Has the mother engaged in conduct designed at being able to permanently relocate the child to India?

1. Another issue in this matter is the possibility that the mother, if allowed to take the child out of the country to visit family as she proposes, will not bring the child back to Australia. The father says she will remain in India with her family. The father is equally concerned about the mother taking the child to the United States of America (“USA”) which she is hoping to do this year. He believes the mother can easily arrange to travel from the USA to India and then leave her daughter there.

2. I outlined earlier the mother’s oral evidence in relation to the document written in the Telugu language that was signed by the mother, which she acknowledged she was aware were for the purpose of having police charges laid against the father. She acknowledged that the translation of the document included a request to “take necessary action to get me and my daughter back to India”, but denies that she intended to remain in that country.

3. The father alleges that the mother has indicated that she would prefer to move back to India with the child. He outlined his allegations in paragraph (g) of his Affidavit of 11 April 2011.  This paragraph refers back to a previous affidavit of the father dated 18 September 2009.

4. On consideration of all of the evidence, I conclude there is an unacceptable risk that the mother would not return the child to Australia if she was permitted to remove her for the purpose of a holiday elsewhere in the world.

1. I have an uncomfortable feeling that in this case the mother’s parents have a considerable say in the way she lives her life and that she defers to their opinions and views rather than proceeding with her own.

2. There are significant proceedings in India between the parties’ parents and it is clear there is a high degree of enmity between that parental group. I could not predict with any degree of confidence that the child would be returned to Australia if she were to enter India and come under the control of the mother’s parents.

Is the risk that the mother would not return the child to Australia should she be permitted to remove the child from Australia for the purpose of holidaying in India of such magnitude to warrant the Court refusing to allow such travel?

1. Of concern is that India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. There is also the concern that the mother faces a lack of family support in Australia, given that her family live overseas and the mother has given evidence that there will be limited capacity in the future for them to travel to Australia to visit her.

2. The father outlined concerns in his Affidavit filed 11 April 2011 in relation to the mother travelling overseas. His concerns are reiterations of concerns outlined in an earlier affidavit of September 2009. Those concerns relate to the mother’s lack of family in Australia, the fact that the company the mother works for having an arm in India, and a comment which the father alleges the mother made to the effect of “would you send me and [the child] back to India and whenever you want to see [the child], come to India and visit her”

3. The father’s concerns are said to be based on events referred to earlier and in particular the representations made by the mother in the proceedings in the Indian Court. The father maintains that these concerns are still valid in 2011. Since 2009, however, the mother has had time to settle into life in Australia and has become an Australian citizen. The child has been enrolled in daycare/pre-school programs for 2011.

4. The mother states that her life is here in Australia. The mother has lived in Australia for three years. She is employed full-time, and states that she earns more here than she would in India. Indeed, the mother states that she fears she would be unemployed should she return to the area in India in which her parents reside. She has also now become an Australian citizen, however, she did not give any evidence as to how that affected her Indian citizenship.

5. At the conclusion of the submissions made in this matter the mother offered to place a cash bond of $10,000 as security for her promise to return the child to Australia should she be permitted to take her on a holiday out of Australia.

6. On consideration of all of the evidence, I conclude that the risk of the mother not returning the child to Australia after an overseas holiday is high. It would pose an unacceptable risk to the child being able to have an ongoing relationship with her father. That risk is not lessened sufficiently by the posting of a $10,000 bond as security for the mother’s promise to return her to Australia.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child is developing her relationship with both her parents through  interaction with them. At this time she spends most of her time being cared for by her mother. The family consultant has recommended an increase in the time and frequency she spends with her father.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

2. There is evidence in this case that the father has exhibited domestic violence against the mother. The extent of the exposure the child had to such violence is unknown. Clearly orders need to be made which might best prevent any further domestic violence being perpetrated by the parties upon each other.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The child’s age prevents the Court being able to give any views expressed by the child any meaningful weight.

   (b)the nature of the relationship of the child with:  (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

2. I am satisfied the child has a good and close relationship with her mother. I am satisfied the father’s relationship with the child is a good one, however, it must be acknowledged that given the separation of the parties and the continued role of the mother as primary carer for her, the relationship between the child and her mother is likely to be more secure and more dependant. That appears to be the case based on the evidence of the family consultant.

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

3. I am satisfied the father has demonstrated a willingness to encourage a continuing relationship between the child and the mother since the separation. I am not satisfied the mother has reciprocated that willingness towards the father. There is evidence contained in the family report which must compel the conclusion I have reached. The mother evidenced not wishing to enhance the father’s prospect of building a relationship with the child by not being prepared to assist him with the provision of relevant information about her from time to time.

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

4. The family consultant has recommended a move to overnight time for the child now and that be extended next year. The mother is opposed to the extent of the periods of time recommended by the family consultant and also she opposes the timing of the increases suggested by the family consultant.

5. I accept that the increases in time for the child with her father are reasonable and that she has the capacity to adapt to same and thereby to build her relationship with her father. Whilst I accept the mother does hold the concern she expressed I do not consider the mother could not cope emotionally with the child spending increased time with her father, as suggested by the family consultant.

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

6. There is no real practical difficulty in this case. The parties have some distance between their residences, however, I accept that the father will move closer to the mother’s home when he can find suitable accommodation at a reasonable price.

   (f)the capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

7. Each of the parents has been assessed by the family consultant to have the capacity to care for the child. They are each assessed as being capable of providing or the child’s physical, educational and emotional needs. I agree with such an assessment which would accord with my own conclusion based on that evidence and the balance of the evidence in the case.

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

8. The child is a young female child being raised in Australia by parents who were both born in India and spent their formative years there. There are grandparents on both sides of her family who all live in India. I find it is in her interests to be able to have relationship with those grandparents. I also acknowledge it would be in her interests to be able to travel to India, especially as she grows older and can appreciate the cultural differences between India and Australia. As stated earlier it is not in her overall best interests that she undertake such travel at this time.

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:  (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii) the likely impact any proposed parenting order under this Part will have on that right

9. This consideration does not apply to this case.

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

10. I conclude that largely the parents have demonstrated themselves to be responsible parents here in Australia. There are obvious exceptions to that such as the father exposing to child to his violence to the mother as I have referred to earlier and other exceptions would include the behaviour of the mother in failing to want to assist the father in his care of the child by the provision of relevant information.

    (j)any family violence involving the child or a member of the child’s family

11. I have dealt with this consideration earlier.

    (k)any family violence order that applies to the child or a member of the child’s family, if:  (i) the order is a final order;  or (ii) the making of the order was contested by a person

12. I have dealt with this matter earlier.

    (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

13. It is preferable in this case to make final orders. Nothing compels interim orders this time.

    (m)any other fact or circumstance that the Court thinks is relevant

14. There is no other fact or circumstance which has not been dealt with earlier in these reasons.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence shows that these parties have been unable to communicate on an acceptable level about their child for a lengthy period of time. The mother moved from the family home without telling the father where the child was living and without facilitating time for the child with him for some time. Further, notwithstanding the recommendation of the family consultant the parents have been unable to arrange an extension of the time for the child to spend with the father largely because the mother did not agree with the recommendation. There have been occasions where the father has not been able to spend an allocated time period with the child. The mother has only offered make up time on a few of those occasions.

Balancing of All Considerations Under Section 60CC and the Defined Issues

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.

4. The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

5. In this case each of the parents seeks an order for equal shared parental responsibility. Their communication level is not good or approaching satisfactory to properly manage an order for equal shared parental responsibility. However during the hearing each undertook to reform the level of their communication and each appeared to understand why it was important that they do so. Further, I consider the prospect of further domestic violence is small.

6. It is important in this case, having regard to the welfare of the child that there be no cause to escalate the emotional and cultural based battles between the parents. An order which reposed parental responsibility in one of the parents only is likely to escalate the conflict between them.

7. I propose therefore to make the order as sought by each parent in this regard.

Section 65DAA

SECTION 65DAA(1)-(4)

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.

2. The father seeks such an order after a lengthy introduction period. The mother opposes such an order. The Family Consultant does not recommend equal shared time either immediately or into the foreseeable future.

3. The child is now 4 years of age. She has not yet commenced school. She has not spent extended overnight time with her father since the separation of the parties. In the circumstances I accept that it is not in the best interests of the child to move to an equal shared time as proposed by the father.

4. In my view it would be very much an experiment at the expense of the child to make such an order at this time. At some time in the future it may be an appropriate order however in my view the Court would need to see a satisfactory history of progression of the relationship between the child and her father including her experiencing spending overnight periods with him for two or three days at a time. The Court would also need to be satisfied that the child could tolerate absence from her primary caregiver for extended, periods of time.

SECTION 65DAA(5)

1. In this case the geographical difference between the parties’ residences would not be a great impediment to equal time although once the child commences school it might be.

2. The parties’ ability to communicate at this time would not be compatible with an equal time arrangement.

3. The impact of an equal time arrangement on the child at this time could not properly be assessed and could be very deleterious.

Orders to be made

1. I therefore propose to make the orders in relation to parenting as set forth above.

2. The orders will largely follow the recommendations of the family consultant who in my view carefully considered the parties proposals in this regard and had regard to the history of the child spending time with the father and her present age and stage of development.

3. The family consultant said that the child should commence spending overnight time with her father now. The orders will so provide. She recommended that by the time commences school in the beginning of 2013 she should be spending a series of days in her father’s care on a regular programme.

4. The family consultant was asked about the mother’s position in relation to the child spending time with the father. This was really a question about the possibility of adverse impact upon the mother’s emotional state if the order provided for the child to spend more time with the father than the mother thought was good for the child. The family consultant agreed the mother had told her she was fearful of the father. She agreed that accelerating the increase in time for the child to spend with the father could provoke anxiety in the mother.

5. I propose a progression which I consider accords with the recommendation of the family consultant and which I consider the mother should be able to tolerate.

6. The mother sought an order enabling her to be able to remove the child from Australia. As set out earlier I will not make that order.

7. I will make orders in relation to changeover between the parties of the child’s care. If the parties are able to avoid face to face contact for some time it may be of assistance to each.

8. I propose to make orders for the child to spend special days with each of her parents.

9. There will be an order for telephone time. Clearly the ability of the child to participate actively in this will increase with her age.

Property

Relevant law

General Principles

1. Section 79 of the Act enables the Court to make orders with respect to the property of the parties to the marriage. In considering what order, if any, should be made the Court is required to take into account the matters under s 79(4).

2. It is now well established that the determination of a s 79 application requires a four step process (Ferraro and Ferraro (1993) FLC 92-335; McLay and McLay (1996) FLC 92-667;  Hickey and Hickey (2003) FLC 93-143). The Court must:

   a)Firstly, identify and value the net property, liabilities and financial resources of the parties at the date of the hearing;

   b)Assess the contributions of the parties pursuant to s 79(4);

   c)Consider the relevant s 75(2) factors; and

   d)Lastly, consider whether such an order, in all the circumstances, is just and equitable. The final consideration is a reflection of the requirement under s 79(2).

Assessment of the s 79(4) contributions

1. In considering the alteration of property interests I am required to consider the contributions made by the parties in accordance with the matters outlined under s 79(4). Section 79(4) provides:

   (4)  In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:

   (a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)  the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)  the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)  any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

Section 75(2)

1. In making a decision in relation to property, s 79(4)(e) requires a consideration of relevant s 75(2) matters. I here incorporate the provisions of section 75(2).

1. The first step I must undertake is to identify the property of the parties or either of them available for division between them.

The Balance Sheet

1. As I outlined earlier in this judgment, an extraordinary aspect in this case is that although the parties are seeking property orders, neither party has tendered a balance sheet, Annexure “A” to the mother’s affidavit purports to be a draft balance sheet dated 16 November 2010.

2. Outlined in the draft balance sheet were references to the dowry paid by the mother’s family, as well as property standing for a time in India in the father’s name. In relation to the latter property, I accept the father’s evidence that the property was bought in the father’s name by the father’s father and that at no time did the father receive financial benefit from that transaction. In relation to the former, I can see no evidence that the parties ever received such a sum as was stated in the draft balance sheet. Further, given that there are currently on foot proceedings in India relating to “dowry harassment” it would appear that any financial transactions in relation to the marriage occurred between the parents.

3. The presentation of evidence in relation to the financial position of the parties at the date of hearing is very difficult to ascertain. There are issues between the parties as to what items of household content was removed by the mother at the time she left the parties home at separation. There are issues about the value of the father’s car and what should be included in the balance sheet. There were issues about an alleged loan from the mother to the father within the marriage. There were issues about the father using funds from the parties’ joint account to pay for legal costs associated with assault proceedings and AVO proceedings involving the father and the mother and her parents. In the end all I can do in fairness to the parties is to consider the matters set out in the balance sheet contended by the mother and try and discern what might reasonably be considered as the parties financial circumstances at the date of hearing.

4. I find the assets, superannuation and resources are as follows:

   ASSETS

   ·Household items of the mother  $2,500

   ·Household items of the father  $2,500

   ·Mother’s provident fund  $2,000

   ·Mother’s insurance payout on car  $4,500

   ·Car sold by Father after separation  $7,000

   ·Father’s savings  $   505

   LIABILITIES

   ·Father’s credit cards           $11,624

   ·Father’s loan St George      $18,000

   ·Father’s loan with Citibank           $16,000

   ·Father’s loans from friends to pay legal costs $23,000

   SUPERANNUATION

   ·Father’s super  $35,426

   ·Mother’s super  $15,260

   FINANCIAL RESOURCE

   ·Mother has received loans from her family of    $25,000

5. In relation to the loans from the mother’s family I accept that she will have some obligation to her family in relation to that loan notwithstanding she provided no evidence that she was required to repay the loan at a particular time.

6. Considering the above listed financial position of the parties it can be summarised as follows:

   ·Mother’s property $9,000

   ·Father’s property $10,005

   ·Father’s super $35,426

   ·Mother’s super $15,260

   ·Father’s liabilities $68,624

   ·Mother’s possible liability $25,000

The Evidence

Father’s Affidavit Evidence In Relation To Property Matters

1. At the date of commencement of cohabitation (the date of marriage) the father asserted he had the following assets:

   a)Furniture and household appliances;

   b)Cash at the ANZ bank, $242;

   c)Toyota … 2005 model motor vehicle, $25,000; and

   d)Property in G, India, $9,795 (estimated value at 12 January 2006).

2. At the date of commencement of cohabitation the father asserts that he had the following liabilities:

   a)Toyota finance, $21,074; and

   b)Westpac Visa Card, $12,756.

3. The father asserted that he had net assets of $4,206 at the date of the marriage and that included his estimated value of his furniture and household appliances at $3,000.

4. At that time the father had an annual salary of $49,500 and had $10,964 worth of superannuation. None of the father’s evidence in relation to his assets at the commencement of cohabitation was the subject of challenge by the mother in cross-examination.

5. The father provided evidence of how the property in India was acquired. In August 2005 (a date before the marriage) the father was in India and signed a form and placed his fingerprint on it as requested by his father. His father had told him that he might buy property in the father’s name. In December 2008 his father had asked him to sign a power of attorney in his favour and he signed such a document. In June 2010 he asked his father whether there was any property in his name held in India and he was told there was no such property.

6. In November 2010 the mother’s solicitors brought to his attention documents that evidence ownership of property in India by him. He again contacted his father and his father now informed him that he had in fact purchased property in his name at G in 2005. However, his father sold that property in 2009. The father said he had no knowledge of this property ever being purchased in his name. Information subsequently provided to the father by his father was that in August 2005 a property had been purchased in the father’s name for the equivalent of $9,048 AUD. That property was sold in March 2009 for the equivalent of $17,647 AUD. The father attests to the fact that any monies paid for the purchase of the property were provided entirely by his father. Further any monies received from the sale of the property were received by his father. The father did not contribute to the purchase of the property and received nothing from the sale.

7. The father says that at the time of the marriage the mother was employed by a company in India and she obtained employment with the Australian arm of that company when she came to Australia. Her employment commenced on 9 August 2006. The father is otherwise unaware of her financial circumstances at the date of marriage.

8. During the course of the marriage the parties conducted a joint bank account with the ANZ bank. The father also conducted a personal savings account with that bank. During the course of the marriage the father says the mother opened a personal bank account with the Commonwealth Bank of Australia.

9. During the course of the marriage the father’s salary was paid into his personal savings account. The mother’s salary was paid into the joint account until January 2008. Following that time the mother deposited her salary into her personal account.

10. The father says that during the course of the marriage he paid from his personal bank account or credit card approximately 90% of the living expenses including rent, groceries, telephone, clothing, pharmaceutical, travel, holiday and entertainment expenses. The father agrees that the mother paid childcare costs (three days per week) from April 2008 to November 2008 from her personal account.

11. During the course of the cohabitation the father received $126,895 by way of salary. He received approximately $6,600 in tax refunds.

12. At the date of separation the father had cash savings in the ANZ personal account of $9,196. He had liabilities on the St George Mastercard of $7,693. He therefore had net savings of $1,502. He had a motor vehicle with an estimated value of $3,500.

13. The father claims a contribution as a homemaker and parent. He claims he performed at least 50% of the household tasks including cooking, washing of cooking utensils, household cleaning, laundry and ironing. He claims he performed 75% of the grocery shopping. He took the mother to medical check ups during the time she was pregnant. He attended at the birth of the child and visited the mother in hospital following her birth. The child was not breastfed and the father says he bottle fed the child at least 50% of the time. The father changed nappies, played with the child, dressed her, attended to her during the night and cared for the child on many occasions on a weekend when the mother went out. He took time off work and attended with the child to have medical examinations and/or vaccinations.

14. Between April 2008 and the date of separation, on the days the mother did not work from home, the father and the mother would drive the child to the mother’s work place and both accompany the child to the child care centre.

15. In relation to post separation contributions, between January 2009 and 28 February 2011 the father has paid total child support payments of $13,935. In addition, the father paid relationship counselling fees to Relationships Australia of $500 and has purchased many items for the child’s use whilst in his care. He has also contributed financially to the support of the child whilst she is in his care. Since separation the father has contributed as a parent during the time that he has been permitted to spend time with the child.

16. The father set out a statement of his assets, liabilities and financial resources at the date of swearing his affidavit. He asserted he had the following assets:

    a)Furniture and household appliances, estimated $2,500;

    b)Cash in ANZ personal account, $505; and

    c)Holden … Motor Vehicle $2,000.

17. The father asserted he had the following liabilities:

    a)ANZ Mastercard, $11,623;

    b)Personal loan with Citibank, $14,395; and

    c)Personal loans from three friends, $22,200.

18. The father claimed to have a net liability of $43,264.

19. The father currently has an annual salary of $70,985. He has superannuation worth $35,426.

20. The father says that in November 2007 there was an altercation at the home of the parties between the father and the mother’s father. As a result of that altercation the father left the home and withdrew from the parties’ joint bank account the sum of $1,500 to meet legal fees and $610 to meet rental. He otherwise drew money from the parties’ joint account as set out in his Affidavit sworn 28 February 2011. Following the mother’s parents leaving Australia the parties reconciled and continued to cohabit until the end of 2008.

The Father’s Oral Evidence in Relation to Property

1. The father attested to having purchased a new motor vehicle in 2011. It cost $6,000. He traded the previous vehicle owned by him being a Holden Motor Vehicle for $3,000. That motor vehicle had been purchased post separation. At the time of separation the father had a Honda motor vehicle which he sold in 2009. He received $7,000 for the sale of that vehicle. He purchased the Holden for $3,500.

2. In 2011 when he purchased his current motor vehicle he borrowed $20,000 from St George which he used to pay for the vehicle ($6,000) and pay legal fees. He currently owes about $18,000 to St George Bank. He owes $16,000 to Citibank. He had borrowed funds from friends to pay for legal costs and owes $23,000 for that purpose.

3. The father confirmed that his income was approximately $70,000 per annum.

4. In cross-examination the father was asked about the purchase of a property in India in his name. He confirmed that in 2005 a property had been purchased in his named by his father. The property was sold by his father for $17,000. He confirmed that he had known nothing about the purchase or sale until after it had occurred. He understood he had an obligation to disclose financial matters. He said he did not find out about the acquisition and sale of that property until 2010. In 2005 when he had put his thumb print on a document, he understood it was for the purpose of his father buying property. His father had told him that he might buy property in his name at some time. He confirmed that he had signed a power of attorney in favour of his father at his father’s request. He did not question his father about the power of attorney. He signed the power of attorney in 2008.

5. It was put to the father that he had only inquired about the property in India once the mother’s solicitors had produced documents showing that it had been purchased in the father’s name. He said that he had initially asked is father if there was any property standing in his name in India. That enquiry was made about June or July 2010. He was told by his father that there was no such property. In November 2010 the mother’s solicitors produced the documents, and he again spoke to his father and was told there had been property acquired in the father’s name in India, however, it had been sold in 2009.

6. It was put to the father that when the mother left the home she left all contents. He denied this. He said she removed electronics, a camera, gold jewellery and anything transportable.

7. The father was asked about the parties’ joint account held during the course of the marriage. He confirmed that the mother had paid her income into that joint account. He confirmed that he had withdrawn money from the account until January 2008.

8. The father confirmed that he became aware, by having seen documents produced by the mother, that on or about 8 October 2008 she had withdrawn $9,000 from the account.

Mother’s Affidavit Evidence in Relation to Property Matters

1. On 1 March 2011 the mother swore an affidavit which purported to comply with the orders made by me on 28 June 2010. By that affidavit the mother provided the following evidence.

2. At the date of commencement of the marriage the mother had cash savings of $3,000 and superannuation valued at $1,500. She received a salary of $600 per month.

3. During the course of the cohabitation the mother deposited her income into a joint account of the parties. I note the assertion of the father that in November 2007 or thereabouts the mother opened a personal savings account with the Commonwealth Bank of Australia into which at least part of her income was deposited.

4. During the course of the cohabitation the mother earned a salary of $142,000.

5. The mother claims that during the course of the cohabitation she was primarily responsible for the cooking, cleaning and domestic duties including the preparation of meals for her and father. She claimed that 85% of those chores were attended to by her and the balance by the father. During the time in which she made those contributions she was working full time. The mother did not work between 18 November 2007 and 6 April 2008. The father was working full time. The mother claims 90% of the input to the care of the child as opposed to 10% by the father. The mother denies the father paid for 75% of the household grocery shopping. She claimed this was paid from the joint account.

6. The mother says that since separation she has made the majority of the contributions to the care of the child. Her weekly expenses include:

   a)Rent, $350;

   b)Childcare, $147;

   c)Living expenses and for utilities, $500;

   d)Food and clothing, $250;

   e)Health, $50;

   f)Entertainment, $60; and

   g)Other, $50.

7. The mother’s total weekly expenses are $1,407.

8. The mother says that she celebrated the child’s second and third birthdays and they cost about $5,000. She contributed to the whole of that cost. The mother supported her parents between November 2008 and November 2009 whilst they were in Australia. Her brother visited in September 2010.

9. The mother disputes the child support claimed by the father.

10. The mother says that she withdrew the government baby bonus from the joint account and used that money to obtain a passport for the child, a birth certificate for the child’s Indian Overseas Citizenship, clothes, toys and other entertainment.

11. The mother attached to her affidavit a balance sheet which set out her assets liabilities and financial resources as at 30 November 2011(I anticipate she meant 28 February 2011).

12. The balance sheet is a little difficult to follow, however, to the extent that this document represents an admission against interest the following can be seen:

    a)The mother has:

    i)Kitchen equipment valued at $1,000;

    ii)Interest in a provident fund worth $2,000

    iii)Motor vehicle worth $500,

    iv)Superannuation worth $15,260.

    b)The mother has received loans from her family totalling $25,000;

    c)The mother has an annual income of $54,405; and

    d)The mother receives child support from the father.

Mother’s Oral Evidence in Relation to Property Matters

1. The mother acknowledged that during the course of the cohabitation the father had provided her with details of his ANZ account and how to access it. She denied she had ever accessed the account. The mother acknowledged that she had spent $5,000 on the second birthday party for the child following the separation. She denied she had met the cost of her parents coming to Australia. She has paid between $3,000 and $4,000 for legal costs which came from her savings and money lent to her by her parents. Her parents have lent her between $20,000 and $30,000 since separation. She has asked her parents about their ability to provide security for the child travelling to India.

2. The mother says she now has $1,000 in savings. She owns no property in Australia apart from a motor vehicle. Her current motor vehicle was purchased with the proceeds of an insurance claim on the former vehicle for which she received $4,500.  She borrowed between $1,000 and $2,000 from an aunt in Australia to make up the purchase price of the car.

Conclusion Based on Contribution

1. I assess the contributions of the parties to the acquisition, conservation and improvement of the property (including superannuation) of the parties to the marriage of either of them including such property which is no longer the property of the parties to the marriage or either of them to slightly favour the husband at the date of separation and to be equal to the date of the hearing.

Section 75(2) Considerations

1. Each of the parties I still relatively young and can expect many more years of working life. Both have employment at this time.

2. The parties’ child S is very young. Into the foreseeable future the greater burden of her day to day care will probably fall on the mother. The father will probably be required to pay child support during that period.

3. The father has a higher earning capacity than the wife and that will probably be the case into the foreseeable future.

4. The father has a higher superannuation entitlement which has been considered as part of the assessment of contribution, however, the point is that as his salary is greater than the wife he will accrue future superannuation entitlement at a faster rate than the wife.

5. The parties’ contributions have been assessed as equal.

6. At the end of the cohabitation the mother withdrew $9,000 from her bank accounts. She used the funds for support of herself and the child.

7. During a period of separation and following same in 2007/2008 the father paid his legal fees associated with assault proceedings and ADVO proceedings which arose because of an altercation between the father, the mother’s parents and the mother.

8. Although I have said the mother does have an obligation to her family in relation to the advance to her of about $25,000 it must be acknowledged that she may never be required to repay the sum.

9. As can be seen from the balance sheet both parties have a surplus of liability over asset. The mother has a deficit of $16,000. The father has a deficit of $58,619. If I consider the parties superannuation as an asset for the purpose of this consideration then the father still has a deficit of $23,193. The mother would have a deficit of $740.

Conclusion Re Section 75(2)

1. For all the reasons referred to above and in the circumstances where no evidence was really addressed to this consideration, I conclude that if there is to be an adjustment then it should favour the wife slightly. I would adjust by 15% to the wife.

Overall Division of Assets

1. The above determination will see the mother receive 65% of the parties’ assets and the father receive 35%.

Just and Equitable

1. Given that the parties’ current financial circumstances, what would need to be adjusted is the parties’ respective liabilities. As can be seen the mother is already in a superior position to the husband. An adjustment would see the mother having to contribute to the father’s liabilities if the above division was applied. However, in this case the father seeks that there be no adjustment of property and I consider in the circumstances that is appropriate. The only capacity for the mother to meet any payment to the father would be by instalments of small proportions and such a payment would impose hardship on her.

2. In the circumstances of this case I determine that result to be just and equitable.

Orders to be made in relaion to property

1. I propose there be no order for adjustment of property between the parties. I will make a declaration that they each be declared the owner of superannuation and other assets standing in their sole names and each is to be responsible for repayment of any liability standing in their sole name.

I certify that the preceding two hundred and fifty eight (258) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date: 2 December 2011