Shan & Prasad

In the case of Shan & Prasad, the appeal pertains to parenting, property, spousal maintenance, injunctions, and costs. The husband appealed the parenting, property, spousal maintenance, and injunction orders, as well as the costs order, while the wife cross-appealed against the costs order. The husband also applied to adduce further evidence in the appeal. The wife opposed the appeal and cross-appeal and the husband’s application. The primary judge made orders regarding the children's residence and time with the parents, the property pool, spousal maintenance, and injunctions. The husband and wife were also ordered to pay their own costs of the appeal and the Independent Children’s Lawyer (ICL) was ordered to pay its own costs.
The appeal raised several issues, including whether the primary judge erred in making orders contrary to the children's best interests, by not considering supervised time with the husband. The appeal also questioned whether the primary judge erred by admitting evidence that was inadmissible and by not considering the impact of capital gains tax on the sale of investment property. Furthermore, the appeal raised issues about the reliability of the evidence of the single expert witness, who was provided with inadmissible information and conducted joint interviews. The appeal also questioned whether the primary judge erred by making orders for spousal maintenance and injunctions without sufficient evidence of the wife’s financial circumstances and without balancing the utility of the order against the possible detriment to the husband.

The appeal was allowed in part. The court found no error in the primary judge’s consideration of the children’s best interests or in the admission of evidence, even though the single expert witness was provided with inadmissible information and conducted joint interviews. The court found error in the primary judge’s formulation of the property pool, by including notional property and failing to consider the impact of capital gains tax on the sale of investment property. The court also found error in the primary judge’s consideration of spousal maintenance and injunctions, due to insufficient evidence and failure to balance the utility of the order against the possible detriment to the husband. The appeal against the costs order was dismissed, but costs certificates were granted to both parties for the rehearing.

The application by the husband to adduce further evidence in the appeal was dismissed, as the evidence was of a similar nature to that before the primary judge and would not have affected the outcome of the hearing. The appeal was allowed in part, and several orders were set aside or varied, including those regarding the children's residence and time with the parents, the property pool, spousal maintenance, and injunctions. The proceedings for property settlement, spousal maintenance, and injunctions were remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Altobelli. The wife’s application for costs was dismissed, as was the application for costs by the ICL. However, costs certificates were granted to both parties for the rehearing.