Prasad & Stanley [2020] FCCA 3248

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FEDERAL CIRCUIT COURT OF AUSTRALIA

 

Prasad & Stanley [2020] FCCA 3248

 

File number(s): BRC 1678 of 2015

 

Judgment of: JUDGE CASSIDY

 

Date of judgment: 1 December 2020

 

Catchwords:

 

FAMILY LAW – Parenting – where the parents have no capacity to co parent – where the mother lacks the ability to regulate her emotions during conflict – where the mother has been the primary carer for the children since separation – where the eldest child has now self-placed with the father.

 

FAMILY LAW – Property – where parties kept their financial affairs mostly separate during the relationship – where only significant assets comprise of and after acquired real property and a pension fund in the United Kingdom – where no adjustment just and equitable.

 

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 68B, 90SM.

Cases cited:

Bitloft & Bitloft (1995) 19 Fam LR 82;

Stanley & Prasad [2019] FCCA 2752;

Stanford v Stanford (2012) 247 CLR 108.

Number of paragraphs:

181

Date of last submission/s:

22 October 2020

Date of hearing:

19-20 August 2020

Place: Brisbane

Counsel for the Applicant: Mr Drysdale

Solicitor for the Applicant: Hopgood Ganim Lawyers

Counsel for the Respondent: Self Represented

 

 

ORDERS

BRC1678/2015

BETWEEN:                MR PRASAD                         Applicant

AND:                          MS STANLEY                       Respondent

 

MADE BY:                             CASSIDY

DATE OF ORDER:                1 DECEMBER 2020

 

THE COURT ORDERS ON A FINAL BASIS:

 

CHILDREN

 

Parental Responsibility

  1. That the father have sole parental responsibility for the children [the daughter] PRASAD born 16 September 2008 (‘[the daughter]’) and [the son] PRASAD born 30 August 2012 (‘[the son]’ or collectively with [the daughter] ‘the children’) provided that the father:

(a) Give the mother 28 days’ notice of any decision to be made in respect of the children; and

(b) Consider any views expressed by the mother in his decision making.

 

Living Arrangements

  1. That the children live with the father and spend time with the mother during the school term at all times as may be agreed in writing between the parties and, failing agreement, on each alternate weekend from after school on Friday (or 3:00pm if it is a non-school day) to before school on Monday (or 9:00am if it is a non-school day).
  2. That time during the school term will resume after school holidays as though it was not interrupted.
  3. That during the school holiday periods, the children spend time with the parents at all times as agreed between the parties in writing and failing agreement, the children spend the first half of the school holidays with the mother and the second half of the school holidays with the father, and for this purpose:

(a) School holiday periods are calculated as commencing from the day after the last day of the term at the school attended by the child, and concluding on the day before the next school term commences.

(b) The number of nights in each school holiday period is to be used to calculate one half of the school holiday period.

(c) The times that the changeovers are to occur during the school holiday periods are as follows:

(i) In a school holiday period where there is an even number of nights – at 4:00pm on the middle day of the school holiday period; and

(ii) In a school holiday period where there is an uneven number of nights – at 8:00am on the last day of the first half of the school holiday period.

  1. That, in the event that either parent is unable to care for the children personally, that parent will give the other parent the first option to care for the children.

Special Occasions

  1. That on special occasions, the children spend time with the parties at all times as agreed between the parties in writing and, failing agreement, as follows:

(a) In respect of Christmas, with the father from 4pm on Christmas Day until 4pm on the day after Boxing Day in even years.

(b) In respect of Mother’s Day, if the children are not spending time with the mother, then with the mother from 9am to 5pm.

(c) In respect of Father’s Day, if the children are not spending time with the father, then with the father from 9am to 5pm.

(d) In respect of the mother’s birthday, if the children are not spending time with the mother:

(i) if it is a school day, from after school to 6pm; and

(ii) if it is a non-school day, from 9am to 5pm.

(e) In respect of the father’s birthday, if the children are not spending time with the father:

(i) if it is a school day, from after school to 6pm;

(ii) if it is a non-school day, from 9am to 5pm.

(f) In respect of each child’s birthday, with the parent with whom the children are not spending time as follows:

(i) if it is a school day, from after school to 6pm

(ii) if it is a non-school day, from 2pm to 6pm.

  1. For clarity, the special occasion arrangements set out in paragraph six (6) prevail over the ordinary living arrangements set out in paragraphs two (2) to five (5).

 

Changeovers

  1. That, unless otherwise agreed between the parties in writing, changeovers occur in the following locations and manner:

(a) Where possible, changeover occur at the children’s school or any sporting venue for any activity in which the children are enrolled; and

(b) In the event that changeover occurs on a non-school day, then the changeover will be conducted outside Harmony House Contact Centre, located at 13 East St, Town C in the State of Queensland.

  1. That neither parent will attempt to engage in conversation with the other parent at changeover.

 

School and Extra-Curricular Activities

 

  1. That the children attend:

(a) St P—’s Catholic Primary School for primary school; and

(b) upon reaching secondary school, [Catholic] College.

  1. That each parent use their best endeavours to ensure that each child attends the school in which they are enrolled on school days, subject only to illness of the child, family funeral or the like.
  2. That each parent ensure the children attend all extra-curricular and social activities as agreed in writing between the parties during the children’s time with that parent.
  3. That each parent be at liberty to attend parent-teacher interviews and all other activities which a parent would ordinarily attend at school.

 

International Travel

  1. That, pursuant to section 65Y of the Family Law Act 1975 (Cth), each parent be at liberty to travel overseas with the children at all times as agreed between the parties in writing and, failing agreement, provided as follows:

(a) That the travel occurs during such periods as the children are in that parent’s care, except where the travel relates to a family emergency, such as a significant health event of a close family member, in which case the parent may travel for any period of no more than two weeks and must provide the information and documents referred to in subparagraphs (b) and (c) as soon as practicable;

(b) Subject to subparagraph (a), that the travelling parent provides at least 28 days written notice to the other parent of the intention to travel overseas with the children, including:

(i) the approximate departure and return dates;

(ii) the name of the persons who will be accompanying the children;

(iii) the country or countries the children will be travelling to.

(c) Subject to subparagraph (a), that, at least 14 days prior to the departure date, the travelling parent provides to the other parent:

(i) a copy of the children’s itinerary which must include return airfare ticketing;

(ii) the dates on which the children will arrive and depart each country;

(iii) a telephone number and address at which the children can be contacted in each country.

(d) That the children will only travel to countries which have acceded to the Hague Convention on the Civil Aspects of International Child Abduction and are a convention country for the purposes of regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 at the time of the children’s travel.

(e) That the children will only travel providing their travel is consistent with any recommendations or travel advisory warnings that may issue by the Department of Foreign Affairs and Trade such that the children will not travel if any of the following warnings are in place at the time of the children’s travel:

(i) Level 3: Reconsider your need to travel; or

(ii) Level 4: Do not travel.

  1. That the Australian Federal Police remove the names of the following children from the Family Law Watchlist:

(a) [the daughter], born on 16 September 2008; and

(b) [the son] Prasad, born on 30 August 2012.

  1. That, in respect of the children’s passports:

(a) The children’s passports are to be held by the father.

(b) The non-travelling parent is to provide the travelling parent the child’s passport in their possession for the purposes of the child’s travel not less than two days prior to the children’s departure.

(c) The travelling parent will return the passport which is to remain in the non-travelling parent’s possession as set out above at the conclusion of the children’s travel.

  1. That the parties do all acts and take all steps necessary to ensure the children’s passports remain valid with an expiry date no less than 6 months validity at all times with any renewal costs to be shared equally between the parties.
  2. That neither parent will alter the children’s country of residency from the Commonwealth of Australia without the prior written consent of the other parent.

Interstate Travel

  1. That each parent will provide the other parent with at least two weeks’ notice of any interstate travel with the children.

Communication

  1. That communication between the parties in respect of the children occur in writing, except in the case of emergencies, where communication shall occur by text message.
  2. That the parent who does not have the children in their care communicate with the children by telephone, FaceTime or Skype at all reasonable times as agreed in writing between the parties and, failing agreement, between 5pm and 7pm each Monday and Thursday, and, for this purpose, the other parent will:

(a) give the children privacy during their calls;

(b) not listen to the children’s calls; and

(c) not speak on the phone during the calls.

  1. That each parent facilitate any reasonable request of a child to contact the other parent, and facilitate the return contact of any reasonable attempts of the other parent to contact the children while in that parent’s care.
  2. That if either parent changes their contact numbers, home address or email address, they are to notify the other parent within 48 hours of such change.
  3. That these Orders serve as any necessary authority to the children’s treating doctors, schools, extra- curricular activities and the like to the effect that either parent be able to communicate with same and be advised of the children’s treatment and/or progress and obtain reports, newsletters, school photographs and the like at that parent’s cost.
  4. That neither parent shall denigrate the other parent or the other parent’s family or friends to the children or within the children’s presence or hearing, or to any childcare or school provider for the children, and that the parties will ensure that no other person denigrates the other parent or the other parent’s family or friends to the children or within the children’s presence or hearing, or to any childcare or school provider for the children.
  5. That neither parent will discuss adult issues with the children or use the children as a conduit to pass information to the other parent.

Medical Issues

  1. That in the event that a child is injured or otherwise requires medical or hospital treatment, the parent then caring for the child will immediately inform the other parent by text message.
  2. In the event of the father’s hospitalisation while the children are in the father’s care, the father will cause the mother to be informed as soon as practicable.
  3. That the parties will ensure that both parties are nominated as an emergency contact for the children where those details must be provided.
  4. That, in the event that the children require non-emergency medical care, the parties will ensure that the children attend on their regular general practitioner where practicable and comply with all recommendations given by a health provider.

Other Issues

  1. That each party is to be predominantly responsible for the children while the children are in the parent’s care.
  2. That neither parent will allow any other person to discipline the children, except for education providers, child care providers and extra-curricular providers as required.
  3. That the parties be restrained from physically disciplining the children, and neither parent will allow any other person to use physical discipline on the children.
  4. That neither parent will publish information or comment about the other parent to the other parent’s family or on social media, websites, WordPress blogs or the like, and each parent will use their best endeavours to ensure no other person does so.
  5. Pursuant to s68B of the Family Law Act 1975 (Cth) an injunction issue restraining the mother from entering the premises where the father resides from time to time including, — —– Street, Town C in the State of Queensland, without prior written consent obtained through the husband’s solicitors.

 

Dispute Resolution

  1. That if there is a dispute about the children or about the interpretation, implementation or enforcement of these Orders, then the parties shall submit to the following dispute resolution process:

(a) The parent with the complaint (complainant) will provide written details of the nature and extent of their complaint to the other parent (recipient) with a proposal for resolution of the complaint;

(b) The recipient will provide a written response to the complaint within 14 days of receipt of the complaint with which the recipient disagrees, and if there is a disagreement, a counterproposal for a resolution of the complaint;

(c) The complainant within 14 days of the receipt of the recipient’s response will provide written confirmation of whether the complainant considers that there is still a dispute;

(d) If there is still a dispute after sub-paragraph (c), the complainant will contact a Family Relationship Centre or Family Dispute Resolution Centre and the parties will participate in mediation about the dispute with the costs to be shared equally.

 

PROPERTY

  1. That by way of property settlement, each party retain as their absolute property all right, title and interest to and in the property and financial resources in their power, possession or control as at the date of this order.
  2. That the de facto husband be responsible for and meet payment when due of his credit card debts and any other liability in his name and indemnify and keep indemnified the de facto wife from all liability howsoever arising in relation to the same.
  3. That the de facto wife be responsible for and meet payment when due of her credit card debts and any other liability in her name not otherwise dealt with in this Order and indemnify and keep indemnified the de facto husband from all liability howsoever arising in relation to the same.
  4. That:

(a) Each party hereby forgoes any claim that they have to any superannuation benefit belonging to or earned by the other;

(b) All insurance policies become the sole property of the beneficiary named thereunder; and

(c) Each party be solely liable and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Oder.

Spousal Maintenance

  1. That the de facto wife’s application for spousal maintenance be dismissed.

Child Support

  1. That the de facto wife’s application in relation to child support be dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

 

 

REASONS FOR JUDGMENT

 

JUDGE CASIDY

 

INTRODUCTION

 

1 This is an application by Mr Prasad the de facto husband and father for orders in relation to the children and property. Ms Stanley is the de facto wife and mother in the proceedings. The children in this matter are [the son] Prasad born 30 August 2012 (‘[the son]’) and [the daughter] Prasad born 16 September 2008 (‘[the daughter]’ or collectively with [the son] ‘the children’).

 

Material

 

2 I am taking the unusual step of setting out the material relied upon by the parties in this matter.

 

3 The mother was represented at the beginning of the trial. At the conclusion of her case she dismissed her legal team and sought to act for herself.

 

4 A consequence of this was that the mother raised a concern that the material relied on in her case was inadequate. The mother and father agreed that as well as filing written submissions they would file a list of subpoenaed material they relied on. This material has been filed. It is voluminous.

 

The Fathers Material

 

5 The father relied upon the following material:

(a) Further amended initiating application filed 12 August 2020;

(b) Further amended reply filed 28 July 2020;

(c) Affidavit of Mr Prasad filed 12 August 2020;

(d) Financial Statement of Mr Prasad filed 11 August 2020;

(e) Affidavit of Mr Prasad snr filed 12 August 2020;

(f) Affidavit of SM filed 13 August 2020;

(g) Case Outline filed 16 August 2020;

(h) Written submissions filed 2 October 2020; and

(i) Subpoena bundle marked exhibit eight in the proceedings.

 

The Mother’s Material

 

6 The mother relied upon the following material:

(a) Affidavit of [Maternal Grandmother] Stanley filed 14 August 2020;

(b) Affidavit of Ms STANLEY filed 10 August 2020;

(c) Affidavit of Ms STANLEY filed 25 February 2019;

(d) Affidavit of Ms STANLEY filed 14 February 2019;

(e) Affidavit of [Maternal Grandmother] Stanley filed 13 February 2019;

(f) Affidavit of Ms STANLEY filed 12 February 2019;

(g) Affidavit of Ms STANLEY filed 31 January 2019;

(h) Affidavit of Ms STANLEY filed 24 January 2019;

(i) Affidavit of Ms STANLEY filed 21 January 2019

(j) Affidavit of Ms STANLEY filed 24 December 2018;

(k) Affidavit of ———- filed 15 March 2018;

(l) Affidavit of Ms STANLEY filed 12 March 2018;

(m) Affidavit of Ms STANLEY filed 15 April 2016;

(n) Affidavit of Ms STANLEY filed 1 April 2016;

(o) Affidavit of Ms STANLEY filed 8 December 2015;

(p) Affidavit of Ms STANLEY filed 26 August 2015;

(q) Affidavit of Ms STANLEY filed 24 April 2015;

(r) Chronology filed 7 May 2020;

(s) Subpoena Bundle marked exhibit nine in the proceedings;

(t) Bundle of documents marked exhibit ten in the Proceedings; and

(u) Financial Statement filled 21 February 2019.

 

The Father’s Proposal

 

7 The father seeks sole parental responsibility in respect of schooling and medical issues and otherwise the parents have equal shared parental responsibility for all other issues. The father seeks both children live with him and that they spend alternate weekends and half of school holidays with the mother.

 

8 The father has an alternate proposal for [the son] that has the child in a week about arrangement during the school term and half of the school holidays.

 

9 The father nominates the schools the children will attend in his orders and seeks the children be taken off the family law airport watch list.

 

10 The further order sought by the father is an injunction restraining the mother from attending the father’s residence.

 

11 The father seeks that there be no adjustment in respect of property and each party retain the assets and financial resources in their respective possession.

 

The Mother’s Proposal

 

12 In relation to the children’s matter the mother seeks orders that the children live with her and that she have sole parental responsibility for the children. Her proposal is that the children spend each alternate weekend and half of school holidays with the father.

 

13 She has also provided for various special days.

 

14 There are also a series of specific issues.

 

15 The mother seeks that the father pay her $100,000 and otherwise each party be declared to be the owner and entitled to all property in the name or possession of that party. In the mother’s submissions she filed on 22 October 2020 she seeks:

“My instructions for the purpose of these submissions are that Ms Stanley seeks the order as set out in her affidavit, namely, “I am seeking orders that the Applicant pay to me a sum of money that properly reflects the contributions I made during the relationship”.”

 

BACKGROUND

 

16 The father is 62 years old, he was born on 19 April 1958. The mother is 42 years old, she was born on 15 December 1977.

 

17 In 1988 a property at —–Close, Kenton, Harrow, London (‘the London Property’) was purchased in the names of the father, the father’s mother and the father’s father.

 

18 Up until around 2003 the father worked in shops owned by his father. These shops were sold in around 2003. At around the same time the Prasad Children’s Trust was established by the father’s father and stepmother. The father receives 50% of the income of the trust subject to the overriding powers of the trustees.

 

19 The parties met in 2006, and commenced a de facto relationship in around May 2007. They commenced living in the London Property. In 2008 the father executed a declaration of trust confirming that his share of the London Property is and always has been held on trust for his father (the stepmother was now deceased).

 

20 In July 2008 the mother relocated back to Australia. [the daughter] was born in late 2008.

 

21 In around 2009 the father transfers his interest in the London Property to his father. There was no consideration provided to the father for the transfer.

 

22 On 30 August 2012 [the son] was born.

 

23 The final separation was in April 2014.

 

24 The father commenced proceedings in relation to parenting matters on 25 February 2015.

 

25 On 27 May 2015 the parents entered into consent orders which provided in part:

 

(1) That the children live with the mother;

(2) That the children spend time with the father:

(a) For four weeks commencing 1 June 2015 on Monday, Wednesday and Friday from 3:00pm to 5:00pm;

(b) For two Saturdays from 10:00am to 6:00pm and thereafter from 10:00am Saturday to 10:00am Sunday; and

(c) That changeovers were to occur at either school or at the maternal grandmother’s residence with the mother not being present for the changeover.

 

26 By May 2016 after an order on 26 May 2016 the father’s time with the children was each alternate weekend.

 

27 In July 2016 the father had to undergo heart surgery.

 

28 In March 2017 consent orders were made on a final basis in respect of the parenting matter. The parties agreed to an order for equal shared parental responsibility, the children live with the mother and spend time with the father alternate weekends and half of all school holidays with the father.

 

29 In December 2018 [the daughter] ran away from the mother to the father and refused to return to the mother. The mother sought a recovery order on 24 December 2018. The father filed an Amended Initiating Application reintroducing the parenting matters.

 

30 On 23 January 2019 orders were made that [the daughter] remain living with the father.

 

31 The orders of 31 January 2019 provided for [the daughter] to live with the father, [the son] to live with the mother and for the children to spend each weekend together, one with their father and the other with their mother. They were also to spend all the school holidays together, half with each parent.

 

32 The matter was listed for final hearing in relation to both parenting and financial matters on 19 and 20 August 2020. The trial proceeded and at the conclusion of the hearing a timetable for filing written submissions and additional documents that were to be tendered from the subpoena bundle was agree to by the parties.

 

THE CHILDREN’S MATTER

 

Family Violence

 

33 A final protection order was made in the Magistrates Court of Queensland on 25 August 2011 for a period of two years.

 

34 The allegations that gave rise to that order where Ms Stanley was the aggrieved involved physical violence. The police brought the application. The father consented without admission to the order.

 

35 In more recent times on 28 January 2020 police applied for a protection order naming the father as the aggrieved and the mother as the respondent. The children are named on the order.

 

36 The police report records:

 

“The aggrieved added that he then saw the respondent arrive at his house in a car and said “You’re going to get what’s coming to you. I’m going to kill you”. The aggrieved stated that he replied “Can I record that?” and went inside the house from the garage to get his mobile phone. The aggrieved further stated that when he returned to the garage, the respondent entered the garage attempting to get the kids. The aggrieved stated that the children came out and were hysterical, he told the children to go back inside and he asked the respondent to leave. The aggrieved added that the respondent attempted to barge pass (sic) the aggrieved, the aggrieved pushed her so she would not get pass (sic). The aggrieved stated to Police that the respondent fell to her knees as a result of the push and she got up, the aggrieved had pushed the respondent again so she would be outside of the garage. The aggrieved added that their child, [the daughter], had closed the garage roller door and as it got down to half way the respondent grabbed the door in attempt to keep the door up. The aggrieved stated that he tried to keep her hands off the door and the garage door closed. The aggrieved went inside the house. Police observed the children at the address who appeared happy to remain at the address. The children told Police that they observed the respondent at the address consistent with the aggrieved’s version of events.”

 

37 The mother has made an application for a protection order arising out of the same incident.

 

38 These matters are ongoing.

 

39 I can accept from the police report that the children witnessed the incident and corroborated the father’s version of events.

 

The Parents Capacity to Co Parent

 

40 The mother and father in this matter both concede that they are unable to make joint decisions in relation to the children’s long term welfare and development.

 

41 The mother seeks sole parental responsibility and the father seeks sole parental responsibility in relation to medical and educational decisions.

 

42 This dispute has a long history with the first lot of litigation in relation to the children settling in March 2017 after two years of litigation. The children’s matters came before the Court once more in January 2019.

 

43 I note an example of the parents inability to co parent and make child focused decisions is the issue of where [the daughter] is to attend high school in 2021.

 

44 The father sought to enrol [the daughter] at [Catholic] College. These emails are example of the conflict:

 

“From: Ms Stanley <w——–@hotmail.com>

Sent: Wednesday, 21 August 2019 6:22:53 PM

To: Mr Prasad <Prasad—-@hotmail.com>

You should stop being an absolute narcissistic fucking cunt then and continuing to drag me through court while financially crippling me and abducting my kids!!!

Like you said will wait (sic) and see what court decides – that should only be another 5 fucking years! HA

AMAZING where you have been for the last 5 years of [the daughter]’s life. Perhaps I should send you the screaming videos of her begging to see you and you refusing?????

It’s fucking laughable I send you emails that you can’t be bothered to reply to in regards

1 Subpoena Tender Bundle of Mr Prasad (Exhibit 8) at page 86.

to the children’s health and schooling and holidays etc.

But now your (sic) getting worried????

FUCK YOU

I’m in the process to the court, yet again asking for an urgent application as this is beyond a fucking joke!!

From: Ms Stanley <w——–@hotmail.com>

Sent: Monday, 23 September 2019 2:51 PM

To: Prasad—-@hotmail.com; Alison Ross; A–paents2 Mr Prasad (snr)

Subject: No Communication

No communication about school holidays????

I want to take the children to Bali in December for my friends 40th.

I hate (sic) written so many times to your useless lawyer who refuses to get back to me.

You say you are worried about court costs then force me to go to court just to take my children on holiday!!!!!

Remove the travel ban.

And what the fuck is happening about court???

When is the god dam trial????

[the daughter] was meant to have interview for [Catholic] that is NOT happening!

Ms Stanley < w——–@hotmail.com>

Tue 22/10/2019 4:52 PM

To: Carolyn Wyers <Carolyn.wyers@bne.catholic.edu.au>

Cc: pra—-@hotmail.com <pra—-@hotmail.com>

Hi,

Unfortunately we can not (sic) accept it at this time.

We need to wait until the court application from Mr Prasad is finished.

I should have been informed by the children’s father of the interview, but I was not.

Regards

[the mother]”

 

45 Furthermore the mother has home schooled [the son] on two occasions where the father opposed this.

 

46 The first occasion was in early 2019 when the mother unilaterally decided that [the son] would be home schooled [the son] did not attend school for the first two weeks.

 

47 [the son] has been home schooled for most of 2020. He did not return to school when schools reopened in Brisbane after the closures of face to face learning due to the COVID-19 pandemic.

 

48 The father was and is opposed to the child being home schooled. The decision to home school [the son] is a unilateral one by the mother.

 

49 I also note there have been significant disputes in relation to the children’s medical issues.

 

50 I consider these parents have absolutely no capacity to co parent these children. This is an entrenched high conflict relationship between these parents.

 

[the son]’s Home Schooling/Health

 

51 The father’s counsel made submissions in respect of [the son] continuing to be home schooled.

 

“122. The Mother is currently homeschooling [the son], and proposes to continue to do so. The Father opposes the homeschooling of [the son] by the Mother and seeks orders that [the son] be re-enrolled and attend school at St P—’s, where he attended prior to the Mother’s unilateral action in removing him from the school to home school him in the middle of this year, in breach of the final order.

 

  1. The Mother states: “Any information in the family report relating to [the son]’s education is no longer relevant as he is now homeschooled. The main reason that he is now homeschooled is due to his anxiety.”

 

  1. In support of that position the Mother purports to rely on a special needs assessment completed by Dr J.

 

  1. The Court should reject the report of Dr J as providing any evidentiary support for the need for [the son] to be homeschooled.

 

  1. The Medicare Patient History records for [the son] showed that he consulted Dr J in September 2016 and January 2017 and thereafter did not see Dr J until 22 May 2020. On the occasion of the consultation on 22 May 2020, Dr J provided a report which states:

 

“22-5-2020

THIS IS TO CERTIFY THAT

Due to several high risk family members mast (sic) [the son] Prasad is advised to receive homeschooling for the purpose of social distancing in order to protect these several family members who are vulnerable in the current COVID-19 pandemic until 10/07/2020 inclusive and then to reassess the situation.

 

Dr Peter J”

 

  1. The Mother did not seek to rely on any Affidavit material by Dr J. The Medical Statement Special Needs Student dated 24 July 2020 is a document for a purpose of obtaining Centrelink benefits.
  2. In section 7 of the report (page 3 of 6) the medical diagnosis is stated as being anxiety, separation anxiety situation distress with Family Court. It is stated that the length of time the student has presented with this condition as being since January 2019.

 

  1. That can only be information that has been provided by Dr J by the Mother, in circumstances where Dr J had not seen the child since January 2017. As to the purported anxiety situation distress from the Family Court, that is a matter that will have dissipated following the conclusion of these proceedings in any event.

 

  1. Further, in relation to the benefits or otherwise of homeschooling, [the family report writer] said:

“Do you have any particular expertise in the benefits or otherwise of home schooling?—Not from an educational perspective. But certainly from a psychosocial perspective, what we know is the children who are already dealing with outside stressors certainly benefit from the opportunity to have involvement and oversight from people outside of the home. I know that [the son] had some adjustment issues initially to prep- Ms Stanley talked about that – but that he had then adjusted quite well. When he had his interview with me, he spoke very positively about school, and I know that the mother had indicated a little bit of anxiety-type concerns for [the son]. And that, from a psychosocial perspective, would suggest that those opportunities for him to be engaged with peers and to be supported to learn that resiliency would be more important than other children who don’t have those anxieties.”

 

  1. The reports from the school do not support a finding that [the son] is not coping with school. It is the school’s position that [the son] would benefit from engaging in traditional schooling.

 

  1. The Mother has failed to place before the Court any cogent evidence whatsoever which would cause the Court to consider it appropriate for him to be homeschooled by the Mother.”

 

52 I accept those submissions and I intend to order that the child return to St P—s School rather than continue with home schooling.

 

53 I am fortified in coming to that decision by reviewing [the son]’s year one report.

 

54 The “Five Keys to Success” demonstrate he was managing well at school:

Confidence

Demonstrates the ability to try something new or challenging. Has a ‘have a go’ attitude and understands that making mistakes is an opportunity for learning. G

Persistence

Demonstrates the ability to persevere and has a ‘never give up’ attitude even when tasks seem difficult. C

Organisation

Is goal and improvement focussed. Plans ahead and cares for belongings so that work is completed on time and to a high standard. C

Getting Along

Helps others in the classroom or playground. Is friendly, co-operative, listens to others, and is a positive group member. C

Resilience

Demonstrates the ability to persevere and has a ‘never give up’ attitude even when tasks seem difficult. G

 

55 The “General Comment” supports the conclusion [the son] should return to a classroom rather than continue home schooling:

 

“General Comment

[the son] has worked extremely hard over his Year 1 learning journey to become a confident and resilient learner that believes in himself. He stepped up as a mentor to others, teaching them patience and understanding. After days absent, [the son] does take time to find his place and voice within the classroom, however became more confident in this process over the year.”

 

The Father’s Health

 

56 The mother in her written submissions argues the father’s capacity to care for the children is a central issue in this case.

 

57 I note:

 

“112. Mr Prasad is 62 years of age. He has suffered from and continues to suffer in several instances from a variety of medical conditions. I refer your Honour to Ms Stanley’s Tender Bundle at pages 90-91, 106, 128, 131, 137, 151

  • On about 17 July 2016 he had heart surgery for a triple by-pass.
  • In 2017, he was diagnosed with Type 2 Diabetes
  • In 2019 he was diagnosed with rotator cuff injury and bursitis.
  • He suffers from GORD, a reflux disease. I refer Your Honour to page 106 of Ms Stanley’s Tender Bundle wherein it is recorded that Mr Prasad informs Dr M of a “recent alcohol binge”.
  • In October 2019, he was diagnosed as suffering from Bell’s Palsy which manifested itself in a right-sided facial droop, slurred speech and altered

vision: (see page 151)

  • There are two letters / notes from his treating doctor, Dr —- —– (see pages 128 and 131). They appear to have been brought into existence for the purposes of court proceedings. The first is a letter “To whom it may concern” dated 21 February 2019 (a few days before the initial property hearing was set down for final hearing) lists the above conditions as well as asthma, hypertension, anxiety and depression. It would seem that the point of the letter is to ensure the matter would be heard 4 days later, “It would benefit him medically to have this matter resolved at earliest time”. As we know, the matter was not reached on that day.
  • The second note from Dr M occurs in a patient health summary dated 23 July 2020, not long before the matter came before Your Honour for final hearing. It reads as a note of support for the upcoming hearing as “His various medical conditions are all stable and would in no way preclude his ability to care for his children”.
  • As to his ability to care for his children with these various medical conditions, Ms [Maternal Grandmother] Stanley in paragraph 31 of her affidavit says the following “On Monday 13 July 2020, I had been out with [the mother]. At 3.00pm we picked [the son] up from Harmony House, change over point. [the son] got into the car, he stated words to the effect, “[the daughter] has been going crazy and playing with matches. She had cut her clothes and tied him up. I asked where Dad was. He stated, Dad was sick in bed as his medicine made him sick”.”2

 

58 There is no medical evidence before me that would justify a finding that the father’s medical conditions are such that he would not be able to care for the children as the resident parent.

 

59 I note [the family report writer]’s evidence:

“Okay. And also there wasn’t anything about the father’s current medical – he had suffered a heart attack. And there was – in regards to not so much his ability to parent, but that he has long periods of illness.

HER HONOUR: I might just put that in another way, just to try and be fair to you, and ask the question fairly.

MS STANLEY: Yes.

HER HONOUR: The evidence, as I understand it, is that the father had triple bypass surgery in 2016, and is on a number of medications. There’s one that’s for stopping red blood cell clots. That’s called Astrix. There’s one called avanza, which is an antidepressant that he has been on since 2016. Crestor, which is related to high cholesterol. Iscova, which is again related to blood clots. Maxolon, which assists the absorption of avanza and Iscova – and they’re my words. I’m not sure that I’ve got them right. Another one called – something starting with M. Metropol for blood clots and Nexium for reflux. They were the – and I know you don’t have any medical expertise but they’re the medications and they, it seems, relate to the bypass surgery. The mother’s question is given that information about the father’s bypass surgery and

2 Written Submissions of Ms STANLEY filed 22 October 2020 at paragraph 112.

the medication, other than, I suspect, the antidepressant that he takes to maintain that, does that give you any reason to change your views? No, it doesn’t.”

 

60 I do not consider the father’s health precludes him from being the primary carer for these children if it is in their best interest for this to occur.

 

The Mother’s Relationship with the Children

 

The Child [the daughter]

 

61 The mother’s case is that [the daughter]’s allegations against her mother of physical violence are highly likely to have been fabricated.

 

62 The father submits:

 

“26. In respect of [the daughter], the Court will find that, by late 2018, if not before, serious fractures existed in the relationship between [the daughter] and the Mother. Those fractures were illustrated by [the daughter]’s actions in running away, but there is other evidence which points to the difficulties in the relationship, including:

(a) [the daughter]’s comments to the report writer [the family report writer] at paragraphs 70-74, and to the school guidance counsellor;

(b) the contents and nature of the telephone recording of the conversations between the Mother and [the daughter]. The taped conversations, which were played to the Mother in Court, and adopted by her, reveal the Mother speaking to [the daughter] in a manner that could only damage the parent/child relationship;

(c) what the conversations did reveal, it is submitted, was a lack of emotional regulation by the Mother, something the trial judge identified in the Mother’s presentation during and following the playing of the tape recordings during the Mother’s cross-examination.”3

 

63 The mother relies on [the daughter]’s capacity to tell lies based on an incident described by her teacher:

 

“Hi [the mother]

I just wanted to fill you in about an incident today with [the daughter].

I noticed [the daughter] discussing an issue on the floor with friends and approached to see what the problem was. [the daughter] told me that at lunch time she had seen two boys from my room sneak into another student’s tidy tray and take their pens. I spoke to the two boys accused and they were playing on the oval for the entire lunchtime. Again, I spoke to [the daughter] and she then told me it was actually after lunch during learning time. Although I spoke to those children again, they were doing Maths with me during this time. Once again I spoke to [the daughter] and this time she suggested it was another, third student. After speaking to all students accused and going through every student’s bag and tidy tray, [the daughter] became very upset and told me that she had made the story up and actually did

3 Written Submissions of Mr Prasad filed 2 October 2020 at paragraph 26.

not see the incident take place.”4

 

64 The mother also relies on an interview [the son] had with CSSC Town C on 20 May 2019. He said that “Mum has never hit [the daughter]” “Mum only shouts at [the daughter]”.

 

65 [the daughter] alleges the mother has punched, hit, choked, slapped and spat at her. She says:

 

“29. … She has dragged her by her hair, pinned her to the wall by her neck and locked her out late at night and in foreign locations such as the Gold Coast. She has told her she is not wanted, taken back gifts given to her and embarrassed her at school.”5

 

66 [the daughter] told [the family report writer]:

 

“70. [the daughter] describes that Ms Stanley is ‘nice on the outside, mean on the inside’. She particularised that ‘she is nice, but when she loses it, she pushes it. Like from being choked, she put so much pressure I had the throw up’. Since moving to live with Mr Prasad, [the daughter] advises that Ms Stanley ‘has cooled down a bit’ although things between them feel ‘a bit awkward’. Ms Stanley does still yell loudly.

  1. Prior to living with Mr Prasad, [the daughter] advised that each time Ms Stanley ‘tried to hit me’ she would run to her grandmother’s or father’s homes. She described that when Ms Stanley ‘loses it’, ‘you hear her shouting and hitting me. She’s punched me, hit me, choked me twice, she’s grabbed me by the hair’. Regarding the choking specifically, [the daughter] advised that ‘the first time I was hiding because I knew I would get smacked. Mum found me and put me against the wall by my throat and smacked me’. The second time was more recent, and [the daughter] re-enacted Ms Stanley having her arm linked around [the daughter]’s throat standing behind her whilst dragging her towards the car. [The daughter] advised that the pressure led to her vomiting. She clarified this only occurred about one week ago and culminated from an argument they had. It is [the daughter]’s account that Ms Stanley had said she and [the son] could have the Monday off school. [the daughter] subsequently did not want to play something with [the son], and Ms Stanley then immediately said she would have to go to school then. [the daughter] felt aggrieved about this and an argument commenced, leading to the dragging to the car.
  2. At Ms Stanley’s home, [the daughter] tends to feel ‘Worried. Awkward. Frightened, Sad. Kinda angry and stuff’. She reports that she remembers the ‘hitting’ happening from when she was about 8 or 9 years old. It has continued since then.”6

 

67 [the daughter] told the school guidance counsellor —— ———— on 7 February 2019:

“Earlier today Peter and I met with [the father], [the daughter]’s dad. He presented as very reasonable e.g. he didn’t say anything rude or nasty about [the daughter]’s mother. He seems genuinely concerned for [the daughter] and really wants her to be settled, at school, being a kid. He **** take her home because she had happily rejoined class.

I just spoke to [the daughter]. She presented as calm and quietly confident i.e. once we got

4 Exhibit 9 at page 76.

5 Written Submissions of Mr Prasad filed 2 October 2020 at paragraph 29.

6 Family Report of [the family report writer] filed 5 July 2019 at paragraphs 70 – 72.

talking, she very clearly and easily stated the following:

 She was so upset this morning because her mum isn’t meant to take her to counselling appointments.

 Her dad’s the one that takes her and their appointment is next Wednesday.

 She said mum is trying to take her out of school, for appointments, without dad knowing.

 She is in her dad’s care now and just sees mum every second weekend and when she asked how she felt about this arrangement, she said she was very happy with it.

 She has told her dad and maternal grandmother that mum hits her, and they both believe her.

 She said her mum used to get hit when she was a child.

 Mum hits her with an open hand, on the body (back, thighs and stomach) and these sometimes leave a red mark.

 This happens when her mum is frustrated with her or when she is in trouble.

 This happens roughly on a weekly basis.

 It started happening when dad moved out and became worse when she was 8, 9 and 10 years old.

 She got sick of it last year and started running away. 1st (sic) time she went to Karen’s, then next time her dads, and the next time the police came.

 Her mum only hits her, not her younger brother.

 One time she was hiding from her mum when her mum was angry and when her mum found her she grabbed her around the neck and hit her (in 2017 and 2018). This scared her.

 Another time she grabbed her hands so tightly it left a mark.

 She said her mum lies to the government and gets money for saying [the daughter] has ADHD and mental health problems and that she lied to child safety and police about dad slapping her one time, and saying that he had let her see pornography, and said none of this was true. He smacked her once when she was younger.

 She is loving year 5, her class/peers and her teacher.”7

 

68 [the family report writer] expressed the opinion:

“66. [the daughter] was engaging in the interview. She has a frank approach to her communication and her engagement was not indicative of issues of coaching being present.”

7 Subpoena Tender Bundle of Mr Prasad (Exhibit 8) at page 120.

 

69 The department documents records an interview with the school guidance officer Anita:

“Dad always very grounded, presented well and appropriate.

[the mother] has in the past presented as unstable and irrational. This has raised concerns around her mental health and emotional wellbeing.

Biggest problem we’ve had in past was around absences when the children were with mum. Mum reported [the daughter] was anxious in the past around coming to school and a plan was made with the Guidance officer that [the mother] could bring [the daughter] to the GO. This did happen in the past however [the daughter] was happy when [the mother] left the school and confidently attended her class.”8

 

70 I note the interview the Department conducted with [the son] on 30 May 2019. [the son] was recorded as saying:

 “He said that [the daughter] yells at mum.

 He said that mum has never hit [the daughter] in her life.

 He said that the fights happen a lot of times.

 Things are not so good when [the daughter] stays over.

 Mum has pulled [the daughter] by the arm when [the daughter] did not get dressed in time for school and tried to get her into the car in her pj’s (sic) one day.

 He gets scared for [the daughter].

 

71 I do not consider there is sufficient evidence to find that [the daughter] is lying about the incidents she has described to various police, department workers, the school counsellor and [the family report writer].

 

72 The child is clearly aware of adult issues no doubt disclosed to her by her parents but I accept [the family report writer] evidence that there was no suggestion the child had been coached.

 

73 I consider the mother’s relationship with the child was severely compromised and this was the reason she elected to stay with her father. She has remained there since self-placing with the father.

 

74 I consider [the daughter] is at risk of physical and emotional harm in the mother’s care.

 

8 Ibis at page 40.

[the son]

 

75 The mother has been the primary carer for [the son] for the whole of his life. [the family report writer] observed:

 

“111. The sibling relationship between [the daughter] and [the son] is a second and significant consideration. There are current indicators that a continuation of the children living in primarily separate homes will undermine the sibling bonds and further compound the issues of insecurity, conflict and fragility of the family unit. The risk of alignment with each child with the parent they respectively live with and the potential for the children to take on the parents’ disputes and positions will also increase exponentially. Professional literature identifies the enduring emotional resiliency available to children through shared experiences and unity established through sibling relationships. Consequently, the sibling relationship should be a paramount consideration regarding the children’s respective parenting arrangements across the homes.

  1. Primarily, it is assessed that [the son] has experienced Ms Stanley as his primary caregiver and that he relies on her as his baseline sense of emotional security. His own discussions about feeling more familiar in her care developmentally evidences his feelings in this regard.”9

 

76 I consider [the son] is at risk of emotional harm in the mother’s care because of the mother’s inability to regulate her emotions as discussed at paragraphs [77] – [85].

 

The Mother’s Emotional Regulation

 

77 [the family report writer] raises this concern:

 

“102. For the children, this is highly likely to foresee a tumultuous and challenging childhood experience. Additionally, their own capabilities to develop effective conflict resolution and emotional regulation skills will be severely impaired as a result of the examples they are afforded. This is already evident in [the daughter] who demonstrates a low tolerance for managing big emotions and engaging in maladaptive coping skills when she feels under pressure. If Mr Prasad and [the daughter]’s accounts are accurate, there is also a similar behaviour pattern observed between [the daughter]’s emotional responses and her mother’s, indicating that an intergenerational pattern of emotional vulnerability exists.”

 

78 The mother’s exchange with a police officer that is contained as a video in exhibit one was a protracted incident with the child [the son] in the car that demonstrates a complete failure at effective conflict resolution.

 

79 The mother was pulled over for speeding and from there had a lengthy and in my view unnecessary exchange with a police officer.

 

9 Family Report of [the family report writer] filed 5 July 2019 at paragraphs 111 – 112.

 

80 The officer as well as citing the reason for pulling the mother over for speeding asked her where she had been, where she was going and the purpose of her journey. These questions were related to the Public Health Act 2005 (Qld) and the COVID-19 pandemic.

 

81 The mother could have answered the question and gone on her way. Instead she engaged in confrontational exchanges with the police officer over about 30 minutes with [the son] in the car.

 

82 The exchange included the following:

 

POLICE OFFICER: … where have you been, where are you going and what was the purpose of your journey?

MS STANLEY (to the child): Don’t be scared okay.

MS STANLEY: So I have my seven year old son in the car and they’re threatening to arrest me because I won’t say what I am doing in my car. I have given him my name and my address.

Thank you Trevor, thank you everybody for support (giggles) I’m just worried because I have my son here, but anyway, haven’t done anything wrong…

Yeah, Nicholas Stefan, he is refusing to give me his professional indemnity insurance policy number.

Exactly, he’s armed and I’ve got my son here, scares the hell out of me, opens his door, intimidates me. There’s two of them as well, two with guns.

 

83 [the family report writer] evidence about this issue was:

 

“For the children, this is highly likely to foresee a tumultuous and challenging childhood experience.

 

And that’s the parents’ kind of conflict you’re talking about. But what I’m interested in is their inability to perhaps develop effective conflict resolution and emotional regulation skills. With respect to that inability, you say that’s going to compromise the children’s long-term development? Yes, your Honour. What we’re seeing from [the daughter] particularly on the information that I was given around her behaviour – certainly some of that mirroring of an inability to manage big emotions as they come up.

 

Yes? And to then be able to resolve conflict in a constructive way that doesn’t get escalated, that doesn’t become, you know, a big drama. When that then – those skills and – or lack thereof get transferred, for example in a school setting or in a future interpersonal relationship, that’s going to then recreate these difficult positions and situation for [the daughter] and [the son], if he follows in those footsteps, where they’re then going to have a high level of conflict or a lack of emotional connection with a number of people because they cannot form and sustain healthy relationships with other people because they don’t have those foundational skills to manage conflict, which is part of everyday life. And so then we see that there’s high likelihood that they’re going to have difficulties with people in authority, with school, with engaging in more of those high-risk behaviours, particularly in those later adolescent years, because they’re just unable to understand and manage and contain their own emotions when they’re feeling distressed.”

 

84 The extensive emails the mother sent to [the family report writer], which are marked exhibit seven, are another example of this inability to regulate her response to the family report interviews

 

85 I am concerned that the mother’s capacity to effectively manage conflict resolution is compromised. This has the potential to impact the children adversely and creates a risk of emotional harm to the children.

 

LEGAL PRINCIPLES

 

86 The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).

 

87 Section 65D of the Act, subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.

 

88 In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.

 

89 In determining what is in children’s best interests I must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.

 

Primary Considerations

 

90 Turning firstly to the application of the primary considerations set out under ss.60CC(2) and (2A):

“(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”

 

91 The parents are both seeking orders that would have the children spending time with the other parent. There is no doubt there is a benefit to these children having a meaningful relationship with both parents.

 

92 The mother submits the father has not demonstrated a commitment to spending time with the children in the past. This is not the case now.

 

93 The mother sent [the family report writer] a bundle of emails which are marked exhibit seven in these proceedings that set out an example of the father’s failure to spend time with the children:

“What is happening with you? Are you seeing [the daughter] or not?

Had too much to drink am hung over (sic) > wot u want to do (sic)

Seriously??? That’s your excuse

I’ll let [the daughter] know. She has only been waiting since 1am last night!!!!!!”

 

94 However I accept both the mother and the father are now committed to a relationship with the children.

 

95 The mother submits there is a need to protect [the daughter] from a risk of abuse in the father’s care.

 

96 The mother’s statement to the police on 8 May 2018 alleges the father was coaching [the daughter] to make up lies about the other. The mother submits:

 

“84. A further example of Mr Prasad’s influence on [the daughter] is to be found in Ms Stanley’s statement to the Police on 8 May 2018 as recorded on pages 341 to 344 of her Tender Bundle. In that statement, Ms Stanley deposes to [the daughter] being disgruntled at being told to go to bed. [the daughter] telephoned her Father. Ms Stanley says she heard via speakerphone, Mr Prasad say to [the daughter], “we have to play smart, [the daughter], you know I can’t come to Mummy’s house as Mummy will call the police”. He further tried to elicit statements from her by asking, “What’s the matter? What’s mummy done? Has Mummy hurt you? Stuff like that”

 

  1. In that statement, she says that sometime later (paragraph 11) “[the daughter] came into my room about 2 minutes later crying saying that Daddy is out the front”. [the daughter] some minutes later [the daughter] ran outside and Ms Stanley said, “[the father] was standing next to his car which was parked in front of the house”. She said that Mr Prasad “was saying it’s ok [the daughter], you don’t have to live with that psycho anymore”. He then called the police. [the daughter] ran up the street. Ms Stanley followed her. While she was away, Mr Prasad then collected [the son].”

 

97 This is one of a number of events where the children have become involved in adult conflict.

 

98 The father submits the mother has engaged in inappropriate physical abuse and discipline of [the daughter]. I accept this submission as noted as paragraphs [63]-[74] above.

 

99 I accept the children have not made any allegations of abuse against the father.

 

100 The family report confirmed [the daughter] advised:

 

“that Mr Prasad has not hurt her feelings or physically hurt her body.”10

 

101 I accept the mother has not physically assaulted [the son].

 

Additional Considerations

 

102 In this matter I consider the additional considerations that are relevant to be as follows:

 

The Child’s Views

 

103 This consideration is set out in s.60CC(3)(a) as follows:

 

“(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;”

 

104 [the daughter] has expressed a strong preference to remain living with her father.

 

105 [the family report writer] records at paragraph 79:

 

“79. In exploring [the daughter]’s views and wishes, she stated, ‘I really want my brother to come and live with dad. I feel bad saying it, but mum doesn’t be clean and stuff. She wears stuff that looks like it’s gonna (sic) burst. She lets [the son] swear and he always looks dirty’. Regarding her time with Ms Stanley into the future, [the daughter] advised, ‘Well I just don’t want her to hit me, so I don’t know. Sometimes I enjoy the every second weekend but sometimes I just want to stay the day or one night. It depends on mum’s mood’.”

 

106 [the son] also discussed his views and wishes with [the family report writer]:

 

“92. In discussing his views and wishes, [the son] identified he would feel things were ‘unfair’ if he had less time with Mr Prasad than he currently has. Similarly, he would feel things were ‘still unfair’ if he had more time with Mr Prasad than he does with Ms Stanley. [the son] states that his time ‘has to be even. I’d like it even’. He advises that he has mentioned this to his mother, and she has said, ‘Okay, we’ll see with the Court thing’. He has not discussed this idea or any ideas with his father.”

 

Child’s Relationship with Significant Persons

 

107 This consideration is set out in s.60CC(3)(b) as follows:

 

“(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);”

10 Family Report of [the family report writer] filed 5 July 2019 at paragraph 69.

 

108 I have discussed the mother’s relationship with the children at paragraphs [61]-[76].

 

109 I note that both of the children appear to have an appropriate relationship with their father.

 

110 I consider a very important relationship in this matter is the relationship between [the daughter] and [the son]. I discuss this in the following section.

 

111 I note the children’s maternal grandmother gave evidence and was cross-examined. I accept that the paternal grandfather lives in London. These relationships are not significant in my view compared to the relationship the children have with their parents and each other.

Separation of the Siblings

 

112 [the family report writer] in her report at paragraph 111 records:

 

“111. The sibling relationship between [the daughter] and [the son] is a second and significant consideration. There are current indicators that a continuation of the children living in primarily separate homes will undermine the sibling bonds and further compound the issues of insecurity, conflict and fragility of the family unit. The risk of alignment with each child with the parent they respectively live with and the potential for the children to take on the parents’ disputes and positions will also increase exponentially. Professional literature identifies the enduring emotional resiliency available to children through shared experiences and unity established through sibling relationships. Consequently, the sibling relationship should be a paramount consideration regarding the children’s respective parenting arrangements across the homes.”

 

113 Mr Drysdale cross-examined [the family report writer] in relation to this evidence:

 

“You have referred in your – at paragraph 111 to the nature and the strength of the sibling relationship. It is the case, is it not, that that sibling relationship is something that is going to – if it can – will benefit the children for the rest of their lives? Yes. That’s correct. The research talks about the enduring nature of those bonds, and particularly as they come into young adulthood and adulthood. Those enduring bonds, if they’ve been facilitated and supported throughout their childhood, can have very positive impacts on their emotional and psychological wellbeing, and also create them a sense of security in the event that something might happen to one or both of their parents. So it should certainly be something prioritised and nurtured.

Yes. And then you referred to the enduring emotional resiliency available to children through shared experiences. That’s what you’re talking about at paragraph 111, isn’t it? Yes. It is.

And is it also the case that if the bond is – the sibling relationship, if it is negatively impacted through different experiences – for example, as an example, in different households – that results in a negative impact on the relationship. That is something that will have long-term adverse effects for these children? Yes. That’s correct.”11

 

114 Neither parent seeks orders that the children should remain separated as their primary position. The evidence clearly would not support such an outcome.

 

115 I note that the relationship between the children is a significant consideration.

 

The Parenting and the Discharge of Parenting Responsibilities

 

116 In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC. I consider, under this heading, the following paragraphs of s.60CC(3):

“(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;”

 

117 The mother raises a concern the father would not support [the daughter] attending a child psychologist selected by her. The father was opposed to this.

 

118 The mother also submits:

 

  1. Further examples of this are in paragraphs 43 and 44 of this affidavit. Ms Stanley refers to Mr Prasad not spending time with the children in the school holidays. When she sent him an email stating “[the daughter] and [the son] would like to see you, he responded by saying inter alia, “I am not interested in your drivel or demands”. It is submitted that this comment encapsulates his assumed superior (and baseless) attitude to Ms Stanley and his constant failure to bother replying.”12

 

119 The father has been very active in seeking time with the children in recent years.

 

120 The father raises a concern the mother has made unilateral decisions in relation to the children’s schooling that have precluded him from participating in these decisions.

“(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;”

11 Transcript of Proceedings, Prasad & Stanley (BRC1678/2015, Judge Cassidy, 20 August 2020) P-208.

12 Written Submissions of Ms STANLEY filed 22 October 2020 at paragraph 105.

 

121 I accept both parents have fulfilled their obligations to maintain the children.

 

122 The parents have had issues in respect to the father’s payment of Child Support in the past.

“(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;”

 

123 I note the mother’s tertiary qualifications set out in exhibit nine. The mother points out the father has no tertiary qualifications.

 

124 I consider both parents are able to provide for the children’s intellectual needs.

 

125 I have a concern about the mother’s capacity to provide for the children’s emotional needs as discussed at paragraphs [77]-[85]. The mother’s capacity to regulate her responses to any challenge to her is poor and there is a risk this behaviour the mother exhibits will be learned by the children. This creates a risk of emotional harm for these children if they remain in the mother’s primary care.

 

Effect of Any Changes in the Child’s Circumstances

 

126 Section 60CC(3)(d) of the Act requires the Court to consider:

 

“(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;”

 

127 The mother’s proposal would see both children living with her. I do not consider that [the daughter] would accept this position and would likely run away to her father’s care. The arrangements for [the son] would not change.

 

128 The father’s proposal is that both children reside with him. [the daughter] is already doing so and will have no difficulty with that outcome. [the son] has always lived in his mother’s primary care. However a move to the father would see the siblings together which would buffer the change for [the son]. Both parents have an alternative proposal that [the son] live in an equal time arrangement. For the reasons set out at paragraphs [40]-[50] I do not consider this would be a workable arrangement nor would it be in the child’s best interests.

 

Parental Responsibility

 

129 Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.

 

130 Both parents are seeking sole parental responsibility in relation to the children. In the father’s case he has limited it to health and education. The mother’s case seeks sole parental responsibility in relation to all issues.

 

131 I intend to make an order for sole parental responsibility to the resident parent because I consider it is in the children’s best interest.

 

132 These parents have been in conflict in relation to the children since 2014. There have been serious disputes about schooling, the child [the daughter] attending counselling and questions about the nature of the children’s health. The evidence supports a conclusion these parents are not able to agree on long term issues for these children.

 

133 I intend to make an order for sole parental responsibility. As a consequence of that I do not need to consider equal and substantial and significant time.

 

The Social Science of Shared Arrangements

 

134 I have concluded that these parents have absolutely no capacity to co-parent these children.

 

135 This was a concern I had that caused me to ask [the family report writer] to provide the indicia that are normally indicative of a successful outcome for shared care.

 

“I understand that. I still – I saw 113. I would like you to just list off the indicia that are normally indicative of a successful outcome for shared care? Yes. Sure, your Honour. It – it’s good enough communication, your Honour, where the burden of that communication is then not carried by the children. It’s creating opportunities where children are able to freely transition between the homes without that being burdened by conflict or high tensions and hostilities, your Honour, so that they’re not feeling those ongoing stresses every week in that changeover arrangement. It’s the capacity for the parents to hold a – a good enough sense in the other parent’s competency to parent so that we’re not then at risk of ongoing concerns being raised, or welfare checks or – or behaviours like that which – which place the children at ongoing questions and processes about issues of safety. And they’re the key markers, your Honour, that generally support that equal-time arrangement.”13

 

136 I note [the family report writer] gave evidence of why she considered that I might make a shared care order for [the son]:

 

“And can I just ask you one question before I hand you over to the parties. One of your recommendations at paragraph 114 is that [the son] live equally with each parent with the changeovers occurring at school. Can you just give me the indicia that I need to be able to basically tick-off for a shared-care arrangement to work. What are the factors in terms of parenting that need to exist for shared care to work? Yes, your Honour. I have canvassed that a little bit at paragraph 113, noting that in this matter it – it’s not necessarily consistent with the best-practice principles of what we would normally have for shared care – care, your Honour. And I’ve talked about there that these parents have quite entrenched conflict, and they do parent in a very parallel manner rather than the effective co-parenting that would otherwise facilitate good outcomes for children in that arrangement. And so that has been – that has been a consideration in that recommendation, your Honour, where I was needing to balance the sibling relationship as well as just some concerns about whether [the son]’s relationship with his mum and dad was going to be facilitated and – and promoted enough if he lived in a primary-care arrangement with the other parent because of that conflict.”14

 

137 I consider that there is not one single indicator in this case that shared care would be in [the son]’s best interest:

 

 The parents communication with each other is very poor;

 These parents are in constant conflict and have been since 2015;

 The relationship between the parties is hostile; and

 These parents have a very poor opinion of the other parents’ capacity.

 

Conclusion

 

138 I consider the father’s proposal is in the best interests of the children for the following reasons:

 

(1) The siblings will be together;

(2) The children will be less exposed to the mother’s emotional dysregulation that could ultimately cause them to suffer the same problems resulting in emotional harm;

(3) [the daughter] will not be exposed to the risk of physical abuse to the same extent she would be if she lived with the mother;

13 Transcript of Proceedings, Prasad & Stanley (BRC1678/2015, Judge Cassidy, 20 August 2020) P-206.

14 Ibid P-206.

(4) The parents relationship is such that it would not be possible to place the child [the son] into a shared care arrangement;

(5) The children will have one decision maker in relation to health and education issues. These are both areas where there have been significant conflict in the past; and

(6) The child [the son] will return to mainstream schooling. I consider that is in his best interests.

 

The Injunction

 

139 The Family Law Act 1975 (Cth) provides:

 

“(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

(c) an injunction restraining a person from entering or remaining in:

(i) a place of residence, employment or education of the child;

(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”

 

140 Given the events described in paragraphs [35]-[38] where the police were called when the mother attended the father’s home I consider it is appropriate for the welfare of these children to restrain the mother from entering or remaining in the place of residence of the children without the written consent attained through the father’s solicitor.

 

The Recovery Order

 

141 I do not consider it is appropriate to issue a recovery order on the papers to lie in the registry. I will not make that order sought by the father. The mother or father would need to file an Application in a Case if a recovery order is necessary in the future.

 

Holidays and Overseas Travel

 

142 The father seeks orders for holidays and overseas travel. I intend to make these orders. The mother made submissions opposing these orders.

 

143 I consider it is appropriate to remove the airport watch and allow overseas travel for both parents.

 

PROPERTY

 

Introduction

 

144 The father’s case is set out in paragraph 137 of his submissions:

 

“137. The parties here have ended their de facto relationship. However the Father submits that in circumstances where there are no joint assets or joint property requiring separation and division, and having regard to the nature of the assets held by the parties and their contributions to those assets, and the period since separation, to do justice and equity between the parties does not require orders altering the parties’ interests in property.”

 

145 The mother’s case is set out in her submissions:

 

“10. My instructions for the purpose of these submissions are that Ms Stanley seeks the order as set out in her affidavit, namely, “I am seeking orders that the Applicant pay to me a sum of money that properly reflects the contributions that I made during the relationship”.

The Law

146 The law is adequately summarised in the father’s written submissions:

“133. The legal principles in relation to property adjustment orders are well settled. The Court is required to follow a pathway that involves the assessment and determination of the following matters:

(1) what were the assets, liabilities and financial resources of the parties and their values at the time of hearing?

(2) what were the financial and non-financial contributions made directly or indirectly by or on behalf of each party to the acquisition, conservation or improvement of the property of the parties? (S90SM(4)(a)

(3) what was the contribution made by each party to the welfare of the family including contributions made in the capacity of homemaker or parent? S90SM(4)(c)

(4) what is the effect, if any, of any proposed order upon the earning capacity of each party? S90SM(4)(d)

(5) what matters referred to in sub-s.90SF(3) of the Act are relevant and what adjustment, if any, should be made as a result of these factors? S90SM(4)(e)

(6) have there been any other orders made affecting a child or either party and is child support payable or likely to be payable in the future for the children of the marriage?

(7) after consideration of these matters, is it just and equitable to make the actual orders?

  1. Steps 2 and 3 are generally considered the one step, namely the “contributions”. Steps 4, 5 and 6 often inter-connected considerations and are usually considered as one step loosely described as the “s90SM(3) factors”.
  2. Section s90SF(3) of the Act provides that a court (which in this case is the arbitrator) should not make an order for property settlement unless it is satisfied that it is just and equitable to do so. A Court’s power to make an order altering the parties’ interests in property is conditional upon the Court having found that it is just and equitable to make such an order; the just and equitable requirement permeates the process in which the Court is engaged.
  3. As the High Court said in paragraph 42 of Stanford v Stafford (sic) (2012) 247 CLR 108:

“[i]n many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of a choice made by one or both of the parties, the husband and the wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.”

 

The Property Pool

 

147 The property pool was not explored in cross-examination. The trial proceeded on children’s issues only for the most part.

 

148 I am left to deal with the property matter on the papers.

 

149 The mother’s asset pool is set out in the “Balance Sheet” in her outline of submissions:

Balance Sheet (as at February 2019)

 

ASSETS                      Applicant’s Value                   Respondent’s Value

1 Applicant’s beneficial ownership of his interest in —–Close, Kenton, Harrow, Middlesex, UK                   Denies beneficial ownership                   E 600,000

2 Respondent’s ownership of her property at 18 R Street Town C South   If Applicant accepts Respondent’s value:      320,000           E 320,000

3 Applicants funds in Heritage bank              2,209               2,209

4 Applicant’s funds in Halifax bank               780                  780

5 Applicant’s 2006 VW Golf                         E 4,000            4,000

6 Applicant’s household contents                  E 2,500            2,500

7 Respondent’s 2016 Kia Picanto                  8,000

8 Respondent’s household contents               2,000

Total                                                               339,489           939,489

9 Applicant’s UK superannuation                  212,890           212,890

10 Respondent’s Q superannuation                0

Total                           552,379                       1,152,379

 

LIABILITIES

11 Applicant’s alleged tax debt 192 *Not agreed

12 Applicant’s alleged debt to his father for living expenses 29,407 *Not agreed

13 Applicant’s debt to his father for legal fees 138,000 *Not agreed

14 Applicant’s alleged debt to the Prasad Children’s Trust 85,877 *Not agreed

15 Respondent’s HECS debt 27,289

16 Respondent’s Student loan 34,351

17 Respondent’s debt to her grandparents 47,000

18 Respondent’s Westpac Visa 5,000

19 Respondent’s Unitywater debt 6,100

20 Respondent’s SPER debt 3,500

21 Respondent’s Government Solar loan 4,500

22 Outstanding school fees 1,500

23 Optus, Vet, Vully 2,150

Total liabilities 253,476 131,390

 

Net Asset Pool 298,903 1,020,989

 

FINANCIAL RESOURCES

24 The Respondent and his sister are equal beneficiaries of the Prasad Children’s Trust. The AAT noted in April 2016 that this trust had invested funds with a market value of GBP 1,503,907 or AUD 2,746,363. The Trustee is the applicant’s father

150 The father’s asset pool is set out in the “Property Pool” in his outline of submissions:

 

Description                 Owner             Estimated Value

18 R Street, Town C   Mother            E$300,000.00

Less: family member loan for mortgage

In the Mother’s financial statement filed on 5 August 2020 (Mother’s financial statement), the Mother asserts that the amount of $30,000 is owed by her by way of a personal loan, to whom is unclear. The Father anticipates that this is the amount previously referred to the Mother as being advanced by her grandparents for her purchase of the Town C South property. Despite directions to provide disclosure and subsequent requests by the Father, no disclosure has been provided by the Mother to suggest any such funds were, in fact, advanced to the Mother or in respect of the amount that the Mother asserts remains owing where she deposes to repayments having been made. It is the Father’s position that the purchase was funded with the balance of bank accounts held in the children’s name at separation of which the Father had no knowledge. In any event, a subpoena document shows a handwritten letter from [Maternal Grandmother] Stanley that the amount of $30,000 was a “gift”.

In her oral evidence the maternal grandmother acknowledged that the money was given as a gift but that the Mother later said she wanted to pay it back.      Mother            Excluded

 

Contents – R Street

In the Mother’s financial statement filed on 12 March 2018, the Mother agreed that the value is $10,000. However, in the Mother’s most recent financial statement, the Mother asserts that her contents have a value of $2,000. No disclosure has been made as to the sale or other disposal of any contents.           Mother            E$10,000.00

Furniture and chattels in Father’s possession             Father              E$2,500.00

Heritage Bank account S1 as at 30 June 2020            Father              $797.61

Halifax Bank account x 373 (balance of £3,086.84 as at 30 June 2020 using an exchange rate of £1 to A$1.80)        Father              $5,556.31

Halifax Bank account x149 (balance of £50.58 as at 10 June 2020 adopting an exchange rate of £1 to A$1.80)   Father              $91.04

HSBC account x413 – as at July 2020           Father              $0.00

Commonwealth Bank account x0350 – as at 30 June 2020               Father              $4,505.51

Suncorp Bank (as at 12 February 2019)

In the Mother’s financial statement, the Mother asserts that the value is nil.               Mother $72.75

The amount from the Mother’s inheritance the location of which cannot be identified from the subpoena documents               Mother             $50,000.00

2006 Volkswagen Golf motor vehicle                       Father              E$2,300.00

2019 Kia Picanto motor vehicle

In the Mother’s financial statement, the Mother asserts that the value is $10,000.

Mother

E$12,000.00

Less: debit loan account owing to Prasad Children’s Trust

(at 5 April 2019 the balance is £89,693 adopting an exchange rate of £1 to A$1.80)

Father

-$161,447.40

Less: loans owing to the Father’s Father, Mr Prasad snr, in respect of living expenses

Father

-$31,760.57

Less: loans owing to the Father’s Father, Mr Prasad snr, in respect of legal fees of these proceedings and domestic violence proceedings

Father

-$410,333.00

Less: HECS/student loan debt

In the Mother’s financial statement, the Mother asserts that the value is E$82,000, however, the Mother’s disclosure evidences that the values were $17,289 and $34,351 respectively as at 10 January 2019. In any event, the amounts are a pre-existing debt from prior to the relationship, possibly together with further post separation studies as asserted by the Mother.

Mother

Excluded

Less: Westpac credit card

In the Mother’s financial statement, the Mother asserts that the value is -$5,000. The Mother has not provided disclosure to confirm the manner in which the debt was accrued or what the current balance is. It is noted that the Mother asserted that the credit card had an identical balance in her financial statement filed on 14 February 2019.

Mother

Excluded

Less: Nexus/Certigy Easy Pay Car Loan

In the Mother’s financial statement, the Mother asserts that the value is -$2,000. Despite requested requests, the Mother has not provided disclosure to evidence the current balance. It is noted that the Mother asserted that the loan had an identical balance in her financial statements filed on 12 March 2018 and on 14 February 2019. As the Mother has purchased a new car, it is the Father’s position that this loan must have been repaid.

Mother

Nil/Excluded

Less: Unity Water liability

In the Mother’s financial statement, the Mother asserts that the value is -$8,500. Despite requested requests, the Mother has not provided disclosure to evidence the current balance. Post-separation debt incurred by the Mother.

Mother

Excluded

Less: other miscellaneous liabilities included in the

Mother’s financial statement

  1. Total of $25,000 asserted:
  2. Outstanding lawyer fees;
  3. Optus: $1,000;
  4. Vet;
  5. Vuly;
  6. Total of $6,000 asserted:
  7. Solar loan;
  8. Outstanding school fees.

Despite requested requests, the Mother has not provided disclosure to confirm the manner in which the debts were accrued or to evidence the current balances. The individual balances

Mother

Excluded

cannot be ascertained from the Mother’s financial statement or affidavit filed on 10 August 2020.

QSuper entitlements

The account has been closed. The Mother asserts that the funds were withdrawn on hardship grounds.

Mother

Nil

Total

-$215,717.75

Without Father’s loan to his Father for legal fees

$194,615.25

151 The father’s position in respect of financial resources is as follows:

Description

Owner

Estimated Value

AJ Bell InvestCentre (UK) – £135,937.18 as at July 2020, adopting an exchanging rate of £1 to A$1.80. Pension account in the United Kingdom.

Father

$244,678

Life interest as an income beneficiary as to 50% of the income of the Prasad Children’s Trust (UK) – controlled by Father’s Father and stepmother

Father

Nil capital value

 

The Middlesex Property

 

152 The father has not included this property in his asset pool because his case is he was always a bare trustee for the property during the time he was on the legal title.

 

153 The father’s case is he had no beneficial interest in the property. The arrangement was formalised by a declaration of trust in 2008. In around 2008/2009 the father formally transferred his interest in the London property to his father. He received no consideration for the transfer.

 

154 I do not consider this property can form part of the pool. The joinder of the father’s father was dealt with in Stanley & Prasad [2019] FCCA 2752.

 

155 In the absence of the father’s father as a party no claim can be made by the mother.

Bank Accounts

 

156 There are various bank accounts of the father and mother listed. I intend to use the father’s figures because they are more up to date:

 

Heritage Bank account S1 as at 30 June 2020            Father              $797.61

Halifax Bank account x 373 (balance of £3,086.84 as at 30 June 2020 using an exchange rate of £1 to A$1.80)        Father              $5,556.31

Halifax Bank account x149 (balance of £50.58 as at 10 June 2020 adopting an exchange rate of £1 to A$1.80)               Father              $91.04

HSBC account x413 – as at July 2020                       Father              $0.00

Commonwealth Bank account x0350 – as at 30 June 2020               Father              $4,505.51

Suncorp Bank (as at 12 February 2019)         In the Mother’s financial statement, the Mother asserts that the value is nil.                 Mother                         $72.75

 

Furniture and Chattels

 

157 There is no evidence of the value of the mother and father’s furniture from an approved valuer. I do not intend to include any values in the pool which will have the effect of each party keeping what is in their possession.

 

158 I have no values agreed to or provided for the parties motor vehicles so I do not intend to include those in the pool either.

 

The Mother’s Inheritance

 

159 There is insufficient evidence to include the $50,000 sought to be included by the father.

 

18 R Street

 

160 The parties value this property at between $300,000 and $320,000. This property was acquired by the mother after the parties separated and paid for largely by an inheritance the mother received post separation.

 

The Mother’s Debts

 

161 The mother sets out various debts:

 

15 Respondent’s HECS debt 27,289

16 Respondent’s Student loan 34,351

17 Respondent’s debt to her grandparents 47,000

18 Respondent’s Westpac Visa 5,000

19 Respondent’s Unitywater debt 6,100

20 Respondent’s SPER debt 3,500

21 Respondent’s Government Solar loan 4,500

22 Outstanding school fees 1,500

23 Optus, Vet, Vully 2,150

 

162 There is insufficient evidence to support including the debt to the mother’s grandparents.

 

163 The other debts are after acquired debts and I do not intend to include them in the pool.

 

The Father’s Debts

 

164 These debts set out in his outline of submissions are debts to his family or the family trust that will not be called in. They are likely to be taken into account by an adjustment to any inheritance he might receive upon his father’s death.

 

165 I do not intend to include them in the pool.15

 

Father’s Financial Resources/ Property in the United Kingdom

 

166 The father has a pension fund in the United Kingdom. It has a current value of $244,687. The affidavit of SM sets out the various taxation and financial consequences of drawing down on this account.

 

167 I accept the mother’s submission in relation to the father’s pension fund:

 

“The AJ Bell Investcentre SIPP (‘The SIPP fund’)

 

  1. The Affidavit of SM filed 13 August 2020 indicates that the “current gross value” of this fund was 136,813 pounds sterling on 11 August 2020. As at the date of these submissions, that equals $246,024 Australian dollars.

 

  1. It is submitted that this amount is property, not a financial resource. Mr Prasad may have instructed Mr M that he intends to draw on his pension from the age of 66 (4 years after this hearing) but the fact is, he can draw on it now. (see Mr Mc Kenna’s affidavit paragraph 8).

 

  1. Furthermore, he can withdraw the whole amount now. (see Mr Mc Kenna’s affidavit paragraph 10).

 

  1. The asserted problem is tax consequences. Mr M says, “the first 25% of the pension value is not taxed”. So, the Husband could withdraw $AUD 61,506 today from that fund without any tax consequences.

 

  1. Over and above that “one-off right” (s as referred to in paragraph 16) the Husband is also able to take at the same time, the further amount of 12,500 pounds sterling (or AUD 22,518) without any tax consequences, should he not receive any other income in the UK from any other source.

 

  1. This totals the amount of $AUD 84,024 available without any tax consequences to the Husband today.

 

  1. Other scenarios are set out by way of tax advice for Mr Prasad. It is submitted that this is irrelevant in these proceedings. The issues for the court are:

15 Bitloft & Bitloft (1995) 19 Fam LR 82.

(a) Whether the whole fund is able to be withdrawn immediately. The answer to this is yes; and

(b) How much tax would Mr Prasad have to pay should he withdraw the whole amount? The answer to this lies in paragraphs 21 and 22 of Mr M’s affidavit. He would initially be required to pay 32.5% of the gross value of the account and so he would receive 92,358 British pounds (or $AUD166,382). He would then have to “reclaim the overpayment of tax of 15,912 British pound… there being no time limit on the UK government to settle”. That is, he can claim back from the UK government the amount of $AUD28,665. These amounts total $AUD195,044.

 

  1. So the current gross value of the fund is 246,024 Australian dollars and the after-tax value of the fund should it be withdrawn immediately is $AUD195,044.”

 

The Asset Pool

Asset                           Value                          Ownership

18 R Street, Town C   $300,000 – $320,000   Mother

Heritage Bank account S1 as at 30 June 2020            $797.61            Father

Halifax Bank account x 373 (balance of £3,086.84 as at 30 June 2020 using an exchange rate of £1 to A$1.80)        $5,556.31        Father

Halifax Bank account x149 (balance of £50.58 as at 10 June 2020 adopting an exchange rate of £1 to A$1.80)   $91.04             Father

HSBC account x413 – as at July 2020           $0.00               Father

Commonwealth Bank account x 0350 – as at 30 June 2020              $4,505.51                    Father

Suncorp Bank (as at 12 February 2019)                     In the Mother’s financial statement, the Mother asserts that the value is nil.              $72.75             Mother

AJ Bell InvestCentre (UK) – £135,937.18 as at July 2020, adopting an exchanging rate of £1 to A$1.80. Pension account in the United Kingdom.                    $244,678         $195,024 after tax       Father

Total   $555,701.22 – $575,701.22 ($506,047.22 – $526,701.22 after tax)

 

Financial Resources

 

Resource                                 Value                          Ownership

Life interest as an income beneficiary as to 50% of the income of the Prasad Children’s Trust (UK) – controlled by Father’s Father and stepmother                  Nil capital value         Father

 

Contributions

 

168 I accept the father had about $115,000 at the commencement of the relationship being approximately $97,500 in pension savings and $17,000 in savings. The father has also been in receipt of significant income from the family trust for the duration of the relationship.

 

169 The parties maintained separate bank accounts and did not purchase any property together other than some furniture and effects.

 

170 I accept the father made no contributions to the acquisition of the mother’s Town C property. It was purchased two years after separation and the mother used an inheritance to pay out the mortgage. The inheritance was received four years after separation.

 

171 The mother has worked full time as a teacher in the United Kingdom from 16 October 2007 until 23 July 2008. In Australia the mother worked the minimum number of days to retain her teacher registration.

 

172 The father always received a distribution from the trust that he contributed to the costs of providing for the family. He has not worked in Australia.

 

173 Both parents argue they were the primary carer for the children during the relationship. I am not able to make any findings about that on the evidence before me. I accept the mother was the primary carer for both children from separation in 2014 until [the daughter] went into the father’s care in December 2018. The mother has continued to be the primary carer for [the son].

 

The section 90SM(3) Factors

 

174 There is no effect on the earning capacity of either party of the proposed orders.

 

175 I note the mother is 20 years younger than the father and has maintained her registration as a teacher. She is still employed by the Department of Education. I note she has not worked in 2019.

 

176 The father has had some significant health issues.

 

177 The father has not worked since coming to Australia.

 

178 There have been ongoing disputes about child support from time to time. The mother’s case is the father still has an outstanding child support debt.

 

179 The care of the children has been mainly with the mother post separation. However the order I am making will place both children in the father’s care from now on.

 

Conclusion

 

180 In circumstances where the parties kept their financial affairs separate and the only significant assets are the home at Town C the mother acquired post separation and the father’s pension account in the United Kingdom I am not satisfied it would be just and equitable to make an adjustment to the father from the mother’s real property.

 

181 Furthermore the father’s pension fund and his minimal savings have been derived from the money provided to the father from the Prasad Children’s Trust. Consequently it would not be just and equitable to make an adjustment to the mother from that fund.

 

I certify that the preceding one hundred and eighty-one (181) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cassidy.

 

Associate: M.Pollock

 

Dated: 1 December 2020

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