FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRASAD & SHAN | [2015] FCCA 2801 |
| Catchwords: FAMILY LAW – Parenting, property and spousal maintenance – where the Father had previously unilaterally taken the children to India without the Mother’s knowledge or consent – where the Father is found to have serious personality dysfunction – where no contact and limited communication is ordered – where the Father is found to have dissipated assets and engaged in non-disclosure – whether the Father should be restrained from leaving Australia until he complies with order for payment. |
| Legislation: Evidence Act 1995, s.128 Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65ZA(4), 68B, 75(2), 79, 114(3) |
| Bevan & Bevan [2013] FamCAFC 116 Stanford & Stanford [2012] HCA 52 Willett (1976) FLC 90-022 |
| Applicant: | MS PRASAD |
| Respondent: | MR SHAN |
| File Number: | WOC 581 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 1-4 December 2014, 10-11 September 2015 |
| Date of Last Submission: | 30 October 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 22 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent (1-4 December 2014): | Mr Steward |
| Solicitors for the Respondent (1-4 December 2014): | LN Legal |
| The Respondent appeared in person 10-11 September 2015 |
| Counsel for the Independent Children's Lawyer: | Ms Sproston |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
ORDERS
PARENTING
That all prior parenting orders be dismissed and discharged.
Parental responsibility
That the Mother have sole parental responsibility for the care, welfare and development of the Children of the relationship namely, X born (omitted) 2010 and Y born (omitted) 2012 (“the Children”).
Living Arrangements
That the Children live with the Mother.
That the Mother be at liberty to relocate with the Children, within or outside of the Commonwealth of Australia.
Provided the Mother complies with the provisions of s.65ZA(4) of the Family Law Act 1975, that the Mother be at liberty to take or send the children, or either of them, outside the Commonwealth of Australia.
Spending time Arrangements
That the Children spend no time with the Father until they each attain the age of 18 years.
Communication
That the Children have no contact or communication with the Father, face to face, or through voice, typed word, internet or other media, until the children reach adulthood, with the exception of the following:
(a)that the Mother facilitate the children communicating with the Father by letter, on two occasions in each year, which shall include photographs, school reports, and relevant news about the Child’s development and life;
(b)that the Father be at liberty to forward to the Children, communication by letter, responding to the communication received from the Children, and in time for each Child to receive such communication…
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- Prasad and Shan [2015] FCCA 2801
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- [2015] FCCA 2801
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CaseChat Overview and Summary
The court was required to determine the future parenting arrangements for the children, including their living arrangements, time spent with each parent, and communication between the children and the Father. Additionally, the court had to make orders regarding spousal maintenance and the adjustment of property interests between the parties.
In relation to parenting, the court dismissed all prior orders and made new orders granting the Mother sole parental responsibility for the children. The children were ordered to live with the Mother, who was granted liberty to relocate with them, including outside of Australia, provided she complied with section 65ZA(4) of the *Family Law Act 1975*. Crucially, the children were ordered to spend no time with the Father until they attained the age of 18 years, and all direct contact or communication between them was prohibited, with limited exceptions for written correspondence facilitated by the Mother. The court also made extensive orders restraining both parents from denigrating each other, discussing proceedings in the children's presence, and imposing specific restraints on the Father regarding contact with the children and the Mother's personal protection.
Regarding property, the court ordered the Father to pay the Mother spousal maintenance of $650 per week for 150 weeks and a lump sum of $154,688 within 28 days. The Father's passport was ordered to be held by the court until the lump sum payment was made, and he was restrained from travelling overseas until compliance. The court also made orders concerning the division of superannuation interests, allocation of specific motor vehicles, liabilities, and jewellery, with each party to retain assets in their possession.
Orders
Orders of the court
PARENTING
1.
That all prior parenting orders be dismissed and discharged.
Parental responsibility
2.
That the Mother have sole parental responsibility for the care, welfare and development of the Children of the relationship namely, X born (omitted) 2010 and Y born (omitted) 2012 (“the Children”).
Living Arrangements
3.
That the Children live with the Mother.
4.
That the Mother be at liberty to relocate with the Children, within or outside of the Commonwealth of Australia.
5.
Provided the Mother complies with the provisions of s.65ZA(4) of the Family Law Act 1975, that the Mother be at liberty to take or send the children, or either of them, outside the Commonwealth of Australia.
Spending time Arrangements
6.
That the Children spend no time with the Father until they each attain the age of 18 years.
Communication
7.
That the Children have no contact or communication with the Father, face to face, or through voice, typed word, internet or other media, until the children reach adulthood, with the exception of the following:
(a) that the Mother facilitate the children communicating with the Father by letter, on two occasions in each year, which shall include photographs, school reports, and relevant news about the Child’s development and life;
(b) that the Father be at liberty to forward to the Children, communication by letter, responding to the communication received from the Children, and in time for each Child to receive such communication around their respective birthdays, and Christmas time in each year, which communication may include photographs;
8.
That the Mother be at liberty to peruse any correspondence from the Father, received on behalf of the Children pursuant to Order 7(b), and provide such communication to the Children as she, in her discretion, sees fit.
9.
That each parent keep the other informed of their current postal address and advise the other, in writing, of any change to such address, within 7 days of such change occurring.
Restraints
10.
That each of the parents, their servants and agents be hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent, or any member of that parent’s family or household; and
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
11.
That the Father, including by his servants, agents, or employees, be restrained by injunction from attempting, taking or removing the children from the Commonwealth of Australia, or from the Mother’s care.
12.
That the Father be restrained by injunction from communicating with the Children by any means, except pursuant to Order 7(b) above.
13.
That the Father be restrained from assaulting, molesting, harassing, interfering, stalking or intimidating the Mother, or any member of her household or family, or entering any place at which she may work or live, or attending upon any school or other educational facility attended by the Children.
14.
That the preceding order is an order for the personal protection of the Mother and any member of her household or family pursuant to s.68B of the Family Law Act 1975, to which a power of arrest without warrant, attaches.
Specific Issues
15.
That the Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the children on the airport watch list in force at all points of arrival and departure in the Commonwealth of Australia, when travelling with any person other than the Mother, or authorised by the Mother, and to maintain the Children’s names in the watch list.
Therapeutic Intervention
16.
That the Mother continue to attend on her treating medical practitioner, and any specialist, to whom she is recommended, to manage her Takayasu Arteritis, as required, during the Children’s minority.
17.
That each parent be granted leave to provide a copy of these Orders, and any reasons for Judgment, to any psychiatrist or clinical psychologist providing therapeutic assistance to them, or either of the Children.
PROPERTY
Spousal Maintenance
18.
That pursuant to Section 74(1) Family Law Act 1975, the Father pay to the Mother the sum of $650 per week on the following conditions:
(a) Such payment to be made by electronic bank transfer to a bank account nominated by the Mother;
(b) Such nomination to be made within 3 days of the date of these Orders;
(c) The first payment to be made on the first Monday after an account has been nominated by the Mother and to continue to be made for 150 weekly payments.
Adjustment of Property Interests
19.
That pursuant to Section 79 Family Law Act 1975, the Father pay to the Mother or as she directs the amount of $154,688 with such payment to be made within 28 days of the date of these Orders.
20.
If the Father shall fail to pay the amount as set out in above Order 19 within 28 days of the date of these Orders he shall, in addition thereto, pay interest on such sum as may be outstanding at the rate specified in the Family Law Rules 2004, as varied from time to time and calculated on a daily basis from the due date for payment until the actual date of payment.
21.
That:
(a) the Court allocates, as required by Section 90MT(4) of the Family Law Act 1975, a base amount of 100 percent to the Applicant Mother out of the Respondent Father’s superannuation interests with (omitted) Super ("the fund") known as member Mr Shan .
(b) That the specified percentage of all splittable payments made to Ms Prasad as required by Section 90MT (1) (b) out of the interest held by Mr Shan in (omitted) Super is 100%.
(c) That whenever the Trustee of (omitted) Super makes a splittable payment to Mr Shan, the Trustee shall pay Ms Prasad the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and make a corresponding reduction in the entitlement Mr Shan would have had but for these Orders.
(d) That Order 20(a) has effect from the operative time.
(e) That the operative time is 4 days from the Trustee receiving a sealed copy of the Orders.
(f) That this Order binds the Trustee of the (omitted) Super.
22.
A declaration be made that the Mother is the owner, to the exclusion of the Father, of the Holden Barina registered number (omitted).
23.
A declaration be made that the Father is the owner, to the exclusion of the Mother, of the Chrysler motor vehicle registered number (omitted).
24.
That the Mother be liable, to the exclusion of the Father, for any liabilities in her name or incurred by her, including any debt owed to the Australian Taxation Office, and the Mother indemnify the Father in respect of such liabilities.
25.
That the Father make arrangements for collection by the Mother of the jewellery currently held in his possession or control within 14 days of the date of these Orders, which were previously held in the safe custody deposit box with the (omitted) Bank as detailed in Annexure A hereto.
26.
That the Mother otherwise be entitled to all assets in her possession, in her name or under her control.
27.
That the Father otherwise be entitled to all assets in his possession, in his name or under his control.
Security
28.
That the passport of the Father be held at the Sydney Registry of this Court until the Father makes the payment set out in Order 19 and the passport only be released to the Father upon the Solicitors for the Mother confirming to the Court in writing that he has made such payment in accordance with these Orders.
29.
That the Father be restrained from applying for a further passport or travel document until he has complied with Order 19 above.
30.
That the Father be restrained from travelling outside of the Commonwealth of Australia until such time as he has made the payment required by Order 19 of these Orders.
31.
Leave be granted to the parties to relist the matter on 14 days notice as regards the interpretation, implementation or enforcement of these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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