Paintal and Paintal

[2018] FamCA 922

FAMILY COURT OF AUSTRALIA

PAINTAL & PAINTAL [2018] FamCA 922

FAMILY LAW – CHILDREN – Parenting – Property – interim – dispute as to time child is spending with parties – application of Rice & Asplund – circumstances to justify a change in interim orders – dispute as to child’s school – application for international travel – application to allow sale of properties – application for specific disclosure - application that the wife vacate matrimonial home – application for attendance upon psychiatric services – priority of transferred matter based on original filing date in the Federal Circuit Court.

Family Law Act 1975 (Cth) s 114

Bissett & Bissett [2013] FamCA 431
Goode v Goode (2006) 206 FLR 212
Marsden & Winch [2009] FamCAFC 152
Rice v Asplund [1978] FamCA 84

SPS & PLS [2008] 39 Fam LR 295

APPLICANT: Mr Paintal

RESPONDENT: Ms Paintal

INDEPENDENT CHILDREN’S LAWYER: Mr P Smith

FILE NUMBER: CAC 273 of 2014

DATE DELIVERED: 15 November 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Mr J Haddock

SOLICITOR FOR THE RESPONDENT:	Women’s Legal Centre
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid, ACT

Orders

1. Each party is restrained by injunction from removing, permitting or attempting to remove, or from causing or permitting the removal of the child X (born … 2012) from the Commonwealth of Australia.

2. The Applicant, subject to these orders, is at liberty to cause the sale of the following properties:

   (a)B Street, Suburb C in the Australian Capital Territory;

   (b)D Street, Suburb E in the Australian Capital Territory; and

   (c)       F Street, Suburb G in the Australian Capital Territory.

3. In order to effect the sale of the properties the Applicant must appoint a real estate agent and a solicitor.

4. In order to appoint a real estate agent and a solicitor the Applicant may nominate such to the Respondent for her approval, noting that the respondent nominated three of each who were not acceptable to the applicant.

5. In the event that the Respondent withholds approval, the Applicant may seek a relisting for the determining the identity of the real estate agent and solicitor and, in the event that approval was unreasonably withheld the Respondent may be at risk of an adverse costs order.

6. On the appointment of a solicitor and a real estate agent, the Respondent’s solicitors are authorised to issue the letter of instructions for each and shall do so within 14 days.

7. The applicant is to use the proceeds of sale of the properties as follows:

   (a)To pay out the mortgage secured over the sale property and any of the other named properties that are cross collateralised;

   (b)To pay outstanding rates and charges and fees related to the sale of the property; and

   (c)Any balance is to be held in the conveyancing solicitor’s trust account pending further order.

8. The Applicant is restrained from further encumbering the properties or incurring further liabilities against the properties until further order;

9. Other than where the applicant has already provided such documents, the Applicant is to provide to the Respondent within 7 working days the following documents:

   (a)Copies of all correspondence to and from the Australian Taxation Office;

   (b)Copies of the loan application and all supporting documents for the father’s recent refinance approved on 14 June 2018;

   (c)Copies of all correspondence between the father and the child support agency;

   (d)Copies of the original bank transfers for the payments made by the father towards the alleged “loans” by friends and family in India;

   (e)Bank statements, balance sheets and ledgers for the X Superannuation Fund for the last three years;

   (f)Taxation returns filed for the X Superannuation Fund;

   (g)Copies of all statements for any account held by the father with the Commonwealth Bank; and

   (h)Details of his account and/or financial advisor and provide the mother with a written authority for the mother and or the solicitor for the mother to inspect any documents held by them on the father’s behalf. 

10. Order 5 of the interim parenting orders made by Judge Tonkin on 29 August 2017 is amended to read as follows:

    Changeover shall occur after school on Fridays with the parent with whom the child is living to deliver the child to school and the other parent to collect the child from school.  If changeover occurs on a non-school day, changeover shall occur at Suburb H Shopping Centre outside Coles at 5.30pm.

11. The balance of the orders sought by the Father by way of his Affidavit filed 14 August 2018 are dismissed.

12. The balance of the orders sought by the Mother by way of her Response to an Application in a Case filed 5 September 2018 are dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 273 of 2014

Mr Paintal

Applicant

And

Ms Paintal

Respondent

REASONS FOR JUDGMENT

1. The parties commenced these proceedings in 2014 in the Federal Circuit Court of Australia.  In August 2017 orders were made by Judge Tonkin governing the interim arrangements for the care of the child of the relationship, X (the child), born in 2012 and now aged six.

2. The matter was listed in that Court for final hearing in July 2018.  However, at that stage, the matter was transferred to the Family Court of Australia.

3. One of the orders sought by the Applicant in this Court was to have the final trial of the matter expedited to be heard in the next few months.  During the hearing of the matter this application was refused and reasons were given.  However, the parties were also advised that given the 2014 commencement date for litigation, the case will receive priority within the list of matters awaiting hearing date before the Family Court of Australia in the Canberra Registry.  The context of these interim proceedings is also in the face of an imminent final hearing, meaning that the arrangements determined at this stage will be operative for only a relatively short period.

4. The current interim proceedings involve a dispute both about the care arrangements, education and travel for the child and property related matters, including as to the occupation of the former family home by the Mother and the child.  The real property is held in the name of the Father, but pursuant to previous orders the Mother and the child live in the former family home. 

Orders sought

1. While these interim proceedings were commenced by an Application in a Case filed by the Father on 25 July 2018, by his affidavit from 14 August 2018 he indicated that pages 1 to 3 formed an amendment to the orders that he seeks.  His Application in a Case no longer reflects the orders that he pursues.

The Applicant Father seeks:[1]

[1] Affidavit of Mr Paintal filed 14 August 2018.

Procedural

1.Request for confirmed Final Trial dates for both parenting and property at the earliest possible within a month or so.

2.Both parties to attend forensic psychiatric assessment for the court to receive an expert advice in making final orders for either of the parent to have sole parental responsibilities of the child and to determine long-term living arrangements of the child, provided the child to be completely excluded in the psychiatric assessment process.

3.Both parties to mutually pick any one of the following psychiatric assessment providers on the earliest availability and appointment provided by the expert practitioner.

a.[Dr J], …, Canberra

b.[Dr K], …, NSW

c.[Dr L], …, NSW

4.The Father to pay the psychiatric assessment expert fee.

Interim parenting

5.Each party [Mr Paintal] (born … 1975) (the Father) and [Ms Paintal] (born … 1978) (the Mother) is hereby restrained by injunction from removing permitting or attempting to remove or cause or permitting the removal of the child [X] (female) (born … 2012) (the Child) from the Commonwealth of Australia.

6.It is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in Australia and maintain the child’s name on that Watch List until a court orders its removal.

7.The child shall live with each of her parents in an equal time arrangement week-about (7 nights : 7 nights) with handovers to occur, unless otherwise agreed, on Fridays after school.  Such arrangements will, unless otherwise ordered, continue throughout school holiday periods.

8.That parenting interim Order No 5 made by Judge Tonkin on 29 August 2017 be reworded as:

Changeover shall occur after school on Fridays with the parent with whom the child is living to deliver the child to school and the other parent to collect the child from school.  If changeover occurs on a non-school day, changeover shall occur at [Suburb H] Shopping Centre outside Coles at 5.30 pm.

9.That parenting interim Order No 3 made by Judge Tonkin on 29 August 2017 be discharged.

10.[The child’s] private school enrolment and admission to proceed with Father’s consent signature in the school application enrolment and admission forms in any of the following Canberra based schools.

a.[M School];

b.[N School];

c.[O School];

d.[P School]; or

e.[Q School].

11.If admission been offered in any of the above schools, the child attends the school on first come – first taken basis until final court orders been made on the child’s primary parental responsibilities and living arrangements with either of her parents.

12.The Father will pay 100% the tuition fees, school fees and all additional education fees invoiced by the school until final court orders been made on the child’s primary parental responsibilities and living arrangements with either of her parents.

13.Each party [Mr Paintal] (born … 1975) (the Father) and [Ms Paintal] (born … 1978) (the Mother) is hereby restrained to post any kind of individual/solo photographs of the child in the social media accounts owned or maintained or operated by the parties.

14.Both parties facilitate the child to attend the R School in other words R School in Canberra regularly every weekend.

Interim financial

15.The interim financial/property consent orders agreed by both parties in the mentions and directions procedural hearing with the honour Tonkin on 14/09/2017 to be discharged.

16.Within 30 days the Mother move out of [Suburb E] property to an affordable rental accommodation.

17.The Father to pay $250 per week to the Mother as rent until a final decision is made by the family court in parenting and property matters.

18.The Father to have the freedom to sell all the properties or rent Suburb E property in the market to source more income.

19.In case the properties are sold, all proceeds of the sale will be paid back to the bank to reduce the mortgage loan debt.

20.The court to note that all real estate properties and the mortgages are in Father’s name.  In this parenting and property proceedings the [Suburb E] property is the last one to be sold depending on Father’s updated employment and financial circumstances.

21.If/once the Father sells [B Street] & [D Street] units and [Suburb E] house (all 3 properties); he has the liberty to re-mortgage [Suburb E] property to borrow more money by securing that property.  And at that point, the interim consent order no. 6 made by the honour Gill on 1 August 2018 will be discharged.

The Respondent Mother seeks:[2]

[2] Response to an Application in a Case filed 5 September 2018.

1.That valuations be obtained of the following properties:

a.S Street, Suburb E, in the Australian Capital Territory.

2.That the parties select one of the following valuers:

a.Valuer 1;

b.Valuer 2; or

c.Valuer 3.

3.That the Mother’s solicitors issue a letter of instruction to the agreed valuer within 14 days.

4.The following properties be sold forthwith:

a.B Street, Suburb C in the Australian Capital Territory;

b.D Street, Suburb E, in the Australian Capital Territory; and

c.F Street, Suburb G in the Australian Capital Territory.

5.Or in the alternative with respect to Orders sought 4a, b, and c that the property is listed in Orders 4a, b and c is valued in accordance with the Orders sought in Orders 2, and 3 of the Mother’s orders sought.

6.With respect to Orders sought 4, that one of the following real estate agencies be appointed the agent for the sale:

a.[Real Estate 1 Suburb H];

b.[Real Estate 2 Suburb H]; or

c.[Real Estate 3 Suburb H].

7.With respect to Orders sought 4, that one of the following solicitors be appointed the conveyancer for the sale:

a.[Lawyers 1];

b.[Lawyers 2]; or

c.[Lawyers 3].

8.With respect to Orders 4 the Mother’s solicitors issue a letter of instruction to the agreed Real Estate Agent and solicitor within 14 days.

9.That sale proceeds be used as follows:

a.To pay out the mortgage secured over the properties;

b.To pay outstanding rates and charges; and

c.The remainder to be held in the conveyancing solicitors trust account pending further order.

10.Upon the properties being sold the Mother have leave to file an application seeking an interim property settlement payment.

11.That one of the following be appointed joint expert to value the husband’s business and also undertake forensic examination of the husband’s financial position:

a.[Accountants 1]… Sydney; or

b.[Accountants 2[… ACT.

12.That the Father be responsible for all valuation fees.

13.That the Mother be at liberty to place caveats over [S Street, Suburb E] in the ACT.

14.That the Father be restrained from further encumbering the properties or incurring any further liabilities until further order.

15.The Father provide within seven working days the following documents:

a.Copies of all correspondence to and from the Australian Taxation Office;

b.Copies of the loan application and all supporting documents for the Father’s recent refinance approved on 14 June 2018;

c.Copies of all correspondence between the Father and the child support agency;

d.Copies of the original bank transfers for the payments made by the Father towards the alleged “loans” by friends and family in India;

e.Bank statements, balance sheets and ledgers for the [X] Superannuation Fund for the last three years;

f.Taxation returns filed for the [X] Superannuation Fund; and

g.Copies of all statements for any account held by the Father with the Commonwealth Bank.

16.The Father produce the Mother’s jewellery given to the paternal grandmother and provide it to the Mother’s solicitors for the purpose obtaining a valuation.

17.The Father produce the gold purchased for the child the child during the marriage, held by the paternal grandmother and provide to the Mother’s solicitors for the purpose of obtaining valuation.

18.The Father provide the Mother within 7 days the details of his accountant and/or financial advisor and provide the Mother with a written authority for the Mother and or the solicitor for the Mother to inspect any documents held by them on the Father’s behalf.

19.The Father be restrained by injunction from discussing the proceedings with any person other than legal representatives and from providing copies of documents produced or prepared as part of the proceedings to third parties without a court order or the written consent of all parties.

20.That the time the child spends with the Father be amended so that the child spends:

a.Each alternate weekend from 10am Saturday to 5pm Sunday; and

b.Every Wednesday from after school before school Thursday.

21.That in the event either parent cannot look after the child for more than three hours then the other parent will have the first option to care for the child.

22.That any order requiring the Mother to advise the Father of her residential address is discharged in the event she changes residence.

23.In the event that the court does not make orders in accordance with the Mother’s Orders 20 (a and b) then the child during the Father’s time will speak to the child [sic] by phone each evening between 7pm and 7:15pm and the Father will ensure the child has privacy during the phone call.

24.That the Mother may travel to India with the child for a period of four weeks during the child’s December/January holidays in 2018/2019.

25.That for the period of time for the travel envisaged in order 24 that the Airport Watch List Order previously made is stayed.

26.That the parties do all things to arrange for the child’s Australian passport to be renewed within 21 days.

27.That prior to the Mother’s travel pursuant to Order 24 she will:

a.21 days prior to the travel provide the Father with evidence of her return airfare; and

b.Provide the Father with a telephone contact number.

28.That while the child is travelling with the Mother in India she will speak to the Father via lots at/telephone or face time every day at a time suitable to the Father.

The Independent Children’s Lawyer (‘ICL’) seeks:[3]

[3] Independent Children’s Lawyer Outline of Case Document received 8 October 2018.

1.That parenting interim Order No 5 made by Judge Tonkin on 29 August 2017 be reworded as:

Changeover shall occur after school on Fridays with the parent with whom the child is living to deliver the child to school and the other parent to collect the child from school.  If changeover occurs on a non-school day, changeover shall occur at [Suburb H] Shopping Centre outside Coles at 5.30 pm.

2.That in the event either parent cannot look after the child for more than three hours then the other parent will have the first option to care for the child;

3.The child, during the Father’s time, will speak to the child [sic] by phone each evening between 7pm and 7:15pm and the Father will ensure the child has privacy during the phone call;

4.That the Mother may travel to India with the child for a period of four weeks during the child’s December/January holidays in 2018/2019.

5.That for the period of time for the travel envisaged in order 4 that the Airport Watch List Order previously made is stayed.

6.That the parties do all things to arrange for the child’s Australian passport to be renewed within 21 days.

7.That prior to the Mother’s travel pursuant to Order 4 she will:

a.21 days prior to the travel provide the Father with evidence of her return airfare; and

b.Provide the Father with a telephone contact number.

8.That while the child is travelling with the Mother in India she will speak to the Father via lots at/telephone or face time every day at a time suitable to the Father.

9.The child’s current time with the Father is maintained. 

Material relied upon:

1. The Father relied upon the following:

   a)Application in a Case of 25 July 2018;

   b)Affidavit of 10 August 2018;

   c)Affidavit of 14 August 2018; and

   d)Affidavit of 11 September 2018.

2. The Mother relied upon the following:

   a)Response to an Application in a Case of 5 September 2018; and

   b)Affidavit of 5 September 2018.

3. The ICL relied upon the following:

   a)Case summary document of 8 October 2018.

Interim parenting

1. As already identified, in this case the parties have previously had interim resolution of disputes regarding property and the child.  Under those circumstances the considerations set out in Rice v Asplund become relevant to the child related matter.[4]  Although Rice v Asplund was in the context of final orders, it was described in Marsden & Winch,[5] picking up on SPS & PLS,[6] as “merely a manifestation of the ‘best interests principle.”  The purpose of the rule was disclosed as being to discourage endless litigation and to combat the impact of such litigation on the parties and the child.  That is, the “interest of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the litigation to continue.”

   [4] [1978] FamCA 84.

   [5] [2009] FamCAFC 152.

   [6] [2008] 39 Fam LR 295.

2. In this case, the hearing having been conducted, there is little if any of such protection against the effects of litigation able to be afforded.

3. That however does not mean that it is irrelevant to consider what change in circumstances is presented since the previous orders were made.

4. It remains that there are orders in place directed to the child’s best interests.  The dispute between the parties as to the child’s best interests, on an interim basis, has been resolved on the basis of the facts that were then before the Court.  In determining an application (as reflected in the proposals of the parties) for change it is important to determine whether the evidence led, as it bears upon the considerations that go to the child’s best interests, justifies such a course.

5. It is necessary to acknowledge that such a consideration is applicable to those matters resolved on the previous occasion.  Where a matter was not dealt with (e.g. schooling) then it does not necessitate the same scrutiny.

6. To the extent that the evidence justifies a departure, then that evidence is to be considered in accordance with the approach set out in Goode v Goode (2006) 206 FLR 212:

   How should interim proceedings be conducted?

   In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   In an interim case that would involve the following:

   a.identifying the competing proposals of the parties;

   b.identifying the issues in dispute in the interim hearing;

   c.identifying any agreed or uncontested relevant facts;

   d.considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   e.deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   f.if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   g.if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   h.if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   i.if neither equal time nor substantial and significant time is considered  to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   j.if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   k.even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Change to the living arrangements

1. The current orders that provide for the child’s living arrangements were made by Judge Tonkin on 29 August 2017.  In general terms they provide for the child to live with her Mother and to spend overnight Wednesday in one week and overnight Wednesday and Friday to Monday in the other week with the Father, that is, a 9:5 split.

2. Each of the parties sought a change to the child’s living arrangements.  The Mother sought a reduction in the Father’s time by two nights each fortnight.  The Father sought an increase such that the split would be on a seven – seven basis each fortnight.

3. The parties were asked to direct their attention to what changes in circumstances had occurred since the making of those orders such as to justify a revisiting of the matter.

4. The Father asserted that the co-parenting arrangement was not working between the parties.  When it was pointed out to him that, if anything, the orders that he seeks would require an increase in co-parenting, he also pointed to the final position that he was seeking, of having the child live primarily with him.

5. The Father alleged that the Mother had engaged in some stalking of the Father since the making of the orders by Judge Tonkin, and relied in particular upon [16] through [19], [110], and [118] of his affidavit, along with [25] and a letter from the child to the ICL.

6. The two incidents of stalking post-dating Judge Tonkin’s orders relied upon by the Father were as set out in the affidavits of Mr W and Mr Y.

7. The incident attested to by Mr Y involved the Mother’s conduct at handover on 26 December 2017.  For a short period the Mother blocked the Father’s car at a pedestrian crossing.  This appeared to follow on from a dispute arising from the Father returning the child to the Mother with her head unexpectedly shaven (apparently for religious reasons). 

8. The incidents attested to by Mr W involve the Mother attending community functions on 4 March 2018 and 14 April 2018 (apparently the cultural background of both of the parents).  No untoward conduct was noted.

9. Neither of these issues of conduct by the Mother appear of such significance as to require a fresh determination of the living arrangements for the child.

10. Further matters, involving religious practice and missing earrings, did not seem to speak to the change in orders being sought.

11. By [25] the Father alleges that the child is “highly distressed” with the current 9:5 arrangement.  He also alleges that the child has been asking for the arrangement to be week about with her parents.  He alleges that the child is traumatised by not being able to go on holidays, to beaches or go camping.  Given the current orders provide for a 9:5 split and also for half school holidays, it is unclear why the child would be missing out on such experiences.

12. Perhaps most significantly in this respect, the Father annexes correspondence from a barely six-year-old the child to the ICL advocating for a week about arrangement and various other matters.  The circumstances by which the child came to write such a letter are not identified.  It appears likely to be a contentious matter.  At this stage of the proceedings it is not a matter to which weight could be assigned in determining whether there should be a change.

13. The Father also complains that the Mother has not involved him in medical attendances by the child.  Again, the change in orders sought by the Father does not deal with this matter.

14. The balance of the matters in [25] do not speak significantly to an interim change in arrangements.

15. In summary, the matters put forward by the Father do not speak to a sufficient change of circumstances so as to warrant a revisiting of the interim orders put in place by Judge Tonkin.  The most powerful consideration, relating to the child’s response to the current arrangements and her views as to such, is not only contentious as to its content, but controversial as to what weight could be accorded to it.  Acknowledging the uncertainty that attaches to this consideration on an interim basis points to a conclusion that it is not sufficient to support a departure from the orders already in place to safeguard the child’s interests.

16. The Mother’s case for change was helpfully identified to be contained in [58] through [65], [68], [69], [71] through [82] of her affidavit.  These paragraphs spoke to significant conflict between the parents in terms of decision-making in respect of the child.  The particular problem seemingly addressed by the Mother, by way of her orders sought, was the distress felt by the child and conflict between the parties.  However, the particular change sought by the Mother would have the result of bringing the parties more frequently into direct contact with each other.  Currently most of the handovers occur at school.  The Mother identified that difficulties occur when the handover does not take place at school and the parties have direct contact with each other.  On her proposal, handover would now occur on a Sunday with more frequent interaction, and hence increasing the risk of conflict between the parties. 

17. The circumstances put forward by the Mother for a change in the orders are not sufficient to justify a change as the matters that she has identified conflict with the rationale that she has put forward as justifying the change.

18. It should be noted that the ICL did not support a substantive change to the time arrangements for the child, although he sought some minor changes, for example in relation to the handovers.  That change sought identified a certain time for handover on non-school handovers, and should be adopted to avoid the prospect of further conflict.

19. The ICL also sought orders for telephone time.  The evidential basis for such was not identified.

Private school enrolment

1. The parties are at odds as to whether the child ought to attend a private school or to continue to attend the Suburb E School.  There is insufficient material to determine that the child ought to be enrolled in a private school as sought by the Father.  While he asserts that he would pay for private school fees, the matters that he raises in the financial aspects of the application cause considerable doubt over whether or not this would happen.  It is notable that the Child Support Agency has had to resort to a garnishee notice against the Father to deal with his failure to pay child support.  This fact again means that there could be little confidence that the Father would or could pay for private school fees.  Even absent this uncertainty, sufficient material is not available to support the orders sought by the Father as being in the child’s best interests.

2. No order will be made for enrolling the child in private school.  If this is to be addressed it is appropriate that it be addressed at the final hearing.

Social media

1. The Father sought a restraint on the Mother posting photographs of the child on social media.  He relies upon a post shown at p. 125 of his affidavit dated 14 August 2018.  This depicts the child in a mermaid costume.  While the Father might not approve of such a post, he does not provide a sufficient basis upon which to restrain the Mother from making any posts of the child on social media.

R School

1. The Father seeks an order that the child attend this school once each week.  The Father complains that the Mother is not taking the child to this school regularly.  It appears that attendance of the school will support the child’s connection to her background and development of language and her family’s mother tongue.  The Mother says that she is content for the child to attend the school, but does not wish to be the subject of compulsion as there are other activities that the child is called on to attend on the weekends.  Under those circumstances there is an insufficient basis, pending a final hearing the matter, to compel the Mother to ensure that the child attends every weekend.  Such an order will not be made.

Other orders concerning the child

1. The Mother sought further orders involving telephone time and arrangements where a parent is unable to look after the child for a period of longer than three hours.  These were not the subject of specific submissions.  There is little, if any, evidence establishing inappropriate care arrangements on the part of the Father to justify such an order.

2. Similarly, while telephone orders were sought, there is little, if any, evidence supporting the particular telephone orders sought.  These fall to be determined in the final hearing of the matter.

International travel

1. The Father seeks various restraints preventing the Mother from removing the child from Australia.  In contrast, the Mother asks to travel with the child to India for a period of four weeks during the December / January holidays in 2018-19.  She seeks orders in support of this, including the staying of an Airport Watch List order and orders for the renewal of the child’s passport.

2. The question of restraint on removal of the child from Australia has previously been dealt with by the Federal Circuit Court.

3. In a helpfully focused approach to the case, counsel for the Mother identified that her case for travel was contained in [98] through to [112] of the Mother’s affidavit. 

4. Both parents are from India.  The Mother immigrated to Australia in 2011 becoming an Australian citizen in 2017.

5. The Mother deals with the advantages to the child of being able to experience her religion, culture and family in India in a manner which is denied to her in Australia.  The Mother expresses her view that the child and the Mother should both live in Australia rather than in India, along with an understanding that a failure to return the child may lead to adverse findings made by this Court about her parenting.

6. The ICL supports the Mother’s application for travel pending a final hearing, based on the benefits that have been identified in the family report for travel to India.

7. The Father opposes the travel, setting out the circumstances of his opposition primarily at [41], [42] and [81] through to [104] of his primary affidavit, along with the next appearing pages of 213 through to 218 of that affidavit.

8. A significant aspect of his opposition related to previous travel by the Mother with the child in November 2013.  At that point the parties were experiencing difficulties in their relationship.  The Father asked that his father-in-law arrange travel to India for the Mother.  The father-in-law proposed to include the child in that travel.  The Father responded, indicating consent for the child to travel (although he asserts that this was to create a false impression so that the father-in-law would buy the Mother’s ticket).  He complains that despite having given this apparent consent, the Mother had already purchased tickets for both herself and the child.  The Father also complains that the Mother’s provision of the email string between the Father and the father-in-law omitted important paragraphs where he indicated that he would need to search for his daughter as he did not know where she was, given that the Mother had taken the child.

9. The Mother left Australia on that occasion without advising the Father that this was to happen.  That is, while he had given apparent consent to her, the Mother left unexpectedly with the child.

10. The Father alleges that previously the Mother had said “I will take the child from you, go to India and raise her to believe any man in the street could be her Father.”  He says that he received telephone calls from the Mother’s brothers and other family members saying comments such as “you won’t be able to see your daughter for her whole life.”

11. The Father says that he subsequently was told that the Mother would return to Australia with the child if the Father travelled to India.  He did so.  He was presented with a document by the Mother’s family that he was asked to sign, which would have provided for the child to remain in India.  He refused to sign the document.  He then flew back to Australia without the Mother and without the child.

12. The Mother returned with the child later that month and the parties continued to live together.  The Father immediately commenced proceedings and obtained orders to restrain the child from leaving Australia.

13. The parties accept that India is not a member of the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

14. At present, the facts that go to the issue of whether the child would be returned to Australia if she were to travel to India remain unresolved.  Whilst it is clear that she and her Mother are both Australian citizens, and it is also clear that the Father gave consent for the previous travel, the circumstances raised by him as set out above, if accepted, point to a significant risk of non-return.  Whether those matters are accepted or not will be determined at the final hearing.  At present, they point to a significant enough risk as to mean the restraint on travel should remain.  This is particularly so when balanced against the expectation that the final hearing will take place in 2019, where the question of overseas travel can be resolved. 

15. Orders will be made to maintain the restraint on overseas travel and to ensure that the child remains on the Airport Watch List.

Interim property dispute

Agreed matters

1. The Father and Mother ultimately agreed to a number of matters.

2. They agreed, by way of their balance sheets, on the value of all of the real property other than the property in F Street, Suburb G. While the Mother sought a further valuation in respect of the property in S Street, Suburb E, the agreed value for that property tells against such an order being made.

3. The Father indicated his intention to sell the properties other than the Suburb G property.  In such an eventuality the Mother sought that there be some controls on the manner of sale (in the context of the Father having increased the indebtedness in relation to the properties without agreement in the past).

4. Firstly she sought that the proceeds be used to pay down mortgages and to meet the relevant expenses such as rates and the costs of sale.  The Mother sought that the balance be held on trust.

5. The Father agreed to this approach.  He says that the various properties are cross-collateralised and so the proceeds of sale for any should be used to pay down the others.  Such an approach preserves the asset pool and is appropriate.  He also says that any excess can be retained in the trust account of the Mother’s solicitors, although it does not appear that the sale of all but the Suburb G property will leave any excess.  The proceeds would not be enough to pay out the Suburb G mortgage after they have each paid out the mortgages for the sold properties.

1. The second aspect of the controls sought by the Mother was that there be a particular mechanism for the appointment of a real estate agent and solicitor to act on the sales of the properties.  While the Mother initially proposed a mechanism where she proposed a panel of three real estate agents and three solicitors with the Father to choose from the panel the Father resisted such an approach on the basis that he would be unable to negotiate with these particular agents and solicitors.  He wished to be at liberty to select an agent and solicitor for himself.  In order to deal with this impasse, the Father accepted a mechanism whereby he could nominate a real estate agent and solicitor and, in the event that the Mother unreasonably withheld her consent to the appointment, then the matter could be relisted and she would be at risk of costs being awarded against her.  The Mother did not oppose this amended approach and so orders will be made reflecting this position.

2. The Mother also sought that she provide the letter of instructions for the solicitors and real estate agents.  The Father did not speak against this particular aspect.  Orders were made to support this mechanism.

3. The second matter that was the subject of agreement related to disclosure orders sought by the Mother.  While there were disputes about whether or not disclosure had taken place, the Mother pointing out that she had previously been required to subpoena the Father’s bank records as he had not produced them, and that the subpoenas had revealed the existence of a company (also undisclosed) owned by the Father.  The Father still insisted that he had made disclosure.

4. However, he did not resist the making of an order directing specific disclosure on the basis that he would not have to re-produce items that had already been provided to the Mother.

5. While the Mother had sought orders in relation to gold jewellery, these were not pressed.

6. Further, while the Mother had also sought an order directed to placing a caveat upon the various properties held by the Father, this order was also not pressed.

Matters that were not agreed

1. This left the following matters as not agreed.  Firstly, there was no agreement as to how to value the Suburb G property (which did not have an agreed value).  The Father was open to a single expert being appointed, but said the Mother should have to pay for it, or they should pay for it on a 50-50 split, on the basis that he had already provided an appraisal.  There was nothing to suggest that the appraisal could function as evidence of the value of the property.

2. The evidence does not at present allow the identification of an expert to value the property.  This is a matter that will need to be dealt with on the giving of trial directions.  If it cannot, a consequence may be the sale of the property.

3. The Mother also asked that the Father be restrained from further encumbering any of the properties.  He resisted this saying that once the properties other than Suburb G had been sold, he wanted to obtain further finance.  It was not clear what this was to be directed towards.  Under such circumstances it should be accepted that further borrowing against the properties may place the pool of property at some risk.  If the purpose was identified this concern may well be allayed.  In the current circumstances it is appropriate that a restraint be in place to prevent further borrowing against the properties.

4. The Father also seeks the discharge of orders previously made by Judge Tonkin which allow the Mother to occupy the Suburb G property.  He wants the Mother to move out of the property on the basis that he will pay $250 per week otherwise to support her accommodation.

5. The previous orders that provided for the Mother to have the occupancy of the Suburb G property were made by consent on 14 September 2017. These orders were made by consent, presumably reliant upon the power contained at s 114 of the Family Law Act 1975, which conditions the power to make an injunction relating to the use or occupancy of the matrimonial home upon whether the injunction is proper.[7]  The injunction having been made, it is incumbent upon the moving party to demonstrate that it is no longer proper.  They were subject to an ability on the part of the Father to reapply should his employment status change.  It has changed during the period leading up to the application, although he advises that he has again secured employment.

   [7] See the discussion by Cronin J in Bissett & Bissett [2013] FamCA 431 at [33] and [34].

6. In support of the discharge the Father says that his income is less than his outgoings.  He complains that the child support agency has recently applied a garnishee to his income for outstanding child support.  This, he says, means he cannot meet his outgoings.  He says that the Mother does not need a four bedroom home and he would pay her $250 a week to support her accommodation, but also will seek to amend his child support payments to enable it to be done.  He complains that his employment is volatile.  He also says that he wants to obtain better financial circumstances so that he can work less and potentially spend more time with the child.

7. The Father alleges two facts to support the discharge.  The first is as to his financial circumstances, being an alleged inability to now meet his expenses.  The context of the interim proceedings does not allow these to be tested.  Noting that there was a reasonably short period of unemployment for the father, it is still remains unexplained how the Father’s circumstances have changed so far as to justify the discharge.  It may be accepted that there was an adverse impact upon his finances.  However, the degree is not identified and in the context that he has secured further employment, falls short of establishing a relevant change in the financial circumstances.  It is also noteworthy that the Father’s proposed course of action (authorised under the orders to be made here) will allow for the disposal of a number of properties and paying down of mortgages, including on the former matrimonial home, presumably improving whatever financial position is then in existence.  Further there seems to be no suggestion that the Mother’s financial circumstances have improved.  Her circumstances appear to remain difficult.

8. The second justification is the assertion by the Father that he will pay the Mother an amount toward her accommodation.  Given the circumstances surrounding his failure to meet his child support obligation absent a garnishee order, there can be no confidence that the payment suggested by the Father (presumably to be characterised as spousal maintenance) would be paid.  There can also be little confidence that it would be sufficient to enable the Mother to house herself.

9. In these circumstances, it is appropriate that the orders providing the Mother with the occupancy of the Suburb E property continue.

Psychiatric assessment

1. The Father seeks a psychiatric assessment of each of the parties.  He seeks to exclude the child from this process.  He says that he will pay for the assessment.  The evidence does not set out the basis on why the appointment of any of the nominated psychiatrists is appropriate, nor what practical arrangements would need to be in place to facilitate assessment.  That is, there is insufficient material to demonstrate that the orders sought are appropriate to the end sought by the Father.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 November 2018

Associate: 

Date:  15 November 2018