Paintal & Paintal
[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 … 2012 (“X”).
3.X shall live with the mother.
4.X’s name shall be removed from the Airport Watchlist and the mother shall be entitled to obtain all necessary documents including an Australian Passport to permit the child to travel internationally outside of Australia.
5.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to travel outside Australia with X.
6.Mr Paintal, the father, is restrained from using any subpoenaed material provided in this case, any affidavit filed by the mother, and any family report for any purpose other than for seeking medical or legal advice, mediation or receiving counselling.
7.Pursuant to ss 62B and 65DA of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
PROPERTY
8.Within 30 days of these orders the father shall transfer to the mother, to an account as specified by her in writing, the sum of $232,000.
9.Within 60 days of these orders the father shall transfer to the mother, to an account as specified by her in writing, the further sum of $310,000.
10.Pending compliance with the above orders, the father is restrained from taking any steps to encumber the property without the written consent of the mother.
11.Each party shall retain their superannuation interests, individual bank accounts held by them and any chattels in that parties’ possession at the time of these orders.
12.The father shall indemnify and keep indemnified the mother with respect to all past, present and future liabilities of DD Pty Ltd, such liabilities to include but not be limited to any taxation liabilities, penalty notices and all other debts of whatsoever nature.
13.The mother is entitled to maintain, to the exclusion of the father, the property situated at S Street, Suburb E, ACT for a period of 60 days from the making of these orders.
OTHER
14.The father’s Contravention Application filed 20 November 2019 is 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
GILL J:
INTRODUCTION
These proceedings involve the resolution of both child and property related matters arising out of the parties’ marriage. They are proceedings characterised by serious allegations made by each party against the other, both as to participation in family violence and as to parenting defects, and further characterised by a lack of disclosure in relation to their property dispute.
The parties both originate in India. The father, an Information Technology (“IT”) professional, was a resident in Australia prior to the commencement of their relationship while the mother, also an IT professional, was living in India. By the time the relationship started the father had acquired a number of properties in Australia.
The parties’ marriage was an arranged one. The parties first met in early March 2011 prior to becoming engaged in 2011, then marrying in Town EE, India in 2011. In 2011 they both travelled to Australia, the mother then reliant upon a tourist visa. Within about two months of her arrival in Australia she was pregnant with the sole child, the subject of the proceedings, X, who was born in 2012.
The parties experienced a highly conflictual relationship, both prior to and following their final separation.
The father has continued working in the IT field, while the mother has engaged in paid employment in a limited manner, and not in the IT field.
The parties finally separated in March 2017.
As at final hearing, interim parenting orders provide that X live with the mother and to spend time with the father for five days per fortnight, and for her to spend 10-day period with him during the holidays. Under those orders, the parties have equal shared parental responsibility for X.
POSITIONS OF THE PARTIES
The orders sought by each of the parties, as expressed in their final submissions, are outlined below. The mother provided a minute of orders which is extracted in full in the annexure at the conclusion of these reasons. As the father confirmed the orders he sought in a narrative fashion during the hearing, no proposed minute of orders by the father is included in that annexure.
Both parties seek to travel overseas, in particular to India, with X and seek that restrictions be placed on the other parent in relation to overseas travel with X.
The father’s position
The father seeks to have sole parental responsibility for X and for X to live with him. He initially sought that X spend “reasonable time” with her mother, which he proposed be for a period of four hours each Sunday, increasing to four nights per fortnight from April 2023 when X is 11 years of age.
In his closing submissions he said that if sole parental responsibility was granted to him then he was “more than willing” to share 50 per cent of the time with the mother.[1]
[1] Transcript 23 March 2021, p.592 lines 36–39.
Alternatively, if the Court makes orders that the mother is to have sole parental responsibility for X and that she lives with the mother, the father seeks no time with, or communication with X until she obtains the age of 13. When X is 13 years of age the father then seeks a Family Report to be prepared by an independent psychologist.
The father’s evidence was that he would “absolutely not” continue to spend time with X if orders were in the same terms as present, and that he would not exercise that time with X even if orders were in place to allow it.[2]
[2] Transcript 15 March 2021, p.74 lines 19–21.
In relation to property, the father seeks that he retain his superannuation and that the balance of the asset pool be split 90/10 in his favour. However, he also suggested that if orders are made for X to live with the mother and accordingly he does not spend any time with X, then he would consider that a larger portion should go to the mother. In his closing submissions he identified that the split should then be 60/40 in his favour. He further modified such that the mother would receive only 20 per cent, with the balance of her receipt (a further 20 per cent) to be held on trust for X, and with the father then providing a further 10 per cent into that trust account for X. Effectively, he sought that the mother receive 20 per cent, he 50 per cent and X have in trust 30 per cent.[3] He ultimately made no specific submission regarding his superannuation saying that it was a matter for the Court.
[3] Transcript 23 March 2021, p.588.
Prominent issues
The father has been highly involved in X’s life. Post separation he has continued dance and language school for X. He has enrolled X in additional tutoring. He takes X camping and to special occasions at Hindu temples, which occur at a frequency of about once per month.
Despite the father’s position that he has a positive relationship with X, where she is spending five nights a fortnight and 10-day period in holidays with him, where she enjoys their time together and the things that they do together, his position is that if she lives with the mother, or if he does not have sole parental responsibility, she should spend no time with him until she turns 13.
The father further explained his position that he would not spend time with X until she turns 13 on the basis that by that age, she would be able to express whether she wanted to spend time with the father to a psychologist, providing a basis for a further application to be made by the father. He also thought that at age 13 she would be able to express her views without being affected by coaching by the mother. The significance of X potentially resuming time with the father at 13 years of age is that the father expects that X would then be of an age to negate false allegations made about the father by the mother.[4]
[4] Transcript 16 March 2021, p. 110 lines 1–6.
The father said that he does not know whether X would want a relationship with him at that point.
Although the father contends that this would impact greatly on X, he says that this would benefit her in the long term in the context of the conflict between the parties. He says that the source of their conflict centres on their inability to make long-term decisions and the mother lacks the capacity to make good long-term decisions for X. He says that the conflict occurs when the mother does not agree with the decisions that he makes in the best interests of the child, that is, that the mother does not make long-term decisions that are in X’s best interests.
The father gave as an example of such conflict an incident shortly following the commencement of proceedings where he caused X’s head to be shaved for religious purposes. He says that despite the mother’s previous enthusiasm for such a ritual, he was aware at the time that he caused the shaving to take place that the mother opposed it. While he knew that causing her head to be shaved would cause conflict, he considered that it would be in X’s best interests. The mother’s failure to support the head shaving at that time was a matter that he says indicates her poor decision making for X.
A further example of the conflict was identified by him as relating to private schooling for X. He says that pre-separation, the parties had agreed that X should be privately schooled, but that despite his willingness (and ability) to fund it, the mother now opposes it. He says that this is a position that is not in X’s best interests.
The father also alleged that the mother fabricated evidence, confecting various allegations against him, including of sexual abuse of X. He alleged that he, and his mother, were stalked at various times by the mother and that he has been assaulted by the mother. He further asserted that the mother abducted X to India without his approval, causing him to spend approximately $100,000 in efforts through a private investigator and the Supreme Court of India to have X returned to Australia, and that she arranged to have him assaulted when he went to India.
The father asserts that he will support a meaningful relationship between X and the mother. While the father contends that he says nothing negative about the mother when X is with him and while he asserts that X is free to talk about and draw pictures of the mother while she is with the father, his evidence was silent as to anything positive that he could say about the mother to the Court. Although he asserted that he could be positive about the mother in relation to her day-to-day parenting, he also asserted that he was so traumatised by the mother that he could not think of a single positive thing about the mother in her role as a parent. He later returned to this answer, asserting that what he meant was that he would not answer the question and that the question was irrelevant. Despite English not being his first language, I do not accept that this was the effect of his previous answers. There is nothing in his evidence that indicated that he recognised any positive quality of the mother as a parent.
The mother’s position
The mother seeks to have sole parental responsibility for X and for X to live with her. She seeks that the number of consecutive nights that X currently spends with the father be reduced to from after school Friday until 5 pm on the Sunday of each alternate weekend. The mother said that, despite the position articulated by the father that he would spend no time with X in the event that the mother holds sole parental responsibility, an order should still be made for X to spend time with him, but that should he fail to exercise that time on two consecutive occasions without a medical certificate then the order is discharged and X’s time should then be as agreed between the parties.
The mother also sought restraints be imposed regarding denigration of either parent and the use of physical discipline upon X.
In relation to property, the mother seeks 40 per cent of the non-superannuation asset pool, with no adjustment to the parties’ superannuation interests.[5] However, the mother asserted that the non-superannuation asset pool should be reckoned differently to the manner in which the father asserted, as she submitted that there should be significant notional add-backs to that pool for amounts expended by the father on legal fees, purported payments to various persons in India and unexplained cash withdrawals. She seeks a cash payment.
[5] Transcript 23 March 2021, p.610 lines 1–3.
Prominent issues
Of the suite of allegations made by the mother, in her closing submissions she narrowed the list of those for which she sought findings, which are set out below:
(a)In 2013 the father beat the mother with a shoe;
(b)In about November 2013 the father punched the mother in the back;
(c)In February 2014, following the mother’s return to Australia from India, the father shouted at and hit the mother;
(d)In 2014 the father hit the mother on a daily basis and, in particular, on occasion when the mother made a comment about herself and X dying, the father dragged the mother from the bed and struck her when X was crying, as the mother’s milk had dried up and she was unable to feed her;
(e)In about June 2016 the father bent the mother’s finger back and broke it;
(f)The father exercised financial control over the mother, during and following the end of the relationship;
(g)The father sent abusive messages to the mother; and
(h)The father has struck X on her bottom and slapped X on her face.
The list of matters pursued by the mother in final submissions should not be thought to be the sum total of the ground upon which the parties fought their cases and, accordingly, other aspects of the evidence led will also be dealt with in the judgment.
Despite her criticism of the father, the mother accepts that X loves him and would miss out without him. The mother was, however, critical of the time that X spends with the father. Accepting that X enjoys some things with the father, she described that the time with the father is negative for reasons such as the food being too spicy, or X having difficulties with the bicycle that the father provided for her to ride. These criticisms were trivial and displayed more a poor view held by the mother of the father rather than constituting substantive deficits in X’s time with the father. However, the mother also alleges that X has reported to her that the father has struck her. This is a matter of more substance than the other complaints.
The Independent Children's Lawyer’s position
By the end of the hearing the ICL’s position was that X should live with the mother and for the mother to exercise sole parental responsibility, although with an obligation to ensure that the father is made aware of the major decisions that are made. Despite the father’s position on such orders eventuating, the ICL considered that orders ought to be made for regular time with the father, but that if the father did not exercise the time then the orders should be vacated without resort to further litigation.[6]
MATERIAL RELIED UPON
[6] Transcript 23 March 2021, p.625 lines 15–18.
Applicant Father
As per the father’s affidavit filed 1 December 2020 at [554], as amended orally at the hearing, he relied upon the following documents:
(a)Affidavit of the father filed 1 December 2020;
(b)Affidavit of the father filed 15 February 2021;
(c)Affidavit of Mr FF filed 28 July 2018;
(d)Affidavit of Ms GG filed 28 October 2020;
(e)Affidavit of Ms HH filed 23 October 2020;
(f)Affidavit of Mr JJ filed 21 October 2020;
(g)Affidavit of KK filed 5 November 2020;
(h)Affidavit of Mr LL filed 12 June 2018;
(i)Affidavit of Mr MM filed 12 June 2018;
(j)Affidavit of Mr NN filed 10 August 2018;
(k)Affidavit of Mr NN filed 8 November 2020;
(l)Affidavit of Mr OO filed 14 March 2021;[7]
(m)Affidavit of Mr PP filed 21 October 2020;
(n)Affidavit of Mr QQ filed 21 October 2020;
(o)Affidavit of Mr U filed 22 October 2020;
(p)Affidavit of Mr BB filed 22 October 2020;
(q)Affidavit of Mr RR filed 27 June 2018;
(r)Affidavit of Mr SS filed 12 June 2018;
(s)Affidavit of Mr TT filed 18 May 2017; and
(t)Financial statement of the father filed 21 July 2017.[8]
[7] Transcript 15 March 2021, p.3 line 25 to p.4 line 40.
[8] Transcript 15 March 2021, p. 50 line 41 to p. 51 line 31; p. 293 line 12 to p. 294 line 13.
Respondent mother
As per the mother’s case outline document, she relied upon the following documents:
(a)Affidavit of Ms Paintal filed 20 January 2021;
(b)Affidavit of Ms UU filed 30 June 2018;
(c)Affidavit of Ms VV filed 28 June 2018;
(d)Affidavit of Mr WW filed 30 June 2018;
(e)Affidavit of Mr XX filed 19 January 2021;
(f)Case outline and annexures emailed to chambers on 12 March 2021; and
(g)Tender Bundle (4 volumes), provided electronically to the court.
Independent Children’s Lawyer
As per the ICL’s case outline document, the ICL relied upon the following documents:
(a)Outline of case document filed 24 February 2021; and
(b)Tender Bundle.
Tender Bundles
To the extent that the parties sought to rely upon Tender Bundles they were directed that they would not be received into evidence in whole, but that the parties would be required to tender the individual extracts that they rely upon. Accordingly, only those portions of the Tender Bundles that were specifically exhibited have entered into evidence in the trial of the matter.
Absence of a family report
No family report was before the Court. Although one had previously been prepared it was excluded from the hearing of the matter on the application of the father for reasons addressed in a previous judgment that dealt with that issue. A further report was unable to be ready for the trial of this matter. The parties and the ICL indicated that there should not be a further order for the preparation of one, which would have seen the parties then return for the continuation of the trial.
It should be noted that the father indicated that he would not take part in any observation session with X should a further report be ordered. The ICL correctly observed that this would undermine the cogency of any further report.
There was benefit identified in protecting X from further exposure to the litigation process by declining to order a further report and by determining the matter on the evidence absent such a report.
These matters meant that despite the desirability of having a family report, I determined that one should not be ordered as it would be unlikely to adequately deal with the issues that would assist the Court, would result in further delay, and would further expose X to the litigation process.
PRINCIPLES – CHILDREN'S PROCEEDINGS
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the best interests of the child. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. In Phillips & Hansford(No 2)[9], Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[10] Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.
[9] (2019) 60 Fam LR 160.
[10] (2019) 60 Fam LR 160 p.161 line 8.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
In Marsden & Winch (No 3)[11], Warnick and Thackray JJ observed (at [78]) in relation to both the interplay between the considerations, that a primary judge is:
… of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
[11] [2007] FamCA 1364.
However, they also noted that:
77. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright[12], frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) which concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence.
[12] (2007) 37 Fam LR 518, [3].
Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3)[13], that the Act places focus, not on meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
[13] [2007] FamCA 1364.
Sections 61DA and 65DAA of the Act further provide a framework for consideration that commences with a presumption in favour of equally shared parental responsibility, which is here rendered inapplicable pursuant to s 61DA(2) by the findings as to family violence that will be made. It may be further observed that an order for equally shared parental responsibility would not be in X’s best interests as cooperation between the parents in relation to long term matters is palpably unavailable, rendering them incapable together of complying with the obligations that attach to an order for equally shared parental responsibility as set out at s 65DAC of the Act. Accordingly the pathway of reasoning set out at s 65DAA is inapplicable to this case.
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.
Importantly, Ms UU gave evidence in relation to her knowledge of the incident.[17] She stated that she saw the imprints of what she took to be boot marks on the mother’s back after the mother told Ms UU that the father had hit her repeatedly on the back with a work boot. Ms UU described the imprint as a repeated square pattern. In response to questioning about the seriousness of the injury and the mother’s decision not to seek medical attention, Ms UU stated that as the injury did not involve broken skin or bones it was not an injury that would require medical attention. When questioned about why Ms UU had not involved the police she explained that Australian Federal Police (AFP) involvement was a matter for the mother.
[17] Transcript 18 March 2021, p.333 to p.334.
Ms UU’s evidence is strongly corroborative of the mother receiving an injury to her back from an object such as a shoe and, together with the testimony of the mother, is sufficient to establish that the father did in fact beat her with a shoe to the back.
Punches in the back
The mother alleges that shortly after being struck with the shoe, on or around 16 November 2013, the father punched her in the back whilst she bathed X, telling her that she should book tickets to go to India and that she should not be in the home by the time that he got back, or else he would call the police.[18] This shortly preceded the mother travelling to India with X as described below. I accept the mother’s account in relation to this event.
[18] Affidavit of the mother filed 20 January 2021, paragraph 83.
The trip to India
The father alleges that the mother left Australia, abducting X, on … 2013.[19] He says that he only discovered that the mother was leaving with X after she had gone.
[19] Affidavit of the father filed 1 December 2020, paragraphs 318–319.
The mother denies that the father was unaware of her departure and describes the incidents leading up to her departure.
Apparently as part of his case that the mother had manipulated the proceedings the father called evidence from Mr FF. He gave unchallenged evidence, described that in the latter half of 2013 the mother, in the context of marital difficulties between herself and the father, told Mr FF that she could take X back to India without telling the father.[20]
[20] Affidavit of Mr FF filed 28 July 2018, paragraph 6.
Shortly prior to the mother travelling to India she received a parcel from the father’s family in India, containing a dress for X for a religious festival. The father asserts that the mother both destroyed the parcel and denied receiving it. The mother accepts that she denied receiving the parcel at the time, with the benign explanation that she did so in order to surprise the father, and that she did not destroy the parcel as the father alleged but that X ultimately wore the dress that was provided by the father's family.[21]
[21] Transcript 19 March 2021, p.389 line 37 to p.390 line 3.
The mother describes that following conflict over the parcel she and X were locked out of the family home by the father, that she was told to leave by the father under threat of him involving the police against her, and that he threw the passports at the mother.[22] She said that the father would not respond to her calls and that later in the day she travelled to Sydney airport. The mother purchased one-way tickets for herself and X, at Sydney airport, paid for using funds from an account into which the father had deposited money and for which the mother had card access. The mother says that despite the purchase of one-way tickets she was intending to return.[23]
[22] Transcript 19 March 2021, p.384 lines 5–40.
[23] Transcript 19 March 2021, p.382 lines 38–44.
The father accepted that he had proposed that the mother travel to India for a period, although he alleges that X was not part of this proposal. The father produced correspondence in relation to the issue, providing translations of the correspondence by a National Accreditation Authority for Translators and Interpreters (NAATI) accredited translator, Mr NN as annexures to Mr NN’s affidavit. Annexure MS7 is a letter from the father to the maternal grandfather describing the deterioration of the marriage, proposing that the mother should travel to India, and that the maternal grandfather should make the arrangements.
Annexure MS6 contains reply correspondence from the maternal grandfather saying that he would book for the mother and X. The father’s response, sent on 16 November 2013, was relevantly in the following terms:
By the way, Thank You Very Much for responding to my request of organising the travel for [Ms Paintal].
Also this time (only this time) I’m ready to pay the biggest & invaluable price of my life that leaving [X] (separated from me) with her mother in a hope that the family will reunite soon to continue a happy life with full of values and respect.
The father sought to explain this email in the light of his other claims that X was not included in his agreement that the mother travel to India, saying that he only sent the email once he discovered that the mother had boarded the flight. The timing of this communication coincides with the mother having departed Canberra for India.
The father also complained that the mother doctored the version of that email that she presented to the Court. He says that Exhibit F5 is the full email and that the email produced by the mother at Annexure B of the mother’s affidavit of 13 September 2017 was a version that omitted two paragraphs that referred to the need for the father to go looking for X, as the mother had removed X, and that he may need to attend the police station. The mother denied knowledge of the removal of the paragraphs.
I am unable to conclude what happened in relation to the missing/additional paragraphs. On balance it appears, by virtue of the email correspondence from the father, that he agreed to the removal of X to India with the mother, despite his evidence to the contrary. The presence or absence of the contested paragraphs does not prevent such a conclusion, although it potentially indicates that the father may have been surprised that the mother acted so promptly. Her prompt action is consistent with the permission reported to her father, the deteriorating relationship, and her account of being abused and locked out of the home.
I do not accept the father’s explanation as being that he gave his apparent, but non-genuine permission in the face of his disagreement that X be removed because he understood that she was already gone. Rather the email demonstrates his consent.
In pursuit of his case that X had been abducted by the mother, the father also denied that he knew where the mother was in India. He says that he spent in excess of $100,000 on a private investigator and legal fees in an attempt to find out where X was, to check her well-being and to secure her return.[24] The father also sought assistance from the Department of Foreign Affairs and Trade (DFAT), the AFP and Australian International Social Services (AISS).[25] It may be accepted that he sought assistance from DFAT, the AFP and AISS, particularly as some of these steps are supported by the evidence of his co-worker Mr JJ and also Exhibit M3.
[24] Affidavit of the father filed 1 December 2021, paragraph 538.
[25] Affidavit of the father filed 1 December 2020, paragraphs 341; 442–443.
The father further alleged that he commenced proceedings in the Supreme Court of India to secure X’s return. However, he provided no material supportive of recourse to a private investigator, nor of the institution of proceedings, nor of the $100,000 being spent in such a manner (other than a purported loan to fund it). While he claimed that the court documents had been destroyed by the mother[26] this does not explain the complete absence of supportive material.
[26] Affidavit of the father filed 1 December 2020, paragraph 538.
Further, the father’s claims as to his pursuit in court and via a private investigator sit poorly with other matters. For example, although he accepted that he had an email address for the mother, he at no stage emailed the mother to ask where she was. Although he agreed that he had emailed the mother during the time that she was in India, he explained his lack of inquiry on the basis that his correspondence was self-restricted to responding to the mother’s emails. He explained that he did not even ask the mother her whereabouts as he was not in a state of mind to, anticipating that false information would be given to him.
The father further accepts that the mother visited his family whilst in India, although he claimed that this was to argue with them rather than to visit.[27]
[27] Transcript 16 March 2021, p.144 lines 40–45.
Conflicting further with the father’s assertions is an email from the mother to the father of 23 November 2013 contained at Annexure 37 of the father’s first trial affidavit that included the following assertion by the mother:
… if i take away [X] from u or decide to walk out of ur life
both is not my stand
and i am just staying here for 3 months
Further conflicting with the father’s assertions is Annexure MS9 to the affidavit of Mr NN being the translation of an email from the mother to the father of 29 December 2013. The mother is seeking the resumption of the relationship with the father, describing that he had asked for space, but reaffirming her love for him, and inviting his contact with X via Skype.
In a further email of 6 February 2014 at Annexure 61 of the father’s first trial affidavit the mother stated:
In every mail u have potrayed I’m not allowing u to meet [X] or separating you from her , which is not true , if ur so concerened abt ur daughter u would have come to india the very next week I came from australia , sorted things out between us and seen [X] , but during these 2 months ur not bothered to even make calls to find out how she is … you had christmas holiday one week and ur were financially sound also you could have come down to [Town YY] to see [X] and sorted things between us …
(As per the original.)
While the father accepted that the mother offered Skype communication while in India, he asserted that this did not mean that the offer was genuine, and said that he could not recall the opportunity.
The father accepted that he also had a postal address for the mother’s family, as he corresponded with the maternal grandfather.
Mr FF also described that after the mother travelled to India he was used as a conduit for certain communications between the mother and father.[28] The father included some of this messaging in his affidavit indicating that there was communication between the parties during this time.
[28] Affidavit of Mr FF filed 28 July 2018, paragraph 7.
In further contrast to the father’s assertions, the father’s mother gave evidence that the mother was not in hiding when she was in India, saying that she had visited the mother’s home in Town YY. The father’s mother also described that the mother had come to her home on 14 January 2014 with her family and had caused problems for the day.
Exhibit M4 is an email from the father to the mother of 6 February 2014. It indicates that the father was present in India at that time, that the mother and father had agreed to meet, but that the father did not want X present as he did not want her sleep to be disturbed. It further references that the mother had asked him to arrange tickets for their return and to collect her, but the father complains about their conflict and the complaints that the mother was voicing to him. The email not only evidences the capacity of the father to contact the mother, but also her willingness to meet with him and to return to Australia. It stands in stark contrast to the father’s assertions about the need to engage a private investigator and commence court proceedings.
The father’s account in relation to the circumstances of X’s removal to India and his efforts to recover her are disingenuous and should be rejected. His assertion that he spent $100,000 to try to secure X’s return should be rejected.
The mother returned to Australia with X in February 2014, approximately three months after leaving Australia, in accordance with her assertion in her email.
The father also claims that the mother damaged X’s passport in 2019 by removing pages that bore both a lifelong visa for X and her overseas citizenship of India. While it may be accepted that X’s passport was damaged, it has not been established how or by whom and so no findings will be made about that allegation.
Shouting and hitting
The mother described that the father acted “like a gentleman” when they returned from India in February 2014, but when they got off the bus in Canberra and “got inside his car, [Mr Paintal’s] behaviour immediately changed. He closed the windows and started to verbally abuse me with vulgar words...The moment we got home I entered the home and he slapped my face hard.”[29] The father denied the mother’s account[30] and during cross-examination he expressly denied shouting at the mother in the presence of X during the car-ride home from the airport.
[29] Affidavit of the mother filed 20 January 2021, paragraph 90.
[30] Affidavit of the father filed 15 February 2021, paragraph 127.
The mother asserted that this became persistent conduct on the part of the father, involving the father dragging her from bed repeatedly at night, seemingly linked to X crying and the mother struggling under the circumstances to continue to breastfeed her, as the mother’s milk was drying up.
I accept the mother’s description over the father’s denial, particularly as there is good reason to doubt the father’s credibility (given my findings above regarding the mother being beaten with a shoe, his disingenuous account regarding India, and later findings about his credibility).
This formed the backdrop to the father’s allegation that the mother threatened to kill herself and X.
Threat by mother to kill herself and X
At [423] of the father’s December affidavit, the father asserts that the mother threatened to kill herself and X if the father left the relationship. Exhibit M6 contains an extract of Child and Youth Protection Services (“CYPS”) records that reports that the father made this allegation to the police in 2014.
The father relies on the affidavit of Ms HH, an interpreter. The interpreter listened to an audio file which was one minute and 48 seconds in length, described as containing “a woman verbally communicating, primarily in a foreign language (some English is also spoken).”[31] The interpreter provided the following translations:[32]
At 00:51
“Listen, you should not say that I did something without your knowledge.”
At 1:05
“Just leave me. You are driving me and I promise I will just kill my daughter and I will also die. Your family does not deserve a woman to live in it. It is an accident that your mother and three other women are living there. One has to be a monster to live there, I suppose.”
At 1:33
“Okay. We’ll end our marriage. I’m telling you very clearly. There’s nothing between you and me from now on. You’re just an asshole.”
“Didn’t I tell you, it’s not your own idea.”
(As per the original.)
[31] Affidavit of Ms HH filed 23 October 2020, paragraph 3.
[32] Affidavit of Ms HH filed 23 October 2020, paragraph 4.
The mother’s oral evidence in relation to this incident was difficult to follow, as she appeared to accept that she had made such threats, but asserted that their significance was altered by their context as being responsive to abuse engaged in by the father toward the mother.[33]
[33] Transcript 18 March 2021, p.369.
The mother explained that her comments were in response to abusive conduct by the father, being the dragging of her out of bed in the middle of the night. However, in an apparently contradictory manner the mother has also explained that what was recorded was actually a conversation between herself and her brother.
It should be observed that the interpreter did not translate any other than a female voice as appearing on the recording. The absence of a male voice may be consistent with it being a telephone conversation with the brother as explained by the mother, however, her comments appear to be directly addressed to the father. No proper explanation is offered as to why the Court is only provided with slivers of the conversation, leading to the concern that it has been seriously de-contextualised.
The matter is however left with the mother having made comments about killing X and herself. However, the context is not sufficient to paint this as a genuine threat being made, or a genuine risk being occasioned to X. Apart from reporting such to authorities, it is not clear that the father took any steps to ameliorate any such risk. They should not be comments taken at face value, or taken to be indicative of genuine risk to X or the mother.
Abusive messages
The mother alleged that she was the recipient of abusive text messages from the father,[34] which he denied.
[34] Affidavit of the mother filed 20 January 2021, paragraph 67.
The mother alleged that the father deleted messages and contacts from her phone. The father was asked about a reported Domestic Violence Crisis Service (“DVCS”) file note which records that the mother represented to DVCS on 24 May 2014 that the father had removed all the messages on the mother’s phone.[35] The file note was not tendered into evidence and adds no more to the allegation. The father denies having deleted either the mother's messages or her contacts.
[35] Transcript 16 March 2021, p.166 lines 33–44.
In Exhibit M5[36] the mother produced a series of undated abusive text messages that on their face emanated from the father’s telephone number. The father, accepting that the number recorded was his, denied sending the messages. The father suggested that during the relationship the mother had access to his phone.[37] The texts used offensive language to describe the mother and implied that the mother had a sexual relationship with her father. One text read:
Thevidiya, you go the mental hospital to tell that story. You’re a cheat. I gave you the respect and the title you deserved. Your father can lick you better.[38]
[36] Transcript 16 March 2021, p.146; p.151 to p.155.
[37] Transcript 16 March 2021, p.155 lines 15–19.
[38] Exhibit M5.
The father explained that “thevidiya” is like calling someone a “bitch” in English.[39] Further examples of the text messages from Exhibit M5 include:
Thevidiya. Smell your body combining with your character. That will get your memory of the same smell when you shared the bed with your father back in India.
Your father who licked you.
Yeah you worth for my fart.
That’s why you’re getting the greatest human title “Fucking Bitch” from me.
You bitch never happens to anyone as like to your father limping for the past ten years or more and until he dies. That’s called Karma. This will help you to understand a better definition of Karma. Sorry I didn’t mean to hurt you this much deep.
Send me the details of your job offer if you have any.
Yes you will be always there to ruin people’s life. Ask your mother bitch how she has ruin your father’s life and blamed others for her decline. That’s because she led the family in the path of cheating and bitching. God gave her a good lesson. Like that you’ll get one.
Thevidiya the way your mother lived with your father in cheating, the way your sister always sleeping with her brother in law and holding her husband for marriage sake, plus your brothers selling their wives and taking them back as whores won’t happen with me. You can find a sickie in the hospital. Not me.
[39] Transcript 16 March 2021, p.146 lines 31–32.
Despite the father’s denials, it should be concluded that he was the author of the abusive messages. His previous physical violence toward the mother is indicative of his attitude to her. Further, both the father’s false account of his pursuit of the mother and X in India, and his later evidence in relation to the property proceedings mean that great caution should be exercised in relation to his evidence, and that he should not be generally accepted as a truthful witness. This deprives his denials of much of their force in this instance where the texts emanate from his telephone.
Videos
At [151] of the father’s December affidavit, the father provides two examples, accompanied by video footage, of the mother’s conduct which the father describes as aggressive and manipulative toward him during the relationship.
One incident occurred on the evening of 4 April 2015, involving an argument between the father and mother. The father produced a video recording of the mother.[40] On the video the father alleges that he was scratched by the mother, and that he then recorded her at which point she then attempted to portray herself as the victim of abuse. The father sought that this video be specifically addressed in the reasons for judgment.
[40] GPFCFH – 23 – video – 1.
The father does not detail the circumstances of the argument that led to his recording of the mother and his interaction. The father notes that as X was present, both English and foreign language was used during the argument.
A number of observations may be made flowing from watching this video. The first is that the parents appeared to both behave in an aggressive manner toward the other, and to do so in X’s presence. X’s calling out to them during their angry exchange goes apparently unheeded. The father, who was recording, asserted that the mother had scratched him and showed a mark on his hand. I am prepared to find that there was a mark on his hand although it was unclear on the video, and far from clear how the mark may have been caused. Secondly, as asserted by the father, I accept that the mother described herself as having been a victim of the father as he recorded their interaction. This does not, however, lead to the conclusion, despite the mutually hostile exchange, that the mother was necessarily play acting such. Further on the suggestion by the father that the police be called the mother was supportive of such happening, while the father then backed away from such an approach.
The video is far from the conclusive element that the father submitted it should be taken to be. It illustrates mutual aggression, but does not demonstrate manipulation of the circumstances, nor identify who the overall aggressor might be determined to be.
The other incident identified by the father occurred on 22 February 2015. Whilst the father was attempting to leave the house following an argument with the mother, the mother came outside with X and opened the passenger door of the car and refused to go back inside at the father’s request. Although the father contended that this was life threatening conduct engaged in by the mother, on the basis that the car was running and he could have driven it away, it was not conduct that merited such an extreme description. The video produced by the father did not support the life-threatening situation asserted by him. While it was consistent with the mother stopping the vehicle from leaving (and hence prolonging the conflict) it shed little light on the overall exchange, other than that the mother was not permitting the father to exit the conflict. The incident did, however, involve the mother pursuing the father following an argument where he was attempting to leave, and doing so in a manner that further exposed X to their dispute.
The father also asserted that, although he had not done so, he was entitled to have used “sensible force” to remove the mother.[41]
[41] Affidavit of the father filed 1 December 2020, paragraph 151.2.
While both video examples supported the notion that the mother participated in the conflict with the father, and behaved in an aggressive manner, they do not establish that the mother has manipulated those situations, or more generally manipulated claims of family violence. Neither do the potentially aggressive responses significantly undermine the assertions by the mother of the father behaving in an aggressive and violent manner toward her. Although the nature of response may be taken into account in evaluating the evidence, there is no paradigm of family violence that requires a victim of it to respond in a demure or cowering fashion, or to refrain from responding in an aggressive manner.
Financial abuse
The mother alleges that the father exercised financial control over her, both during and following the relationship.
The father challenges the assertion of financial control during the relationship, noting that the mother had a balance of over $7,000 in her account on 31 December 2015, prior to her commencing work. He identifies this as evidenced in Annexure GPFCFH – 67 of his December affidavit at page 397. He also observed that the mother had sufficient money in her account to purchase flights to India in November 2013.
The mother was not cross-examined as to her claims of financial control, and her counsel described the sums during the relationship that were paid to the mother as “meagre”. However, the matters pointed to by the father deprive the claim of financial abuse of cogency.
The mother also asserts that she was deprived of proper support subsequent to the relationship.
The period following the end of the relationship can be best understood from the property section of this judgment which shows the withholding of court ordered maintenance directed to water, gas and electricity bills, and the manipulation of child support income that meant that the mother, the recipient of social security was denied support that she was properly entitled to from the father.
Mother’s comments regarding knowledge of family violence processes
The father alleges that the mother has manipulated the court processes. In support of this claim Ms GG gave evidence that was not the subject of challenge that when the mother obtained work with the ZZ Organisation in late 2015[42] she described to Ms GG that she had obtained an understanding of refuges and other processes available regarding family violence. She also described to Ms GG that if the father did not “get along” with her she knew both how to “handle it” and how to “deal with” him.[43] The mother was not cross-examined regarding this conversation, and her counsel urged that it be given a neutral reading,[44] rather than being taken as a concession by the mother that she is capable of, and willing to manipulate the system. It should be observed that the comments do not unequivocally point to an intent to engage in manipulation of the system. The reference to the father not getting along with the mother is in broad terms, and capable of being a reference to abusive conduct, particularly when read in the context, as urged by counsel for the mother, of the evidence of the mother suffering violence, such as the shoe print on her back.
[42] Affidavit of the mother filed 20 January 2021, paragraph 144.
[43] Affidavit of Ms GG filed 28 October 2020, paragraphs 13–14.
[44] Transcript 23 March 2021, p.601 lines 15–22.
Broken finger
The mother alleges that in June 2016, the father bent her finger back and broke it.[45] The father denies[46] such an incident, alleging that it occurred at the gym, and that the father had taken her to the doctor for treatment for it. The mother’s evidence is that she told everyone at the time that “I got hurt in gym”.[47]
[45] Affidavit of the mother filed 20 January 2021, paragraphs 111–113.
[46] Transcript 16 March 2021, p.164 lines 1–21.
[47] Affidavit of the mother filed 20 January 2021, paragraph 113.
However, on 21 December 2016 the mother told DVCS via telephone that the father had recently cracked her finger and that the previous night he had bent her arm, and hit her head while she was in bed with X. She further described that the father threw a curry that she had prepared into the rubbish, shouted at her and tore her new dress on purpose.[48]
[48] Exhibit M14B.
In further support of her claim in relation to the broken finger, the mother relies on an affidavit filed by Mr WW on 30 June 2018. He was the mother’s manager from December 2015 to July 2016. Mr WW recalls seeing the mother arrive at work with significant swelling on one of her fingers that required splinting. The mother allegedly informed Mr WW that the injury had been inflicted by her husband following a disagreement.
Mr WW further describes the mother attending work on a number of other occasions indicating she had injuries that restricted her movements. He points to one occasion where he says that the mother had an injury to her arm and shoulder. The mother confided to him that the injury had been inflicted by her partner. Mr WW pointed to another occasion where the mother was unable to wear normal shoes to work due to bruising and swelling in her foot and lower leg, regarding which she explained that “he did it he dragged me by the leg and threw me against the wall.”[49]
[49] Affidavit of Mr WW filed 30 June 2018, paragraph 5.
The mother also relies on an affidavit filed by Ms VV on 28 June 2018. The mother had worked with Ms VV from 14 December 2015 until 29 July 2016.[50] Ms VV stated that in the first month or so of the mother’s engagement, she noticed the mother “walking awkwardly and holding herself oddly”.[51] On another occasion, Ms VV noticed that the mother appeared to be “awkwardly holding one of her arms and was careful with how she sat”.[52] The mother showed Ms VV bruising on her wrists which the mother, upon being asked, indicated that she had been hurt by her husband.[53] At this time, the mother also showed Ms VV some other bruising which Ms VV could not recall with as much clarity as the marks on her arm.[54]
[50] Affidavit of Ms VV filed 28 June 2018, paragraph 4.
[51] Affidavit of Ms VV filed 28 June 2018, paragraph 5.
[52] Affidavit of Ms VV filed 28 June 2018, paragraph 7.
[53] Affidavit of Ms VV filed 28 June 2018, paragraph 8.
[54] Affidavit of Ms VV filed 28 June 2018, paragraph 11.
Ms UU also gave evidence and was cross-examined by the father about the finger. Although Ms UU was limited in her recollection as to when the mother had spoken to her of the finger, nominating it to have occurred about the time that the mother was working for ZZ Organisation, she described that the mother had told her that it was caused by the father bending the finger back.[55]
[55] Transcript 18 March 2021, p.336 to p.337.
The mother’s contemporaneous statements provide strong support for the notion that the injury was caused by the father as described by the mother rather than by a gym related injury. I accept the mother’s account as establishing that the injury was caused by an assaultive event.
Religious text
It was alleged by the father that the mother wrote religious text around the home.[56] The words referred to Hinduism which the mother accepted she follows.[57] The father took a video recording of the text, which established the presence of the text, but not that it was permanently on any surface in the home. The mother denied being responsible for writing the text permanently, and explained that to do so would be disrespectful.[58]
[56] Affidavit of the father filed 1 December 2020, paragraph 245.
[57] Transcript 19 March 2021, p.403 lines 33–35.
[58] Transcript 19 March 2021, p.403 lines 45–46.
Given the conflicting evidence, no finding should be made of how the words came to be marked onto the ceiling.
FINAL SEPARATION AND POST SEPARATION
Post separation litigation (including FVO and undertakings)
The parties finally separated on 27 March 2017.
The mother obtained an interim Family Violence Order (“FVO”) against the father in May 2017.[59] This was ultimately resolved by undertakings.
[59] Affidavit of the father filed 1 December 2020, paragraph 312.
On 3 May 2017 the father commenced proceedings in the Federal Circuit Court, filing an Application for Final Orders and Application for Interim Orders. On 8 May 2017, orders were made restraining either party from removing X from Australia and placing her on the Airport Watchlist.
Orders were later made on 9 June 2017 that X live with the mother and spend supervised time with the father on alternate Saturdays.
Interim orders were subsequently made on 29 August 2017 for X to live with the mother and father in a nine-five split across each fortnight, with X spending each Wednesday night with the father along with alternate weekends and block periods of five days during school holidays.
In February 2020 the mother applied for and obtained a further Interim Family Violence Order.
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.
Accepting that the mother’s response worsened the situation for X and exposed X to heightened conflict between the parties, particularly by blocking the father from leaving the carpark, it cannot be escaped that the father undertook the step of having X’s head shaved knowing the mother opposed it, and expecting that the mother was likely to be upset. Further, having authored such a situation, the father caused persons to be present to witness it and subsequently reported it to the police.
In order to further justify his causing of the head shaving, the father adduced into evidence two letters purportedly authored by X. The first, Exhibit M2, apparently produced by X at age five on … 2017, is set out below.
Today, I and Dad had a conversation.
I’m happy to remove my birth hair.
I will not cry when the hair dresser shave my hair.
I thought it will be scary but actually it would not.
I know my hair will grow back and I will look much beautiful than ever. I love my daddy and mummy but I listen to my daddy as he does the right things to me always at right times.
The father’s explanation was that this was a letter written of X’s own volition, a consequence of a letter writing exercise provided to her to assist in her letter writing development. He denied that he told her to write the letter, instead telling the Court that they had a discussion and she took a piece of paper then wrote it.
The second letter was dated 23 April 2018 and so was written at age six. Similarly to the previous letter, the father denied telling her to write the letter. Rather, he said that she wanted to write it and he made it look professional. It was in the following terms:
Dear ICL,
With current arrangement 9 day with my mum and 5 days with my dad is not good to me. I’m tired and confuse with days. It's not fair.
I love my mum and dad equally. I want equal time one week/one week 7 days with my father and mother. I miss holiday camping and going to beach with my dad. I want to go to [O School]. I don’t want [henna] painting in my skin on school days.
Can you please make this to happen.
Thank you [X].
The father filmed X reading the letters aloud.
The father asserted that he did not coach X to write the letter, but merely helped her to make it more professional. He explained[62] that X had instigated the filming so that someone might hear her concerns. The father stated that he did not regret filming X reading the letter out as it was her idea to do so. He denied discussing the proceedings with X and rejected the assertion that he had failed to protect her from the proceedings.
[62] Transcript 16 March 2021, p.190 lines 7–14.
X appeared at ease and comfortable with the father in this video (and the various other videos) produced by the father. However, the video also showed that while X is a capable reader, the reading of the letter was stilted. The terms of the letter and manner of reading did not support the father’s contention that it was a work that was in reality authored by X.
I reject the father’s description of X as the instigator of the letter and video. Given the content of the letters, it should be concluded that they were the result of the direct influence of X by the father, and that his descriptions of how the letters came into being was disingenuous. It should be concluded that he is behind the letters, involving X in the dispute and doing so in a manner that elevates his position above that of the mother, for example in the recitation that she listens to the father as he always does the right things at the right times.
It may be concluded that the parents are unable to coparent and act unilaterally in the realm of the religious involvement of X. The mother caused X to receive henna painting without the father’s agreement. Further, the mother accepted that she had caused X’s ears to be pierced, which she also accepted was an important event, without inviting the father. The father caused X’s head to be shaved contrary to the mother’s position, but also in a manner that was understood by him to be provocative of the mother. Further, the father engaged X as an active participant in the dispute in a manner designed to undermine the mother in X’s eyes.
Medical and psychological consultations
The mother has caused X to attend upon doctors and a psychologist without consulting with the father. These matters are discussed further below as they are connected to the involvement of the local welfare agency, CYPS.
Child and Youth Protection Services
CYPS has had extensive involvement with the family. Of particular focus in the hearing was their investigation of issues relating to whether the father has been violent to X, whether the mother has been coaching X to say negative things about the father, and whether the mother has been involved in the emotional abuse of X by needlessly causing her to attend upon medical practitioners.
Extracts of the CYPS records were tendered into evidence. Exhibit F3 contains somewhat repetitive extracts identified by the father. Exhibit M6 contains a focussed extract that related more closely to the parties’ conduct of their case. It contained the contentious involvement of CYPS in relation to whether the father was harming X, or whether the mother was coaching her. This included a CYPS worker interviewing X.
Exhibit M6 contains notes from an appraisal conducted in May–June 2020 following repeated allegations of physical abuse of X by the father. Caseworkers attended upon the mother and X on 13 May 2020. X then described that she had been struck on the bottom by the father with his hand, that he shouts at her, shoves food into her mouth and closes her mouth with his hand. She complained about the food at the father’s house, the television that was watched, and her riding a bike that was too big for her.
The CYPS records contained other anonymised reports by third parties of X’s complaints about her father and his abuse of her. Absent identification of the third parties there is little that can be taken from the third party reports.
Attempts to interview the father were initially unsuccessful as he declined to attend upon CYPS unless he was advised of the identity of the reporter. Subsequently CYPS conducted a home visit with the father.
CYPS also conducted an interview with X at her school. Exhibit M7 contains the notes from this interview conducted with X on 13 May 2020.
X described that her father was angry, swearing and shouting at her. While she initially claimed that he had hit her on her cheek, she later said that this had not happened but that he had shouted at her. X repeated her previous account that the father smacks her on the bottom. X also described that she cries because she is unable to see the mother when at the father’s home, and that when she returns to the mother she wants to keep the mother safe.
The mother further reported to CYPS on 14 May 2020 both that X described the father hitting her on the head with his knuckles and that X cried for almost 40 minutes, saying that she did not want to go with the father.
The appraisal associated with those interviews contained a conclusion that the mother was coaching X to make false statements regarding the father.[63] This followed the assessment that claims had been made against the father that were unsubstantiated. It was a conclusion emphasised by the father.
[63] Exhibit M6.
While there was material suggestive of the mother’s potential influence upon X, it was also unclear how the positive conclusion was reached that the allegations were the product of coaching. As far as can be discerned, a conclusion that the abuse alleged against the father was “unsubstantiated” did not rise so high as to determine that such had not happened, which would appear to be a necessary prerequisite to then concluding that X had been coached by the mother.
The mother sought a review from CYPS as to the conclusions reached. Exhibit M8 contains the results of that review in correspondence from CYPS dated 19 October 2020. As with the initial assessment, the reviewer found that there was not sufficient evidence to substantiate the allegations of physical abuse. The reviewer, however, further concluded that the appraisal notes did not reveal a sufficient basis for the finding that the mother was coaching X.[64]Hence the original coaching conclusion was overturned.
[64] Exhibit M8, p.2.
As was identified to the parties during the proceedings, such conclusions arrived at by CYPS staff are not conclusive of the issues they address. The material tendered from those records supports the proposition that X complained that the father shouted at her, swore at her and smacked her. They further suggest that X is impacted by her mother’s emotional state on her return from her father. They do not go so far as to establish that X’s complaints are either true or false, or the product of coaching.
A further report was made to CYPS that X had been slapped by her father after refusing to try on a pair of earrings. Exhibit ICL1, the appraisal outcome letter from CYPS relating to this allegation, was sent to both parties on 6 January 2021. Although X stated that she had been slapped when interviewed by CYPS, the father refused to engage with CYPS. Aside from a recommendation against using physical discipline in the home and a note that further reports may warrant a review of X’s care arrangements, the letter does not indicate that the allegation was further pursued.
Again the material is suggestive of X being hurt by the father, but not conclusive of such.
The 6 January letter also includes the finding that “[Ms Paintal] has been substantiated as a perpetrator of emotional abuse of [X]” for taking X to frequent medical appointments. This too was a matter emphasised by the father.
The mother was questioned during the proceedings as to how many times she had taken X to the doctor in 2020 and 2021. The mother indicated that she had taken her once or twice in 2021 and less than 10 or less than five times in 2020. However, Exhibit F10, which includes X’s Medicare records for the period 22 March 2018 to 22 March 2021 (produced during the proceedings by the mother), identifies the attendances that far exceeded the mother’s estimate for 2020. Given the emphasis on this being a form of abuse by the father they are set out below:
·3 January 2020 – consultation;
·4 January 2020 – 3 entries including urine examination;
·16 January 2020 – GP Mental Health Treatment Plan Preparation;
·7 February 2020 – 4 entries including urine examination and consultation;
·20 February 2020 – “attendance for GP Mental Health Treatment”;
·10 March 2020 - “Other Comprehensive Consultations”;
·4 April 2020 – psychological therapy;
·13 April 2020 – psychological therapy;
·17 April 2020 – psychological therapy;
·17 April 2020 - “COVID-19 phone attendance – Level B”;
·22 April 2020 – consultation;
·27 April 2020 – psychological therapy;
·29 April 2020 – consultation;
·1 May 2020 – consultation;
·2 May 2020 – psychological therapy;
·9 May 2020 – psychological therapy;
·19 May 2020 – psychological therapy;
·28 May 2020 – Review of GP Mental Health Treatment Plan;
·15 June 2020 – 3 entries including COVID-19 detection;
·14 July 2020 – psychological therapy;
·28 July 2020 – psychological therapy;
·24 August 2020 – consultation;
·25 August 2020 – consultation;
·28 August 2020 – psychological therapy;
·1 December 2020 – consultation;
·2 February 2021 – specialist attendance; and
·18 February 2021 – psychological therapy.
The mother agreed with the general proposition that taking a child to the doctor frequently without reason may cause psychological harm. When cross-examined by the ICL about why she had taken X to the doctor in the last six months, the mother recalled four examples. In February, X required medical attention due to a head injury sustained whilst jumping on the bed. Other visits concerned breathing difficulties due to adenoids, cold and flu immunisation and a stomach bug. The mother gave evidence that the doctor had provided X with prescription medicine for adenoids in 2021.
Despite the conclusion by CYPS that the mother’s attendances on doctors with X constituted emotional abuse, and the father’s submission to that effect, and despite the mother’s underestimate as to the extent to which she has taken X to see the doctor, the evidence before the court did not lead to a conclusion of emotional abuse. Even though, following the CYPS assessment, the frequency of visits to the doctor appeared to abate, such does not lead to the conclusion that the attendances in 2020 were abusive. The evidence of attendances did however point to some unreliability in the mother’s evidence given her significant understatement of the number of attendances upon doctors for X.
In that context, given the manner in which the father has otherwise demonstrably manipulated his financial circumstances, and his utter lack of credibility in financial matters, I do not accept that such loans existed. Rather they appear to be a sham designed to minimise the pool of property available for distribution. To the extent that the father now says that they have been repaid, they can only be reasonably considered to be an explanation for a corresponding portion of the disappearing cash from the business accounts. The father’s assertion that the loans have been repaid is, in the context of the loans being a sham, an effective representation by him that monies have been moved by him as though in repayment of such, such movement happening in the context of large unexplained withdrawals of cash.
Conclusion regarding the loans, payments to India and expenditure by the father
The claims in relation to the various documented transfers to India, and in relation to the four loans are devices designed to apparently deplete the pool of property and reduce the mother’s claim.
The father’s use of funds immediately post separation to transfer monies to India should be treated as an attempt by him to do what was described by Baker J in Kowaliw as a justifying circumstances for adding back, being “where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets.”[111]
[111] (1981) FLC 91-092.
There can be no satisfaction that there were in fact loans to justify the payments, or other circumstances adequate to justify the remission of the large sums of money to India into the apparent hands of the father’s relatives or associates. They were sums that depleted the pool of assets.
The payments made immediately following separation and prior to the drawing of the loan facility should be added back. They total $140,040.
The establishment of the loan facility, and drawing down upon it is in circumstances contrary to those described by the father. To the extent that the facility has been drawn upon to make payments either to his relatives or associates, they are further sums to be added back. The payments of monies to India identified from the loan facility total $97,820.
Similarly, where the father has drawn sums to pay his legal representatives immediately post separation, or later from the loan facility, these represent payments from the asset pool and should also be added back. They total (taking into account the refund the father received from his barrister) $93,089.68.
It should be acknowledged that not all of the loan facility money should be added back. Adding back is an exceptional step, and a portion of the loan facility’s proceeds can be seen to have been spent on the upkeep of the properties. To that extent no further add back is warranted. However, the use of the asset pool to fund the upkeep of the properties is a matter that means that such upkeep emanated from both parties rather than from the father and his income alone.
Finally, in the face of the unexplained cash withdrawals I do not accept that the father has, in truth, disposed of the funds to repay the four loans. The pool of property should be assessed on the basis that the father still holds those monies purportedly used to repay the four loans, although their whereabouts is uncertain. This is not to treat them as a notional add-back, but rather as property still in the control of the father. They should be reckoned at $232,802.
This is less than the add back sought in relation to the cash payments by the mother. As noted above adding back is exceptional and requires the identification of circumstances warranting such a step. While the balance of the cash withdrawals made by the father raise suspicion, to the extent that they are not tainted by the sham loan claims, that suspicion is insufficient to bring them within the description of either a course of conduct designed to minimise the pool, nor as a premature distribution to the father.
The total of addbacks, combined with the “four loans” monies is $563,751.68.
Capital Gains Tax
Although the father included a CGT liability of $98,230, no such liability currently exists and so has been removed from the balance sheet. In his affidavit evidence the father raises the possibility of selling various of the properties to fund orders. By his inclusion of an asserted value of CGT liability on the balance sheet it is demonstrated that he was cognizant of the need to address potential CGT liability. Further, he has control over the relevant properties, and is intimately acquainted both with their arrangements. He has not demonstrated potential CGT liability on the making of the orders by admissible evidence.
As submitted by counsel for the mother, this was an issue for the father to resolve. Only he can determine what may or may not need to be sold and the conditions under which the sale may attract CGT liability, and the impact that may have on his personal tax arrangements. Perhaps more fulsome disclosure on his part may have shifted some of that responsibility. However, the opacity of his current financial circumstances in the lead up to the trial mean there can be no satisfaction that a CGT liability will accrue, its magnitude or whether he will otherwise be capable of financing any payment required by the orders.
Accordingly, by virtue of the manner in which the father conducted his case, no adjustment for CGT liability will be factored into the adjustment of the property.
DISCUSSION – PROPERTY
The parties both agree that there should be an adjustment of the property interests. As a preliminary step it may be readily concluded that it is just and equitable to make an adjustment of the property interests, noting that the parties’ period of mutual cooperation in the care of X and acquisition and preservation of property together, has ended.
The property of the parties has been identified above and may be summarised as follows:
(a)Four items of real property held in the father’s name, that are subject to finance and, to a degree, cross-collateralised. The combined values are agreed to be $2.52M, while their agreed associated debt is a combination of $582,000 home loan and $1.264M investment loans, totalling a debt of $1.846M debt, leaving a net equity of $674,000.
(b)A sum of $140,040 remitted by the father to relatives and associates in India in various transactions immediately following separation.
(c)A sum of $232,802 sourced from cash payments purportedly in payment of the four loans but still under the control of the father.
(d)A series of notional add-backs into the hands of the father of $93,089.68 and $97,820 sourced from the loan facility and spent on legal fees or transferred to persons in India;
(e)The superannuation interests of the parties, being $305,000 for the father and $2,000 for the mother.
(f)Various chattels being approximately $10,000 held by the mother, $44,000 held by the father and his Company.
(g)Properties held by the father in India to the value of $90,000.
Other debts and assets have not been established (and were of a minor nature so as not to be significant to the discretionary exercise).
This equates to a net pool of property excluding superannuation of $1.381M. Of this the mother holds assets to the value of approximately $10,000. The father holds the balance (albeit in part notionally) of $1.232M.
The parties also hold superannuation, but the mother sought that there be no adjustment of the superannuation interests, seeking that the non-superannuation assets and add backs be adjusted 60-40 in favour of the father. The father proposed a similar level of adjustment of the pool, although he submitted a different composition of the pool. Further, his proposal encompassed the making of payments into trust for X. There is no basis to impose such a qualification on an adjustment in favour of the mother.
It may be observed that the father brought into the relationship significant equity, comprised of the four Australian and two Indian properties, although the Australian properties were, and are, subject to finance. His contributions at the commencement of the marriage outweighed those of the mother.
Their relationship has been reasonably short and each of the parties have contributed in different ways. The father has worked throughout the relationship, the mother working for part of the relationship. The father’s financial contributions during the relationship significantly outweigh those of the mother. While he has also contributed in a non-financial sense, particularly in the care of X, it is the mother whose contributions in that realm have significantly outweighed his (even noting the father’s contention that X was in day care from a young age), caring solely for X for a number of months in India, and particularly in her care for X after the end of the relationship. Notably since the end of the relationship the father has contributed to the upkeep of the properties and, by virtue of the use of funds drawn from the loans facility, it may be taken that both parties have contributed to that upkeep. One of the properties has been occupied by the mother and X.
The differing contributions of the parties since the commencement of the relationship should, as submitted by the mother, be taken to be equal.
On balance, the contributions favour the father, in this short relationship, 70-30.
Considering the matters set out as s 79(4)(d)-(g) and s 75(2) of the Act, as a consequence of the child related orders to be made, the mother will have additional responsibilities for the care of X in the future. The father will not be involved in X’s care, such responsibility falling solely on the mother. The mother will bear those responsibilities in circumstances where her future prospects, despite her tertiary qualification, are poor in comparison to the father, who has a demonstrable capacity to attract significant income by virtue of his skills and experience in the IT sector. On the father's own case her prospects are limited. It may be observed that the mother also bears some injuries which may place added barriers in her path in pursuing employment.
This collection of factors warrants a ten per cent adjustment in favour of the mother, such that an overall distribution of the property should be 60-40 of the non-superannuation pool in favour of the father. This accords with the case pursued by the mother. This equates to a total amount to be in the hands of the mother of $552,000, which, given that she holds $10,000 in assets means the father must make a further payment of $542,000. Taking a last step back it should be observed that the whereabouts of some of the monies are unknown, and the father has disposed of some of the monies that are the subject of the reckoning of this split. Nonetheless, those steps taken by the father do not detract from this result being both just and equitable.
Given that he controls $232,000 paid out of the cash sums, and given the level of equity in the various properties, there appears to be no imperative for sale and so while the father raised, but failed to resolve potential CGT liabilities, at present there is no good basis to assume that a CGT liability will crystallise.
Whilst the mother sought that payment be made within 30 days, the father may be required to undertake some refinancing. He should be required to pay the amount in two tranches, the first reflecting the cash he currently controls of $232,000 to be paid within 30 days, with the second being the balance within a further 30 days.
The effect of the end of the interim orders is that, absent further order the mother will be forced to vacate the home that she lives in with X. Orders will be made granting the mother a continuing right of occupation for a period of 60 days, by which stage she will have received both tranches of money that she is entitled to under the orders. It is both just and equitable that this additional interest be temporarily granted to her, and that she not be left immediately homeless pending receipt of her entitlement.
Outstanding Application for Contravention
On 20 November 2019 the father filed contravention proceedings alleging that the mother failed to provide X for alternate weekend time with the father on 8 November 2019, a date he asserted he was entitled to spend time with a X.
On 5 November 2020 I directed that this matter, which had not been dealt with, be heard at the final hearing.
However, at the final hearing, no party addressed this application and the father did not address any question to the mother regarding this alleged contravention.
In any event, it is apparent that it is an application with no reasonable likelihood of success. Even should the father successfully prove that the mother failed to provide X on the nominated date, and that she was obliged to provide X on that date, the purpose of contravention proceedings as identified in McClintock v Levier (2009),[112] must be borne in mind. That is that contravention proceedings are for the purpose of causing compliance.
[112] 41 Fam LR 245.
Given the order made here, there is nothing to be enforced any longer from the father's perspective. There are no obligations flowing from the orders regarding parental responsibility, or relating to time with the father to be enforced and so there is no prospect that even on the proof of contravention a remedy could or would be granted.
Accordingly, in circumstances where no party addressed this matter during the trial and where there is no reasonable likelihood of success, the application will be summarily dismissed pursuant to r 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
I certify that the preceding four hundred and three (403) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 February 2022
Minute of Orders Sought by the Respondent Mother
(1)That all previous parenting orders be discharged.
(2)That the child [X] born on […] 2012 ("[X]") shall be removed from the Airport Watchlist and the Mother shall be entitled to obtain all necessary documents including an Australian Passport to permit the child to travel internationally outside of the Commonwealth of Australia.
(3)The Mother shall have sole parental responsibility for the child [X] born […] 2012.
(4)[X] shall live with the Mother.
(5)[X] shall spend time with her Father from after school Friday until 5:00pm Sunday each alternate weekend.
(6)The father's time with [X] shall be suspended during the term 4 holidays each year for a period of up to 3 weeks at a time of the Mother's choosing to allow the mother to travel overseas with [X].
(7)The Mother shall provide the father with the dates of her travel with [X] no less than 3 months before the dates of travel.
(8)That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), the mother be permitted to travel outside Australia with [X].
(9)When [X’s] changeover time coincides with a day that [X] is at school, then handover will occur by one parent delivering [X] to the school and the other collecting [X] from the school.
(10)When [X’s] changeover time does not coincide with school the handover shall occur, unless otherwise agreed in writing, outside Coles at [Suburb H].
(11)When [X’s] changeover time does not coincide with school the handover shall occur, unless otherwise agreed in writing, at 5:30pm, unless otherwise specified in these Orders.
(12)If the father fails to exercise his time with [X] in accordance with order 5 on two consecutive occasions without providing a medical certificate, then order 5 is discharged and that father will spend time with [X] as agreed between the parties in writing.
(13)Where the mother or the father's birthday falls on a day when [X] would otherwise be living with or spending time with the other party, the following Orders apply:
a.If the relevant birthday falls on a school day, [X] is to spend time with the party having the birthday for a period of at least three hours at a time to be agreed between the parties, but failing such agreement from after school until 6:00pm; or
b.If the relevant birthday falls on a day on which [X] is not required to attend school, [X] is to spend time with the party having the birthday for a period of at least five hours at a time to be agreed between the parties, but failing such agreement, from 9:00am until 2:00pm;
(14)On [X’s] birthday each year, the party with whom [X] is currently living with or spending time with is to make [X] available to spend time with the other party as follows:
a.If the relevant birthday falls on a school day, for a period of at least three hours at a time to be agreed between the parties, but failing such agreement from after school until 6:00pm; or
b.If the relevant birthday falls on a day on which [X] is not required to attend school, for a period of at least five hours at a time to be agreed between the parties, but failing such agreement, from 9:00am until 2:00pm;
(15)[X] is to spend time with the parties during the religious festival in each year as follows:
a.In years ending in an odd-number, with the Father from midday on the day before the Festival day until midday on the day of the Festival, and with the Mother from midday that day. If [X] is living with the Mother pursuant to order 2 then she shall continue to do so until the end of her week with the Mother. If [X] is otherwise living with the Father then the Mother shall return her to the Father, or school, by 9am on the day after the religious festival day.
b.In years ending in an even-number, with the Mother from midday on the day before the Festival day until midday on the day of the Festival, and with the Father from midday that day. If [X] is living with the Father pursuant 3 then she shall continue to do so until the end of her time with the Father. If [X] is otherwise living with the Mother then the Father shall return her to the Mother, or school, by 9am on the day after the religious festival day.
(16)In the event that [X] wishes to speak with the party with whom she is not currently living with or spending time with, the other party must facilitate that telephone call.
(17)That both parties be at liberty to attend [X’s] school where parents are usually invited by the school functions and events to attend.
(18)That both parties be at liberty to attend [X’s] extracurricular activities, events and functions where parents are usually invited to attend by the event organiser.
(19)The parties shall keep the other informed of:
a.The name and contact details for each of [X’s] doctors, health care and other treatment providers;
b.Any medical condition, significant illness or other significant health condition suffered by [X];
c.Any school, educational facility or extracurricular activity provider for [X];
d.The means by which the other parent might purchase or obtain any school or extra-curricular activity photographs or awards; and
e.The address at which [X] will reside when in their care and a contact telephone number and each party shall notify the other party at least 7 days prior to relocating [X’s] residence beyond a 20 kilometre radius from where they currently reside.
(20)In the event that either party refuses or fails to provide the authorisations required by these orders, or in the event of doubt expressed by any or all of the persons to whom any such authorization is directed, this Order shall itself operate so as to provide the authorization that would otherwise be given by one or both parents of [X].
(21)Each party shall do all such things and sign all such documents so as to authorise the other parent to:
a.Receive all information from [X’s] school to which parents are ordinarily entitled including but not limited to:
i.their academic, sporting and social progress; and
ii.events to which parents are entitled to attend or participate; and
b.Receive any and all information to which parents are lawfully entitled from any doctor, hospital, therapist or other health professional who either child consults or by whom either child is treated.
(22)Neither party is to say unkind or uncomplimentary things about the other to or in the presence of the child, nor cause or allow anybody else to do so.
(23)The parties are restrained by injunction pursuant to section 688 of the Family Law Act 1975 (Cth) from:
a.Other than for the purpose of seeking medical or legal advice, mediation or counselling support, from discussing the proceedings, including the content of affidavits and subpoenaed material with any other person;
b.Denigrating the other party or speaking to the other party in a derogatory way, via email, messages, texts, telephone, or in person;
c.physically disciplining the child;
d.requesting any other person to attend upon the parent, or the home of the other parent, in regard to the parenting arrangements for [X] other than any lawful entity that has the authority to do so;
e.posting on any social media platform disrespectful comments or opinions about the other parent and requesting any other person to remove any such posts about the parent that identifies the other parent or [X];
f.Discussing the proceedings with [X] (other than as required to confirm the child's living arrangement) including showing the child court documents, and other material relevant to the proceedings.
(24)That pursuant to Sections 628 and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Property
(25)That within 30 days of these orders that the Husband do all acts and things necessary and sign all documents necessary including listing agreement, contracts for sale, transfers, and discharge of mortgage authorities as may be required to transfer or pay to the Respondent wife 40% of the total non-superannuation asset pool in a lump sum within 30 days of this order being made.
(26)That pending compliance with Order above, the Applicant is restrained from taking any steps to encumber the property without the consent in writing of the other party.
(27)That each party retain their superannuation interests held by them.
(28)In the event that the Applicant Husband fails to do any act or thing or sign any document necessary, including the execution of any sale listing or auction agreement for contract, to give effect to these property orders and for the Respondent Wife to receive her full entitlement pursuant to these orders, the Registrar of the Canberra Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party and do all things necessary to give operation and validity to that deed or instrument.
(29)The Applicant shall indemnify and keep indemnified the respondent with respect to all past, present and future liabilities of DD Pty Ltd, such liabilities to include but not be limited to any taxation liabilities, penalty notices and all other debts of whatsoever nature.
(30)That the Applicant Husband pay the wife's costs.
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