FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yadav & Jangra [2024] FedCFamC2F 1480
File number(s): MLC 13139 of 2020 Judgment of: JUDGE GLASS Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – PARENTING – where 16 and 11 year old children have consistently failed to spend overnight time with their father – whether orders should be made increasing that time to week about time contrary to their views – where the father has perpetrated extensive family violence, including assaulting the children
FAMILY LAW – PROPERTY – where both parties seek to retain the former matrimonial home – where neither party sought a superannuation split despite the significant disparity between the value of their respective superannuation interests
Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DAA, 75, 79, 81, 106A, 114
Cases cited: Adamson & Adamson (2014) FLC 93-622
Biltoft & Biltoft (1995) FLC 92-614
Carlson & Fluvium [2012] FamCA 32
Eastley & Eastley (2022) FLC 94-094
Fields & Smith (2015) FLC 93-968
Fowles & Fowles (2024) FLC 94-198
Jones v Dunkel (1969) 101 CLR 298
Kingston & Field (No 2) (2020) FLC 93-986
Lainhart & Ellinson (2023) FLC 94-166
Muldoon & Carlyle (2012) FLC 93-513
Preston & Preston (2022) FLC 94-108
Rankin & Rankin (2017) FLC 93-766
Rodgers & Rodgers (2016) FLC 93-703
Russo & Wylie (2016) FLC 93-747
Stanford v Stanford (2012) 247 CLR 108
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 203 Date of hearing: 7-9 October 2024 Place: Melbourne Counsel for the Applicant: Mr W. Smith Solicitor for the Applicant: Tfa Legal Counsel for the Respondent: Mr G. Combes Solicitor for the Respondent: Keane Family Law Counsel for the Independent Children's Lawyer: Ms O’Connell Solicitor for the Independent Children's Lawyer: Patford-Smith Legal Services ORDERS
MLC 13139 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR YADAV
Applicant
AND: MS JANGRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
24 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the Children, X born in 2008 and Y born in 2013 and the Mother shall keep the Father informed of any decisions made in relation to decisions made about long-term issues affecting the Children.
2.The Children live with the Mother.
3.The Children spend time with the Father as agreed in writing and:
(a)each alternate Saturday from 4:00pm until 7:00pm; and
(b)any other time as reasonable requested by each Child.
4.Unless otherwise agreed by the parents in writing, changeover will take place at Suburb B Shopping Centre.
5.The Children have telephone communication with the Father on a weekly basis on Tuesday with the call to last for as long as each Child is willing to remain on the call and the Father is restrained by injunction from questioning the Children about their Mother or otherwise speaking about the Mother during the calls and the call will be initiated…
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- AGLC
- Yadav & Jangra [2024] FedCFamC2F 1480
- Case
- [2024] FedCFamC2F 1480
- Decision Date
CaseChat Overview and Summary
The court was required to balance the welfare and safety of the children against the father's desire for increased contact. Given the children's consistent refusal and the history of family violence, the court found that it was not in the children's best interests to increase the father's time to week-about arrangements. Instead, the court ordered a limited and supervised contact regime that aimed to protect the children while also allowing for some level of paternal involvement. The court further imposed restrictions on communication and contact to safeguard the children from potential harm.
In the property settlement, the court addressed the division of assets, including the former matrimonial home, superannuation interests, and other financial holdings. The court ordered the transfer of the former matrimonial home to Ms Jangra, with specific conditions to manage the mortgage and sale in the event of non-compliance. Additionally, the court addressed the division of other assets, ensuring that each party retained their respective superannuation entitlements and other personal property, while severing any joint tenancies and liabilities.
The court's final orders reflected a careful consideration of the children's welfare, safety, and expressed wishes, along with a fair and equitable division of property that took into account the significant disparity in assets between the parties. The court ensured that the children's voices were considered in the parenting arrangements, while also imposing necessary restrictions to protect them from the father's history of violence.
Orders
Orders of the court
MLC 13139 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR YADAV
Applicant
AND:
MS JANGRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
24 OCTOBER 2024
THE COURT ORDERS THAT:
1. The Mother have sole parental responsibility for the Children, X born in 2008 and Y born in 2013 and the Mother shall keep the Father informed of any decisions made in relation to decisions made about long-term issues affecting the Children.
2. The Children live with the Mother.
3. The Children spend time with the Father as agreed in writing and:
(a) each alternate Saturday from 4:00pm until 7:00pm; and
(b) any other time as reasonable requested by each Child.
4. Unless otherwise agreed by the parents in writing, changeover will take place at Suburb B Shopping Centre.
5. The Children have telephone communication with the Father on a weekly basis on Tuesday with the call to last for as long as each Child is willing to remain on the call and the Father is restrained by injunction from questioning the Children about their Mother or otherwise speaking about the Mother during the calls and the call will be initiated by the Children through AppClose or such other electronic means as nominated by the Children.
6. The Children be at liberty to contact the Father by electronic means on their own initiative should they wish to do so and the Father is permitted to respond to the communication initiated by the Children.
7. The Mother is permitted to take the Children overseas for a holiday or to visit family for a maximum of approximately 4 weeks at a time. The Mother is to:
(a) provide the Father with a written itinerary as soon as practicable prior to departure and copies of the travel tickets together with full details of where the children will be staying, including address and contact telephone numbers (“the itinerary”);
(b) The Mother must provide evidence of comprehensive travel insurance for the Children; and
(c) If there are any changes to the itinerary then the Mother is to provide that information to the Father forthwith.
8. The Children’s passports be held by the Mother.
9. Both parents are restrained by injunction from:
(a) using physical discipline;
(b) questioning the children about the other parent and what takes place within that parent’s household;
(c) attending the other parent’s residence without the prior express written consent of the other parent; and
(d) telephoning the other parent without that parent’s prior express written consent.
10. Each parent must keep each other informed in writing only through AppClose in relation to the following:
(a) their current residential address, email address and mobile phone numbers;
(b) all significant matters relating to the health of the Children, including the names and contact details of any health service providers upon whom the Children have attended for any significant assessment/treatment;
(c) details in relation to any significant educational issues;
(d) updates on any significant issues in relation to the sporting and extracurricular activities undertaken by the Children; and
(e) updated in relation to any significant development or other milestones in relation to the Children.
11. The Children’s schools and treating medical practitioners are authorised to release information usually provided to parents to each parent at the requesting parent’s cost.
12. The parties are at liberty to provide a copy of these Orders to the Children’s schools and to any medical or allied health professional treating the Children.
13. The Independent Children’s Lawyer meet with the children to explain these parenting Orders.
Property
14. That within 180 days the parties do all acts and things and sign all documents necessary to transfer to the Wife, all the Husband’s right, title and interest in the real property known as C Street, Suburb B in the State of Victoria (“the FMH”) and more particularly described as Certificate of Title Volume … Folio … at the Wife’s cost (“the Transfer”) with the exception that the Husband is responsible for his own PEXA and conveyancing related costs.
15. Contemporaneous with the Transfer, the Wife cause the mortgage to Commonwealth Bank and registered as dealing number … (“the Mortgage”) to be discharged;
16. In the event the Wife is unable to comply with Order 15 then the FMH is to be sold with the following conditions applying:
(a) the selling agent be as appointed by the Wife;
(b) the Conveyancer/Lawyer appointed in relation to the sale will be as appointed by the Wife;
(c) the method of sale and the reserve/listing price be as agreed and failing agreement as determined by the Wife taking into account the recommendations of the selling agent; and
(d) the proceeds of sale be paid in the following manner and priority:
(i) to pay the agents costs and commission and the conveyancing costs of the sale;
(ii) to discharge the Mortgage; and
(iii) the balance to the Wife.
17. Pending completion of the Transfer/Sale of the FMH:
(a) the Wife have exclusive occupation of the home;
(b) the parties do all acts and things to apply to have the mortgage payments on interest only;
(c) both parties are restrained by injunction from drawing funds from the mortgage;
(d) the Wife pay the mortgage repayments, rates, insurance and other apportionable outgoings associated with the home; and
(e) the Husband be restrained by injunction from attending the FMH without the express written consent of the Wife.
18. Within 28 days from the date of these Orders the parties do all acts and things and sign all documents necessary to:
(a) transfer the Wife’s shareholding in E Pty Ltd to the Husband at the Husband’s cost;
(b) enable the Wife to resign from E Pty Ltd as Director and Secretary; and
(c) remove the Wife as a beneficiary from any trust associated with E Pty Ltd including the E Family Trust, at the cost of the Husband.
19. The Husband is solely entitled to any assets, including bank accounts held by E Family Trust and E Pty Ltd and indemnifies the Wife in relation to any and all liabilities, whensoever incurred in connection with E Family Trust and E Pty Ltd.
20. Unless otherwise specified in this Order and save for the purposes of enforcing any monies due under this or any subsequent Order:
(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;
(b) monies standing to the credit of the parties in any joint bank account are to be divided equally between the parties and the account closed within 14 days from the date of these Orders;
(c) insurance policies remain the sole property of the owner named in the policy;
(d) each party retain their respective superannuation entitlements;
(e) each party 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; and
(f) any joint tenancy of the parties in any real or personal estate is expressly severed.
21. Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within 14 days of being requested to do so
22. If either party refuses or neglects to sign or execute and return a document within 14 days of a written request to do so, then the Registrar of the Melbourne Registry of the Federal Circuit Court and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party (including a client authorisation for PEXA) upon lodgement of such document and the filing of an affidavit of a Solicitor on behalf of the requesting party as to the said neglect or refusal, and the requesting party be at liberty to apply for costs when submitting such an affidavit to the Registrar.
23. All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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