KHALID & KHALID (No.2)

[2015] FCCA 2879

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHALID & KHALID (No.2) [2015] FCCA 2879

Catchwords:
FAMILY LAW – Interim parenting and property orders – disclosure of documents – consistent and persistent failure by Husband to provide proper disclosure of financial and property interests despite promising to provide proper disclosure many times – absolute duty to disclose all relevant financial resources – Husband’s persistent non-compliance with orders for discovery/disclosure.

Legislation:

Family Law Act 1975, ss.60CA, 60CC(3)(b) & (d), 79(2)

Federal Circuit Court Rules2001, r.24.03

Black & Kellner (1992) 15 Fam LR 343
Chang & Su (2002) 29 Fam LR 406
In the Marriage of Weir (1993) 16 Fam LR 154

Applicant: MR KHALID

Respondent: MS KHALID

File Number: CAC 128 of 2014

Judgment of: Judge Neville

Hearing date: 17 March 2015

Date of Last Submission: 18 March 2015

Delivered at: Canberra

Delivered on: 20 March 2015

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Self represented (but no appearance on 20^th March 2015)

Solicitor/Advocate for the Respondent: Ms Heinze

Solicitors for the Respondent: Infinity Legal, Canberra

Solicitor/Advocate for the Independent  Children’s Lawyer: Mr Ridge

Solicitors for the Independent Children’s Lawyer: Barker & Barker, Canberra

ORDERS

PROPERTY:

1. That the Husband provide to the Wife’s solicitor, within 48 hours, the following documents, by way of financial disclosure:

   (a)A schedule of all assets and liabilities in which he has an interest including an estimated value of those assets, and any valuations or appraisals that he has obtained of each asset;

   (b)A schedule of assets that he has disposed of since separation, including any documentation evidencing the value of any asset disposed of by him and how the funds were dispersed;

   (c)Details in relation to any assets he owned at the commencement of cohabitation together with any documents evidencing the value of those assets at that time;

   (d)Tax returns and notices of assessment for the financial years ending 30 June 2014, 30 June 2013 and 30 June 2012;

   (e)His last five pay slips or pay advices;

   (f)Statements of any and all superannuation policies in his name or in which he has an interest, including any self-managed superannuation funds, for the last three years;

   (g)Bank statements or transaction histories for the last three years for any and all bank accounts in which he has an interest, whether held in his sole name, a company name or jointly with another;

   (h)Bank statements or transaction histories for the last three years for any and all credit card accounts for which he may be liable, whether held in his sole name, a company name or jointly with another;

   (i)Details of any and all mortgages that he may be liable for whether held in his sole name, a company name or jointly with another;

   (j)Details of any and all other loans or liabilities that he may be liable for whether held in his sole name, a company name or jointly with another;

   (k)Details including approximate values of any and all real property that in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   (l)Details including approximate values of any and all vehicles, boats, caravans or other major items of property;

   (m)Details, including approximate values, of any and all shareholdings in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   (n)Details of any and all trusts in which he has an interest or may be a beneficiary under including a copy of the trust deed;

   (o)Details of any and all financial investments in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   (p)Profit and loss statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   (q)Assets and liabilities statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   (r)Bank statements or transaction histories for any and all bank accounts relating to any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   (s)Details, including approximate values, of any and all other financial resources that he has or may have an interest in, whether held in his sole name or jointly with another.

2. That, within 7 days, the Husband provide to the Wife’s solicitor’s three appraisals of the following properties:

   (a)Volume (omitted), Folio (omitted), Property B;

   (b)Volume (omitted), Folio (omitted), Property W; and

   (c)Volume (omitted), Folio (omitted), Property C.

3. For the purposes of Order 2 above, the Husband shall do all things and sign all documents as necessary to ensure that following Real Estate Agents have access to the abovementioned properties to be able to complete the appraisals:

   (a)Mr C of (omitted Real Estate); and

   (b)Ms C from (omitted) Real Estate in (omitted) ((omitted)).

4. If the Husband fails to comply with Orders 1, 2 and 3 above, the following shall occur:

   (a)That, within 30 days of the date of these Orders, the following properties be listed for sale (“the sale”):

   (i)Volume (omitted), Folio (omitted), Property B;

   (ii)Volume (omitted), Folio (omitted), Property W; and

   (iii)Volume (omitted), Folio (omitted), Property C.

   (b)That for the purposes of Order 4 the Wife be appointed as Trustee for the sale of the properties;

   (c)That the properties be marketed for sale by a real estate agent as determined by the Trustee for the sale;

   (d)That the properties be sold by private treaty and if not sold within three months or such other time as the Trustee may determine, that there be an auction of the said property;

   (e)That the Trustee for the sale shall determine the listing price and the selling price after considering the valuation of the properties and the advice of the listing agent;

   (f)That the Trustee determine the conveyancing solicitor to be appointed to act upon the sale;

   (g)Upon completion of the sales, the proceeds of the sales be applied as follows:

   (i)Firstly, to pay all costs, commissions and expenses of the sales and to pay any council and water rates and maintenance levies outstanding in respect of the real properties;

   (ii)Secondly to discharge the mortgages and any other encumbrances affecting the real properties;

   (iii)Thirdly, the balance to be held in an interest bearing account subject to final determination of other Orders of the Court.

   (h)Unless as provided for in these Orders, the Husband be and is hereby restrained from dealing with the properties named at Order 3 above

   (i)That the Husband pay and keep up to date all payments and liabilities pursuant to the mortgages held over the properties described at 4(b)a-(c) above and all rates, taxes and outgoings, including Strata and Rates payments of or with respect to the real properties of whatsoever nature and kind excepting Gas, Water and Electricity bills;

   (j)That in default of the Husband doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of this Court at Canberra be appointed pursuant to s106A of the Family Law Act to execute all such documents in the name of the Husband and to do all acts and things necessary to give validity and operation to the said orders.

5. In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Khalid from his interest in the (omitted) Superannuation, the Wife is entitled to be paid (by the trustee of the (omitted) Superannuation) 50% of the splittable payment, and there is a corresponding reduction in the entitlement Mr Khalid would have had but for these Orders;

6. The operative time for Order 5 is four business days after the service of these orders on the Trustee; and

7. The Husband pay the Wife’s costs of and incidental to her Application of 23 February 2015 fixed in the amount of $5,000.00 (to be paid to ACT Legal Aid) as well as associated costs of subpoenas, costs in relation to inspection and copying, filing fees and conduct monies within 48 hours of being provided with an invoice by the Wife’s solicitor.

PARENTING:

1. All previous Orders in relation to the children X (born (omitted) 2005) (“X”) and Y (born (omitted) 2009) (“Y”), (“the children”), be discharged.

2. Until further Order, X live with the Mother and spend time with the Father, as agreed in writing between the parties.

3. Until further Order, Y live with the Mother.

4. Y spend each alternate weekend with the Father from after school Friday until before school on Monday, with changeover being at the child’s school.

5. Except for the purposes of Order 11, the Father be restrained from attending (omitted) Public School.

6. In the event that the Father does not provide Y to the Mother, pursuant to these Orders, by 6:00pm on 20 March 2015, then the Court may, without further notice to the Father, issue a recovery Order for the AFP to remove the child from the Father’s care and deliver her to the Mother.

7. Noting that Orders were made at the conclusion of the final hearing for written submissions to be filed, and noting further that the Father has filed no submissions in compliance with those directions, in the absence of the Father filing written submissions as previously directed on the issues that remain in dispute by 12:00pm noon on Wednesday 25 March 2015, any outstanding Orders sought by the Mother in relation to parenting and property will be made without further notice.

8. The matter be adjourned for further directions to 18 May 2015 at 9:15am.

THE COURT NOTES THAT:

A. Having regard to the continual breach or failure to comply with Orders throughout the history of the matter, both parties are on notice that continued failure to comply with Court Orders could, in the absence of proper notice and adequate explanation, lead to a bench warrant being issued for their arrest.

IT IS NOTED that publication of this judgment under the pseudonym Khalid & Khalid (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 128 of 2014

MR KHALID

Applicant

And

MS KHALID

Respondent

REASONS FOR JUDGMENT

1. The following reasons, which were provided (and orders made) on 20^th March 2015, have been revised from the transcript.  The reasons are largely confined to property matters.  The primary revisions relate to providing a detailed procedural history of the various and highly enmeshed parts of the proceedings which must be characterised as significantly compromised by (a) the parties’ unreliable evidence, and (b) the Husband’s consistent failure to comply with orders, despite consistently confirming that he would so comply.[1]

   [1] Noting that it formally and chronologically comes later in time, to the degree that it may provide formal context that has been a feature throughout the proceedings, further history and a more general record of the dysfunction between the parties is set out in the reasons delivered on 15^th June in relation to the parenting aspect of the matter.  That judgment may be relevant even if only for further background, as well as for the Court’s assessment of the significant lack of credibility of the evidence of both parties.  Of course, the later June judgment cannot be used in any relevant respect in the absence of an appropriate application to the Court.

2. The matters set out below relate only to issues and matters that were relevant and current to the reasons and orders made on 20^th March 2015.

Procedural and Other History

Preliminary – pre-trial - skirmishes

1. The matter (in both its parenting and property aspects) was set down for hearing on 29^th and 30^th January 2015.  The hearing proceeded on those dates, with the Father as a self-represented litigant (he had formerly been legally represented for a large part of the proceedings)[2], and the Mother legally represented.  There was an independent children’s lawyer (“ICL”).  Save for some procedural orders in relation to property (noted later in these reasons, including the fixing of a date for a conciliation conference), the January hearing was essentially concerned only with parenting matters.

   [2] The orders of 19^th November 2014 confirm that the Father was, from that date, a self-represented litigant.

2. Throughout January 2015, there were a number of requests by the Wife’s solicitors to have the matter re-listed in order to deal with (a) the Husband’s continued failure to provide disclosure, and (b) the Wife’s solicitors discovering three properties owned by the Husband, but again which had not been adequately disclosed.

3. Indeed, by way of an Application in a Case (and detailed affidavit), both filed 8^th January 2015, the Wife sought, among other things, detailed disclosure from the Husband in relation to his property interests, and that the parenting and property aspects of the matter be heard separately.  Except in relation to superannuation, the orders sought in that Application were ultimately made by the Court, as set out below, on 10^th February 2015.  Also by way of this Application in a Case, the Wife sought an interim property settlement (in the sum of $15,000.00), and an order for spousal maintenance (of $500.00 per week).

4. The Wife’s solicitors were advised that because the hearing was only a few weeks away, and because of the time of year the Court was not sitting, the Application in a Case would be listed for the dates of the final hearing – 29^th and 30^th January 2015.

5. On 15^th January, the Wife’s solicitors again wrote to the Court protesting about the Husband’s lack of disclosure, saying (among other things): “Mr and Ms Khalid were in an (religion omitted) relationship in which Mr Khalid had full control and knowledge of familial finances and property.  Our client was not informed of the familial assets or liabilities.  We are instructed that Mr Khalid operates a “(omitted) business.”

6. The letter went on to complain about the Husband’s failure to provide financial disclosure despite “numerous requests” for him to do so.

7. The following day (16^th January), the Wife’s solicitors again wrote to the Registrar of the Court to advise that upon conducting title searches, three properties had been identified, and that Mr Khalid had advised on that date that, notwithstanding the mortgages that were disclosed under the title searches, there may be another mortgage over one of the properties.  Details were rather scant.  This led to a request to issue further subpoenæ.

The Hearing – and On-going Issues of Husband’s Non-Disclosure

1. As already noted, the hearing focussed almost entirely on parenting matters, which concerned the parties’ daughter, Y.  The Father also consistently sought to refer and have orders made in relation to the Mother’s son, X, from a previous relationship.  Factually, there was little dispute that X had lived with the parties for almost all of his life but, by the time of the trial, had refused to spend any time with the Applicant Father for approximately one year or more.  Y is aged 6 years; X is aged 10 years.

2. At the conclusion of the trial in late January, orders were made for the parties and the ICL to file written submissions, as well as, pending the making of final orders, interim parenting orders as proposed by the ICL.

3. Also at the conclusion of the trial on 30^th January, there was discussion, and confirmation to the Husband by the Court, of the need for complete financial disclosure.[3]  Typical of the Husband, who (when he attended Court) always presented courteously if not somewhat genially, always endeavouring to please, he assured the Court that he understood what was required of him and that he would comply with the provision of documents and all details regarding his financial interests.  Unfortunately, since becoming a self-represented litigant, it has invariably been the case that, notwithstanding the Husband saying that he understood what was required of him, for example in relation to full disclosure of his financial interests, whether by practice, by nature, by culture or otherwise, based on the history in this matter of general non-compliance by the Husband with the Court’s orders, I have never been confident that he will ever provide the complete disclosure required of him.

   [3] See Transcript (30^th January 2015) p.145 ff.

4. Among the orders made on 30^th January was for the parties to attend a conciliation conference on 26^th February.

5. With ongoing parenting and non-disclosure issues, post the trial, the matter was re-listed on 10^th February 2015.   In the course of a duty list, and where the Mother’s/Wife’s solicitor only appeared (it is unclear if the Husband advised the Court at any relevant time why he did not attend Court on 10^th February), the Court made orders in relation to disclosure and related property orders.  Those orders, as sought by the Respondent Wife, provided as follows:

   1)   That the Husband provide to the wife’s solicitor, the following documents, by way of financial disclosure:

   a)   A schedule of all assets and liabilities in which he has an interest including an estimated value of those assets, and any valuations or appraisals that he has obtained of each asset;

   b)   A schedule of assets that he has disposed of since separation, including any documentation evidencing the value of any asset disposed of by him and how the funds were dispersed;

   c)    Details in relation to any assets he owned at the commencement of cohabitation together with any documents evidencing the value of those assets at that time;

   d)   Tax returns and notices of assessment for the financial years ending 30 June 2014, 30 June 2013 and 30 June 2012;

   e)    His last five pay slips or pay advices;

   f)     Statements of any and all superannuation policies in his name or in which he has an interest, including any self-managed superannuation funds, for the last three years;

   g)   Bank statements or transaction histories for the last three years for any and all bank accounts in which he has an interest, whether held in his sole name, a company name or jointly with another;

   h)   Bank statements or transaction histories for the last three years for any and all credit card accounts for which he may be liable, whether held in his sole name, a company name or jointly with another;

   i)     Details of any and all mortgages that he may be liable for whether held in his sole name, a company name or jointly with another;

   j)     Details of any and all other loans or liabilities that he may be liable for whether held in his sole name, a company name or jointly with another;

   k)    Details including approximate values of any and all real property that in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   l)     Details including approximate values of any and all vehicles, boats, caravans or other major items of property;

   m)  Details, including approximate values, of any and all shareholdings in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   n)   Details of any and all trusts in which he has an interest or may be a beneficiary under;

   o)   Details of any and all financial investments in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   p)   Profit and loss statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   q)   Assets and liabilities statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   r)    Bank statements or transaction histories for any and all bank accounts relating to any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   s)    Details, including approximate values, of any inheritance he has received or will shortly receive; and

   t)     Details, including approximate values, of any and all other financial resources that he has or may have an interest in, whether held in her sole name or jointly with another.

   2)   That, within 7 days, the Husband provide to the wife’s solicitor’s three appraisals of the following properties:

   a)   Volume (omitted), Folio (omitted), Property B;

   b)   Volume (omitted) Folio (omitted), Property W; and

   c)    Volume (omitted), Folio (omitted), Property C.

   3)   For the purposes of Order 2 above, the Wife’s solicitor provide to the Husband the name of two Real Estate Agents and the Husband shall do all things and sign all documents as necessary to ensure that the chosen Real Estate Agents have access to the abovementioned properties to be able to complete the appraisals.

   4)   Compliance with Orders 1, 2 and 3 above is to occur by or before 19 February 2015.

   5)   The parties are to notify Chambers by 12:00pm noon on 23 February 2015 whether or not Orders 1, 2, 3 and 4 above have been complied with and accordingly, whether or not the matter is ready to proceed to the Conciliation Conference on 26 February 2015 [as per Order 5 of the Orders made at the conclusion of the hearing on 30^th January 2015].

1. On 23^rd February, the Mother filed written submissions, together with a contravention application, and an Application in a Case because the Father had failed to comply with the orders made at the conclusion of the trial on 30^th January.  In particular, the Mother complained that the Father had refused to make Y available to spend any time with her since 5^th January 2015.  The earliest date these Applications could be listed was 17^th March.

2. Also on 23^rd February, the Wife’s solicitor wrote to the Court to confirm that there had been no compliance with orders 4 and 5 made on 10^th February, and that there had been no response from the Husband in relation to having appraisals done of the properties.  Accordingly, the Wife’s solicitor sought to have the matter re-listed to deal with the Husband’s on-going non-compliance.

3. The Registrar’s Bench Sheet from 26^th February confirmed that (a) neither party attended the scheduled conciliation conference (as per the Orders of 30^th January), (b) there had been some follow-up with the Wife’s solicitor, and (c) there had been no contact with the Husband.

4. On 17^th March, with both parties and the ICL present, the Court made the following orders (and notations) (emphasis in original):

   THE COURT NOTES THAT:

   A.   The Father has not filed any material in response to the Application in a Case filed by the Mother on 23 February 2015;

   B.   The only document filed by the Father since the Mother’s Application in a Case is an Affidavit of Ms L, filed on 4 March 2015;

   C.  The Father consents to providing financial disclosure documentation to the Mother’s solicitor, as requested by the Mother’s solicitor and as Ordered by the Court on 10 February 2015, at the end of the Court date of 17 March 2015, once he has access to a computer;

   THE COURT ORDERS THAT:

   1)   The Applicant Mother and Respondent Father are to file and serve a Minute of Orders sought in relation to property and parenting matters, by no later than close of business, 18 March 2015.

   2)   The matter be listed for interim judgment and the pronouncement of Orders on Friday 20 March 2015 at a time to be advised.

   THE COURT FURTHER ORDERS IN CHAMBERS THAT:

   3)   The matter is listed for interim judgment and the pronouncement of Orders at 12:00pm (noon) on Friday 20 March 2015.

5. For more abundant caution in the light of the history of non-compliance in the matter, the Court emailed the parties (and the ICL) at 6.31pm on 18^th March 2015 (and therefore after the ordered time for compliance with the filing of a minute of orders sought in relation to both property and parenting aspects of the matter) in which it was noted that:

   (a)The Husband had not provided the disclosure he had promised on 17^th March (and earlier of course, pursuant to the orders dated 10^th February) (this ongoing failure to provide disclosure was confirmed by the Wife’s solicitor);

   (b)The Husband had not filed any Minute of Orders Sought, while the Wife’s  solicitor and the ICL had both done so;

   (c)The parties and the ICL were advised that the time for delivery of reasons and pronouncement of orders would proceed as earlier indicated, namely on 20^th March at noon.

6. The Husband provided his written submissions just after 10pm on 18^th March.

7. On 20^th March at 12 noon, with the matter having been called twice, and there being no appearance by the Husband, interim orders in relation to both parenting and property were made as sought by the Wife.  Those orders were as follows (I note in particular that the property orders, in large measure, replicate the orders made on 10^th February 2015):

   UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

   PROPERTY

   1)   That the Husband provide to the Wife’s solicitor, within 48 hours, the following documents, by way of financial disclosure:

   a)   A schedule of all assets and liabilities in which he has an interest including an estimated value of those assets, and any valuations or appraisals that he has obtained of each asset;

   b)   A schedule of assets that he has disposed of since separation, including any documentation evidencing the value of any asset disposed of by him and how the funds were dispersed;

   c)    Details in relation to any assets he owned at the commencement of cohabitation together with any documents evidencing the value of those assets at that time;

   d)    Tax returns and notices of assessment for the financial years ending 30 June 2014, 30 June 2013 and 30 June 2012;

   e)     His last five pay slips or pay advices;

   f)      Statements of any and all superannuation policies in his name or in which he has an interest, including any self-managed superannuation funds, for the last three years;

   g)   Bank statements or transaction histories for the last three years for any and all bank accounts in which he has an interest, whether held in his sole name, a company name or jointly with another;

   h)   Bank statements or transaction histories for the last three years for any and all credit card accounts for which he may be liable, whether held in his sole name, a company name or jointly with another;

   i)     Details of any and all mortgages that he may be liable for whether held in his sole name, a company name or jointly with another;

   j)     Details of any and all other loans or liabilities that he may be liable for whether held in his sole name, a company name or jointly with another;

   k)     Details including approximate values of any and all real property that in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   l)     Details including approximate values of any and all vehicles, boats, caravans or other major items of property;

   m)  Details, including approximate values, of any and all shareholdings in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   n)   Details of any and all trusts in which he has an interest or may be a beneficiary under including a copy of the trust deed;

   o)   Details of any and all financial investments in which he has an interest, whether held in his sole name, a company or trust or jointly with another;

   p)   Profit and loss statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   q)   Assets and liabilities statements for the last three financial years for any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   r)    Bank statements or transaction histories for any and all bank accounts relating to any and all businesses or companies in which he has an interest, whether held in his sole name or jointly with another;

   s)     Details, including approximate values, of any and all other financial resources that he has or may have an interest in, whether held in his sole name or jointly with another.

   2)   That, within 7 days, the Husband provide to the Wife’s solicitor’s three appraisals of the following properties:

   a)   Volume (omitted), Folio (omitted), Property B;

   b)   Volume (omitted), Folio (omitted), Property W; and

   c)    Volume (omitted), Folio (omitted), Property C.

   3)   For the purposes of Order 2 above, the Husband shall do all things and sign all documents as necessary to ensure that following Real Estate Agents have access to the abovementioned properties to be able to complete the appraisals:

   a)   Mr C of (omitted Real Estate); and

   b)    Ms C from (omitted) Real Estate in (omitted) ((omitted)).

   4)   If the Husband fails to comply with Orders 1, 2 and 3 above, the following shall occur:

   a)   That, within 30 days of the date of these Orders, the following properties be listed for sale (“the sale”):

   b)   Volume (omitted), Folio (omitted), Property B;

   c)    Volume (omitted), Folio (omitted), Property W; and

   d)   Volume (omitted), Folio (omitted), Property C.

   e)    That for the purposes of Order 4 the Wife be appointed as Trustee for the sale of the properties;

   f)     That the properties be marketed for sale by a real estate agent as determined by the Trustee for the sale;

   g)    That the properties be sold by private treaty and if not sold within three months or such other time as the Trustee may determine, that there be an auction of the said property;

   h)   That the Trustee for the sale shall determine the listing price and the selling price after considering the valuation of the properties and the advice of the listing agent;

   i)     That the Trustee determine the conveyancing solicitor to be appointed to act upon the sale;

   j)     Upon completion of the sales, the proceeds of the sales be applied as follows:

   k)    Firstly, to pay all costs, commissions and expenses of the sales and to pay any council and water rates and maintenance levies outstanding in respect of the real properties;

   l)     Secondly to discharge the mortgages and any other encumbrances affecting the real properties;

   m)  Thirdly, the balance to be held in an interest bearing account subject to final determination of other Orders of the Court.

   n)   Unless as provided for in these Orders, the Husband be and is hereby restrained from dealing with the properties named at Order 3 above

   o)   That the Husband pay and keep up to date all payments and liabilities pursuant to the mortgages held over the properties described at 4(b)a-(c) above and all rates, taxes and outgoings, including Strata and Rates payments of or with respect to the real properties of whatsoever nature and kind excepting Gas, Water and Electricity bills;

   p) That in default of the Husband doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of this Court at Canberra be appointed pursuant to s106A of the Family Law Act to execute all such documents in the name of the Husband and to do all acts and things necessary to give validity and operation to the said orders.

   5) In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Khalid from his interest in the (omitted) Superannuation, the Wife is entitled to be paid (by the trustee of the (omitted) Superannuation) 50% of the splittable payment, and there is a corresponding reduction in the entitlement Mr Khalid would have had but for these Orders;

   6)   The operative time for Order 5 is four business days after the service of these orders on the Trustee; and

   7)   The Husband pay the Wife’s costs of and incidental to her Application of 23 February 2015 fixed in the amount of $5,000.00 (to be paid to ACT Legal Aid) as well as associated costs of subpoenas, costs in relation to inspection and copying, filing fees and conduct monies within 48 hours of being provided with an invoice by the Wife’s solicitor.

   PARENTING:

   8)   All previous Orders in relation to the children X (born (omitted) 2005) (“X”) and Y (born (omitted) 2009) (“Y”), (“the children”), be discharged.

   9)   Until further Order, X live with the Mother and spend time with the Father, as agreed in writing between the parties.

   10)    Until further Order, Y live with the Mother.

   11)    Y spend each alternate weekend with the Father from after school Friday until before school on Monday, with changeover being at the child’s school.

   12)    Except for the purposes of Order 11, the Father be restrained from attending (omitted) Public School.

   13)    In the event that the Father does not provide Y to the Mother, pursuant to these Orders, by 6:00pm on 20 March 2015, then the Court may, without further notice to the Father, issue a recovery Order for the AFP to remove the child from the Father’s care and deliver her to the Mother.

   14)    Noting that Orders were made at the conclusion of the final hearing for written submissions to be filed, and noting further that the Father has filed no submissions in compliance with those directions, in the absence of the Father filing written submissions as previously directed on the issues that remain in dispute by 12:00pm noon on Wednesday 25 March 2015, any outstanding Orders sought by the Mother in relation to parenting and property will be made without further notice.

   15)    The matter be adjourned for further directions to 18 May 2015 at 9:15am.

   THE COURT NOTES THAT:

   Having regard to the continual breach or failure to comply with Orders throughout the history of the matter, both parties are on notice that continued failure to comply with Court Orders could, in the absence of proper notice and adequate explanation, lead to a bench warrant being issued for their arrest.

8. At approximately 12.37 pm on 20^th March 2015, the Court received an email from the Husband advising that he was unwell and that he would not be attending Court that day.  By the time of receipt of the Father’s/Husband’s email, the matter had already been dealt with in Court.

9. Later that same day (20^th March) the Court scanned and emailed the Husband a copy of the orders that had been made in his absence, and in particular, drawing to his attention the notation about the risks of on-going non-compliance with orders.

10. In addition to the chronology and procedural history provided for context and otherwise, the Court notes the general circumstances of, and applicable principles relevant to, the matter during and after the trial in late January.  These principles include that the Court must always place the best interests of the child as the paramount consideration (s.60CA of the Family Law Act 1975; “the Act”). Of particular significance in the current matter is the simple and undeniable fact that the Court has made previous orders and given directions for the filing of material, which have rarely been complied with.  In such circumstances, the Court remains in a complete quandary as to what to do. 

11. In relation to parenting matters, given the history of the matter and the evidence, such as it was at trial, the Court can, I think, properly form the following views:

    (a)the parents cannot and do not communicate,

    (b)to speak generally, orders are treated regularly as matters of personal discretion,

    (c)the final determination in relation to parenting orders remains reserved (as at 20^th March 2015), and

    (d)as of 20^th March 2015, the Court was still awaiting the Father’s written submissions, notwithstanding specific filing directions given. 

12. The Court noted that, as at 20^th March 2015, the Father’s parenting submissions were then almost two months late.  I also noted that the Father did not attend Court on 20^th March despite the matter having been called, and despite the Father being in regular communication with the Court, the Mother’s solicitor and the ICL via email.

13. Still in relation to parenting, and again to speak somewhat generally, in large measure, I made the orders as sought by the Mother.  I did so on the basis that they were (and are), in my view, in the best interests of both children, X and Y.  Even though he is not formally a child the subject of these proceedings, to the degree that the Court can or should make any orders in relation to the Mother’s child, X should live with his Mother and spend time with Mr Khalid as agreed in writing between the parties.  In addition to the comments already made that go to jurisdiction, I was also tempted not to make the order in relation to X simply because I really did not (and do not) see any agreement happening any time soon.  Nonetheless, given the closeness of the siblings, and given that X refuses to spend any time with Mr Khalid and has not done so for such a long time (more than one year), it is imperative that the siblings be in a position that would enable them to spend time together.  Such is in both of their best interests.[4]

    [4] See s.60CC(3)(b) & (d).

14. In relation to Y, again on an interim basis, she is to live with the Mother (who has historically been her primary carer) and spend each alternate weekend with the Father from after school Friday until before school on Monday, with changeover being at the child’s school.  But for or with the exception of that order, the Father is to be restrained from otherwise attending (omitted) Public School. 

15. In the event that the Father does not provide Y to the Mother pursuant to these orders by 6 o’clock on 20^th March then the Court may, without further notice to the Father, issue a recovery order for the delivery of the child to the Mother. 

16. Further, noting that orders were made at the conclusion of the final hearing on 30^th January 2015 for written submissions to be filed, and noting further that the Father has filed no submissions in compliance with those directions, in the absence of the Father filing written submissions as previously directed on the issues that remain in dispute by 12 noon on Wednesday 25^th March, any outstanding orders sought by the Mother in relation to parenting and property will be made without further notice. 

17. In relation to property, largely because of the consistent and persistent default in compliance with orders by the Husband (and noting the Husband’s non-attendance today), although I have some reservations regarding the scale of the disclosure sought, nonetheless I made orders as sought by the Wife with some amendments. 

18. I note in particular that, in addition to this Court’s Rules in relation to “full and frank disclosure” (Rule 24.03), there is significant jurisprudence which confirms that the duty to make proper (and timely) disclosure is an absolute requirement in property proceedings.  Failure properly to disclose all relevant assets and liabilities (a) compromises the ability of the other party to meet the case presented, and (b) similarly compromises the Court’s capacity equitably and justly to make property orders, as s.79(2) of the Act prescribes. 

19. To speak a little generally, failure to make proper and complete disclosure, which has clearly happened in this matter - unfortunately with monotonous regularity - entitles the Court to make certain orders that it might not otherwise make.[5]  More particularly or specifically, in Chang & Su, the Full Court quoted the well-known comments by an earlier Full Court in Weir, where it was said:[6]

    … once it has been established that there has been deliberate non-disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party.  To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.

    [5] See, for example, the comments in Black & Kellner (1992) 15 Fam LR 343; and in Chang & Su (2002) 29 Fam LR 406.

    [6] In the Marriage of Weir (1993) 16 Fam LR 154 at p.158; cited in Chang & Su at [70].

20. Here, there are no findings to make, but instead simply to record the on-going failure of the Husband to disclose properly, and in a timely manner, his financial resources.  He consistently promises to do so, and equally consistently fails to do so.

21. The amendments that should properly be made in the current circumstances are modest, I suggest, and relate to the percentage of the splittable payment.  I have determined, on an interim basis, that that should be 50 per cent rather than the percentage sought by the Wife.  But otherwise there is very little change to the orders sought by her.  That includes an order for costs, which will be paid to the Legal Aid Commission, in the sum of $5000.

22. As a precaution, the matter will be adjourned till 18^th May at 9.15am.  I draw to the attention of the parties that there is a general notation at the end of the orders in relation to the risks of breach or failure to comply with orders.  Both parties are formally put on notice that continued failure to comply with orders could – in the absence of proper notice, and adequate explanation – lead to a bench warrant being issued for their arrest.  The Court formally makes those orders.[7]

    [7] By way of observation only, I note that orders were made by the Registrar on 21^st July 2015 in relation to another failed conciliation conference.  Among other things, the Registrar noted that the conference could not proceed because the Husband “has not produced documents that he was required to produce and has not complied with Orders in respect of obtaining market appraisals … of the said properties.”  The Registrar also noted that the Husband advised that one of the properties had been transferred to a third party.  There is a suggestion in later material that the Husband transferred the property in question to a friend for consideration of $1:00.  As with other matters that have come to light since the orders and reasons of 20^th March, obviously they cannot be relevantly used, or account taken of them with respect to the orders of 20^th March 2015, without an appropriate application to the Court.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date: 30 October 2015