Perriera and Chandra

[2016] FamCA 1117

FAMILY COURT OF AUSTRALIA

PERRIERA & CHANDRA [2016] FamCA 1117

FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility does not apply – Where the mother departed Australia leaving  the children in the care of a maternal uncle  –  Where the mother has not sought to communicate with the children  –  Children live with the father.
FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where neither party had property of any significant value at the time of marriage – Where the husband met their financial needs – Each party solely entitled to retain all property in their possession or control.

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172

APPLICANT: Mr Perriera

RESPONDENT: Ms Chandra

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: BRC 10610 of 2011

DATE DELIVERED: 19 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Palombo, Harris Sushames Lawyers

RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Bint, C M Bint Family Lawyers

Orders

IT IS ORDERED ON A FINAL BASIS THAT

1. All previous parenting Orders are discharged.

2. The children, B, born … 2009, C, born … 2010 and D, born … 2010, live with the father.

3. The father have sole parental responsibility in respect of all major long term issues (as that term is defined in the Family Law Act 1975 (Cth)(as amended)) for the children, with such issues to include but not be limited to:

   (a)the children’s education;

   (b)the children’s religious and cultural upbringing; and

   (c)the children’s health;  and

   (d)their living arrangements.

4. The Independent Children’s Lawyer is discharged.

5. Each party shall be solely entitled to, and shall retain all other property, chattels, financial resources and assets of any nature and/or kind in the name, possession or control of that property, to the exclusion of the other, as at the date of this Order and for this purpose:

   (a)bank accounts are deemed to be in the possession of the person whose name appears on the bank records; and

   (b)insurance policies are deemed to be in the possession of the payer; and

   (c)superannuation accounts are deemed to be in the possession of the person whose name appears on the account.

6. Each party hereby indemnifies the other and shall keep the other indemnified in respect of any debts incurred by that party in the party’s sole name whether or not that debt was incurred prior to or subsequent to the date of separation.

7. All outstanding applications are dismissed, and the matter is removed from the list of cases requiring determination.

AND IT IS FURTHER ORDERED

1. Pursuant to s 65DA(2) and s 62B 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 parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10610 of 2011

Mr Perriera

Applicant

And

Ms Chandra

Respondent

And

The Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings involve two things.  The first, parenting arrangements for three children:  B, born in 2009 (currently seven years of age) and twins, C and D, born in 2010 (currently six years of age).  Secondly, the proceedings also involve an application for property settlement orders to finalise that aspect of the proceedings between the parties. 

2. I am asked today to deal with the matter on a final basis and to make final orders in relation to each aspect of the outstanding applications. 

3. I do so in circumstances where, it is clear on the evidence, the mother departed Australia on about 8 January 2015.  On the evidence before me, she has not participated in the proceedings since then - in fact, she had ceased to participate meaningfully in them for some time prior to her departure. 

4. The children were placed into the care of their father after I made an interim parenting order on 17 June 2015.  A further aspect of that interim order was that an updating Family Report be prepared. 

5. Prior to that time, the parties had (in the course of their engagement in these proceedings) participated in Family Report interviews and interview with Dr F, a psychiatrist.

6. The mother participated in both of those aspects of the proceedings pre her January 2015 departure from Australia. 

7. The circumstances surrounding the making of the interim parenting order on 17 June 2015 are outlined in the Reasons for Judgment I delivered orally that day.  To the extent that it is necessary, I incorporate those Reasons into these – they should be read as supplementing the Reasons I deliver orally now. 

8. It is clear that the circumstances of the mother’s departure from Australia in January 2015 involved her leaving the three children in the care of a maternal uncle, a person with whom their relationship in a practical day to day care sense can only have been, at best, very meagre at that time.

9. I am asked, as I have said, to make final orders today.  In order to do so, I consider that I need to be satisfied the mother has been afforded appropriate procedural fairness and has appropriately been made aware of the likelihood of the father’s application that I determine the matter today on a final basis. 

10. I also, though, take into account that the main purpose of the Family Law Rules - as prescribed in Rule 1.04 – namely, to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case. I take into account also that, as prescribed in Rule 1.07 (achieving the main purpose) the Court is to apply the Rules to achieve the main purpose in a way that is proportionate to the issues in a case, their complexity and the likely costs of the same; that promotes the saving of costs; and that gives an appropriate share of the Court’s resources to a case - taking into account the needs of other cases; and that deals with each case fairly, justly and in a timely manner. In the circumstances of the mother’s departure from Australia in January 2015, these tenets seem to me to resonate.

11. I accept that, as I have said, I need to be satisfied the mother has been provided the opportunity to participate in the proceedings.  Reference to the Reasons I delivered in June of last year outline her participation in them prior to that date. 

12. In looking to what has occurred in terms of the mother being provided knowledge of the processes since at least (perhaps) June 2015, it is necessary to have regard to the affidavit filed by the father’s solicitor, which makes clear (and I accept) that the only means of communication the mother left available to the father and his legal representatives was an email address. 

13. It is clear her previous legal representatives filed a Notice of Ceasing to Act on her behalf on 10 February 2015 and that, at no time thereafter, has she filed a Notice of Address for Service in the Court. 

14. I accept the contents of the affidavit of the father’s solicitor and his evidence of his attempts to communicate with the mother and the fact that documents were sent in the manner he describes in that affidavit.  It is clear, therefore, that the affidavits referred to in the affidavit have been emailed to the mother at the only address available to the father and his legal representatives. 

15. I accept the assurances made by the father’s solicitor (as an officer of the Court) that he has not received any bounce back or any other information to suggest that the mother’s email address is no longer operative. 

16. I am, therefore, satisfied - as I am required to be by authorities such as Allesch v Maunz[1] - that the mother has been afforded the opportunity to participate in the proceedings.  I note, of course, that it is not a requirement that any Court receive evidence or submissions from a party before making orders sought by any other party. 

    [1] (2000) 203 CLR 172

17. I am satisfied, therefore, that the mother has been afforded procedural fairness and that it is appropriate that I today determine both the application for final parenting orders and the application for final property orders. 

18. I turn to deal briefly with those matters relevant to the making of those parenting orders which are in the children’s best interests.  As I have already noted, the children have lived with their father from about July 2015 as a consequence of orders made in mid-June of that year.  I accept the evidence before me that they are settled, that they attend school and that their needs have been appropriately addressed and dealt with. 

19. I accept the father’s evidence (as contained in his September 2016 affidavit) that, since the children came into his care, their mother has not sought to speak with or spend time with them. I further accept that his only means of knowing, in a sense, anything about her current arrangements is via Facebook - of course, it is impossible for him to know whether any communications emanating from that source are, in fact, true or not. 

20. The principles to be taken into account in determining parenting orders are well known.  They do not need further elucidation.  The overarching requirement is, of course, that any order made be an order which is in the best interests of all of the children, considered collectively and individually.  

21. The presumption of equal shared parental responsibility must be applied by a Court unless the circumstances are such that either of the matters contained in s 61DA(2) of the Family Law Act1975 (Cth) are made out. Reference to the definition of the word “abuse” as defined in the Family Law Act 1975 (Cth) shows that it includes a circumstance of serious neglect of children.

22. I am persuaded that, in making the decision she did in January 2015 to depart Australia - leaving the three children in the care of a person to whom their relationship can only have been tenuous and in the absence of information to the father about that course -  the mother engaged in an act of serious neglect of them.  I am, therefore, satisfied that the presumption of equal shared parental responsibility does not apply. 

23. In the event that I am in error in arriving at this conclusion, I am easily persuaded, in the circumstances of this case, that it is not in the children’s best interests that the presumption of equal shared parental responsibility for major long-term issues about them applies. 

24. Consequently, the making of parenting orders for the children is, at large, subject, as I have said, to the primary and ultimate consideration of their best interests. 

25. I have had regard to the updated Family Report exhibited to the affidavit of Ms G (filed 22 September 2016) - that report being a report dated 10 July 2015. 

26. It is clear from that report that, when she undertook a home visit to the father and children in early July 2015, she assessed them as being well settled and him as being a confident and capable parent who exhibited capable parenting skills.  Her observations of the children clearly outline that they responded well to their father, were not in any way fearful or him and he was entirely an attentive and caring parent toward them. 

27. In those circumstances and, of course, taking into account the mother’s absence, the only sensible order is one which would see the children continue to live with their father.  Clearly, that is something that is in their best interests. 

28. It is also, in my view, in their best interests that he be accorded sole parental responsibility for decisions about major long-term issues relating to them.  Any other order in the circumstance where the mother has not sought to communicate with him nor sought to be involved in making decisions about those matters since her departure from Australia in January 2015 would, in my view, be perverse. 

29. I note from the recommendation contained in the Family Report that, in contrast to the existing interim parenting order which prohibits contact between the children and their mother and provides that they spend no time with her, the author thought it in their best interests to permit some contact with their mother rather than none. 

30. Ms G recommended Skype communication on the basis that this could assist the children to maintain their relationship with their mother.  It seems to me that, in circumstances where the evidence is that the mother has not sought to communicate with the children nor to avail herself of any mechanism or method by which such communication could occur, it is more appropriate simply to permit the father to make whatever appropriate arrangements he considers would best meet the children’s interests in the event their mother seeks to communicate with them at some future point.  Therefore, it is appropriate that the prohibition on the children spending time be discharged. 

31. It will, therefore, be a matter for the father to determine - in the circumstances of this case, taking into account the mother’s previous behaviours as recounted in the material and in the Reasons for Judgment delivered in July of last year – whether, if she returns to Australia, it will be appropriate for the children to spend time with her. 

32. For those reasons, then, orders will be made to discharge all previous parenting orders; for the children to live with their father; for him to have sole parental responsibility in respect of all major long term issues (as that term is defined in the Family Law Act 1975 (Cth)) for the children with such issues to include, but not be limited to, their education, their religious and cultural upbringing, their health and their living arrangements.

33. It is also appropriate that an order be made discharging the Independent Children’s Lawyer.

34. I turn now to a brief consideration of the application for property settlement orders.  The orders sought by the Applicant husband are as outlined at Clauses 4 and 5 in the Amended Initiating Application filed 5 September 2016.  In summary, those orders provide for each party to be solely entitled to, and retain, all property, chattels, financial resources, assets of any kind and entitlement to superannuation that is currently in their possession or under their control or within their name. 

35. It is submitted that such an order, if made, would see the husband receive 75 per cent of the property of the parties and the wife 25 per cent of the property of the parties.  Those percentage submissions rely upon the values of the items of property outlined in the Exhibit before me as provided by the husband’s legal representative and marked as Exhibit “A”.

36. It is clear that the Court may only make orders if satisfied that it is just and equitable to do so. 

37. I accept, for the purpose of the proceeding, that the property of the parties and its estimated value, at least, is as outlined in Exhibit “A”.  It is clear, therefore, that there is no real property - neither party owns any real property, nor have they done so.  In essence, the property of the parties is limited to cash at bank, a motor vehicle, some furniture and jewellery.  There is, in addition, a Sunsuper superannuation entitlement in the husband’s name, said to be valued at $62,000.00. 

38. I am satisfied that it is just and equitable in the circumstances of this case that orders be made in the terms outlined in Clauses 4 and 5 of the Amended Initiating Application.  I arrive at that conclusion taking into account the following.

39. The father, who is a professional, was born in 1980, and is currently 36 years of age.  The wife was born in 1987 and is currently 29 years of age.  The parties married in 2007 and separated on 5 November 2012.  A divorce was ordered on 26 August 2014.  Thus, their marriage was one of five years’ duration.

40. It seems established on the evidence before me that neither party had property of any significant value at the time of their marriage.  It also seems established that the father worked as a professional and contributed the income he derived as a consequence of that employment to the support of the family (as it was constituted) over time. 

41. It is also clear that, after separation, he was assessed to pay child support and did so, at least until the children came into his care in July 2015 at which time, obviously, he met all their financial needs as well as then meeting their other care and emotional needs. 

42. I take into account that, whilst the husband’s entitlement to superannuation encompasses some amounts that accumulated during the five year marriage, there were also some likely accumulations before that - given that he appears to have commenced employment in August 2006 – and, obviously, there have been accumulations which have occurred after the parties separated in November 2012.

43. I consider, therefore, it more likely than not on the evidence before me that any indirect contribution by the wife to the husband’s accumulation of superannuation is likely to have been, in a sense, met by and exceeded by his contributions post-separation: both financially to the support of the children until July 2015 and thereafter as well as his financial contributions to the current value of the Sunsuper superannuation fund in his name. 

44. I take into account, as I have said, that the husband is a professional currently engaged in paid employment.

45. I also take into account, vis-à-vis the wife’s capacity to engage in future paid employment, those matters outlined at paragraph 48 of the husband’s affidavit filed 20 April 2015, wherein he outlines that she has a number of tertiary qualifications, including a Bachelor of International Business and a Master’s Degree in Project Management. 

46. Whilst there is no additional evidence from the wife to enable any meaningful assessment of her income earning capacity, it is certainly not the case that she is someone who does not possess tertiary qualifications – these may well assist her in her future earning ability.

47. I also take into account, of course, that the consequence of the wife’s decision to leave Australia in January of last year (and to not engage further with the husband about their children) means that he is much more likely than not to be totally responsible for the children’s financial support and day-to-day care and support into the future.  This is, of course, particularly relevant given their ages at seven and (twins) six years, respectively. 

48. Given the mother’s actions, it is highly unlikely he will receive any financial support or any other support from her in caring for the children into the future.

49. For those very short reasons then, I am easily satisfied that it is just and equitable that orders be made in relation to the property proceedings. I am also satisfied - having regard to the contributions of the parties as I have outlined them briefly and as outlined in the affidavit material relied upon by the husband, the fact of the parties’ income and income earning capacity and the fact of the husband’s future care of the parties’ three relatively young children - that it is appropriate and just and equitable that orders be made in terms of Clauses 4 and 5 of the Amended Initiating Application (filed on 5 September 2016) and I so order. 

1. The orders will also include an order that all outstanding applications be dismissed and the matter is removed from the list of cases awaiting determination.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 December 2016.

Associate:     

Date:              21 December 2016