SABHARWAL & NAKUL
[2019] FCCA 1084
•11 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SABHARWAL & NAKUL | [2019] FCCA 1084 |
| Catchwords: FAMILY LAW – International transfer of funds during the course of the relationship – less than candid and frank disclosure – change of child's name – costs of independent children's lawyer – superannuation splitting. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), div.21 Family Law Act 1975 (Cth), ss.4, 4AB, 60CA, 60CC, 61C, 61DA,65DAC, 75 (2), 75(2)(o), 79(4), 117 |
| Cases cited: Lorreck & Watts [2018] FamCAFC 149 Kowaliw & Kowaliw (1981) FLC 91-092 B & B (1993) FLC 92-357 M & M 166 CLR 69 Mazorski & Albright [2007] FamCA 520 Hickey v Hickey and the Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 Kennon & Kennon (1997) FLC 92-757 Joan B Kelly and Michael P Johnson, ‘Differentiation among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476. |
| Applicant: | MS SABHARWAL |
| Respondent: | MR NAKUL |
| File Number: | PAC 606 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 8 February 2019 |
| Date of Last Submission: | 8 February 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 11 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart |
| Solicitors for the Applicant: | Ms Grew |
| Counsel for the Respondent: | Mr Givney |
| Counsel for the Independent Children's Lawyer: | Mr Harris |
ORDERS
By consent, the child [X] born … 2008 shall herein after be known as [X] Sabharwal-Nakul.
THE COURT NOTES that no Order with respect to parental responsibility has been made and with the consequence that section 61C of the Family Law Act 1975 shall apply such that each of [X]’s parents shall have responsibility for making major issues decisions for [X] at such times as she is in their respective care and subject to:
(a)[X] shall live for the entirety of each school term with her mother and accordingly, her mother alone is entitled to make decisions as to the school [X] attends;
(b)The remainder of these Orders, particularly relating to the involvement of each parent in [X]’s education and health and overseas travel, would prevail in the event of any controversy regarding decision making.
[X] shall spend time with her father as follows:
(a)Each alternate Saturday, for a period of 6 months from the date of these Orders, such period being not less than 10.45am to 3.45pm but otherwise such periods as can be accommodated by the Suburb A Children’s Contact Service operating as a changeover service only and with respect to same:
(i)The mother shall ensure that [X] is delivered to the Suburb A Children’s Contact Service at the commencement of each period;
(ii)The father shall ensure that [X] is returned to the Suburb A Children’s Contact Service at the conclusion of each period;
(iii)The engagement of the contact service is for changeover only and with no expectation or requirement that the father’s time with [X] is supervised;
(b)Thereafter and for a period of 6 months, from the conclusion of school Friday (5pm during school holidays) until 5pm Saturday (extending to 6pm during daylight savings) each alternate weekend with the father to collect [X] from her school at the beginning of each period or if not a school attendance day the mother’s home (subject to the following injunctive Orders) and to return [X] to the mother’s home (again, subject to the following injunctive Orders) at the conclusion of period;
(c)Thereafter each alternate weekend from the conclusion of school Friday (5pm during school holidays) until 5pm Sunday (extending to 6pm during daylight savings time) each alternate weekend with the father to collect [X] from her school at the beginning of each period or if not a school attendance day the mother’s home (subject to the following injunctive Orders) and to return [X] to the mother’s home (again, subject to the following injunctive Orders) at the conclusion of period.
Pursuant to section 68B of the Family Law Act 1975, the father shall be and is hereby restrained and injuncted from:
(a)Communicating or attempting to communicate with the mother during any contact changeover;
(b)Attending at or being within 500 metres of the mother’s residence save and except for the purpose of changeovers as above;
(c)Approaching or contacting the mother or attempting to communicate with her at any time.
For such period as changeovers continue to occur through the Suburb A Children’s Contact Service each parent shall be responsible for one half of all and any fees charged by that service and each parent shall comply with all directions of staff.
Pursuant to section 13C of the Family Law Act 1975, each of the parents shall forthwith and within 48 hours contact … Counselling and Mediation Suburb B for the purpose of arranging and attending the first available and offered intake appointment for assessment of suitability for the parents and [X] to participate in the Keeping Contact Program and with a view to both parents receiving support, guidance and counselling by the staff at that program, [X] being included and participating in the Anchor Program and/or Connect Kids and Connect Parents groups and/or such other supports and assistances as may be available to the parties and with respect to same:
(a)The mother shall ensure [X]’s attendance at such times, dates and places as advised by Counselling Service;
(b)Each parent shall attend such appointments as are offered;
(c)Each parent shall be responsible for one half of any fees charged by Counselling Service with respect to [X]’s attendance and such fees as are charged directly to each parent with respect to their participation;
(d)Each party shall be at liberty to provide a copy of these Orders to Counselling Service.
Each parent shall forthwith do all things, sign all documents and give all consents, authorities and instructions as are necessary to cause each parent to be recorded with any school that [X] attends as both a parent and emergency contact person and so as to ensure that each parent can receive information and reports from the school and to be advised of and attend upon any events to which parents are invited or encouraged to attend.
Each party shall forthwith and contemporaneous with the event, advise the other of any significant illness, specialist medical appointment, injury or hospitalisation relevant to [X] and shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and permit each parent to be fully advised and consulted with respect to any treatment provided to [X] and to visit her if hospitalised.
Pursuant to section 65Y of the Family Law Act 1975, the mother is at liberty to take [X] from the Commonwealth of Australian for the purpose of a holiday/family visit to India, and for the purpose of such travel, any time with the father ordered under Order 3 may be suspended for no more than 6 weeks per calendar year to allow such travel.
To facilitate Order 9, [X] shall be permitted to travel internationally without the need for the consent of the father to be provided for the issue of a Passport for [X]. The mother shall be the only person with parental responsibility for [X] for the purpose of applying for, and being issued with, an Australian Passport for [X].
For the purpose of any application for issue of an Australian Passport or other travel document or any application for issue of a visa entry permit or similar document the mother shall have sole parental responsibility for [X].
Each of the parents shall forthwith do all things, sign all document and give all consents, authorities and instructions as are necessary to complete and lodge a change of registration application with respect to [X]’s registered birth details so as to amend her surname to be Sabharwal-Nakul.
Each parent is restrained from speaking about the other parent or members of their family, household or social networks in a negative, offensive or derogatory manner in the presence or hearing of the children and shall remove the children from the presence or hearing or any third party who does so.
Request that the Independent Children’s Lawyer meet with [X] and explain these Orders to her.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The whole of funds currently held in the Bank West Offset loan account number … shall be applied to the Bank West mortgage account secured on the property C being the whole of land contained in Folio Identifier … (‘the Property C property’).
Within 2 months of the date of these Orders the wife shall discharge the mortgage to BankWest which is secured on the Property C property and upon discharge the husband shall transfer to the wife all his right title and interest in the Property C property.
The wife shall retain the contents of the Property C property.
The parties shall otherwise retain the assets and liabilities in their respective names.
In the event that either party refuses or neglects to execute any Deed or Instrument necessary to give effect to all or any of the Orders made herein then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such Deed or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the said Deed or Instrument upon the Registrar being satisfied of such refusal or failure verified by way of Affidavit.
Pending the implementation of these Orders the husband is restrained from:
(a)Save as necessary to comply with these Orders dealing with the mortgage to Bank West secured on the former home and/or the BankWest offset account loan;
(b)Dealing with his superannuation entitlements in Super Fund D.
Pursuant to section 121 of the Family Law Act 1975 the wife is hereby authorised to provide a copy of these Orders for Freedman & Gopalan Lawyers, which Attorneys have caused a caveat against title to be recorded with respect to the Property C property and, presumably, confined to the husband’s interest in that property and with the husband’s consent and noting that:
(a)As a consequence of the Orders made herein the wife will become the sole registered proprietor of that property without payment of funds to the husband;
(b)As a consequence of the Orders made herein the husband shall have no right, title or interest with respect to the Property C property and thus any caveat which purports to restrain dealings with the husband’s interest of the property would be ineffective, inappropriate and unsupportable.
Grant leave to the wife to apply on 7 days’ notice in the event that the caveat presently recorded against title of the property by Freedman & Gopalan Lawyers is not withdrawn within 7 days of provision to those lawyers of a copy of these Orders and for the purpose of the wife then seeking joinder of those lawyers so that an Order might be made directed to them compelling removal of the caveat and to address any issue of cost which arises thereto.
In accordance with section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable from the interest of the Respondent husband Mr Nakul, in the Super Fund D account number …, the Trustee of Super Fund D shall pay to the Applicant, Ms Sabharwal, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $69,902.50 of the value of the Respondent’s interest in Super Fund D and that there be a corresponding reduction in the entitlement that the Respondent would have had but for these Orders.
Order 24 above have effect from the operative time which is 4 business days after service of these Orders upon the Trustee of Super Fund D.
Having been afforded procedural fairness, Order 25 above binds the Trustee of Super Fund D.
The husband shall within 3 months of the date of this Order pay to the Legal Aid Commission as a contribution towards the costs of the Independent Children’s Lawyer the sum of $6,375.05 and in the event that payment is not made to the Legal Aid Commission in full within that time then:
(a)Interest shall then accrue upon that sum or such portion of it as remains outstanding from time to time at the rate prescribed by the Federal Circuit Court Rules 2001;
(b)The Legal Aid Commission shall be entitled to commence proceedings for recovery of that sum together with interests and costs with respect to enforcement in a Court of competent jurisdiction.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
THE COURT NOTES that upon conclusion of the proceedings the wife’s Application for costs, as sought in her amended Initiating Application, is pressed.
Adjourn that Application for determination (estimate one hour) to 24 May 2019 at 9.30am.
Pending determination of the wife’s Application for costs the husband shall be and is hereby restrained from dealing with or providing any instruction to his legal representatives to deal with funds presently held by them in trust on behalf of the husband.
IT IS NOTED that publication of this judgment under the pseudonym Sabharwal & Nakul is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 606 of 2016
| MS SABHARWAL |
Applicant
And
| MR NAKUL |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to issues of property adjustment and parenting between parties, Ms Sabharwal, the Applicant wife, and Mr Nakul, the Respondent husband.
The child, the subject of the proceedings is young [X], born … 2008, recently having turned 10.
At the conclusion of the proceedings, an issue was also joined with respect to contribution to costs of the Independent Children’s Lawyer.
Parties’ proposals, applications and responses.
The proceedings were commenced after attempts at Family Dispute Resolution. Each of the parties would appear to have filed a section 60I certificate. One is issued under the hand of an FDRP from Counselling Service Suburb B suggesting that FDR was assessed as inappropriate. The second, issued under the hand of an FDRP from CatholicCare, offers the same opinion. Accordingly, the matter has commenced without any attempt at facilitative negotiation between the parties directly.
The Initiating Application, which gives rise to the proceedings, was filed on 11 February 2016. That application, filed by the wife, sought orders with respect to property adjustment only. The wife sought, by that application, that the husband discharge a mortgage encumbering a property at Property C, that property being the principal asset of these parties, and that the property then be transferred to the wife. The wife also sought an order that the husband pay spousal maintenance for a period of three years.
The issue of parenting was joined upon the filing of a Response filed by the husband on 2 May 2016. At that point, the husband was represented by solicitors different to those who represented him at hearing.
The husband has changed legal representatives on a number of occasions during the proceedings leading to at least two of those legal practitioners recording caveats against title. It would seem those caveats were recorded with the consent of the husband and with the husband and those legal practitioners both fully aware of the claim for relief made by the wife. The appropriateness of those actions, with the husband’s consent thereto and with the husband and the legal practitioners then representing the husband both fully aware of the wife’s claim is, at best, questionable.
The husband by his initial Response (it has since been amended) had sought that the property at Property C be listed for sale and sold. The husband proposed a formula to calculate a division of the proceeds and suggested that it represented an equal division of all assets of the relationship between the parties.
It must be observed, from the outset, that relief of the nature sought by the husband is, in most circumstances, problematic. If such an order were made, it would be impossible for it to be enforced. I would wholeheartedly discourage such applications. In this case, it is doomed to failure. That arises as a consequence of matters relating to, as described by Counsel for the wife, the husband’s delinquency with respect to disclosure such that it is impossible, even at the conclusion of these proceedings and after four days of evidence, to have any confidence as to the assets that might comprise the present legal and equitable interests of these parties. Thus, the formula by which the division of the proceeds of sale of the property would be calculated is meaningless.
The husband subsequently filed an amended Response on 27 January 2017. Thereby, the issue of parenting was joined. By that amended Response the husband, who had by then changed legal representatives, sought that there be:
…an overall property adjustment as to 40 per cent to the wife and as to 60 per cent to the husband.
Two comments need to be made with respect to the relief as sought. Firstly, it is impossible to understand how the husband, with the advice of his then legal practitioners, might have formulated that relief. It certainly would not appear to reflect any of the agreed facts in the proceedings. Secondly, the plea for relief is, again, problematic. If such an order were made, it would be impossible to enforce. Such applications have no place before the Court. That is all the more so in this case, again, because as a consequence of the husband’s delinquency in disclosure, it is impossible to ascertain the present legal and equitable interests of the parties with anything resembling confidence.
The husband has not further amended his Response in these proceedings, although the relief sought by the husband at hearing is dramatically different to that which is set out within either document filed.
Following service of the husband’s amended Response, a reply was filed by the wife responding to the parenting issues. Thereby, the wife sought that she have sole responsibility for [X], that [X] live with her and that orders be made facilitating the child’s travel with the wife from the Commonwealth. Injunctive relief, presumably pursuant to section 68B, was also sought. The orders that were sought would fall within the personal protection aspects of that section.
The wife’s position has been amended three times subsequently. That is no criticism of the wife. The amendments would appear intended to finesse and respond to the ever developing circumstances of this case. The wife’s pleas for relief with respect to parenting have remained consistent throughout.
It must be observed that in the period from the filing of a Response through to, and including, a further Amended Initiating Application filed 3 December 2018, the wife’s position with respect to parenting has remained unmoved. With respect to property, however, the wife has responded to the ever-developing disclosure in the proceedings, albeit that disclosure remains incomplete at hearing.
By a further Amended Application, filed 15 March 2018, the wife sought that an offset account with respect to the home be applied towards reduction of the mortgage, that the husband then discharge the balance of the mortgage, that the property be transferred to the wife and joining a plea for relief with respect to superannuation splitting. A further amended application, filed 24 October 2018, shortly before the commencement of the trial, sought similar, if not identical relief, albeit requiring amendment so as to seek certain orders with respect to the removal of a caveat then lodged by the husband’s until then recently engaged legal practitioners.
The further Amended Application, filed 3 December 2018, again repeated the relief previously sought by the wife, save and except that the wife conceded that she would be responsible for the discharge of the mortgage encumbering the Property C property after the application of the offset account funds and, again, requiring an amendment to seek orders to facilitate the removal of a further caveat recorded against the title of the property.
At the commencement of the trial, and it is to be observed not earlier, the husband’s position with respect to parenting changed substantially. A minute of order was tendered on the husband’s behalf wherein the husband conceded that [X] would live predominantly with her mother.
During his cross-examination, the husband indicated that he had come to the conclusion that such relief was appropriate shortly after the release of the family report, that having occurred some 12 months or so prior to the commencement of the trial. Why the husband considered it necessary to keep that change of attitude to himself and not communicate it to the Court, let alone the wife, is unclear. It is, to adopt language used by the husband, at least during family report interviews, cruel. It is damaging to the husband’s ability to obtain any concession from the wife with respect to parenting in circumstances in which the parties are very much unsupportive of the other.
The husband then sought a regime of time with respect to his practise of relationship with [X], building up to a substantial and significant time arrangement: each alternate weekend and for a period of time in each week after school, whether overnight or otherwise.
By the close of evidence and submissions, the husband’s position with respect to property adjustment had also changed substantially, perhaps reverting to the position he had originally begun with: an equal division based upon the husband’s calculation of the present legal and equitable interests in property of these parties (or close to it).
At the commencement of the trial, the Independent Children’s Lawyer did not advance a position that they spoke to. Their position was, as it were, and as stated in the Case Outline document provided by counsel for the Independent Children’s Lawyer, reserved until completion of evidence and testing thereof through cross-examination.
At the close of evidence and during submissions, a Minute of Orders was tendered on behalf of the Independent Children’s Lawyer, the Independent Children’s Lawyer being largely disinterested in the property adjustment proceedings, and appropriately so. By the Minute tendered, the Independent Children’s Lawyer proposed that the mother would have sole parental responsibility. [X] would live with her mother, (an order which it would seem can be made by consent and there is some importance to the order being expressed as such), and that the father spend time with [X] on something well short of a substantial and significant time basis.
The Independent Children’s Lawyer proposes, in closing, that for a period of six months, the time continue as it is presently practised and as it has been practised for approximately three years: for five hours each alternate Saturday. The continuation of that arrangement for six months is intended to facilitate the parties’ engagement with therapeutic services. Thereafter, and perhaps with the hope, if not expectation, that the therapeutic services would have had some positive impact, time would then increase to commence Friday after school and conclude on Saturday afternoon. Thus, the positions of the parties and the Independent Children’s Lawyer are clear.
Material considered in dealing with the proceedings.
I have read and considered each of the documents identified by the parties in their respective case outline documents as well as the documents that are tendered during the hearing of the proceedings. The tenders are substantial.
In the case of the Applicant wife, I have read and considered, in addition to her applications and reply enumerated above:
a)The wife’s trial affidavit sworn or affirmed on 14 March 2018;
b)The wife’s Statement of Financial Circumstances, filed 15 March 2018;
c)Notice of Risk, filed 30 November 2017;
d)An Affidavit of the maternal grandmother, filed 25 July 2018;
e)An Affidavit of an Indian valuer, Mr E, that Affidavit sworn or affirmed 24 October 2018 and filed in Court.
In the case of the husband, I have read and considered:
a)His trial Affidavit, filed 22 June 2018;
b)Statement of Financial Circumstances, filed in Court at the commencement of the trial, having been sworn on the first morning of trial;
c)Notice of Risk, filed 27 January 2017;
d)A further Affidavit of the husband, filed on 5 February 2019.
The exhibits, as indicated, are abundant, comprising:
a)Exhibit A, the Family Report;
b)Exhibit B, a balance sheet, although that balance sheet was subsequently rendered redundant;
c)Exhibit C, a minute of orders proposed by the husband;
d)Exhibit X, a costs agreement between the husband and a former legal representative which need not be considered for the purpose of this determination;
e)Exhibit AA, an amended and relatively agreed balance sheet being that which is that moved upon;
f)Exhibit R1, a document titled ‘Money Invested in India’;
g)Exhibit R2, a letter from the husband’s former legal representatives, 4 November 2016;
h)Exhibit R3, certain photographs, receipts and police reports;
i)Exhibit R4, photographs;
j)Exhibit R5, a report obtained by the husband;
k)Exhibit R6, documents regarding the parenting program at Relationships Australia;
l)Exhibit R7, material with respect to the husband’s redundancy which occurred in late 2017;
m)Exhibit R8, material from the Bank of Queensland;
n)Exhibit R9, correspondence with respect to the husband’s present employment;
o)Exhibit R10, a job application for the husband;
p)Exhibit R11, a letter, dated 5 February 2019, regarding disclosure. It is to be observed that whilst tendered in relation to a request for disclosure by the husband made shortly prior to the final day of hearing, indeed, one business day prior thereto, there is no controversy that the material sought by the letter was produced by the wife on the last day of trial;
q)Exhibit R12, a certificate of completion of a family counselling program;
r)Exhibit R13, documents setting out the effect of orders proposed by the husband;
s)Exhibit R14, a Minute of Orders with respect to the property adjustment proposed by the husband.
t)Exhibit R15, a further document with respect to the husband’s position in relation to financial issues;
u)Exhibit A1, a section 50 Evidence Act table together with various bank statements and documents in relation to a property in India;
v)Exhibit A2, correspondence from February 2018;
w)Exhibit A3, correspondence with respect to superannuation splitting orders and procedural fairness afforded to the trustee;
x)Exhibit A4, bank statements with respect to various of the husband’s accounts;
y)Exhibit A5, a document setting out the effect of orders proposed by the wife in relation to the financial aspect of the proceedings;
z)Exhibit A6, a further document relating to the financial aspect of proceedings.
In the Independent Children’s Lawyer’s case there are abundant tenders. Exhibits ICL1 to 10 were set out in a separate schedule provided during the trial. Exhibit ICL11 is the Minute of Orders to which reference has already been made. Exhibit ICL12 is a schedule of costs sought by the Independent Children’s Lawyer.
Credit
This case requires some specific consideration of credit. It is a significant matter in this case as many aspects of the parties’ evidence are diametrically opposed and cannot be reconciled other than through an acceptance of one party’s evidence over the other. That is particularly significant in relation to allegations of family violence by one or both of the parties and in light of Full Court authority (see Lorreck & Watts [2018] FamCAFC 149.
In the parenting aspect of the case, I am satisfied that there are some concerns with respect to the credit of each of the parties. However, lest that comment cause significant offence, particularly to the wife, it must be explained from the outset that I am satisfied that the wife has had an experience of the husband that very much falls within the definition of family violence in section 4AB of the Family Law Act 1975 (Cth). Indeed, it is conceded, ultimately, in submissions put in closing the husband’s case, that a finding of family violence can be made. Indeed, in this case and again by reference to Full Court authority as referred to above, it must be made.
In that regard, whilst I am satisfied that the wife has, at times, had the potential to supplant her own views and advance them as the views of the child or to, at times perhaps, exaggerate or embellish her evidence, particularly in relation to the child’s suggested rejection of any relationship with respect to the husband, it is explicable. The wife’s experience of the husband is such that she would explicably believe and, I accept, is in a position whereby she would not view it as being other than her lived reality, that the husband offers no benefit to this child.
The husband, on the other hand, cannot have the same accommodation advanced towards him. The husband’s evidence is not particularly credible in any aspect of the proceedings but, particularly, is not credible in the financial aspect of the proceedings.
I am satisfied that the husband’s allegations, particularly as put to the Family Report writer, suggesting that the wife has perpetrated abuse within the section 4 Family Law Act 1975 (Cth) definition of that term, that she has been cruel to the child, and inflicted misery and unhappiness upon the child, cannot be accepted. The husband has simply not produced any evidence which would support a finding that would permit acceptance of those allegations.
I am satisfied that the husband has, to the extent that he has made such allegations of the wife being cruel to the child and inflicting such misery upon her, either manufactured the evidence, exaggerated things that have occurred and given them a context disconnected from reality, or has otherwise advanced a position consistent with his attitude and views of the wife but divorced from reality.
Both parties have failed to make concessions when they have been available and, indeed, appropriate. That applies to both parties. For example, the wife refused to make any concession that, in photographs tendered by the husband, the child was smiling and that the child smiling might indicate that she was enjoying the event. That was more than the wife would concede. Clearly, in a number of the photos, the child is smiling. Whether it is for the camera or through genuine enjoyment need not be determined. It is the inability to concede that it is even so that is concerning. It is again explicable. The wife would not, in light of her experience of the husband, this having been a particularly unpleasant marriage in many respects, certainly for the wife, readily make such concessions. But it is a concession that might have and should have been made. The failure to do so causes some concern with regard to the wife’s ability to disentangle her own views of the husband from the child’s interests and the child’s views of her father.
In relation to the financial aspect of the proceedings, however, I find the wife’s evidence credible. She is clear and consistent in that which she alleges. She has provided disclosure and discovery as required by Common Law and this Court’s rules. That is in contradistinction to the husband. The husband’s disclosure has been appalling. It is perhaps euphemistically described by counsel for the wife as delinquent. It falls within bounds of behaviour that could appropriately be described as contumelious.
The husband has, at times, been not only not forthcoming with disclosure, falling far short of frank and candid, but at times verging upon, if not in fact being, deceitful or concealing. That included on the last day of hearing when the husband had been asked to produce numerous documents and did not. He indicated that, notwithstanding that the request had been made quite some weeks, if not months, earlier, that he had been busy attending to other matters. What those other matters are is unclear. The husband indicated that the documents that were sought were easy to produce and could be produced almost instantaneously. Indeed, they were so produced simply by the husband going to a computer and printing them when directed to do so.
Why the husband has felt the need to be so delinquent in his obligations of disclosure is unclear, but it does him no credit and does not assist his cause at all.
Similarly, the husband’s evidence with respect to his return to paid employment is problematic. The Affidavit enumerated above was filed one working day prior to the resumption and conclusion of the proceedings with a fourth day of evidence.
The husband indicated therein that, upon his return to employment, he had begun to pay down the various credit cards in his name, although it is unclear from his own evidence why those credit cards were so pressing or what balances had increased that were of such magnitude or monument as to require that endeavour to be prioritised over, for example, the husband’s payment of some financial assistance to the wife, that being a clear issue of contention between these parties.
If that were not difficult enough, suggesting the husband’s prioritisation on a self-serving basis of his finances as opposed to the support of the child or of the wife with the child in her care, the husband then indicated that one of the distractions from his complying with his obligation of disclosure had been a trip, for three and a half weeks or so, to India, no doubt at some cost. A cost which was not replicated in the provision of financial assistance by way of child support or otherwise.
Finally, it is quite clear from the very material tendered by the husband in his own case that the husband was fully aware, when the matter was listed for a three-day trial before the Court in October/November 2018, that he had already secured new employment. I am satisfied that his evidence that he was not aware of that circumstance in light of the offer of employment dated 15 October 2018, a fortnight or so before that tranche of the proceedings, is disingenuous. The husband, I am satisfied, was fully aware that he was about to return to full-time paid employment only a week or so after the conclusion of that tranche of the hearing and yet did not share that with the Court or the wife.
Ultimately, the husband’s lack of credit, particularly with respect to financial issues in the proceedings, suggests that his focus is far more upon money than his child. I accept that he has a genuine interest in young [X], that he desires a relationship with her. Indeed, I am satisfied that he offers a benefit to her through practising such a relationship. But it would seem, and I am left with the impression which I am satisfied is supported by the evidence, that his first priority is money. That includes, for example, aspects of the wife’s evidence which were either conceded by the husband or as to which the wife was not challenged, such as the wife’s evidence that when the husband would attend to the payment of things, such as a modest amount for a service to the wife’s then motor vehicle, that he would immediately make a claim through the Child Support Agency for a non-agency payment. Why he considered that necessary, in light of the financial disparity between the parties and his expressed affection for the child and desire to do all that was possible to ensure her life was as good as it could be, is unclear.
Prior to the commencement of the trial, the parties were directed to complete a statement of agreed and disputed facts. The wife has done what she could to produce such a statement. It is annexed to her trial affidavit, pages 31 to 37. However, I accept the wife’s evidence that the husband was, again, somewhat delinquent in engaging with that process such that I accept that the agreed facts of the case should be taken to be those which are set out within that schedule. I incorporate that schedule herein as Schedule 1.
The matters that are referred to within the schedule as agreed shall be the findings of this Court.
With respect to the financial aspects of the proceedings, there are a number of disputed facts of some significance. I will turn to those shortly after considering the history of these proceedings.
History of Proceedings
Following the filing of the Initiating Application, the matter first came before the Family Court, the matter having been commenced in that Court, on 2 May 2016 for what is referred to as a Case Assessment Conference. It is noted by the Registrar who conducted that conference:
There are outstanding issues relating to disclosure.
It is unclear which party was suggested to be in default, although the orders made might clarify that issue, the first order being that the husband provide disclosure to the wife in accordance with a letter requesting such disclosure. Accordingly, the matter was adjourned.
The matter next came before the Court on 24 May 2016 when it was, again, noted that there were outstanding issues with respect to disclosure. Accordingly, leave was granted to the wife to issue subpoenas.
It would have been difficult for subpoenas to be issued to address all the issues of non-disclosure as there are matters relating to funds held by the husband and property owned by the husband in India which, of course, cannot be the subject of subpoena. The wife is somewhat dependent upon the husband to provide full and proper disclosure. He has not.
The matter was again before the Court on 28 July 2016, it would seem for a Conciliation Conference, a publicly funded facilitated negotiation between the parties which they did not avail themselves of. The conference did not proceed as:
a)The husband had recently changed his solicitors;
b)Issues were raised with respect to the valuation of the Property C property; and,
c)There remained issues in relation to disclosure.
The Conciliation Conference was adjourned. The matter was further mentioned before the Registrar, it would seem in Chambers, on 13 October 2016, when it was noted that a valuation had been completed and that disclosure would be completed that day. Why some six months after the commencement of proceedings, irrespective of which of the Court’s rules were applied, there remained issues with respect to disclosure is unclear. What is even more tragic is that two years after that appearance, the commencement of the trial, there remained the same issues with respect to disclosure.
A further Conciliation Conference, the second, was conducted on 8 November 2016. At that point it was simply noted that the parties had failed to reach an agreement and that there were factual disputes about the pool of assets. It was noted that the husband asserted that the wife had access to greater resources in terms of investments in India.
The evidence clearly demonstrates that the wife does not have, and has never had, any such interests. Issues were also raised regarding jewellery. The evidence is again clear, and the wife’s evidence is unchallenged, that the majority of jewellery that she possessed, whatever it may have been worth at any point in time, was the subject of theft some little time prior to the separation of the parties. Why it was necessary, in those circumstances, to assert such matters which could not be proven, and have not been proven after a four-day trial, is unclear.
The good Registrar, at that point, determined to transfer the proceedings to this Court. No judgment would appear to be delivered nor reasons given for the transfer, but the matter has proceeded before this Court consistent with the Registrar’s direction.
The matter was first mentioned or called over before this Court on 30 January 2017. A Family Report was ordered at the Court’s expense and further orders made with respect to disclosure. The parties were directed to participate in family counselling services. A number of other orders were made.
Shortly prior to the first return date before this Court, an Application in a Case had been filed by the husband seeking parenting relief. Accordingly, when the matter was adjourned, it was noted that the case would proceed by way of interim hearing when it next came before the Court.
The matter next came before the Court on 28 July 2017. On that date, the matter was listed for interim hearing. The interim application was not pressed. Accordingly, all applications were consolidated and the proceedings stood out of the list to await completion of the Family Report. That report was prepared in November 2017 and released to the parties by an Order made 15 November 2017.
The matter returned by way of callover on 17 November 2017. Orders were made for the parties to file their trial material and prepare a schedule of agreed and disputed facts. The matter was adjourned for further callover to allocate hearing dates once the matter was fully ready to proceed.
The matter came before the Court on 8 July 2018. At that point, the parties had filed their trial material and, accordingly, the proceedings were listed for trial. A number of Orders were made by consent with respect to restraint upon the husband dealing with his superannuation and other issues which need not be canvassed at this point.
The matter proceeded for its three days of hearing. A fourth day was necessary. That is not entirely the fault of the parties. There were many interruptions during the first tranche of hearings. The matter was ultimately concluded with evidence and submissions on the fourth day.
Disputed Issues
I propose to deal firstly with the issues with respect to the financial aspects of the matter and then with respect to parenting.
Wife’s jewellery
There was issue raised in the proceedings as to what jewellery the wife had owned, what jewellery the wife held at present and the value of any such jewellery.
I accept the wife’s evidence, as already referred to, either agreed or unchallenged, that her jewellery, or the majority of it, was stolen whilst the parties were travelling on a train during a holiday in India. The wife has not only given evidence but produced documentary corroboration. I accept that what jewellery the wife retains has very limited value, the only evidence available being the wife’s admission against interests. I accept that admission.
That the husband controlled the finances of the parties throughout the relationship and the wife was uninvolved.
I do not accept that allegation in its entirety. A significant aspect of the allegation is that at the time that the parties married, or at least commenced living together after marriage, the husband opened an account in the wife’s name and that the wife had no access to the account.
Whether that was so at the time that the account was opened or not, I need not be concerned. By the time that the marriage had subsisted for a number of years, the wife did have access to funds, whether that account or otherwise. One of the documents tendered in the proceedings, Exhibit R1, is a document in the wife’s hand suggesting her involvement in transfers of funds from Australia to India. Those transfers of funds were perfectly legitimate although it would seem that, after the parties’ transfer of funds for the purpose of investment, they were the subject of chicanery by the person trusted by them and engaged to deal with the investment, such that the funds were largely lost. The wife was involved in transactions including, at that time, the purchase of the parcel of real estate at Property C. Accordingly, I do not accept that the husband’s control of finances is as complete as alleged by the wife.
That the wife holds investments in India
There is simply no evidence led by the husband that could support any finding that it is or was so. The concession was made in submissions that such a position was irresistible. Whilst money was certainly forwarded by the parties to India for the purpose of investment, as already indicated, it was lost due to the chicanery of third parties.
That the husband transferred substantial funds to his family in India.
I accept, as is set out in the material tendered, that the husband had transferred amounts of not less than $38,000. The majority of those transfers occurred during the relationship and, consistent with the Full Court’s decision in Mayne & Mayne [2011] FamCAFC 192 and adopting and incorporating the comment of the then Deputy Chief Justice regarding such matters, that the Court should not engage in an audit of the relationship of the parties. Deputy Chief Justice Faulks opined:
It is not the Court’s function to conduct an audit of the marriage or of the relationship finances. The parties’ remedies for resolving disputes about expenditure while they are together are centred on them and them alone. Choosing one transaction from many prior to separation for different treatments, specifically “to be added-back” or notionally included in the pool of property may make doing justice and equity between the parties difficult.
It is what the parties engaged with during the relationship and the remedy was during the relationship. That is not to suggest that the transfers are irrelevant. They are, however, at best, an issue with respect to section 75(2)(o).
Valuation of property in India
There is no dispute that the husband owns property in India. The only issue is whether the property has a value of $84,000 or $120,190. I accept, ultimately, the valuation at the higher amount. That is not because of the form of evidence. The husband annexes a government valuation, as it is described, suggesting the value of $84,000. The wife has gone to the expense of obtaining a valuation of the property by a registered valuer.
There is some difficulty with that valuation. It refers to and adopts the collectorate guideline value, that which the husband refers to as “the government value”, but then suggests a present value of the property as total market value. There is little, if anything, in that valuation to suggest how that market value is arrived at.
Whether it is on the basis that the government ascribed value is analogous to the Valuer General’s valuation in New South Wales, or whether it is, in fact, saleable at a higher price than the government valuation, there being no comparable sales referred to, or apparently so, is unclear. However, the valuer would appear to have turned his mind specifically to the issue, and I accept that it is the value that should be relied upon by this Court.
Ultimately, not a great deal turns upon it as the difference in value is less than two per cent of the total legal and equitable interests of the parties to the extent that they are fully known.
With respect to the property in India, it is agreed between the parties that the property was purchased in 2014 and that $20,000 was applied towards the purchase by the husband’s father. The husband seeks to rely upon that advance as a loan to be repaid. I do not accept that the evidence could possibly support that it is so. Accordingly, I intend to include that property at the value of $120,190.
The husband’s redundancy
There is, again, no dispute between these parties that, in late 2017 and upon leaving his then employment with a bank, the husband received a redundancy payment of a little over $100,000. That was deposited directly into an account maintained by the husband and nearly all of the funds were immediately withdrawn in two bank cheques, one for $60,000, and one for $40,000. When the hearing commenced, nearly 12 months after the redundancy occurred, those bank cheques had still not been presented.
The husband also, in the same period, withdrew by bank cheque a sum of $12,000 from an account that he then maintained with Suncorp. The husband, perhaps for the first time, was somewhat candid in his evidence during cross-examination, indicating that he had withdrawn those funds and kept them as bank cheques if not to completely mislead the wife as to their receipt, but certainly to seek to keep those funds away from the wife. The funds were not specifically disclosed. They were found out through the issue of a subpoena.
The other issue which arises in relation to the redundancy payments is the question of how the husband came to support himself for the 12 months between his redundancy in late 2017 and his resumption of employment in late 2018.
Nothing that is available to the Court, through tender or otherwise, suggests that the husband was required to have recourse to the funds that he had withdrawn by bank cheque. Accordingly, to the extent that one might consider authority such as Kowaliw & Kowaliw (1981) FLC 91-092 and a differentiation between a premature distribution and an expenditure of funds on reasonable living expenses, the husband’s actions could not suggest the latter.
The husband had not been required to have recourse to those funds to support himself. Whether from some form of income, other assets or resources, or mere good luck, the husband managed to survive, meet housing expenses and other expenses for a period of 12 months. That causes some real suspicion with respect to the husband’s frankness and candour, especially in light of the lack of frankness and candour already apparent in his conduct of these proceedings.
Wife’s savings at separation
At paragraph 78 of her trial Affidavit, the wife makes clear that she held funds in an account at separation, the majority of which had either been paid to her by the husband or withdrawn, whether by the wife or jointly by the parties, from a joint account. Those funds were somewhere between $12,000 and $15,000. I accept that the wife has expended those funds. I accept that the wife expended those funds in meeting reasonable living expenses for herself and the child.
The wife gives clear and detailed evidence of the history of child support assessments and the provision of child support, whether by assessment or otherwise, since separation. Until an assessment was issued, the wife received precious little by way of assistance, and any assistance provided was generally met by an application to the agency to be credited for that expenditure, (for example, the service fee already referred to for the motor vehicle).
For a brief period, there was an assessment directly referrable to the husband’s then income of approximately $1,200 per month. However, on the application of the husband, that assessment was ultimately reduced. Upon the husband advising the Child Support Agency of his redundancy, the assessment reduced to the statutory minimum amount. Whether that amount has been paid is unclear. What is clear, from the husband’s own evidence, is that he has not advised the Child Support Agency that he has returned to work or of his new employment. Thus, whilst I accept the husband’s evidence that he recently made a payment to the Child Support Agency, albeit a day or so prior to the resumption of the trial, the assessment that is presently in force is that for the statutory minimum. Accordingly, the payment made by the husband would be credited to his child support account rather than released in its totality to the wife.
I accept the wife’s evidence that she has not received any payment from the child support agency, but that is not inconsistent with the husband’s allegation that he has made a payment as the administrative processes of the Registrar would mean that the payment would be accounted for in a monthly cycle.
Family violence
Family violence is the main issue in the parenting aspect of the case. Both parties raised allegations suggesting that the other has perpetrated family violence. As would already be apparent, I do not accept the husband’s evidence regarding family violence which he alleges was directed towards him.
The only evidence of any significance, indeed the only evidence that is credible, on the basis that it is conceded by the wife is that, on one occasion in March 2015, the wife bit the husband, causing bleeding as a consequence. However, that cannot be taken out of context or, as it were, cherrypicked and advanced as an incidence of violence by the wife.
The Family Report in these proceedings has canvassed the allegations of the family violence raised by the parties, appropriately not seeking to make findings of fact or accept one version as against the other. It is not the role of a report writer to do so. Accordingly, the Family Consultant concludes the report with the acknowledgement that the time that young [X] should spend with her father, the issue being whether it is any, should be subject to judicial determination regarding the allegations of family violence.
The report does, however, dwell in some detail upon attempts to categorise the family violence within typologies, particularly seeking to differentiate between whether it falls within, by reference to the Wingspread Conference typologies as discussed by Johnson et al., coercive and controlling family violence, situational couple violence or any other typology. That discussion is largely unhelpful.
The Court’s role is to focus upon the findings of fact that are available on the evidence and, particularly, to understand the experience of each of the parties and young [X] with respect to such findings of fact in relation to family violence.
The mother asserts in her trial Affidavit that family violence commenced at a very early part of the relationship. At paragraph 6, for example, the mother refers to the commencement of violence shortly after her arrival in Australia, the parties having been married in an arranged marriage, the husband then resident in Australia, the wife in India, the wife coming to Australia after a spousal visa was obtained, albeit only some months after marriage. The wife, in certain aspects of the evidence, including that which is tendered from the counselling records of the wife herself, suggests a shorter timeframe.
Within the material tendered from Relationships Australia, Referral Service, for example, the wife suggests that, at the time of those appointments in 2015, family violence had occurred for the preceding three years. I make clear that it would be unsafe to view the apparent discrepancy between that which the wife has stated to her counsellor and her evidence in these proceedings as an inconsistency. It is not.
The wife has engaged with a therapeutic service with a particular and specific purpose. Her understanding of violence can be seen to have developed through that engagement. Accordingly, what the wife describes as having occurred for three years prior to that appointment in 2015 does not necessarily typify the behaviour which she experienced from the husband throughout. She may not have perceived it as violence. Indeed, the counselling notes make clear that one of the therapeutic goals was to assist the wife in better understanding such matters and her experience of them.
The mother’s evidence with respect to family violence is set out in some detail at paragraphs 9, 20 and 21. The wife alleges that, on two occasions prior to [X]’s birth, she was slapped by the husband. Again, I pause to observe that physicality is not required to establish violence. The definition of “family violence” in section 4AB is focused upon a person’s experience of behaviour by one person towards another which generates fear or coercion and control, perhaps suggesting why such a focus upon typologies has become apparent in the report.
The wife raises consistent complaints regarding derogatory language directed towards her by the husband, including in [X]’s presence. The husband makes some concessions in that regard, suggesting that he has used inappropriate and vile language towards the mother, referring to her as a “slut” and a “motherfucker” on at least limited occasions, on the husband’s concession, on the wife’s case, far more continuously.
The wife complains that, during the relationship, the husband was angry almost every day and often that anger resulted in things being thrown or yelling and screaming occurring. Again, there is some basis to accept that yelling and screaming was mutual as between the parties. [X] would certainly seem to suggest, as reported in the Family Report interviews, that it was so. That does not, however, assist in understanding who initiated or instigated that behaviour. If the wife responds by yelling back at the husband when he is yelling at her, that neither implicates her as a perpetrator of family violence or an instigator of it, nor does it suggest that she could not feel coerced and controlled or fearful: the very fundamental aspects of the definition of family violence. It would be inappropriate for such a position to be adopted.
The derogatory comments that the husband has directed towards the wife are suggested to have occurred, not only in the child’s presence, but, at times, directed to the child, the child being told these things of her mother. I accept that this has occurred, perhaps not at the extent that the wife alleges, but certainly it has occurred. Indeed, the husband concedes it occurred at least on limited occasions.
There was one occasion when the husband turned up the heat within the home – not figuratively, but literally – such that the wife and child, then in the wife’s bedroom, the parties having since [X]’s birth slept in separate rooms – were rendered significantly uncomfortable. It is certainly an event that [X] remembers.
There is an allegation that the father slapped the mother to the mouth or face about once a week (Paragraph 9(h)). I am not satisfied that the evidence would permit me to make a finding that it is so. That is not to invalidate the mother’s evidence or suggest that she is, in relation to her evidence generally or particularly on that subject, disbelieved. Merely, that the evidence would not establish it.
There is some material produced by the police. One of the points taken by the husband is that the police were not called at any time prior to a significant event which occurred in March 2015. Whether the police are called or not does not assist in corroborating or disproving an allegation of family violence. Police are often not called when a person has experienced an event. There is a myriad of material that makes clear why that might be so. In the specific circumstances of this case, the wife indicated clearly to the family report writer that she felt shame at her experience at the husband’s hands, that she would close doors, turn music up, so that the yelling and screaming would not be heard by others and the like. One need not step beyond the evidence in the case to be satisfied that the absence of such reports means nothing as regards belief or disbelief of the wife’s allegations.
The material that is tendered from the counselling service with which the wife engaged makes clear a number of things. Firstly, the wife’s reports with respect to her experience of the husband and violence by him towards her, albeit predominantly verbal but no less damaging, are made out. What is suggested by the wife to the counsellor, however, at the time that that engagement began at ICL9.2, is:
Ms Sabharwal, [the wife], said she didn’t fear for her six year old daughter’s safety, but that she [ie, the child] has witnessed ongoing domestic violence, both physically and verbally, between them for the last three years.
Again, the reference to violence occurring between the parties is not, I am satisfied, a concession by the wife that she has perpetrated violence, initiated violence or been other than a person who has experienced family violence and which the child has then experienced also. The wife also concludes that she has “noticed behavioural changes in her daughter”. It would certainly seem that this has occurred.
At ICL9.4 of that material, it is made clear by the wife that physical violence had stopped at that point, around the time the police applied for and obtained an Apprehended Domestic Violence Order, albeit that the ADVO did not, at that point, exclude the husband from the home. It was made clear that verbal abuse continued and that the relationship between the two was strained. At that point, they rarely spoke to each other.
That experience for [X], within that same household with the parents living separately and apart, may well have further impacted upon the child’s understanding of her parents.
At ICL9.5 is an appointment between the wife and her counsellor, 12 June 2015. The wife again suggested domestic violence had been prevalent for three years. I have already referred to that statement and my rejection of any proposition thus that the wife cannot and should not be believed as regards an earlier starting point for that violence. One issue that must be commented upon is the maintenance by the parties of separate bedrooms.
The wife’s own evidence is that this arose at the time of [X]’s birth as the husband indicated that he did not wish his sleep to be interrupted. Insensitive as that may be on the husband’s part, it is not indicative, by and of itself, of violence by him, coercive and controlling or otherwise. It may well be that he desired a night’s sleep. That would suggest a lack of active involvement and participation as a parent parenting this young child rather than anything else.
It certainly does not suggest that which is submitted in the wife’s case: that she and the child were required or forced to flee to a separate room. It was an arrangement that came into being for the reasons that are given by the wife. What is also clear is that, following the ructions that occurred within this household in March 2015, [X] was affected. She was not sleeping well and her behaviours were generally changing.
But a context is given to that at Exhibit ICL9.6, when the wife indicated that one of the reasons, from her perspective, for [X] not sleeping well was because she was “staying up late because when dad came home late at night, she wants to spend time with him”. That would appear to be the last time in relation to the wife’s evidence, if it might be so described, that the concession is made that [X] wants or has wanted to spend time with her father.
At ICL9.7, the wife raises complaints that the husband’s family violence escalated to include the practise of black magic. I do not refer to that statement to ridicule it. It may well have a cultural context. However, it suggests that the wife’s beliefs with respect to the father had begun to escalate to a point where he is perceived as engaging in such behaviours beyond the behaviours, far more direct, sometimes physical, that had occurred in the past.
Ultimately, I accept that family violence occurred. As already indicated, it must be so. The husband concedes it. I accept that young [X] has been exposed to family violence initiated by the husband, including verbal altercations, significant denigration and demeaning comments to and with respect to the wife, and, on at least one occasion in March 2015, an assault by the husband upon the wife. Whilst the wife responded by biting the husband, I am satisfied, at the risk of using the very typologies that I have sought to eschew, that this is responsive, situational couple violence in that the wife was responding to the husband’s assaults upon her. [X], I am satisfied, was present throughout and heard and directly experienced that altercation. It must have had some profound effect upon this young girl, being six years of age, to see her mother and father fighting, although, I accept, the fight was initiated by the husband.
I do not, however, accept the totality of the wife’s evidence. To the extent that the wife complains, for example, of the husband sleeping in a separate room, the motivation that she gives and the context that she describes for it do not sit comfortably with her own evidence that it was initiated due to what might be described as the husband’s selfishness and lack of engagement in caring for a newborn child. But it is not suggestive of, or an element relating to, family violence.
The wife’s experience of family violence and, similarly, [X]’s experience, if not through direct engagement and exposure, at least indirectly as referred to in the section 4AB definition, would account, to some extent, for the alignment that is described by the Family Report writer between the child and the mother. I accept, clearly, that they are aligned with each other. However, there is also the reality that, I accept, the child has been exposed to comments by the wife regarding the father.
[X] is clear with respect to that in her interview with the Family Report writer, although the comments that [X] relates at that point in time are connected to the financial elements of the relationship between these parties rather than anything relating to her own relationship with her father. The mother denies making any comments to the child and certainly any comments with respect to the father, the child’s relationship with the father, or any comment that is negative of or derogatory of the father.
Again, it would be explicable that the mother would have a very low opinion of the father. It would be extraordinary if it were otherwise, in light of her lived experience of him. However, I accept that the child is fully aware of the mother’s attitudes towards the father, her lack of desire for the child to practise her relationship with him, and that this would, whether through the mother making direct comments to the child or the child overhearing comments by the mother to others, such as to her own mother, or generally through the mother’s demeanour in approaching such matters, have impacted upon the child’s presentation.
I also have difficulty, in those circumstances, accepting that the wife has actively supported the child’s relationship with her father since separation, or to the extent that the wife suggests. Again, that is explicable. Why one would think it is extraordinary for a parent who has had the lived experience of this mother of this father to be other than somewhat ambivalent towards the relationship, putting it at its most euphemistic, is extraordinary.
The father’s behaviour towards the mother has verged upon roguish. He has treated the mother as his inferior. He has certainly spoken of her in a way that suggests that he has no respect for her, if not, in fact, contempt for her. For him to expect her to be his ally and wholeheartedly support his relationship with the child, in those circumstances, is simply unrealistic. Perhaps it is a demonstration of a lack of insight, one of several that are pointed to by the evidence.
The mother’s only evidence as to how she has manifested her support for the relationship is to indicate “I suggest things they can do” during their five hours together. That must be seen, however, against the general lack of support which is otherwise apparent from the evidence, including, for example, when the father had caused the child to telephone the mother so that the child could request an extra hour or two to be able to attend a movie with the father. I will return to that event shortly.
I do accept that the child has been impacted by the father’s family violence directed towards the mother. This exposure has impacted, in some fashion, the child’s suggested ambivalence towards a relationship with the father. Although, in fairness, the Family Report goes beyond ambivalence. It suggests that the child is rejecting the relationship or, at the very least, is uncomfortable in experiencing it. It would have some role to play in the child’s presentation during Family Report interviews. But that is also best considered by reference to the other available evidence, including the context of the notes which must be considered in some detail. That material commences with exchanges of the child through the contact centre in 2017.
At ICL 18.1 the child is presented and, upon the father arriving, smiles with him. She is greeted and kissed and hugged. The parties then go off to … amusement park. When the child is told that this is what will be occurring, and the note records that the father suggests that this is what they will be doing rather than the child raising the suggestion, the child smiled, apparently happy, although commenting that she did not have swimmers. The father indicated he would buy her new swimmers. The child then smiled, wrapped her arms around her father’s neck for a cuddle, and was cuddled and picked up by the father. The child is recorded as appearing comfortable and smiling. That is in contradistinction to the picture that is painted by the mother. Again, explicable that she would have difficulty accepting that the father could behave appropriately when he has behaved so inappropriately towards her on so many occasions.
However, to the extent that the mother’s evidence is that she suggested to the child that it was an activity she should request of the father, the record suggests the opposite. The father raised the suggestion. It does not obviate against the possibility that the child had previously raised it with her father and he had simply taken up the suggestion. To the extent that it is suggested that the child is completely uncomfortable with the father and rejects a relationship, this record would suggest, at least on that occasion, the opposite. She would appear to be happy, smiling and seeking physical contact with her father.
What followed thereafter is that the child was returned at the end of the period and was suggested to be crying. The father indicated that the child had hit her leg on a pole and that she was upset because she had wanted to stay longer at the park, but they needed to leave to be back at the changeover point. The child was spoken to separately and away from the father, and confirmed the father’s version. There is nothing to suggest that the child was influenced or coached to corroborate the father’s version.
What is then recorded in relation to the transaction is as follows. The live with parent, [the mother], continues to be dramatic when delivering the child and when collecting the child. The mother presents constantly as every event is dramatic and problematic for her. The child presents emotionally on changeover and change back. For example, she cries easily and appears, at times, to be distressed. The child, on most occasions, looks tired. When the child is around her mother, she whimpers and clings to her mother and seeks her mother’s attention. What is painted is a picture that the child, consistent with the father’s evidence, may well arrive in that state, but is quickly calmed within 15 minutes or so and that the time is then enjoyed.
What also follows is that, shortly after having collected the child and having left, the mother telephoned the contact centre to complain that the child had chafing on her leg, caused by the clothing the father had purchased for the child, as he had indicated he would, as the child did not have her swimmers. I do not recite those events in detail for the purpose of castigating the mother. It is, again, explicable that she would have difficulty in accepting that the father could behave appropriately, let alone that he may have. What it suggests, however, is that the mother’s demeanour and attitude is something that the child is very familiar with, and thus contributes to the sense of alignment that the Family Report writer records.
The recording by contact changeover staff, that the mother is, on each occasion, dramatic, seeing problems perhaps where there are none, would also impact upon that alignment. I accept that the child’s suggested discomfort and rejection of relationship, as occurred during the Family Report observations, accepting the caveat offered by the Family Report writer that it was a very brief one-off interaction in the family, is beyond the child’s lived experience and is, in some fashion, responsive to the mother’s attitudes and anxieties. Again, explicable that they would be held by the mother, but concerning when they are transmitted to the child.
Exhibit ICL 18.5 is the occasion to which I have already referred, when a phone call was made by the child to the mother using the father’s telephone, the child knowing the mother’s mobile phone number, the father not, at least at that point. A slightly longer period of time was requested so that the father could take the child to a movie. Permission was refused and the father returned the child as required. What flowed therefrom, is that the mother immediately changed her telephone number and was of the view that the phone call had been made by the father, purely so that he could obtain her phone number, encouraging the child to dial the number so it would be upon his phone. I do not accept that the evidence would safely permit a finding to be made that this was the father’s motivation. However, I accept the mother’s reaction as genuine.
It is consistent, however, with other portions of the notes at 18.5. With the centre due to be closed for Christmas, additional dates were offered to compensate for the period when time could not occur. Any such request was rejected by the mother. That could not support an acceptance of active support of the relationship, although, again, explicably so perhaps.
At 18.8 of those records it is recorded that the child, though presented in the state previously described, somewhat tired looking and a little upset and clingy, settled quickly once the mother had left.
At 18.9 it is recorded that, upon the child coming into the room, she was smiling and being embraced warmly by the father. The child, on that occasion, asked to be picked up and carried by him in his arms. That is somewhat in contra distinction to the suggestion the child is fearful of the father. The child was carried to the car by her father on that occasion and is recorded as leaving settled, being smiling and talkative and chatting with her father about school and other issues.
The contact centre notes seem to record a change in the child, however, following the occasion at 18.11, when the child had telephoned the mother requesting extra time to go to a movie. It is then that the child’s behaviour is recorded as being somewhat more sullen and taking more time to calm before she would leave with her father. The Family Report interviews have occurred within the context of those notes. The Family Report records that interviews occurred in late October 2017. Accordingly, the presentation and observations of the child, at that time, are somewhat inconsistent with the child’s presentations and recorded behaviour in her interactions with the father at the contact centre. There may be many explanations for that, including the artificial and arbitrary nature of appointments with family consultants at the Court. This is not a criticism of consultants or the process adopted by them, of necessity with limited resources, but there was no great opportunity to go beyond what the Family Report writer has opined, that it was a limited interaction with the family.
In light of all of the above I, again, accept that family violence has been perpetrated by the father towards the mother. I accept that young [X] has experienced family violence, as reported by the mother to her counsellors, including the distressing events in March 2015. However, beyond the findings already referred to above, I am not satisfied that there is sufficient evidence to permit findings to be safely made as to the totality of allegations. I am not satisfied that the experience of either the mother or the child, with the caveat that I will touch upon shortly, is sufficient to obviate against any relationship being practised between the child and the father. I am not satisfied that it is sufficient to obviate against the child continuing to receive benefit from engagement with her father.
The caveat with respect to the above is perhaps emblematic of the difficulty of a Court determination of such issues. Family violence is experiential. I cannot, for one moment, put myself into the shoes of the mother and pretend to understand her experience of the father. I have not lived it. I can only judge facts and circumstances as they are presented and to consider all of the available evidence. That evidence suggests that [X] has experienced family violence by her father, but not to the extent suggested by the mother. That is not to suggest that the mother exaggerates her experience. Her experience is real, valid and her own. However, it is her experience. She will recall it as she does. Truth, in a case such as this, is not singular. The mother’s truth, her experience of the father’s behaviour, is different to the father’s truth, although each has their own emotional and psychological makeup which would impact upon how they recall events or, indeed, in the case of the father, perhaps justify his behaviour towards the mother, when it has clearly been inappropriate.
The child’s experience is, and should be, a further separate reality. The alignment that the Family Report writer speaks of suggests, at least to some small extent, that the child is not, as individual in her experience and recollection as she could and should be, suggesting that she adopts, whether through conscious action or otherwise, some aspects of the mother’s anxieties and attitudes towards the father. That is particularly apparent as it is clear from [X]’s own statements that the mother has spoken with her about matters relating to these proceedings and, I accept, her attitudes towards the father and her concerns as to the father’s past behaviours and the reality, valid in the mother’s mind, and appropriately so, that such behaviours could occur with respect to [X] in the future.
Whilst I accept that the child has been impacted by the father’s past behaviours, indeed his family violence perpetrated upon and towards the mother, including in the child’s presence or experience, that the child has also been impacted by the mother’s reactions and attitudes towards the father which, whilst valid and explicable, is not a beneficial thing for this child.
I do not accept, and it would not appear to be advanced in the mother’s case, that her experience of the father and his violence towards her is such as to undermine her ability to parent young [X], if [X] continued to practise a relationship, of any kind, with her father. By reference to authorities such as B & B (1993) FLC 92-357 and M & M (1998) 166 CLR 69, the evidence falls short of establishing a case that the mother could not cope with the child’s continued practice of a relationship or could not parent [X] appropriately. It certainly suggests that she requires some therapeutic assistance in addressing her own experience: her own grief and trauma from that relationship. The father requires some therapeutic assistance, perhaps to understand the nature of his behaviour and to ensure that it changes and remains changed. The evidence makes clear that the father has not engaged in the types of behaviours, whether they are physical violence, derogatory taunts, pejorative comments or otherwise, for at least the last two years.
While the husband’s Child Support liability, in the last 12 months, was reduced to the statutory minimum, he clearly had resources available to him from somewhere that enabled him to meet his expenses and thus, the assessment is perhaps based upon incomplete information, if nothing else.
Neither party receives any pension or benefit that would be relevant. The maintenance of a standard of living is a vexed issue in this case. The husband complains that he has, because of financial imperatives, been required to live in shared accommodation. Certainly, until his redundancy, there was no such imperative. The husband’s income was significantly in excess of average weekly earnings. Far greater than the wife’s by a factor of approximately four. The wife, to maintain a standard of living that is reasonable, requires accommodation that is affordable and available. Clearly, it would create distress for [X], although it is not a directly relevant factor in section 75(2) adjustments, if it were necessary for the house to be sold. The wife’s evidence is that she can just afford to retain the home and pay out its mortgage. That would have some slight support to the wife’s case.
To the extent to which payment of maintenance is under consideration the extent to which a course of educational training would assist
That is not directly raised although it, again, perhaps, speaks to the issue that the wife’s income earning ability is far less than the husband’s.
There will be no impact upon creditors of property adjustment orders. The only liability of any substance that I have excluded is the husband’s suggested credit card debt. Save to the extent that the husband directly proves any such allegation, I would have difficulty accepting his evidence. Even if accepted, however, his income is sufficient to discharge that debt fairly quickly.
The extent to which each party has contributed to the income, property and financial resources of the other
Each has, as discussed above and in relation to superannuation, and the wife must be seen as having contributed, at least indirectly, to the husband’s accumulation of vastly superior superannuation entitlements.
The duration of the marriage and its effect upon earning capacity
The marriage has not directly affected the earning capacity of either.
The need to protect a party’s role as homemaker and parent
This favours the wife’s case. The wife takes great relish and joy from her caring for [X]. She will continue to do so in the future. She will have, as a consequence, impediments upon her income earning ability. If [X] is sick, she will need to take time from work and the like. That favours the wife’s case.
Neither party, on the evidence, is suggested to be cohabiting with any other person.
The orders will not impact upon bankruptcy or other such arrangements.
The level of Child Support paid and to be paid in the future
That is an uncertainty as the husband has been so lacking in candour and frankness in this case that it impacts upon his credit. On his own evidence, the husband has still not advised Child Support of his change of circumstances, thus the assessment continues at the statutory minimum. There is no reason to believe the Independent Children's Lawyer that his behaviour will change in the future, thus there is some uncertainty as to the level of support that will be provided or its assessment at an appropriate rate. This favours the wife.
Then comes section 75(2)(o). I am satisfied that there are a number of factors that impact in this regard, directly arising from the lack of credit that I have found with respect to the husband and his financial disclosure. There is the cashed out insurance policy, which I am satisfied can and should be taken into account, if nothing else, as described in Kowaliw, a premature distribution. There is, of course, the vexed issue of the husband’s superannuation entitlements. At the end of four days of evidence, it is still unclear what has occurred with those funds and $12,000 withdrawn from Suncorp.
At the commencement of the first tranche of hearings, it was clear that the husband still had in his possession one, if not both, of the bank cheques he had drawn upon his redundancy, uncashed. He has used some of those funds since to discharge legal fees to one of his former legal representatives. That issue had occupied some part of the first tranche of hearings when those legal representatives were required to appear before the Court as a consequence of the caveat they had caused to be registered against the title.
There remains a caveat against the title by another of the husband’s former legal representatives and that will require address through these orders. I propose to deal with that on the basis of the wife having permission, pursuant to section 121 of the Act, to publish the orders to those lawyers, making clear to them, as I will soon pronounce, that she will retain the home and, thus, there is no interest of the husband against which a caveat could be maintained. Thus, they will be required to withdraw their caveat. Although an order cannot be made directed to those legal representatives, the wife will have leave to apply to restore to the list so that she can seek joinder of those legal representatives should they fail or refuse to remove their caveat which would, in those circumstances and in light of the orders that I propose to make, be unsustainable and unjustifiable.
With respect to section 75(2) and particularly having regard to the latter adjustments pursuant to section 75(2)(o), I am satisfied that an adjustment should be made in favour of the wife of not less than 15 per cent.
That would appear to be a significant adjustment in light of the modest asset pool of these parties; however, the three amounts – the redundancy payment, the withdrawal of funds from Suncorp and the cashing of the insurance policy – represent more than 15 per cent of the value of the presently available legal and equitable interests of the parties and thus, to do less - and bearing in mind that there is real suspicion, although nothing which would safely support a finding of fact, that the husband has had other resources available to him during his period of suggested unemployment – would be inappropriate. This factor might suggest that, perhaps, the adjustment could be even greater.
The husband, on the basis of presently holding $163,804 of non-superannuation assets, holds 28.4 per cent of the present asset pool, if it might be so described. On the basis of contribution favouring the wife by 55 to 60 per cent and a further adjustment of 15 per cent being made in the wife’s favour, the husband retaining what he presently holds and the wife retaining what she presently holds as well as receiving the Property C property and offset account, would produce an outcome very much within that range.
The wife would receive 71.6 per cent of the total whereas, on the basis of the above calculations, her entitlement would possibly exceed that amount. There would be difficulty in such greater orders being made, however. They are not ultimately pressed at hearing, although I accept that the wife has made a pragmatic adjustment to her position. The major difficulty is not that. It is the lack of enforceability. I have no satisfaction that an order which required the husband to pay additional funds would be complied with. The husband would argue he was unable to comply with it. Whether that is so or not, I need not be concerned. It is a simple reality that it would lead to future proceedings and it would cause further disadvantage both to these parties and their child.
Accordingly, I propose to make orders substantially as sought by the wife and, save that she will retain the property at Property C and the offset account, all else will lay where it is.
In relation to superannuation, as already indicated, I propose to make an order equalising those entitlements and, thus, the order proposed by the husband so that there is an adjustment of $90,000 or thereabouts would be favoured.
Costs of the Independent Children’s Lawyer
There is then, of course, the application for costs by the Independent Children's Lawyer.
Costs are sought by the Independent Children’s Lawyer in accordance with exhibit ICL12. What is sought is a contribution of $6,375.05 by each of the parties.
Costs are addressed by reference to section 117. Subsection (1) creates what the High Court has referred to as the general rule: that each party bears his or her own costs. The Independent Children's Lawyer, of course, is now a party (see Bennett v Bennett (1991) FLC 92-191).
Subsection (2) then reserves a general discretion to the Court to make such orders as are appropriate with respect to costs, provided that the Court is satisfied of both justification and justice (see Re JJT; Ex-parte Victorian Legal Aid (1998) 195 CLR 184 for a discussion thereof).
Subsection (3) removes any uncertainty that the Independent Children's Lawyer, whilst not strictly a party, has standing to seek an order for costs.
Subsection (2A) sets out a prescriptive but non-exhaustive list of considerations as to what is required in determining the above dual test.
Subsection (4) precludes the Court making an order for costs when a party has received Legal Aid, whatever that phrase may mean, or if the Court considers that a party would suffer financial hardship.
Subsection (4A) is not relevant, dealing as it does with applications by, or involving, a Child Welfare Agency.
Subsection (5) precludes the Court having regard to the parlous financial circumstances of Legal Aid Commissions and their funding arrangements in determining whether costs are to be ordered.
Before turning to subsection (2A), I make clear that I am satisfied that subsection (4) must apply as regards the wife. I am satisfied that she would suffer financial hardship if required to contribute to costs. Her income is modest: less than average weekly earnings. She will, as a consequence of the orders I propose to make, retain the property at Property C but with a substantial mortgage and with legal costs to pay. In those circumstances, her household finances, with the uncertainty of the rate at which Child Support is to be paid in the future, will be very much stretched. Any impost upon those financial circumstances would disadvantage not only the wife but young [X].
Thus, I am satisfied the wife would suffer financial hardship. There is no adjectival prefix. The hardship need not be “significant” or “substantial”, merely real on the balance of probabilities. A financial hardship simpliciter. Accordingly, I am satisfied I need not proceed further as regards the wife as subsection (4) would preclude an order.
In relation to the husband, I propose to consider each of the factors in subsection (2A).
Financial circumstances of the husband
These are somewhat unclear due to the husband’s poor and delinquent approach towards disclosure. I know, as a consequence of the employment that has recently commenced, that he is earning approximately $125,000 per annum. His housing cost is unclear and unknown at this point. The husband’s evidence is that he maintains share accommodation with a friend but is in the process of looking for his own accommodation closer to the wife’s home. There is very little else known of the husband’s expenses. His financial statement, filed in Court on the first day of trial, does not assist a great deal as various aspects of it have been demonstrated to be less than complete.
Indeed, it creates the conundrum referred to extensively above, that the husband suggesting that his income at that time was $6 per week suggested that he was maintain expenses of $1432 per week and yet, at the same time, not accumulating any significant debt, servicing a mortgage on the property in India and having only what was suggested, at that point, to be a modest loan with respect to his car and a modest credit card payment. I am not satisfied that the husband’s financial circumstances would demonstrate that any order that might be made would create financial hardship for him. I am not satisfied that his financial circumstances would justify an order for costs. I will return to that issue shortly.
Whether a party is in receipt of Legal Aid
Clearly, the husband is not and has not been.
Conduct of the parties with respect to the proceedings
It is to be noted that it was the husband’s Response or amended Response which joined the parenting issue. Prior to that, this was a simple and straightforward property case. At the time that the husband filed his Amended Response, indeed until the commencement of the trial more than two years after the Amended Response was filed, the husband’s case was that [X] should live with him. The husband based his case upon suggested risk to the child in the mother’s care, allegations of risk that were readily abandoned at the commencement of the trial.
It is on the basis of those allegations predominantly that the appointment of the Independent Children’s Lawyer occurred. But for that joinder of issue and but for the relief that was sought thereby, an Independent Children’s Lawyer would have been entirely unnecessary. If the case had proceeded purely on the basis of a challenge as to the time, if any, the child was to spend with her father, even though there were significant allegations of family violence raised by the mother, it is unlikely that an Independent Children’s Lawyer would have been appointed. Both parties were competently represented.
The inability of the husband to communicate his decision that his position had changed significantly until the trial commenced was a significant issue in relation to his conduct. Not only for the reasons discussed above, the insensitivity that is demonstrated towards the wife and the lack of insight as to the impact upon [X] of knowing what that application was, it has directly impacted upon the husband’s conduct in the proceedings, the necessity to continue the Independent Children's Lawyer’s representation of young [X]’s interests and when combined, for example, with the complexity of the proceedings generated through the husband’s approach towards discovery and disclosure, is a significant factor in finding justification for an order for costs subject to such an order being just.
Whether the proceedings are necessitated by the failure of a party to comply with previous orders
This is not relevant.
Whether a party has been wholly unsuccessful
The husband could not be suggested to be wholly unsuccessful as regards the parenting aspect of the proceedings in which the Independent Children’s Lawyer is involved. That being so, the inclusion and hearing at the same time of the property plea, which has consumed at least half of the hearing itself, has dramatically increased the Independent Children's Lawyer’s costs. Sadly, it is not possible to simply excuse the Independent Children’s Lawyer for those portions of the evidence that relate purely to financial issues.
As a consequence, I am satisfied that the costs that are incurred, extremely modest and completely dwarfed by the costs of the parties in conducting their own case, would be an additional basis for justification for an order for costs and would represent justice in an order for costs being made.
Offers in writing are not raised as a relevant matter.
By reference to the above, I am satisfied that an order for costs is appropriate. There is no basis upon which the Independent Children’s Lawyer should bear their own costs. The costs have been incurred in the circumstances described, where the issue has been introduced by the husband and in the fashion described, maintaining for nearly the entirety of the proceedings, since the issue was joined, a position that the child was at risk in the mother’s care and needed, for her own protection, to be moved to the father’s care.
The costs that are sought fall well short of that which would be ordered by reference to Division 21 of the Federal Circuit Court Rules and the indicative scale of costs in schedule 1.
Indeed, the preparation for a four-day trial would exceed, by some substantial proportion, the total costs incurred by the Independent Children's Lawyer.
The total costs that would be calculated for work performed and representation at hearing, by reference to Division 21, would be in excess of $30,000. Thus, the quantum of costs that are sought as against the husband - $6,375.05 – is modest at best. I am satisfied such an order can and should be made.
For all those reasons, I am satisfied that the following orders are supported and justified and are made as follows.
I certify that the preceding two hundred and ninety-three (293) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 8 May 2019
Schedule 1
CHRONOLOGY (Financial Only)
Sabharwal & Nakul – PAC606/2016
15 February 2018
Document Reference Key:
Affidavit of Mr Nakul (Husband) Filed 27 July 2017 – “H-A2”
Affidavit of Ms Sabharwal (Wife) Filed 27 January 2017 – “W-A1”
Money Conversion Reference Key as at 7 February 2018:
100,000 Rupees = 1 Lakh
$1 AUD = 50 Rupees
| Date | Agreed/Disputed Fact | Event | Reference |
| March 2006 | Disputed | Wife owned Gold including one necklace, earrings, ring, bangle, chains and pendant. Silver including anklet, decorative items … . | W-A1-9 H-A2-34 |
| March 2006 | Agreed | Wife owned household items including cooking utensils, crockery, a heavy bronze plate, quilt set, mattress wardrobe and dressing table, Husband happy to return to wife. | H-A2-18 |
| March 2006 | Agreed | Wife also had clothing an personal effects | H-A2-18 |
| March 2006 | Agreed | Husband Mr Nakul owned a Motor Vehicle F | H-A2-18 |
| March 2006 | Agreed | Clothing and personal effects | - |
| March 2006 | Disputed | Husband had savings of approximately $25,000 and nominal superannuation. Wife was aware that husband had savings and was informed by husband that he had approximately $20,000 but did not ever see bank account statements | H-A1-13 W-A1-10 |
| 7 March 2006 | Agreed | Husband was working for Employer G earning $4,500 per month | H-A2-12 W-A1-11 |
| 7 March 2006 | Agreed | Wife was unemployed and did not work throughout the course of the relationship | H-A2-15 & 23 |
| … 2006 | Agreed | Husband and wife married in India. Their marriage was an arranged marriage. | H-A2-4 & 5 |
| … 2006 | Husband began transferring approximately $700 to an account in wife’s name. Husband was responsible for all of the household expenses throughout the marriage. | H-A2-20 H-A2-19 | |
| … 2006 | Agreed | Wife travelled to Australia to move to live with Husband’s family – wife moved to Australia in … 2006 according to husband | H-A2-20 W-A1-11 |
| … 2006 | Husband and wife lived in rental accommodation in Suburb H | W-A1-24 | |
| 2007 | Husband opened up an ING account in wife’s name and wife did not ever access the account. All transactions were made by the husband. Husband asserts wife was aware of accounts. | W-A1-16 | |
| 2008 | Agreed | Husband transferred funds from the Wife’s ING account to an account that he opened in the wife’s name with ANZ. All transactions except for 3 were made by the Husband. The 3 transactions made by the wife but under the direction of the husband were as follows: - 17 August 2010 the sum of $20,000 was transferred from the online saver account to the wife’s access saver account | W-A1-19 |
| - 27 October 2011 the sum of $51,000 was transferred from the Online saver account to the wife’s access saver account - On 17 December 2011 the sum of $15,000 was transferred from the online saver account to the wife’s access saver account | |||
| March 2008 | Disputed | Wife paid $13,000 to Mr J’s (wife’s brother) account. | W-A1-21 |
| … 2008 | Agreed | The parties had a child together, [X] | W-A1-5 H-A1-3 |
| 6 April 2009 | Disputed | Husband paid $7,000 from his account into Mr J’s account number … on 6 April 2009. The Conversion of Australian Dollars to Rupees on the day was 37.42. Mr J paid $40,000 return in part instalments; one instalment was paid to the wife’s brother Mr K for $4,000 to enable him to purchase a new motor vehicle and he has not returned the money yet. | |
| 2009/2010 | Disputed | Mr J repaid the wife $2,000 plus interest. Husband asserts Mr J pays $40,000 to wife ($20,000 doubled in 2 years). | W-A1-21 |
| 2009/2010 | Disputed | Husband transferred two investments; one with Mr J (wife’s brother) for $20,000 and another with Mr L (wife’s family friend) for $28,000. The returns on these investments were approximately AUD$40,000 and AUD$90,000. The wife’s parents executed the investment documents with Mr L in Indian on behalf of the husband and wife. Husband was receipts of transfer substantiating the amount and date of the investment transfer to Mr L. The wife has in her possession the documents of land purchased through Mr L with details including the address and size of the property which she has not yet disclosed to the husband. The husband does not have a copy of the documents. The husband requires the details of the property contained in the documents to ascertain the current value of the property for the purpose of settlement. | H-A2-24 W-A1-20, 21 & 22 |
| 18 August 2010 | Wife drew $19,960 from the Access Saver Account and used those funds as a deposit for a property in Town M. These funds were later applied to the purchase of the Property C property. | ||
| October 2011 | Agreed | The parties purchased Property C (Folio Identifier …) NSW for $400,000. The mortgage was approximately $300,000 from Bank West Wife drew $50,362.23 from the Access Saver Account and those funds were applied to the purchase of the Property C property. Matrimonial Property purchased as joint tenants. Husband’s significant financial contribution. Wife was not working during relationship. | H-A2-21 W-A1-24 |
| 2014 | Agreed Disputed | Husband purchased a property in India. Husband’s Father contributed approximately $20,000 (10 lakhs) and the husband obtained a loan for approximately $64,000 (32 lakhs). There is currently $59,000 (29 lakhs) remaining on the loan. The husband obtained a valuation on the property and its value was 4,000,000 Rupees which is approximately $80,000. The husband is also in the process of obtaining a government authorised valuation completed for the Indian property and it should be made available shortly. The wife values the property at $207,410. | H-A2-22 H-A2-34 |
| 2014 | Agreed | The parties purchased a Motor Vehicle N for the sum of $36,640.01. A deposit of $15,640.01 was paid from the Wife’s Access Saver account and finance was obtained in the sum of $22,413 for the balance. | W-A1-36 |
| 1 April 2015 | Disputed | The wife asserts the husband has made no contribution to the mortgage from his salary since separation. The account has been paid from the joint redraw facility and also by wife. The husband has made full contribution to the mortgage from his salary until the date of separation. Following separation, the husband paid $7,000 plus 3 additional instalments of $800 towards BankWest home loan. The husband made it clear to the wife that he was not in a position to make further contributions following this. | |
| 5 May 2015 | Apprehended Violence Order placed against Husband. Child is not listed on the Apprehended Violence Order. The husband accepted the Apprehended Violence Order without admission and the husband never breached the order. | ||
| 10 August 2015 | Disputed | The parties separated and remained living under the one roof. Wife asserts separation and lives under the one roof. | W-A1-4 |
| 8 September 2015 | Disputed Agreed | Parties separated finally – Husband asserts final separation and forced to leave home. Husband moved out of jointly owned former matrimonial home. When the husband left the matrimonial home, there was $15,000 in the wife’s ANZ bank account which was provided to her by the husband as the wife did not work. The wife did not provide disclosure in respect of where this money was applied. | H-A2-6 |
| 8 September to 20 December 2015 | Agreed | Wife had in her possession the Motor Vehicle N which was collected by husband on 20 December 2015. Wife subsequently purchased a Motor Vehicle O for the sum of $5,000 and Wife continues to reside in matrimonial home. Husband had to obtain own rental accommodation. | |
| 11 February 2016 | Agreed | Commenced proceedings in the Family Court of Australia for financial matters only. Husband asserts that proceedings incorrectly filed at the Family Court of Australia by Wife. | |
| 18 July 2016 | Wife did not pay monthly mortgage amount in full (Bankwest). Bankwest sent a default notice to both the husband and the wife asking for payment (due 29/07/16). The husband proposed to sell the house to pay off mortgage. | ||
| October 2016 | Wife obtained casual work as a customer service officer | W-A1-42 | |
| December 2016 | Agreed | Wife made the home loan interest only without prior notice to Husband and without his consent. | H-A2-92 W-A1-46 |
| February 2017 | - | Wife’s casual position became permanent. Wife does not provide disclosure in relation to her employment. | W-A1-43 |
| 5 May 2017 | Apprehended Violence Order expires. | H-A8 | |
| 18 July 2017 | - | Husband obtained a 2 bedroom rental unit in Suburb A and paid rent of $495 per week. Husband obtained a rental accommodation in anticipation of parenting interim. Court did not have a capacity to hear the application. | H-A2-79 |
| … 2017 | Husband’s contract with the Employer G concluded. The husband is currently looking for new employment. Husband travels to India as family was ill. Husband’s family and relatives in India only and not Australia so he also travelled to India for support from his family and relatives. Husband moves into share accommodation. Wife continues to reside in matrimonial property. | ||
| Since separation to current | Husband paid child support of $1250 per month since separation and until December 2017. Starting from January 2018, the husband currently pays child support of $114 per month as assessed. | ||
| Current | Disputed | The wife values the furniture and contents in the matrimonial property to be of nominal value. The husband values the furniture and contents in the matrimonial property to be $20,000. |
| Schedule 2 Note: This document can be sent by electronic means between the parties prior to it being filed at court | ||||
| Name File No Date Before | Sabharwal and Nakul PAC 606 of 2016 8/2/2019 and Time: 9:30am Judge Harman | |||
| Ownership | Description | Wife/de facto partner’s value | Husband/de facto partner’s value | |
| Joint | Property C | 640,000 | 640,000 | |
| Husband | Property S property | 120,190 | 84,000 | |
| Joint | Funds in Bank West offset account | 47,937 | 47,937 | |
| Husband | CBA Smart Access Saver … | 4 | ||
| Husband | ANZ Access Saver (… ) | 1 | ||
| Husband | ANZ Online Access Saver account (… ) | 4 | ||
| Husband | Suncorp Everyday Basics (… ) | 15 | ||
| Husband | Bank P account … (last known) | E 3,000 | ||
| Husband | Bank P account … (last known) | E 2,880 | ||
| Joint | Indian investment (wife has no knowledge) | 0 | 90,000 | |
| Joint | Indian investment (2) (wife has no knowledge) | 0 | 20,000 | |
| Husband | Shares | 24,02 | 2,402 | |
| Husband | Insurance policy … (vested) | 27,094 | ||
| Husband | … insurance policy … | 5,768 | 5,786 | |
| Husband | … insurance policy … | 12,385 | 12,385 | |
| Husband | … insurance policy … | 2,500 | ||
| Wife | … insurance policy … | 2,500 | 2,500 | |
| Husband | Motor Vehicle N (Dec 2014: $38,000) | 26,000 | 16,000 | |
| Husband | Gold | 15,000 | ||
| Wife | ANZ account – Access Advantage | 192 | 192 | |
| Wife | ANZ account – Progress Saver | 131 | 131 | |
| Wife | Indian Bank | 127 | 127 | |
| Wife | Motor Vehicle O | 3,000 | 4,000 | |
| Wife | Jewellery | 2,000 | 50,000 | |
| Joint | Home contents | 2,500 | 8,000 | |
| Husband | Bank Cheque | 45,000 | 45,000 | |
| Husband | Bank of Queensland | 13,000 | 13,000 | |
| Total | $ 973,606 | $ 1,041,934 | ||
| SUPERANNUATION | ||||
| Member | Name of Fund | Type of Interest | Wife/de facto partner’s value | Husband/de facto partner’s value |
| Husband | Super Fund Q | accumulation | 136,894 | 136,894 |
| Wife | Super Fund R | Accumulation | 5,089 | 5,089 |
| Total | $ 141,983 | $ 141,983 | ||
| NETT TOTAL ASSETS (including superannuation) | $ | $ |
Notes
In relation to any dispute items and all disputed values for items a party should state, using the item number as a heading:
Why an item should not be on the balance sheet.
Whether expert evidence is required to resolve a dispute as to a value and what steps have been taken to agree upon and appoint a single expert.
Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
Any other comment a party wishes to make in relation to the disputed item.
Approved by the Principal Registrar pursuant to subrule 12.06(2) [01-03-09] V2
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Civil Procedure
Legal Concepts
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Consent
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Injunction
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Costs
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Procedural Fairness
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Appeal
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