MEDAPATI & REVANKA

[2019] FamCA 274

FAMILY COURT OF AUSTRALIA

MEDAPATI & REVANKA [2019] FamCA 274

FAMILY LAW – PARENTING – Where the father resides in Country J and has not seen the child for a number of years – Where the mother seeks sole parental responsibility for the child, that the child live with her and that the child have no contact with the father – Where the father seeks orders for him to be able to see the child and to correspond with the child via electronic communication – Where the views of the mother, the Family Consultant and the child himself support the child not spending any time with the father and only communicating with the father at his own discretion and request.

FAMILY LAW – PROPERTY – Where the parties have property interests in Australia and Country J, as well as several other countries – Where the husband asserts he has numerous other assets, as well as liabilities, in Country J and other countries – Where the veracity of the husband’s evidence cannot be relied permitting a robust approach to be taken to determining the property interests of the parties  – Where all of the properties known and identified in Australia in the name of either party are to be solely vested in the wife as well as the Country J property in the wife’s name, properties in the Country HH and timeshare interests in Country L.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Chang & Su (2002) FLC 93-117; [2002] FamCA 156
Medapati & Revanka [2017] FamCA 244
Trang & Kingsley (2017) FLC 93-786; [2017] FamCAFC 120
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69

APPLICANT: Ms Medapati

RESPONDENT: Mr Revanka

FILE NUMBER: BRC 2961 of 2016

DATE DELIVERED: 3 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 8 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Balzamo

SOLICITOR FOR THE APPLICANT: Hunter Solicitors

THE RESPONDENT: No Appearance

Orders

Parenting

1. That the applicant mother shall have sole parental responsibility for the child born … 2006 (“the child”).

2. That the child shall live with the applicant mother.

3. That the respondent father is restrained from initiating contact with the child by telephone, Skype, FaceTime or other electronic means.

4. That the applicant mother shall provide the child with the respondent father’s postal address, his telephone number and his email address (such details to be provided by the respondent father to the applicant mother in writing sent to her solicitors’ address) and inform the child that he may contact the father by mail, telephone or email as he wishes.

5. That:

   (a)each of Mr Revanka born … 1964 and Ms Medapati born … 1962 be restrained and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child born … 2006 (male) from the Commonwealth of Australia;

   (b)The child be and is hereby restrained from leaving the Commonwealth of Australia;

   (c)it is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 21 September 2024; and

   (d)upon expiration of the period referred to in Order 5(c) and subject to any further Order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watchlist.

Property

1. That the following real properties (“the properties”) be sold:

   (a)B Street, Suburb A, Queensland (described as Lot …, Survey Plan …, Title Reference …);

   (b)D Street, E Town, Queensland (described as Lot …, Registered Plan …, Title Reference …);

   (c)F Street, Brisbane, Queensland (described as Lot …, Building Plan …, Title Reference …); and

   (d)I Street, Melbourne, Victoria (described as Lot …, Plan of Subdivision …).

2. That for the purposes of the sale of the properties pursuant to Order 6 of these Orders, to the extent that is necessary having regard to existing Orders of this Court:

   (a)the applicant wife, Ms Medapati, is appointed trustee for the purpose of sale, and is hereby authorised to do all things and sign all such documents necessary or desirable to enable the properties to be sold;

   (b)for the purpose of sale, the properties vest in the trustee for sale;

   (c)the trustee is hereby appointed to execute all deeds, documents and instruments in the name of the respondent husband and to do all acts necessary to give full force and effect to the terms of these Orders should any party fail to comply with the terms of these Orders;

   (d)the trustee may incur reasonable advertising expenses in respect of any sale or auction of any of the properties;

   (e)the trustee may retain a real estate agency to assist with the sale of any of the properties;

   (f)the trustee may appoint solicitors for the vendors for any sale of the properties;

   (g)the properties will be listed for public auction by a reputable agent and auctioneer chosen by the wife, and if not sold at auction then listed for a further auction after one month has passed with the terms of this Order to apply to any further auction; and the reserve price for any auction shall be determined by the applicant wife at the recommendation of the selling agent;

   (h)any of the properties may be sold by private treaty at a price determined by the applicant wife as might be recommended by the selling agent;

   (i)the proceeds of sale of any of the properties shall be distributed in the following priority and manner:

   (i)     to pay all costs of sale including advertising, commissions, and conveyancing;

   (ii)    to pay any outstanding outgoings over the property including local authority rates, utilities expenses, body corporate fees, and taxes;

   (iii)     to discharge any mortgage or encumbrance over the property;

   (iv)   to discharge arrears of the Mortgage No. … over the property at B Street, Suburb A, Queensland;

   (v)the balance to be paid to the applicant wife by payment to the trust account of her lawyers, Hunter Solicitors, with those funds being the sole property of the applicant wife;

   (j)a copy of these Orders may be provided to any mortgagee of the properties or any other persons noted in the Register as having an interest therein; and to any solicitors, real estate professionals, city council, or other persons as is necessary or desirable to assist with the sales of the properties;

   (k)these Orders authorise any party, and any of that party's agents, nominees, or successors, holding a mortgage or other encumbrance over any of the properties to provide any and all details of said mortgage or encumbrance including the current balance and the amount in arrears to the applicant wife and her solicitors; and

   (l)these Orders authorise the C Town City Council to provide any and all details of rates, water and sewerage charges, and any other charges including the current amount in arrears to the applicant wife and her solicitors and the wife's solicitors are hereby authorised to provide a copy of these Orders to the C Town City Council.

3. That:

   (a)in the event the property at B Street, Suburb A, Queensland is sold by or on behalf of the mortgagee of that property, any right title or interest of the respondent husband in the proceeds of sale of that property is transferred to the applicant wife; and

   (b)any payment to be made to or in favour of the respondent husband resulting from the sale of the property at B Street, Suburb A, Queensland is instead to be paid to the applicant wife by way of payment to the trust account of her lawyers, Hunter Solicitors, being the sole property of the applicant wife.

4. That within one (1) calendar month of the date of these Orders, the respondent husband shall transfer to the applicant wife any and all of his right, title and interest in the following assets and the applicant wife shall retain such property as her sole property absolutely, with the husband taking all steps necessary to have any caveat registered against any such property released forthwith:

   (a)the real property situated at Property 1, City P, Country J;

   (b)real property being Property 18, Country HH;

   (c)real property being Property 19, Country HH;

   (d)Motor car 1 registration …; and

   (e)Timeshare interests: Property 16, Country L.

5. That in the event that any proceeds of sale of any property listed in Order 6 above are held by the solicitors for the applicant wife in accordance with Order 5(e)(v)(E) of the Orders made 21 April 2017, those proceeds shall be distributed to the wife and retained by her as her sole property absolutely.

6. That for each of those assets listed in Order 9 of these Orders and in respect of any property otherwise retained by the respondent husband:

   (a)contemporaneously with the transfer or retention of the asset, the receiving party or party retaining the property will cause any registered mortgage or debt over that asset being transferred or retained that is in the name of the transferring or other party to be discharged; and

   (b)in the event the receiving or retaining party does not cause any registered mortgage or debt in the name of the transferring or other party encumbering that asset being transferred to be discharged pursuant to subparagraph 11(a) above, the parties shall cause that asset to be listed for sale by private treaty or at auction, at the discretion of the applicant wife, on reasonable terms with the receiving or retaining party to receive all net proceeds from the sale of that asset;

7. That the respondent husband shall within one (1) calendar month of the date of these Orders vacate any property to be transferred to the applicant wife including the property at Property 1, Country J and otherwise provide vacant possession to the wife of same.

8. That:

   (a)should there be any contingent or actual liability attached to either party hereto as a result of any act or omission by the other party and not previously disclosed in writing, the party whose act or omission occasioned such a contingent or actual liability will indemnify and hold indemnified the other party against any such contingent or actual liability and all sums, actions, proceedings, accounts, claims, demands, costs and expenses of any kind whatsoever relating to such contingent or actual liability; and

   (b)the respondent husband indemnifies the applicant wife against any liability arising from the wife's involvement in any Country J company directorship that she has held to this point in time and shall hold her indemnified against any such liability in the future arising out of any such previously held company directorship.

9. That the husband shall do all acts and things that are necessary to discontinue any matrimonial legal proceedings in Country J.

10. That the parties shall do all acts and sign all necessary documents to implement and carry out the terms of these Orders.

11. That in the event a party refuses or neglects to sign or execute and return a document within fourteen (14) days of presentation to them or a solicitor representing them, then pursuant to s 106A of the Family Law Act 1975 (Cth) a Registrar of the Brisbane Registry of the Family Court of Australia is appointed and empowered and directed hereby to sign or execute the same in the name of that party upon presentation of such document and an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

12. That the respondent husband shall pay the sum of $200,000 as a contribution towards the wife’s costs and outlays in these property adjustment proceedings.

13. That pursuant to the slip rule, Order 2 of the Orders made 28 June 2018 by Senior Registrar Spink be amended by deleting the date “7 July 2017” and in its place inserting the date “27 July 2017”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Medapati & Revanka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2961 of 2016

Ms Medapati

Applicant

And

Mr Revanka

Respondent

REASONS FOR JUDGMENT

1. These are my reasons for final Orders I am making in property adjustment and parenting Orders proceedings that have been before the Federal Circuit Court and this Court for nearly three years now. I have determined interim applications and given written reasons for judgment on at least four previous occasions in this matter.

2. On 22 November 2018, I declared that the husband had acted in contempt of the Court in ways that involved a flagrant challenge to the authority of this Court when he contravened Orders I had previously made, in five different ways. I had heard the contempt proceedings on 13 November 2018. Though I had previously refused the husband’s application to attend the contempt hearing by telephone from Country J, and had ordered him to appear in person, he did not appear in person on the day. Despite that fact, in the interests of justice, when the husband called in by telephone at the start of the hearing on the day, I allowed him to be heard and I read his affidavit of evidence-in-chief. I required counsel for the mother to cross-examine him by telephone and I allowed the husband to cross-examine the wife through the means of the telephone.

3. When I declared that he had acted in contempt of the Court I ordered him to attend and personally appear before the Court on 12 December 2018 so that I could hear submissions as to the consequences that should be imposed upon him for the contempt. He did not appear on that date. Consequently, I issued a warrant for his arrest.

4. I listed the final hearing of the property adjustment and parenting proceedings for hearing this year and I again required the husband to appear in person at that hearing. The hearing was adjourned once administratively, at the request of counsel for the wife, because of issues around counsel’s availability on the date originally set. The husband was informed of that adjournment and of the new date.

5. I have been informed by my Associate that email communication was received from the husband in which he informed the Court that he would not be attending the final hearing in person, attributing that, as he has in the past, to a determination of the Child Support Registrar to issue a notice that the husband not be permitted to leave Australia once he is here because of an outstanding child support liability. That liability is in excess of $40,000. I am informed that he also referred to the fact that I had previously issued a warrant for his arrest following the contempt finding as another reason for not coming back to Australia to appear at the hearing.

6. I was informed that the husband requested to appear by telephone at the final hearing. I had my Associate ensure the husband was advised by the Court that he needed to appear at the hearing or have a legal representative appear for him. In the end, when the matter was heard on 8 April 2019 the husband’s name was called three times outside the Court, but neither the husband nor a legal representative for the husband appeared. The husband had, however, filed an affidavit. I did read that.

7. The wife was represented by counsel and a solicitor at the hearing.

Parenting

1. The mother sought sole parental responsibility for the child.. She also sought an order that the child live with her (as he has been doing since separation in mid-2014) and that he spend no time with the father unless she agreed to that in writing. She also effectively sought the continuation of an order restraining the father from taking the child out of Australia and an order that extends the time for which the child’s name should remain on the Family Law Watchlist in force at all points of arrival and departure in Australia. The child’s name is on that list but that was to expire on a recent date.

2. The father opposes the mother’s application. He had told the Family Consultant that the boy should be taken from the mother’s care and put into foster care.

3. The evidence satisfies me that the child has not spent any time in his father’s care since around November 2016, despite Orders being in place, by consent, that have permitted supervised time between the child and his father. The father has, it seems, remained out of the country all of that time. The existing Orders also provide for telephone communication between the father and the boy each week. The evidence satisfies me that such calls have rarely occurred and when they have the boy becomes upset and usually wants to end the call after a short while.

4. A family report prepared by a Family Court in-house Family Consultant and dated 1 March 2019 was admitted into evidence at the hearing. The Family Consultant had seen and interviewed the mother and the child on 19 February 2019. She had also spoken with the father and interviewed him by telephone that same day. At the end of her report, the Family Consultant recommended that the boy lives with his mother and spends time with and communicates with his father at his own discretion.

5. The Family Consultant considered that the boy had robust views about his future parenting arrangements and that he is of, or nearing an age where “serious consideration should be given to his views and wishes”. She pointed out that the boy “clearly expressed an objection to re-establishing a relationship with his father.” She also said that “it was [her] overwhelming impression his opposition to seeing his father was primarily shaped by his own experiences of [his father].”

6. The Family Consultant observed that the boy perceives his father as an emotionally and physically abusive parent. That is completely consistent with the mother’s evidence that the father was abusive to her, to their now adult daughter and to their son. The Family Consultant did include in her report references to the stories the boy relayed to her, from his memory, of the abuse meted out by the father. Those stories were consistent with the mother’s evidence which I accept.

7. The Family Consultant said that when the views of the mother, the adult daughter and the son are all considered as a whole, they “give the impression of [the father] as a controlling, somewhat self-absorbed, and impulsive man, someone prone to perpetrating a pattern of violence consistent with coercive controlling violence.”

8. The first part of that last quote resonates with me, given my experiences with the father on each of the occasions that he has appeared in my Court, either in person or by telephone. I accept the opinion of the Family Consultant as soundly based.

9. The Family Consultant went on to opine that if that assessment was accepted, “it would not bode well for [the child] to be exposed to such a person.”

10. In any event, there is no evidence to support a finding that the father will travel to Australia in the future to re-acquaint himself with his son, and I am certainly not persuaded that ordering the boy to travel to Country J to spend time with the father is in the boy’s best interests. I am quite satisfied that if I did that, the father would not return him to Australia. As Country J is not a signatory to the Hague Convention, the boy would probably never be returned to this country in those circumstances.

1. That the father would propose that the boy should be taken from the mother’s care and put into foster care, highlights his lack of focus on the best interests of the boy and his principal focus on hurting the mother. Of course, I will not order that to happen. In fact, I do not have the power to do that, but I would not do that even if I did. I am quite satisfied that the father would have appreciated that it is not going to happen when he proposed it. That he nevertheless proposed it, does nothing more than demonstrate his arrogant churlishness, in my judgment.

2. There are really just a few issues to be determined in the parenting orders part of this case. Firstly, should the mother be given sole parental responsibility for the child and, secondly, what Order should be made in respect of the communication, if any, that the child should have with the father.

3. As for parental responsibility, I consider the answer to the question just posed to be clear. Though there is a statutory presumption in the Family Law Act 1975 (Cth) (“the Act”) that sharing parental responsibility equally between parents is in a child’s best interests, that presumption is rebutted in circumstances of family violence and, in any event, is overridden if the evidence supports a discretionary determination that equal shared parental responsibility would not be in the child’s best interests.

4. In this case, there is evidence, which I accept, that the father has been the perpetrator of family violence on the mother, the adult daughter and the son. Accordingly, the statutory presumption is rebutted. Even if that is wrong, the evidence clearly establishes that the father and the mother do not and cannot communicate about anything. Equal shared parental responsibility Orders require parents who share it to communicate about decisions involving major long-term issues (as defined in the Act), to make a genuine effort to jointly make such decisions and to actually make the decision jointly.[1] If they do not, then the decision cannot be made unilaterally by one parent. As such, that would require the mother to bring the matter back to Court every time the father would not agree with her on such a decision. Alternatively, if she made such a decision unilaterally, the father could bring a Contravention Application against her.

   [1]Family Law Act 1975 (Cth) s 65DAC.

5. I am satisfied, in the circumstances of this case, that it would most definitely not be in the child’s best interests to confer equal shared parental responsibility on both parents. I will not do that. I will give the mother sole parental responsibility. She must have that, in my judgment, given the boy will continue to live with her.

6. The mother seeks an order that the child not spend any time with the father unless she agrees to that in writing and that the father be restrained from initiating contact with the child by telephone, Skype, FaceTime or other electronic means. The Family Consultant recommended that the child spends time with and communicates with the father at his (the child’s) own discretion.

7. I am not persuaded that the mother’s proposal is more appropriate than the recommendation of the Family Consultant. I doubt that the mother would ever give written consent to the child spending time with the father.

8. I accept the recommendation of the social science expert, the Family Consultant. This boy, who is about to become a young teenager, has strong views about the future of his relationship with his father, seemingly soundly based in experience. I consider, in this particular case, that it is appropriate and in his best interests to accede to the boy’s own views and to follow the recommendation of the expert. I will make an Order that the boy should only spend time with and communicate with the father at his own discretion. The father will be restrained from initiating contact with the child but the child shall be given the father’s contact phone number, email address and postal address, so that he can contact him himself if he so desires in the future.

9. I will continue the Orders restraining the parents from removing the child from the country and leaving the boy’s name on the Family Law Watchlist for five more years. After that time, the boy will be old enough to determine for himself whether he wants to go and spend time with the father in Country J.

Property Adjustment

1. I am quite satisfied, I observe at the outset of this part of the process, that the husband has failed to comply with his obligations of full and frank disclosure. That was one of the failures for which I have already found him to have acted contemptuously and in flagrant disregard for the authority of this Court.

2. What the wife and the Court can be certain of, in respect of the property interests of the parties, is that there are the following properties in Australia and in Country J:

   (i)D Street, E Town, Queensland – estimated value $24,000 – outstanding rates $2,000;

   (ii)F Street, Brisbane, Queensland – estimated value $105,000 – outstanding outgoings $23,000;

   (iii)I Street, Melbourne, Victoria – estimated value $525,000 – mortgage encumbrance $310,000;

   (iv)B Street, Suburb A, Queensland – estimated value $550,000 – mortgage encumbrance $385,000, outstanding outgoings $8,000;

   (v)Property 1, City P, Country J – estimated value AUD1,500,000 – mortgage encumbrance AUD900,000.

3. In addition, the wife is in possession of a Motor car 1 that she estimates is worth $6,500.

4. Accordingly, the estimated net value of the real property and the motor car in Australia is $482,500 with the estimated net equity in the Country J property being AUD600,000.

5. Interestingly, all of the real property in Australia is registered in the husband’s name, but the real property in Country J is registered in the wife’s name.

6. The wife and the child live in the Suburb A property in Australia. The mortgagee has issued proceedings in the District Court of Queensland to take possession and exercise its power of sale as the mortgage has been in arrears for a long time now, despite interim Orders I made requiring the husband to keep making the repayments. I also made interim Orders that vested the other three Australian properties, plus another one on H Town in Region JJ that was also registered in the husband’s sole name, in the wife on trust for sale, with the net proceeds of sale to be used by her to pay down the mortgage on the Suburb A property.

7. The wife has managed to sell the H Town property but it realised only around $8,000 in net proceeds that was immediately contributed towards payment of the mortgage debt secured over the Suburb A property.

8. The husband and his new partner and their young child live in the Country J property. The evidence causes me to accept that in recent times he fraudulently tried to deal with the wife’s registered interest in that property but that the wife managed to prevent that from happening. He has since, apparently, registered a caveat over that property and instituted proceedings in a Country J Court in which he is asserting an interest in that property. The husband continues with those proceedings despite the existence of an anti-suit injunction I issued against him continuing proceedings arising out of the marital relationship in the Courts of Country J. Consequently, the wife has joined those proceedings and instructed lawyers to represent her interests in them. I know nothing more than that about those proceedings.

Other property interests

1. In earlier interim proceedings, the wife deposed to a belief that there were interests held by the husband in eight other Country J properties, five properties and two time share interests in Country K and the Country L, some blocks of land in Country HH, as well as a 36% interest in an enterprise in Country M.

2. In my earlier interim judgment published on 21 April 2017, I said the following in respect of the husband’s evidence about property interests:

   31.The husband attached a schedule to his affidavit filed in March 2017, in which he sets out assets and liabilities he asserts exist. The Australian properties referred to in the previous paragraph are included in that schedule (save for the [H Town] land). He also lists five properties in [Country J]. Two of those he describes as houses, two as apartments and one as land. He says one house is owned in the wife’s name and is worth $1,500,000 but encumbered by debt of $738,000. The other house, he says is jointly owned in equal shares with an unnamed third party. He says it is worth $1,500,000 and encumbered by debt of $1,293,000. One of the apartments is owned jointly in equal shares with an unnamed third party, is worth $180,000 and encumbered by $170,000 in debt. The other apartment is owned jointly in equal shares with an unnamed third party, is worth $150,000 and encumbered by $57,000 in debt. He says the land is an “abandoned property” but is worth $30,000 and encumbered by $18,000 in debt.

   32.The husband includes in the schedule an apartment in [Country K] said to be worth $150,000, encumbered by $95,000 in debt. It appears that he asserts it is registered solely in his name. He includes a house in [State X] said to be worth $150,000, and unencumbered by debt. It appears that he asserts it is registered solely in his name. He includes two blocks of land in the [Country HH] said to be worth $25,000 each and unencumbered. He asserts they are both registered solely in the wife’s name.

   33.The husband includes two timeshare interests in the [Country L] worth $5,000 each.

   34.The husband also includes three motor cars in [Country J] worth $40,000 in total, as well as two cars in Australia. They are a [Motor car 2] he says is worth $1,500 (which the wife says is in her possession and barely roadworthy) and a [Motor car 1] he says is worth $11,000, which the husband has stored somewhere unknown to the Court whilst he remains out of the country.

   35.The husband asserts credit card liabilities in Australia and [Country J] totalling $197,500. He asserts other liabilities in [Country J] to include an overdraft, personal loans, other property related loans and various creditors to total $599,333. Most significantly, the husband asserts that there are two other liabilities of $1,000,000 and $3,333,333 in respect of legal actions taken against him in [Country J]. He describes the liability of $1,000,000 as an “actual settlement sum” and says of the second and largest amount that there is an “appeal pending”. He asserts that the total liabilities exceed the total assets by $3,210,000.

   36.In the affidavit, the husband does respond to the wife’s assertions about their property interests. It is enough to say that he denies ownership of some of the properties the wife lists in her affidavit as properties owned in [Country J] and he deposes more particularly to matters relating to others. He does the same in respect of properties the wife listed in [Country K] and the [Country L]. As to the wife’s assertion that he owns shares in a dairy company in [Country M], the husband denies that he does own shares, relating that to being a “result of the changes in [his] financial affordability”. He says he is merely a business advisor not receiving payment for his consulting. The wife did attach to her affidavit filed 13 April 2017, a copy of a 2012 letter purporting to be signed by the husband subscribing to the purchase of a 26% share in the joint venture company established to operate the [Country M] business.

3. In April 2017, an interim injunction was issued restraining the husband from disposing of any of these property interests. When I determined that the husband had acted in contempt of the Court, that determination included findings of fact that he had sold a property in State X and a motor car in Country J in contravention of that injunction. The wife has also produced evidence strongly supportive of a finding that he has also sold the Country K property. The wife received no funds from any of these sales.

4. I have calculated, using that evidence that the husband adduced in 2017, that he was asserting then, at least, that there were property interests held outside of Australia (not including the Country J property registered in the wife’s name) by him or the wife worth $472,000.

5. The wife also adduced into evidence documents that, prima facie, support a finding that as at 17 October 2014, the husband had equity in the company operating the business in Country M valued at $339,000 and had also loaned the company $133,890 or perhaps even slightly more than that. It is totally unclear what has happened to any of that. I do not accept the husband’s evidence that he no longer has an interest of any sort in the company that runs that N farm.

6. In evidence also are the written Decision and Reasons for Decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 3 April 2018 on the determination of an application by the husband for a change of child support assessment. In paragraph 47 of that written decision, the Tribunal Member wrote:

   [The husband] stated that he had transferred over $700,000 into his Australian bank accounts since 2011. Child Support obtained Austrac records from April 2009 until April 2017 (pages 1068 to 1365). These showed that [the husband] transferred approximately $2.7m into Australia from January 2010 to November 2015. Excluding small transactions under $1,000, he only transferred out approximately $413,000 (as recorded by Austrac and including the $170,074 paid to [N] [the business in [Country M]]). Nearly $98,000 was transferred out from April 2016 to April 2017, the majority of these payments were to [Country L] accounts. There is a significant disparity between what was transferred in and what went out; it is not clear what these funds were used for in Australia as [the husband’s] Australian real estate holding do not reflect investments of over $2m.

7. In paragraph 49 the Member wrote:

   The Austrac records indicate that a significant amount of money was transferred to two different [Country L] accounts in 2016. It appeared to be accounts held by [the husband] as the references were ‘sustenance’ and ‘own’. However, [the husband] stated that he did not have accounts in [Country L].

8. In paragraph 52 the Member wrote:

   On 15 July 2015 [the husband] signed an ANZ loan application for a housing loan of $350,000 to partly finance the purchase of [an Australian property]. On the application he stated that:

   ·     [H]e earned $620,689 per annum and rental income of $7,704 per month.

   ·     He had net assets of $2,000,005 including property and shares valued at $2,155,000; and superannuation of $300,000; and two loans of $794,500.

   ·     He said he had credit cards with limits of $81,000 and an outstanding balance of nil.

9. Also adduced into evidence by the wife was a document bearing the date “2 June 2012” headed “Personal Networth Statement” of the husband. The document lists 46,148,000 worth of assets and liabilities of 17,496,683 and net assets of 28,651,317. At a current exchange rate of 1 equalling 0.342744 AUD, the net asset value in Australian dollars was listed as $9,820,056.

10. In the affidavit that the husband filed on 29 March 2019, he asserts that he has a judgment debt in Country J of 10 million plus costs and interest. He says that is about AUD3.1 million. He attached a document to the affidavit which he says is evidence of that judgment debt. The document he attaches is of three pages. The first two pages are in English. They purport to be a judgment of the High Court of Country J at City P listing the husband’s name as the Defendant and being dated 21 December 2017. The second page of that document says:

    a)The Defendant shall pay the Plaintiff the sum of 10,000,000.00;

    b)The Defendant shall pay interest at 5% per annum on 10,000,000.00 to the Plaintiff from 21.12.2017 until full realisation; and

    c)The Defendant shall pay costs of 50,000.00 to the Plaintiff subject to the payment of allocatur.

11. The third page is a copy of a document in a foreign language. It appears to be the second page of that same two page document but in a foreign language. It bears a stamp or seal on it – not an original seal but the copy of the document bearing a seal. It appears to reflect the same three things as set out in paragraph 44 above, though in a foreign language. The figures appear in the familiar Hindu-Arabic style that English and most European languages use.

12. Unfortunately, there is no evidence of any qualified translation of the foreign language document into the English language version provided by the husband. There is no first page of the document in the foreign language that identifies the names of the Plaintiff and the Defendant. There is no original certification of the judgment by a Country J High Court official. There is no other evidence that satisfies me that there is actually in existence a Country J High Court judgment debt of 10 million for which the husband is liable as the husband asserts. I have been satisfied before in the contempt proceedings that the husband has falsified and manufactured documents. I am not satisfied that he has not done so again. I do not accept that he owes this money as he asserts.

13. The husband also says that he is facing trial in Country J on a criminal charge of insider trading and that he has a contingent liability of about AUD1 million if he should lose. Again, though, the husband has not adduced, in admissible form, any evidence that persuades me that this is the truth.

14. In paragraph 12 of the affidavit he filed on 29 March 2019, he lists a multitude of interests in property that he then says have been variously sold with the proceeds repaying debt, repossessed, forfeited or have never belonged to him. He adduces no documentary evidence to support any of those assertions save for attaching a letter purporting to be from the Managing Director of the company that operates the Country M business in which it is asserted that the husband does not have any interest. I do not accept this document as evidencing the truth of what it purports to be or asserts in its contents.

15. The husband does also attach a spread sheet to his affidavit filed on 29 March 2019 in which he clearly concedes selling properties in Country K, the Country L and Country J in recent years, as well as motor cars in Country J. He also says, however, that he has credit card liabilities totalling just over $300,000. He adduced no documentary evidence with that spreadsheet or affidavit to support any of those assertions.

16. In short, I regret to say, I cannot accept the veracity of anything the husband says about his asset and liability position. He has proven himself to be dishonest and contemptuous of the process in this Court and this Court’s authority to make property adjustment Orders that are considered just and equitable.

17. I am, at least, satisfied that the husband has had access to a lot of property and funds in recent years that he has not honestly disclosed. I am satisfied that he probably has interests in property in Country J and in other countries that he has not disclosed in these proceedings and that I simply cannot identify or attribute value to. In all of the circumstances, consistent with authority, I take a robust approach to this determination of an appropriate property adjustment Order in favour of the wife that is just and equitable.[2]

    [2] See Weir and Weir (1993) FLC 92-338, 79,593; [1992] FamCA 69; Chang & Su (2002) FLC 93-117; [2002] FamCA 156 and Trang & Kingsley (2017) FLC 93-786; [2017] FamCAFC 120.

18. I am quite satisfied that it is just and equitable to make Orders that vest all of the known and identified property of the parties or either of them within Australia in the wife. I have previously appointed her as trustee to sell some of those properties and, pursuant to that Order, one property, at least has already been sold. I will Order that she be entitled to all of the identified properties in Australia, including the home in which she and the child live at Suburb A. The orders that the wife asks the Court to make, permit her to sell all of these properties and to retain all of the net proceeds of sale. The reality is that much of the proceeds of sale estimated to be around $470,000, will discharge her liability to her solicitors. The Orders will facilitate that. Indeed, they will also provide for any net proceeds of sale of the Suburb A property that is actually effected by the mortgagee exercising its power of sale to be paid to the wife through her solicitors and retained by her as her property.

1. The evidence is that the equity in the Country J real property that is registered in the wife’s sole name but in which the husband currently lives is around AUD600,000. I also consider it entirely just and equitable for the wife to retain that property as her sole property absolutely and to Order the husband to vacate it within a calendar month and to cause any caveat registered on the title to the property to be released forthwith. The wife will retain that property solely as her property subject to the existing encumbrance and she can do with the property whatever she determines appropriate. I am, however, uncertain as to what will happen with respect to this property following my Orders. I am concerned about the enforceability of an Order of this Court in Country J and acknowledge that, despite the anti-suit injunction previously made (that I will again reinforce in the Orders I now make) the husband still litigates in respect of this property in that country. Fortunately, the property is registered in the wife’s sole name. That fact and this judgment provide, in my view, a sound basis for optimism that the wife will retain that property in that country as the Orders of this Court provide for.

2. The wife has identified some other real properties in Country HH and a timeshare interest in Property 16 in the Country L that she seeks to retain. The timeshare interest is said, by both parties, to be worth approximately $5,000 and the real properties in Country HH, which the evidence suggests are registered in the wife’s sole name, were said by the husband in 2016 to be worth a total of $50,000. Bearing the concerns about the wife’s retention of the Country J property in mind and having regard to all of the other circumstances, including my satisfaction that the husband has wilfully not disclosed the property he retains and the total of the proceeds of sale of properties that he has previously sold in contempt of this Court’s Orders, I consider it appropriate and just and equitable for the wife to receive the Property 16 timeshare and the Country HH properties. The Orders will provide for that.

3. Such Orders will see the wife retaining property valued at around $1.1 million. Having regard to all of the evidence, my consideration of her contributions during the marriage and since the parties separated pursuant to ss 79(4)(a)-(c), along with consideration of all of the matters set out in ss 79(4)(d) – (g), including the matters set out in s 75(2), in so far as they are relevant, results in satisfaction that it is appropriate, just and equitable to make orders that provide for her to be entitled to the properties that she seeks.

4. However, for the wife it was also submitted that I should also order the husband to pay her another $500,000 by way of property adjustment. With respect to the wife and her legal representatives, I am not satisfied that such an order should be made. I am far from satisfied that it would ever be complied with or that it would be enforceable against the husband when not paid.

5. The Orders I will make will provide for any encumbrance on any property being retained by either party pursuant to these Orders or, in the husband’s case, simply by circumstance of him retaining it in any event, in so far as such encumbrance may be in the name of the other party not retaining the property, to be discharged so that the other party is relieved of liability therefore. The Orders will provide, in default, for any such property to be sold, at the discretion of the applicant wife, so that any such encumbrance is discharged, but with the net proceeds of sale to be retained by the person who is to retain the property.

6. The Orders will provide for the husband to vacate within one calendar month the Country J property that the wife is to retain as well as any other properties the wife is to retain. 

7. The Orders will provide for indemnities for each of the parties in respect of any contingent or actual liabilities already attached to either party as a result of something done or not done by the other party and not already disclosed in writing including, in so far as the wife is concerned, for any liability attaching to her as a director in Country J of any company to this point in time.

8. I will make a standard s 106A Order appointing the Registrar of the Brisbane Registry to sign documents on behalf of a party who refuses or neglects to sign any documents required to be signed in order to comply with the obligations imposed by the Orders I will make.

9. For the wife, it was also submitted that I should make a costs order against the husband. I may do that if I consider the circumstances justify departing from the general provision contained in s 117 of the Act that each party bears his or her own costs in proceedings under the Act. In this case, I consider that the husband’s failure to fully and frankly disclose his financial circumstances to the wife as well as his generally contemptuous attitude to this Court and its processes have resulted in the wife incurring legal costs significantly in excess of what she reasonably would have but for that conduct on the part of the husband. I consider a departure from the position of each party bearing his or own legal costs to be justified.

10. For the wife it was submitted that an order in the sum of $400,000 would be just. The wife has incurred costs of at least that amount in the proceedings to date. I accept that she has. The Court is empowered, as one of its options, to simply fix a figure ordered to be paid by the other party. In the circumstances, without having seen any itemising of bills of costs and being able to compare those with what is set out in the Scale of Costs provided for in the Family Law Rules 2004 (Cth), I am prepared to make an Order that the husband pay the sum of $200,000 by way of contribution towards the wife’s legal costs and outlays incurred in these property adjustment proceedings. Again, though, I am not optimistic that the wife will ever receive this amount.

11. Finally, an order is sought pursuant to the slip rule correcting an obvious typographical error as to the date of a previous Order in an Order of Senior Registrar Spink on 28 June 2018. The previous Order referred to was clearly one made on 27 July 2017 and not on 7 July 2017 as the Senior Registrar’s Order said. I will make the Order correcting it as sought by the wife to save her another application being made to Senior Registrar Spink and further costs being incurred.

12. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 May 2019.

Associate:

Date:  3 May 2019