Yadav & Jangra
[2024] FedCFamC2F 1480
•25 October 2024
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Mr Yadav and Ms Jangra married in 2005, separated in November 2020, and were divorced in early 2022. They have two children, X and Y, aged 16 and 11 years old respectively. The children live with Ms Jangra.
Arising for determination are competing applications for parenting and property orders.
The parties rely on the documents identified in their Outlines of Case. Mr Yadav seeks the orders contained in Exhibit A1. Ms Jangra proposes orders be made in the terms identified in her Outline of Case, as orally amended in closing address.
PARENTING
Mr Yadav proposes that the parents make joint decisions in relation to major long-term issues for the children, that they live with Ms Jangra and spend time with him for three nights each alternate weekend, graduating to week about time in 16 fortnights. He seeks to restrain Ms Jangra from taking the children overseas until they are adults.
Ms Jangra proposes that she have sole parental responsibility for the children, that the children live with her and spend time with Mr Yadav each alternate Saturday for three hours, and at other times as agreed between the parties or reasonably requested by the children. She proposes the children communicate with their father on a weekly basis and as otherwise requested by them. She seeks permission to travel overseas for up to four weeks at a time.
The Independent Children’s Lawyer essentially supports the orders proposed by Ms Jangra.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part.[1] The children’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children and each person who has the care of the children (whether or not a person has parental responsibility for the child)
Any history of family violence, abuse or neglect involving the children or a person caring for them (whether or not the person had parental responsibility for them)
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
Ms Jangra deposes to a lengthy history of Mr Yadav perpetrating family violence. Mr Yadav denies that he “ever committed any family violence to” Ms Jangra.[3] Mr Yadav does not respond in his affidavit to the particularised evidence given by Ms Jangra in hers.
[3] Affidavit of Mr Yadav filed 2 October 2024, paragraph 174.
In mid-2022, Mr Yadav pleaded guilty to assault charges of X in 2020. In opening address by his counsel, Mr Yadav put to the Court that he continues to deny the assault. Mr Yadav deposes that he “chose to plead guilty to [the] charge of assault to prevent [X] from going through” the ordeal of having to testify in court against him.[4]
[4] Affidavit of Mr Yadav filed 2 October 2024, paragraphs 50 to 52.
Contrary to the representations made in opening address, in cross-examination, Mr Yadav gave evidence that “the incident did happen”. He “admitted to the incident, the particular incident next to the car”.
Mr Yadav also gave oral evidence that “there was another incident” whereby he “threw a mobile and broke a glass [panel in the] kitchen”. He denied any other incidents of violence.
Despite Mr Yadav’s denials of the multitude of other allegations made against him, he did not challenge Ms Jangra’s evidence of family violence in cross-examination. Given the centrality of family violence in the statutory regime, I am accordingly unable to dispose of the case without making general credit findings, despite the Court’s reluctance to do so.[5]
[5] Carlson & Fluvium [2012] FamCA 32 at [165] to [169]; adopted in Adamson & Adamson (2014) FLC 93-622 at [89] to [90].
Mr Yadav’s oral evidence was given in a generally unhelpful manner. He repeatedly contradicted himself. For example, he denied that he described Ms Jangra as insane to members of her family. He specifically denied that he told Ms Jangra’s mother that Ms Jangra is insane. Inconsistently, he accepted that he wrote the following to Ms Jangra’s mother:
She is very confused and emotionally sensitive now. She cannot differentiate between Fact and fiction and Truth and lies. And that is why we need to keep an eye on her, have to keep listening to her while tolerating her insanity.[6]
[6] Exhibit R2, page 153 of 289.
Aside from inconsistencies in his oral evidence, Mr Yadav required regular re-direction to answer questions. Some questions had to be repeated up to four times before they were answered.
He was asked by counsel for the Independent Children’s Lawyer what he said to Y on a particular occasion. He repeatedly failed to answer the question. Eventually he gave evidence that “So what I say, ‘We both parents love you, we equally love you, and I hope you – you know, love us back equally as well.’ So that’s what I said.”
When he was challenged on whether that was “some sort of constructed story”, he gave evidence that “Exact version is, ‘We both love you, we both love you. It’s fair to expect you love us back equally.’ That’s what I said.”
When I enquired whether that is what he said to engender an improvement in his relationship with his daughter after he had completed courses and developed insight into his parenting, he gave further inconsistent evidence that “I said, ‘I hope you love us’ – I said, ‘I hope you love us equally’.”
Despite an invitation to do so, Mr Yadav made no submission with respect to the inconsistencies in his own evidence.
I formed the impression that Mr Yadav gave his oral evidence in a way that he thought best advanced his case rather than with a primary regard to its accuracy. So much was revealed by his repeated non-responsiveness and the inconsistencies in his evidence.
Whilst Ms Jangra sometimes gave oral evidence in a verbose fashion, she did not contradict herself. Her answers were overwhelmingly responsive to the questions asked of her. There was nothing generally about the way in which Ms Jangra gave her evidence that caused me to doubt its reliability.
Mr Yadav submits that Ms Jangra is an unreliable historian, that she exaggerates, and cannot be relied on as a witness of truth. He refers to her evidence that surgery anticipated for X in 2022 was delayed as a result of Mr Yadav cancelling the family’s private health insurance.
Mr Yadav first points to the fact that records confirm the private health insurance was suspended in 2022 rather than cancelled. I place no weight on that submission in circumstances where Ms Jangra gave unchallenged evidence that she was not an authorised person on the family’s private health insurance policy and was unable to obtain information from its provider.
Mr Yadav next points to hospital records that record X’s insurance status as “public eligible” in early 2022,[7] and the health insurance records that reveal the insurance was not suspended until two months later. The hospital record was not put to Ms Jangra in cross-examination. There is no indication of what the source of the information was. As Mr Yadav ultimately conceded, it does not record that X is on a public wait list, merely that his “waitlist category” is “Elective Category 3 (> 90 days)”.[8]
[7] Exhibit A3, page 59.
[8] Exhibit A3, page 59.
Ms Jangra gave oral evidence that in around mid-2022:
I was anxious because I wanted to know when the next surgery would happen, and [the hospital] said that, "You are not - a public patient, so you should be waiting at the queue." And I kept on emphasising that, "No. We are private patient - can you please check - because the payment was through [insurer], not through Medicare," and they say that the insurance is not there – [insurer] is not there.
….
The waiting list - I was - what the [F Hospital] told me, "You are in the waiting list in the public patient queue." And that was the argument with [F Hospital]. Because from my knowledge, private patients would get the priorities in the queue.
Ms Jangra’s evidence is that she was advised that, contrary to her expectations that X would not be on a public wait list because of his private health insurance, he was on the public wait list. At the time she made those enquiries, X’s private health insurance was suspended. I am not satisfied that the records relied on by Mr Yadav demonstrate her evidence to be unreliable.
Mr Yadav submits that Ms Jangra’s oral evidence that her “AppClose messages are full of his blames and shames and threats” is unsupported by the tendered messages. The first difficulty with the submission is that Ms Jangra’s evidence in that respect was not challenged. When Mr Yadav’s counsel was taken to a particular exchange between the parties, he conceded that he had in fact blamed Ms Jangra in AppClose messages.
The submission then morphed into an assertion that his Counsel was “not aware of any threats in the AppClose messages”. Contrary to that submission, Ms Jangra gives the following unchallenged evidence:
[Mr Yadav] often threatens me with [Ms G] (and the ICL) including for example, in about [late] 2022 and [early] 2023 telling me that if I did not agree with his demands (for example about [sports] and his relative's wedding) he will tell [Ms G] and the ICL and that I am breaching the orders and will be punished including for example messaging through AppClose, "By not letting the children attend the wedding events, you'll be directly defying the Court and all of its judicial officers and the officially appointed Family Expert. I and any person would recommend you NOT to do so if you really care about the children yourself" and "Please note that the ICL and [Ms G] the Court appointed Family Therapist are the extended arms of the Judiciary and their recommendations are serious and decisive ...".[9]
[9] Affidavit of Ms Jangra filed 23 September 2024, paragraph 129.
Mr Yadav also submits that when Ms Jangra says the messages are “full of blames and threats” it “gives the impression that this is the dominant nature of the communication, which it’s not”. I reject the submission. I am not satisfied that Ms Jangra sought to convey that the dominant nature of the communication between the parties was “blames and threats” by her use of the words “full of”.
Mr Yadav points to the purported inconsistency between Ms Jangra’s evidence that the family therapist, Ms G, recommended that she should go to Mr Yadav’s home to put together furniture, and Ms G’s evidence on the topic. I reject the submission. Ms G could not recall whether she had made such a recommendation. That she considered it to sound like an “extreme request” does not establish that she did not make it. Mr Yadav’s submission is not made good by referring to an email sent by Ms G suggesting that the children spend time at Mr Yadav’s home and “be involved in the arrangement of their bedroom”.[10] Contrary to Mr Yadav’s submission, I am not satisfied on the evidence that Ms G did not recommend Ms Jangra be involved in putting together furniture at Mr Yadav’s home. I also note Mr Yadav’s oral evidence that Ms G suggested that Ms Jangra help with arranging furniture at his home.
[10] Exhibit R2, page 104 of 259.
I am not satisfied that Ms Jangra’s evidence is unreliable, exaggerated, or that she is an untruthful witness.
Given the findings I have made with respect to the parties’ evidence, I generally prefer Ms Jangra’s evidence. I accordingly accept her unchallenged evidence in relation to the family violence perpetrated by Mr Yadav.
Mr Yadav initially submitted that I don’t necessarily need to make findings about individual incidents of family violence, although ultimately resiled from the submission. True it is that I am not required to definitively resolve even pivotal factual disputes when assessing the risk of harm to children,[11] however, I consider the resolution of the factual disputes between the parties in relation to family violence to be relevant. In particular, it informs consideration of the views expressed by the children, the nature of their relationship with their father, and his capacity to provide for their needs.
[11] Eastley & Eastley (2022) FLC 94-094 at [18].
I now make findings in relation to Mr Yadav’s use of family violence drawn from Ms Jangra’s unchallenged evidence. Family violence is violent, threatening or other behaviour that coerces or controls a family member, or causes them to be fearful.[12]
[12] Family Law Act 1975 (Cth) s 4AB.
Specific incidents
A few days after arriving in Melbourne in 2005 to live with Mr Yadav, Ms Jangra was eating food at home with her hands. Mr Yadav became angry and told her words to the effect of “You are eating like the stray dogs eat from the roadside dustbin.”[13] When Ms Jangra continued to eat with her hands, he became angrier and threw a thick dinner plate on the floor. It did not break, so he picked it up and threw it into the kitchen where it smashed.
[13] Affidavit of Ms Jangra filed 23 September 2024, paragraph 74.
In 2006, Ms Jangra’s aunt called her to wish her a happy birthday. Mr Yadav and Ms Jangra were in the car. At the request of her aunt, Ms Jangra passed the phone to Mr Yadav. He became instantly furious and screamed at Ms Jangra for giving him the phone without asking him. He threw the mobile phone forcefully on the car dashboard. He pushed Ms Jangra’s head forcefully into the car window causing her pain.
In 2008, Ms Jangra was pregnant with X. The parties were then operating a business. Ms Jangra commenced working for a client. Mr Yadav suddenly dragged back her chair and shook the back rest while shouting and screaming words to the effect of “Why did you ignore my orders?” He shook the chair so hard that Ms Jangra fell to the floor on her back. Mr Yadav continued to scream words to the effect of “It’s your fault. You don’t listen to me.”[14]
[14] Affidavit of Ms Jangra filed 23 September 2024, paragraph 76.
In 2008, Ms Jangra was pregnant and her waters broke. She called the family’s general practitioner who advised her to report to the hospital immediately. Mr Yadav proceeded to prepare his breakfast over the course of approximately an hour. Ms Jangra asked him whether she should call an ambulance as her waters were gushing out. Mr Yadav became angry for rushing him while he was eating his breakfast and threw his bowl of cereal on the kitchen floor causing it to break.
In 2009, X was approximately eight months old. Mr Yadav picked X up and threw him in the air. X landed approximately six to eight feet away and cried.
In mid-2015, Mr Yadav assaulted Ms Jangra by hitting her on the head with an object. She felt pain and numbness, and could not see for a few seconds. Mr Yadav said to her words to the effect of “You can’t even speak English properly. You think you are very smart?"[15] The pain in her head lasted for days.
[15] Affidavit of Ms Jangra filed 23 September 2024, paragraph 82.
In early 2020, Mr Yadav thumped X on the back. He picked up an object and hit X on the back of the head and neck with such force that object broke. X lay on the floor in pain. After the incident, X said to his mother words to the effect of “I hate him. Why is he like this?” Mr Yadav said to Ms Jangra words to the effect of “Why does he argue like this? I have no control when I get angry.”[16]
[16] Affidavit of Ms Jangra filed 23 September 2024, paragraph 90.
In early 2020, Mr Yadav told Ms Jangra that the meal she had prepared did not have enough salt and did not taste good. X said to Mr Yadav words to the effect of “It tastes good. Salt is fine.”[17] Mr Yadav became angry saying to X words to the effect of “Are you ganging up against me with your mother?”[18] He banged his plate on the table so hard that it broke.
[17] Affidavit of Ms Jangra filed 23 September 2024, paragraph 83.
[18] Affidavit of Ms Jangra filed 23 September 2024, paragraph 83.
In 2020, Mr Yadav yelled and swore at X on their way to sports practice. Mr Yadav grabbed his son’s hair and banged his head onto the car boot causing injury to his forehead. X later said to his mother words to the effect of “Thank God I am still alive.” Mr Yadav murmured words to Ms Jangra to the effect of “I lose control when I am angry, why doesn’t he listen to me?” Y said to X words to the effect of “Why can’t you stop going to the [sports] with him? Every time you come home crying. He is dangerous. You should not go with him.” [19] This is the incident for which Mr Yadav entered a guilty plea for assault in 2022.
[19] Affidavit of Ms Jangra filed 23 September 2024, paragraph 91.
In late 2020, after an incident relating to X’s alleged use of his iPad, Mr Yadav yelled words to the effect of “That boy is a liar, disobedient, ruthless. He will never be a good human being.”[20] He subsequently threw his mobile phone at X. X dodged the flying phone. It smashed into an appliance, smashing the glass. Y went to her room and came back with her piggy bank and said to Ms Jangra words to the effect of “Ma, this time use my money to fix the [appliance]. You do not have any money left fixing things that Dad breaks. I can save again later. I feel bad.”[21]
[20] Affidavit of Ms Jangra filed 23 September 2024, paragraph 92.
[21] Affidavit of Ms Jangra filed 23 September 2024, paragraph 92.
In late 2021, Mr Yadav screamed at Ms Jangra and X. He threw a large bowl of food onto the bathroom floor. A piece of the bowl landed on Ms Jangra’s toe causing bleeding. Ms Jangra and the children were scared.
General behaviour
Throughout the parties’ marriage, Mr Yadav called Ms Jangra derogatory names in Country H Language, including (as translated into English by Ms Jangra), “beggar”, “fucked up beggar”, “illiterate”, “uncivilised”, “scum”, “imbecile”, “beast”, “swine”, “ref bitch”, and “venomous snake”.[22] He told her that she was a “useless beggar”, “good for nothing”, “a burden for all”, “useless baggage”, “a non-productive no-brainer”, “a loser”, “cheap”, that she had “no personality”, that she is “a liquid character”. He told her that “without me you would sit on the streets with kids and begging for food”.[23] Mr Yadav told Ms Jangra that she was “unwanted” in her family, and that her family was dysfunctional. He criticised her upbringing and told her he was “trying to make [her] a better person”. He told her that her thoughts were “dark like tar”.[24] He called her “dirty”.[25]
[22] Affidavit of Ms Jangra filed 23 September 2024, paragraph 64.
[23] Affidavit of Ms Jangra filed 23 September 2024, paragraph 65.
[24] Affidavit of Ms Jangra filed 23 September 2024, paragraph 65.
[25] Affidavit of Ms Jangra filed 23 September 2024, paragraph 99.
Mr Yadav made comments of that type almost every day. As a result, Ms Jangra felt disgusted, tired and hopeless. She started believing his cruel words and her self-esteem was crushed. She lost confidence.
Mr Yadav accused Ms Jangra of having mental health issues, telling her she suffered from bipolar disorder. He did so as a strategy of intimidation to protect himself from the consequences of his wrongdoing.
Mr Yadav told Ms Jangra that she was a “no-one”, and that he was trying to give her an identity. He took credit for her academic achievements.
Mr Yadav blamed Ms Jangra when the parties were struggling financially, despite himself spending far more than the parties could afford on non-essential things. He controlled everything Ms Jangra purchased.
Mr Yadav deprived Ms Jangra of the ability to choose her own clothes. Despite her wanting to buy a warm overcoat for the Melbourne winters, he told her he would buy her one because she didn’t understand fashion. He did not. When Ms Jangra bought an overcoat two years later, he hid it from her on multiple occasions because he did not like it. Mr Yadav criticised Ms Jangra’s clothing choices and caused her to feel humiliated and low. He crushed her confidence. She gave up trying to choose her own clothes to buy.
Mr Yadav disregarded Ms Jangra’s privacy. On one occasion, he barged into the toilet she was using. He checked the tissue she was holding, and agitatedly said to her words to the effect of “I knew you would scrunch the tissue, you don't even do one thing properly.” After she asked him to leave, he said authoritatively words to the effect of "I knew you would be a scruncher and don't even do one thing properly. You will never be anything in life.”[26] He proceeded to demonstrate to her what he considered to be the right way to use toilet paper. When Ms Jangra subsequently brought the incident up, Mr Yadav told her that she was making up stories and that no such thing had ever happened.
[26] Affidavit of Ms Jangra filed 23 September 2024, paragraph 72.
After years of gaslighting, put downs and abuse, Ms Jangra came to believe that she was worthless and would be on the street begging if she left Mr Yadav.
Mr Yadav yelled and swore at X. He called him “swine”, “dog”, “loser”, “good for nothing”, “stupid” and “hopeless”. He told him “you are stupid and messy like your uncle”,[27] that he would “never succeed in life”, and that he had his “mother’s fickle behaviour”.[28] X was frequently upset with his father and told him he was a bully.
[27] Affidavit of Ms Jangra filed 23 September 2024, paragraph 87.
[28] Affidavit of Ms Jangra filed 23 September 2024, paragraph 88.
Mr Yadav yelled and screamed at Y. She witnessed the violence and abuse Mr Yadav inflicted on Ms Jangra and X. During such incidents, she would run and hide herself under furniture, reporting to her mother that “I feel safe being under the cage and daddy-shark cannot eat me.” [29]
[29] Affidavit of Ms Jangra filed 23 September 2024, paragraph 97.
Mr Yadav controlled the children. He dictated what they could wear, what they could eat and what they could watch on television. He continues to dictate what his children eat. X complained that his father tries to force him to eat eggs during contact visits.
Behaviour after separation
Despite the parties’ separation, Mr Yadav criticises Ms Jangra and seeks to dictate how she cares for the children, including what they are fed and how the housework is to be done. In particular, he sent the following messages to her:
(a)In mid-2022, he wrote: “[X] has become too thin and looks pale as if he is suffering from malnutrition. I think he just has grown too fast. Please keep an eye over his eating. His diet must include 4 eggs and 1 litre of milk per day.”[30]
(b)In mid-2022, he demanded that both children do sports every week “preferably twice”. He wrote: “[X] needs lots of protein, vegetables and fruits at this stage of his development. I’d recommend to have 2-3 Rotisserie Chicken […] and 2-3 […] Free Range Extra Large Eggs […] as part of your weekly shopping. I'd also recommend Baby Spinach 1 Kg […]. Please advise all processed foods e.g. frozen pizza, chicken nuggets, etc., as they are low on nutrients and lots of food preservative chemicals that mess up children's metabolisms...”[31]
(c)In early 2023, he wrote: “[X]'s pillow needs to be changed every second day, and bedsheets every 3rd day… I recommend short hair to [X] to allow more air flow into his scalp…” Later the same day, he wrote “[X]'s cold is taking too long to recover, which confirms this malnutrition issue” and falsely called him “excessively underweight”.[32]
[30] Affidavit of Ms Jangra filed 23 September 2024, paragraph 107(a).
[31] Affidavit of Ms Jangra filed 23 September 2024, paragraph 107(b).
[32] Affidavit of Ms Jangra filed 23 September 2024, paragraph 107(e).
Mr Yadav has arranged for the delivery of food to Ms Jangra’s home without her consent.
Mr Yadav sends frequent and harassing messages to Ms Jangra at all hours. If she doesn’t answer straight away, he sends more. His behaviour causes Ms Jangra anxiety and stress.
Mr Yadav continues to exert emotional pressure on the children. He has said to them words to the effect of “children who do not have father around, become drug addicts,” and “I have taken all the printouts of the email communication with your mother so that if I am not alive, you will see how much I cared for you.” [33] X has been frustrated and upset with his father as a result.
[33] Affidavit of Ms Jangra filed 23 September 2024, paragraph 108.
After Mr Yadav was charged for offences involving family violence in mid-2021, he told the children words to the effect of “Your mother is over punishing me. I did not do anything.” X replied “No one is over punishing you. Are you sure you haven’t done anything wrong with us?” Mr Yadav screamed at him words to the effect of “I can hear your mother talking through you.”[34] Given Mr Yadav’s admissions to two Courts of having assaulted X, his denial of any wrongdoing to the children is an example of what the Single Expert Witness, Ms J, describes as a “failure to fully acknowledge his actions and the impact on the children.”[35] According to her, this failure “invalidates the children’s experience and is a barrier to repairing his relationships with them.”[36]
[34] Affidavit of Ms Jangra filed 23 September 2024, paragraph 109.
[35] Affidavit of Ms J filed 8 October 2023, page 66, paragraph 223.
[36] Affidavit of Ms J filed 8 October 2023, page 66, paragraph 223.
Mr Yadav blamed Ms Jangra for causing X’s medical condition. He has deposed to believing “his condition is indicative of the underlying psychological stress of our separation and [Ms Jangra]’s isolation and behaviour around the children” and “[X] has been forced to comply with his mother's desires and paid the price of developing guilt and negative stress, which ultimately resulted in his recurring soft tissue injuries and pain ...”[37] There is no suggestion in material provided to Ms Jangra from F Hospital that the alleged conduct could be the condition’s cause.
[37] Affidavit of Ms Jangra filed 23 September 2024, paragraph 113.
In mid-2021, Mr Yadav argued with hospital staff when he attended F Hospital while X was admitted for his first surgery to treat the condition. Mr Yadav’s obsessive focus on sports during consultations with doctors caused X to be upset, and to experience stress and guilt.
In mid-2021, whilst X was in hospital recovering from his surgery, Mr Yadav was with X in the absence of Ms Jangra. X reported to her that:
Ma, for those 2-3 minutes he was trying to explain to me that you are mentally sick, your mum and you both have psychosis problems and you cannot make the right decision. He told me 2 to 3 times that you are mentally sick and he hoped you can still be back together. I told him we better not talk about it and whatever decision Ma has made I think Ma took it wisely and we cannot go back. That you wouldn't take this big decision if you were mentally sick. I told him we shouldn't talk about it.[38]
[38] Affidavit of Ms Jangra filed 23 September 2024, paragraph 116.
Despite X expressing a desire for his father not to attend hospital for follow up surgery in mid‑2023, and F Hospital advising him he would not be permitted to attend, Mr Yadav attended the hospital causing a security incident and Ms Jangra and Y being taken to a safe room at the hospital.
In mid-2022, Mr Yadav cancelled Ms Jangra’s car registration. It was not due to expire until later that year. Attempts to challenge this evidence in cross-examination were unsuccessful. Mr Yadav tendered no evidence to disprove the allegation. Given the car was registered in his name, I infer that documents he would either have received or would be able to obtain would not have supported his case.[39] Mr Yadav did not tell Ms Jangra that he had cancelled the registration, with the result that Ms Jangra drove an unregistered vehicle, including to convey the children, for an extended period of time.
[39] Jones v Dunkel (1969) 101 CLR 298.
In late 2023, Y complained to Ms J that her father’s words hurt her. Both children have reported that their father had said to them:
(a)“If you don’t choose me you will go to foster care.”
(b)“If you don’t choose me you will have no house or car and you will be on the streets.”[40]
[40] Affidavit of Ms Jangra filed 23 September 2024, paragraph 42; Affidavit of Ms J filed 8 October 2023, page 62, paragraph 195 & page 64, paragraph 209.
Ms Jangra gave unchallenged evidence that X reported to her that Mr Yadav had said to him:
… you are not aware that the house settlement is done and your mother got the allocation for the social housing and [Suburb K]. So you are moving there. You will be living with the druggies.
Mr Yadav has been violent, threatening, coercive, controlling, and has caused fear in Ms Jangra and his children. His conduct falls within several of the statutory examples prescribed by subsection 4AB(2) of the Act.
Any family violence order that applies or has applied to the children or a member of their family
In late 2020, Victoria Police successfully applied for an interim Intervention Order to protect Ms Jangra and the children from Mr Yadav.
In late 2021, a final Intervention Order was made, by consent without admissions of the allegations, for a period of 6 months.
In mid-2022, Ms Jangra applied to extend the Order, with an interim extension Order being then made in Mr Yadav’s absence.
In late 2022, a final Intervention Order was made protecting Ms Jangra and the children from Mr Yadav for a period of 12 months.
In mid-2023, Victoria Police applied to extend the Intervention Order. A further interim Order was made a short time later. At the final hearing of that application in early 2024, Ms Jangra deposes to deciding not to proceed with the application any further. She deposes to being exhausted from the proceedings and wanting it all to be finished so that parties could move on. That evidence was unchallenged. I prefer it to Mr Yadav’s conclusory evidence without foundation that Ms Jangra withdrew the application “due to a lack of evidence”.[41]
[41] Affidavit of Mr Yadav filed 2 October 2024, paragraph 62.
Conclusions with respect to safety
I accept Ms Jangra’s unchallenged evidence that Mr Yadav “still does not take responsibility for his violence and abuse and the impact his actions had upon [their] children and family.”[42] In cross-examination, he described the two admitted incidents of family violence as being occasions when “I feel I let myself down”. Nothing about the way he gave his oral evidence suggested that he had reflected or gained insight into the effect of his use of family violence on Ms Jangra or the children. That impression is consistent with Ms J’s assessment that Mr Yadav “minimised his actions and spoke about letting himself down rather than considering the impact his behaviour would have had on the children.”[43]
[42] Affidavit of Ms Jangra filed 23 September 2024, paragraph 137.
[43] Affidavit of Ms J filed 8 October 2023, page 66, paragraph 223.
Mr Yadav relied on the following opinion expressed by Ms J as part of her assessment in October 2023:
Through family therapy and the current evaluation, it was established the children’s complaints regarding the father were relatively normative such as that he does not listen, yells and attempts to control activities during visits, and whilst this may be accurate, this does not justify severely limiting the father’s time with the children or excluding the father from a meaningful role in the children’s lives.[44]
[44] Affidavit of Ms J filed 8 October 2023, paragraph 225.
The factual premise underlying the opinion is not established by the evidence before me. I do not consider it to be “relatively normative” for Mr Yadav to threaten the children with foster care, homelessness, drug addiction, to fail to adhere to instruction not to attend the hospital, telling the children their mother is punishing him, denying incidents of family violence to the children despite pleading guilty to having assaulted X and telling X his mother is “mentally sick”. I also do not accept these incidents are isolated as Mr Yadav submits.
I do not accept Mr Yadav has developed and gained significant insight into his behaviour. That is so despite his completion of Men’s Behaviour Change, Tuning into Kids, and Tuning into Teens programs. He completed those courses in mid-2021, and yet subsequently continued to engage in the behaviour towards Ms Jangra and the children that has been considered. He continues to feel entitled to dictate what Ms Jangra feeds the children and how she does X’s sheets despite the parties’ separation.
Whilst it might be that Mr Yadav’s physical violence towards Ms Jangra and the children has abated in the period after separation, he has continued to coerce, control, and cause fear by his behaviour, thus perpetrating family violence on the children and Ms Jangra.
Mr Yadav’s limited insight into his actions and their consequences, his lack of responsibility for his own conduct, his ongoing derogatory and threatening comments, and his failure to modify his behaviour, lead me to the conclusion that the children remain at risk of family violence in his care for extended periods of time. The children have been able to tolerate spending time with him for three to four hours per fortnight since approximately February 2023. Safety plans have been developed for the children’s time with their father with Child Protection workers and counsellors. I am satisfied the children’s safety is promoted by not extending their time with their father, which outcome is consistent with their expressed views.
Any views expressed by the children
During investigations between late 2020 and early 2021, “the children clearly articulated to Child Protection being fearful of [Mr Yadav], described him as being unpredictable and indicated that they were not ready to have contact with [Mr Yadav] due to what they had experienced.”[45]
[45] Department of Families, Fairness and Housing 67Z Response dated 24 May 2021, page 2.
In August 2021, the children were interviewed by Family Consultant L. The children reported they “do not enjoy spending time with their father and would prefer it not occur.”[46]
[46] Child Inclusive Conference Memorandum dated 30 August 2021, paragraph 27.
Between late 2021 and mid-2023, the children and parents attended upon family therapy with Ms G. In late 2022, Ms G reported that “[X] presented with only positive views about his mother and only negative about his father”,[47] and that X “was uncertain if family therapy could be helpful as he was uncertain if his father could change”. Y was “uncertain about positives for her father” and “does not think that her father can change”.[48] She presented as “anxious and wary of speaking openly with [Mr Yadav] in the joint sessions”.[49] In late 2023, Ms G reported that “[Y] continued to present as anxious and distressed, but also angry, at the prospect of spending time with [Mr Yadav].”[50]
[47] Affidavit of Ms G filed 4 September 2023, page 7.
[48] Affidavit of Ms G filed 4 September 2023, page 8.
[49] Affidavit of Ms G filed 4 September 2023, page 12.
[50] Affidavit of Ms G filed 2 October 2024, page 8, paragraph 5(a).
Ms G gave oral evidence that the children were not unequivocal about spending only fairly limited time with their father. She gave evidence that “in that […] session they said that they were ready to think about more time and in the - the wedding discussion they - well, both children were very clear but the boy was the spokesperson - that they would contemplate spending more time with the father and - and co-determined with him about the visits.” Being ready to think about, or contemplating, more time is not an expression of a desire to in fact do so.
The family were assessed by Ms J in mid-2023. She reported that:
[X] does not feel an urgency to meet with his father but is okay for the current arrangements to continue whereby he sees his father for a few hours each fortnight. He would like their time together to be as minimal as possible but accepts that he must spend some regular time together. He is “reluctant” for overnight time to proceed as this was a bad experience previously.[51]
…
[Y] does not want any time with her father and if made to spend more time with him, she will be “even more uncomfortable” when she is already finding their time together “overwhelming”.[52]
[51] Affidavit of Ms J filed 8 October 2023, page 64, paragraph 204.
[52] Affidavit of Ms J filed 8 October 2023, page 65, paragraph 216.
The Independent Children’s Lawyer met with the children in April 2024. It was put to Ms J that X, in a forthright manner, had said “We’re not spending any more time”, “I don’t want to spend any more time with Dad than what we’re doing.” It was also put to Ms J that Y does not want to go at all. The Independent Children’s Lawyer’s Outline of Case refers to Y “crying throughout the meeting”.[53] In opening remarks, she described Y as presenting in a “very distressed” manner, and that the children don’t want to spend overnight time with their father.
[53] Outline of Case filed by the Independent Children’s Lawyer on 4 October 2024.
The children have reported to multiple professionals their experience of their father’s violence, in particular his physical violence towards X, and his continued verbal and emotional abuse of them. Y, in particular, is distressed about the prospect of spending further time with her father.
Ms Jangra deposes that the children still tell her they don’t want to spend time with their father, and they “do not trust or believe he has changed and are scared that he will hurt them”. She deposes that X has said to her words to the effect of: “I cannot leave [Y] alone with him. I know he doesn’t give a shit about [Y]. I can’t trust him.” She also deposes that Y has previously said to her words to the effect of “I do not want to go there. He calls me ‘hostile kid’ as I would not agree with him or stop him from saying something bad about you.”[54] That evidence was unchallenged and uncontradicted. I accept it.
[54] Affidavit of Ms Jangra filed 23 September 2024, paragraph 53.
Mr Yadav gave oral evidence that he had deposed in his affidavit to the children expressing to him that they wanted a “shared set-up” and a final outcome of week about time with him. His counsel conceded there was no such evidence. Mr Yadav’s oral evidence about the children’s views was otherwise incoherent and inconsistent. I do not accept that the children have said to him that they want more time with him than they are currently spending. To the contrary, the evidence is that they wish to leave his care after spending only three or four hours with him, a request he facilitates on every occasion.
Mr Yadav relies on Ms J’s October 2023 report wherein she opines that:
The children are both highly intelligent, though [Y] is socially immature, but it is not recommended that significant weight is given to their views. The children’s views are not independent of those of the mother and the children do not understand that long‑term implications of the severely limited time that they propose to spend with the father.[55]
[55] Affidavit of Ms J filed 8 October 2023, page 68, paragraph 233.
Ms J gave the following oral evidence:
… the nature of enmeshment is that there’s very little clarity in terms of boundaries with the mother. The mother is more like a friend than a parent. They’re emotionally connected. The children feel responsible for her emotional well-being, so there’s very little separation, so this – this is more about it. There’s too much focus on this relationship and being intertwined to even sort of branch out and build these relationships with others because the children are feeling responsible for their mother.
However, Ms J did not accept that the only reason the children do not stay overnight with their father is because Ms Jangra has failed to encourage them to go. She gave oral evidence that the “father does need to take responsibility”, that his “behaviour was inappropriate during the relationship” and there is “substance” to the children rejecting their father to a degree based on that behaviour.
Whatever the aetiology of the children’s views, they are entrenched. X is 16 and Y is 11 years old. They have been expressing similar views about spending time with their father since they were first asked about the topic in 2021. Orders that have been made contrary to those views have not been followed. Mr Yadav is unable to persuade the children to spend the ordered overnight time with him.
Although Ms J recommended arrangements for the children contrary to their expressed views in October 2023, by the time of the final hearing, she resiled from that recommendation. It is now her recommendation that the children spend time with their father in accordance with existing arrangements, as well as time in accordance with their wishes.
In the circumstances, I decline to now place limited weight on the children’s views.
The developmental, psychological, emotional and cultural needs of the children
In October 2023, Ms J opined that:
There are risks to the children's development if the father's relationship with them continues to be anxious. The children present with polarised views of their parents, believing their mother is all good and their father is all bad, and this is contributing to the estrangement from their father. If they continue to be caught in these dynamics, their healthy development will be further compromised. They will likely have limited skills in repairing relationships and their psychological development will be emotion driven rather than based on sound thinking. They are likely to resort to emotional cut‑off, acting out, depression, or further anxiety when faced with relational difficulties.[56]
[56] Affidavit of Ms J filed 8 October 2023, page 24, paragraph 75.
She expanded on that evidence orally, opining that:
Well, obviously, they’re still developing and the – what has been modelled to them has been highly dysfunctional, and that is going to be their template for the future in terms of relationships. So it’s extremely concerning that this has not been resolved because they have not prepared their children with skills to deal with interpersonal difficulties moving forward.
…
… they have not been modelled functional ways of repairing relationships. They’ve been observing their – their parents as emotionally driven in their communication, and so that’s going to be their – the way in which they resolve issues also.
These children are caught in the dynamics between what is described as an enmeshed relationship with their mother, and a violent father. As Ms G opines, the children have felt “emotionally-psychologically caught in the middle between their parents who were still in – in conflict”.
The capacity of each person who has or is proposed to have parental responsibility for the children to provide for their developmental, psychological, emotional and cultural needs
The dynamic in which the children are embroiled is one to which both parents have contributed. In doing so, both have demonstrated a lack of parental capacity. Extensive therapeutic intervention has failed. Ms G gave oral evidence that she sought to support the parents in assuming leadership with their children. They have failed to do so.
Mr Yadav gave evidence that on every occasion of the children spending time with him, “they receive communication” before whispering amongst themselves and asking to go home. Ms Jangra gave unchallenged evidence that she has not initiated communication with the children during their visits with Mr Yadav. I accept her evidence. It is not contradicted by the AppClose messages Mr Yadav deposes to substantiating his claim. I find that Ms Jangra does not initiate communication with the children when they spend time with Mr Yadav.
The Independent Children’s Lawyer put to Mr Yadav what would happen were the Court to make the orders sought by him to collect the children after school on Friday should they then request to go home at 6.00 pm. Mr Yadav gave evidence that:
To be honest, I have to – I have to de-escalate the situation, which I learned very – one of my biggest learning, post-separation, particularly with children. So, in that situation, I will try to – you know, I have to, sort of, like, you know, in a – the – you have to absorb, absorb it, have to have a – I will try a logical conversation with them. If that doesn’t work out, then I will give them a bit of a think time. Then obviously, at one point, even – even after that, they insist, might have to think about other options for de-escalating, such as, you know –if they’re strict.
Mr Yadav has had two years to develop his relationship with his children to the point where they will be prepared to spend overnight time with him. They have done so only on one occasion in February 2023. Ms G gave oral evidence that she did not advise the father to take the children home if they didn’t want to stay with him. Mr Yadav did not challenge that evidence. I reject his evidence to the contrary.
Ms G opined that Mr Yadav’s repeated return of the children to Ms Jangra upon request is demonstrative of a lack of parental leadership. She gave oral evidence that:
I would have expected the father to more appropriately state the expectations in a supportive but firm way to the children about remaining in his care and - and help them codetermine how the rest of the evening and the overnight time would go. I - I think the - the - the message is ambivalent, at - at the very least, or ambiguous that the children will be receiving about being returned to the mother.
Mr Yadav conceded through his counsel that he has not applied his parental authority over the children to persuade them to spend overnight time with him.
There is nothing about Mr Yadav’s evidence generally, or his specific answer to the scenario posited to him by the Independent Children’s Lawyer, that suggests he has acquired the necessary parental capacity to persuade his children to spend ordered time with him. Instead, he continues to blame Ms Jangra for the dynamic, and fails to acknowledge or perceive his own contribution to it. So much reflects poorly on his capacity to provide for the children’s needs.
Mr Yadav made extensive submissions on the question of whether Ms Jangra had done what was required pursuant to the interim Orders to facilitate the children spending all of the ordered time with him. A significant number of submissions focused on authorities that require resident parents to take reasonable steps to deliver children to the other parent. They are irrelevant to the present circumstance of Ms Jangra successfully delivering the children to their father and him voluntarily returning them thereafter. The submissions are consistent with Mr Yadav’s view that Ms Jangra is responsible for the children’s attitude towards him.
Mr Yadav submits that the proposal advanced by Ms Jangra and the Independent Children’s Lawyer will do nothing to change the children’s present unhealthy dynamic. That may be so, but there is no evidence that the proposal advanced by Mr Yadav will have a different effect. As he himself concedes through his counsel, it cannot be said with any confidence that the orders proposed by him would be followed. It is not my role to act as a therapeutic agency, nor to make aspirational directions about how Mr Yadav and Ms Jangra could improve their parenting capacity.[57]
[57] Lainhart & Ellinson (2023) FLC 94-166 at [29].
Also demonstrative of a poor parental capacity, Mr Yadav was unable to reconcile in his oral evidence the contradiction between advancing a position to this Court contrary to his children’s views and his repeated profession of respecting his children’s opinions when they request to be returned to their mother during ordered time with him.
The benefit to the children of being able to have a relationship with the children’s parents, and other people who are significant to them, where it is safe to do so
The children’s interaction with their father during assessment by Ms J was not positive, although she formed the impression that is not how the children would normally behave in his presence. The children sat together and looked down from Mr Yadav. They excluded him from the game they played. Mr Yadav failed to come prepared with activities for the children as had been suggested to him. He made very little effort to engage the children verbally and they never appeared comfortable with him. They did not say goodbye to one another at the end of the interaction.
Ms J opined orally that there is quite a high likelihood that arrangements for the children to spend time with their father would breakdown were he to insist on them staying overnight with him. She gave evidence that:
At the moment, they’re obviously willing to continue with the current arrangements, but if – if this changes or their words are not respected or given weight, they may not be willing to continue with the current arrangements.
I accept Ms J’s unchallenged evidence and find there to be a high likelihood that imposing on the children extended arrangements for time with their father would result in the children refusing to spend any time with him. Were that to transpire, they would not have the benefit of prospectively having any relationship of significance with their father.
Anything else that is relevant to the particular circumstances of the children
The children are not Aboriginal or Torres Strait Islander children.
Parenting Conclusions
Spend time arrangements
At the time of the assessments for Ms J’s Family Report in August 2023, the pattern of the children spending only three to four hours with their father each alternate Saturday, rather than the ordered overnight time, had been in place for approximately six months. Ms J then recommended that the children’s time with their father be increased gradually to three overnights and one mid-week afternoon. She also recommended the continuation of family therapy, and that if time arrangements do not occur as ordered, there be a moratorium on the mother’s time and communication with the children for three months.
By the time of the trial, the pattern of contact had been in place for more than another 12 months. Family therapy had ceased. In oral evidence at trial, Ms J opined that:
… realistically, I believe that without a moratorium of time on the mother’s time, nothing’s going to change. The children – just because it’s ordered, quite clearly with orders in place, they haven’t been followed so it’s just not going to change.
… I don’t believe that [X] will attend just because orders are made.
Although Mr Yadav had filed an Outline of Case seeking a moratorium period, he abandoned that application in opening address.
The Independent Children’s Lawyer suggested to Ms J that orders for the children to spend a longer day period with their father would be futile given the family dynamics. Ms J opined that “I do believe it would be futile unless there’s some significant change in how it goes about, as in it’s not the same pattern where they’re – they’re there.”
Ms J initially suggested a change might be occasioned by restraining Ms Jangra from collecting the children. That suggestion would be of no practical effect given it is Mr Yadav who voluntarily returns the children to their mother. No party sought any order that would have the effect of “prevents the children from returning” as was also suggested orally by Ms J. Even were such an order conceived of, Ms J opined that:
[The children] may become quite distressed because this is an established pattern whereby they expect to return to their – their mother now. So I do see it as being extremely challenging.
Ms J also gave oral evidence that she was concerned that by changing the present arrangement, a large amount of stress for the children might be created.
Ms J opined that the Independent Children’s Lawyer explaining the Orders to the children would have no prospect of creating a change in their attitude in terms of staying overnight. She considered it to be “extreme wishful thinking” to think that changing the orders to after school Friday to before school Monday would make a difference.
The Independent Children’s Lawyer put to Ms J that really the best that could now be done is for the children to spend the current fairly minimal periods of time with their father. She opined that:
Possibly. Because when I wrote the report a year ago, I was hoping that some – that’s why I suggested the moratorium, and now that this has continued for a further year and the children are continually exposed to the push and pull from their parents, it will be having a negative impact on them also. If family therapy has also been a source of distress for them where they’re exposed to the conflict, perhaps with the end of court proceedings, there will be less stress on them, perhaps with the opportunity for the children to increase time, rather than – well, time in accordance with their wishes in addition to whatever is ordered so that there is flexibility that perhaps when the conflict is over, they may seek additional time with their father.
Ms J ultimately accepted in oral evidence that the current arrangement for the children seeing the father is the only situation that’s possible, with the option for the children to add more time.
Whilst I am not obliged to act on Ms J’s recommendation, departure from it would generally require explanation and a demonstration that the matters raised have been properly taken into account.[58] The evidence of suitably qualified expert, based on appropriate foundation, carries substantial weight.[59]
[58] Vigano & Desmond (2012) FLC 93-509 at [79] & [87] and the cases there cited.
[59] Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases there cited.
Mr Yadav submits that the Court ought not adopt a “defeatist attitude to whether parties can actually take reasonable steps to carry out orders”. No authority was advanced in support of the proposition. I am not satisfied that the attitudinal disposition of the Court is a matter relevant to the determination of causes of action pursuant to law. Certainly, it does not overcome Ms J’s evidence that the only situation now possible is for the current arrangements to remain in place, subject to the children having the option to spend further time with their father.
Mr Yadav submits that the “only significant factor” pointing against ordering significant time is that the “making of orders now would be futile”. Having regard to the other conclusions I have reached about the perpetration of family violence, the children’s views and the nature of their relationship with their father, I reject the submission that there is only one significant factor against making orders for significant time. But even were I to accept the premise of the submission, I am not satisfied that making futile orders is in the children’s best interests.
To make orders that will not be complied with leaves open the possibility for further litigation between the parties. These proceedings were commenced in 2020. This is the third time the matter has been listed for trial. Mr Yadav has previously filed, and withdrawn, a Contravention Application. I am not satisfied that it is in the children’s best interests for orders to be made that both the expert opinion, and the extensive history since the making of interim Orders in October 2022, demonstrate would be futile.
Mr Yadav made no submissions with respect to the evidence of his psychologist, Ms M. I place no weight on her recommendations as to what parenting orders should be made given she has not been appraised of significant history in the matter and has met with neither the children, nor Ms Jangra.
In closing address, the Independent Children’s Lawyer invited consideration of the children spending time with Mr Yadav on Father’s Day. In the absence of a clearly defined application to that effect, to which the parties have adequate opportunity to respond, I decline to give further consideration to that informal proposal.
It is common ground between Ms Jangra and the Independent Children’s Lawyer, that the children ought to spend time with their father each alternate Saturday from 4.00 pm until 7.00 pm and such further time as is reasonably requested by the children. I am satisfied such an order is in the children’s best interests.
Parental Responsibility
Mr Yadav proposes that the parents make joint decisions in relation to major long-term issues in relation to the children. Such an order requires the parties to consult each other in relation to such decisions and make a genuine effort to come to a joint decision.[60]
[60] Family Law Act 1975 (Cth), s 61DAA.
Whilst Ms J believed very strongly that such an order should be made, she opined that it could only work if a parenting co-ordinator was engaged. There is no application for such an appointment. Ms J concedes that without a parenting-co-ordinator, the parents would be unable to make joint decisions, and the order would not work.
Mr Yadav initially relied on Ms J’s opinion in support of his application. When the absence of a parenting co-ordinator, and Ms J’s opinion that in that circumstance it could not work, was raised with his counsel in submissions, he simply submitted that it is “a matter for your Honour”. The evidence satisfies me that the parents are unable to make joint decisions in relation to major long-term issues affecting the children. It is not in the children’s best interests to require them to make a genuine effort to do so.
The Independent Children’s Lawyer raised in closing address the prospect that the parents have joint decision-making responsibility for the children’s names. She concedes there is no evidence about the topic. In that circumstance, I am not satisfied that it is in the children’s best interests for their parents to share joint decision-making in relation to their names.
Ms Jangra initially sought an order that she have sole decision-making power for all major long-term issues affecting the children and keep Mr Yadav informed of such decisions. That application was advanced despite her evidence that she seeks to have “sole parental responsibility”.[61]
[61] Affidavit of Ms Jangra filed 23 September 2024, paragraph 148.
In closing address, Ms Jangra’s counsel embraced the possibility of an order being made for sole parental responsibility. That possibility was raised to address the difficulties Ms Jangra referred to in closing address associated with the issue of passports for the children. Each of Mr Yadav and the Independent Children’s Lawyer had opportunities to address Ms Jangra’s changed position, but did not do so.
It is a serious step to deprive Mr Yadav of parental responsibility with which he is invested by law. However, in circumstances where the children will be required to spend only three hours per fortnight with him, and given the entrenched nature of the conflict between their parents, I am satisfied that the only mechanism to ensure that necessary decisions can in fact be made for the children, is for Ms Jangra to have sole parental responsibility for them.
An order for sole parental responsibility in favour of Ms Jangra will permit her to obtain passports for the children without their father’s consent.[62] I am satisfied that such an outcome is in the children’s best interests. Mr Yadav has previously falsely alleged that Ms Jangra has forged his signature on passport applications. It is accordingly unnecessary to make orders requiring Mr Yadav to sign passport applications for the children, or providing for Ms Jangra to give consent in default.
[62] Australian Passports Act 2005 (Cth), s 11.
Other orders sought
Mr Yadav made no submissions with respect to the other relief sought by the parties.
I am satisfied that the orders proposed by Ms Jangra and the Independent Children’s Lawyer for changeover, communication, and by way of injunctions are in the children’s best interests.
I am also satisfied that Ms Jangra ought to be permitted to travel internationally with the children. She has previously, after separation, travelled to visit her family in Country H with the children, and returned. The evidence of her strong ties to Melbourne, including study, work, and the children’s education, was unchallenged, and I accept it.
I am not satisfied that orders for the children to spend extended holiday time with their father are in their best interests. I decline to make orders permitting Mr Yadav to attend school and extra-curricular activities given X’s previous refusal to accept his attendance, and threats to cease sport if his father attends.
Ms G’s evidence that family therapy is no longer beneficial for the children was not the subject of challenge. She gave oral evidence that the therapy had become “increasingly distressing for the children to be exposed to the ongoing disputes and conflicts that family therapy was trying to address in the family therapy sessions.” She opined that further family therapy would expose the children to further conflict and be damaging to them. In accordance with Ms G’s evidence, I am not satisfied that it is in the children’s best interests for family therapy to continue.
Mr Yadav proposes that the parties have liberty to provide a copy of the Orders to the children’s schools and health professionals. I am satisfied such an order is in the children’s best interests to ensure that other agencies and professionals are appraised of the outcome of these proceedings to the extent it is relevant to them.
In the absence of submissions in support of the other relief sought by Mr Yadav, I am not satisfied that other relief is in the children’s best interests. I find no basis to restrict Ms Jangra’s residential location to a radius of 30km as is proposed by Mr Yadav.
The Independent Children’s Lawyer offered to meet with the children to explain the Orders. Ms J considered that such an intervention would be very helpful. In terms of the message that should be conveyed, Ms J gave oral evidence that:
I think they – that recognising the conflict that has been continuing and that it will soon be over, and, therefore, they may not have – they’re very intelligent children, so it is quite – it’s possible to have quite an intelligent conversation about this. That they – to recognise the pressure that they’ve been under and that that’s no longer going to – going to be present. But that their father has been trying to improve himself throughout this process and is always open to additional time, should they wish it, or even involvement in – in some of their other activities and give them a means by which to communicate that with the father. And – and like – and also perhaps keep communication open so that they’re able to communicate with their dad at – at any time.
Given that evidence, I do consider it to be in the children’s best interests for such a meeting to occur, and I will so order.
PROPERTY
Mr Yadav proposes that he pay Ms Jangra the amount of $107,095.47, and that she transfer his interest in the real property in Suburb B to him.
Ms Jangra proposes that Mr Yadav transfer his interest in the Suburb B property to her, and that she transfer her interest in E Pty Ltd to him.
Statutory framework
Pursuant to section 79 of the Act, I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[63] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[63] Family Law Act 1975 (Cth), s 79(2).
Property interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[64] For reasons that follow, I find those interests to comprise the following:
[64] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset O'ship Value C Street, Suburb B Jt $1,000,000 Commonwealth Bank mortgage Jt ($420,648) Outstanding Council rates Jt ($5,801) E Family Trust Jt $5,525 ANZ bank accounts H $9,732 CBA bank account H $734 Other Assets H $200,000 Personal bank accounts W $5,703 Centrelink debt W ($7,606) Total non-superannuation interests $787,639 Super Fund 1 H $271,912 Super Fund 2 H $96,367 Super Fund 3 and unclaimed superannuation W $2,318 Total superannuation interests $370,597 Total property interests $1,158,236
Mr Yadav asserts that the parties are jointly liable for a $30,000 debt to the Australian Taxation Office “for Family Trust”.[65] He deposes in his Financial Statement to having a $30,000 “ATO Tax Debt for Family Trust”.[66] In cross-examination, he admitted no taxation assessment has issued, that the assertion was an approximate figure and that he doesn’t know whether the debt will be $30,000 or some other figure. He suggested that his assertion was based on an approximate number from his accountant. Whilst ordinarily liabilities are deducted from the value of the parties’ assets,[67] Mr Yadav’s evidence about the asserted tax is vague and uncertain. He does not specify the nature of the taxation debt he anticipates may arise. I consider it unjust and inequitable for the anticipated liability he asserts to be deducted in the usual manner.[68]
[65] Mr Yadav’s Outline of Case filed 4 October 2024, page 12.
[66] Financial Statement of Mr Yadav filed 2 October 2024, question 54.
[67] Rodgers & Rodgers (2016) FLC 93-703 (“Rodgers”) at [22] and the cases there cited.
[68] Rodgers at [41]; Biltoft & Biltoft (1995) FLC 92-614 at 82,127.
Ms Jangra asserts that the parties have a joint liability to Council for unpaid rates in the amount of $5,801. Mr Yadav asserts the parties to have no such liability. He nevertheless made no challenge to Ms Jangra’s evidence of the existence of the liability. The rates notice is in evidence. I find no basis to disregard the liability.
Mr Yadav asserts the value of the family trust to be $2,500, whereas Ms Jangra asserts the value to be $5,525. Contrary to Mr Yadav’s assertion, he deposes in his Financial Statement to having a 50% interest in the family trust worth $2,500. That evidence is consistent with the trust being valued at $5,000. There is no particularisation of the basis for his assertions.
Ms Jangra deposes to the value of the trust being $5,525, by reference to the entity’s bank account balance. A screenshot of that bank balance is in evidence. She annexes a screenshot of that balance. Her evidence is unchallenged. I accept Ms Jangra’s evidence with respect to the value of the family trust given its specific reference to the trust’s assets.
Mr Yadav has accounts with the Australia and New Zealand Banking Group (‘ANZ’). He asserts their value to be $6,065. He also has an account with the Commonwealth Bank of Australia (‘the Commonwealth Bank’). He asserts its value to be $869. Contrary to those assertions, he deposes in his Financial Statement that he has “Nil” funds in any bank.[69] He adduces other evidence in support of his assertions as to their balances.
[69] Financial Statement of Mr Yadav filed 2 October 2024, question 37.
Ms Jangra asserts the value of Mr Yadav’s bank accounts with ANZ to be $9,732. She deposes to that balance being calculated by reference to the balance most recently disclosed by Mr Yadav. She asserts the Commonwealth Bank account balance to be $591 by reference to the most recently produced material under subpoena. Her evidence was unchallenged. I accept it. I find Mr Yadav’s bank account balances to be as asserted by Ms Jangra.
Mr Yadav did not pursue assertions in his Outline of Case that his asserted liabilities for legal fees ought be treated as a joint liability and deducted from the value of the parties’ assets.
Mr Yadav sought that his credit card balance of $15,374 be treated as a liability. Ms Jangra opposes its treatment in that way. Mr Yadav adduces no evidence of the circumstances of its accrual. I am accordingly without any evidence as to the reasonableness or otherwise of the liability being incurred. Mr Yadav does not suggest, and I do not find, any proper basis for Ms Jangra to be liable for part of his personal obligation. That would be the case if I included it in the list of assets and liabilities to be divided between the parties.[70]
[70] Rankin & Rankin (2017) FLC 93-766 at [34].
Ms Jangra asserts that Mr Yadav has “other assets” worth $200,000.[71] Mr Yadav asserts he has no such assets.
[71] Outline of Case of Ms Jangra filed 2 October 2024, page 15.
Ms Jangra deposes to not knowing the nature of the other assets. She relies on Mr Yadav’s personal loan application dated late 2021 in which he represents to the Commonwealth Bank that he has “other assets / investments (e.g. shares)” worth $200,000.[72]
[72] Exhibit R2, page 226 of 289
Apart from deposing to have no such interests in his Financial Statement, Mr Yadav gave no evidence on the topic. He did not challenge Ms Jangra’s evidence. He made no submission as to why I should disregard his declaration to the Commonwealth Bank and prefer his evidence to this Court. I have given reasons for generally rejecting Mr Yadav’s evidence. I am entitled to rely on the information contained in his application for finance given his failure to explain its difference with his current evidence.[73] I find, consistent with his declaration to the Commonwealth Bank, Mr Yadav to have other assets worth $200,000.
[73] Fowles & Fowles (2024) FLC 94-198 at [243], quoting Chang v Su [2002] HCATrans 446.
Ms Jangra asserts that legal fees paid by Mr Yadav of $46,417 from the parties’ joint offset account should be added-back. Mr Yadav rejects the assertion. Ms Jangra deposes to Mr Yadav incurring those legal fees for family and criminal law proceedings. The criminal law proceedings are those relating to Mr Yadav’s use of family violence.
Mr Yadav submits there is no evidence those expenses were incurred from a joint bank account. Ms Jangra deposes that “After separation [Mr Yadav] obtained a personal loan and then deposited a large portion of it into our joint account and then used that money in our joint account to pay his legal fees, including for his criminal law proceedings.”[74]
[74] Affidavit of Ms Jangra filed 23 September 2024, paragraph 125.
That evidence does not satisfy me that funds that were otherwise available to the parties were applied to Mr Yadav’s legal fees. His personal loans have been disregarded. It is not the case that failing to add those funds back will have the practical effect of Ms Jangra bearing proportional liability for those fees.[75] I decline to do so.
[75] Kingston & Field (No 2) (2020) FLC 93-986 at [100].
Ms Jangra asserts that her bank accounts worth $5,703 ought be included. Mr Yadav advanced no reason why the asset ought be excluded, as he asserts. I find Ms Jangra’s personal bank accounts to be as deposed to by her.
Ms Jangra deposes to having a Centrelink liability of $7,606. Mr Yadav deposes that he “believe[s [Ms Jangra]] has manipulated Centrelink for financial benefits by withholding critical health information regarding our son, [X]”, going on to depose that he considers she inappropriately received “Carer Payment benefits”.[76] He annexes to his affidavit a letter from Centrelink which he contends supports his assertions. It does not. It reveals that a Centrelink debt accrued for the Financial Year ending 30 June 2021 for overpaid Family Tax Benefit in the amount of $8,040.
[76] Affidavit of Mr Yadav filed 2 October 2024, paragraph 258.
The effect of the debt is that the parties and children had the benefit of Family Tax Benefit beyond that to which they were entitled. I consider it unjust and inequitable for the liability to be disregarded in those circumstances. Mr Yadav pursued no submissions to the contrary.
Mr Yadav deposes to having a superannuation interest with Super Fund 1 worth $271,912. Ms Jangra asserts it to have a value of $268,635 by reference to a balance produced as at 13 September 2024. Nevertheless, she did not challenge Mr Yadav’s evidence as to the current value of his Super Fund 1. I accept Mr Yadav’s evidence which is against his interests.
Ms Jangra deposes to having superannuation interests worth $2,318. Although Mr Yadav did not seek to include those interests, he did not challenge her evidence. I accept it.
Both Mr Yadav and Ms Jangra abandoned their assertions as to the parties’ interests in motor vehicles in opening exchange.
The parties otherwise agree on the identity and value of their other interests in property, liabilities, and superannuation.
Justice and equity
Both parties seek an alteration of their property interests in order to finally determine the financial relationships between them.[77] Implicit in both parties’ requests that the Court make orders is an acceptance that the making of an order would be just and equitable.[78] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[79]
[77] Family Law Act 1975 (Cth), s 81.
[78] Russo & Wylie (2016) FLC 93-747 at [54].
[79] Stanford at [42].
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[80] I am also required to take into account the parties’ contributions to the welfare of the family.[81]
[80] Family Law Act 1975 (Cth), s 79(4)(a)(b).
[81] Family Law Act 1975 (Cth), s 79(4)(c).
At the commencement of the parties’ relationship, Mr Yadav owned a property in Suburb N. Although he gave oral evidence that he had paid out a significant amount of the associated loan, he conceded he had no documents in relation to it. It was put to him that he could not “provide any evidence as to what you brought into the relationship in respect to the house”. He answered “No, I cannot provide evidence”. That oral evidence directly contradicts his written evidence that he had “net worth valued at approximately $195,000, primarily tied to the equity in this property”.[82] On the evidence before me, I am unable to make any findings as to the extent of Mr Yadav’s initial contribution by way of equity in the Suburb N property.
[82] Affidavit of Mr Yadav filed 2 October 2024, paragraph 268.
At the commencement of the parties’ relationship, Ms Jangra deposes to having gold jewellery and about $4,000 in savings. That evidence was unchallenged and I accept it.
The parties sold the Suburb N property in late 2007. They purchased the Suburb B property in 2008 as a vacant lot upon which a house was constructed. The purchase was funded from the proceeds of the Suburb N property, joint savings and a mortgage from the Commonwealth Bank.
During the parties’ relationship, Mr Yadav was the primary income earner. Ms Jangra deposes to him being unemployed for several periods, including approximately 10 months in 2019. Mr Yadav put to her that his work contracts would come to an end and he would have a break. Ms Jangra gave oral evidence that Mr Yadav had lost his job prior to the conclusion of his contract. That oral evidence was not the subject of challenge and I accept it.
During the parties’ relationship, Ms Jangra was employed in various roles, some of which were of relatively short duration.
In relation to non-financial and homemaking contributions, Ms Jangra deposes that:
I was primarily responsible for caring for our children and the household chores including cooking, cleaning, washing, ironing, mowing the lawns. [Mr Yadav] provided minimal assistance but often criticised how I did the household chores. He took on a 'quality control/supervisory role'. He told me it was his job to decorate our home and my job to clean and maintain it.[83]
[83] Affidavit of Ms Jangra filed 23 September 2024, paragraph 174.
Mr Yadav cross-examined Ms Jangra on the topic by contrary propositions being put to her. She denied that Mr Yadav did 50% of the household chores, that he cleaned equally, that he was a habitual cleaner, mopping the floors and vacuuming. She accepted that he sometimes mowed the lawn, and occasionally dropped the children off at school in the morning. She denied that he repaired roof tiles.
Mr Yadav’s written evidence does not particularise the extent to which he undertook the tasks referred to in the previous paragraph. He deposes that:
During our marriage, I was not only the sole income earner but also actively shared the responsibilities of a homemaker with the Respondent. I played an integral role in raising our children, looking after their health, and managing day-to-day tasks such as preparing children’s breakfast and lunch, school drop-offs and pick-ups. I also took on responsibilities such as home tutoring, supporting the children in their extracurricular activities, and performing household chores including cooking dinner, cleaning, and maintaining the house.[84]
[84] Affidavit of Mr Yadav filed 2 October 2024, paragraph 236.
Although his evidence was not the subject of challenge in cross-examination, it does not particularise the extent to which he “actively shared” in the activities. Although his evidence that on a “typical day” he would drop the children off at school[85] was also unchallenged, I prefer Ms Jangra’s evidence in relation to allocation of parenting and homemaking responsibilities. For reasons previously given, I generally prefer her evidence.
[85] Affidavit of Mr Yadav filed 2 October 2024, paragraph 237.
After the parties’ separation in November 2020, Ms Jangra has been overwhelmingly responsible for the care of the children. Mr Yadav did not pay child support as and when it was due, with the result that Ms Jangra did not have those funds available to her at the time when she was required to incur expenses on behalf of the children. As at 20 October 2022, he was in arrears in the amount of $45,032.
After separation, Mr Yadav made payments towards the mortgage on the Suburb B property until June 2022. His submission that he otherwise paid the mortgage and outgoings for the property after separation was not supported by evidence.
Considering the contributions holistically over the whole period of the parties’ marriage from 2005 until their separation in November 2020, and thereafter,[86] I am satisfied that contributions to the parties’ non-superannuation assets ought be assessed at 55% by Ms Jangra and 45% by Mr Yadav. So much reflects a differential between the parties’ contributions regarding those assets in dollar terms of $78,764.
[86] Fields & Smith (2015) FLC 93-968 per Bryant CJ & Ainslie-Wallace J at [168].
I am bereft of evidence in relation to the accumulation of superannuation by the parties during the course of the relationship. In circumstances where no superannuation splitting order is sought by either party, and absent any contention as to how their respective contributions to superannuation ought be assessed, I am unable to do anything other than note the current values of the parties’ respective superannuation interests and that Ms Yadav was essentially employed throughout the parties’ relationship.
Paragraphs 79(4)(d, e, f and g) and subsection 75(2) factors
Mr Yadav is 52 years old. He earns approximately $165,500 per annum as a permanent full time professional. Because of the absence of proposal for a superannuation splitting order, he will retain superannuation interests worth $368,279.
Ms Jangra is 42 years old. She now earns approximately $109,000 per annum as a full time professional. She is also a student. She will retain superannuation interests worth $2,318.
Although Mr Yadav is currently up to date with child support as administratively assessed, throughout the proceedings, he has been in arrears of child support.
Pursuant to my earlier conclusions, Ms Jangra will remain overwhelmingly responsible for the care of the children.
I am satisfied that those factors appropriately result in an adjustment in relation to non-superannuation assets in favour of Ms Jangra of 17.5%. So much will result in a further differential between the parties in dollar terms of $275,674. So much is less than the differential between the parties’ respective interests in superannuation.
Mr Yadav cannot be heard to complain that he will retain a higher proportion of his assets by way of superannuation given his failure to propose any adjustment of the parties’ superannuation interests by way of splitting order.
Property Conclusions
I conclude that an outcome whereby Ms Jangra retains 72.5% of the value of the parties’ non‑superannuation interests and Mr Yadav retains 27.5% of their value is just and equitable. So much equates to an overall differential between the parties’ positions in terms of non‑superannuation assets of $354,438. Mr Yadav will retain superannuation worth $365,961 more than Ms Jangra.
That outcome requires Ms Jangra to retain non-superannuation assets with an overall value of $571,038.
Ms Jangra currently has liabilities exceeding her assets by $1,903. She seeks to retain the Suburb B property with equity of $579,352, and be responsible for the associated outstanding rates of $5,801. That proposal accordingly equates to her retaining non-superannuation assets worth $571,648.
Mr Yadav proposes that he pay Ms Jangra $107,095 and he retain the Suburb B property. He adduces no evidence as to his capacity to retain the Suburb B property were he required to pay Ms Jangra the $572,941 that would be required to achieve, what I have found to be, a just and equitable result. I note that amount exceeds the current equity in the Suburb B property. Even if I were satisfied that he could make such a payment and retain the property, I am satisfied that Ms Jangra remaining the children’s primary carer is a stronger reason for her to keep it.[87]
[87] Preston & Preston (2022) FLC 94-108 at [51].
I am satisfied it is just and equitable for Ms Jangra to retain the Suburb B property, subject to her capacity to refinance the associated loan, along with her existing assets. I reach that conclusion despite the difference of $610, or 0.08% of the value of their non-superannuation assets, between the percentage findings I have made and that outcome.
I find the orders Ms Jangra proposes with respect to the Suburb B property to be just and equitable, including providing for its sale in the event she is unable to refinance the mortgage.
Ms Jangra seeks to restrain Mr Yadav from attending the property without her express written consent. I have a discretion to make such an injunction if I consider it proper to do so.[88] Mr Yadav made no submissions on the topic. Given the family violence I found to have been perpetrated by him, I am satisfied that it is proper to restrain him attending the property.
[88] Family Law Act 1975 (Cth), s 114(1)(b).
Ms Jangra proposes that she transfer her shareholding in E Pty Ltd to Mr Yadav, that she resign as a director and secretary of that company and be removed as a beneficiary from any associated trust, including the E Family Trust. She proposes that Mr Yadav retain any assets of the company and trust and indemnify her with respect to any associated liabilities.
Mr Yadav proposes that the parties do all things necessary to “facilitate the closure of the family trust”.[89] The relief Mr Yadav seeks does not specifically address the company E Pty Ltd in any way.
[89] Exhibit A1, paragraph 65.
To decline to grant the relief sought by Ms Jangra would leave the parties as joint shareholders of a company. So much would be inconsistent with the Court’s duty to, as far as practicable, finally determine the financial relationships between the parties.[90]
[90] Family Law Act 1975 (Cth), s 81.
Ms Jangra deposes that she has suggested to Mr Yadav “to dissolve the trust/company” since separation, but that he has not been agreeable to do so.[91] She also deposes to Mr Yadav continuing to use the entities’ bank account since the parties’ separation. That evidence is unchallenged and uncontradicted.
[91] Affidavit of Ms Jangra filed 23 September 2024, paragraph 164(j).
Mr Yadav deposes to himself having created the family trust. In those circumstances, I am satisfied it is just and equitable to grant the relief sought by Ms Jangra.
Ms Jangra otherwise proposes orders that the parties retain their respective interests in property, indemnify each other with respect to their personal liabilities, and to otherwise give effect to the Orders. Mr Yadav seeks similar orders. Absent submissions on the topic, I prefer the orders proposed by Ms Jangra which are more comprehensive and prescriptive.
I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 24 October 2024
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