RICHAM & KEEGAN
[2020] FamCA 331
•24 April 2020
FAMILY COURT OF AUSTRALIA
| RICHAM & KEEGAN | [2020] FamCA 331 |
| FAMILY LAW – PARENTING – Where the parents have a high-conflict relationship – Where the parents have succeeded in making major long term decisions for the child – Order for equal shared parental responsibility – Where the child has a strong and loving relationship with both parents – Order for the child to live with the Mother – Order for significant and substantial time with the father. FAMILY LAW – PROPERTY – Where it is just and equitable to cause a division of property – Where the husband made greater initial contributions than the wife – Where the contribution should be assessed as 30 per cent to the wife and 70 per cent to the husband – Where there should be an adjustment of 75.2 per cent for section 75(2) of the Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 60B, 65DAA,75(2) 90XT, 106A |
| Keating and Keating (2019) FLC 93-894 Kennon and Kennon (1997) FLC 92-757 Makita v Sproules (2001) 52 NSWLR 705 MRR v GR (2010) 240 CLR 462 |
| APPLICANT: | Ms Richam |
| RESPONDENT: | Mr Keegan |
| INDEPENDENT CHILDREN'S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 4946 | of | 2015 |
| DATE DELIVERED: | 24 April 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 16-20 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jackson |
| SOLICITOR FOR THE APPLICANT: | Anne Day & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Paul Marsh & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid NSW |
Orders
Parenting Orders
All existing Orders in relation to the child X born … 2009 ("the child") are discharged.
The parties have equal shared parental responsibility for the child.
The child live with the mother.
The child spend time with the father as follows:
4.1during school term time, in each alternate week from the conclusion of school on Friday until the commencement of school on the following Wednesday
4.2from the conclusion of school until 10.00 am on the middle day of the school holiday period in the terms 1, 2 and 3 holidays
4.3from the conclusion of school until 10.00 am on the middle day of the school holiday period in odd-numbered years and from 10.00 am on the middle day until the commencement of school in even-numbered years in the term 4 school holidays.
Notwithstanding the provisions of any other Order herein, the child spend time with the father as follows:
5.1from 6.00 pm on the evening before Father's Day until the commencement of school on the following Monday
5.2from the conclusion of school until 8.00 pm on the child's birthday if the child is not otherwise spending time with the father
5.3from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each even-numbered year
5.4from 4.00 pm until 8.00 pm on the father's birthday if the child is not otherwise spending time with the father.
Notwithstanding the provisions of any other Order herein, the child spend time with the mother as follows:
6.1from 6.00 pm on the evening before Mother's Day until the commencement of school on the following Monday
6.2from the conclusion of school until 8.00 pm on the child's birthday, if the child is not otherwise spending time with the mother
6.3from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in each odd-numbered year
6.4from 4.00 pm until 8.00 pm on the mother's birthday, if the child is not otherwise spending time with the mother.
The parties effect changeovers at the child's school whenever possible and otherwise at W library.
The child has reasonable telephone and Skype communication with the parent whom she is not living or spending time with at her request.
The parties keep each other informed at all times of:
9.1 illnesses or accidents suffered by the child while in his or her care
9.2 all medications prescribed for the child
9.3 all school social or religious events which the child is to attend
9.4his and her residential address, telephone numbers and email addresses from time to time
9.5all other matters pertaining to the welfare of the child.
Each party is at liberty to travel outside of Australia with the child on the following conditions:
10.1the travelling parent must provide not less than two months' notice of the proposed trip
10.2not less than four weeks prior to the date of departure, the travelling parent must provide copies of flight tickets, accommodation information, details of travel insurance and methods of contact during the trip.
The parties do all things necessary to ensure that the child maintains a current Australian passport at all times.
Orders for the alteration of property interests
Within three calendar months of the date of these Orders, the husband pay to the wife the sum of $1,259,700.
Simultaneously with such payment by the husband to the wife and conditionally upon same being made within the prescribed period of three calendar months, both parties do all things and execute all documents necessary to effect:
13.1the transfer to the husband of the whole of the wife's right, title and interest in the property known as B Street, Suburb C and being the land contained in folio identifier …
13.2the transfer to the husband of the whole of the wife's right, title to and interest in the land contained in folio identifier … and known as the Suburb D property
13.3payment to the husband all moneys lodged in Misa account …58.
The Court allocates as required by Section 90XT(4) of the Family Law Act 1975 (Cth) a base amount of $190,000 to the mother out of the superannuation interest of Mr Keegan in Super Fund 1.
In accordance with Section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splitable payment becomes payable in respect of the superannuation interests of Mr Keegan in Super Fund 1 ("the Fund"):
15.1the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law Superannuation Regulations 2001 using a base amount as defined in Order 14 above (provided that such base amount shall not exceed the value of the interest determined under Section 90XT(2))
15.2there be a corresponding reduction in the entitlement of Mr Keegan to whom a splitable payment would have been but or for these Orders
15.3this Order binds the Trustee of Super Fund 1 and these Orders take effect from the operative time being the fourth business day after the date of service of the Orders on the Trustee.
Except as specifically provided by any other Order to the contrary, as against the husband, the wife is the sole owner of and the husband has no interest in:
16.1 the wife's bank accounts
16.2 the wife's superannuation
16.3all other property (including choses in action) of whatsoever nature and kind in the possession or control of the wife, or to which she is entitled, at the date of making of this Order.
Except as specifically provided by any other order to the contrary, as against the wife, the husband is the sole owner of and the wife has no interest in:
17.1 the husband's bank accounts
17.2 E Pty Ltd
17.3all other property (including choses in action) of whatsoever nature and kind in the possession or control of the husband, or to which he is entitled, at the date of making of this Order.
In the event either party refuses or neglects to sign any document or do anything required pursuant to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to sign such documents and do such acts on behalf of either party.
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 Richam & Keegan 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 SYDNEY |
FILE NUMBER: SYC 4946 of 2015
| Ms Richam |
Applicant
And
| Mr Keegan |
Respondent
And
| Independent Children's Lawyer |
Legal Aid NSW
REASONS FOR JUDGMENT
The proceedings
Ms Richam and Mr Keegan are engaged in litigation in relation to parenting issues and alteration of property interests. Their child, X, the child, was born …2009 and is presently 10 years of age.
The applicant, Ms Richam, ("the Applicant") initially sought parenting orders which may be summarised as follows:
1. the mother have sole parental responsibility for the child
2. the child live with the mother
3. the child spend time with the father as follows:
i.each alternate weekend from Friday afternoon until Tuesday morning during school term time
ii.for half of the terms 1, 2 and 3 school holidays
iii.for half of the Christmas school holidays in 2020 and each alternate year thereafter a one-week block and additional three-week block
iv.for half of the Christmas school holidays in 2021 and each alternate year thereafter in three-week blocks and an additional one-week period
v.from 9.00 am until 5.00 pm on Father's Day
vi.from 4.00 pm until 8.00 pm each alternate Christmas Day
vii.from 4.00 pm until 8.00 pm each alternate New Year's Day
viii.from 4.00 pm until 8.00 pm on the child's birthday
4.the child spend time with the mother on the weekend of Mother's Day and on the mother's birthday
5.each party is at liberty to travel to India with the child, provided that they both lodge a sum of $25,000 as a bond to secure her return from overseas.
In response to questions from counsel for the Independent Children's Lawyer ("the ICL") the mother said that she would consent to overseas travel to any country by the child with each parent. The mother said that this consent would be conditional upon a $50,000 bond, to which each party would contribute $25,000. During final submissions, counsel for the Applicant indicated that she proposed that the child spend time with the Respondent from the conclusion of school on Friday until the commencement of school on Wednesday in each alternate week of school term time.
The respondent, Mr Keegan, ("the Respondent") initially sought parenting orders which may be summarised as follows:
1. the father have equal shared parental responsibility for the child
2. the child live with the father
3. the child spend time with the mother as follows:
i.each alternate weekend from Thursday afternoon until Wednesday morning during school term time
ii.for the whole of each alternate school holidays with the exception of the Christmas vacation
iii.for half of the Christmas school holidays
iv.for a specified period on the mother's birthday
v.for Mother's Day.
4.each party be permitted to travel outside the Commonwealth of Australia with the child during the time that she is in the care of that parent pursuant to the orders of the court.
The ICL proposed parenting orders which may be summarised as follows:
1. the parties have equal shared parental responsibility for the child
2. the child live with the mother
3. the child spend time with the father as follows:
i.during school term time from Friday afternoon until Wednesday morning
ii.for half of all school holidays
iii.on Father's Day, the child's birthday, the father's birthday and at Christmas
iv.the child spend time with the mother on Mother's Day, the child's birthday and at Christmas
4.the child have reasonable telephone or Skype communication with each parent while she is in the care of the other party
5.each of the parties is to keep the other fully informed of information in relation to the child's health and medical treatment and his and her current residential address
6.each party is permitted to travel with the child outside the Commonwealth of Australia.
By way of orders for alteration of property interests, the Applicant sought the sale real properties at Suburb C and Suburb D and a distribution of the net proceeds as to 65 per cent to herself and the balance to the Respondent. She also sought a superannuation splitting order of $252,000 in relation to the Respondent's Super Fund 1 benefit.
By way of orders for alteration of property interests, the Respondent sought orders that the Applicant transfer to him the whole of her interest in the Suburb C and Suburb D properties upon payment to her of a sum of $500,000. He also proposed a superannuation splitting order of $190,000 in favour of the Applicant.
Background
The Applicant and the Respondent, who are aged 44 and 45 respectively, married in 2008 in India. They separated under one roof in July 2015 and the Applicant and the child left the former matrimonial home in June 2016.
The Applicant was married previously to a resident of the United States of America. This marriage took place in 2000 and was never consummated, with the Applicant returning to India in 2003. After the breakdown of this marriage, the Applicant attempted self-harm and engaged in conduct which resulted in her pleading guilty to a charge of larceny in the United States.
The Respondent completed a degree in India and qualified as a health professional in 2001. In 2002 he came to Australia and completed qualifications as a health professional in this country in 2005. Currently he works principally in private practice but also undertakes some employment in the public health system. The Respondent conducts his practice via a company known as E Pty Ltd ("the company").
The Applicant completed a degree in healthcare in India prior to her first marriage. Upon her return to India from the United States she completed a Master's Degree in health sciences.
At the date of marriage the Respondent owned the following assets and superannuation:
●home unit at Suburb F subject to a mortgage to the Commonwealth Bank
● $200,000 in bank savings
● shares in public companies subject to a Commonwealth Bank loan
● Motor vehicle 1
● household effects
● shares in the company E Pty Ltd
● $60,000 in a Super Fund 1.
The Respondent purchased the Suburb F property in 2006 for $525,000. He paid a deposit of $100,000 and borrowed $430,000 from the Commonwealth Bank. The Respondent created a mortgage offset facility known as a Misa account ("the Misa account") at the time of this purchase. The parties lived in this apartment following their marriage.
The Applicant had no significant assets or liabilities at the date of the marriage. She deposed that she owned only items of jewellery when the parties commenced cohabitation.
The parties' child X was born … 2009. Following her birth the Respondent continued to operate his practice and the Applicant was her primary carer.
In 2009 the parties purchased the property B Street, Suburb C for $2,350,000. A 10 per cent deposit was paid from the Misa account and the parties borrowed $2,115,000 from the Commonwealth Bank. The title to the property is held as to 99 per cent to the Respondent and 1 per cent to the Applicant, on accounting advice.
The Applicant's mother provided $30,000 for the purchase of the Suburb C property. The Respondent sent her a cheque in repayment of this advance in about June 2010. The Applicant's mother has never cashed this cheque and apparently, she indicated to the parties that she wished this money to be used for the benefit of X. The Respondent borrowed $60,000 from a colleague to complete the purchase of the Suburb C property and repaid this sum from his income within a few months.
The Suburb C property was leased to tenants and the parties lived in the Suburb F apartment until mid-2012. During 2012 the parties carried out extensive renovations to the Suburb C property, at a contract price of approximately $300,000. In 2012 the family moved into this home.
The parties and the child travelled to India in June 2010 and stayed in the home of the Respondent's parents. In June 2010 the parties had a physical altercation, with each claiming that the other was the aggressor.
From August 2010 the Respondent caused the company to deposit a sum of $1,000 per month into the Applicant's bank account. He continued this practice until late 2012, with these payments being treated as a salary paid to the Applicant by the company.
Between 2011 and 2012 the Applicant studied to obtain qualifications as a healthcare professional in Australia. She did not complete this process and, in 2014, she enrolled in a two-year diploma course in allied health.
In 2014 security cameras were installed inside and outside the former matrimonial home, with the monitor being placed in the Respondent's study. Each of the parties claimed that the other insisted that cameras were installed inside the house as well as outside the premises.
In 2014 the parties purchased a double parking space at Suburb D for $105,000. They borrowed $120,000 from the Commonwealth Bank as an interest-only loan, on the security of the Suburb F and Suburb C properties.
In 2014 the Applicant began to consult a psychologist, Ms G, to whom she was referred by her general practitioner. The Applicant saw Ms G on 33 occasions, the last of which was in 2017.
The child X commenced her education at H School in 2015 and continues to attend this school. Her school reports indicate that she is a conscientious and high achieving student.
In February 2015 the Respondent informed the Applicant by email that he considered the marriage to be at an end. The parties reconciled for a short period, before separating finally in July 2015.
At the time of the final separation, the Applicant moved into the guest bedroom in the former matrimonial home. The child began to occupy this bedroom with the Applicant shortly thereafter. The Applicant arranged for a lock to be installed on the door to her bedroom, in December 2015, while the Respondent was in India. The Applicant's uncontradicted evidence was that she purchased an extra key for his use.
In November 2015 the Respondent installed a recording device in the Applicant's bedroom, without her knowledge or consent. He recorded and listened to conversations between the Applicant and the child in November/December 2015. The Respondent again placed this device in the Applicant's bedroom and recorded her conversations with the child in April/May 2016. Extensive extracts from these recorded conversations were included in the trial affidavit of the Respondent. In cross-examination by counsel for the ICL, the Respondent conceded that he had selected "the worst" of these conversations for inclusion in his affidavit.
Until October 2015 the family owned two cars, one of which was used by the Applicant. The Respondent sold this car in October 2015 and kept the other for his sole use. The parties' neighbour loaned a car to the Applicant for a few weeks in November 2015 and she purchased her current motor vehicle 3 in December 2015. The parties had consented to orders in October 2015 to the effect, inter alia, that she receive $10,000 to purchase a car for her use.
In October 2015 the Applicant withdrew $54,000 from the Misa account, without the Respondent's prior knowledge or consent. These funds remained in her possession, thus she could have purchased a car at any time after October 2015.
On 11 January 2016 the Respondent caused the lock on the Applicant's bedroom to be changed, while she and the child were out of the home. At approximately 4.00 am on 12 January 2016 the Respondent unlocked the door and entered the Applicant's bedroom. He maintained that he did so because he heard the child coughing and became concerned that she may have needed her puffer.
There was a dispute between the parties as to what then transpired in the bedroom. Each claimed that the other acted aggressively but, ultimately, there is no particular reason to prefer the word of one party over the other. At about 9.30 am the Applicant reported the incident to police at Suburb W. An officer spoke by telephone to the Respondent but took no further action.
When the Applicant returned home, an altercation occurred during which she hit the Respondent on his face with her open hand. Again, the parties gave conflicting accounts of this incident.
This altercation was recorded on the cameras which had been installed in the home in 2014. It appears that the Respondent provided a selective six second recording of the Applicant hitting his face to police, who charged her with assault. The Applicant pleaded guilty and received a section 10 bond on … February 2016. The Local Court declined to make a final Apprehended Violence Order for the protection of the Respondent.
The Respondent elected not to let this matter rest with the Applicant's plea of guilty and the penalty imposed by the Local Court. In June 2019 a police officer telephone the Applicant and informed her that the Respondent and his solicitor had attended the station and made a complaint that she committed perjury in February 2016. Their allegation was that she failed to disclose her plea of guilty to larceny in the United States and allowed the court to impose a sentence on the basis that she had no prior convictions. It appears that police declined to act on this complaint of the Respondent.
Between March and July 2016 the Respondent's brother and sister-in-law, Mr J Keegan and Ms J Keegan, stayed in the former matrimonial home. They again stayed in the home between November 2016 and early 2017. It appears their son Mr K Keegan stayed in the house for one month in April/May 2016 and has lived there continuously since October 2017. The Respondent's brother Mr L Richam and his wife stayed in the home in April/May 2017 and 2018.
On 22 April 2016 the Senior Registrar made interim orders to the effect that the child spend time with the father from 4.00 pm until 8.00 pm each Wednesday and from 9.00 am on Saturday until 5.00 pm on Sunday each alternate weekend. At this time, both parties and the child were living in the Suburb C property. These Orders provided further that the Respondent pay interim spouse maintenance of $950 per week to the Applicant.
On 18 May 2016 Orders were made, inter alia, that the Applicant vacate the former matrimonial home and that rental for an apartment for her use be paid from the Misa account. These Orders provided also that the child spend time with the Respondent from the conclusion of school until 7.00 pm each Wednesday; from Friday afternoon until Tuesday morning each alternate weekend and for half of all school holidays.
In July 2016 the Applicant moved into a rented apartment in Suburb W with the child. The lease was in the name of the Respondent and provided for an initial term of six months with an option to renew for a further six months. The lease was due for renewal in June 2017 but, without informing the Applicant, the Respondent advised the letting agent that he did not wish to renew the lease.
After the Applicant filed an Application in a Case, the Respondent consented to renew the lease on her apartment for six months. Further orders for the renewal of the lease were made in December 2017 and December 2018. In August 2018 the Respondent informed the letting agent that he required the premises to be vacated in September 2018. On 15 November 2019 Orders were made to secure the Applicant's accommodation for a further period of six months.
In May 2019 the Respondent sold the Suburb F property for $885,000. From the proceeds a total sum of approximately $421,000 or $409,000 was paid to the Commonwealth Bank in discharge of mortgages and loans and an amount of approximately $325,000 was deposited into the Misa account.
The Respondent's company has a tax debt of approximately $259,990 as at November 2018. The Respondent alleged that he has been under financial pressure and that he sold the Suburb F property in order to reduce debt. On 20 December 2019 the parties consented to an order which provided for a payment to the ATO of a sum of $45,677 on account of income tax of the Respondent. This payment discharged a capital gains tax debt which the Respondent incurred on the sale of the Suburb F apartment.
The evidence and witnesses
The Applicant relied upon the following affidavits:
1.Ms Richam (the Applicant mother/wife) sworn on 27 November 2019
2.Financial Statement of Ms Richam sworn on 27 November 2019
3.Ms M (neighbour of the parties) sworn on 6 April 2016
4.Ms G (psychologist consulted by the Applicant) affirmed on 5 December 2019.
The Respondent relied on the following affidavits:
1.Mr Keegan (the Respondent father/husband) sworn on 27 November 2019
2.Financial Statement of Mr Keegan sworn on 27 November 2019
3.Mr N Keegan (the paternal grandfather) sworn on 2 December 2019
4.Mr K Keegan (nephew of the Respondent) sworn on 2 December 2019
5.Mr J Keegan (brother of the Respondent) sworn on 2 December 2019
6.Ms J Keegan (sister-in-law of the Respondent) sworn on 2 December 2019.
I had the benefit of a single expert report dated January 2019 prepared by Dr O, a consultant psychiatrist. Senior counsel for the Respondent submitted that the expert report should carry little weight, on the basis of the reasoning in Makita v Sproules (2001) 52 NSWLR 705. This submission, in effect, was that the report lacked a "factual basis". This submission appeared to be directed particularly to the conclusion of Dr O that certain aspects of the Applicant's behaviour were a self-protective reaction to the frequent presence of numerous paternal relatives in the former matrimonial home and thus could be explained or excused to some extent.
In cross-examination by counsel for the ICL, Dr O indicated clearly that he adhered to the opinions expressed in his report. In my view, Dr O provided cogent reasons for his adherence to these opinions. For example, Dr O opined as follows in his report:
"[The respondent] has argued a case for [the applicant] having tried to alienate X from him. As I indicate elsewhere, I did not think that this was as deliberate a program on her part as it may appear, but rather that it was largely a result of circumstances under which she found herself in the home, over which [the respondent] had significant agency, and that things have improved significantly since she moved out with X. Since moving into her own apartment, [the applicant] has basically adhered quite well to the orders in relation to contact, and in my view possibly better than has [the respondent] who in relation to several matters which I outline elsewhere, appears to have interpreted certain orders in quite a self-serving way and to X’s detriment, such as the mother's apartment lease and X’s Wednesday afternoon visits. Moreover, in my view the past two and-a-half years do not provide evidence of the continuing process of active alienation by [the applicant] of [the respondent] from X."
In response to questions from counsel for the ICL Dr O reinforced his position that he adhered to these opinions. He said words to the effect:
"My view was that the mother was not actively intending that X have no relationship with the father. She would have succeeded in that task long before now."
By way of further example Dr O opined in his report:
In my view the relationship between the parents is of greater significance in this matter than any overt mental health issues, although each probably have problematic personality traits which contributed significantly to their conflict. I note that both have admitted, and other parties have witnessed, quite vitriolic interactions between the two of them, although each alleges that the other was the provocateur. While I formed the view that both parents had behaved quite inappropriately in terms of their conduct from early 2015 until the period of separation under the same roof finished in July 2016, it also appeared to me that the responsibility for this lay more with [the respondent] than with [the applicant]. ...
In his oral evidence Dr O responded to a question from counsel for the ICL in words to the following effect:
I think she was fighting back at times. If these traits were of a significant degree, there would be a negative not a positive trajectory in X’s relationship with the father.
In my view the report and opinions of Dr O should carry significant weight. I see no valid reason why I should disregard the observations of Dr O as to the interactions between the child and each of her parents and his assessment of the nature of these relationships. Similarly, I see no reason why I should disregard his opinions as to the likely effect upon the child of substantial changes to her current living arrangements.
Significantly, in his oral evidence the Respondent described the situation in the former matrimonial home prior to the physical departure of the Applicant and the child in words to the following effect:
I agree there was enormous stress and tension in the house before the physical separation. My relatives were in the house who were supportive of me. I agree that X would have felt torn in the household, possibly she temporarily aligned herself with her mother at that time. I agree that X’s attitude towards me improved when the mother and I started living in separate homes. I accept that it was possible that she felt under siege.
In his oral evidence the Respondent said also:
I meant alienation from my family in 2018, not me
and:
[the mother] is not currently trying to alienate X from me.
The Respondent said also:
"I accept that [the mother] has adhered quite well to orders since she moved into her own apartment."
Parenting Orders
Approach to these proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2). Subsection 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA of the Act requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1) of the Act). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicality” are defined in ss 65DAA(3), (4) and (5) of the Act. There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
“(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time.”
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question.
Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible…
(footnotes omitted)
The best interests of X: section 60CC considerations
Primary considerations
The orders sought by each of the parties indicated that they both hold the view that the child has in the past and will continue to benefit from a meaningful relationship with each of her parents. Initially the Applicant proposed that the child live with her and spend four nights per fortnight during term time and half of all school holidays with the Respondent. On the final day of the trial, the Applicant put forward a proposal that the child spend five nights per fortnight with the Respondent. The Respondent proposed that the child live with him and spend six nights per fortnight during term time and half of all school holidays with the Applicant.
In my view, these proposals are inconsistent with a belief by either party that the child is in need of protection from risk in the care of the other parent. Similarly, the proposal of the ICL that the child spend nine and five nights per fortnight with the Applicant and the Respondent respectively and half of the school holidays with each parent is inconsistent with evidence of a need to protect the child from risk of harm in the care of either of the parties. Nothing in the evidence persuaded me that there is a need to protect the child from harm in the household of either parent.
Additional considerations
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child expressed a clear view to Dr O that she wishes that the current arrangements remain in place. He reported as follows:
I asked her about magic powers again and whether she would change the arrangements. She told me that she likes them the way they are. She did not like going to her father's on Wednesday evenings because it disrupted her routine and she likes the new arrangement much better.
Dr O expressed these opinions as to the weight which properly should be attached to the child's stated views:
X expressed quite clearly that she is content with the current arrangement. She expressed much more positive sentiments about her mother than about her father, some of which I think have been affected by both her mother's expressed views and by her observation of her mother's distress at various times. However overall I formed the view that X is acquiring a more balanced view of both of her parents and that her expressed wish is a reasonable reflection of the relative strength of her relationship with each of her parents. I also did not form the view that she has an entrenched antipathy toward her father now, but rather that she has an indignation about the behaviour of her paternal relatives primarily and some of her father's (mostly historical) behaviour secondarily.
I am conscious that the child is an intelligent ten year old and, accordingly, I conclude that her views should carry significant weight. I am inclined to accept that she has aligned with the Applicant to some extent but, on the other hand, she maintains a strong and loving relationship with the Respondent. She spent time with the Respondent on a consistent basis, travelled to India and other destinations alone with him. I accept the evidence of the Respondent that he and the child enjoy a number of activities together.
Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
Having observed the child with both of her parents, Dr O expressed these opinions as to the nature of her relationship with each of her mother and her father:
I saw X first after she had spent some days with her father. She presented as polite and well behaved with both parents, however she was distinctly warmer and more animated with her mother, with whom I saw her later. She was slower to warm up with her father initially, possibly partly because this was right at the beginning of the assessment, however I also formed the view that this in part reflected her relationship with her father. Generally while talking about more neutral subjects, she was polite, attentive and occasionally smiled at him, but when the interview ran to things like her interests, animals and her career choice, she was much more animated and when her father added his comments, she responded warmly, positively and with a more spontaneous smile. With her mother, she was much more obviously interested in any remarks her mother made, and she made more obvious attempts to maintain eye contact with her mother, despite the two of them sitting together on the couch. She also was more spontaneous and often opened up other subjects or matters, whereas with her father she tended to let he or myself take the lead.
Dr O opined further:
X is still clearly aligned with her mother. When I saw her alone, she was quick to digress into a list of complaints about her father although the content of them was less transparently rehearsed than what she told Mr Y two years ago. However she also talked fondly about certain aspects of her relationship and activities with her father, although she was generally careful to qualify these positive comments by adding things which she did not like.
Overall I formed the view that X has a very strong and relatively secure attachment to her mother. I also felt that she has quite a warm relationship with her father which is to some extent obscured by a degree of alignment with her mother. For instance, she is quite negative about her father's extended family members who live with him despite this being a longstanding tradition in Indian families which is practiced by both her parents families in India, albeit less so in her mother's somewhat smaller family. X has been exposed to this quite extensively in India, both directly and indirectly, and I think that her vehemence about the issue is largely due to the alignment with her mother and less so due to she having been exposed to a very different dominant culture in Australia, mostly since starting school.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
No criticism can be levelled at either parent in the context of this consideration. The Applicant has strongly embraced the role of primary carer and the Respondent has striven to increase the child's time with him and maximise his paternal role in her life.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Respondent has paid Child Support as assessed from time to time. In my view his actions in placing the Applicant's rented accommodation in jeopardy, on more than one occasion, reflect somewhat poorly upon him in terms of meeting his obligations to maintain the child. In practical terms his actions placed the child at risk of being without a home, at least until the Applicant could obtain relief from the court.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders sought by the Respondent would cause very substantial changes to the child's living arrangements, which most likely she would find to be a significantly challenging experience. The Applicant has been the child's primary carer for the whole of her life and the Respondent now proposes that she be required to adjust to a loss of that relationship with her mother.
The Respondent appeared to be largely unconcerned about the likely impact upon the child of his proposed changes. In response to questions from counsel for the ICL, he said words to the effect "with my proposed orders, there will be a short period of adjustment for X". He agreed that he considered that this change "would not be a problem" "because she will simply adjust". In my view, these opinions indicate a lack of insight into the child's needs on the part of the Respondent.
In his report, Dr O expressed these opinions as to the likely effect upon the child of a change of primary residence:
In my view X would not be happy with a change towards the orders that the father wants. Her strongest relationship is clearly with her mother, and also she reports some ongoing difficulties with paternal relatives. I think that part of this is subjective but I am concerned that part of it is also objective. Were she to live for the majority of time with her father, I am concerned that she would feel somewhat isolated and bearing in mind that she certainly still has quite clear memories of she and her mother isolating themselves from her father and his relatives prior to the change of residence, I am very concerned that her response to perceived adversity in her father's home would evolve into a state of discretionary isolation again, and perhaps also depression. On the other hand I accept [the applicant’s] view that she is content with the current orders.
Dr O was taken to this passage in his report during cross-examination by counsel for the ICL. He said:
I still hold these opinions, that risk is still there but probably not as high if the relationship has improved in the last twelve months.
In response to questions from senior counsel for the Respondent in relation to this passage in his report Dr O said inter alia:
At her age and with her level of intelligence she would probably cut herself off a bit.
In response to questions from counsel for the ICL Dr O said:
There does not seem to be a reason to change the current arrangements. I think X’s relationship with the father will strengthen anyway, without the changes that he seeks.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Each of the parties intends to continue to live in the Suburb W/Suburb C area of Sydney. That being so, no difficulties of practicality or expense arise with the child spending time and communicating with each of her parents.
Section 60CC(3)(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
Each of the parties has demonstrated a capacity to provide for the needs of the child but their chronic conflict and disputation with each other has deflected their focus from her best interests at times. In the case of the Respondent, I have referred above to his preparedness to place her accommodation in jeopardy due to his conflict with the Applicant. I have referred also to his lack of insight into the likely impact upon the child of his proposal for a change in primary residence.
In the case of the Applicant, it is abundantly clear that she has made derogatory comments about the Respondent and the paternal family to the child. In my view it must be inferred that the Applicant was oblivious or indifferent to the detrimental impact of this behaviour upon the child.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child's parents and extended maternal and paternal families are of Indian ethnicity and heritage. X thus has the benefit of experiencing the richness of this culture in both of her extended families.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties love the child dearly and want the best for her but, as observed above, they have allowed their focus to shift from her interests to their conflict and punitive attitude toward each other. To their credit the child spends regular time with each parent and her relationship with the Respondent has improved since the physical separation of the parties, even on his own account.
In my view, the Respondent's election to make a complaint to police that the Applicant misled the Local Court some three and-a-half years after the January 2016 incident is a telling indication of his attitude toward her. The Respondent chose to attend a police station, accompanied by his solicitor, and complained that the Applicant failed to disclose her conviction for larceny in the United States prior to her sentencing for the assault offence. In my view the Respondent can have intended only that police take criminal action against the Applicant. Perhaps he considered that he would gain some advantage in these proceedings.
I take a similar view of the Respondent's election to place covert recording devices in the Applicant's bedroom. I do not excuse at all what the Applicant said to the child about the Respondent and the paternal family but he displayed a palpable lack of respect for her as a person and a parent. In cross-examination by counsel for the ICL, the Respondent conceded that his actions were an invasion of the privacy of the Applicant. He conceded also that his actions could be viewed as "hypocritical", in light of his later demand that the Applicant not approach or enter the former matrimonial home and thus invade his privacy.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
A physical altercation occurred between the parties in June 2010, during a visit to their families in India. Each accused the other of being the aggressor but it is impossible now to determine the truth of that matter. The incident occurred almost ten years ago and would now be viewed through the prism of the current conflict by each of the parties.
I have referred above to the incident which led to the Applicant's pleading guilty to a charge of assault of the Respondent. Again, I find it impossible now to determine what happened in fact on that occasion. It would appear that the Applicant struck the Respondent's face with her hand but I consider it impossible to make findings as to the events which led to her doing so. The incident would appear to be a one-off event which occurred at a time of great stress in the lives of the parties.
Overall, I consider that family violence is not a significant issue in these proceedings. There is no current family violence order.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The child is now ten years of age and, increasingly, she will influence decisions as to her living arrangements in the future. As she grows older, she is less likely to accept arrangements which do not conform to her reasonably based wishes.
Parental responsibility
The mother sought an order that she have sole parental responsibility. The ICL and father proposed that the parties have equal shared parental responsibility. The ICL submitted that "they have managed to make appropriate decisions, despite their conflict". I consider an example of "appropriate decision-making" their enrolment of the child at H School and their agreement that she take the qualification tests for admission to a selective school.
Both parties will continue to play a very significant role in the life of their child. They are both highly committed to her and their role as parents. It seems to me that the child may come to be confused by a situation where one loving parent, with whom she spends considerable time, is prevented from participating in major decisions about the course of her life.
For these reasons I will accede to the proposal of the ICL and the father and order that the parties have equal shared parental responsibility. Hopefully they will focus more on making constructive decisions for their child than indulging their conflict with each other, once they are free of the stress of these proceedings.
Conclusion
As there will be an order for equal shared parental responsibility I am required to consider whether it would be in the best interests of the child, and reasonably practicable, that she spend equal or substantial and significant time with each of her parents. Neither party sought orders for an equal time regime and the ICL made no such proposal. Accordingly, I will give no further consideration to such an outcome. In my view, the proposals of the parents and the ICL would fall within the definition of substantial and significant time.
I am not persuaded that a change in primary residence would be in the best interests of the child. She would be required to adapt to a major change which is contrary to her clearly expressed wishes. Essentially, I see no advantage to the child in subjecting her to such a process. The Respondent himself conceded that he and the child have a very positive and loving relationship and that this situation has improved since the physical separation of the parties.
All of the evidence suggested that the child is developing very well in the present arrangements. I conclude that her best interests will be met by orders in the general terms of the proposals of the ICL and the Applicant. I accept the submissions on behalf of the ICL that there is no need for a financial bond as a pre-condition to overseas travel. The child has travelled overseas on numerous occasions since the separation of the parties and she has always been returned to Australia.
I will not accede to the proposal of the Respondent that the child spend the whole of alternate short school holidays with each parent. In my view, she would benefit from spending leisure time with each of her parents during all school holidays. The orders sought by the Respondent would result in the child spending leisure time with one parent only on weekends for periods of several months at a time.
Alteration of property interests
There is no doubt that it is just and equitable that there be orders for alteration of property interests in these proceedings. The parties have been separated since July 2015 and began to live in separate accommodation in June 2016. Since approximately May 2016 their finances have been intermingled only in accordance with court orders. A divorce order was made on … 2016.
Both parties wish to put an end to their financial relationship. They both seek orders for alteration of property interests, which must constitute a mutual concession that it is just and equitable that there be orders for alteration of property interests. Independently of such a mutual concession, I am comfortably satisfied that orders for alteration of property interests would be just and equitable in the circumstances of these parties.
For these reasons, I am satisfied and I find that it is just and equitable that there be orders for alteration of property interests. The next step is to identify the assets, superannuation, financial resources and liabilities of the parties.
Assets, superannuation, financial resources and liabilities
In December 2019 the parties submitted a balance sheet in the following terms:
Ownership Description Wife’s value Husband’s value ASSETS Real Estate 1. J (99%h/
1%w)B Street, Suburb C
4,300,000
4,300,0002. H1% W99% Car Space, Suburb D
120,000
120,0003. W Indian Property NIL NK 4. H Indian Property NK NIL Bank Accounts 5. H Commonwealth Bank …21
590
5906. W Commonwealth Bank Smart Access A/C …47
860
8607. W Commonwealth Bank Netbank Saver …86
4,001
4,0018. W P Bank Joint Bank Account with Father – …39
15,296 INR= $628.84 (AUD)
314
3149. W P Bank Bank Account Sole Name – …38
13,372 INR = $274 (AUD)
274
27410. W P Bank Fixed Deposit Joint Bank Account with Father – …40
25,0215 INR =$5,129 (AUD)
2,565
2,56511. W P Bank Fixed Deposit Joint Bank Account with Father – …64
39,0684 INR = $8,010 (AUD)
4,005
4,00512. J CBA MISA Account No …08
361,148
361,14813 H CBA …31 funds held by Husband ITF X
5,259
NR14. H CBA Premium Business Cheque Account #...15
NA
NILShares 15. H Company Q shares (3853 @$3.24 10.12.19)
12,484
12,48416. H Company Q Shares held by husband ITF X
NK
NRMiscellaneous 17. W Wife’s Jewellery 51,900 51,900 18. H Husband’s Jewellery 560 560 19. H Household contents 4150 4150 Motor Vehicles 20. H Motor vehicle 2 – …
NA
NIL21. W Motor vehicle 3 – … 12,000 12,000 22. H Motor vehicle 4 driven by Mr K Keegan – …
17,000
12,000Business 23. H E Pty Ltd NA 57 Total $4,897,110 $4,874,908
ADDBACKS 24. W Monies taken from MISA account or housing loan in 2014/2015 49,620
Payment of legal costs
84,000 25. H Payment of legal costs derived from bank accounts
191,070
NKTotal $240,690 $84,000
LIABILITIES 26. J Loan accounts …08 ($817,413) and …07 ($842,134) (Suburb C)
1,659,547
1,659,54727. W Loan from Mr R Richam NIL NIL 28. H Credit Card (CBA Mastercard) NIL 2,354 29. H Qantas Premium Platinum Credit Card
NIL
2,35430. H Loan Account NA 196,985 31. H 2019 Income Tax NIL Total $1,659,547 1,866,352
SUPERANNUATION Member Name of Fund Type of interest Wife / de facto partner’s value Husband / de facto partner’s value 32. H Super Fund 1 Accumulation
415,118
444,33633. W Super Fund 2 Accumulation
60,864
60,864Total $505,595 $505,595
Assets
The disputed items in the list of assets were as follows:
3.
Wife's Indian property
4.
Husband's Indian property
13.
Funds held in trust for X by the husband
16.
Company Q shares held in trust for X by the husband
21.
Wife's motor vehicle 3
22.
Husband's motor vehicle 4
24.
Monies withdrawn from the Misa account by the wife
25.
Monies paid for legal costs from bank accounts by the husband.
The Respondent relied upon documents obtained by his brother, Mr J Keegan, as evidence that the Applicant holds a beneficial interest in real property in India. Mr J Keegan deposed that he is a property developer in City T and that he conducted searches for real estate in which the Applicant had an interest. He annexed to his affidavit copies of the following documents:
1.Application for information in relation to ownership and leases of a property known as S Organisation in City T
2.Lease Agreement dated 2 April 2015 expressed to be between the Applicant's parents and herself as lessors and a named person as lessee
3.Lease Agreement dated 25 September 2016 expressed to be between the Applicant's parents and herself as lessees and a registered society known as S Society as lessors
4.Lease Agreement dated 15 September 2016 expressed to be between the Applicant's parents and herself as lessors and the same registered society as lessee
5.Valuation of this property dated 29 October 2019.
Mr J Keegan also annexed to his affidavit documents purporting to be copies of bank statements for two accounts in India held by the Applicant for the period April 2010 to June 2011. Mr J Keegan gave no evidence as to the reason why or how he obtained copies of these purported statements of bank accounts said to be held by the Applicant.
In cross-examination the Applicant said that she holds one bank account in India in her sole name and three additional accounts jointly with her father. She said that she has produced statements in relation to these accounts but, at the end of the trial, it was unclear to me whether or not she had done so in fact. She listed four Indian bank accounts, three of which were held jointly with her father, in her Financial Statement of November 2019.
In cross-examination the Applicant was shown copies of the purported lease documents annexed to the affidavit of Mr J Keegan. She said "I am not an owner" and "I am not a one-third owner". The Applicant said also that she holds a PAN number for lodgement of tax returns in India and that she pays tax on her bank accounts in that country. She conceded that she provided PAN statements to the Respondent for the first time at the beginning of the trial.
I am not satisfied that the evidence established that the Applicant holds a beneficial interest in real property in India. There was no expert evidence as to the law of ownership and other beneficial interests in property in India. Further, there were aspects of the documents annexed to the affidavit of Mr J Keegan which I found to be confusing on their face. For example, the purported leases named the Applicant as a "lessor" but the valuation report read in part as follows:
Ownership as reported: Mrs U
W/o. Ms V
(Vide Saledeed Doct No …
…, Regd @ SRO City T South, TS, India)"
There is here no reference to the Applicant as an "owner".
As noted, the Applicant disclosed the existence of four bank accounts in India in her Financial Statement of November 2019. She gave no evidence as to the source of the funds in these Indian bank accounts.
PAN statements of the Applicant were tendered in evidence (Exhibit 6). In the absence of expert evidence, I cannot rely on these documents as evidence of ownership of assets in India by the Applicant. In simple terms, I do not know how to interpret these documents.
In my view, however, it is evident the Applicant holds assets in India in relation to which she failed to make adequate disclosure. By her own admission, she pays tax in India and holds bank accounts in that country. She did not disclose the source of the funds held in her Indian bank accounts. As indicated, I am not prepared to make findings to the effect that she holds a beneficial interest in a parcel of real estate in India on the basis of the available evidence. I will take into account the unsatisfactory nature of the Applicant's evidence in relation to her Indian assets pursuant to section 75(2)(o) of the Family Law Act.
A copy of a purported "Sale Deed" contained in Exhibit 7 appeared to be the only evidence that the Respondent holds a beneficial interest in real estate in India. This document apparently was generated in 2014 and named the Respondent as one of four vendors of a parcel of real property.
In cross-examination the Respondent said that this document arose from the sale of a property by his mother approximately six months prior to her death in 1994. He indicated that the sale was registered with the relevant local authority only in 2014.
I am far from satisfied that the evidence established that the Respondent held or holds a beneficial interest in real property in India. I am inclined to accept the submission of counsel for the Applicant that "it would be difficult for the court to make findings in relation to ownership of property in India by either party". I infer that counsel directed this submission to real estate, as the Applicant conceded that she holds bank accounts in India.
The Applicant sought to include as assets of the Respondent a sum of $5,259 which he asserted that he holds upon trust for X. I have no reason to doubt that the Respondent holds these funds as trustee for the parties' child. I note that he deposed in his trial affidavit as follows:
272.... I later commenced a bank account for X and began depositing $100 / month into that account since then and is ongoing.
The Applicant also sought to include as an asset of the Respondent an unknown number of Company Q shares, which he claimed to hold upon trust for X. It is obvious that there was no evidentiary basis for inclusion of these shares as an asset of the Respondent.
The inclusion or exclusion of the Applicant's motor vehicle 3 as an asset is contingent upon the treatment of funds which she withdrew from the Misa account and, possibly, the mortgage home loan account in 2014/2015. The Respondent deposed that the Applicant withdrew sums of $54,000 from the Misa account in October 2015 and $30,000 from the home loan account in December 2015.
The Applicant deposed, in relation to the Misa account withdrawal, that she "used these funds in payment of day-to-day living expenses including groceries and legal fees". At this time, the parties were living in a state of separation under one roof and the Applicant had no source of income. Interim orders were made by consent on 21 October 2015 which provided, inter alia, that the Respondent pay to the Applicant spouse maintenance of $500 per week. I was not taken to evidence of the amount which the Applicant held in bank accounts at this time.
I will not add back an amount of $54,000 which the Applicant withdrew from the Misa account in October 2015. I accept that she had a need for liquid funds at this time and that she was required to pay legal fees. The difficulty with an add back on account of legal fees is that there was no evidence as to what portion of this sum of $54,000 was spent by the Applicant for that purpose.
It follows that I will include the Applicant's motor vehicle 3 as an asset. There was no evidence as to its value, thus I will adopt a figure of $12,000 on the basis of an admission against interests by her.
The only evidence that the Applicant withdrew a sum of $30,000 from the mortgage account in December 2015 was a bare statement to that effect by the Respondent in his affidavit. I was taken to no documentary evidence to support this assertion.
There was no evidence as to the value of the Respondent's motor vehicle 4. I will thus adopt the figure of $12,000 as its value, on the basis of an admission against interest by him.
The Applicant sought to add back a sum of $191,070 which the Respondent has spent on legal costs. It was submitted on her behalf that "it is a long bow that the Respondent acquired $191,000 in savings after separation to pay his legal costs."
The fact is that the Applicant pointed to no bank account or accounts from which the Respondent withdrew these funds to pay his legal costs. This contention thus rests upon supposition and speculation rather than evidence. Additionally, it was not put to the Respondent that he applied funds which existed at the date of separation to meet his legal costs. For these reasons, I will not add back to the list of assets the Respondent's paid legal fees of $191,070.
For expediency, I will exclude from the list of assets the motor vehicle 2 which is owned by the company and thus subsumed in the calculation of its value at $57. I will also exclude the company itself as an asset of the Respondent. I infer that the value of $57 was calculated on a net asset backing basis drawn from the 2019 financial statements of the company.
Liabilities
I will not include the credit card debts of the Respondent in the list of liabilities. Clearly, he has incurred these debts well after the date of separation and for unknown purposes.
I will not include the loan account of the Respondent with the company as his liability in the Balance Sheet. I assume that the loan account was included in the calculation of the value of the company at $57.
Superannuation
Two different figures were included in the Balance Sheet of December 2019 for the Respondent's Super Fund 1. The amount of $444,731 was the figure included in the Respondent's Financial Statement of November 2019. I will adopt that figure, on the basis of the Respondent's verification thereof on his oath in his Financial Statement.
Financial resources
It seems to me that a conclusion is open that the Applicant holds financial resources of an unknown nature and value in India. As indicated above, however, I will take this matter into account pursuant to section 75(2)(o) of the Act.
I thus find the assets, superannuation and liabilities of the parties to be as follows:
Ownership Description Value ($) ASSETS 1. J (99%h/
1%w)
B Street, Suburb C
4,300,0002. H1% W99%
Car Space, Suburb D
120,0003. H Commonwealth Bank …21 590 4. W Commonwealth Bank Smart Access A/C …47
8605. W Commonwealth Bank Netbank Saver …86 4,001 6. W P Bank Joint Bank Account with Father – …39 15,296 INR= $628.84 (AUD)
3147. W P Bank Bank Account Sole Name – …38
13,372 INR = $274 (AUD)
2748. W P Bank Fixed Deposit Joint Bank Account with Father – …40
25,0215 INR =$5,129 (AUD)
2,5659. W P Bank Fixed Deposit Joint Bank Account with Father – …64
39,0684 INR = $8,010 (AUD)
4,00510. J CBA MISA Account No …08 361,148 11. H Company Q shares (3853 @$3.24 10.12.19) 12,484 12. W Wife’s Jewellery 51,900 13. H Husband’s Jewellery 560 14. H Household contents 4,150 15.. W Motor vehicle 3 – … 12,000 16. H Motor vehicle 4 driven by Mr K Keegan – ….
12,000Total $4,886,851
LIABILITIES 17 .J Loan accounts …08 ($817,413) and …07 ($842,134) (Suburb C)
1,659,547Total $1,659,547
SUPERANNUATION Member Name of Fund Type of interest Husband / de facto partner’s value 18. H Super Fund 1 Accumulation
444,73119. W Super Fund 2 Accumulation 60,864 Total $505,595
The contributions of the parties
The Applicant contended that her contributions were made more arduous by the conduct of the Respondent, as recognised in the Full Court decision of Kennon and Kennon (1997) FLC 92-757, inter alia, as follows at p 84,294:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s.79. ...
The Full Court said also at 84,294 – 84,295:
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernable impact upon the contributions of the other party. ...
A later Full Court decision of Spagnardi and Spagnardi [2003] FamCA 905 appeared to impose an additional requirement for a successful Kennon claim. The court said inter alia:
47.An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
● The incidence of domestic violence;
● The effect of domestic violence; and
●Evidence to enable the court to quantify the effect of that violence upon the parties capacity to "contribute" as defined by section 79(4).
In Spagnardi the Full Court said also:
46.In addition to that stated by the trial Judge we would not want the reference in Kennon to "exceptional" on page 84,294 to be understood to mean rare. We do not agree with this qualitative description and would be more inclined to the view expressed by the trial Judge at paragraph 17:
"In his submissions, [counsel for the husband], quite understandably and quite correctly, drew my attention to the strength of the language, referring to 'exceptional cases' and ' the relatively narrow band of cases'. However, it seems to me that, reading these passages as a whole, the references to 'exceptional cases' and 'narrow band of cases' occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are 'significant adverse impact' and 'discernable impact'. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon.
I am inclined to agree with the majority of the Full Court in Keating and Keating 2019 FLC 93-894 in relation to the need for "quantification" evidence for a successful Kennon claim. The court there stated:
38.Their Honours further noted at [48] that there was a "complete absence of evidence as to how the husband's conduct affected her ability to contribute". At first blush the reference in Spagnardi to "quantification" seems to elevate the need for an evidentiary nexus or "discernable impact" between the conduct complained of and its effect on the party's ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence. That impression is reinforced by their Honours' reference to and comparison with the husband's failure to adduce evidence to demonstrate the impact on the value of the house by his renovations and improvements at [50] where their Honours said:
An absence of quantification was also apparent in the appellant's case. While the husband went to great lengths to identify each of the tasks undertaken by him in connection with renovations and improvements to the matrimonial property, he failed to provide evidence of the direct effect of his endeavours upon the value of the property.
39.This uncomfortable analogy does not illuminate what "quantification" of the effect of violence on contributions might look like. It suggests something more than the evidence by the victim spouse. We struggle to understand what that "quantification" evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in Spagnardi in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in Spagnardi said governed the situation. Perhaps the use of the word "quantification" is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). But we did not have the benefit of argument on the point (nor it seems did the primary judge) and prefer to express no final view about it.
In his Outline of Case document counsel for the Applicant identified her Kennon claim in the following terms:
56.It is submitted on behalf of the wife that her version of events involving the husband's insidious form of the wife impacted on her capacity to contribute making it more arduous for her [presumably this sentence was intended to read "the husband's insidious form of control of the wife].
57.This form of control includes the constraints imposed by the husband in relation to economic opportunities, (including banking restrictions); the lack of encouragement for a career pathway for the wife (even accepting her otherwise parenting responsibilities); and the difficulties associated with the use of a motor vehicle, noting her responsibilities for a fairly young child.
58.An acceptable [sic] of the wife's version of events associated with the incident of 12 January 2016 may also be relevant.
...
61.Putting the matter simply, it is submitted that the evidence establishes here that the husband's controlling behaviour has stifled the wife's capacity to contribute. That stifling of her capacity to contribute is not just limited to her capacity to work independently and earn an income. It also reflects her capacity to contribute as a homemaker and parent. ...
In my view, cross-examination of the Applicant demonstrated that her evidence to the effect that the Respondent placed her in parlous financial circumstances was exaggerated and perhaps inaccurate in some instances. For example the Applicant agreed that she said to her neighbour Ms M in 2015:
"Mr Keegan won't give me any money. I can't even take X out for an ice-cream or give myself a haircut."
In cross-examination, however, the Applicant conceded that she had approximately $15,000 in her own bank account in the first quarter of 2015, when the Respondent stopped her access to his credit card. Similarly, she conceded that she had funds in her bank account when the Respondent stopped her access to his credit card in 2011 and 2012.
Despite the assertion of counsel for the Applicant to the effect that the Respondent stifled her prospects for development of a career, she deposed that:
78.When I received the payments of $1,000 before November, 2012, I used these funds to pay for personal items and to pay for the cost of exams, course materials and text books. In March, 2011 I sat for an Occupational English test at a cost of $1,100. I sat for exams relating to have my healthcare professional qualifications recognised in September, 2011 and September, 2012 at a cost of $1,500 each. Mr Keegan wanted me to study to have my Healthcare qualifications recognised and I wanted to study health sciences to pursue a career in allied health.
The Applicant deposed that the Respondent stopped her credit card access in May 2012. The relevant bank statement for her Commonwealth Bank account (Exhibit 16) showed balances of $12,537 in early May 2012 and $13,637 in late May 2012. It thus appears that the Applicant was not deprived of funds to the extent that she needed to withdraw money from this account during that period.
The Applicant deposed that the Respondent again stopped her credit card access in January 2015. In January 2015 her Commonwealth Bank account held $17,736 and this balance was maintained, in approximate terms, until March 2015 (Exhibit 5).
I am inclined to the view that the Respondent's treatment of the Applicant generally was characterised by arrogance, condescension and insulting and belittling language. I appreciate that the Respondent denied that he subjected the Applicant to insulting and/or belittling language. I have referred above, however, to examples of conduct on his part which demonstrated a clear lack of respect for the Applicant.
I am conscious that the Applicant consulted a psychologist on 33 occasions over a period of approximately three years, with the last appointment being in 2017. I accept that the Applicant sought professional assistance for stress and anxiety but Ms G was provided only with the Applicant's version of events within the marriage. I do not consider that the Applicant's resort to treatment assists her Kennon claim.
For these reasons I do not accept that the Applicant made out a claim that her contributions were rendered more arduous by the conduct of the Respondent. I do not condone aspects of the Respondent's treatment of her but I do not accept that his conduct was such as to place the circumstances of these parties into the narrow category of cases recognised in Kennon and Kennon.
No doubt the initial contributions of the Respondent exceeded those of the Applicant to a significant extent. Essentially, the Applicant brought no assets into the marriage and the Respondent introduced equity in the Suburb F property, approximately $200,000 in savings and a $60,000 superannuation benefit.
During the relationship the Respondent earned a high level of income from his healthcare practice. Inter alia, he serviced the mortgages in respect of the Suburb C and Suburb D properties and made contributions to the superannuation funds of each of the parties. He provided funds for the day-to-day living expenses of the parties and their travel to India and other destinations.
During the parties' cohabitation, the balance of the Respondent's superannuation fund increased from about $60,000 to approximately $256,000. The value of the fund increased from around $256,000 to $444,731 during the period from separation to trial. The Applicant acquired a superannuation fund with the balance of $60,864, which derived solely from the Respondent's income.
During the relationship the parties acquired their principal asset, that being the Suburb C property. The Respondent made a cash contribution of $235,000 to the purchase price and the Applicant's mother provided a further sum of $30,000 for that purpose.
The Applicant's principal contribution was that of homemaker and parent. She has continued in the role of primary carer for the parties' child for almost four years since the physical separation of the parties.
The Applicant contended that the appropriate contribution finding, independently of any Kennon component, would be 52.5 per cent to the Respondent and 47.5 per cent to herself. The Respondent submitted that there should be contribution findings of 75 per cent to himself and 25 per cent to the Applicant. Neither party suggested that there should be a "two pool" approach to the assessment of contributions.
In my view, the submission of the Applicant inflates her contributions and gives insufficient recognition to those of the Respondent. I do not suggest that direct financial contributions carry more weight than those made in the role of primary carer and principal homemaker. Recognition must be given to the substantial imbalance in the initial contributions of the parties, in a marriage of approximately seven and-a-half years' duration. I am of the view, and I find, that contribution should be assessed at 30 per cent to the Applicant and 70 per cent to the Respondent.
Section 75(2) factors
Leaving aside the issue of the Applicant's apparent lack of full and frank disclosure in relation to her assets and financial resources in India, section 75(2) factors clearly would militate in her favour. In my view there are three principal factors which underpin this obvious conclusion.
Firstly, the parenting orders which I will make result in the Applicant continuing to have primary responsibility for the care of the parties' child, who is only ten years of age. Secondly, there is a stark differential in the capacity of the parties to earn income. The Respondent is a health professional who has the capacity to generate a significant level of income. The Applicant is currently undertaking study for a Diploma in Allied Health. In November 2019, she estimated that she will complete this course in approximately six to twelve months. In my view, it is inconceivable that the Applicant's future level of income could approach that of the Respondent.
It can reasonably be assumed that the Respondent will continue to make contributions to his superannuation fund and finish his working life with a substantial benefit. On the other hand, the Applicant is 44 years old and she has yet to commence her working life. It is highly unlikely that she will accrue superannuation benefits of the magnitude of those of the Respondent.
I consider that these two factors would warrant a relatively significant adjustment in favour of the Applicant. The issue then is what extent should any such adjustment be offset by her failure to make full and frank disclosure in relation to her financial position in India.
The Applicant contended for a 12.5 per cent adjustment in her favour on account of section 75(2) factors. The Respondent conceded that the disparity in the income-earning capacities of the parties would warrant an adjustment in favour of the Applicant. The Respondent contended, however, that the Applicant's failure to make full and frank disclosure militated against any such adjustment in her favour.
I consider, and I find, that there should be an adjustment of 15 per cent of the net pool of assets and superannuation in favour of the Applicant before taking into account her failure to make full and frank disclosure. I accept the submission on behalf of the Respondent that this failure should be taken into account in assessing what adjustment in favour of the Applicant is just and equitable in all of the circumstances. I do not accept the submission that the Applicant's non-disclosure extinguishes any adjustment in her favour. On the available evidence, I can be satisfied only that the Applicant holds bank savings in India of unknown origin. I am satisfied, and I find, that an adjustment of 12.5 per cent of the net pool of assets and superannuation is warranted in all of the circumstances.
Result
The result is that I find that the net pool of assets and superannuation should be divided as to 57.5 per cent to the Respondent and 42.5 per cent to the Applicant. The Respondent sought to retain the Suburb C and Suburb D properties and I will provide him an opportunity to do so.
Each of the parties proposed a splitting order in relation to the superannuation benefit of the Respondent. The Applicant sought a splitting order of $252,000, based on her receiving 65 per cent of the net proceeds of sale of the Suburb C and Suburb D properties. The Respondent proposed a splitting order of $190,000 based on his retaining those properties and making a cash payment of $500,000 to the Applicant.
It is my view that the form of orders for alteration of property interests should take into account the need of the Applicant for liquid funds to secure accommodation for herself and the parties' child. A splitting order will not assist with this immediate need but will provide a basis for accumulation of a retirement benefit for the Applicant. I will make a splitting order as proposed by the Respondent.
The net pool of assets and superannuation has a value of $3,732,899. 57.5 per cent and 42.5 per cent thereof equal $2,146,417 and $1,586,483 respectively.
On the basis that the Respondent retains the Suburb C and Suburb D properties and there is a splitting order of $190,000, he will take or retain the following assets and superannuation:
($) 1. Suburb C property 4,300,000 2. Suburb D property 120,000 3. Commonwealth Bank account 590 4. Misa account 361,148 5. Company Q shares 12,484 6. Jewellery 560 7. Motor vehicle 4 12,000 8. Household contents 4,150 9. Super Fund 1 benefit after splitting order 254,731 $5,065,663
The respondent will assume responsibility for the bank loans of $1,659,547. He will thus hold net assets and superannuation to the value of $3,406,116, which exceeds his entitlement of 57.5 per cent by $1,259,700. I will order that the Respondent pay this sum to the Applicant within three calendar months of the date of judgment.
On the basis of a splitting order of $190,000, the Applicant will retain or take the following assets and superannuation:
($) 1. 2 Commonwealth Bank accounts 4,861 2. 4 Indian bank accounts 7,158 3. Jewellery 51,900 4. Motor vehicle 3 12,000 5. Super Fund 2 60,864 6. Superannuation splitting order 190,000 $326,783
This amount falls short of her entitlement of 42.5 per cent by $1,259,700.
As a cross-checking exercise, the payment of $500,000 and splitting order of $190,000 which the Respondent proposed would result in the Applicant receiving approximately 22 per cent of the net pool of assets and superannuation. I would regard such an outcome as unjust and inequitable in all of the circumstances.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 24 April 2020.
Associate:
Date: 24 April 2020
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