Manesh & Manesh (No 4)

Case [2022] FedCFamC1F 681

Federal Circuit and Family Court of Australia

(DIVISION 1)

Manesh & Manesh (No 4) [2022] FedCFamC1F 681

File number(s): MLC 8955 of 2019
Judgment of: JOHNS J
Date of judgment: 9 September 2022
Catchwords:

 FAMILY LAW – CHILDREN – parental responsibility – with whom the child lives – with whom the child spends time – best interests of the child – family violence – child’s views – where the child is 15 years old – where the child has not spent time with the father since separation in 2019 – where the child has no desire to spend time with the father – where the father is alleged to have committed family violence against the mother and child – where the father is alleged to have engaged in coercive controlling behaviour – order that the mother have sole parental responsibility – order that the father’s time with the child be in accordance with her wishes

FAMILY LAW – PROPERTY – final property settlement – adjustment – just and equitable – 23 year marriage – where the wife seeks to retain 60 per cent of the asset pool – where the husband seeks to retain 58 per cent of the asset pool ––where neither party brought any assets of significance into the relationship – where the parties have acquired a portfolio of investment properties during the marriage – where the husband seeks that capital gains tax be considered in valuing the investment properties – where there is no intention for any of the properties to be sold 

FAMILY LAW – COSTS – previous costs orders outstanding – costs thrown away – consideration of s 117(2A) factors – where the husband’s conduct prolonged the final hearing – where the husband caused a two day adjournment during proceedings – where the wife and ICL seek costs thrown away due to the husband’s conduct

Legislation:

 Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B(1) & (2), 60CA, 60CC, 61B, 61DA, 64B, 65C, 65DAA, 69ZN, 75, 79, 102NA, 117, Division 12A, Parts VII, VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Rule 6.06

Cases cited:

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545

Chang & Su [2002] FamCA 156

Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592

Donnell & Dovey (2010) FLC 93-428

Farmer & Bramley [2000] FamCA 1615; (2000) FLC 93-060

Garrett & Garrett (1984) FLC 91-539

I & I (1995) FLC 92-625

In the marriage of G & G (1984) FLC 91-582

Jarrott & Jarrott [2012] FamCAFC 29

Kannis & Kannis (2003) FLC 93-135

Kowaliw & Kowaliw (1981) FLC 91-092

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Monroe & Monroe [2009] FamCAFC 173

Mulvany & Lane (2009) FLC 93-404

Norbis & Norbis (1986) 161 CLR 513

Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197

Omacini & Omacini (2005) FLC 93-218

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AGLC
Manesh & Manesh (No 4) [2022] FedCFamC1F 681
Case
[2022] FedCFamC1F 681
Decision Date

CaseChat Overview and Summary

The case of Manesh & Manesh (No 4) was heard in the Federal Circuit and Family Court of Australia. The matter concerns the finalisation of property settlement and parenting arrangements following the divorce of the parties. The wife filed an Application for Final Orders seeking property and spousal maintenance orders, while the husband sought both parenting and property orders. The matter has been marked by a series of procedural applications and amendments. The legal issues before the court included determining the appropriate division of the property pool and the parenting arrangements for the child.

The court considered the parties’ respective positions on the division of property and the implications of capital gains tax. The court also evaluated the wife’s allegations of abuse and family violence against the husband and their impact on the child’s best interests. The Independent Children’s Lawyer recommended specific parenting orders, including restrictions on the husband’s contact with the child. The court accepted the evidence of the Court Child Expert, who concluded that the child did not wish to have a meaningful relationship with the husband and needed to feel secure and safe.

After considering the evidence and submissions, the court decided to adjust the division of the property pool in favour of the wife, awarding her 55% and the husband 45%. The court ordered that the wife retain the matrimonial home and another property, while the husband would retain his investment properties. The court also made detailed parenting orders restricting the husband’s contact with the child, in line with the Independent Children’s Lawyer’s recommendations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Final separation occurred on 13 June 2019 and the parties divorced in October 2020. BACKGROUND This matter has a long and protracted procedural history. Proceedings were commenced by the wife on 9 August 2019 in the Federal Circuit Court of Australia (as it then was). That Application for Final Orders sought orders relating to property and spousal maintenance; no parenting orders were sought in that application. The husband filed a Response to Application for Final Orders on 2 October 2019 in which he sought both parenting and property orders. The matter first came before Judge Harland on 8 October 2019. That day, interim parenting and property orders were made by consent, including that:- ·The parties attend Dr B for the preparation of a Family Report;·The wife have sole use and occupation of the former matrimonial home at K Street, Suburb L;·They each be restrained from encumbering, divesting, selling or reducing their interest in or dealing with any asset standing in their name;·The husband and wife do all things and sign all documents to have released to each party the sum of $50,000.00 by way of part property settlement;·The husband and wife each provide disclosure of specified documents to the other; and·In the event the parties are unable to agree as to the value of any real estate owned by them within 7 days of these orders, they appoint specified valuers to value such real estate at the parties’ joint expense. The wife filed an Amended Application for Final Orders and a Notice of Risk on 28 October 2019. In addition to the financial orders previously sought, the wife sought orders that she have sole parental responsibility, that the child live with her and spend no time with the husband. In the Notice of Risk, the wife alleged that the husband had been abusive towards both children and detailed a number of allegations of both physical and psychological abuse perpetrated by him. Judge Harland made further interim orders on 4 December 2019 appointing an Independent Children’s Lawyer. By Application in a Case filed 20 December 2019, the husband sought interim orders for the child to spend time with him and the paternal grandparents during the 2019/2020 long summer holidays. The wife’s Response to that Application sought that it be dismissed and the husband spend no time with the child. On 13 February 2020 the husband filed a Notice of Discontinuance in respect of the entirety of his Application in a Case. Judge Harland made orders giving effect to that Notice of Discontinuance on 18 February 2020. An Application in a Case was filed by the wife on 26 March 2020 in which she sought orders for a part property settlement. No orders were sought in relation to parenting matters. In the husband’s Amended Response to Application in a Case filed 5 June 2020 he sought orders that the wife’s Application be dismissed, that the husband and child attend family therapy, orders for the preparation of a Family Report and other orders relating to parenting, property and procedural matters.

Evidence

Evidence Before The Court

Counsel for the Independent Children’s Lawyer tendered a minute of proposed order during closing submissions (Exhibit ICL-1). In that minute, the Independent Children’s Lawyer seeks parenting orders be made in the following terms:-(1)That the mother have the sole parental responsibility for the child…(2)That X live with the mother.(3)That X spend time with and communicate with the father at such times and subject to such conditions as she wishes. (4)That the father be permitted to send to X emails no more frequently than once per calendar month unless he is responding to any email from X and (a)Any email to X shall not exceed 1000 words, and shall not include any criticism of the mother or any discussions or comment about these proceedings or any of the issues in dispute in these proceedings. (b)X is not obliged to respond to any such email received from the father or to read or open any emails sent. (c)Emails from the father to X shall only be send to an email address provided by the mother to the father in writing within 14 days of this order being made. (5)The father be permitted to send a gift and/or card to X twice a year commencing in 2022. (6)That the mother sign all documents necessary to authorise and request of any school attended by X to send to the father copies of X’s end of semester school reports. (7)That the father be and is restrained from contacting or attending X’s school or any school events unless he has been specifically invited in writing by X. (8)That the mother provide a copy of this order to X’s school. (9)That within 7 days of the making of these orders the father provide to the mother the Google Drive containing all family photos. (10)That the Independent Children’s Lawyer or Counsel for the Independent Children’s Lawyer explain the contents and effect of these parenting orders to X within 14 days of the orders being made. (11)That to the extent that orders 3, 4, 5 and 9 hereof is inconsistent with any Crimes Family Violence order then orders 3, 4, 5 and 9 hereof shall prevail. (12)That the order appointing the Independent Children’s Lawyer is discharged upon compliance with order 10 hereof. (13)Usual order pursuant to sections 65DA(2) and 62B of the Family Law Act. (14)That the father pay the sum of $3,220 to the Independent Children’s lawyer within 30 days of the making of these orders being costs thrown away as a result of the father’s adjournment of these proceeding on Thursday and Friday 18 and 19 November 2021 and in default of such payment being there be a sale (here insert a provision for the sale of real estate owned by the father to be sold in default of payment for outstanding cost orders to be paid to the mother.) THE EVIDENCE In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-·The nature of the cause of action or defence; and·The nature of the subject-matter of the proceeding; and·The gravity of the matters alleged.

Decision

Reasons for decision

Having regard to all of the above factors, I am satisfied that the wife’s responsibility for X’s care coupled with the husband’s non-disclosure as identified above weigh more heavily in favour of the wife. As a result, I am satisfied that there ought be a 5 per cent adjustment in favour of the wife so that she will receive 55 per cent of the parties’ property and the husband 45 per cent. CONCLUSION The total net property pool to be divided is $4,610,859. A 55/45 division of that pool results in the wife receiving assets valued at $2,535,972 and the husband receiving assets valued at $2,074,887. The wife seeks to retain the K Street property where she has resided with X since the parties’ separation. The husband makes varying proposals on alternative bases in relation to that property. It is his position that if I take CGT into account in the calculation the parties’ interests that the wife ought to retain K Street. However, it is his position that in the event that CGT is not taken into account, the property should be sold or alternatively, that it be transferred to him. As I have earlier indicated, I have taken CGT into account in my assessment of s 75(2)(o); but for that factor, the wife would have received a greater adjustment of the parties’ interests in her favour. In circumstances where the wife and X have occupied K Street since the parties’ separation in 2019 and where it is common ground that the property is close to X’s school and has been her home since birth, in my view, justice and equity requires that the wife retain that property as part of her settlement. In addition, the wife seeks to retain the U Street property which was registered in her name at the time of its purchase. The husband’s primary position is that the wife retain U Street in the event CGT is taken into account and otherwise it be sold with the other investment properties. I am satisfied that the wife ought retain that property as part of her settlement. The wife proposes that the husband retain the investment properties registered in his name, being the properties at M Street and O Street. In addition, she proposes that the husband retain his half interest in the Country C property which is held with his brother. The husband’s primary proposal also contemplates his retention of the properties at M Street and O Street. It is only if CGT is not taken into account that he seeks that those properties be sold. In my view, having regard to the history of ownership of those properties and given that the husband’s primary position is that he retain them, justice and equity requires that orders be made for the husband to retain those properties. It is common ground between the parties that each shall retain their motor vehicles, savings and part-property settlement received pursuant to previous orders. In addition, the wife will retain her jewellery and the contents of the K Street property. As a result of the above findings, the wife will retain assets valued at $2,347,081, comprising of K Street ($1,400,000), U Street ($625,000), savings ($2,503), Motor Vehicle 2 ($7,200), jewellery ($5,500), part-property payment ($170,000) and the add-back ($136,878). In order to achieve an adjustment of 55 per cent in her favour, which entitles her to a settlement in the sum of $2,535,972, the husband will be required to pay her the sum of $189,000.

Ratio Decidendi

Legal Principle Established

The observations and recommendations made by Ms R in the Family Report were not shaken during the husband’s cross-examination. Ms R’s evidence was cogent and helpful and I accept that evidence in its entirety.SECTION 60CC CONSIDERATIONS Primary Considerations: Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. The question of what constitutes a ”meaningful relationship” was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment, Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405, the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents… …[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. (Emphasis in Original) The evidence of the Court Child Expert, which I accept, is that X is adamant in her view that she does not wish to spend time or communicate with the husband at present. Given that position, the challenge facing the Court is whether there is any benefit to X in attempting to frame orders enabling her to maintain a meaningful relationship with the husband. Those concerns are heightened given the evidence of the Court Child Expert as to the anxiety and stress X has suffered as a result of these proceedings and the husband’s pursuit of the issues. The Court Child Expert confirmed that at this time, X needs to feel secure and safe without influence, pressure or control being exerted by the husband. I accept that evidence. Having regard to that evidence, I am satisfied that there is little benefit to X in attempting to craft orders for her to have a meaningful relationship with the husband.(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; The wife’s case is that X has been subjected to abuse and family violence at the hands of the husband. In support of those submissions, the wife relies upon the evidence of the Court Child Expert regarding disclosures made to her by X with respect to the husband’s conduct.