SHAH & GILL
[2020] FCCA 656
•30 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAH & GILL | [2020] FCCA 656 |
| Catchwords: PROPERTY – Whether the husband should receive any of the net proceeds of sale of the family home in circumstances where he drew down a large amount of the equity in the property at separation and, he says, gambled it. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 64, 65DAA, 75, 79 |
| Cases cited: Bevan & Bevan [2013] Fam CAFC 116 |
| Applicant: | MS SHAH |
| Respondent: | MR GILL |
| File Number: | MLC 5541 of 2018 |
| Judgment of: | Judge Small |
| Hearing dates: | 14-15 August 2019 |
| Date of Last Submission: | 15 August 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Joshi |
| Solicitors for the Applicant: | Joshi Lawyers |
| Counsel for the Respondent: | Mr Gill in person |
| Solicitors for the Respondent: | None |
ORDERS
Parenting Orders
All previous orders in relation to the child X born in 2015 (“the child”) are hereby discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Until the end of the second term in the child’s first year of school, he shall spend time and communicate with the father:
(a)On each alternate weekend from 6:00 p.m. on Saturday to noon on Sunday for four visits commencing on the weekend after the date of these Orders;
(b)Thereafter on each alternate weekend from 6:00 p.m. on Saturday to 6:00 p.m. on Sunday for four visits;
(c)Thereafter on each alternate weekend from 10:00 a.m. on Saturday to 6:00 p.m. on Sunday for four visits;
(d)Thereafter on each alternate weekend from 6:00 p.m. or, when the child commences school, from the conclusion of school on Friday to 6:00 p.m. on Sunday;
(e)Each Wednesday from 3:30 p.m. or the conclusion of child care, kindergarten or school, whichever is the earlier, until 6:30 p.m. commencing on the Wednesday after the date of these Orders;
(f)On the child’s birthday in 2020 from 3:30 p.m. to 6:30 p.m.
(g)On the father’s birthday in 2020 from 3:30 p.m. to 6:30 p.m.
(h)On each of Christmas Day, Diwali, Lohri and Rakshabandhan 2020 from the conclusion of child care, kindergarten or school or 3:30p.m., whichever is the earlier, to 6:30 p.m.
(i)From 6:00 p.m. on the day before Fathers’ Day to 6:00 p.m. on Fathers’ Day each year;
(j)At other times by agreement between the parties in writing.
From the commencement of the Term 2 school holidays in the child’s first year of school he shall spend time with the father:
(a)For three nights in the Term 2 school holidays in the child’s first year of school by agreement between the parties in writing and failing agreement from the conclusion of school on the last day of Term 2 to 6:00 p.m. on the first Monday;
(b)During school terms, on each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, or Tuesday if the Monday is a public holiday, commencing in Term 3 of the child’s first year at school;
(c)For four nights in the Term 3 school holidays in the child’s first year of school by agreement between the parties in writing and failing agreement from 6:00 p.m. on the first Monday to 6:00 p.m. on the first Friday;
(d)For two periods of five days in the long summer holidays after the child’s first year of school by agreement between the parties in writing, and failing agreement from 6:00 p.m. on the second Monday to 6:00 p.m. on the next Saturday, and from 6:00 p.m. on the second Saturday after 1 January to 6:00 p.m. on the day five days later;
(e)Thereafter for half of each of the school term holidays by agreement between the parties, and failing agreement, the first half from the conclusion of school on the last day of term to 6:00 p.m. on the second Saturday in even-numbered years, and from 6:00 p.m. on the second Saturday to the commencement of school in the next school term in odd-numbered years;
(f)For two periods of one week in the long summer holidays at the end of the child’s second year of school by agreement between the parties, and failing agreement from 6:00 p.m. on the Saturday after Christmas Day to 6:00 p.m. on the Saturday after New Year’s Day and from 6:00 p.m. on the second Saturday after New Year’s Day to 6:00 p.m. on the third Saturday after New Year’s Day;
(g)Thereafter, for half of the long summer holidays each year by agreement between the parties in writing, and failing agreement the first half in even-numbered years and the second half in odd-numbered years, and for the purposes of this sub-paragraph the long summer holidays shall be deemed to commence at the conclusion of school on the final day of the school year and to conclude at 6:00 p.m. on the Sunday before the commencement of the next school year;
(h)Each Wednesday from 3:30 p.m. or the conclusion of school, whichever is the earlier, until 6:30 p.m.;
(i)On the child’s birthday from the conclusion of school, or 3:30 p.m. if not a school day, to 6:30 p.m. in even-numbered years, and from 3:30 p.m., or the conclusion of school, on the day before the birthday until the commencement of school or 10:00 a.m. on the birthday, in odd-numbered years;
(j)On the father’s birthday from 3:30 p.m. to 6:30 p.m. if a school day, and from 10:00 a.m. to 10:00 a.m. or the commencement of school;
(k)On each of Christmas Day, Diwali, Lohri and Rakshabandhan by agreement between the parties in writing, and failing agreement, from the conclusion of child care, kindergarten or school or 3:00p.m. if not a school day, to 6:00 p.m. in even-numbered years, and from 10:00 a.m. to 3:00 p.m. if a public holiday, or from 3:00p.m. to 6:00 p.m. on the previous evening if the day falls on a school day in odd-numbered years;
(l)From 6:00 p.m. on the day before Fathers’ Day to 6:00 p.m. on Fathers’ Day each year;
(m)At other times by agreement between the parties in writing.
If necessary, the child’s time with the father shall suspend on the following occasions:
(a)from 6:00 p.m. on the evening before Mother’s Day to 6:00 p.m. on Mother’s Day each year;
(b)On the child’s birthday from the conclusion of school, or 3:30 p.m. if not a school day, to 6:30 p.m. in odd-numbered years, and from the conclusion of school on the day before the birthday, or 3:30 p.m. if the day before the birthday is not a school day, until the commencement of school, or 10:00 a.m. on the birthday if the birthday does not fall on a school day, in even-numbered years;
(c)On the mother’s birthday from 3:30 p.m. to 6:30 p.m. if a school day, and from 10:00 a.m. to the commencement of school or 10:00a.m;
(d)On each of Christmas Day, Diwali, Lohri and Rakshabandhan from the conclusion of child care, kindergarten or school, or 3:00 p.m. if not a school day, to 6:00 p.m. in odd-numbered years, and from 10:00 a.m. to 3:00 p.m. if a public holiday, or from 3:00 p.m. to 6:00 p.m. on the previous evening if the day falls on a school day, in even-numbered years;
(e)At other times by agreement between the parties in writing.
All time between the father and the child specified in paragraphs 4(d), 4(e), 5(b) and 5(h) of these orders shall suspend during all school holiday periods and shall recommence in the next school term as though the holidays had not intervened.
Where time is specified to commence at the conclusion of school or to conclude at the commencement of school, changeover shall take place at the child’s school, and all other changeovers shall take place at the Hungry Jacks restaurant closest to the midpoint between the parties’ homes, or such other venue as the parties might agree in writing at least 48 hours prior to the changeover time.
Save in the case of emergency, the parties shall communicate with each other using an application such as “2houses” or “My Family Wizard”, and any costs associated with that application shall be borne by the husband.
The parties shall keep each other informed as to their respective contact telephone numbers at all times.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain any changes in his living arrangements to him as a result of these Orders, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)questioning the child about the personal life of the other parent or members of their household; and
(d)allowing the child to read, have read to him, or otherwise access any part of the Court’s Reasons for Judgment in this matter.
If the child is too ill to attend his court-ordered time with the father, the mother shall advise the father as soon as is practicable, and she shall obtain and provide to the father a medical certificate from the child’s treating medical practitioner setting out the nature of the child’s illness, and the fact that he is too ill to attend court-ordered time with his father.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care, and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent, and both parents shall be at liberty to visit the child if he is admitted to hospital.
Each party shall advise the other of any medication prescribed for the child while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.
The mother shall authorise any school or extra-curricular activity in which the child is enrolled to provide to the father at his expense all information, notices, photographs, reports and like materials, and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child, although the wife shall be at liberty to require any such school or organisation not to allow the husband to have access to any information which includes her or the child’s residential address.
The husband is authorised by this order to communicate with any medical or allied health practitioner who is treating the child, and the wife shall inform the husband whenever the child has a medical or allied health appointment, including the contact details of the treating doctor or allied health professional, although the wife shall be at liberty to require any such medical or allied health professional not to allow the husband to have access to any information which includes her or the child’s residential address.
The husband is hereby restrained by injunction from taking any steps whatsoever to discover the residential address of the wife and/or the child, and, in case he inadvertently discovers that information, he is hereby restrained by injunction from being within 500 metres of that address without the express prior consent of the wife having been obtained in writing.
Both parties and their partners, if any, shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited, and the father shall inform the mother of his intention to attend such a function or event no later than 48 hours prior.
Neither party shall enrol the child in any extracurricular activity which would impinge upon the time the child spends with the other parent without the written consent of the other parent first having been obtained in writing, and upon obtaining that consent, each party shall ensure that the child attends that extracurricular activity while he is in their respective care, and any costs associated with that extracurricular activity shall be borne by the parent who enrols the child.
Property orders
The entirety of the monies held in trust for the parties by the wife’s solicitors shall be released to the wife within seven days.
The wife shall otherwise retain, for her own use and benefit absolutely and to the exclusion of the husband:
(a)the $30,000 she has received as part property settlement during these proceedings, and any items of property purchased with those monies; and
(b)her household contents.
The husband shall retain for his own benefit and use absolutely and to the exclusion of the wife:
(a)his motor vehicle; and
(b)the $172,000 he withdrew from the parties’ mortgage account in March 2018.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account shall be divided 70% to the wife and 30% to the husband;
(c)insurance policies remain the sole property of the owner named thereon;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)each party shall retain all his/her respective superannuation entitlements, both present and future;
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(g)each party forgoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Shah & Gill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5541 of 2018
| MS SHAH |
Applicant
And
| MR GILL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property matter arising from the breakdown of the marriage between Ms Shah (“the wife” or “Ms Shah”) and Mr Gill (“the husband” or “Mr Gill”).
There is one child of the marriage, X born in 2015 (“X” or “the child”). X lives with his mother and spends time with his father each alternate Saturday and Sunday pursuant to interim orders made on 15 August 2019.
The parties are in dispute about when and how X’s time with his father ought to proceed to overnight, weekend and holiday time.
The parties’ former family home was sold in March 2018, before the parties had formally separated, and without the knowledge of the wife, circumstances to which I will return in more detail later in these Reasons. The net proceeds of sale are held in the trust account of the wife’s solicitor, also pursuant to the orders made on 15 August 2019.
The parties are in dispute about how those sale proceeds ought to be divided between them.
Therefore, the issues to be decided in this matter are:
A.How much time X should spend with Mr Gill and in what configuration?
B.Is it just and equitable to alter the parties’ property interests?
C.If it is just and equitable, what are the property interests of the parties and what is their value?
D.What were the parties’ contributions to the property?
E.Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
F.In light of the above findings, what Orders should be made to effect a just and equitable division of property between the parties?
Background
Ms Shah is now 36 years old, having been born in 1984. She is currently unemployed and in receipt of Centrelink benefits.
Mr Gill has is 37 years old, having been born in 1982. At the time of trial he was working casually in his cousin’s business franchise.
The parties married in India in 2011 and separated on a final basis on 14 March 2018. They were divorced on 11 June 2019.
X is the only child of the marriage.
Mr Gill lives in Suburb A with his brother, his brother’s wife and their children, who were aged 13 years and 10 years at the time of trial.
Final Hearing commenced on 14 August 2019 and the matter ran for 2 days. The mother was represented by her solicitor acting as counsel, and the father was self-represented.
The only witnesses at the trial were the parties. The family report writer was not called to give evidence, and nor were any of the people who had filed Affidavits in support of the husband.
By the end of the trial of the parties had agreed on all major issues in relation to X’s care, leaving only issues such as whether the husband’s time ought to be on Thursdays and Fridays rather than Saturdays and Sundays (although that matter also appears to have been settled during the trial), whether the husband ought to be able to communicate with X by video call during time when X is not in his care, what kind of accommodation Mr Gill should provide for X and when overnight time should begin, and whether X should be allowed to accompany his father on overseas holidays.
Property matters remained entirely for the decision of the court.
Following the conclusion of evidence and the making of submissions, I made some interim parenting and property orders with the consent of the parties, and otherwise reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including filed Affidavits, my notes and the transcript of the trial on 14 and 15 August 2019, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Parenting Issues
Issue A: How much time should X spend with Mr Gill and in what configuration?
An order providing for a child to spend time with a parent is a “parenting order” under s.64B(1) of the Family Law Act 1975 (Cth) (“the Act”).
The law in relation to parenting orders is found in Part VII of the Act.
S.60B sets out the objects and principles of Part VII and I set them out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA states that when deciding whether to make a parenting order, the court must regard the best interests of the child as its paramount consideration.
Section 60CC then sets out 16 factors the court must consider when deciding what orders would be in the child’s best interests, and I will address each of those factors in turn.
There are two primary considerations set out in s.60CC(2) as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this Court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said, at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time.
In this case, there is little doubt that X has a meaningful relationship with both his parents in the terms set out by Brown J. Evidence supporting that statement is found in the affidavit and oral evidence of both parties, and in the Family Report of Ms B dated 8 July 2019 (“the Family Report”), where she describes X as being comfortable, engaged and at ease in the company of both parents.
It is clear to the Court that both of those meaningful relationships are beneficial to X.
In terms of the matters for consideration set out in s.60CC(2)(b), I note that it is the evidence of both parties that their relationship was volatile and that they argued often. It is clear from that evidence that X was either in the room or within hearing distance during those arguments.
He has therefore been exposed to family violence, at least in the form of verbal abuse, although the wife also alleges coercive and controlling behaviour on the part of the husband as well as physical abuse on the night of final separation. I will return to the issue of family violence later in these Reasons.
S.60CC (2A) states that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b).
I must therefore make orders which protect X from being exposed to the animosity between his parents, while at the same time ensuring that he can continue to have a meaningful relationship with both.
S.60CC(3) then sets out 14 “Additional considerations” for the Court to take into account as follows:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X was not interviewed for the Family Report, as Ms B considered him too young to participate in her assessment in that way. The court is therefore unaware of X’s views, but even if he had expressed any views to Ms B, he is too young for the Court to have given any weight to those views.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Both parties accept that each has a warm, loving and close relationship with X.
The husband complains that the wife has, at times, shouted at X, but there is little or no other evidence from the parents to indicate any concerns about the nature of their respective relationships with their son.
Ms B describes her observations of X with each parent as “unremarkable” and that both parents and X appeared “comfortable and happy” in their interactions.
Mr Gill is said to have been “encouraging and supportive and his interactions were age appropriate” and that he had been “fully engaged” with X throughout the observation.
She describes X as “playful” when observed with his father and as “more subdued” when observed with his mother, but I do not gain the impression that that was in any way a criticism of the relationship between mother and son.
Ms B says Ms Shah was also “encouraging and supportive” and “age appropriate” in her interactions with X, and that X was happy to go back to his mother after his time with his father, even though he seemed a little sad that the time with his father was finishing.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
During the marriage, it would seem that the parties shared the decision-making about X’s major life issues. For instance, it appears that they agreed on his name, and matters of religion.
Since separation, Ms Shah has been guarded about involving Mr Gill in decisions such as where X would attend child care or kindergarten, as she expresses a fear of him and does not wish him to know her address.
Ms Shah has been X’s primary carer and he has lived with her his whole life. Indeed, as far as the Court is aware, X has so far not spent a night away from his mother.
Mr Gill left X and his mother in India in February 2018, on his evidence expecting to be separated from them for some three months because the parties had not been able to resolve intra-familial disputes about money sent back to India. X was not quite three at that time and the absence of his father must have confused him greatly.
Once X returned to Melbourne with his mother on 14 March 2018 (unexpectedly according to both parties), and the parties separated, Mr Gill saw him only sporadically until Orders were made for supervised contact to begin at a children’s contact service in August 2018. He has spent regular and frequent time, unsupervised since Orders made by consent on 22 October 2018, from that date.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
At the time of trial Mr Gill had never paid child support for X other than feeding him and paying any costs of entertaining him during the time he is with him.
Ms Shah said at trial that she had not applied for a formal Child Support Assessment from the (then) Department of Human Services (Child Support) because she was afraid of what Mr Gill might do, but she indicated that she might apply for such an Assessment soon after the trial had concluded.
In the absence of any financial support from Mr Gill, the whole burden of maintaining X and providing for his material needs has fallen to the wife.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It is not envisaged that X will be separated from either parent entirely. Both parents agree that he should spend more time with the husband, and that that time should progress to overnight. They simply disagree on the timetable for how that should happen.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
At the time of trial, the husband was living in Suburb A and the wife in the Suburb C area, a distance of about 20 kilometres.
Initially, because the wife did not have a car, they were meeting for changeover at D Train Station, which is some 29 kilometres from Suburb A and 45 kilometres from Suburb C. Mr Gill complained that X was always tired on the way to and from his house and that the one hour’s travel each way took half of his time with X.
At trial, I made Orders, with the consent of both parties, for $20,000 of the funds held in trust from the sale of the family home to be paid to the wife as a partial property settlement so that she could buy a car to transport herself and X. That Order was designed to alleviate the travel for X, and it was envisaged that the parties would meet closer to the wife’s home.
I also made Orders, again with the consent of the parties, for X’s time with his father to progress to all day on each alternate Saturday and Sunday.
In those circumstances there will be less travel time for both parties and for X.
There do not appear to be any other geographical or expense issues in X spending time with his father.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no doubt from the evidence before the Court that both parties are able to take care of X’s material needs. He is housed, fed and entertained appropriately in both households.
However, the wife was concerned about where X would sleep when his time with his father progressed to overnight, as the husband lives with his brother, his sister-in-law and their two children in a three-bedroomed house.
It was the husband’s evidence at trial that he had his own room at his brother’s house and that he would be able to fit a single bed in that room for X, but I note that that evidence was adduced only after it was made clear to Mr Gill that it might not be appropriate for X to sleep in the bedroom occupied by his cousins, or in his uncle and aunt’s room, while they slept elsewhere. I had some concerns in receiving that evidence that the husband had not thoroughly thought through the practical arrangements he would need to have in place for X to spend overnight time with him.
I am also somewhat concerned about the parties’ capacity to meet X’s emotional needs.
They fought and argued in front of him, or at least in his hearing, during the marriage, which must have been both confusing and frightening for him, and while both parents clearly love X dearly, they need to understand that exposing a child to family violence is an act of child abuse under s.4 of the Act.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Ms B, in the Family Report, describes X as “a bright, talkative and happy child” and said that he appeared to be meeting his developmental milestones and was advanced in his speech.
The parents do not impress as particularly mature, and appeared to be more interested in blaming each other for the breakdown of the marriage than genuinely trying to resolve parenting or property issues.
Both parents were born and grew up in India, and X therefore has a rich cultural heritage. The parents’ wish to ensure that he spends times with each of them at Diwali, Lohri and Rakshabandhan, indicates that they see that cultural heritage as important for X, and the Court is satisfied that X will grow up with all the advantages of being a first generation Australian of Indian-born parents.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
X has no Aboriginal or Torres Strait Islander heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
As previously stated, both parents clearly love their son, and want only what is best for him.
Both see themselves as appropriate and capable parents, while criticising the parenting of the other to some extent.
However, as a result, X has, at times, been used as a pawn in these proceedings, which does not reflect well on his parents.
The wife cut X off from his father at separation, and her Initiating Application, filed on 21 May 2018, two months after separation, does not seek any parenting Orders. Again, his father’s absence from his life must have been confusing for X at his then young age.
The matter only became a parenting matter when the husband filed his Response on 18 June 2018 seeking parenting Orders.
I gained the impression during the trial that while both parties love X, their focus was more on the property proceedings than on the parenting issues. That does not reflect well on their attitude to their parenting responsibilities, nor does the fact that X has, to some extent, been seen as a prize to be won.
That said, the parties have been able to agree on major issues like equal shared parental responsibility, religion, and where X will live, which is greatly to their credit as parents.
(j) any family violence involving the child or a member of the child’s family;
Both parties accuse the other of verbal abuse during the marriage, and it is clear that the relationship was somewhat volatile from the beginning.
The wife also accuses the husband of systematic coercive and controlling behaviour, and of physically assaulting her on the night they separated.
In relation to the coercive and controlling behaviour, as part of her evidence in chief at trial, the wife said:
I have been a full-time mum looking after my Mr Gill, my son, working, doing household chores and never complained about it. And I spent eight years like that, but he was always financially controlling me and always threatening me. If I don’t put the money in his account my relationship with him will break and I was so scared. If relationship will break my son will not be able to see his father and I make up my mind. I said I will tolerate anything, he will too, but I want the family together because of my son.
It was her evidence that the husband insulted her and her family regularly throughout the relationship, that he withheld car keys from her so that she could not collect and drop off the children who were the clients of her business, which forced her to close that business, that he insisted on doing the shopping with her, and that he had complete control of the family finances.
She says that the family travelled to India for a holiday in January 2018, and had return tickets for February 2018. However, it is her evidence that the husband had cancelled hers and X’s return tickets after the parties had argued about monies sent to her family in India from Australia, and the husband returned on his own to Melbourne in February 2018.
Ms Shah says that she was able to obtain tickets for her and X to return to Australia, and that they arrived in the early hours of 14 March 2018 without informing Mr Gill that they were coming. It is her evidence that a friend of the family had picked them up at the airport and taken them to the family home, but Mr Gill was not there. They had then travelled to the husband’s brother’s home, where they found the husband. In her Affidavit affirmed 18 and filed 21 May 2018, the wife deposes, at paragraphs 31, 32 and 34:
31. I called the police because the Respondent was assaulting me. On the date of separation i.e. 14 March 2018, the Respondent Husband assaulted me by grabbing my hair whilst wrapping my left arm and twisting it. He then grabbed me and slammed my forehead against the wall. I was left traumatised and scared of the Respondent after this attack.
32. The police assisted me to apply for a Family Violence Intervention Order and an Application and Warrant were made. An Interim Order was made on 19 March 2018 at Suburb E Magistrates Court for my protection, and X’s protection. In the Application for the order, I say that the Respondent has been dominating and controlling throughout the marriage; that he does not give me access to money, a vehicle nor keys to the home.
33 […]
34. In addition to the physical abuse, the respondent husband has kept me in the dark about the financial circumstances of the relationship ever since we were married. I believe he has sold the former matrimonial home and I do not know what he would do with the sale proceeds.
I note that the husband had indeed sold the family home in some haste after arriving back in Melbourne in February 2018, and I will return to that issue later in these Reasons.
The Application and Warrant for that Interim Intervention Order describes the incident alleged to have occurred on 14 March 2018 as follows:
ON 14/03/18 AT APPROX 0130 HOURS THE AFM ARRIVED HOME WITH A FRIEND AFTER RETURNING FROM INDIA, HER HUSBAND WAS NOT HOME. THE AFM HAS CALLED THE RESP TO GET INTO THE HOUSE – THE AFM HAS THEN GONE TO A FRIENDS PLACE TO MEET THE RESP WHERE THEY HAVE CONVERSED. THE AFM AND RESP HAVE RETURNED TO THE HOUSE WITH THEIR CHILD. THE RESP WAS PLAYING WITH THE COUPLES CHILD AND THE AFM WENT TO BED. THE RESP HAS ENTERED THE ROOM STATING “THIS IS MY ROOM, GET OUT” – WHILST DOING THIS HE HAS GRABBED THE AFM BY HER HAIR AND PULLED IT AND AT THE SAME TIME HE GRABBED THE AFM’S LEFT ARM TWISTING IT. THE RESP HAS THEN GRABBED THE AFM AND SLAMED (sic) HER FOREHEAD AGAINST A WALL. THE AFM DID NOT SUSTAIN INJURIES AS A RESULT – HOWEVER IS TRAUMATIZED AND SCARED.
The husband denies committing any acts of family violence against the wife, and says that it was she who was the aggressor during their arguments, threatening to kill herself and X, and damaging property.
In his Affidavit affirmed and filed on 18 June 2018, the husband denies that he is “a violent person”, and describes the wife’s allegations as “misconstrued, baseless and without any evidence whatsoever”, adding that she “coined a story and levelled false and baseless allegations against me”. He then complains that “the applicant wife has failed to particularise the contents of her allegations. The statements made by the applicant wife are quite vague and generic without there being any specific details of the contents with reference to the date(s), and period of time. In light of the vagueness of contents I am not positioned to respond to the allegations of the wife with specificity”.
That is hardly a resounding denial of the wife’s allegations.
However, at trial, the husband appeared genuinely distressed about the allegations of physical violence on the day of separation, and was much more adamant in his denials, saying that the incident simply had never occurred.
Nevertheless, he was asked to attend a police station later on that day, and was informed that he could not return to the family home, save to retrieve some of his personal belongings.
Clearly, what had happened early in the morning of 14 March 2018 was serious enough for the police to become involved, and indeed, it was that incident which precipitated the parties’ separation on that day.
It was the husband’s evidence at trial that he had not cancelled the return tickets for his wife and son to come back to Melbourne in February 2018, but had merely postponed those tickets and had them reissued for May 2018.
Under cross-examination by counsel for the wife, he said that he wanted his parents and the wife’s parents to “sit together to sort out these issues”, referring to the $40,700 the parties had sent back to India for the wife’s family, but that the wife’s parents had not made themselves available for such a meeting. He said:
So they never came. So then I decided with Ms Shah, like, “Why not you can stay here and we can sort – we can sort this issue, and the X (sic) can spend more time with the grandparents”. So I have not cancelled their tickets, I have postponed their tickets.
He said X had never been to India to visit his grandparents before, and that that circumstance, as well as the financial dispute, was why he had “postponed” the return tickets for his wife and son.
Given that it is not disputed that the husband had applied for a second mortgage loan of some $173,000 in about November 2017, that he sold the family home within days of arriving back in Melbourne in March 2018, and that he received the $173,000 soon after the sale of the property - none of which was known to the wife until after the event – I find his evidence on this specific issue highly unsatisfactory and I do not accept it.
Under further cross-examination, when it was pointed out to him that the financial issue, and the fact that X had not seen his grandparents, were things the family had known about before they left Australia, and therefore could not have been reasons for him to change the wife’s and X’s tickets suddenly in the days before they were due to leave, he simply could not provide a reason why he had sought to have his wife remain in India until late May 2018.
In those circumstances, Mr Gill’s attempts to keep his wife and son in India while he disposed of the family home, having first added to its mortgage liability, constituted, in my view, family violence in the form of financial abuse.
The verbal arguments, which both parties concede occurred, also constitute family violence, although it is more difficult on the evidence before the Court to lay the blame at one or other party’s feet.
Mr Gill deposes as follows in his Affidavit affirmed and filed on 23 June 2018:
2. I make this affidavit in continuation of my affidavit dated 18 June 2018 and in support of my concerns relating to family violence perpetrated by the applicant wife against the minor ‘X’ (the child).
3. I say that the applicant wife carries an aggressive nature. Between September 2016 to January 2018 (sic) I have noted extreme behaviour on the part of the applicant wife and such behaviour caused grave shock and stress to me and also the child.
4. The applicant wife would start arguments, become hyper (sic) and behave erratically. I have seen the applicant wife being physically violent, slapping herself, pulling her hair, throwing and breaking house hold items and aggressively yelling at me and the child.
5. The applicant wife had frequently been yelling at the child for no reason on day to day basis. The child resultantly would come running to me and hug me in a scared and panicked state of mind.
The husband then goes on to describe two incidents: one on 13 October 2017 when the wife took a rock from the garden and “broke the intercom bell by repeatedly hitting the same”; and one on 28 October 2017 where she “yelled at me and said she will kill herself and also the child”.
On 8 October 2018, the husband filed affidavits from three people who had been present at the family home on 19 October 2017 when the parties had discussed the issue of the $40,700 sent to the wife’s parents in India.
Mr F, Church minister, deposes that he had provided “family counselling to the husband and the wife on various occasions in respect of their matrimonial, domestic and financial issues”. He says that he attended a meeting at the family home on 19 October 2017, where the parties had made mutual allegations of abusive behaviour.
It is Mr F’s evidence that during that meeting, the wife had “sternly” said that the monies sent to India to her family would not be returned because “the monies were spent pursuant to family decision”.
He says further that the wife had told the husband that if his relatives “don’t stop visiting the couple’s home, the wife will ensure that the husband can’t live with and see his son for ever”. Mr F says that the “meeting ended in a sore note while the wife shouting loudly and threatening and the husband was weeping. There was no resolution to the domestic dispute that night”.
I note that X was in the house while that meeting took place.
Mr G, the husband’s cousin, deposes in his Affidavit affirmed on 7 October and filed on 8 October 2018, that “the applicant wife would get violent frequently on numerous occasions even in front of me when Mr Gill denied her monetary demands”.
Mr G was present at the meeting on 19 October 2017, and he too deposes that: “The applicant wife and the respondent husband were arguing while the applicant wife was shouting. The applicant wife was disrespectful towards the husband and didn’t let him speak about his point of view”. He says further that the wife threatened that she would “ensure the respondent husband can’t meet with his son once they separate”.
Ms H, who describes herself as a “social friend” of the wife, was also present on 19 October 2017, which she says was “a day of Diwali”, “an auspicious day as per Hindu calendar”.
Ms H deposes further:
11. The wife conceded the transfer of substantial monies to the tune of AUD $40,000 (approx.) and started pushing things and indicated she wanted the husband to fulfil her conditions including but not limited to
a. stop meeting with brother’s family;
b. stop the visit of any one from brother’s family to the matrimonial home;
c. to sponsor her brother for an Australian visa including all financial expenses
d. continue financial support for the medical expenses for her mother.
Ms H describes the wife’s demands as “unreasonable” and says that the husband had “expressed his total dismay over the behaviour of the wife who had more concern for her mother and brother than her husband and her child”.
I note that none of those witnesses was called to give evidence at trial, so that their evidence remains unchallenged, and I accept it as affirmed, following the Rule in Jones v Dunkel (1959) 101 CLR 298.
Further, I note that Ms B reports Mr Gill as saying that when angry, Ms Shah would tell X not to go to his father, and that his father was “dead to us”.
On the basis of all the evidence before the Court, of which the abovementioned is but a small part, I find that it is likely that both parties were fully engaged in their arguments, and those arguments fall into the category of what is called “mutual couple violence”.
Mr Gill did not appear to understand that controlling behaviour such as alleged by Ms Shah is considered to be family violence under the Act. Indeed, in denying that he had been controlling, and alleging that it was the wife who had behaved in a controlling manner, he deposes, at paragraph 32 of his affidavit affirmed and filed on 18 June 2018:
…. wife’s behaviour was controlling as the wife didn’t contribute in the household expense, would regularly remove the money from my pocket without asking tantamounts to stealing (sic); non-collaborative and querlling nature (sic) and asking to continue provide (sic) financial support to her family including mother and her brother.
That passage does not display a genuine understanding of the nature of family violence.
In this context, I also note the observation of Ms B, who said, at paragraph 37 of the Family Report:
(The mother) presented as inconsistent and evasive at times. Her fear of Mr Gill, both for herself and X, appeared genuine. Some of her previously unstated concerns about Mr Gill seemed exaggerated and potentially vexatious.
In all of those circumstances, I find that it is more probable than not that both parties behaved in ways that fall under the definition of family violence set out in s.4AB of the Act.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have already set out circumstances under which the wife obtained an Interim Intervention Order against the husband in March 2018.
The husband lodged a cross application for an Intervention Order in response, and both applications were resolved by way of mutual Undertakings at the hearing of those matters on 9 July 2018.
The Court is unaware of any further Intervention Order proceedings between the parties.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
X is now four-and-a-half years old.
It is almost impossible to make Orders for a four year old that will be relevant until he turns 18 and leaves the jurisdiction of the Court.
However, the Orders I will make are designed to take this family well into X’s adolescence and in that sense, they are final orders.
I have made them as flexible as possible so that the parties have clear Orders to follow if they cannot agree on when X spends time with his father, but they will be permitted to change the Orders if both agree on that change.
The parties will need to attend upon a Family Dispute Resolution Practitioner before instituting further proceedings if they cannot agree on parenting issues in the future.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the Court thinks relevant in this case.
Decision: Issue A
When I take all the above circumstances and the law into account, and given that X has now been spending each alternate Saturday and Sunday with his father during the day for some months, it is time, in my view, for that time to increase to overnight time – one night at first – with a graduating regime until X is spending substantial and significant time with his father pursuant to s.65DAA(3) of the Act, which states:
A child will be taken to spend substantial and significant time with a parent only if:
(a)The time the child spends with the parent includes both:
(i)days that fall on weekends and holidays;,
(ii)days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(b)The time the child spends with the parent allows the child to be involved in occasions and events that are of particular significance to the parent.
I will also make an Order that the husband must provide appropriate bedding and a separate bed for X when he stays overnight with him, and I note that Ms B was also of the opinion that X needed a separate bed if he were to spend overnight time with his father.
In relation to the other parenting matters in dispute, I will make an Order that X be permitted to accept a video call from his father on one occasion per week, which was also one of the recommendations of Ms B.
However, I will make provision for Ms Shah’s fear that the husband could use that time to discover where she lives, by making an injunction restraining Mr Gill from taking any steps to do so. If X were to inadvertently let his father know where he lives, that restraining order will prevent Mr Gill from being within 500 metres of that address without having first obtained the express and written consent of Ms Shah.
Property Issues
Issue B: Is it just and equitable to alter the parties’ property interests?
This question arises from the operation of s.79(2) of the Act, which states that a Court may only make orders adjusting the property interests of married parties if it is just and equitable to do so.
The High Court of Australia in Stanford v Stanford (2012) 293 ALR 70 (“Stanford”) at [79] and [80] states that the first question that must be asked is whether:
“it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
If it is just and equitable to make a property settlement order, then the court can proceed to consider a property division, applying the various principles set out in s.79(4) of the Act.
In Stanford, the High Court stated, at paragraph 42:
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. ”
The Full Court of the Family Court of Australia in Bevan & Bevan [2013] Fam CAFC 116 further explored the issue of “just and equitable”, saying that the situation described by the High Court would apply in the “vast majority of cases”.
Decision: Issue B
As there is nothing to distinguish this case from the vast majority of cases, I find that it is just and equitable to alter the property interests of the parties as a result of the breakdown of their marriage.
Issue C: If it is just and equitable, what are the property interests of the parties and what is their value?
The main item of property in which the parties have an interest are the net proceeds from the sale of the family home, which are held on trust for the parties in the trust account of the wife’s solicitors.
There is also the sum of $30,000 which the wife has already received from those funds as a part property settlement pursuant to interim orders made in these proceedings.
Apart from those pieces of property, there is the husband’s motor vehicle, and some household effects. So much is agreed between the parties.
However, the wife claims that the $173,000 that the husband received in or about March or April 2018 from a second loan attached to the mortgage over the family home, ought to be included in the pool.
The husband does not deny that he applied for a second loan of $173,000 using the family home as security in about November 2017. The family home was registered in his sole name, as was the mortgage.
Further, he does not deny that he did not tell the wife about that loan application, which, he says, was made because he wanted to start a business as he could no longer work as a labourer, that having been his major source of income during the marriage.
On his return from India in February 2018, the husband sold the family home for $590,000, again, he concedes, without the wife’s knowledge or consent. A deposit of $59,000 was recorded on the Contract of Sale dated 6 March 2018, but that document also states that only a $1000 holding deposit was actually paid on that day, with the remainder of the deposit to be paid by 13 March 2018.
Settlement of the sale was due to occur on 5 April 2018, only about 5 weeks after Mr Gill had left X and his mother in India with tickets that did not provide for them to return to Melbourne until May 2018.
As already stated above, Ms Shah obtained tickets for herself and X and arrived back in Melbourne in the early hours of 14 March 2018. I have described the events of that night, and the parties’ subsequent separation, earlier in these Reasons.
It was Mr Gill’s evidence at trial that the events of 14 March 2018 took him by surprise – which is no wonder given that he expected not to see his wife and son for a further two-and-a-half months, well after the contracted settlement date for the sale of the family home.
He says that he was so devastated at the loss of his marriage and his son that he began to gamble, and when he received the second mortgage loan of $173,000, instead of investing it in a business, he lost the entire amount at Crown Casino.
I am extremely sceptical about that evidence, despite there being some evidence of amounts of money being withdrawn from the husband’s bank account at ATMs at Crown Casino during that period. Withdrawing money at Crown Casino is not evidence of how that money was spent, if indeed it was.
The wife says that the husband still has that $173,000 hidden somewhere so as to keep it out of the property pool in these proceedings, but whether or not that is true, it is a sum belonging to the parties jointly, withdrawn by the husband and used for his own purposes.
Therefore, I will consider that $173,000 to be part of the property pool for division in these proceedings, albeit that the husband has had the sole use of those funds.
Further, the husband wishes to have the $40,700 sent to the wife’s family in India “added back” to the pool and considered as money which the wife already has. That money was sent on multiple occasions over the period of the marriage in smaller amounts, sometimes much smaller amounts.
The wife rather reluctantly concedes that the parties sent that money to her family, but says that it was a gift, and she does not wish for it to be included in the property pool.
That money has been the cause of much trouble in the parties’ marriage, and disputes during the marriage about whether the transfers ought to continue, or whether the wife’s family should pay the parties back, have arisen many times, not least of which were at the meeting at the family home on 19 October 2017, and while the parties were in India in January/February 2018.
Monies provided to family members are usually considered to have been gifts unless there is some evidence of a loan arrangement having been made between the parties and the family member/s.
There is no such evidence in this case, and I note that it is not uncommon for people to send money back to their home country to assist family members.
While Mr Gill clearly did not like assisting his wife’s family in this way, the evidence shows that it was he who actually arranged the transfers of the money, whether or not under some duress from the wife, and in those circumstances I consider that money to have been a gift to the wife’s family.
If I am wrong about that issue, it will become clear, as I perform the necessary calculations to effect a property settlement in this matter, that the inclusion of that $40,700 in the property pool would make no difference to the outcome of these proceedings.
The value of the household effects in the wife’s possession is a matter of dispute, although no specific questions in relation to it were raised at trial. The husband says they are worth $3000 and the wife values them at $1000.
No formal valuations have been obtained in relation to the household effects, and in those circumstances I must choose whose valuation I accept. On the basis that the vast majority of residences in Australia would have a television, a washing machine, bedroom and living room furniture, as well as kitchen pots and pans, crockery and utensils, I accept that the effects held by the wife are worth more than $1000. I therefore find them to be worth $3000, as that is the only other contended value for them.
Decision: Issue C
The property interests of the parties at the time of trial, and their value to the nearest dollar, may therefore be set out as follows:
Assets
Owner
Value
Funds held in trust from sale of former family home
Joint
$97,388
Household effects
Wife
$3,000
Monies received as part property settlement
Wife
$30,000
ANZ Bank account
Husband
minimal
Commonwealth Bank account
Husband
minimal
Motor Vehicle 1
Husband
$2,500
Monies received as result of second mortgage loan
Husband
$173,000
Wife’s bank account
Wife
minimal
Total Assets
$305,888
Liabilities
Owner
Value
ANZ Credit Card debt borrowed from friends
Husband
$17,000.00
Private loan from friends for legal fees and other expenses
Husband
$26,300.00
Money owed to brother for board from April-October 2018 and January – May 2019
Husband
$13,400.00
While I am obliged to set out all the parties’ current liabilities as part of this exercise, the husband’s debts to his brother and his friends were incurred after separation, and are therefore not debts of the marriage. He will carry those debts no matter what happens to the remainder of the property.
Neither party has any real superannuation benefits.
Issue D: What were the parties’ contributions to the property?
This question is mandated by s.79(4) of the Act, which states:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
For the benefit of the husband, the calculation of contributions required by s.79(4) of the Act, does not require the Court to perform a detailed forensic exercise to decide with precision which of the parties made which financial contributions to the parties’ property.
Contributions may be financial or non-financial, direct or indirect, and the Act considers a party to have made significant contributions to the welfare of the family, and therefore to the parties’ property, when he or she has stayed at home looking after the household and any children of the marriage.
It is on that basis that I conduct these deliberations.
In this case, neither party had any assets at the commencement of their marriage.
During the marriage, they bought a car which the husband used for his business to provide income for the family, and he worked in that business for the vast majority of the marriage. The husband retains that vehicle, but it was his evidence at trial that it is no longer registered for his business.
They also bought the former family home, which was registered in the name of the husband alone, as was the attached mortgage. The mortgage loan was paid from the earnings of the parties, although the wife says that she had no part in the management of the family finances, and the husband claims that he made all financial contributions to the mortgage.
Once X was born, the husband assisted the wife in caring for him, although the evidence is clear that the wife was X’s primary carer.
The wife worked outside the home for part of the marriage, and she conducted a small business from the home for a period as well.
In addition, she contributed to the welfare of the family in caring for X, who suffered from serious reflux for the first year of his life and needed special attention, and in performing household duties such as cooking and cleaning.
I therefore consider the parties to have made equal contributions to their property during the marriage.
In late November 2017, the husband arranged a second loan using the family home as security. He says that the purpose of that loan, in the sum, of about $173,000, was to finance a business he intended to operate. It was his evidence at trial that he intended to acquire or set up a business, as he could no longer work as a labourer, because he has developed a back condition.
Nevertheless, it was the husband’s evidence at trial that he had been working on a casual basis in the post-separation period.
I consider that fact that he did not tell the wife about the increase in the mortgage liability to be very significant.
The loan was arranged during the marriage, and the husband’s failure to consult with, or even to inform the wife about the fact that the liability attached to their major asset was to increase very significantly, supports the wife’s claims about him being in full control of the family finances. It is the action of a man who does not consider his wife worthy of sharing control of, or even knowing about the family’s financial position.
The loan was not delivered until after the parties had separated, and even then, the husband did not inform the wife about the true state of the family’s financial position.
The wife only discovered the existence of that loan when her solicitor conducted a title search on the family home, and she immediately placed a caveat over the property to secure her interest in it.
That caveat, and the husband’s subsequent failure to account for the loan monies of $173,000, was the cause of some delay to the property’s settlement. Indeed, the delay was some four months, and the caveat was only lifted so that the sale could be completed after the Court ordered the net sale proceeds to be held in trust for the parties in the trust account of the conveyancer.
The husband says that he gambled all of the loan moneys. I have already expressed my scepticism about that evidence, but whether or not he gambled the loan monies, he has had the sole use of them to the exclusion of the wife, and his increasing the family’s liabilities in that way is considered to be a “negative contribution” to the parties’ property pool.
Since separation, the wife has had the majority of X’s care and has thus made a significant post-separation contribution to the welfare of the family.
Decision: Issue D
When I consider all of those matters, I find the contributions of the parties to their property to have been 60 percent by the wife and 40 percent by the husband.
Issue E: Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)?
Section 75(2) of the Act sets out the factors the Court must take into consideration when making orders for the maintenance of a party to a marriage.
The inclusion of this exercise in property proceedings is required by section 79(4)(e).
Section 75(2) states that the court must consider the following matters:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In this case, the wife is in good health, but she was not working outside the home at the time of trial, and she owns nothing but her household effects, the car she was to buy with funds released by order of the Court on 15 August 2019, and a share of the net proceeds of the sale of the family home.
She has the major care of X, although that will be somewhat ameliorated by the parenting orders I will make.
The husband claims that he is not in good health, but he provides no professional medical corroboration for that claim, and on his own evidence, he was planning to conduct a business and has been working casually. That is, he has the capacity to work. He says his car is his only possession, and that he is in considerable debt to family and friends. He, too, claims a share of the sale proceeds from the sale of the family home.
As stated previously, the husband had never paid child support for X, but the wife was considering whether she might make an application to Services Australia (Child Support) to rectify that situation.
I consider, under s.75(2)(o) of the Act, the fact that these parties are in high conflict, and that a continuation of that conflict cannot be in X’s best interests.
Decision: Issue E
When I consider all the matters set out in s.75(2), I find that there should be a further adjustment to the wife of ten percent.
Issue F: In light of the above findings, what Orders should be made to effect a just and equitable division of property between the parties?
The result of the above decisions is that the husband should receive thirty percent (30%) of the property pool, and the wife should receive seventy percent (70%).
I have found that the property as a whole is worth $305,888.
30% of $305,888 is $91,766. That is how much property the husband should retain as a result of these proceedings.
70% of $305,888 is $214,121. That is how much the wife should receive.
The husband has already had the benefit of $173,000 of the parties’ joint property. He also retains the Motor Vehicle 1 worth $2500, total property worth $175,500. That is about 57% of the property.
The wife has the $30,000 already paid as a part property settlement pursuant to court orders, and her household effects worth $3000, a total of $33,000. In order to retain 70%, she would need to receive further property worth another $181,121.
There is currently $97,388 in the trust account of the wife’s solicitor.
If the wife received the whole of that amount, she would have property worth a total of $130,388, which amounts to about forty three percent (43%) of the total.
In that circumstance, in order for the wife to receive 70% of the property, the husband would need to pay her the sum of $83,734.
Conclusion Issue E:
I have no confidence at all that the husband would comply with an order that he pay wife anything as a result of these proceedings. He claims to be unable to work, and he apparently owes his family and friends considerable amounts of money.
His actions in selling the family home out from under his wife and son without her knowledge, having first increased the mortgage, were devious and reprehensible, and I find it likely that he still has access to the monies borrowed. If I were to order him to make a payment to the wife, it would simply provide more fertile ground in which to act out the conflict between the parties, and that would be absolutely detrimental to X.
In those circumstances, I will order that the whole of the monies held in trust for the parties be paid to the wife, and that otherwise the parties keep the property in their possession.
While that is not the optimal outcome, it is the only practical one, and is therefore just and equitable in all the circumstances of this case.
It will readily be seen from this result that even if I had included the monies sent to the wife’s family in India in the property pool, and assigned them to her side of the ledger, the outcome would still have been that the wife received the whole of the funds held in trust.
Conclusion
X is growing up in an environment of considerable tension. His parents are resentful of each other and in high conflict, although it is to be hoped that the conclusion of these proceedings might bring him some respite from that conflict.
It is likely that his father will continue to be resentful of his mother because he will feel that he got nothing in the property settlement while the wife received everything. That is not true of course, but I have little doubt that that is how Mr Gill will perceive this outcome.
X can only hope that his parents, each of whom loves him dearly, can put their interpersonal grievances aside so that they can parent him in the best possible way. That is what every child deserves.
I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of Judge Small
Associate:
Date: 30 March 2020
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Remedies
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Injunction
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Jurisdiction
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Costs
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