Mukherjee & Sharma

[2022] FedCFamC1F 146

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mukherjee & Sharma [2022] FedCFamC1F 146

File number(s):

MLC 14204 of 2018

Judgment of:

MACMILLAN J

Date of judgment:

18 March 2022

Catchwords:

FAMILY LAW– CHILD – Best Interests – where at the conclusion of the hearing the parties consented to an order that they have equal shared parental responsibility and interim orders that the child live with the mother and spend time with the father from after school on Friday until the commencement of school on Monday each alternate weekend – where the mother proposes a continuation of the current regime before progressing to an additional night in 2024 – where the father proposes that the child spend five nights per fortnight with him –where the mother is unable to recognise the importance of the child’s relationship with the father and has difficulty distinguishing between her needs and those of the child  – where there are concerns about the mother’s capacity to provide for the child’s emotional and physical welfare – where the father has greater insight into the child’s health issues – where orders made for the child to spend 5 nights per fortnight with the father as recommended by the Family Consultant.

FAMILY LAW– CHILD – where the child is listed on the airport watch list – where the mother sought orders removing the child’s name from the airport watch list – where the father is concerned that the mother might relocate to India with the child – where the mother has no family in Australia – where the mother had previously purchased a one way ticket to India for herself and the child – where India is not a signatory to the Hague Convention – where orders made that the child’s name remain on the airport watch list until he turns 12.

FAMILY LAW– PROPERTY – where it is just and equitable to make orders adjusting the parties property interests – where the father and the mother were married for 7 years – where between 2014 and 2018 the mother remitted $186,050 to India – where the mother has not satisfactorily accounted for those funds – where the father seeks to addback the funds the mother remitted to India to the asset pool – where those funds are taken into account pursuant to s75(2) of the Act – where the father made greater financial contributions than the mother during the marriage – where the mother’s non-financial contributions were greater than the father’s – where the mother will have the primary care of the child – where the mother earns less than the father – where the mother wishes to retain the home in which she and the child live – where final property orders made allowing the mother the opportunity to purchase the father’s interests in the home – where the father will have an opportunity to purchase the mother’s interest in the home if she does not do so – where there is a 72.5/27.5 division in the father’s favour.

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CC, 65DD, 75, 75(2), 79(4).

Cases cited:

Dickons v Dickons [2012] FamCA 154

Donnell & Dovey (2010) FLC 93-428

Kowaliw v Kowaliw (1981) FLC 91-092

Mulvany & Lane (2009) FLC 93-404

Stanford v Stanford (2012) 247 CLR 108

Division:

Division 1 First Instance

Number of paragraphs:

98

Date of hearing:

6-8 December 2021

Place:

Melbourne

Counsel for the Applicant:

Mr Howe

Solicitor for the Applicant:

Joshi Lawyers

The Respondent:

Litigant in Person

ORDERS

MLC 14204 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MUKHERJEE

Applicant

AND:

MS SHARMA

Respondent

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	18 MARCH 2022

THE COURT ORDERS THAT:

1.All previous parenting orders be discharged.

2.The Father and Mother have equal shared parental responsibility for the child X born 2015 (“the child”).

3.The child live with the Mother.

4.The child spend time and communicate with the Father:

(a)From after school on Friday (or 3.30 pm if not a school day) until the commencement of school on Monday (or the commencement of school on Tuesday if Monday is not a school day) each alternate weekend commencing 1 April 2022;

(b)From after school on Wednesday (or 3.30pm if not a school day) until the commencement of school on Friday ( or 9.00 am on Friday if it is not a school day) each alternate week commencing 24 March 2022;

(c)For half of all school holidays as agreed but failing agreement the 1st half;

(d)On the child’s and Father’s birthdays, if the child is not otherwise with the Father, from the conclusion of school until 6.30pm or on a non-school day from 2pm until 6pm;

(e)From 5pm the day prior to Father’s day until the commencement of school the following Monday;

(f)In 2022, from 3pm Christmas Day until 5pm Boxing Day and each alternate year thereafter;

(g)In 2023, from 5pm Christmas Eve in 2021 until 3pm Christmas Day and each alternate year thereafter; and

(h)Otherwise as may be agreed by the parents in writing.

5.That the Father’s time in 4(a), 4(b) and 4(c) above be suspended:

(a)On the child’s and Mother’s birthdays from the conclusion of school until 6.30pm or on a non-school day from 2pm until 6pm;

(b)From 5pm the day prior to Mother’s day until the commencement of school the following Monday;

(c)In 2022, from 5pm Christmas Eve until 3pm Christmas Day and each alternate year thereafter;

(d)In 2023, from 3pm Christmas Day until 5pm Boxing Day and each alternate year thereafter;

(e)Otherwise as may be agreed by the parents in writing.

6.For the purposes of the child spending time with the father, changeover is to take place at school and if not a school day at McDonalds in Suburb E or as may be otherwise agreed by the parents in writing.

7.Each parent notify the other of all medical and dental appointments for the child and authorise any treating medical practitioners to liaise with the other parent and this order is deemed to constitute such authorisation.

8.Each parent notify the other as soon as practicable of any serious injury or serious illness suffered by the child and notify the other of the names and contact details of any treating practitioner and authorise any treating medical practitioners to liaise with the other parent and this order is deemed to constitute such authorisation.

9.The Mother forthwith authorise any school attended by the child to provide to the Father at his expense copies of all letters, reports, notifications and similar documents normally provided to parents.

10.Each parent be permitted to attend all school, sporting and extra-curricular events normally attended by parents.

11.The parents shall forthwith ensure that the child attends upon a paediatrician and a dietitian to address his obesity and shall equally share the costs of such consultations and shall follow all reasonable directions of the practitioners.

12.The father MR MUKHERJEE and the mother MS SHARMA born 1987 by themselves, their servants and/or agents, be and are hereby restrained from removing the child X born 2015 (male) from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the child on the Airport Watch List in force at all points on arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the child attains the age of 12 years.

13.As soon as practicable the Court forward a copy of this order to the Australian Federal Police.

14.The parties use the “Our Family Wizard” app to communicate in relation to parenting matters and the welfare of the child.

15.The Mother shall forthwith provide a mobile telephone number on which she can be reached in case of emergency to the father and provide any new mobile telephone number within 24 hours of that number being changed and the Mother be and is hereby restrained from blocking the father’s number on her mobile telephone.

16.The father and the mother be and are hereby restrained from denigrating the other parent or their family in the presence or hearing of the child or causing or permitting any other person to do so.

Property Orders

17.By 4.00pm on 17 May 2022, the mother pay to the father $42,854 (“the payment”)

18.That contemporaneously with the payment the mother and the father shall do all acts and things and sign all documents necessary to:

(a)Transfer to the mother all of the father’s right, title and interest in the real property situated at and known as F Street, Suburb E, Victoria (“the Suburb E property”) at the mother’s sole expense (“the Suburb E transfer”); and

(b)Contemporaneously with the Suburb E transfer the mother shall do all acts and things and sign all documents required to discharge the mortgage registered over the Suburb E property and thereafter the mother shall indemnify the father in respect of any and all other liabilities affecting the property including but not limited to any outstanding rates. 

19.In the alternative in the event that the mother has not made the payment to the father by 4.00pm on 17 May 2022 pursuant to paragraph 18 of these orders as follows:

(a)By 4.00pm on 1 July 2022 the father pay to the mother $51,285 (“the alternative payment”)

(b)That contemporaneously with the alternative payment the father and the mother shall do all acts and things and sign all documents necessary to:

(i)Transfer to the father all of the mother’s right, title and interest in the Suburb E property at the father’s sole expense ;

(ii)Contemporaneously with the Suburb E property transfer the father shall do all acts and things and sign all documents required to discharge the mortgage registered over the Suburb E property and thereafter the father shall indemnify the mother in respect of any and all other liabilities affecting the property including but not limited to any outstanding rates as and from the date of transfer; and

(iii)The mother shall vacate the property. 

20.In the event that the father has not made the alternative payment to the mother by 4.00pm on 1 July 2022 pursuant to paragraph 19 of these orders the father and the mother do all acts and things necessary for the Suburb E property to be forthwith placed on the market for sale by public auction, by an agent to be agreed and in default of agreement as nominated by the President of the REIV, at a reserve of not less than $560,000 or as may be otherwise agreed and with a settlement period to be agreed and in default of agreement 60 days and the sale proceeds to be applied in the following manner and priority:

(a)Firstly, to pay all costs (including any legal costs incurred in relation to the conveyance), commissions and expenses of the sale;

(b)Secondly to repay and discharge the mortgage and all other encumbrances encumbering the Suburb E property;

(c)The balance to be divided as to:

(i)70% to the father less the sum of $23,043 which is to be paid to the mother out of the father’s share; and

(ii)30% to the mother plus the sum of $23,043 which is to be paid to the mother out of the father’s share

21.Pending the sale of the Suburb E Property:

(a)The mother shall have the right to occupy the property and shall be liable for and pay the mortgage, the home insurance and all rates as they fall due;

(b)Neither party shall encumber the property; and

(c)The parties hold their respective interests in the property on trust pursuant to these orders.

22.By 4.00pm on 17 May 2022 the father and the mother do all acts and things necessary to transfer to the father all of her right title and interest in the property at T Street, S Town, City G, R State, India to the father at the sole expense of the father.

23.That unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

(a)Each party be solely entitled to the exclusion of the other to all property (including choses in action) owned by or in the possession of such party as at the date of these orders;

(b)Each party forego any further claims they may have to any superannuation benefits belonging to or earned by the other;

(c)Insurance policies remain the sole property of the owner named therein;

(d)Cash in any joint accounts is to be divided equally between the parties;

(e)Any monies or liabilities held in any bank or credit accounts remain the sole property of the owner named in whose name the accounts are held;

(f)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(g)Each party remain responsible for any debts in that party’s name; and

(h)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

24.That all extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

MACMILLAN J

1. The parties in this case were married in India, living together and separately in both India and Australia during the 7 years of their marriage. The way in which the parties managed their finances was a significant feature of this case and as observed by the Family Report writer Ms B they “were unable to reach a fair and practical agreement about the monetary issues between them” a trend she opined “seems to continue even through the current proceedings”. This ongoing financial dispute is central not only to the property proceedings but has unfortunately influenced the way in which the parties have conducted themselves as parents and the litigation with respect to the parenting arrangements and welfare of their only child.

   BACKGROUND

2. The father was born in 1981 and is 40. The mother was born in 1987 and is 34. Both parties were born in India. The parties met online in or around January 2011 while the father was working in the United Kingdom and the mother was in India. Both the father and the mother subsequently relocated to City G, India, where they became engaged. The parties commenced cohabitation and were married in 2011. The father became an Australian citizen on 17 November 2018 and has renounced his Indian citizenship. The mother is a permanent resident of Australia.

3. The one child of their relationship, X (“the child”) was born in 2015 and is now 6 years of age.

4. Both the parties are professionals. The father is currently employed as a manager for J Company earning approximately $195,000 per annum and has the ability to earn a $20,000 bonus if he meets the company’s set targets. The mother works for K Company and earns approximately $92,000 per annum. The father currently resides in a rental property in Suburb E with the paternal grandparents. The mother resides at F Street, Suburb E (“the Suburb E property”). Neither of the parties have re-partnered.

5. Following their marriage the father and the mother were employed in City G, the father for U Company and the mother for V Company. The mother obtained employment and moved to City W to live with her parents in mid-2012. In July 2012 the father’s employer transferred him to Australia.

6. In or around February 2013, the father asked his employer to allow him to return to India for three to four months. The father lived in City G with the mother after returning to India. In or about July 2013 the father returned to Australia and the mother returned to City W to live with her parents. In October 2013, the parties were granted permanent residency in Australia and in January 2014, the mother joined the father in Australia. In May 2014, the mother obtained employment at Y Company. She has been employed by K Company since approximately 2017.

7. Following the child’s birth in 2015 the mother and the child returned to India. The mother and the child lived in India with the mother’s parents before returning to Australia between April to June 2016 and for three weeks in January 2017. They returned to Australia to live in or around February 2017.  

8. In March 2018 the father purchased the Suburb E property. It is the father’s case that the parties separated under the one roof in June 2017 and that although they both moved to the Suburb E property they continued to live separately in that property. Although the mother deposed that the marriage continued until the date upon which she was served with the Application filed by the father on 12 December 2018, she also said in cross-examination that she and the father had been living separately under the one roof during 2017. Although in my view it is not of great relevance for the purposes of the matters I am required to determine I prefer the husband’s evidence and am satisfied that the parties separated in June 2017 thereafter living separately under the one roof.

9. On 7 December 2018, the father initiated proceedings in the Federal Circuit Court of Australia seeking orders, inter alia, that the parties have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father from 6.00pm on Friday until the commencement of childcare on Monday each weekend and that the child’s name be placed on the airport watch list. On 12 December 2018, shortly after filing his application, the father moved out of the Suburb E property and travelled to India. He returned to Australia on 10 February 2019.

10. On 12 February 2019 Judge Hartnett, as she then was, made orders that the child live with the mother and spend time with the father each Wednesday from 5.00pm until 8.00pm, and from 7.00pm each Friday until 8.00pm each Saturday 8.00pm and placing the child’s name on the Airport Watch List. It was the father’s evidence that he was concerned that he and the mother having separated finally the mother might return to India with the child without his consent.

11. The mother and the child remained living in the Suburb E property and on 21 March 2019 Judge Hartnett made orders by consent that she have sole use and occupation of that property. Orders were also made by consent that the mother be responsible for the mortgage repayments, outgoings and rates and that the parties attend a conciliation conference.

12. On 23 July 2020, Judge O’Sullivan made interim consent orders requiring the parties to file and serve a Notice to Admit Facts prior to attending a mediation with the Victorian Bar. Although the father filed two Notices to Admit Facts and the mother filed a response to each of them she did not have legal representation and did not respond directly to the questions. In my view it would not be safe to assume or infer that the mother was admitting those matters to which she had not directly responded and in these circumstances they were of little assistance in the determination of this matter.

1. On 12 November 2020 an order was made for the preparation of a Family Report pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (“the Act”) and the matter was adjourned for final hearing before Judge O’Sullivan on 16 August 2021.

2. On 6 August 2021 Judge O’Sullivan transferred the matter to the Family Court of Australia noting that the parties had not complied with the trial directions and that it was not suitable for an electronic hearing. On 6 September 2021, I made orders for the parties to attend family dispute resolution and listed the matter for final hearing before me on 6 December 2021.

3. At the conclusion of the trial, on 7 December 2021, I made the following orders :

   FINAL ORDER

   THE COURT ORDERS BY CONSENT THAT:

   1.The parents have equal shared parental responsibility for the child, [X] born […] 2015 (“the child”).

   INTERIM ORDER

   THE COURT ORDERS BY CONSENT THAT:

   2.Until further order, the child live with the Mother.

   3.As and from 26 December 2021 the orders made 12 February 2019 be and are hereby discharged.

   4.Until further order, the child spend time and communicate with the Father as follows:

   a.from 12.00 pm Friday, 31 December 2021 until 12.00 pm Monday, 3 January 2022;

   b.from 12.00 pm Friday, 14 January 2022 until 12:00 pm Monday, 17 January 2022;

   c.from 5.00 pm Sunday, 23 January 2022 until 9:00 am Tuesday, 25 January 2022;

   d.commencing 4 February 2022 from the conclusion of school Friday until the commencement of school the following Monday and each alternate weekend thereafter; and

   e.otherwise as agreed by the parties in writing.

   5.The parties forthwith download and install the “Our Family Wizard” app and communicate thereby in respect of parenting matters.

   6.Until further order, for the purposes of the child spending time with the Father, changeover take place if not at school occur at McDonalds in [Suburb E].

   7.All extant applications for final orders be otherwise adjourned to a date to be fixed for judgment.

   8.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   MATERIAL RELIED UPON

4. The father relied upon the following documents in support of his case:

   (1)Amended Application filed 18 February 2019;

   (2)Trial affidavit filed 19 July 2021;

   (3)Amended Financial Statement filed 19 July 2021;

   (4)The father’s outline of case filed 2 December 2021;

   (5)Asset and liabilities schedule filed 9 February 2021; and

   (6)Notice to Admit filed 24 August 2020 and 10 November 2021.

5. The mother relied upon the following documents in support of her case:

   (1)Amended Application filed 2 December 2021;

   (2)Trial affidavit of the mother filed 2 December 2021;

   (3)Financial Statement filed 20 July 2021;

   (4)The mother’s case outline filed 2 December 2021; and

   (5)Response to Notice to Admit filed 2 September 2020 and 22 November 2021.

6. Both parties relied upon the Family Report dated 20 July 2021 prepared by Family Consultant Ms B (“Ms B”).

7. The standard of proof in these proceedings is the balance of probabilities. In determining whether it is satisfied to the requisite standard the Court must have regard to the following matters:

   (a)The nature of the cause of action or defence;

   (b)The nature of the subject-matter of the proceeding; and

   (c)The gravity of matters alleged.

8. Both the father and mother were cross examined. Although the mother who appeared in person did not conduct a lengthy cross-examination of the father, it can be difficult to be cross-examined by a former partner and I am satisfied that the husband did his best to answer her questions and was an honest witness. His answers were generally straightforward and precise and he was able to make concessions when it was appropriate to do so. This is consistent with Ms B’s observations that the father “seemed straightforward and precise in explaining the financial matters and the current disputed issues.”  

9. The mother on the other hand was not a good witness. Ms B said in her report as follows:

   It was noted that throughout the assessment, [the mother] remained vague and obscure about several topics, in particular about the financial disputes between the couple, which was central to the demise of her relationship with the father. At times [the mother] seemed to have difficulty comprehending the communication, being slow –moving and dense in her responses. At other time she seemed to cleverly try to divert the issues that need clarification from her by talking about the father’s alleged follies rather than being direct or assert her views with convincing arguments.

10. She said further that the mother “seemed either not to take the disputed issues seriously or did not wish to speak openly with the writer. She was totally vague, slippery and evasive about issues that need resolving.”

11. Ms B’s description of the mother is consistent with my observations of her evidence. However I would go somewhat further as I am satisfied that the mother did understand the questions she was being asked, avoided answering those questions that she perceived might not be helpful to her case and was reluctant to make concessions even when it was appropriate to do so and the answer, based upon other evidence, was quite obvious. One example was when it was put to the mother that when the child was injured in June 2020 although she said she had told the father she said that she had not told him the name of the doctor who had treated the child because “he knows it, it’s the same doctor where we used to go even when we were together”. She then said that “…he didn’t ask me” and that she “had no intentions to keep it a secret…it was a given.” This was just one of many examples. In all of the circumstances where there is a dispute between the evidence of the father and the mother I prefer the father’s evidence.

12. Relevantly for the purposes of the parenting orders I am being asked to make, the mother’s evidence also demonstrated her significant lack of insight into the needs of the child and how that impacts upon her capacity to provide for his emotional and psychological needs.

13. Both parties cross-examined Ms B albeit the mother’s cross-examination was quite brief and was mostly directed to Ms B’s observations of the mother’s focus on financial issues. She also asked her questions which appeared intended to challenge Ms B’s opinion about the child’s weight and associated health issues. I found Ms B to be a considered and cogent witness able to reflect upon the matters in her report. There was no real challenge to either her observations or recommendations and I accept her evidence. 

    LEGAL PRINCIPLES

14. The principles and objects which underpin Part VII of the Act are set out in s 60B as follows:

    (a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

15. Pursuant to s 60B(2) of the Act the principles underlying those objects, unless contrary to the child’s best interests, are as follows:

    (a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) Parents should agree about the future parenting of their children; and

    (e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

16. The paramount consideration when the Court is making parenting orders is the welfare of the child the subject of the proceedings. In determining what orders will be in the child's best interests the Court must consider the matters in ss 60CC(2) and (3) of the Act. When considering those matters the Court must place greater weight on the need to protect the child from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence (s 60CC(2A) of the Act). The Court is not otherwise required to consider the primary and additional considerations in any particular order or place any greater weight on any particular consideration albeit the weight and the significance of each of them will inevitably depend upon the particular circumstances of each case.

17. In Donnell & Dovey (2010) FLC 93-428 the Full Court of the Family Court of Australia (“the Full Court”) (at [103]) described the s 60CC considerations as:

    …a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another.

18. In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed as follows:

    76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.

    77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…

    (Emphasis in Original)

19. At the conclusion of the hearing on 7 December 2021 I made a final order by consent that the parties have equal shared parental responsibility for the child. That being the case pursuant to s 65DD of the Act the Court is required to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with both parents and if not equal time, substantial time.

    PARENTING

20. Albeit that the mother had great difficulty identifying the positive aspects of the child’s relationship with the father, the parties agree that the child should live with the mother and that he should be spending time with the father. As Ms B observed in her report the child “enjoys a positive relationship with both parents.” In all of the circumstances I am satisfied that the child will benefit from having a meaningful relationship with both the father and the mother.

21. The issue in this case is not whether the child should be spending time with the father but whether he should be spending five nights per fortnight with the father as recommended by Ms B during her evidence or as the mother proposes from after school on Friday until the commencement of school on Monday each fortnight which is a continuation of the time she agreed to on an interim basis at the conclusion of the hearing.

22. Both the father and the mother amended their proposals during the course of the hearing. The father, in response to the evidence of Ms B reducing the number of nights, he proposed the child spend with him from 6 to 5 nights per fortnight. At the commencement of the hearing it was the mother’s case that the child’s time with the father should continue in accordance with the interim orders made by Judge Hartnett on 12 February 2019. Although the mother also changed her position the time she proposed was less than recommended by Ms B both in her report and during her oral evidence.

23. Ms B referred in her report to the allegations made by both the father and the mother of emotional abuse and put downs during the marriage. On 14 March 2019 the mother filed a Notice of Risk in which she referred to there being family violence and psychological abuse of both she and the child. The mother did not provide particulars and instead referred to her affidavit filed the same day in which she set out in some detail her allegations of financial verbal and psychological abuse. However the mother did not cross examine the father about these matters and not surprisingly, given her own case that the child should be spending time with the father, they were not the focus of her case during the hearing before me. The allegations are denied by the father. I am satisfied in these circumstances that this is not a significant issue for the purpose of the matters I am required to determine in this case.

24. In the Family Report, Ms B expressed her concerns for the child’s health, both short and long term, noting that he spoke “lots of words but mostly with slurred and stumbled speech”, was “physically overweight” and “breathed heavily during his movements”.

25. Ms B’s concerns about the child were not limited to his weight and it was her opinion that he was in need of “a comprehensive assessment of his physical, emotional and cognitive abilities.” In cross-examination she described the mother as being “in denial” and as “over indulgent”.

26. Although the mother ultimately agreed during the hearing that the child should be assessed, she struggled to concede that his weight was an issue. The mother deposed to cooking healthy meals for the child and it was her evidence that pre Covid 19 he played soccer and went to L Group which involved a full body work out and said that soccer had recently resumed. Although the mother referred in general terms to other physical activities that evidence lacked detail. Her evidence did not leave me with great confidence that she either understood the need for the child to be physically active or that she would facilitate or promote such activity.

27. The mother said that she had sought medical advice in relation to the child’s weight and that his doctor had told her that any sudden reduction in his weight could impact upon his growth. The mother sought to rely upon the child’s patient health summary which was printed on 6^th December 2021 seemingly to demonstrate that his weight was not a problem. The patient summary shows that the child weighed 22 kilos in March 2019 but that by March 2020 he weighed 51 kilos having gained 30 kilos over a period of approximately 12 months. The mother did not otherwise adduce any evidence from the child’s medical practitioner with respect to either his weight or his general health. Although it seemed to be the mother’s case that this was normal weight gain for a child of his age I accept Ms B’s evidence about the child’s weight and his presentation generally and in these circumstances share her concerns about his health.

28. I also accept Ms B’s evidence that the father “seemed more insightful about the urgency of the situation than the mother, and he has assured that if [the child] resides with him on weekday, he will be able to promptly attend to these issues. The father is also considering planning structured physical/sports activities for [the child]. Such as daily swimming and tennis sessions.” Ms B ultimately recommended that the father promptly make an appointment for the child to attend upon a paediatrician and a dietician. This was predicated on her recommendation that the child spend more time with the father because although it was her opinion that he was more aware of the issues she also said that he was “unable to intervene effectively” due to the child’s limited time in his care. I am satisfied that the mother having received Ms B’s report could have arranged those appointments for the child who was primarily in her care. However, I am also satisfied that at the time of the hearing the child had not attended the recommended appointments. Further I do not accept that consulting a dietician in India as the mother said she had done, even if she had adduced evidence from that dietician, was sufficient to address these issues. In my view these matters give rise to significant questions about the mother’s capacity to provide for the physical needs of the child.

29. Although the mother was critical of the father for travelling to India in late 2017, her inference being that he was not interested in a relationship with the child or his welfare, I am satisfied that he has, often in difficult circumstances and in the face of the mother’s lack of co-operation, done all he could to participate in making decisions in relation to the child and to spend time and communicate with the child.

30. It is the father’s evidence that the mother has failed to keep him properly advised in relation to the child’s health the issues. This is notwithstanding her case that there should be an order for equal shared parental responsibility. The father deposed to there having been a number of occasions when he found out about medical appointments after the fact. They included the following:

    (d)17 March 2019 - Dr M;

    (e)14 October 2019 – Dr N;

    (f)4 November 2019 – Dr N;

    (g)In or around 19 June 2020.

31. Although the mother reluctantly agreed that she had taken the child to the doctor on a number of occasions and not told the father either in advance or provided him with the doctors details after these appointments it was her evidence that she hadn’t needed to do so because the father was aware of the child’s regular doctor. In my view the mother should have provided the father with this information and answered his requests for information about who had treated the child irrespective of whether or not he knew the identity of the child’s general practitioner.

32. The father was also critical of the mother for not having kept him properly informed in relation to the child’s attendance at childcare and school including changing the child’s day care and enrolling him in school without his consent. The mother conceded that although she had advised the child’s school that she and the father were separated, she had not listed the father as an emergency contact or told the school that he wanted to be involved in the child’s schooling. The father’s evidence was that he learnt the name of the school from the child. The mother also conceded that she had not told the father about the child’s parent teacher interviews. The mother’s excuse for not doing so was that they would have had “big arguments”.

33. In cross-examination the mother somewhat reluctantly conceded that she had blocked the father’s mobile phone number preventing him from calling or texting her in an emergency. It was her evidence that he could send her an email. Although orders have now been made requiring the parties to communicate using “Our Family Wizard” app the fact that the mother had blocked the father’s number clearly supports his case with respect to the mother’s failure to communicate with him in relation to the child or facilitate communication in relation to his welfare.

34. The mother was cross-examined about what she saw as the positive aspects of the father’s parenting and whether he was a good father figure for the child. Her response in summary was that the father had more money and could provide the child with more luxuries and that he would take him out and buy him “expensive stuff”. When she was asked if the child loved the father she said she thought he did but that he is still a child and is confused and tends to concentrate on the things the father is getting him. Finally she questioned the definition of love when asked whether the father loved the child.

1. When the mother was cross-examined about the prospect of the child spending additional time with the father she said that she was concerned that for him to do so could affect his emotional and mental health and his education. She also said that if it was left to her “she would never let him go for a single night” and that she feels bad every night he is away from her. I am satisfied that the mother is unable to separate her needs from those of the child which raises questions about her capacity to provide for his emotional and psychological wellbeing. Although I have some sympathy for the mother in circumstances where she has no family support in Australia, ultimately it is the welfare of the child that is the paramount consideration.

2. Notwithstanding that the mother proposed that there be an order for equal shared parental responsibility and agreed to the child spending more time with the father I am satisfied, having heard her evidence that she does not appreciate the importance of the father in the child’s life and even if she did not actively exclude him from the child’s life she did not go out of her way to include him nor seemed to appreciate the importance of doing so. I am satisfied that remains the case.

3. Ms B described the child as “parrot[ing]” and mimicking what the mother says, i.e “Dad does not let me go on an aeroplane to India”. However she also said that that “...he did not seem to have any disconnection with his father or over attachment with his mother.” Although she acknowledged that there needed to be some balance having regard to the child’s attachment to the mother she preferred the father’s proposal over that of the mother as it would allow the father to have greater input, in particular, in relation to the child’s health issues. It was Ms B’s evidence that the mother’s proposal for 3 nights per fortnight until he turns 10 and thereafter 4 nights per fortnight was not “realistic”. In any event even if orders are made in the terms proposed by the father the child will continue to live primarily with the mother. I am satisfied that increased time with the father will not impinge on his relationship with the mother.

4. I am also satisfied that the orders the father seeks are less likely to lead to the institution of further proceedings. It is reasonable to infer that if the Court were to make the orders the mother proposes that at some later date the father would seek orders that the child spend additional time with him. Although that cannot be ruled out even if the Court makes the orders the father proposes, it is in my view less likely.

5. As the parties have consented to an order that they have equal shared parental responsibility the Court is required to consider the child spending equal time with each of them or if not equal time substantial time with each of them. I accept Ms B’s evidence that the child needs a home base and am satisfied that it would not be in his best interests to spend equal time with the father and mother. However, having had regard to all of the s 60CC considerations, to the extent that they are relevant to this case, and as highlighted by Ms B the child’s health issues, I am satisfied that the father’s proposal which provides for the child to spend substantial time with him will best promote his welfare. Although Ms B did say that 6 nights might be feasible her recommendation, as ultimately adopted by the father, was for 5 nights per fortnight.

6. The interim orders made at the conclusion of the final hearing made provision for holiday time. This will have introduced the child to spending longer periods with the father. I am satisfied that as recommended by Ms B the child should spend equal time with the father and mother during school holidays. I am also satisfied that this should include an extended period with each parent during the Christmas school holidays. By the time this occurs the child will be a year older and will already have spent half of the 2022 school term holidays with the father. The mother, although initially reluctant, did not oppose the child spending half of the Christmas school holidays with the father commencing in 2022 as long as they shared Christmas Day.

7. The father set out his proposed orders in detail. The mother did not have legal representation and her proposal was in those circumstances less detailed. I am satisfied that it is likely to assist these parties moving forward to have detailed orders so that their obligations pursuant to the orders with respect to the child are clear. I am satisfied in these circumstances that it is in the child’s best interests to make more detailed orders in the terms proposed by the father.

   WATCH LIST ORDER

8. In his Amended Initiating Application filed 18 February 2019 the father proposed that he and the mother be restrained from removing the child from the Commonwealth of Australia and that the child’s name be placed and remain on the watch list for 3 years. The father and mother were both restrained from removing the child from the Commonwealth of Australia and the child’s name was placed on the watch list on 12 February 2019 and has remained on the watch list since that order was made.

9. In his case outline the father proposed that the child’s name remain on the watch list until he turns 15, a further 8 years albeit he did not indicate whether he was proposing that both he and the mother should be restrained from removing the child from the Commonwealth of Australia or just the mother. The mother sought an order removing the child’s name from the watch list.

10. When the father commenced these proceedings in the Federal Circuit Court of Australia it was his evidence that the mother had purchased a one way ticket to India for herself and the child and that an order placing the child’s name on the watch list was necessary to prevent the mother removing the child from the Australia without his consent. It was Ms B’s evidence that during her interview with the child he told her that he did not wish to sleep at the father’s home because “Dad does not let me go on an aeroplane to India” and her opinion was that this was “clearly a coached expression.” At the very least this suggests that the mother has discussed wanting to travel to India with the child.

11. It is the mother’s case that she wants to be able to visit her family in India with the child. Whilst that is totally understandable given the history of this matter I agree with Ms B’s observation that the father’s concern that the mother might relocate to India with the child is plausible, and in my view a reasonable concern given that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Although I have some sympathy for the mother’s desire to visit India in circumstances where she has no family in Australia she will in any event be able to travel to India even if the child cannot. I note that the father’s parents have been living with him in Australia for some time and although the mother did not adduce any evidence as to the possibility of her parents travelling to Australia that may also be possible. Ultimately it is the child’s welfare that is paramount and I must weigh up the likely disruption to the child’s life generally and in particular to his relationship with the father, if as the father fears the mother were to relocate to India with him.  The order will in any event not preclude the mother making an application for permission to take the child to India subject to appropriate safeguards or the father and mother being able to agree upon suitable travel arrangements.

12. In all of the circumstances I accept Ms B’s recommendation and I propose to make an order to that the child’s name remain on the watch list until he turns 12. Although the mother was not seeking a watch list order in my view an order should be made in the same terms as the previous order restraining both the father and mother removing the child from the Commonwealth of Australia.  

    PROPERTY

    LEGAL PRINCIPLES

    IS IT JUST AND EQUITABLE TO MAKE PROPERTY ORDERS?

13. Section 79(4) of the Act provides as follows:

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

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

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

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

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

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

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

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

14. In Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) the High Court considered the requirements of s 79 of the Act in and said at para [37]-[40]) as follows:

    [37] First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property…The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

    [38]Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed (25) that a power (26) to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”…

    [40]Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down…

15. The Full Court in Stanford further held (at [41])

    [41]Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot (s 71A) make a property settlement order under s 79. But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

16. As the High Court said in Stanford there are many cases in which the requirement that it be just and equitable to make orders adjusting party’s interests in property is readily satisfied. This is such a case. It is common ground that the parties in this case kept separate bank accounts during their marriage and apart from the payment of child support have maintained separate finances since separation. However, of particular significance in terms of whether it is appropriate to make orders, the mother continues to reside in the jointly owned Suburb E property to the exclusion of the father. I am satisfied that it is appropriate in these circumstances to make orders adjusting the party’s property interests and bringing their financial relationship to an end.  

17. Whilst the Court must consider, as a precondition to making an order for property settlement, whether it is just and equitable in the circumstances of the particular case to make such an order, the Full Court has also made it clear that the just and equitable requirement is not a threshold issue as such but rather one that permeates the entire process in which the Court is engaged.

18. Upon the Court being satisfied that it is just and equitable to make orders adjusting the parties property interests, that power must be exercised “in accordance with legal principles, including the principles which the Act itself lays down...” (Stanford at [38]). Those principles are set out in s 79(4) of the Act. Section 79(4)(e) of the Act is a reference to the matters in s 75(2) of the Act in so far as they are relevant to the particular case, broadly speaking taking into account both the present and anticipated circumstances of the parties. Having considered the relevant factors in s 79(4) of the Act, the Court may make such order as it considers appropriate.

19. The first step in this process is to identify the asset pool.

    THE ASSET POOL

20. By the time they made their final submissions the parties were largely in agreement as to the  makeup of the asset pool and its value save and except in relation to whether the $186,050 the mother acknowledged having remitted to India between 2014 and 2018 and the interest it earned should be added back to that pool. There was also some dispute in relation to funds in bank accounts in the father’s name in particular his post separation savings which he submitted should not be included in the asset pool. Although at the commencement of his case the father was also seeking to add back the $64,750 withdrawn by the wife from her accounts post separation his counsel abandoned this aspect of his case during his final address.

    Addbacks:

21. Although the mother admitted in her trial affidavit that she had remitted $186,050 to India between 2014 and 2018, I am satisfied that there was some force in the father’s complaints as to the mother’s failure to provide full and frank disclosure in relation to her finances generally and in particular in relation to the application of the funds she had remitted to India. Ultimately the issue is not whether the money was remitted to India but what happened to those funds and on that basis whether it is appropriate to add them back to the asset pool.

22. Counsel for the father prepared a schedule of the interest earned on the mother’s O Bank account into which she paid the $186,050 she remitted to India based upon the bank statements for that account. Those bank statements are in evidence before me and show interest of approximately AUD $12,809. Although the mother was not cross-examined about the interest, those bank statements speak for themselves and it is any event not so much a question of how much interest was earned but how the Court should deal with it in the context of this case.

23. Although counsel for the father included the balances provided by the mother for her various accounts in the balance sheet he prepared and relied upon for the purposes of his final address, during cross-examination he asked the mother how much she still had in her “bank account in India”. Although he did not specify which of the mother’s Indian accounts in circumstances where the money remitted from Australia was paid into her O Bank account I take it that he was referring to that account. The mother’s evidence was that she still had between $11,000 and $14,000. This is not consistent with the figure of $2,341 in the mother’s Financial Statement filed 20 July 2021 or her case outline. Nor does it sit comfortably with the assertion in her Response to the Asset and Liability Schedule filed 24 March 2021 that she could not disclose the current balance because the account had been inactive for 2 years. I have very little confidence in the mother’s evidence about how much of the $186,050 she still has and am satisfied that to do justice to the father I should at least include the mother’s O Bank balance at the higher end of her estimated range. In all of the circumstances I am satisfied based upon the mother’s evidence that I should include a figure of $14,000 rather than the $2,341 in the mother’s Financial Statement.

24. In her affidavit filed on 28 July 2021 the mother deposed that the funds she had transferred to India had been “utilized for the needs of the house, myself and the child” and not wasted. During cross-examination the mother also said that she used to buy things in India and have them sent to her workplace in Australia because the husband was controlling and she could not eat and could not go out. Apart from the fact that these were not matters the mother put to the father it was her evidence that sending money overseas “gradually become a habit” and that “getting parcels from India became a habit”. She also said that during the 1 ½ years she lived in India between December 2015 and her return to Australia in February 2017 she used the funds “to buy things in India” such as “vegetables, clothes to wear, footwear” as well as to “travel…around India,….shopping for the wedding [of her brother] for my son for myself some gifts for the wedding here and there”. Although she agreed that at the time of the purchase of the Suburb E property in March 2018, when she said she could not afford to contribute to the deposit, there was $100,000 in her account in India, as previously referred to it was her evidence that at the time of the hearing she had approximately “$11,000 to $14,000 AUD” remaining. The mother did not adduce any evidence as to what she had done with the interest earned on the funds in her O Bank account.

1. It is the mother’s evidence that she was in receipt of income during all of the relevant years, that after her return to India in December 2015 she lived with her parents and, as conceded in cross-examination, received monthly payments of $1,000 AUD per month from the father. The mother also conceded, although somewhat indirectly by reference to fact that she had paid for child care for the child, that the father had paid for the mortgage and the other household costs after her return to Australia with the child and paid her $500 per month.

2. Counsel for the husband relied upon the principles set out in Kowaliw v Kowaliw (1981) FLC 91-092 and submitted that the mother had in remitting funds to India minimised the “effective value of the matrimonial assets”. In circumstances where the mother says that in March 2018 she had $100,000 in her O Bank account I am not satisfied having heard her evidence that the she either needed or applied the funds remitted to India or the interest to meet her living expenses or those of the child in India or Australia. In these circumstances there is some force in Counsel for the husband’s submission. However, in circumstances where the funds remitted to India also included payments made to the mother by the father for her support, it is not clear how much of those funds the mother applied to meet her living expenses and not possible to determine with certainty how much of those funds or the interest the mother may still have at her disposal, I am not satisfied that it would be just and equitable to addback the balance of the $186,050 and interest back to the pool. I am satisfied however that this is a matter that can and should be taken into account pursuant to s 75(2)(o) of the Act.

3. The mother disputed the balances in the father’s ANZ and P Bank accounts. The mother included in her balance sheet the figure of $9,715 in the husband’s ANZ account which she had taken from his Financial Statement filed 19 July 2021. The father’s evidence was that he had transferred approximately $8,000 to his P Bank savings account and that the current balance in his ANZ account was $1741.84. I accept the father’s evidence with respect to his bank accounts and the fluctuating balances in those accounts since filing his Financial Statement.  

4. It was also the mother’s case that the $70,379 in the father’s P Bank Account should be included in the pool. The father’s case was that this was his post separation savings and should be excluded from the pool. The mother cross-examined the father about the sum of $12,141 paid into his ANZ account when he left U Company and then transferred to his P Bank account, being part of the $70,379 which he said was post separation savings and should not be included in the asset pool. It was the mother’s case that the $12,141 was referable to pre not post separation employment. The father acknowledged that he had been paid his long service leave entitlements when he left U Company. Although counsel for the husband submitted that this money should be excluded from the asset pool I am satisfied that long service leave entitlements accumulated during the relationship should be accounted for and propose to include the value of the father’s entitlements in the asset pool. However I also accept that the balance of the funds in the father’s P Bank account come from post separation income. I am satisfied, in circumstances where the mother has been in full time employment and has not been required to account for her income post separation, where the father has been paying child support and the mother has had the continued use of the of the Suburb E property, that it would not be just and equitable to include the father’s post separation savings in the asset pool.

5. The mother also cross-examined the father about rental income she said he had received for the City G property which she said had not been accounted for. The mother’s case was that the husband had received rental income of approximately $19,909. It was the father’s evidence that the property was rented in December 2017 until approximately 2019, that there was a period when it was vacant due to the Covid 19 pandemic and that it was rented again “five to six months back” for $300 per month out of which he had to pay $100 per month for the equivalent of a body corporate fee. The father also gave evidence that the rental income is paid into his C Bank Account before it is transferred into his D Bank Mutual Fund which is already included in the asset pool. In all of the circumstances I am satisfied that the father has accounted for the rental income he has received.

6. I am not satisfied that there is any evidence to support the mother’s assertion that the father has failed to disclose funds in either India or Australia or that he has taken any steps to minimise the asset pool or recklessly dissipated funds that would otherwise have formed part of that pool.

   THE TOTAL ASSET POOL

7. On this basis the asset pool available for division is as follows:

ASSET	Ownership	VALUE
Suburb E Property	Joint	$520,000 ($425,861) Equity = $94,139
Father's City G Property	Father	$100,000
ANZ ending in #…16	Mother	$4,119
ANZ ending in #…57	Mother	$1,212
Q Bank Account #...89	Mother	$1,577
O Bank #...42	Mother	$14,000
ANZ ending in #...27 & #...03	Father	$1,742
D Bank India	Father	$106
C Bank India	Father	$907
P Bank	Father	$12,141
Investment D Bank Mutual Funds	Father	$14,161
H Company of India	Father	$420
Motor Vehicle 2	Father	$18,750
Motor Vehicle 1	Mother	$9,700
TOTAL NET ASSETS		$272,974
SUPERANNUATION	OWNERSHIP	TOTAL
Super Fund 1	Wife’s	$50,758
Super Fund 2	Husband	$97,355
TOTAL NET ASSETS INCLUDING SUPERANNUATION		$421,087

PROPOSALS

1. The father proposed that there should be a 10 % adjustment in his favour having regard to his greater contributions and a 10% adjustment in the wife’s favour having regard to the s 75(2) factors resulting in an equal division of the parties’ property interests. This was based upon the $186,050 and interest of $12,000 having been added back to the asset pool which I have determined I should not do. The father further submitted that if the $186,050 is not added back there should be a 10% adjustment in his favour having regard to his greater financial contributions and that there should be a further adjustment in his favour of 26% taking into account the various competing s 75(2) factors. The father’s case being that a significant adjustment is required in his favour to take into account the amount remitted to India by the wife in the context of a limited asset pool.

2. Although the mother proposed a 70/30 split in her favour albeit she was unable to specify to what extent that was based upon their respective contributions or the s 75(2) factors. She did however submit that she had contributed more because she “sacrificed” her income and career. The split the mother proposed was based upon the $186,050 not having been added back to the pool. It was the mother’s case that if the Court added back the $186,050 as proposed by the father she should be entitled to 85% of the net asset pool. This proposal similarly did not distinguish between contributions and s 75(2) factors.

   PROPERTY ORDERS

   Contributions

   Financial Contributions  

3. It is common ground that at the commencement of cohabitation both parties were in full time employment. It is the father’s case that his financial contributions were significantly greater than those made by the mother during the relationship and in particular that the mother did not make any financial contribution to the acquisition of either the City G or Suburb E properties. The father’s evidence is that he used his personal savings to purchase the City G property in 2012 and thereafter used his income to pay the mortgage repayments, rates and outgoings, discharging the mortgage over the City G Property in 2017.

4. Although the mother did not dispute that she had minimal savings at the commencement of the relationship it was her evidence that she received a gift from her family upon marriage which she said was put towards the purchase of the City G property. The mother did not adduce any evidence as to the amount of the alleged gift from her family and did not cross-examine the father about this issue. In these circumstances I am not satisfied that this was money she contributed to the City G property.

5. The father also deposed that in 2014 the mother had purchased a property in India which she had not included in the asset pool. It was his evidence that the mother told him that the property had been purchased for approximately AUD$16,000. The mother denies owning any property in India it being her evidence that the property was purchased by her uncle and although it was intended as a gift her uncle had not given it to her. When the mother was asked in cross-examination whether her uncle was still holding the property for her she said “not at the moment” and that the uncle “could have sold it.” The mother’s evidence about this issue was quite ambiguous and somewhat evasive and in circumstances where I prefer the father’s evidence I am satisfied that there is very real possibility that the mother’s uncle is holding this property for her. 

6. The mother did not dispute that the father also paid the deposit, made the mortgage repayments and paid the rates and outgoings for the Suburb E property until orders were made on 21 March 2019 for her to have sole use of the property and to meet the mortgage repayments, rates and outgoings. The mother acknowledged that when the father had asked her to contribute to the deposit she had not done so even though she had $100,000 in her account in India at the time. It was her evidence that she could not afford to do so because that she said was all the money she had.  

7. The mother’s evidence was however that she had contributed to the child’s expenses including paying for childcare and his clothing and toys. Although the father conceded that the mother had paid for child care and had occasionally bought groceries it was his case which I accept that he had otherwise been financially responsible for the child’s needs and the household expenses including the mortgage and rates when the parties were living under the one roof. There is also no dispute that when the mother first came to Australia, prior to the child’s birth, the father paid the mother AUD$500 per month, that when she returned to India with the child the father paid her approximately AUD$1,000 per month and that when she returned to Australia in February 2017 he paid her AUD$500 per month.

8. I am satisfied that the mother otherwise retained her income for her own purposes and that in these circumstances, albeit he did earn more than the wife, the father made a greater financial contribution than the mother during the marriage.

   Non-Financial Contributions

9. There was also a dispute as to the non-financial contributions made by the parties both to the care of the child and the household generally. Clearly when the mother was living in India with the child she of necessity had greater responsibility for the physical care of the child as she has had since the parties separated. However for the reasons previously referred to I prefer the father’s evidence over that of the mother and accept that during the time the parties lived together they shared responsibility for the child’s care and the household generally. I am satisfied however that overall the wife has made a greater contribution to the welfare of the family and in particular the child of the marriage.

10. It is important, particularly so in this case to recognise that assessing the party’s respective contributions is not a mathematical exercise and it is important not to focus only on the parties financial contributions. The Full Court said in Dickons v Dickons [2012] FamCA 154 at [24] in relation the assessment of contributions as follows:

    …There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

11. Although the father tended to focus on the financial contributions and the mother tended to focus upon her contributions to the welfare of the family I am required to consider and weigh up all of their contributions. It is not unusual for one party to earn more than the other and on that basis make a greater financial contribution and it does not necessarily follow that those contributions will be afforded greater weight that the contributions that may have been made by the other party. However I am satisfied that in this case the father’s greater financial contributions require some recognition. This is particularly so in circumstances where the mother had access to substantial funds to the exclusion of the father whilst having the benefit of his greater financial support. In all of the circumstances I am satisfied that the parties respective contributions be assessed at 55%/45% in the father’s favour. This is a difference of $27,297 in dollar terms between their respective entitlements based upon their contributions.

    Other Considerations Section 75(2)

12. The father is 40, is in good health and is employed as a manager earning approximately $195,000 per annum. His employments package includes a $20,000 bonus subject to him meeting set targets. The mother is 35 and is similarly in good health. She is employed full time as a professional and earns approximately $92,000 per annum. I have had regard to the fact that the father earns more than the mother and likely in the future has a greater income earning capacity.

13. Although I am proposing to increase the time the child spends with the father it is still the case that he will be living primarily with the mother and that she will bear greater responsibility for both his financial support, albeit she is in receipt of child support, and his physical care during the time he lives with her. The mother will continue to receive child support as assessed. Although in the mother in her minute of proposed orders sought an order that the father share the child’s school fees on an equal basis there was no application for a departure from the child support assessment. I have also taken into account that the mother wishes to retain the Suburb E property in which she and the child have lived since it was acquired in 2018.

14. The father has more in his various bank accounts than the mother and save for his long service leave entitlements will have the benefit of his post separation savings. However in my view the mother has not satisfactorily demonstrated what she has done with the funds that she remitted to India or how much she has left of those funds. Although it is impossible to make a finding as to the exact amount the mother may have I am satisfied on the balance of probabilities that the she is likely to have more than between $11,000 and the $14,000 she said in cross examination was in her O Bank account. I am satisfied that the fact that the mother has had the benefit of the funds she remitted to India and the interest they earned and not adequately accounted for them is a matter that should be taken into account.

15. The parties each have superannuation entitlements however they are both young and their entitlements will not be accessible for many years. Although the husband proposed a superannuation splitting order of $23,298.50 equalizing the parties superannuation entitlements there was no evidence before me as to the party’s contributions to superannuation since separation and although counsel for the father referred in his opening address to a letter which demonstrated that the trustee of the father’s superannuation fund had been afforded procedural fairness that letter is not in evidence before me. In an event in all of the circumstances I do not propose to make a superannuation splitting order or include the party’s respective superannuation entitlements in the asset pool for the purposes of division but have taken into account that the father’s entitlements are greater than the mother’s albeit it will be many years until he is able to access those entitlements. In my view allowing the mother the opportunity to retain the Suburb E property for herself and the child, which she wishes to do, is more important in this case. Equalising the superannuation entitlements would likely make that more difficult.  

16. The mother has had the benefit of the Suburb E property since separation whereas the father has had to pay rent. However since February 2018 the mother has paid the mortgage and other outgoings. The father for his part has had the benefit of the rental income from the City G property albeit I am satisfied that the income he has received is relatively insignificant, not of the magnitude the mother asserts and is accounted for in the asset pool. I am also satisfied that the mother may have an interest in a property in India albeit it would not appear to be of significant value.

17. I do not accept the mother’s submission that there should be an adjustment in her favour pursuant to s 75(2) of the Act having regard to her having sacrificed her career or in relation to the her case that the father should have saved more in the last 7 years. Firstly according to her own evidence the mother has been in employment throughout the marriage and although she now earns less than the father there is no evidence based upon which the Court could conclude that she has sacrificed either her career or her income. There is similarly no evidence to suggest that the father could or should have saved more and to the contrary the evidence suggests that he shouldered the greater financial burden during the relationship.

18. Although the father initially proposed an adjustment of 10% in the mother’s favour having regard to the matters in s 75(2) factor as previously referred to that was based upon the $186,050 being added to the pool. In the alternative the father proposed that having regard to the matters in s75(2) and in particular the $186,050 remitted to India by the mother and the interest it earned there should be an additional adjustment of 26% in his favour on top of his contribution based entitlements. Although I accept that the mother is likely to have used some of the funds she remitted to India to support herself and the child her evidence in relation to this issue was far from satisfactory and $186,050 and the interest of $12,809, is a very significant sum in the context of the net value of the assets in this case. However it is also the case that even if the mother had not remitted the funds to India and they now formed part of the asset pool the mother would have some entitlement to some of those funds.

19. In all of the circumstances I propose to make a further adjustment of 15% in the father’s favour. This is an additional $40,946 in dollar terms and $54,594 when combined with his contribution based entitlements. The overall difference between the entitlements of the father and mother in real terms is $109,189.

    EFFECT OF THE ORDERS

20. The father initially sought orders permitting him to retain the Suburb E property but ultimately agreed that the mother should be given the first opportunity to do so. I propose to adopt that course. On the basis of my findings the father will retain the City G property, his car, and the money in his personal bank accounts and the mother will need to pay him $42,854 within 60 days. Thereafter if she does not do so the father will have a further 60 days to buy out the mother’s interest in the property. In order to do so he will need to pay the mother $51,285. If he does not do so the property will be placed on the market for sale and the net proceeds of sale divided as to 72.5% to the husband and 27.5% to the wife. The father will also need to pay the mother $23,043 out of his share of the net proceeds of sale to take into account the different value of the property and giving effect to the 72.5%/27.5% division of their property in favour of the father.

1. I am satisfied that these orders in these terms will give effect to a just and equitable division of the parties property interests. 

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan.

Associate:

Dated:       18 March 2022