Paintal & Paintal

Case [2022] FedCFamC1F 89

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Paintal & Paintal [2022] FedCFamC1F 89

File number(s): CAC 273 of 2014
Judgment of: GILL J
Date of judgment: 25 February 2022
Catchwords:

FAMILY LAW – PARENTING – Where father asserted that if orders are made for the child to live primarily with the mother, or if orders other than that he have sole parental responsibility are made, that he would spend no time with the child until she turns 13 years old, at which time the child should undertake further assessment – Where the father perpetrated serious family violence upon the mother – Where the father sought to undermine the mother’s role as primary carer by involving the child in the dispute – Where the father claimed that the mother manipulated the Court processes – Where there is no paradigm requiring a victim of family violence to respond in a demure or cowering fashion, or to refrain from responding in an aggressive manner – Where orders are made for no time with the father.

FAMILY LAW – PROPERTY – Where the father did not provide proper financial disclosure – Where the father remitted significant sums of money to India to deplete the pool of property – Where the father confected sham loans to deplete the pool – Where the father manipulated his financial circumstances – Where the father claimed but did not prove Capital Gains Tax liability accruing on making payments to the mother.

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 62B, 65DA, 65DAA, 65Y, 75

Family Law Rules 2004 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09

Cases cited:

Bevan v Bevan (2013) 49 Fam LR 387

Chang v Su(2002) FLC 93-117

Chorn & Hopkins (2004) FLC 93-204

Dickons v Dickons (2012) 50 Fam LR 244

In the Marriage of Hickey (2003) 30 Fam LR 355

Kowaliw & Kowaliw (1981) FLC 91-092

Mazorski v Albright (2007) 37 Fam LR 518

Marsden & Winch (No. 3) [2007] FamCA 1364

McClintock v Levier (2009) 41 Fam LR 245

Omacini & Omacini (2005) FLC 93-218

Phillips & Hansford (No 2) (2019) 60 Fam LR 160

Stanford v Stanford (2012) 247 CLR 108

Trevi & Trevi (2018) FLC 93-858

Wallis & Manning (2017) FLC 93-759

Weir and Weir (1993) FLC 92-338

Division: Division 1 First Instance
Number of paragraphs: 403
Date of hearing: 15 – 24 March 2021
Place: Canberra
Solicitor for the Applicant: Ltigant in person
Counsel for the Respondent: Ms Treherne
Solicitor for the Respondent: Jeanine Lloyd & Associates
Solicitor for the Independent Children's Lawyer: Legal Aid, ACT

ORDERS

CAC 273 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PAINTAL

Applicant
AND:

MS PAINTAL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

25 FEBRUARY 2022

THE COURT ORDERS THAT:

PARENTING

1.All previous parenting orders are discharged.

2.Ms Paintal (the mother) shall have sole parental responsibility for the child X, born…

Continue reading Paintal & Paintal

Sign in free to access the full text

Details
AGLC
Paintal & Paintal [2022] FedCFamC1F 89
Case
[2022] FedCFamC1F 89
Decision Date

CaseChat Overview and Summary

In the case of Paintal & Paintal, the primary concern was the dispute between the parents regarding the welfare and upbringing of their child, X. The court was tasked with determining the appropriate custody arrangements and decision-making processes for X, given the contentious history between the parents. Both parties accused the other of unilateral decision-making and inappropriate actions concerning their child. The father objected to the mother having X's hands painted with henna without his consent, arguing it was not age-appropriate and could lead to bullying. Conversely, the father shaved X's head against the mother's wishes, and his reasoning for doing so was deemed inconsistent and dishonest by the court.

The legal issues before the court involved assessing the credibility of each parent's claims of family violence and manipulation, and determining the best interests of the child in terms of custody and decision-making. The court had to weigh the evidence of both parents, along with third-party testimonies, to ascertain the truth of the allegations and decide on the appropriate custody arrangements. This included examining specific incidents, such as the henna painting and the head shaving, to understand the context and motivations behind each parent's actions.

The court found that the father's actions were inconsistent and dishonest, particularly regarding the reasons provided for having third parties present during a handover of the child. The court also considered the broader history of conflict and allegations of family violence between the parents. In determining the best interests of the child, the court emphasised the importance of stability and minimising exposure to conflict. As a result, the court extended the time X would spend with the father during school holidays to 10-day periods, aiming to balance the child's need for stability with the parents' respective roles in her life.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 8 December 2020, orders were made in this Court extending the time X spends with the father on school holidays to 10-day periods. Unilateral decision making Each of the parties complains as to the conduct of the other in respect of decision making for X following separation. The father complained of the mother causing X to have henna paintings on her hands when she was five years old. It was uncontroversial that the mother did so without the father’s agreement. His complaint was made on the basis that it was not age appropriate and because X would appear different to other children and she would be vulnerable to bullying as at the time she was not of an age to defend her culture. Bearing some similarity to this incident, the father caused X’s head to be shaved in … 2017 when she was aged almost six over the mother’s objection (and the opposition of the ICL). He did not consider that the shaving of X’s head would cause her distress unless she was subjected to bullying. He asserted it was important to shave X’s head at the start of the holiday break as there was the opportunity for it to grow back before school. The father, in part, justified his position on the basis of the mother’s previous consent to head shaving that had been indicated in … 2013 when the mother was in India and X was aged approximately 20 months. However he accepted that he was aware that the mother opposed the head shaving prior to his causing it to happen. Shortly after her head was shaved, X was due to be returned to the mother on … 2017. The father caused third parties to be present for this changeover. He initially explained that his causing their attendance was merely coincidental. Subsequently he explained it was because he was afraid of bullying. This sat poorly with his initial assertion that he had given no thought to the mother being upset regarding the shaving of X’s head. There was also significant conflict between his initial explanation to the Court and the explanation that he had previously given to his friend Mr Y, who affirmed an affidavit on 27 June 2018 and said at [4] as follows: On Tuesday, … 2017 at approximately 10:00PM, [Mr Paintal] called my mobile and asked me if I could meet him outside Coles supermarket in [Suburb H] the next day but 7:45am to provide emotional support during hand over of [X] into [Ms Paintal’s] care. [Mr Paintal] explained that he was worried about [Ms Paintal] becoming verbally abusive during hand over as a result of noticing that [X’s] hair had been shaven in accordance with his religious practices. The father’s initial oral evidence that potential bullying by the mother in response to the head shaving was not the reason for him causing his friends to attend[60] was dishonest.[60] Transcript 16 March 2021, p.123 lines 35–36. The father then described the mother’s behaviour as follows:On Wednesday […] December 2017 morning 8:00am, during the changeover at [Suburb H] Coles, I dropped [X] back to the respondent. The respondent started aggressively yelling at me in front of public people and my friends [...] about our head (hair) been shaved. I said to the respondent in effect “please talk to your lawyer if you have any concerns in regards to this matter” and I left the place to go to the Coles underground carpark to drive back home. The respondent followed me to the carpark, pulled [X] in front of my car standing and blocking my car in the pedestrian way and against aggressively yelling at me … Later that day I went to [Suburb H] Police Station to report the respondent’s dangerous behaviour of stalking involving [X], but Police was helpless to me.[61] (As per the original.)[61] Affidavit of the father filed 1 December 2020, paragraph 159.

Ratio Decidendi

Legal Principle Established

It is against these general principles that the circumstances of this case are to be weighed.ISSUES PRIOR TO FINAL SEPARATION As noted in the introduction, the parties have experienced a highly conflictual relationship that each describes as having descended into family violence. On the mother’s account this was a feature from early in the relationship. Key contentious examples are dealt with below. Whilst they may not cover every allegation made by the parties, they deal with issues focussed upon by the parties to show either, on the mother’s part that the father was controlling and violent or, on the father’s part that the mother has been violent and abusive to him, and that she has been manipulative of the processes and circumstances to support her position.Pressure in respect of a pregnancy termination Ms UU, who was a friend of both of the parties during their relationship (and initially a friend of the father), gave evidence of an interaction between the parties regarding the proposed termination of a pregnancy by the mother in May 2013.[14] She recalled that there was a discussion of the use of the morning after pill, and that the father was insistent that the termination occur in Australia rather than in India so that he could know that it had taken place. [14] Affidavit of Ms UU filed 30 June 2018, paragraph 2. The father criticised this evidence on the basis that Ms UU was unable to say whether there had been a pregnancy at all. This criticism did not however detract from the evidence of his insistence that there be a termination, or that it be undertaken in a manner that allowed him to be satisfied that it had been done. The father was also critical of the mother’s evidence that he had purchased morning after pills for her from the chemist. The father was not asked about having done so and disputed that a pregnancy could be terminated by the use of the morning after pill as asserted by the mother. However, Ms UU’s testimony establishes that a part of the discussions involved the morning after pill and, despite the father’s criticisms of the evidence, Ms UU’s testimony was sufficient to establish the father’s insistence as to the termination of a pregnancy, with the termination to be on terms that could satisfy the father that it had occurred. This was suggestive of an attempt by the father to control the mother.Shoe prints The mother alleges that she was beaten by the father with a shoe in 2013.[15] The mother says that shoe prints were left on her back by the assault. The mother accepted that she did not seek medical treatment despite her description of bruising and swelling. She described that at that time she did not attend upon a doctor without the father being present. She says that she did not start to see a doctor without the father being present until she started working in 2017. Although when cross-examined the mother was criticised on the basis that she used the word “pair” to describe the shoe, whilst on her description it was a single shoe. Nothing turns on this use of language which the mother, for whom English is a second language, described as a grammatical error.[16][15] Affidavit of the mother filed 20 January 2021, paragraph 81. [16] Transcript 19 March 2021, p.388 lines 11–14.