KAPOOR & BAKSHI
[2019] FCCA 407
•22 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAPOOR & BAKSHI | [2019] FCCA 407 |
| Catchwords: FAMILY LAW – Property settlement – marital relationship – the husband denying that he owned any property in India – the husband eventually admitting that he owned half of at least one property in India – credibility issues – whether the wife should receive all of the Australian assets. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 62B, 65DAA, 65DA, 72(1), 75(2), 79(2), 79(4), 90XT, 121 Family Law (Superannuation) Regulations 2001, reg.12, 13 and pt.6 |
| Cases cited: Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; [2012] HCA 52 |
| Applicant: | MR KAPOOR |
| Respondent: | MS BAKSHI |
| File Number: | MLC 2398 of 2016 |
| Judgment of: | Judge Riley |
| Hearing dates: | 19, 20, 21 and 22 November 2018 |
| Date of last submission: | 22 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 February 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr Edmonds |
| Solicitors for the applicant: | Lindsay Lawyers |
| Counsel for the respondent: | Mr Stanley |
| Solicitors for the respondent: | Marcou & Associates Pty Ltd |
| Counsel for the independent children’s lawyer: | Ms Jenkinson |
| Solicitors for the independent children’s lawyer: | Bowlen Dunstan and Associates Pty |
ORDERS BY CONSENT
All previous parenting orders be discharged.
The parents have equal shared parental responsibility for [X] born on … 2013 (“[X]”) and [Y] … born on … 2015 (“[Y]”).
[X] and [Y] live with their mother.
ORDERS BY THE COURT
[X] and [Y] spend time with their father, until [Y] commences primary school, as follows:
(a)commencing on the first Saturday following the making of these orders:
(i)each Saturday from 9am to 5pm; and
(ii)each Wednesday from 3pm to 6:30pm;
(b)commencing on the fifth Saturday in the cycle established in order 4(a):
(i)each alternate weekend from 10am on Saturday until 10am on Sunday; and
(ii)in the intervening week from 3pm (or the conclusion of [X]’s school on school days) on Wednesday until 3pm (or the conclusion of [X]’s school on school days) on Thursday;
(c)commencing on the next weekend in the cycle established in order 4(a) after [Y]’s fourth birthday:
(i)each alternate weekend from the conclusion of school (or 3pm if it is a non-school day) on Friday until 6 pm on Sunday; and
(ii)each Wednesday from the conclusion of school (or 3pm if it is a non-school day) until 6:30 pm.
Upon [Y] commencing primary school, [X] and [Y] spend time with their father during school terms as follows:
(a)each alternate weekend from the conclusion of school on Friday until 6pm on Sunday;
(b)in the intervening week, from the conclusion of school on Wednesday until the commencement of school on Thursday; and
(c)such further or other times as are agreed between the parents.
Upon [Y] commencing primary school, the arrangements in order 5 be suspended during school holidays (and recommence after the school holidays in the same cycle as if the time had continued during the school holidays) and [X] and [Y] spend time with their father as follows:
(a)in the March/April school holidays in [Y]’s prep year, for three nights as agreed and, failing agreement, from 10am on the first Thursday of the school holidays until 6pm on the middle Sunday of the school holidays;
(b)in the June/July school holidays in [Y]’s prep year, for five nights as agreed and, failing agreement, from 10am on the first Tuesday of the school holidays until 6pm on the middle Sunday of the school holidays;
(c)in the September/October school holidays in [Y]’s prep year, for six nights as agreed and, failing agreement, from 10am on the first Monday of the school holidays until 6pm on the middle Sunday of the school holidays;
(d)in the long summer holidays after the conclusion of [Y]’s prep year, for one half of the long summer holidays at times to be agreed and, failing agreement, on a week about basis with [X] and [Y] to live with their mother from the conclusion of school on the last day of term until 6pm on the day that is seven nights later, and with the father for the following seven nights, with the cycle to continue for the duration of the long summer vacation;
(e)upon [Y] commencing grade 1, for one half of the school term vacations as agreed and, failing agreement, from the conclusion of school on the last day of term until 6pm on the middle Saturday of the holidays; and
(f)upon [Y] commencing grade 1, for one half of the long summer vacation as agreed and, failing agreement, on a week about basis (as per order (d) above) until the long summer vacation at the conclusion of [Y]’s grade 2 year, and thereafter for one half of the long summer vacation as agreed and, failing agreement, the first half in odd numbered years and the second half in even numbered years.
ORDERS BY CONSENT
On special occasions, the arrangements in orders 3 to 6 be suspended and [X] and [Y] spend time with each of their parents as follows:
(a)on Mother’s Day, with the mother from 6pm on the Saturday prior to Mother’s Day until 6pm on Mother’s Day;
(b)on Father’s Day, with the father from 6pm on the Saturday prior to Father’s Day until 6pm on Father’s Day;
(c)on [X] and [Y]’s birthdays, [X] and [Y] spend time with the parent that they would not otherwise be spending the night with under these orders as agreed and, failing agreement, as follows:
(i)if on a school day, from the conclusion of school until 6pm; and
(ii)if on a non-school day, from 2pm until 6pm;
(d)for the celebration of Diwali as follows:
(i)in 2019 and each alternate year thereafter, with the mother from 9am (or the conclusion of school if it is a school day) on the first day until 9am (or the commencement of school if it is a school day) on the second day, and with the father from 9am (or the commencement of school if it is a school day) on the second day until 9am (or the commencement of school if it is a school day) on the following day; and
(ii)in 2020 and each alternate year thereafter, with the father from 9am (or the conclusion of school if a school day) on the first day until 9am (or the commencement of school if it is a school day) on the second day, and with the mother from 9am (or the commencement of school if it is a school day) on the second day until 9am (or the commencement of school if it is a school day) on the following day;
(e)for the celebration of the birthday of the … as follows:
(i)in 2019 and each alternate year thereafter, with the mother from 9am (or the conclusion of school if it is a school day) on the first day until 9am (or the commencement of school if it is a school day) on the second day, and with the father from 9am (or the commencement of school if it is a school day) on the second day until 9am (or the commencement of school if it is a school day) on the following day; and
(ii)in 2020 and each alternate year thereafter, with the father from 9am (or the conclusion of school if it is a school day) on the first day until 9am (or the commencement of school if it is a school day) on the second day, and with the mother from 9am (or the commencement of school if it is a school day) on the second day until 9am (or the commencement of school if it is a school day) on the following day;
(f)for the celebration of the birthday of the … as follows:
(i)in 2019 and each alternate year thereafter, with the mother from 9am (or the conclusion of school if it is a school day) on the first day until 9am (or the commencement of school if it is a school day) on the second day, and with the father from 9am (or the commencement of school if it is a school day) on the second day until 9am (or the commencement of school if it is a school day) on the following day; and
(ii)in 2020 and each alternate year thereafter, with the father from 9am (or the conclusion of school if it is a school day) on the first day until 9am (or the commencement of school if it is a school day) on the second day, and with the mother from 9am (or the commencement of school if it is a school day) on the second day until 9am (or the commencement of school if it is a school day) on the following day;
(g)on New Year’s Eve as follows:
(i)with the father from 12 noon on 31 December 2019 until 12 noon on 1 January 2020 and each alternate year thereafter, and with the mother from 12 noon on 1 January 2020 until 12 noon on 2 January 2020 and each alternate year thereafter; and
(ii)with the mother from 12 noon on 31 January 2020 until 12 noon on 1 January 2021 and each alternate year thereafter, and with the father from 12 noon on 1 January 2021 until 12 noon on 2 January 2021 and each alternate year thereafter.
Changeover occur as agreed in writing and failing agreement:
(a)at childcare, on days and times when both [X] and [Y] are at childcare;
(b)at [X]’s school, upon [X] commencing primary school, on days and times that coincide with the commencement or conclusion of school, with the parent who has [Y] in their care to bring [Y] to [X]’s school for the purposes of changeover;
(c)at school, upon [Y] commencing primary school, at dates and times that coincide with the commencement or conclusion of school;
(d)at Community+ Contact Centre, on non-school and non-childcare days, at times when Community+ Contact Centre can facilitate changeover; and
(e)at McDonalds Suburb A, on non-school and non-childcare days at times when Community+ Contact Centre cannot facilitate changeover.
The mother, within seven days, do all things necessary to lodge [X] and [Y]’s passports with a registrar of this court, to be released to the travelling parent upon providing written confirmation that they have complied with order 12 herein, and upon providing a copy of the registered mail receipt.
ORDERS BY THE COURT
Until the mother complies with order 9 herein:
(a)the mother and her servants and agents be restrained from removing or attempting to remove [X] and [Y] from the Commonwealth of Australia;
(b)the father and his servants and agents be restrained from removing or attempting to remove [X] and [Y] from the Commonwealth of Australia; and
(c)[X] and [Y] be restrained from leaving the Commonwealth of Australia.
THE COURT REQUESTS THAT:
The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories take all necessary steps to give effect to these orders, including all things necessary to include [X] and [Y]’s names on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain [X] and [Y]’s names on the airport watch list until further order.
ORDERS BY CONSENT
Each parent be permitted to travel with [X] and [Y] outside of the Commonwealth of Australia provided that the travelling parent provides the following to the other parent not less than 60 days prior to the intended travel, via registered mail:
(a)proposed dates of travel including countries to be visited;
(b)details of flights including flight numbers and times;
(c)confirmation of travel insurance purchased on behalf of [X] and [Y]; and
(d)contact telephone numbers for the duration of the proposed travel.
The parents communicate by way of email or SMS message unless they agree otherwise in writing.
Within seven days of the date of these orders, the mother provide to the father, via email, a list of the treating medical and allied health practitioners she believes he needs to speak to in order to gain a thorough understanding of [X]’s special needs.
Within seven days after the provision of the information in order 14, the father make appointments to speak to the medical and allied health practitioners referred to therein, and advise the mother via email after the appointments that they have taken place.
The parents ensure that [X] undergo:
(a)a speech or language assessment;
(b)a cognitive assessment; and
(c)an Autism Spectrum Disorder (“ASD”) assessment,
as and when available through the Royal Children’s Hospital, Melbourne.
The parents do all things necessary to enable [X] to become a participant in the National Disability Insurance Scheme (“NDIS”).
Each parent keep the other parent notified in relation to their respective:
(a)telephone numbers; and
(b)residential addresses,
and notify the other parent in writing (including by SMS message) of any change within 48 hours of the change.
The parents and their servants and agents be restrained from:
(a)denigrating the other parent to or in the presence or hearing of [X] and [Y] or either of them or from allowing any other person to do so; and
(b)from discussing the court proceedings, including any mediation, with [X] and [Y] or either of them, or in their presence or hearing.
Each of the parents:
(a)keep the other informed of any medical practitioners [X] and [Y] are attending;
(b)authorise any school or pre-school centre [X] and [Y] attend to provide both parents with reports and notices concerning [X] and [Y];
(c)be at liberty to attend any school or extracurricular events to which parents are ordinarily invited; and
(d)be at liberty to obtain information from any medical practitioner or allied health practitioner treating [X] and [Y] that is ordinarily provided to parents.
In the event the parents are unable to agree upon appropriate schools for [X] and [Y] they shall attend a private mediation with a view to making a bona fide attempt to resolve the matter.
The appointment of the independent children’s lawyer be discharged.
ORDERS BY THE COURT
100% of the proceeds of sale of the former matrimonial home (being $183,479.93) currently held in trust by the husband’s solicitors be disbursed to the wife within seven days.
The respondent wife retain, to the exclusion of the applicant husband, her superannuation entitlements held with Super Fund 1 (previously known as Super Fund 2).
For the purposes of these orders:
(a)the husband (Mr Kapoor) is the member spouse (member number …);
(b)the wife (Ms Bakshi) is the non-member spouse;
(c)the Superannuation Fund is Super Fund 3; and
(d)the Trustee means the trustee(s), person(s) or corporations(s) responsible from time to time for the management or investment of the Superannuation Fund.
Orders 27 to 31 inclusive of these orders are binding on the Trustee for Super Fund 3 (“the Trustee”) as administrator and Trustee of Super Fund 3 (“the Superannuation Fund”) for member number ….
Pursuant to section 90XT(l)(b) of the Family Law Act 1975 (“the Act”), whenever a splittable payment becomes payable in respect of the husband’s interest in the Superannuation Fund, the trustee pay to the wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using a specified percentage of 100% and there be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
The preceding order has effect from the operative time and the operative time for such order be ten (10) business days after the service of a sealed copy of these orders on the Trustee of the Superannuation Fund.
The Trustee of the Superannuation Fund, in accordance with the obligations set out under the Act and the Regulations, do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of the wife and make payment to the wife in accordance with these orders and to give effect to these orders.
There be liberty to apply, to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.
Until the happening of any order in relation to the superannuation of the husband, he and his servants and/or agents be restrained from executing a death benefit nomination in favour of any person or doing any other acts or things which would reduce his superannuation entitlement, including but not limited to rendering any parts of his interests in his Superannuation “non-splittable” within the meaning of reg.12 or reg.13 of the Family Law (Superannuation) Regulations 2001.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these, or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these orders;
(b)money standing to the credit of either party in any bank account remain the property of the account holder;
(c)each party forego any claim they may have to any superannuation benefits belonging to, or earned by, the other save for the superannuation splitting order herein;
(d)all insurance policies become the sole property of the owner named thereon;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)any joint tenancy of the parties in any real or personal estate be expressly severed.
The matter be listed for directions on 8 March 2019 at 10am regarding the discharge of the airport watch list orders.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATIONS
(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Kapoor & Bakshi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2398 of 2016
| MR KAPOOR |
Applicant
And
| MS BAKSHI |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X], born on … 2013 (“[X]”) and [Y], born on … 2015 (“[Y]”) and an application for property adjustment under s.79 of the Family Law Act 1975 (“the Act”).
Chronology
The parties did not dispute that the chronology of relevant events included the following matters:
…1981 The husband was born in India
…1982 The wife was born in India
1994 The husband’s father passed away and left part of his estate to the husband. The husband’s mother and brother managed the property on the husband’s behalf.
2003The husband moved to Australia to continue studies at university. The husband’s brother gave him a loan to finance his study.
2004The husband’s mother passed away. The husband’s brother continued to manage the father’s parents’ estate.
22 July 2008 A family agreement was signed in India after the husband was unable to repay the loan from his brother.
2009The marriage between the husband and the wife was arranged by the husband’s brother.
2009The arranged marriage occurred in India.
2010The wife arrived in Australia and found employment at Employer.
2010The husband punched a hole in the bathroom door.
2012The family relocated to India by mutual agreement and stayed with husband’s brother and his family. The husband worked in his business.
2013[X] was born in India. She is now five years old.
2013The husband returned to Australia to seek work. The wife and [X] remained in India.
2014The wife and [X] returned to Australia, when [X] was nine months old. The parties decided to buy a house in Suburb B. The wife continued to care for [X] and attended to home duties, while the husband continued to work.
2014The parties purchased Property B, the former matrimonial home. The husband paid the deposit.
2015The wife returned to India for the birth of the parties’ second child. The wife again lived with the husband’s brother and family in their home, where there was a maid to undertake household chores.
2015[Y] was born in India. He is now three years old. The wife, [X] and [Y] remained with the husband’s brother and family in India while the husband tried to establish a business in Australia.
2016The wife, [X] and [Y] returned to Australia. [X] was two and a half years old and [Y] was eight months old. The husband had not met [Y] until then. The husband and wife began to live separately under the one roof.
21 March 2016 The husband applied for a divorce.
5 May 2016The husband told the wife to make her own arrangements for accommodation. The wife took [X] and [Y] to live with her brother. The husband remained in the former matrimonial home and continued to work as a tradesman. The husband continued to meet mortgage repayments and all rates, levies and utilities on the former matrimonial home. [X] and [Y] spent almost no time with their father from 5 May 2016 until 30 August 2017.
30 May 2016 The wife filed a response and an affidavit contesting the divorce.
4 June 2016The wife was diagnosed with depression and anxiety.
1 July 2016The wife was granted an interim family violence order on her own application, protecting herself, [X] and [Y].
24 August 2016 The parties attended mediation with Relationships Australia and entered into a parenting agreement. The parties agreed to attend the Family Reunification Program at CatholicCare.
10 February 2017 The husband consented without admissions to a final intervention order for 12 months.
15 February 2017 The husband filed an initiating application for parenting orders only. He sought an urgent airport watch list order. The matter was made returnable the same day and proceeded ex parte. A watch list order was made.
23 February 2017 The wife filed a response and affidavit in the parenting matter.
1 March 2017 The wife cancelled the appointment at CatholicCare and did not make a further appointment.
1 March 2017 On the second return, orders were made for the appointment of an independent children’s lawyer (“ICL”) and consent orders were made for:
a. [X] and [Y] to live with their mother and spend supervised time with their father;
b. a family report to be prepared;
c. another family dispute resolution service (“FDRS”) mediation;
d. the parties and [X] and [Y] to continue to participate in the reunification program at CatholicCare;
e. enrolment at the CommUnity+ Children’s Contact Centre in Suburb C;
f. the husband to complete a men’s behavioural change program;
g. the husband to undergo forensic psychological assessment;
h. the wife to provide a report from her treating psychologist;
i. the wife’s costs to be reserved.
27 March 2017 The husband discontinued his first application for divorce and filed a fresh application using the wife’s date of separation.
5 June 2017The family report was released.
13 June 2017 At the third return, consent orders were made for the father to complete a practical parenting skills program.
18 August 2017 The forensic psychological assessment of father by Dr D was filed. Dr D did not recommend that the father undertake an anger management course. Suburb C accepted that factual disputes were for the court to determine. However, Dr D considered that the husband plausibly explained the wife’s allegations of violence, and said that they were not supported by evidence. Dr D considered that the husband did not have any major mental illness and presented as reasonable and engaging. The husband did not undertake a men’s behaviour change program.
30 August 2017 [X] and [Y] commenced spending supervised time with their father at the CommUnity+ Children’s Contact Service, Suburb C, for two hours fortnightly. Until this date, [X] and [Y] had had almost no time with their father since 5 May 2016.
2 September 2017 The divorce became final.
23 October 2017 Orders were made by consent in chambers for FDRS to occur and the matter to be adjourned to 1 February 2018.
7 November 2017 The husband sold his truck for $18,500 including GST of $1,681.82 (nett $16,818.18). The husband ceased operating a business in Australia.
25 January 2018 [X] was diagnosed with a possible adjustment disorder.
January 2018 The husband arranged to commence having unsupervised time with [X] and [Y], with handovers to continue at CommUnity+ Contact Centre at Suburb C.
9 January 2018 The wife filed an application for an extension of the intervention order. The husband contested the application.
31 January 2018 The parties attend an FDRS conference at Victoria Legal Aid. The wife maintained her position with respect to the husband owning property in India and no agreement was reached.
1 February 2018 At the fourth return, orders were made, inter alia, for:
a. the parties to follow all recommendations of [X]’s treating medical practitioner;
b. the husband to be permitted to make enquires of [X] and [Y]’s childcare centre and medical practitioners at his own expense to obtain updates as to their progress; and
c. the ICL to provide the husband with the contact details for [X] and [Y]’s treating professionals.
9 February 2018 An interim intervention order was made against the husband.
1 March 2018 The wife filed an application in a case seeking property and spousal maintenance orders. She was not represented at that time. She said in her affidavit in support that the husband owned a 50% share in five properties in India.
13 March 2018 Another interim intervention order was made against the father, which remained current as at the dates of the trial.
28 May 2018 The husband filed an affidavit on the day of the fifth return, in which he said he had no property in India. Orders were made for:
a. the valuation of the husband’s alleged overseas properties;
b. each party to provide to the other full financial disclosure;
c. the former matrimonial home to be sold at the best price obtainable and the proceeds of the sale to be applied:
i. to discharge the mortgage;
ii.to pay the costs of the sale;
iii. to pay the conveyancing costs to a maximum of $500 plus disbursements;
iv. to pay $10,000 to each party with such payments to be characterised at trial; and
v. the balance to be held in trust by the father’s solicitor for both parties; and
d. the parties to attend a conciliation conference on 2 August 2018 at 9.15am.
18 June 2018 The wife provided the husband with financial disclosure. The husband did not provide the wife with financial disclosure. The wife nominated valuers for the overseas properties, but the husband did not allow the valuations to proceed, saying that he owned no property in India.
10 July 2018 On the sixth return, orders were made for a real estate agent to conduct the sale of the former matrimonial home with a reserve price of $525,000.
2 August 2018 The parties were scheduled to attend a conciliation conference, but, as the husband had not complied with the orders for full and frank financial disclosure and for the filing of the sworn valuations of the overseas properties, the conciliation conference did not proceed and the registrar made an order for the wife’s costs to be reserved to the final hearing.
20 August 2018 The former matrimonial home was sold for $515,000.
9 October 2018 [X] was diagnosed with social communication disorder. Her treating paediatrician further recommended she attend the Royal Children’s Hospital for:
a. a speech / language assessment;
b. a cognitive assessment; and
c. an autism spectrum disorder (“ASD”) assessment.
19 October 2018 The sale of former matrimonial home settled.
22 October 2018 The husband was required to file trial material but did not do so.
2 November 2018 The husband’s brother completed an affidavit in India.
5 November 2018 The husband received his certificate of completion of a PPP Parenting Program and a letter from CatholicCare regarding his attendance at non-reportable therapeutic counselling.
9 November 2018 The wife’s trial material was filed late as she was waiting to receive the husband’s material.
14 November 2018 The husband filed late an updated financial statement and affidavits from himself and his brother, Mr E.
29 January 2019 [X] was to commence primary school.
In addition, the husband claimed that, on 22 July 2008, he relinquished all interest in and claims on any property in India in favour of his brother. The wife disputed that.
The husband also claimed that, in 2009, a dowry of $48,000 was mainly spent on two wedding receptions and on buying traditional gold and jewellery to give to the wife. He said the wife retained the gold and jewellery post separation. The wife disputed that she retained any jewellery, and said it was in the husband’s brother’s safe in India.
Credibility issues
The wife said from the commencement of the property aspect of the proceeding that the husband had five properties in India, which she identified. In his affidavits filed prior to the hearing, and in submissions to the court, the husband denied repeatedly and vehemently that he owned any property in India.
All of the properties, on the wife’s case, were owned in half shares by the husband and his brother. She said at the time that she filed her property application she did not know the values of the first, second and fourth of the properties. None of the properties in India were ever valued, contrary to court orders, because the husband said his brother did not allow the valuations to take place. By the time of the trial, the wife had nominated the values of the husband’s half shares in the five properties as follows:
a)the Indian farm: $450,000;
b)agricultural land in India: $50,000;
c)a showroom in India: $600,000+;
d)shops in India: $150,000; and
e)a house in India: $250,000.
At the commencement of the trial, the husband maintained his denial that he owned any property in India. However, during and following cross-examination, the husband conceded that he owned:
a)a half share in agricultural land in India property, his share of which was worth $50,000; and
b)a half share in a house at India property (which was a sixth property), his share of which was worth $10,000.
The wife maintained that the husband’s half share of the house at India property was worth $25,000.
As previously mentioned, the husband’s properties in India were not valued by an appropriately qualified expert, notwithstanding orders that they be valued. The husband’s explanation for the properties not being valued was that his brother did not allow it. The husband’s brother also gave evidence in the proceeding, and also denied that the husband owned any property in India.
In view of the husband’s concessions during the trial that he did own at least two properties in India, his previous categorical claims, on affirmation, that he owned no property in India, are breathtaking.
The husband conceded in paragraph 46 of his affidavit affirmed on 13 November 2018 that he had punched a wall once in frustration but said that the wife was not in the room at the time. Otherwise, in his affidavit evidence, the husband maintained that he was not violent and the wife’s claims in that regard were fabricated. However, in oral evidence, he conceded that he had punched a hole in a door: Tr. p.83, l.35. To use sufficient force to actually punch a hole in a door is substantially more violent than merely punching a wall. Punching a hole in a door is a potentially terrifying act. The husband’s concession that he had punched a hole in a door contradicted the husband’s affirmed evidence that he was not violent and that the wife had fabricated her claims in that regard.
There was a major dispute between the parties about whether a dowry had been paid to the husband by the wife’s family. Overall, the husband maintained that no dowry had been paid. However, at paragraph 6(g) of his affidavit affirmed on 28 May 2018, the husband said that:
a)the dowry was paid in accordance with custom;
b)it is natural that the wife’s family should pay it; and
c)the $50,000 that the wife said was paid as a dowry was spent on the wedding ceremony and on $13,000 worth of gold and jewellery that the wife still had.
However, in his oral evidence, the husband said that he had asked his solicitor to remove paragraph 6(g) from his affidavit but did not check that she had done so before he signed it. I find this highly implausible.
In view of these significant changes in the husband’s own evidence, I consider that the husband was an entirely unreliable witness, who would say to the court whatever he felt best suited his financial and other interests. I consider that the husband’s brother, who also wrongly denied that the husband owned any property in India, was also an entirely unreliable witness.
There was no comparable issue with the wife’s credibility. Consequently, where there is a difference in the husband’s and the wife’s evidence, I generally prefer the wife’s.
PARENTING
Proposed parenting orders
The parents and the independent children’s lawyer consented to orders as follows:
1. That all previous parenting orders be discharged.
2. That the parents have equal shared parental responsibility for the children [X] born … 2013 and [Y] born … 2015 (“the children”).
3. That the children live with their mother.
4. That the children spend time with their father until [Y] commences primary school as follows:
a. Commencing on the first Saturday following the making of these orders:
i. Each Saturday from 9am to 5pm; and
ii. Each Wednesday from 3pm to 6:30pm.
…
7. That on special occasions the arrangements in orders 3 to 6 herein be suspended and the children spend time with each of their parents as follows:
a. On Mother’s Day with the mother from 6pm on the Saturday prior to mother’s day until 6pm on mother’s day;
b. On Father’s Day with the father from 6pm on the Saturday prior to father’s day;
c. On the children’s birthdays, the children spend time with the parent that they would not otherwise be spending the night with under these orders as agreed and failing agreement as follows:
i. If a school day from the conclusion of school until 6pm;
ii. If a non school day from 2pm to 6pm[;]
d. For the celebration of Diwali as follows:
i. In 2020 and each alternate year thereafter years with the father from 9am (or the conclusion of school if a school day) on the first day until 9am (or the commencement of school if a school day) on the second day, and with the mother from 9am (or the commencement of school if a school day) on the second day until 9am (or the commencement of school if a school day) on the following day[;]
ii. In 2019 and each alternate year thereafter with the mother from 9am (or the conclusion of school if a school day) on the first day until 9am (or the commencement of school if a school day) on the second day, and with the father from 9am (or the commencement of school if a school day) on the second day until 9am (or the commencement of school if a school day) on the following day,
e. For the celebration of the birthday of the … as follows:
i. In 2020 and each alternate year thereafter years with the father from 9am (or the conclusion of school if a school day) on the first day until 9am (or the commencement of school if a school day) on the second day, and with the mother from 9am (or the commencement of school if a school day) on the second day until 9am (or the commencement of school if a school day) on the following day[;]
ii. In 2019 and each alternate year thereafter with the mother from 9am (or the conclusion of school if a school day) on the first day until 9am (or the commencement of school if a school day) on the second day, and with the father from 9am (or the commencement of school if a school day) on the second day until 9am (or the commencement of school if a school day) on the following day,
f. For the celebration of the birthday of the … as follows:
i. In 2020 and each alternate year thereafter years with the father from 9am (or the conclusion of school if a school day) on the first day until 9am (or the commencement of school if a school day) on the second day, and with the mother from 9am (or the commencement of school if a school day) on the second day until 9am (or the commencement of school if a school day) on the following day[;]
ii. In 2019 and each alternate year thereafter with the mother from 9am (or the conclusion of school if a school day) on the first day until 9am (or the commencement of school if a school day) on the second day, and with the father from 9am (or the commencement of school if a school day) on the second day until 9am (or the commencement of school if a school day) on the following day,
g. On New Year’s Eve as follows:
i. In 2019 and each alternate year thereafter years with the father from 12 noon on 31 January until 12 noon on 1 January the following year, and with the mother from 12 noon on 1 [January] until 12 noon on 2 January;
ii. In 2020 and each alternate year thereafter with the from 12 noon on 31 January until 12 noon on 1 January the following year, and with the father from 12 noon on 1 [January] until 12 noon on 2 January.
8. That for the purposes of changeover it occur as agreed in writing and failing agreement as follows:
a. On days and times when both children are at childcare, at childcare.
b. Upon [X] commencing primary school on days and times that coincide with the commencement or conclusion of school it occur at [X]’s school, with the parent who has [Y] in their care to bring [Y] to [X]’s school for the purposes of changeover;
c. Upon [Y] commencing primary school at dates and times that coincide with the commencement or conclusion of school at school;
d. On non school or childcare days and times when Community + Contact Centre can facilitate, at Community + Contact Centre (unless the parties agree otherwise in writing)[;]
e. On non school or childcare days and times and where Community + Contact Centre cannot facilitate, at McDonalds Suburb A.
9. That the mother, within 7 days, do all things necessary to lodge the children’s passports with the Registrar of this Honourable Court, to be released to the travelling parent upon providing written confirmation that they have complied with order 11 herein, with a copy of the registered mail receipt.
10. That upon the mother complying with order 9 herein the airport watchlist order be discharged.
11. That the parents be permitted to travel with the children outside of the Commonwealth of Australia provided they provide the following to the other not less than 60 days prior to the intended travel, via registered mail;
a. Proposed dates of travel including countries to be visited;
b. Details of flights including flight numbers and times;
c. Confirmation of travel insurance purchased on behalf of the children;
d. Contact telephone numbers for the duration of the proposed travel.
…
13. That the parents communicate by way of email or SMS message unless they agree otherwise in writing.
14. That within 7 days of the date of these orders the mother provide to the father, via email, a list of the treating medical and allied health practitioners she believes he needs to speak to in order to gain a fulsome understanding of [X]’s special needs.
15. That within a further 7 days of provision of the information in order 14 herein, the father make appointments to speak to the medical and allied health practitioners referred to therein, and advise the mother via email after the appointment that it has taken place.
16. The parents ensure that [X] undergo:
a. a speech / language assessment;
b. a cognitive assessment; and
c. Autism Spectrum Disorder (“ASD”) assessment[,]
as and when available through the Royal Children’s Hospital, Melbourne.
17. The parents do all things necessary to enable [X] to become a participant in the National Disability Insurance Scheme (“NDIS”).
18. Each of the mother and the father keep the other notified in relation to their respective[:]
a. telephone numbers; and
b. residential addresses[,]
and notify one another in writing (including SMS text message) of any change within 48 hours of any change thereto.
19. The parents, their servants and/or agents be and are hereby restrained from:
a. denigrating the other parent to or in the presence or hearing of the children of any of them or from allowing any other person to do so; and
b. from discussing the Court proceedings, including any mediation, with the children or any of them, or in their presence or hearing.
20. Each of the Husband and Wife:
a. Keep informed the other of any medical practitioners the children are attending;
b. Authorise any school or pre-school centre the children attend to provide both parents with reports and notices concerning the children;
c. Be at liberty to attend any school or extracurricular events to which parents are ordinarily invited;
d. Be at liberty to obtain information from any medical practitioner or allied health practitioner treating the children that is ordinarily provided to parents.
21. In the event the parties are unable to agree upon appropriate schools for the children they shall attend a private mediation with a view to making a bona fide attempt to resolve this matter.
22. That the appointment of the Independent Children’s Lawyer be discharged.
In addition, the independent children’s lawyer proposed orders as follows:
4. That the children spend time with their father until [Y] commences primary school as follows:
b. Commencing on the fifth Saturday in the cycle established in order 4(a) above:
i. Each alternate weekend from 10am on Saturday until 10am on Sunday; and
ii. In the intervening week from 3pm (or the conclusion of [X]’s school on school days) on Wednesday until 3pm (or the conclusion of [X]’s school on school days) on Thursday;
c. Commencing on the next weekend in the cycle established in order 4(a) above after [Y]’s fourth birthday and each alternate weekend thereafter:
i. Each alternate weekend from the conclusion of school (or 3pm if a non school day) on Friday until 6 pm Sunday; and
ii. Each Wednesday from the conclusion of school (or 3pm if a non school day) pm until 6:30 pm.
5. That upon [Y] commencing primary school and thereafter the children spend time with their father during school terms as follows:
a. Each alternate weekend from the conclusion of school Friday until 6pm Sunday; and
b. In the intervening week from the conclusion of school Wednesday until the commencement of school Thursday; and
c. Such further or other times as agreed.
6. That upon [Y] commencing primary school the arrangements in order 5 herein be suspended during school holidays (and recommence after the school holidays in the same cycle as if the time had continued during the school holidays) and the children spend time with their father as follows:
a. In the March/April school holidays in [Y]’s prep year for three nights as agreed and failing agreement from 10am on the first Thursday of the school holidays until 6pm on the middle Sunday of the school holidays;
b. In the June/July school holidays in [Y]’s prep year for five nights as agreed and failing agreement from 10am on the first Tuesday of the school holidays until 6pm on the middle Sunday of the school holidays;
c. In the September/October school holidays in [Y]’s prep year for six nights as agreed and failing agreement from 10am on the first Monday of the school holidays until 6pm on the middle Sunday of the school holidays;
d. In the long summer holidays after the conclusion of [Y]’s prep year for one half as agreed and failing agreement on a week about basis with the children to live with their mother from the conclusion of school on the last day of term until 6pm on the day that is seven nights later, and with the father for the following seven nights, with the cycle to continue for the duration of the long summer vacation;
e. Upon [Y] commencing grade 1, for one half of the school term vacations as agreed and failing agreement with the father from the conclusion of school on the last day of term until 6pm on the middle Saturday of the holidays;
f. Upon [Y] commencing grade 1 for one half of the long summer vacation as agreed and failing agreement on a week about basis (as per order (d) above) until the long summer vacation at the conclusion of [Y]’s grade 2 year, and thereafter for one half of the long summer vacation as agreed and failing agreement the first half in odd numbered years and the second half in even numbered years.
The independent children’s lawyer’s proposed order 12 (regarding which parent should retain [X] and [Y]’s passports) was deleted with everyone’s agreement.
The father agreed with the independent children’s lawyer’s proposals as set out above.
The mother agreed with the independent children’s lawyer’s proposal in paragraph 4(b) except that she submitted that it should not start until [Y] commenced primary school. Moreover, the mother submitted that the times in the independent children’s lawyer’s proposed paragraph 4(b)(i) should be 12md to 12md rather than 10am to 10am.
The mother agreed with the independent children’s lawyer’s proposal in paragraph 4(c), except that she said it should start after [Y]’s sixth birthday.
The mother agreed with the independent children’s lawyer’s proposal in paragraph 5, except that she said it should start upon [Y] commencing grade 1.
The mother agreed with the independent children’s lawyer’s proposal in paragraph 6, except that she said it should start upon [Y] commencing grade 1, and the references in paragraphs 6(e) and 6(f) to grade 1 should be references to grade 2.
In addition, the father proposed that:
The travelling parent lodge a security of $20,000 with the solicitor for the non-travelling parent 60 days prior to the proposed travel, such security to be released:
a. to the travelling parent, upon the return to Australia of the travelling parent and [X] and [Y]; or
b. to the non-travelling parent if the travelling parent and [X] and [Y] have not returned to Australia by the proposed date of return.
The family report
A family report released on 5 June 2017 was prepared by Ms F. Ms F said that:
46. Mr Kapoor spoke thoughtfully about the children and indicated appreciation of their needs, particularly in relation to building a secure attachment relationship with him. In the observation with the children, Mr Kapoor was warm, caring and appropriate. [X] and [Y] indicated that Mr Kapoor was a familiar emotional figure. They separated easily from Ms Bakshi to be with Mr Kapoor.
47. Ms Bakshi also presented as calm, rational and coherent. She demonstrated considerable psychological resilience and inter alia said that she ‘plans to make things work out for me and the children’. Ms Bakshi spoke thoughtfully about the children’s needs and demonstrated competent caregiving of [X] and [Y]. [X] and [Y] demonstrate secure attachments to her. The maternal grandparents and maternal uncle present as supportive of Ms Bakshi’s caregiving.
…
THE CHILDREN AND THEIR RELATIONSHIPS
[X] DOB … 2013, 3.8 years
76. [X] presents as a healthy and well cared for girl. She related confidently with Ms Bakshi, the maternal grandparents and maternal uncle. [X] also interacted confidently with Mr Kapoor and played well with her brother [Y].
77. [X] presented with strong language skills, speaking in English and Punjabi. She demonstrated sound physical agility.
78. Ms Bakshi reports that [X]’s development has progressed, particularly with her attendance at childcare. Her speech and social delays have also progressed. She continues to be monitored by her paediatrician.
[Y] DOB … 2015, 22 months
79. [Y] presents as a healthy and well cared for toddler. He too related confidently with Ms Bakshi, the maternal grandparents and maternal uncle. [Y] was in his maternal uncle’s arms while they waited. [Y] also interacted confidently with Mr Kapoor and played well with his sister. He was also involved in age-appropriate solitary play.
80. [Y] babbled with and parroted both Mr Kapoor and Ms Bakshi during their observation. He presents with sound physical ability.
81. Ms Bakshi reports that [Y] is developing well, although still with some anxiety at separation from her.
Observations
Ms Bakshiand the children
82. Ms Bakshi was warm and attuned to the children’s age appropriate needs. She engaged the children in exploring the toy box and dollhouse demonstrating delight and interest as they engaged her.
83. As [X] explored the dollhouse, [Y] moved around the room, exploring cars and other toy boxes. Ms Bakshi watched with smiling interest, commenting and praising both children.
84. The atmosphere was warm and focussed with Ms Bakshi guiding both children and following them as well. When [Y] attempted to ‘wear’ a car on his feet, Ms Bakshi delightedly said ‘uh oh!’ and they warmly laughed together.
85. Ms Bakshi moved between the children with good humour and focussed interest. She demonstrates competent parenting. [X] and [Y] demonstrate secure attachments to her.
Mr Kapoor and the children
86. Ms Bakshi presented as anxious at the prospect of Mr Kapoor’s presence in the observation. Mr Kapoor moved into the room and quietly said hello to the children. Ms Bakshi did not look directly at Mr Kapoor and [X] who stood near to her mother looked interestedly at her father and then smiled. [Y] looked uncertainly across at Mr Kapoor.
87. Mr Kapoor sat in a chair and while Ms Bakshi was also seated, he beckoned to [X]. [X] spontaneously moved across to Mr Kapoor and kissed him.
88. After five minutes, I indicated to Ms Bakshi to leave and she did so without farewelling the children. [X] and [Y] seemed unfazed. [Y] watched his mother leave and Mr Kapoor then beckoned to him. [Y] smiled at Mr Kapoor and moved easily across to him. They both smiled as Mr Kapoor gently lifted him onto his lap. [Y] then looked away and seemed emotionally dysregulated as [X] stood happily at the whiteboard chatting about her drawing.
89. Mr Kapoor moved to the whiteboard with [Y] in his arms and knelt next to [X]. When he tickled [Y]’s chin, the child smiled delightedly exchanging direct eye contact with Mr Kapoor and continuing to babble enthusiastically.
90. Mr Kapoor chatted warmly with [X] about friends and childcare as she drew. [Y] stood nearby at the small table and handled the coloured pens with interest. He babbled happily and Mr Kapoor responded warmly.
91. Mr Kapoor showed [X] how to ‘draw a face’ and the atmosphere was warm and focussed. [X] carefully followed Mr Kapoor’s instructions and they smiled delightedly when her attempts were successful.
92. When [Y] scribbled on [X]’s drawing, Mr Kapoor warmly redirected him to the other side of the whiteboard, at which [Y] easily complied. He then playfully looked at Mr Kapoor and [X] from under the whiteboard and laughed delightedly when Mr Kapoor ‘found’ him.
93. At the end of the observation, I requested that Ms Bakshi collect the children. When she entered the room, Ms Bakshi did not acknowledge Mr Kapoor and he did not assist with the transition, instead asking [X] for ‘a kiss’. [X] enthusiastically complied, kissing her father several times as Ms Bakshi lifted [Y] into her arms. Holding [X] by the hand, Ms Bakshi left the observation room. [Y] watched his father from over Ms Bakshi’s shoulder.
94. In the observation, Mr Kapoor demonstrated competent parenting. He presented as responsive to the children’s needs for a gradual reunion with him and managed the transition with care, to the extent that both [X] and [Y] were positively engaged with him in a relatively short time after Ms Bakshi had left.
95. Mr Kapoor guided [X] and [Y] with verbal instruction, affection and physical proximity as well as playfulness. He demonstrated attunement to [X] and [Y]’s play and followed as well as guided them, to the extent that the children were organised and focussed in their play and activities. [X] and [Y] respond to Mr Kapoor as a familiar, positive emotional figure and it is likely that if they continue to spend regular time with him, the attachment will become more secure.
Ms F recommended that:
130. [X] and [Y] should live with their mother Ms Bakshi.
131. [X] and [Y] should spend supervised time with their father Mr Kapoor at CommUnity+ Children’s Contact Centre as ordered by the Court. The time should be weekly if possible for periods of two hours.
132. When supervision has proceeded uneventfully for a further six months - on the basis of regular reports by supervising staff - and when [Y] is two and a half years old, unsupervised daytimes of up to four hours twice weekly, might be considered.
133. When [Y] is three years old, one overnight time for him and [X] with Mr Kapoor might be introduced on a weekly basis and at least one other weekly time such as the proposed Wednesday afternoons, should also proceed. The time might be from Saturday at 12noon to Sunday at 12noon.
134. When [Y] is four years old, he and [X] might spend alternate weekends between Friday and Sunday and one weekly afternoon or evening with Mr Kapoor.
135. When [Y] commences school and [X] would be in around grade 1, then alternate weekends between Friday and Sunday and one alternate overnight time such as Wednesday to Thursday, along with an alternate Wednesday afternoon/evening during school time might be considered.
136. Half school holidays should be gradually introduced when [Y] has commenced school.
137. Communication such as telephone or other digital media should be reasonable and adapted to [X] and [Y]’s age. Five-minute long communication on a weekly basis would be sufficient until [X] at least, reaches primary school age.
138. Mr Kapoor attends behaviour change as ordered by the Court. He also attends counselling for at least six months to address issues such as communication and emotion and behaviour regulation, as well as parenting.
139. Ms Bakshi should continue to attend counselling as deemed necessary.
140. Mr Kapoor and Ms Bakshi are permitted to travel to India with the children, with the agreement of the other parent.
Ms F’s oral evidence
Ms F was cross-examined by telephone. She confirmed, in answer to a question from the independent children’s lawyer, that the people in this case were not particularly remarkable and her recommendations were basically just the age appropriate recommendations for children of [X] and [Y]’s ages and stages of development. Ms F also confirmed that her recommendations were to do what was age appropriate for [Y] because [X], as the older child, could fit in with that.
The independent children’s lawyer put to Ms F the mother’s position that [Y] should not start spending overnight time with his father at the age of three. However, Ms F confirmed that, notwithstanding that [X] and [Y] were at that time only spending blocks of four hours with their father, that one overnight a fortnight would be appropriate at this point.
The independent children’s lawyer noted that [X] had expressed reluctance to spend time with her father, but, according to contact centre reports, had a very clear positive response to the actual presence of her father. Ms F considered that monitoring, such as by having changeover at a contact centre would be helpful, but did not consider that [X]’s time with her father should be reduced because of her statements, which seemed to emanate from exposure to adult anxiety.
In response to questions from the father, Ms F confirmed that the proposals of the independent children’s lawyer were in accordance with [X] and [Y]’s best interests.
In response to questions from the mother, Ms F confirmed that [X] and [Y] overwhelmingly had their primary attachment to their mother, and had spent very little time under the same roof as their father. Nevertheless, Ms F considered that [X] and [Y] had an increasing attachment to their father.
In relation to [X]’s social communication disorder, Ms F said that it would require extra support and cooperation between the parents but did not consider that it altered her recommendations.
In relation to [X] and [Y] being in the habit of sleeping with their mother, Ms F said that she had taken that into account in making her recommendations.
All in all, Ms F’s opinions and recommendations were not undermined in cross-examination.
The best interests of [X] and [Y]
Part VII of the Family Law Act 1975 (“the Act”) deals with the court’s power to make orders in respect of children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It was not ultimately disputed that [X] and [Y] would benefit from having a meaningful relationship with both of their parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
A large part of the mother’s case revolved around her claims that the father had been violent towards her during the relationship. The father conceded that he had punched a hole in a door when the mother was in the house, but not in the same room. There may have been more violence than that during the relationship. However, as the parents have now separated, there is no reason to consider that such violence would continue into the future, or that [X] and [Y] would be exposed to it. Dr D was not cross-examined. I accept his view that the father is at low-risk of being violent towards the mother or [X] or [Y].
Section 60CC(3)(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
[X] has expressed some reluctance to spend time with her father. However, she has not been able to express any reason for that reluctance, and her behaviour indicates that she in fact enjoys spending time with him. The father has also indicated that he has not pressed [X] to spend time with him if she did not wish to, and indicated that he would be sensitive to her wishes in that regard in the future. Overall, it seems that any reluctance [X] has expressed about spending time with her father is reflective of the mother’s anxiety, rather than [X]’s real preferences.
[Y] is too young to have expressed any preferences, and seems very happy in the father’s care.
Section 60CC(3)(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)
[X] and [Y] obviously have a very close relationship with their mother. They were both breast fed until the age of two years, and co-sleep with her. The mother has been their primary carer throughout their lives, and she has been a capable and devoted parent.
[X] and [Y] have had a limited opportunity to develop a relationship with their father. For much of their lives, the mother was with them in India while the father was in Australia.
More particularly, [X] was born in India on … 2013. Both of her parents were with her then. The father returned to Australia in … 2013, when [X] was three months old. The mother and [X] joined the father in Australia on … 2014, when [X] was about nine months old. They remained with the father in Australia until … 2015 when [X] and her mother returned to India. At that point, [X] was about 18 months old. She remained in India with her mother but without her father until … 2016, when she and her mother and [Y] returned to Australia. At that point, [X] was about 21/2 years old. The mother and father immediately separated under one roof. The mother gave [X] almost no access to her father during the separation under one roof. On 5 May 2016, when [X] was about 2 years and nine months old, she, her mother and [Y] moved out of the family home.
In summary, until she was 2 years and nine months old, [X] lived in the same house as her father for the first three months of her life, then between the ages of nine months and 18 months, and then between the ages of two years and six months and two years and nine months. That is a total of about 15 months out of 33 months.
[Y] did not spend any time with his father from the time he was born on … 2015 until he came to Australia on … 2016, when he was eight months old. At that point, his parents separated under the one roof and the mother permitted virtually no contact between the children and their father. [Y], [X] and their mother moved out of the former matrimonial home on 5 May 2016, when [Y] was about 11 months old.
[X] and [Y] spent two sessions with their father under a reunification program at CatholicCare, one on 21 December 2016 and one on 5 January 2017. In 2017, [X] and [Y] spent time with their father under supervision at a contact centre. On 1 February 2018, orders were made for [X] and [Y] to spend three hours with their father each Wednesday and Saturday for three weeks and then four hours with their father each Wednesday and Saturday without supervision. Changeover was at a contact centre. That is the present arrangement.
As can be seen, [X] and [Y] have had very little opportunity to establish a relationship with their father. Nevertheless, their relationship is progressing and seems to be going well.
The parties did not address [X] and [Y]’s relationships with other family members to any significant extent.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The mother has obviously done all of those things. The father has often been in a different country to [X] and [Y]. Since separation, he has instituted these proceedings to permit him to be more involved in his children’s lives. The parents have a very poor relationship and communicate with each other very little. The mother obviously continues to feel extremely hurt by the father’s treatment of her and the breakdown of the relationship.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father pays child support as assessed, which is a very low amount. However, the wife maintains that the husband earns cash in hand as a tradesman that he does not declare, so his child support assessment is inaccurate. The wife also noted that the husband required her to leave the former matrimonial home with two very young children. She was obliged to move into her brother’s house, where she remains.
Given the father’s dishonesty in relation to the properties he owns in India, I consider that the father probably is cheating on his taxable income and therefore his child support. As mentioned, the father has property in India, and has kept the former matrimonial home. He could do a great deal more to financially support his children.
Section 60CC(3)(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
Based on the evidence of Ms F, I consider that the increase in [X] and [Y]’s time with their father, as proposed by the independent children’s lawyer, would be to their benefit.
Section 60CC(3)(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
The father lives in Melbourne’s … suburbs. The mother lives on the same side of Melbourne, but some distance away. The father uses a motorbike, which is obviously unsuitable for transporting [X] and [Y]. The mother does not have a car. Consequently, it can be expected that there will be some practical difficulty and expense in [X] and [Y] spending time with their father.
Section 60CC(3)(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
The parents both seem well able to provide for [X] and [Y]’s needs, including emotional and intellectual needs, although the mother has not fostered their relationship with their father.
Section 60CC(3)(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
[X] and [Y] are of Indian ethnicity and … religion, on both their mother’s and father’s sides of their family. The parents have agreed to orders sharing time during special religious and cultural celebrations. There is no reason to doubt that both parents will enable [X] and [Y] to know and enjoy their heritage, culture and religion.
Section 60CC(3)(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;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has demonstrated an admirable attitude to the responsibilities of parenthood. The father has been remote from [X] and [Y] for most of their lives. However, the fact that he brought this proceeding shows that he wishes to be much more involved with them in the future.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The mother alleged numerous incidents of family violence as follows:
a.the father did not speak to the mother for weeks at time;
b.the father used the mother’s ID and password to take money from her account;
c.when the mother queried this with the father, he threatened to have the mother deported back to India;
d.the father punched a hole in the bathroom door;
e.the father threw the mother’s laptop across the room and broke the screen;
f.in 2011, before either child was born, the father grabbed the mother by the throat and attempted to strangle her, saying, I will kill you, you freakin’ bitch;
g.while the parents were separated under one roof, the father would yell at the mother, saying I hate you, You are a shameless person, I cannot tolerate you in my house;
h.on the day the mother moved out of the former matrimonial home, 5 May 2016, the father was yelling and swearing, saying that he would keep [X] and the mother could keep [Y];
i.[X] and [Y] were crying;
j.the father threw the mother’s suitcase and threw her clothes out of the wardrobe, yelling at her, Get out of my house;
k.the mother called the police; and
l.they advised the mother to go to her brother’s place.
Except that the father eventually conceded that he punched a hole in a wall, the father denied these incidents of family violence. However, as discussed above, I found the father not to be a reliable witness and there was no comparable question about the mother’s credibility. The mother’s claims, in part, were also supported by contemporaneous applications for intervention orders. In all the circumstances, I accept the mother’s claims about these matters.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
The mother applied for an intervention order on 3 June 2016. An interim intervention order was made on 1 July 2016 protecting the mother and [X] and [Y] from the father.
The mother alleged that the father breached the interim intervention order on:
a)21 October 2016, when he sent the mother a text message;
b)28 October 2016, when he attended at [X]’s child care centre and approached and remained within five metres of [X]; and
c)15 November 2016, when he attended [X]’s child care centre.
The police charged the father with the breaches of the intervention order mentioned above. The police later dropped the charges on the condition that the father did not seek costs. It is not entirely clear why the police dropped the charges.
On 10 February 2017, a final intervention order was made against the father, protecting the mother, [X] and [Y]. It was in force until 9 February 2018, when the mother applied for another intervention order. An interim intervention order was made on 9 February 2018 and after the matter returned to the Magistrates’ Court on 13 March 2018 and 5 June 2018 the interim order remained in place. The matter was listed for a final contested hearing on 18 January 2019. That was after the trial before this court. The court has not been advised of the outcome of that matter.
The findings made by the Magistrates’ Court, if any, have not been made known to this court. Suffice to say that, for the reasons stated above, I am satisfied that the father has perpetrated family violence against the mother, as described above.
Section 60CC(3)(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
It would be preferable to make the order that was the least likely to lead to the institution of further proceedings. However, it is not known what that order would be.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1) 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.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.
The parents and the independent children’s lawyer have agreed that it is in [X] and [Y]’s best interests that their parents share equal parental responsibility for them. I also agree that it is in their best interests.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) … if:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The parents and the independent children’s lawyer were in agreement that it is in [X] and [Y]’s best interests that they live with their mother and that, eventually, they spend time with their father from after school Friday to 6pm Sunday in alternate weeks, and from after school Wednesday to before school Thursday in the other week. This amounts to three nights a fortnight, and can be described as substantial and significant time as defined in the Act.
The dispute between the parents and the independent children’s lawyer centred on when that arrangement should begin, and what the increments leading to it should be. The father and the independent children’s lawyer, in keeping with the recommendations of Ms F, urged the court to provide for the end point to be reached relatively quickly. The mother urged the court proceed more slowly.
The mother’s arguments, in closing submissions, were that:
a)[X] and [Y] had spent precious little time with their father since they were born and, for that reason, had a limited relationship with him;
b)the mother felt anxiety about the father, because he had forced her to leave the former matrimonial home shortly after her return from India, even though she had a baby and a toddler; and
c)[X] and [Y] were very firmly attached to their mother, they had both been breastfed until the age of two years and they both continue to sleep with their mother.
I have a good deal of sympathy for the mother. The father has treated her very badly. However, the issue for the court is the best interests of [X] and [Y].
The fact that [X] and [Y] have spent little time with their father to this point is all the more reason that it would be in their best interests to start spending considerably more time with him now. The mother’s anxiety could be expected to be alleviated by the father treating [X] and [Y] well, as they spend more time with him, and by the father treating the mother courteously and respectfully in the future. The fact that [X] and [Y] are well attached to their mother will stand them in good stead as they develop a stronger relationship with their father, and as they go through life.
All in all, I am not persuaded that the court should depart from the recommendations of Ms F, which are reflected in the proposals of the independent children’s lawyer, in relation to the time that [X] and [Y] should spend with their father and when it should begin. There will be orders accordingly.
The mother proposed that the time in proposed order 4(b)(i) should be from 12md to 12md, rather than 10am to 10am. The mother said that was because [X] and [Y] sleep late. That may be so. However, it would be preferable for them to adjust to an earlier start to the day, particularly so that they can manage normal school hours, without missing out on sleep.
The father proposed that, if either parent wishes to travel overseas with [X] and [Y], they lodge security of $20,000. Otherwise, the parents were in agreement that they should each be free to travel with [X] and [Y]. The independent children’s lawyer did not support the father’s proposal for security. The mother proposed that, if any security were to be required, it should only be $5,000.
I do not consider that a $20,000 security, or any security, is required in this case. It seems to me that it is very unlikely that either parent would not return to Australia with [X] and [Y] after a trip overseas. They are both reasonably well established here. It seems to me that the father’s proposal in this regard was designed more to make life difficult for the mother, than because he had any genuine concern about her returning with [X] and [Y].
The parents and the independent children’s lawyer agreed to the existing airport watchlist order being discharged upon the mother lodging [X] and [Y]’s passports with a registrar of this court. However, the existing airport watchlist order was an interlocutory order. Consequently, it will be subsumed in the final orders, and cease to be operative, unless it is restated in the final orders. Therefore, in the final orders, there will be another airport watchlist order, which should cease upon the mother lodging [X] and [Y]’s passports with a registrar. The matter will be listed for directions to enable the airport watchlist order to be discharged. However, if the parents wish to file a minute of proposed consent orders, it is likely that the appropriate order would be made in chambers.
PROPERTY
The legislation
Section 79 of the Act gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Sub-section 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. Those matters are:
(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.
The matters to be taken into account under s.75(2) of the Act are as follows:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) 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; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The approach to applications under s.79
In Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; [2012] HCA 52, the High Court explained the proper approach to an application under s.79 of the Act as follows:
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38. Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. … (footnotes omitted)
39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. (footnotes omitted)
40. Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. (footnotes omitted)
…
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). (footnotes omitted)
Stanford requires the following matters to be determined in applications brought under s.79 of the Act:
a)whether the parties have separated;
b)the assets and liabilities of each party;
c)the contributions of each party;
d)the future needs of each party;
e)bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
f)what orders, if any, are just and equitable in all the circumstances of the case.
Stanford does not require these matters to be addressed in any particular order. In most cases, it would seem rational to consider them in the order set out above. It does not seem to me to be possible to determine whether it is just and equitable to make an order altering the parties’ interests in their property without the other matters mentioned above having been previously determined. That seems to be clear from the opening words of s.79(4) of the Act, which are that:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account [the various matters set out in s.79(4)] … .
The husband proposed final property orders as follows:
13. The proceeds of sale of the former matrimonial home (being $183,479.93) held in trust by the husband’s solicitors be disbursed jointly in the amount of 65% to the wife and 35% to the husband, with an adjustment in the husband’s favour of the amount of $9,574.96 paid to Victoria Legal Aid at settlement within 7 days or as ordered by the Court.
14. … each party retain their own superannuation.
15. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these, or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at this time;
(b) money standing to the credit of the parties in any bank account remains the property of the account holder;
(c) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
The wife proposed final property orders in her outline of case as follows:
1. The 100% proceeds of sale of the former matrimonial home (being $183,479.93) held in trust by the husband's solicitors be disbursed to the wife within 7 days.
2. The husband (and the wife if necessary) shall do all acts and sign all documents as are necessary to transfer to the wife at the expense of the husband all of the husband's right, title and interest in the motor vehicle Victorian Registration Number … free of encumbrance on the said vehicle and that the husband be solely liable for and indemnify the wife against any liability encumbering the said motor vehicle.
3. The husband forthwith pay to the wife, by way of periodic spousal maintenance, in the sum of $400 per week.
4. The respondent wife shall retain to the exclusion of the applicant husband, her superannuation entitlements held with Super Fund 1 (previously known as Super Fund 2).
5. For the purposes of these orders:
(a) the Applicant (MR KAPOOR) is the member spouse (member number …);
(b) the Respondent (MS BAKSHI) is the non-member spouse;
(c) the Superannuation is Super Fund 3; and
(d) the Trustee means the trustee(s), person(s) or corporations(s) responsible from time to time for the management or investment of the Superannuation Fund.
6. That paragraphs 7 to 11 inclusive of these Orders are binding on the Trustee for Super Fund 3 (“the Trustee”) as administrator and Trustee of Super Fund 3 (“the Superannuation Fund”) for member number ….
7. That pursuant to section 90MT(l)(b) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable in respect of the Husband's interest in the Superannuation Fund, the trustee shall pay to the Wife the amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using a specified percentage of 100% and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
8. The preceding order has effect from the operative time and that the operative time and that the operative time for such order be ten (10) business days after the service of a sealed copy of these orders made by the court on the Trustee of the Superannuation Fund.
9. That the Trustee of the Superannuation Fund, in accordance with the obligations set out under the Act and the Regulations, do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of the Wife and make payment to the Wife in accordance with these Orders and to give effect to these Orders.
10. That there be liberty to apply, to each party and the Trustee in relation to the implementation of the orders affecting the superannuation interest.
11. Until the happening of any Order in relation to the Superannuation of the husband be and is hereby restrained by himself, his servants and/or agents from executing a death benefit nomination in favour of any person or doing any other acts or things which would reduce his superannuation entitlement (save for and receiving his current benefit) and including but not limited to rendering any parts of his interests in his Superannuation “non-splittable” within the meaning of Regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001.
12. Within 14 days of the date of these orders, the husband pay the wife the sum of $60,000 in consideration for his disposal the Truck, the motor vehicle and his redraws on the mortgage secured over the former matrimonial home.
13. The husband pay the wife’s costs of and incidental to these proceedings.
14. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these, or any subsequent orders:
(a) each party be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at this time;
(b) money standing to the credit of the parties in any bank account remains the property of the account holder;
(c) each party hereby foregoes any claim they may have to any superannuation benefits belonging to, or earned by, the other save for the superannuation splitting order proposed herein;
(d) all insurance policies to become the sole property of the owner named thereon;
(e) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
15. These orders are made in favour of the wife in consideration of the husband’s disposal of the matrimonial property to the estimated sum of approximately $1,600,000AUD.
Although the wife’s proposed orders included a claim for spousal maintenance, a payment of $60,000 and costs, nothing was said about those issues in closing submissions. I assume those claims were abandoned. The wife abandoned her claim in respect of the car during the trial.
Whether the parties have separated
The parties agreed that they had separated.
Assets and liabilities
The parties agreed that their joint assets consisted of the proceeds of sale of the former matrimonial home. They agreed that the proceeds of sale amounted to $183,479, which is presently held on trust for the parties.
The parties agreed that they have no joint liabilities.
Therefore, the parties’ total joint assets less liabilities amount to $183,479.
The parties agreed that the husband’s individual assets included:
a)a motor vehicle valued at $12,000;
b)a motorcycle valued at $13,000; and
c)cash at bank, consisting of $3,421.
Therefore, the husband’s agreed total individual assets amounted to $28,421.
The parties agreed that the husband’s individual liabilities consisted of:
a)a debt to … Finance, regarding the motor vehicle, of $11,400; and
b)a debt to … Finance, regarding the motorbike, of $14,830.
Therefore, the husband’s total individual liabilities amounted to $26,230.
Therefore, the husband’s agreed total assets less liabilities amounted to $2,191.
The parties agreed that the wife’s individual assets consisted of cash at bank of $3,086.
Therefore, the wife’s total individual assets amounted to $3,086.
The parties agreed that the wife’s individual liabilities consisted of a Centrelink debt of $840.
Therefore, the wife’s total assets less liabilities amounted to $2,246.
Therefore, the parties’ total combined assets less liabilities amounted to $187,916.
The parties agreed that the husband’s superannuation, which is with Super Fund 3, amounted to $16,977.
The parties agreed that the wife’s superannuation, which is with Super Fund 1, amounted to $9,852.
Therefore, the total superannuation interests of the husband and wife amounted to $26,829.
Therefore, the parties’ agreed total combined assets, including superannuation, less liabilities amounted to $214,745.
The parties agreed that the husband had sold a truck, that had been a joint asset. The parties agreed that, after payment of GST, the husband received $16,818 as the proceeds of the sale of the truck. The parties agreed that the husband had disbursed that sum for his own purposes.
The parties also agreed that, from the joint proceeds of the sale of the former matrimonial home, each party had received $10,000 as a part property settlement. The parties agreed that they had each disbursed their $10,000 for their own purposes.
The parties also agreed that, from the joint proceeds of the sale of the former matrimonial home, the wife received the sum of $9,575 to enable the removal of a caveat lodged by Victoria Legal Aid over the former matrimonial home. The caveat was on account of the wife’s legal costs.
In addition, the husband claimed to have a taxation liability of $4,183, some of which he claimed was referable to income earned during the relationship. The wife did not accept that the husband’s taxation liability should be taken into account.
The husband also claimed to have a post-separation credit card debt of $15,000, and another credit card debt of $8,500, $6,000 of which he claimed was referrable to the period prior to the separation.
The wife also initially claimed that the husband owned the following assets in India:
a)a half share in the Indian Farm, which she said was worth $450,000;
b)a half share in agricultural land in India property, which she said was worth $50,000;
c)a half share in a showroom in India property, which she said was worth $600,000;
d)a half share in shops at India property, which she said was worth $150,000;
e)a half share in a house at India property, which she said was worth $250,000; and
f)a half share in a house at India property, which she said was worth $25,000.
In closing submissions, the wife conceded that she had no evidence to substantiate her claim that the husband had a half share in the shops at India property, being item (d). The wife said that she no longer pressed that claim. Therefore, I give no further consideration to the shops.
In his oral evidence, the husband admitted that he owned a half share of the house at India property, being item (f). However, he maintained that his half share was worth only $10,000.
In his oral evidence, the husband also appeared to admit that he owned a half share of the agricultural land mentioned in item (b) and agreed that his half share was worth $50,000. However, his counsel later sought to resile from that admission.
In closing submissions, counsel for the husband acknowledged that, as a minimum, the husband owned property in India worth $10,000. That is sufficient to mean that his earlier frequent denials that he owned any property in India were false. In the circumstances, the court is able to conclude that the husband’s denials that he owned other property in India were also false.
The husband produced a good many documents that supposedly showed that he had relinquished some of his property in India. Some of those documents were produced for the first time during the trial. That was a nasty tactic employed by the husband for his own advantage.
Without going through chapter and verse in relation to those documents, I consider that either they were not entirely genuine or that they did not tell the whole story. I consider that the husband and his brother deliberately tried to deceive the court about the husband’s property in India. I consider that, with the exception of the shops mentioned in item (d) above, the husband owns all of the property listed by the wife.
Notwithstanding that, on the husband’s own admission, he owned at least $10,000 worth of property in India, he did not comply with court orders for his property in India to be valued. He said his brother, who is a half owner, did not allow it.
I accept that the husband’s brother is thirteen years older than the husband and has, perhaps, taken on the role of a father to the husband. However, the husband is an adult. He should not have allowed himself to be dominated by his brother in that way.
In any event, until giving oral evidence, the husband maintained, falsely, that he owned no property in India. It fitted with the case that he put forward not to get the properties valued. However, as I have found that the husband does own the properties identified by the wife, he had no excuse for not having the properties valued. His failure in that regard compounded his dishonesty. In all the circumstances, I consider that it is proper to accept the values nominated by the wife for the husband’s properties in India.
Therefore, I find that the husband owns half of the following properties in India, his half share of which have the following values:
a)the Farm: $450,000;
b)a half share in agricultural land in India property: $50,000;
c)a half share in a showroom in India property: $600,000;
d)a half share in a house at India property: $250,000; and
e)a half share in a house at India property: $25,000.
That means that, in addition to the agreed assets listed above, the husband owns $1,375,000 of assets in India.
Contributions
a. Initial contributions
The wife claimed that her family had paid a dowry of $50,000, which the husband kept. The husband claimed that no dowry had been paid on behalf of the wife, and that gifts from the wife’s parents of gold jewellery had been retained by her. The wife said that the gold jewellery remained in a safe at the home of the husband’s brother. It has not been valued.
As I have found the husband and his brother not to be credible witnesses, and as the husband gave conflicting evidence about the dowry, I accept the wife’s evidence about the dowry and the gold jewellery. That is, I accept that the wife’s family paid a dowry of $50,000 and that her gold jewellery remains in the possession of the husband’s brother in India.
The parties agreed that the husband’s brother paid $48,000 towards the purchase of the former matrimonial home. That is more or less offset by the dowry. In fact, it may well be the dowry. One way or another, the initial contributions were approximately equal.
b. Contributions during the marriage
The parties agreed that, during the marriage, the husband was primarily responsible for financially supporting the family, and the wife was primarily responsible for raising [X] and [Y] when she was not working.
The parties agreed that their contributions during the marriage were equal.
c. Contributions post-separation
The parties agreed that, post separation, the husband paid the mortgage and outgoings for the former matrimonial home property (in which he lived) and the wife was primarily responsible for caring for [X] and [Y].
The husband argued that the post-separation contributions were equal. The wife argued that the post-separation contributions were 55% in her favour, as the husband paid no or nominal child support, the wife had virtually all of the childcare, and the husband lived without her in the former matrimonial home.
I accept that the post-separation contributions favour the wife. The husband was basically just paying for his own accommodation up until the former matrimonial home was sold.
Future factors
The husband is 37 years old. The wife is 36 years old. They are both in good health. They are both able to work. The husband presently works as a tradesman. The wife is not presently working, but previously worked for Employer. Both parties claimed to have a modest earning capacity, and I accept that is the case.
The husband owns $1,375,000 worth of property in India. Neither party owns any real estate in Australia, or any other property of any significant value, save for the proceeds of the former matrimonial home.
It was not disputed that the wife would have the majority of the care of [X] and [Y], who are five and three years old respectively.
It was not suggested that either party has any financial commitments or responsibilities, other than to support themselves and their children. It was not suggested that the husband receives any pensions or benefits. The wife receives a single parenting payment, family tax benefit A & B, and rent assistance.
A modest standard of living for each party would be reasonable in all the circumstances of this case.
The marriage was quite short. It was not suggested that it affected either party’s earning capacity.
The husband pays child support of $36 a month. On any view, that is negligible.
Both parties conceded that there should be an adjustment in favour of the wife, though they disagreed on the amount of that adjustment.
Final proposals
The husband ultimately proposed that the proceeds of sale of the former matrimonial home be split 35% to the husband and 65% to the wife, less the $9,575 that the wife had received for her legal costs, and that the husband retain the proceeds of sale of the truck and otherwise each party retain the assets in their possession or control.
The wife proposed that:
a)the husband retain his car and motorbike;
b)the remaining proceeds of sale be distributed 100% to the wife;
c)the husband retain all his right title and interest in his properties in India; and
d)there be a superannuation splitting order to the wife of 100% of the $16,977 in the husband’s superannuation fund to the fund of the wife.
Whether it is just and equitable to alter the parties’ property interests
The parties agreed that it would be just and equitable to alter their property interests in this case. In view of paragraph 42 of Stanford, the fact that the parties are no longer living in a marital relationship and the various findings made above in relation to contributions and future needs, I also consider that it would be just and equitable to alter the parties’ property interests in this case.
What order is just and equitable?
In view of the overwhelming value of the husband’s assets in India, it seems to me to be just and equitable, in all the circumstances of this case, that the wife receives all of the proceeds of sale of the former matrimonial home and all of his superannuation. I do not consider that it would be just and equitable for the amount that the wife has already received to discharge the caveat over the former matrimonial home to be deducted from the amount the wife receives. If the husband’s Indian assets had been in Australia, and amenable to the jurisdiction of this court, the wife would have received a substantial proportion of them.
I consider that the husband should be treated as having retained the proceeds of the sale of the truck. He has already spent them. It is unnecessary to treat this as an addback, as the wife will receive all of the assets that she seeks in any event.
I accept the wife’s proposal that the husband retain his car and motorbike. They are subject to finance of almost their full value in any event. I also accept the wife’s proposal that the husband retain his properties in India. There will be orders accordingly.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 22 February 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Equity & Trusts
Legal Concepts
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Consent
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Appeal
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Jurisdiction
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Remedies
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