Nand & Chandana
[2023] FedCFamC2F 1573
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nand & Chandana [2023] FedCFamC2F 1573
File number(s): PAC 4533 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – PARENTING – Where father has no meaningful relationship with the children – where mother gives evidence that she will relinquish the children if the father has any involvement in her or the children’s lives – where father declines to make an application that the children live with him – allegations of family violence – mother’s distress and grief regarding the breakdown of the relationship – whether it is in the children’s best interest not to have a relationship with the father in circumstances where he does not pose an unacceptable risk of harm to the children
FAMILY LAW - CHANGE OF NAMES – Where mother seeks for the children’s names to be changed – where change would remove any reference to paternity
FAMILY LAW - PROPERTY – Small asset pool – limited evidence relating to property adjustment – equal contributions – 75(2) adjustment
FAMILY LAW - SPOUSAL MAINTENANCE - Where mother seeks spousal maintenance for 4 years – where there is no evidence of the father’s capacity to pay spousal maintenance
FAMILY LAW – COSTS – Where mother seeks costs as part of final relief – No submissions made in support – Each party bear own costs
Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 60CG 61DA, 65DAA, 72, 79, 75(2), 117 Cases cited: Banks & Banks [2015] FamCAFC 36
Bevan & Bevan [2013] FamCAFC 116
Brown & Brown [2007] FamCA 151
Chapman & Chapman [2014] FamCAFC 91
Chapman & Palmer [1978] FamCA 86
Hanas & Jolaha (No. 4) [2019] FamCA 483
Isles v Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
M & M (1989) 166 CLR 69
Maroney & Maroney [2009] FamCAFC 45
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Russell & Russell [1999]FamCA 1875
Sander & Hearn [2012] FMCAfam 812
MS & PS [2006] FamCA 588
Scott & Danton [2014] FamCAFC 203
Slater & Light [2011] FamCAFC 1
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 169 Date of last submission/s: 14 November 2023 Date of hearing: 15-16 March 2023 & 13-14 November 2023 Place: Parramatta Counsel for the Applicant: Ms Gibbons Solicitor for the Applicant: Pannu Lawyers Counsel for the Respondent: Mr Duc (15-16 March 2023) & Mr Antill (13-14 November 2023) Solicitor for the Respondent: Ark Law Lawyers Counsel for the Independent Children's Lawyer: Ms Hayward Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers ORDERS
PAC 4533 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NAND
Applicant
AND: MR CHANDANA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
CHANGE OF NAME
1.The child X (male) born in 2016 shall be henceforth known as X Chandana-Nand.
2.The child Y (male) born in 2019 shall be henceforth known as Y Chandana-Nand.
3.The applicant (mother) Ms Nand is authorised to apply to the Registrar of Births Deaths and Marriages that:
(a)The child registered as X (male) born in 2016 be now registered as X Chandana-Nand; and
(b)The child registered as Y (male) born in 2019 be now registered as Y Chandana-Nand.
4.Pursuant to section 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the children’s names in the form specified in Order 3 herein.
5.The Court directs that the applicant forthwith serve a sealed copy of this order upon the Registrar of Births Deaths and Marriages.
PARENTING
6.The applicant have sole parental responsibility for the children, X Chandana-Nand born in 2016 and Y Chandana-Nand born in 2019 (“the children”).
7.The children live with the applicant.
8.The applicant is restrained by injunction from:
(a)Denigrating the respondent or a member of his family to or in the presence or hearing of the children (or either of them) and from permitting or allowing any other person from doing so, including via social media; and
(b)Discussing these proceedings with or in front of the children (or either of them) and from permitting or allowing any other person from doing so, including via social media.
9.The applicant is permitted to apply for and renew passports or travel documents for the children to travel overseas without consent being first obtained by the respondent in accordance with section 11 of the Australian Passports Act 2005 (Cth).
10.Pursuant to section 65Y of the Family Law Act 1975 (Cth) (“Act”) the applicant is permitted to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.
PROPERTY
11.Pursuant to section 79 of the Act, within 7 days of these Orders, the parties shall do all acts and things and sign all documents necessary to direct that funds of $9,266.69 only, from the total $38,247.64 currently held in the Pannu Lawyers Trust Account, be distributed to the respondent or at his direction by way of property adjustment order.
12.That within 28 days from the date of these Orders, the respondent shall refinance in his sole name or repay in full the loan over the Motor Vehicle 1 and shall forthwith indemnify the applicant in respect of such loan.
13.Except as otherwise provided herein, the parties are declared the sole owner at law and in equity of any other assets, money, chattels or superannuation interest in their name or possession.
14.Except as otherwise provided in these Orders, the parties be solely liable to the exclusion of the other for any debt, past or future, standing in their respective name.
15.The respondent is directed to forthwith notify the Child Support Agency of the property adjustment orders made herein such that all arrears currently outstanding may be satisfied by the Child Support Agency (in the manner the agency deems appropriate).
16.Pursuant to section 106A of the Act a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is authorised to execute any document or do any such thing as is required to give effect to these Orders in the event of a default of a party to execute such document or do such things as is necessary under these Orders.
SPOUSAL MAINTENANCE
17.Order 1 made on 12 November 2021 is discharged.
18.Pursuant to section 72 of the Act, within 7 days of these Orders, the parties shall do all acts and things and sign all documents necessary to direct that funds totalling $28,980.95 in the Pannu Lawyers Trust Account be distributed to the applicant by way of lump sum spousal maintenance.
19.The application for spousal maintenance is otherwise dismissed.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of competing property and parenting applications as between the applicant mother, Ms Nand (“applicant”), and the respondent father, Mr Chandana (“respondent”).
The parties married in 2009, separated in March 2019 and divorced in mid-2021. There are two children of the relationship, X (“X”) born in 2016, and Y (“Y”) born in 2019.
Neither X nor Y have spent any time with the respondent since separation. They have no relationship with him to speak of. The applicant, for reasons which are explained, is extremely resistant to the children having any relationship with him.
The property pool is very modest, and it is difficult to understand why a pragmatic and practical approach has not been taken by the parties in respect of settlement of the property dispute. Instead, significant costs have been incurred by both parties, likely to the detriment of their children.
PROCEDURAL HISTORY
On 28 August 2021, the applicant commenced these proceedings by filing an Initiating Application seeking property adjustment orders only. In his Amended Response to Initiating Application filed 28 February 2022, the respondent sought property and parenting orders. Since 13 April 2022, the applicant has also sought parenting orders.
The matter was initially listed for hearing on 15 and 16 March 2023. The matter was part-heard and listed for further hearing on 13 and 14 November 2023. The Court reserved judgment on 14 November 2023.
The Parties’ Cases
The applicant relies upon the following documents:
(a)Case Outline filed 14 March 2023;
(b)Amended Initiating Application filed 13 April 2022;
(c)Affidavit of the applicant filed 21 February 2023;
(d)Financial Statement of the applicant filed 21 February 2023; and
(e)Exhibit 2, being the respondent’s application for finance and payslips.
In relation to property orders, the applicant effectively seeks an order that she receive 100% of the funds held on trust for the parties, being the only significant remaining asset of the marriage, and that the respondent pay her maintenance in the amount of $300 per week for a period of 4 years.
In relation to parenting, the applicant seeks, inter alia, orders that she have sole parental responsibility for the children, that they live with her, spend no time with the respondent and that she be permitted to change the children’s names.
The respondent relies upon the following documents:
(a)Case Outline filed 14 March 2023;
(b)Affidavit of the respondent filed 14 March 2023; and
(c)Amended Response to Initiating Application filed 10 March 2023.
In relation to property orders, the respondent seeks property adjustment orders as to 60% to the applicant and 40% to him.
In relation to parenting, the respondent seeks, inter alia, orders that the applicant have sole parental responsibility for the children, that the children live with the applicant and that the children spend time with him as follows:
(a)Supervised time each alternate Saturday or Sunday for two hours for an unspecified period;
(b)Thereafter, unsupervised time each alternate Saturday for 4 hours for a period of eight weeks;
(c)Thereafter, unsupervised time for 7 hours each alternate Saturday or Sunday for eight weeks;
(d)Thereafter, unsupervised time on each alternate Saturday and Sunday for 7 hours for eight weeks;
(e)Thereafter, unsupervised time each alternate Saturday 10:00am to Sunday 6:00pm and half of school holidays; and
(f)On Special Occasions.
During the second tranche of the final hearing, the respondent informed the Court that he was intending to move to Victoria and that he was now seeking that the children spend time with him about once per month. The respondent sought to formally amend the orders he was seeking. Leave was not granted.
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:
(a)Case Outline filed 10 March 2023;
(b)Family Report of Ms C dated 24 January 2023;
(c)Proposed Final Orders handed up during the hearing; and
(d)Exhibit 1, namely extracts from the ICL’s Tender Bundle, being intake form, report and letter from B Contact Service and notes of applicant’s psychologist dated 14 July 2023 and 25 October 2023.
By the end of the hearing, the ICL sought, inter alia, orders that the applicant have sole parental responsibility for the children, that the children live with the applicant and that, unless agreed to by the parents, the children spend no time with the respondent. The ICL also sought orders that the applicant is authorised to change the children’s names in the manner sought by her.
RELEVANT BACKGROUND
The applicant is 39 years of age, and the respondent is 37 years of age.
The applicant and respondent met in Sydney in 2008 and married in 2009.
The respondent gave the applicant gold jewellery at the time of their marriage. The applicant says it is worth $30,000 and the respondent says it is worth $52,000. There is no objective evidence of value, and each party says it is in the other’s control.
In 2016, the applicant gave birth to X. He is presently 7 years old.
From early to mid-2017, the applicant says that the respondent at times held X upside down by his ankles.
In or about mid-2017, the applicant left the matrimonial home with X. She says she did this to flee family violence. The applicant returned in or about early 2018.
In or around late 2018, the applicant and respondent purchased the former matrimonial home in Suburb D for the sum of $600,000 (“Suburb D Property”). The respondent says that he worked long hours to save up the deposit for the Suburb D Property. The applicant says they equally contributed to the deposit.
In 2019, the applicant gave birth to Y. He is presently 4 years old.
The parties separated on a final basis in or around March 2019, and the respondent left the former matrimonial home.
During the marriage the applicant says:
(a)She paid for day to day living expenses and bills;
(b)She paid for childcare expenses;
(c)The respondent was a drunk;
(d)The respondent repeatedly chased her around the house with a knife;
(e)The respondent watched pornography including, at times, in front of X;
(f)The respondent abused X;
(g)The respondent lied to her about his ‘clan’ and his surname;
(h)The respondent only married her to obtain Australian citizenship;
(i)The respondent frequently threw things at her; and
(j)The respondent slapped her 3-4 times a year.
During the marriage the respondent says:
(a)He was the main income earner, supported the family financially and paid for all bills and expenses;
(b)He assisted the applicant in raising the children;
(c)He sent large amounts of money to the applicant’s family in Country E;
(d)The applicant withdrew approximately $85,000 from their joint account between 2014 and 2017;
(e)The applicant looked after and monitored their bank accounts and spending;
(f)The applicant abused and threatened him; and
(g)He had a very close bond with the children.
The respondent says that from the end of the relationship, the applicant would not facilitate the children spending time with him.
In early 2019, a provisional Apprehended Domestic Violence Order (“ADVO”) was taken out against the respondent for the protection of the applicant, which become a final order and expired in early 2021.
On 15 December 2019, the applicant applied for child support and says the respondent took about 12 months to commence payment.
In late 2020, the respondent says the applicant sent him abusive emails.
In late 2020, the applicant says the respondent came to her home, threatened to kill her and accused her of selling her body. The applicant says the police told her the respondent was later arrested.
In or about late 2020, the applicant commenced seeing her psychologist Mr F. These appointments have continued to the present. The applicant says she has been diagnosed with post-traumatic stress disorder (“PTSD”).
In mid-2021, the applicant attended the respondent’s workplace. The police were called and the applicant was charged with stalk/intimidate and a provisional ADVO was taken out against her for the protection of the respondent. This ADVO was due to expire in late 2023.
On 28 August 2021, the applicant commenced these proceedings.
In late 2021, the stalk/intimidate charges against the applicant were dismissed pursuant to the Mental Health Act 2007 (NSW). A psychologist report was provided during the course of those proceedings.
Since separation, the respondent has only seen the children a few times. It is unlikely that they would have any independent recollection of him save for their supervised interactions with him for the preparation of the Family Report.
From around late 2022, the applicant recommenced working as a health care worker on a casual basis, earning an income of $1,300 each fortnight after tax, and is studying part-time. The applicant lives in rental accommodation and estimates her monthly rental expenses at $420 per month. Post separation, from September 2019, the application claims that she was required to pay the mortgage repayments after the respondent stopped payments.
The respondent lives in rental accommodation in Suburb G and works as a transport worker on a casual basis, earning an income of approximately $350 each week. However, the respondent indicated at hearing that he intends to move to Victoria to join his partner in the near future. The respondent claims that he paid the mortgage after he left the former matrimonial home until June 2019.
On 16 March 2023, the Court made interim orders that the children spend time with the respondent at a contact centre for 2 hours each fortnight. This time never occurred. The reasons for this are explained below.
VIEWS OF THE CHILDREN AS EXPRESSED IN THE FAMILY REPORT DATED 24 JANUARY 2023
X was aged 6 and Y was aged 3 at the time of the interview with the report writer, Ms C. X expressed negative views about the respondent, even when unprompted, and on various matters that he would not be able to recall and that only could have been communicated to him by the applicant. He stated that the respondent does not provide the applicant with any money and that he was abusive to the applicant and to him.
Of his experience meeting the respondent at the Court registry, X stated that the respondent “tricked [his] brother”, that his father “wasn’t nice” and that “we’re trying to get him out of our life.” X stated that Y thought the respondent was nice.
X stated that he would not want to spend time with the respondent because he did not trust him and that “he tricked us”. X reported that the applicant had told him she did not want him to see the respondent.
Y was not interviewed due to his age.
THE APPLICANT’S POSITION IN RESPECT OF THE CHILDREN SPENDING TIME WITH OR HAVING INVOLVEMENT WITH THE RESPONDENT
In her evidence-in-chief, the applicant states that, if the Court ordered that the respondent could communicate with or spend time with the children, she would have no other option but to relinquish her care of the children. She says she feels very strongly about the respondent’s exclusion from her and the children’s lives and that she could not cope if the respondent had any involvement with them.
When the applicant was under cross-examination by the respondent’s counsel in the first tranche of the hearing in March 2023, these statements were put to the applicant. When asked what she meant by them, the applicant stated that:
I don’t have any more strength to recall whatever happened, I don’t have any energy to deal with more stress, including him. I cannot pay attention to my children if these kinds of things keep going every now and then….
…
I won’t be able to provide the care that in good situation I can provide them, it will affect my day to day life, day to day care towards my children
…
I am always triggered by the thought that he is involved directly in our life, gives me anxiety and depression.
When it was put to her that the word ‘relinquish’ meant ‘give up’ the applicant was initially non-responsive. When pressed on what she meant by the words by the Court, the applicant continued to be non-responsive. When it was put to her that if the Court ordered that the children spend any time with the respondent, the applicant would give the children up to the respondent, the applicant continued to be non-responsive. The Court subsequently took a short adjournment to allow the applicant to compose herself. Upon the Court resuming, the applicant continued to be non-responsive. Eventually the applicant stated that she would not “have any option left” if the Court ordered the children to spend time with the respondent.
When pressed on who she would relinquish the children to, the applicant said she did not believe the respondent could look after them but that her sister may be an option as she was safe. When asked by the ICL, the applicant stated that she had not actually asked or discussed this possibility with her sister.
Due to the applicant’s appearance during this section of the cross-examination, the Court adjourned and the applicant was released from cross examination to allow her legal representatives to have an opportunity to confirm that they were able to take competent instructions. The Court also indicated to the legal representatives that, if it remained the applicant’s case that she would relinquish the care of the children, the Court would invite the Department of Communities and Justice (“DCJ”) to intervene in the proceedings.
Upon the Court resuming on the afternoon of 16 March 2023, counsel for the applicant informed the Court that she was able to obtain instructions from the applicant and that the applicant’s position is that she would comply with any court orders and would not relinquish care of the children.
The Court subsequently made interim orders for the children to spend time with the respondent on a fortnightly basis at a contact centre and adjourned the matter part-heard.
When the matter returned before the Court for the second tranche of the hearing on 13 November 2023, the Court was informed that the children had not spent time with the respondent in accordance with the interim orders in the intervening period. The ICL subpoenaed and tendered material from the contact centre.
In a lengthy document from the B Contact Centre dated 24 May 2023 titled ‘Additional Intake Notes for [the Applicant]’, the following is reported:
[The applicant] reports she has made her decision, and no one is going to change that. [The applicant] reports she is refusing to have 'that man' (referring to [the respondent]) in her life. [The applicant] reports if she has to attend the contact centre when [the respondent] is here, he is a big trigger for her and makes her mad and causes her stress, so she will hand the children to the police or [DCJ] as he has already disrupted her life enough already and wants nothing more to do with him. The Manager explained that whilst using the contact centre, she will not have to deal with [the respondent] or have anything to do with him or see him that is what the contact centre is for. [The applicant] reports she can try but she knows it will be too much and then she will give the children to [DCJ] and walk away.
The Manager informed [the applicant] the ways in which [the contact centre] can assist with her anxiety through referrals and support her through the process but what would [the applicant] do if the children come home and say they had fun or talk about [the respondent] as they will see him. [The applicant] reports [the respondent] is a real trigger for her and makes her do crazy things that is how she ended up with an ADVO. [The applicant] reports she would never hurt her children but if the children want to have a relationship with [the respondent] and have contact with him or talk about him, she will give the children to police or DCJ, and walk away. [The applicant] reports [the respondent] already walked away from her once and she will not give him another chance, she wants nothing to do with him. [The applicant] reports she is a good mother and does everything with her children. [The applicant] described keeping them safe, feeding them and looking after them. [The applicant] further reports if the court wants [the respondent] to be back in their lives' they can take the children from her and she will live her life stress free.
…
[The applicant] expressed being stressed and not wanting to discuss [the respondent] and that he triggers her and makes her crazy like no one else can. When talking about [the respondent] it was noted that [the applicant] would refer to him as 'that man' and when the Manager referred to [the respondent] as the father of the children, [the applicant] became agitated twitching in her seat stating 'don't call him that'.
[The applicant] reports wishing she had never met [the respondent] and resents him for wasting a big part of her life and now she is stuck with the children and he just disappears and takes no responsibility for the children and she has no freedom. [The applicant] reports she has had to give up everything for the children, now, [the respondent] thinks he can just reappear in their lives. [The applicant] stated 'when the children needed their nappy's changed and were hungry and needed to be fed and looked after he disappeared.' Now they are older and can do that themselves [the respondent] has reappeared and thinks he can be part of the children's lives. [The applicant] reports she is not going to let him do this to her and if he is going to be part of the children's lives, she is going to walk away and enjoy her own freedom and she won't let him do this. They (referring to the court) can either take the children and give them to the police or [DCJ] or to [the respondent]. [The applicant] reports she has made her decision and no one is going to make her change her mind.
The Manager asked [the applicant] has she ever thought of hurting herself or the children and [the applicant] laughed and stated 'No I would never do that I am a strong woman I’m not crazy, but I won’t have this man in my life I will walk away from everything and live my life stress free'.
In cross-examination by the ICL during the second tranche of the hearing in November 2023, the applicant confirmed that this is largely an accurate record of what she told the contact centre save for some amendments. She confirmed that her current position is that if the Court made orders, of any type, for the children to spend time with the respondent or have any contact with the respondent at all, she would relinquish them. This includes if the Court allowed the respondent to send the children cards and gifts. The applicant understood that this would mean the children could be placed in the care of a stranger.
In a letter from the contact centre to the ICL dated 15 June 2023, the Manager of the contact centre stated:
I advise the matter is temporarily deemed not suitable but will be placed on hold due to the following reasons.
[The applicant] during her intake assessment stressed very strongly that she will hand the children over to the Police or [DCJ] if she has to have [the respondent] in her life. [The applicant] reports she is not willing to have any more stress and he is a trigger for her.
…
[The applicant] reports she cannot even come to the service if he is in the same building. [The applicant] reports this would still be too much for her, but she will do what she has to do, and she has made her decision and [the contact centre] nor the court can change her mind.
[The applicant] stated she is willing to try but if it’s too much which she knows it will be, she will hand the children over and then the courts and [DCJ] can do with them what they want.
…
[The applicant] also reports if the children were to mention his name or enjoy any time with [the respondent] she would not be able to cope with this and she would hand the children over.
…
[The contact centre] therefore is deeming the matter temporarily not suitable due to emotional impact and trauma this would have on the children if [the applicant] was to relinquish their care to [DCJ] for having contact with [the respondent].
In cross-examination of the applicant by the ICL, the applicant stated that this letter is an accurate reflection of what she had told the contact centre, with the exception that she did not say that she would be willing to try to bring the children.
Tendered in the proceeding by the ICL were notes from the applicant’s psychologist on 14 July 2023 and 25 October 2023. On 14 July 2023, the psychologist stated that the applicant said she “will not go for shared custody” and would “never give kids to him”. On 25 October 2023, the psychologist reported that the applicant wants “peace in her life, full custody of kids”. In cross-examination of the applicant by the ICL the applicant confirmed that these notes were largely an accurate record of what she had told the psychologist. The psychologist noted that the “client [is] set in her views” and would not “change despite many attempts by author.”
During the hearing and after the applicant had given her evidence, the respondent repeatedly did not seek an order that the children live with him.
When the respondent was asked by the Court whether he thought the applicant was serious about giving up the care of the children to DCJ and the Police if the Court ordered that he have any communication with the applicant, he said that he did not think she would do so.
ORAL EVIDENCE OF THE FAMILY REPORT WRITER
The family report writer, Ms C, gave extensive oral evidence on the final day of the hearing. The applicant’s current position, that she would relinquish care of the children if the respondent had any contact, was put to her.
The applicant’s counsel put to Ms C that the applicant had been attending a psychologist and that this psychologist did not have the skill to deal with her level of trauma. Ms C accepted this was possible and said:
One difficulty might be, and this is speculation, is that if the psychologist has made a diagnosis that was incorrect and then tries to treat for the incorrect diagnosis such as treating for PTSD and finding it resistant when it is actually not PTSD, it’s grief and loss about the distress of losing a marriage, then it might feel to the psychologist that they are not getting anywhere.
When asked whether she would accept that the applicant is still suffering from very deep trauma that she has experienced, Ms C said:
I am going to be cautious about the word trauma, if she has genuinely experienced coercive control and family violence, that would be a reasonable assertion. If she hasn’t, and it is grief and loss, it can feel traumatic, but I wouldn’t want to equate that with something like Post Traumatic Stress Disorder.
Ms C was taken by the respondent’s counsel to a section in the family report where she had stated that the applicant was observed to take deep breaths in a theatrical manner. Ms C stated as follows:
[…] So, what I observed overall, … is that [the applicant], I think she is experiencing something real to her but I think that she shows a lot stronger affect in relation to hurt and disgust than fear, in relation to [the respondent]. So, I felt like that is her almost ramping herself up. I think at some level she believes it, well I know I think she believes it, but I felt like it was to let me know ‘I'm really serious about this’, but I didn't come away from any of the assessments I've had with her with the impression that she is fearful of the father so much as disgusted and hurt.
[…] So, in this matter it is possible that [the applicant] has experienced family violence and has fear but what came across to me more strongly is that she's having anxiety around the distress about the breakdown of the relationship and that is what came through in her presentation more strongly to me.
Ms C was then asked if she would accept that the applicant was consciously giving answers in a contrived manner during Ms C’s interviews with her. Ms C said:
[…] So, … what happened here was she's bringing everything and the reaction appeared disproportionate to what she's talking about and I do think there was an element of which she was trying to convey to me the strength of her global feeling about him and it came out to me as somewhat false, somewhat almost revved up by her. But I think that there's a genuine experience in there for her. What I think she hasn't done is sufficiently work out which part is about grief and loss and shame in the community because within her culture you don't get divorced and which is about actual risk.
Ms C was then asked about a statement in her family report where she said that the applicant had more energy when talking about the respondent’s alleged infidelity and lack of financial support than when she was speaking about his alleged family violence against her and the children. She elaborated:
I got the impression that the things that are causing [the applicant] to feel that she could not tolerate the children having a relationship with [the respondent] are a lot more about the breakdown of the relationship and her perception that he was unsupportive than the physical violence. That doesn't mean the physical violence if it happened is not part of it. But she had a lot more strength of emotion in her tone and her body language around those issues than the actual allegations of violence.
DETERMINATION
Parenting
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children who are the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] See Slater & Light [2011] FamCAFC 1 at [45].
In applying the primary considerations, the Court is to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with both of their parents. A meaningful relationship “is one which is important, significant and valuable to the child”.[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121] (“McCall”).
[3] McCall at [122].
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4 at [13].
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in these Reasons. The reason for this is that discussion does not mean consideration.[5]
[5] Banks & Banks [2015] FamCAFC 36.
Determination
X and Y have not spent time with the respondent since separation in late March 2019, a period of over 4 and a half years. For X that period would likely span his living memory, and for Y that is almost his entire life. The children have no relationship with the respondent to speak of.
X presented as strongly aligned with the applicant’s views about the respondent. Given his young age at separation, and that it is not in dispute that X has few memories of the respondent, X’s negative views of the respondent have arisen entirely from what the applicant has told him, what he has understood to be the applicant’s views of the respondent from her presentation and behaviour, and what he has heard from the extended maternal family. It is highly improbable that X has ever heard any adult in his life whom he trusts speak positively or even neutrally about the respondent.
Given the lack of relationship between the children and the respondent since separation, the respondent has no demonstrated capacity to have a meaningful relationship with the children, nor any demonstrated capacity to foster such a relationship. His parenting capacity is almost entirely unknown.
It is important for children to have a meaningful relationship with each of their parents, provided it is safe for them to do so.
The applicant is entirely dismissive of any benefits to the children in having a relationship with the respondent. Her antagonistic views of the respondent are so strong that she would rather hand the children over to DCJ and/or the Police than have them spend time with the respondent. Although this has been her stance since at least 21 February 2023, she has not taken any steps to hand the children over, despite interim orders for the children to spend time with the respondent being made by the Court in April 2023.
However, for the duration of the hearing, the applicant appeared to be highly distressed about the prospect of the children spending time with the respondent. Such distress is likely to mean that she will either not be able to, or will refuse, to comply with any Court orders for the children to spend time with the respondent.
While the applicant has, in respect of the April 2023 interim orders, done the bare minimum in attending the contact centre and undertaking the intake assessment, the Court finds that her displayed attitude towards the respondent and expressions of a willingness and desire to abandon the children should they spend time with their father, was a considered and conscious move on her behalf.
Whatever her motivations behind this, whether they be based on deeply held beliefs about the respondent’s worthlessness as a person and a parent, her disgust and anger at the way she was treated by him and his lack of support for her and the children post separation, the family violence she says suffered at his hand, or any other of the multitude of reasons which were touched upon in discussions by Ms C, even her anger and despair, it is likely to impact the children in a negative way. She is, after all, their primary caregiver, their primary attachment figure and the only parent they have known.
To have the applicant distressed and emotionally unavailable to the children, even if it is due to her personal preoccupations with the respondent, is to cause these two children immeasurable short-term harm and put them at significant risk of future long-term harm.
The applicant is not willing and/or able to seek appropriate professional assistance to help her deal with her strong unwillingness to have the children’s father involved in their lives. Until such time as she is willing to do so, and until such time as she obtains the assistance she needs, it is likely to be more detrimental to the children to be living with their distressed and emotionally challenged mother, than to entirely miss out on a relationship with their father.
The applicant is highly likely to ignore any ambivalence the children may experience about not having their father in their lives as they grow and develop. This likely renders her less likely to be able to meet the children’s long-term emotional needs.
Each of the parties makes allegations of family violence. The allegations by the applicant are of a much more serious nature than those made by the respondent. This does not mean however, that the allegations made by the respondent are to be disregarded.
In the context of these children’s lives, and the findings which the Court makes in respect of the applicant’s capacity to foster any kind of relationship between the children and the respondent, and the expert’s evidence about the applicant as noted elsewhere in these Reasons for Judgment, it is unnecessary to make any particular findings in respect of the allegations of violence by either party in so far as the determination of the current parenting dispute is concerned.
However, the need to protect the children from harm looms large in these proceedings.
Even if the Court was to accept that there was some family violence while the parties were in a relationship (which the Court does not), such violence could only have been situational.
There is no evidence that would lead the Court to find that the children are presently at risk of physical abuse or neglect. Indeed, there is no evidence that would lead the Court to find that the children are at an unacceptable risk of harm if they were to spend time with the respondent, except in so far as spending time with the respondent would impact upon the applicant’s parenting and impair her capacity to be the children’s primary carer.
While it is not probable but rather possible that the applicant would in fact abandon the children, the risk of her doing so is unacceptable. Even if she took the step of taking them down to the police station with the intention of handing them over, and then being talked out of it by the Police or the DCJ, the distress the children would suffer would be significant.
It is highly unlikely that the applicant would comply with Court orders for the children to spend time with the respondent. She would likely manipulate the situation, as she has done with the interim orders, to ensure that no such time occurs. This again, would cause the children distress and put them in harm’s way, all for the potential benefit of a meaningful relationship with their father, who has no demonstrated capacity to have such a relationship with the children, while knowing that the applicant does not support the children emotionally to have such a relationship.
The children are between a rock and a hard place.
The problem is that the applicant does not realise this. While this may have long-term consequences for the children, the long-term consequences of the immediate harm that would likely come to them from their primary caregiver not being available, being emotionally abandoned by her, and even the threat of being physically abandoned by her, are greater.
The respondent has not had the opportunity to participate in any decisions related to the children post separation due to his absence from their lives, a matter which was largely within his purview. His lack of financial support for the children post separation, his lack of physical presence, and his lack of accepting responsibility for the way things between him and the applicant ended, speak poorly of his insight and understanding, and his capacity to put the children’s needs above his own.
The applicant, while at times emotionally unable to put the children’s needs above her own, has in fact sacrificed herself for her children and has been available to not only meet their basic needs of shelter, food and warmth, but also their emotional needs for love and support.
If the children were to spend time with the respondent, even in a supervised setting initially, the likely effect of such a change to their parenting arrangement would be significant on them, particularly given X’s alignment with the applicant’s views of the respondent, and the respondent’s lack of involvement in the children’s lives to date.
The respondent has declined to make an application for the children to live with him during these proceedings. The respondent has indicated that if orders are made for the children to spend time with him and the applicant does not comply, something which the Court finds is likely to happen, he will then apply for an order for the children to live with him. It is therefore likely that an order for the children to spend time with the respondent will lead to further proceedings.
While on the one hand the respondent may take the view that the Court has given in to the applicant’s manipulation of the situation, this is not so. The orders which the Court will make, that is that the orders are silent in respect of time between the respondent and the children, will leave open the door for the children to be able to seek out the respondent in the future. They will at some stage in their lives be grown up enough to know that their parents were involved in parenting proceedings, that the respondent wanted to spend time with them, and that the applicant was resistant to such time occurring because, to her mind, she was being protective and ensuring that the children did not come to harm. They may even be able to manipulate the internet enough to find these Reasons for Judgment which do not name either them or their parents. It will be an uncomfortable feeling for them to read what their parents have said about each other.
It is important for these children and noting that X, in particular, is already aligned with the applicant’s views of the respondent, that there be a restraint put in place to prevent the applicant from actively or indeed passively, permitting the children to be negatively influenced by her and/or members of her extended family as against the respondent and the paternal family.
Parental Responsibility
Each of the parties has been the subject of an ADVO. There are serious allegations of family violence made by the applicant against the respondent. It is clear from the evidence that the parties have no capacity to effectively communicate, lest of all, to make joint decisions regarding the children’s long term care and welfare.
In all of the circumstances, the Court finds that the presumption of equal shared parental responsibility does not apply. It is appropriate, noting that the children will be living with the applicant and that she will be responsible for meeting all of their short and long-term needs, at least in the foreseeable future, that there be an order for the applicant to have sole parental responsibility for the children.
The respondent in any event, concedes that such an order is appropriate.
Overseas Travel
The applicant seeks orders that she be permitted to travel overseas with the children without permission from the respondent, and that she be able to obtain passports for the children without the respondent being party to that application. The evidence does not disclose any travel plans for the applicant and the children in the foreseeable future, nor does it disclose any need for the children to obtain passports at present.
The Court has recognised that the parents are not presently capable of having any effective communication. If and when the applicant has firm plans to travel with the children, and a need arises for them to obtain passports, if she is unable to then obtain agreement from the respondent about such passports and such travel, she would then need to make an appropriate application. Further litigation between the parents is not in the children’s best interests.
Both of the parents are of Country E heritage. There may come a time in the future when the children wish to visit their parents’ country of origin, or that the applicant may want them to do so. Country E is a not a country that is party to the Hague Convention, and as such, there is a bare risk that the children may not be returned to the jurisdiction. However, the applicant is an Australian citizen and has lived in Australia for many years. There is no basis for finding that she is a flight risk.
Furthermore, financial constraints aside, there is no good reason as to why the applicant ought not be able to take the children overseas on a tropical or other holiday.
In all of those circumstances, it is appropriate that an order be made in accordance with the applicant’s application for the obtaining of passports for the children and permission to travel overseas without first having to obtain the consent of the respondent.
Children’s Names
Relevant Legal Principles
The principles regarding a change of name for children were explained by the Full Court in Chapman & Palmer.[6]
[6] Chapman & Palmer [1978] FamCA 86.
In a helpful summary, which the Court respectfully adopts, Judge Turner in Sander & Hearn held that consideration must be given to:[7]
(a)The welfare of the child being the paramount consideration;
(b)Any short or long-term effect of any change in the child’s name;
(c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
(d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
(e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
(f)The effect of frequent or random changes of name.
[7] Sander & Hearn [2012] FMCAfam 812 at [13].
Determination
The effect of the application the applicant makes to change the children’s names from X to H and Y to K is to remove the respondent completely from their identities.
The children have been known by their current names their whole lives. Through their names they carry the paternal side of the family, but not the maternal.
There is no evidence as to the effect on either child that the proposed change of name might have, nor of the children’s views of their attachment or understanding to their names as they presently are. While the applicant has indicated that she is ‘triggered’ by any reference of the respondent, she also gave evidence that X looks like his father but that this does not cause her distress. It would be extremely hurtful for X if it did.
The applicant proposes to firstly shorten the children’s names by deleting part of their names, and to use the shortened version of their names which the children are used to. The deleted part is the respondent’s second name.
The children have “Chandana” as their second name, which is the respondent’s surname. The children have a second surname which the respondent says is his actual surname, just not his official name. It is a name he identifies with and that he uses and is known by. None of the respondent’s documents refer to that name, and it is a name which brings the applicant much angst as she considers that the respondent lied to her about it.
It is appropriate, and in the children’s best interest, that only their surname be changed in accordance with the applicant’s application, such that their surname becomes the same as that of the applicant.
This is particularly appropriate as it is the applicant who will have sole parental responsibility for them, and it is the applicant who they will remain living with. It is likely the applicant is the person whom they best identify with.
The children are unlikely to have any contact or spend any time with the respondent for the foreseeable future. However, he should not be wiped from their memory or from their existence. It is of benefit to children to be able to identify with both their maternal and paternal families, if not through spending time then at least, for these two children, through their names.
Alteration of Property Interests
Relevant Legal Principles
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 of the Act was set out by the High Court in Stanford & Stanford.[8] Such approach was subsequently considered by the Full Court of the then Family Court in Bevan & Bevan,[9] Chapman & Chapman,[10] and Scott & Danton.[11]
[8] [2012] HCA 52 (“Stanford”).
[9] [2013] FamCAFC 116 (“Bevan”).
[10] [2014] FamCAFC 91 (“Chapman”).
[11] [2014] FamCAFC 203 (“Scott”).
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not, and will not thereafter, be the joint use of property by the parties. It is so in these proceedings.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in ss.79(4)(a) to (c), the matters set out in ss.79(4)(d) to (g) and, in particular, the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[12]
[12] Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120.
The just and equitable requirement is “one permeating the entire process”.[13]
Determination
[13] Bevan at [86].
The Pool of Assets
Little focus was spent during the final hearing on property and why the parties’ respective applications were just and equitable.
The parties had little to no assets to speak of at the commencement of the relationship, and their only meaningful asset at the conclusion of the relationship was the former matrimonial home. This has since been sold, and at hearing the only meaningful asset is what remains of those proceeds.
The applicant has a small amount of superannuation, the respondent none. Each of the parties has drawn down on their superannuation entitlements to date. Neither party is seeking a superannuation splitting order. The superannuation will be treated as a separate pool, in respect of which no adjustment orders are made.
The parties each have a motor vehicle, the values of which are not the subject of any expert evidence. The vehicle in the respondent’s possession, is subject to a loan, which is a joint loan of the parties. Neither of the vehicles will be included in the balance sheet, however, this does not mean that their value is ignored; it is just not known. The liability of the loan against the motor vehicle in the respondent’s possession will also not be included in the net pool of assets, as it is considered to be at least in part balanced against the value of the vehicle. Each of the parties will retain the motor vehicles which are currently in their possession, and the respondent will take on the liability attached to the motor vehicle which is in his possession.
While the respondent alleges that the applicant “deceivingly” and without his knowledge withdrew a total of over $85,600 from the parties’ joint bank account between 2014 to 2017, there was no evidence before the Court (whether by way of chief or in cross-examination) that went to these matters. The funds, if they were transferred, were transferred during the parties’ relationship. The respondent says that the applicant was in any event responsible for their finances and for administering the family funds as appropriate. There is no evidence which could base a finding that the applicant’s transfer of such money was done in deceit or that it was somehow “waste” within the legal meaning of such term as understood in property adjustment proceedings.
The parties are also in dispute about the location and value of gold jewellery which was given to the applicant at the time of marriage. As there is no evidence of the particular pieces of jewellery, their location, or their value, such items are excluded from the balance sheet.
There are other assets with respect to which there is no evidence of value and, as such, they are not included in the pool. These are things such as household contents and small balances in bank accounts. At one point in time post separation, the respondent had purchased a Motor Vehicle 2 which was subject to finance. He was not able to meet the loan repayments and the car was either surrendered or sold, with there being a corresponding liquidation of the liability.
The parties each assert personal debts.
The respondent asserts a debt to the Australian Taxation Office for $26,000. However, he provides no evidence in support of the assertion. The Notice of Assessment for the year ended 30 June 2020 annexed to his affidavit shows a credit of $9,092. The Notice of Assessment for the year ended 30 June 2021, shows a debit of $2,932.[14] It is entirely unclear when the alleged debt of $26,000 crystallised, nor what it relates to. As such, the Court is not satisfied that the alleged liability should be included on the balance sheet, such that it bears upon the adjustment of property interests. If it exists, it is a liability that will remain with the respondent.
[14] Rounded up to the nearest dollar.
The respondent further makes a mere assertion that he owes a “loan amount of $18000” to a Ms L. No evidence in support of this assertion is offered. The liability has not been established and is thus not included on the balance sheet.
The respondent is in arrears in respect of child support. It would not be either just nor equitable to include such liability on the balance sheet as the applicant should have no share of it.
The applicant gives evidence that her sister has paid numerous expenses on her behalf and that her sister has provided her with ad hoc loans when the “need arises”. The total of the liability alleged is $44,277. However, this is insufficient evidence to establish a loan or that there is an existing legal liability by the applicant to her sister. It is at most an informal family arrangement. The asserted liability is not included on the balance sheet.
The applicant also has a HECS debt and a student loan. It is not clear on the material before the Court when such debts accrued, and as such they are excluded from the balance sheet.
If all of the parties’ alleged debts were included it is likely that the net pool would be very close to, if not below, zero.
The applicant has already had the benefit of over 65% of the net proceeds of sale of the former matrimonial home (by way of partial property distribution). These amounts are notionally added back.
At final hearing the net asset pool is assessed as follows:
ASSETS Ownership Description Value Joint Proceeds of sale of the Suburb D Property held on trust $38,247.64 Applicant Partial property distribution from the sale proceeds of the Suburb D Property pursuant to the orders of 12 November 2021 (by way of add-back) $20,000.00 Applicant Partial property distribution from the sale proceeds of the Suburb D Property pursuant to the orders of 12 November 2021 (by way of add-back) $57,371.45 TOTAL: $ 115,619.09
The second Pool of Assets is not tabulated, and simply includes the applicant’s superannuation, which as noted earlier will not be the subject of any splitting or adjustment.
Assessment of Contributions and Future Needs, and what Adjustment is to be Made
The parties’ relationship was approximately 10 years, and they each contributed to the acquisition and maintenance of property in their own way. The respondent was the primary breadwinner, whilst the applicant was the primary parent and homemaker. The applicant was also responsible for keeping the family finances. Their contributions at separation were equal.
As noted earlier in these Reasons for Judgment, each of the parties makes allegations of family violence. In respect of the property adjustment orders sought, even though the applicant does make a Kennon argument in her case outline document, the submission in this regard was not developed at hearing nor was the respondent cross-examined about the particular incidents of violence. As such, the Court finds that the applicant has not established to the requisite standard that the respondent has engaged in family violence such that the applicant’s contributions were made more arduous.
The applicant has made significant post-separation contributions, primarily through being the children’s sole carer post separation. In terms of future needs, she will remain their primary carer upon final orders being made. The applicant appears to have a diagnosis of PTSD, although there is no evidence that her earning capacity has been impacted in any way by such disorder. The applicant obtained qualifications while the parties were in a relationship, and she is continuing with her studies. She is likely to have a stable and reasonable income going forwards.
The respondent earns his income as a transport worker. Such income has varied over the years, but the respondent appears to be capable of earning a reasonable and steady income. He is in significant arrears in respect of his child support payments.
There will be a 15% adjustment in the applicant’s favour for post-separation contributions and future needs.
In all of the circumstances, it is just and equitable that the property interests of the parties be adjusted 65/35 in favour of the applicant. As such, the applicant would receive $75,152.41 in total (including funds already disbursed to her), and the respondent would receive $40,466,69.
In all of the circumstances such an adjustment is just and equitable.
Spousal Maintenance
Relevant Legal Principles
In determining whether to make an order for spousal maintenance, it is appropriate for the Court to determine the issue by consideration of the following:[15]
(a)Can the applicant support themselves adequately in terms of s.72 of the Act?
(b)If not, what are the applicant’s reasonable needs?
(c)What capacity does the respondent have to meet those needs?
(d)What order is reasonable, having regard to s.75(2) of the Act?
[15] Hanas & Jolaha (No. 4) [2019] FamCA 483 at [75] (“Hanas”) citing MS & PS [2006] FamCA 588; (2006) FLC 93-268 per Coleman J.
Section 72(1) of the Act relevantly provides that:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
The question as to whether or not a person is able to support themselves “adequately” is:
[N]ot to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances. [Citations omitted].[16]
[16] Hanas at [79] citing M v M (2006) 36 Fam LR 97 at 106.
It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
Furthermore, a claim for maintenance is not limited by reference to current expenses because an applicant applying for maintenance may not have the ability to pay for commitments necessary to support themselves and thus avoid incurring what otherwise would be a reasonable expense. Therefore, the focus is on what is necessary for support.[17]
[17] Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 at 81, 455-56 cited in Hanas at [80].
“Capacity” to meet an order for interim spousal maintenance is not confined to income.[18]
[18] Maroney & Maroney [2009] FamCAFC 45 at [56].
The Court can only make such an order “as it considers proper” [19] taking into account the factors set out in s.75(2) of the Act.
[19] Family Law Act 1975 (Cth) s.74(1).
Determination
On 12 November 2021, an interim spousal maintenance order was made. The applicant seeks a continuation of this order on a final basis for a period of 4 years.
There is no evidence that the applicant has been paid spousal maintenance since the making of the interim order in November 2021. It is not apparent from the Court file that the applicant has ever filed any enforcement application in respect of that order, or a contravention or similar application.
The applicant now moves the Court for an order that the respondent pay her $300 per week, or any other amount as the Court deems appropriate, in spousal maintenance for a period of four years.
During submissions, counsel for the applicant, after conceding that the respondent did not have the capacity to meet an order for spousal maintenance from his regular earnings, submitted that there are funds held on trust on behalf of the parties by which a lump sum maintenance order could be satisfied.
The applicant works as a health care worker on a casual basis. She chooses to continue her studies, presumably to better provide for her financial future. She presently has limited financial capacity and has demonstrated a need for spousal maintenance.
The youngest child is months away from being school age. Once he reaches school age, the applicant’s capacity to work is likely to be greater. It has not been explained in the applicant’s case why an order for spousal maintenance for a period of 4 years is appropriate.
Apart from the moneys the respondent will receive by way of property adjustment orders, he has no capacity to meet any order for spousal maintenance. His outgoings are greater than his income. He has a debt to the Child Support Agency.
In all of the circumstances, the Court is satisfied that an order for spousal maintenance is to be made, but that it be an order for lump sum spousal maintenance calculated on the basis of $300 per week over a 2-year period only. This will ensure that the applicant is able to adequately support herself while the children are still very young, while she is still finishing her training and until such time as the dust from these proceedings has settled.
COSTS
The applicant seeks as part of her final relief, that the respondent pay her costs incidental to her application. No submissions were made in support of such an application. The Court is not satisfied, having regard to s.117 of the Act, that there are circumstances justifying the making of any costs order, and consequently, each party to proceedings shall bear their own costs in accordance with the statutory provisions.
HOW THE AMOUNTS IN THE ORDERS ARE CALCULATED
In accordance with the Court’s determination, the applicant is to receive $75,152.41 and the respondent is to receive $40,466.69 by way of property adjustment orders.
The applicant has already received $77,371.45 by way of partial property distribution.
There is only $38,247.64 left in the trust account, held on behalf of the parties.
This means there is a shortfall of $2,219.05 which would require the applicant to make a payment to the respondent.
However, the respondent is to pay the applicant the sum of $31,200 in accordance with the Court’s determination for lump sum maintenance. The amount of lump sum maintenance will therefore be reduced by the amount of the shortfall noted above.
As such, there will be an order that from the moneys held in trust by Pannu Lawyers, the applicant be paid $28,980.95 (by way of lump sum spousal maintenance) and the respondent be paid $9,266.69 (by way of property adjustment orders).
Noting the respondent’s child support arrears, the respondent will be directed to forthwith notify the Child Support Agency of the property adjustment orders made herein such that all arrears currently outstanding may be satisfied by the Child Support Agency (in the manner the agency deems appropriate). The Court expects that the respondent will, at first instance, direct that his debt to the agency be paid first before any legal costs are paid.
CONCLUSION
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 8 December 2023
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