31 Mar Father Loses Appeal – Contact Limited To 2 Letters A Year
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
A father has lost an appeal to the family court that will now limit his contact with his children to writing to them twice a year.
He was successful in appealing decisions in relation to the property settlement and spousal maintenance.
In mid-2013, a father flew out of the country with the children, one of whom was still breastfed, without his wife’s knowledge.
He also forged her signature on the child passport applications so that he could leave Australia with the children.
The primary proceedings in Australia occurred in December 2014 and September 2015, and the judge in this instance determined that the mother, Ms Prasad, have sole parental responsibility for the two children and that their communication with their father, Mr Shan, is limited to two letters per year.
The judge also granted that in the property settlement the wife receive approximately 63 percent of the assets, as well as $650 per week in spousal maintenance paid by the husband for 150 weeks.
Shan & Prasad  FamCAFC 12
Mr Shan and Ms Prasad were married in 2005 and had two children born in 2010 and 2012. They separated in 2013.
Beforehand, in May of that year, he assaulted Ms Prasad in an incident of domestic violence.
Both parents were born in India, and legal proceedings began there in July 2013. It was decided that Australia, where the parents have lived since 2006, would be the better country in which to continue the parenting disputes.
In September 2016, Mr Shan filed an appeal against these final orders and the case was heard on 1 February 2018.
His grounds of appeal to the family court are grouped into three categories:
- Parenting orders
- Property settlement
- Spousal maintenance
Can Expert Evidence Be Challenged?
The grounds of appeal for the parenting orders focus on the evidence of the court’s single expert witness, a consultant psychologist known as Dr K.
Dr K submitted a report in the initial hearings. Senior counsel for Mr Shan contended that it was not appropriately redacted to delete elements that were not supported by evidence.
According to the husband, the report in full ought not to have been accepted as evidence regarding domestic violence, nor should any significant weight have been placed upon Dr K’s recommendations.
This, Mr Shan argued, was not in the children’s best interests and did not afford him procedural fairness.
He argued that all observations showed a caring and appropriate relationship between him and his children.
Dr K’s report expresses the opinion that the husband has “anti-social and narcissistic personality traits” that manifest in a lack of empathy, irritability, deceit, aggression, a sense of entitlement and a lack of remorse.
According to the report the husband committed at least two acts of physical violence against the wife.
The psychologist detailed several risks to the children if the husband were granted custody of them, and recommended minimal contact and communication.
The primary judge found that Dr K’s evidence was important and that the husband displayed many of the attributes described in the report.
The husband also argued against Dr K’s opinion of him and his personality traits as being risks to the children, including that there was no ongoing risk of him taking the children out of the country.
Senior counsel for Mr Shan argued that as his attempt to abduct the children failed, it was unlikely to happen again
However, the primary judge emphasised that the husband did indeed succeed in taking the children out of Australia in a premeditated act of deception.
The husband also made false allegations about his wife’s mental health and parenting capacity and created a fake email written in Ms Prasad’s name, which he used to justify the abduction of the children.
The court rejected the submission that the psychologist’s report ought to have been redacted and determined that it was admissible as evidence and accorded appropriate weight in the original decision.
Challenging Relocation Orders
Mr Shan appealed against the orders in the trial that permitted his wife to move away with the children, including outside of Australia.
The court found that the primary judge did not give suitable reasons for these orders, and agreed that Ms Prasad had shown no intention to relocate internationally.
It was ruled that the order allowing international relocation be set aside.
Sole Parental Responsibility
The husband appealed the order for sole responsibility in favour of the wife.
The judge of the 2014 and 2015 trial had determined that it was not in the children’s best interests for them to have contact with their father, and the appellate court did not accept the husband’s challenge to this decision.
However, Mr Shan also contests the denial of a relationship between himself and the children.
He argues that the primary judge was failed to consider the consequences of ending a loving relationship between the children and their father, failed to consider supervised time, and mistakenly decided that no relationship until each of the children reached 18 years old was in their best interests.
From late 2013 to mid-2015, after the children were returned to the mother after the father’s abduction of them to India, Mr Shan had minimal supervised time with the children, and in July 2015 he stopped seeing them altogether.
The decision made by the court in the initial trial was largely based on the report by the single expert witness, Dr K.
Senior counsel for the husband argued that the relationship he has with his children is a positive one, but Dr K explained that it was not in the children’s best interests for the relationship to continue.
According to Dr K, the benefit to the children of them enjoying a relationship with their father is outweighed by the potential emotional cost to them.
Due to the husband’s personality dysfunction, there is a significant risk of emotional and developmental harm as he is significantly likely to neglect the children’s emotional needs, and they may model his narcissistic behaviour.
There were many examples in which the husband showed a lack of understanding of his children’s needs.
The threat to the children from the husband’s personality dysfunction is subtle, and the negative effects are harder to monitor.
Therefore, the Court chose not to change the original decision that the children stay with their mother and limit communication with their father to two letters per year.
An Unjustified Restraining Order?
The restraining order made in the primary trial prohibited the husband from harming the wife, any member of her household or family, entering anywhere that she works or anywhere that the children go to school.
The husband challenged this by contending that there was no evidence of violence perpetrated by him.
This is false, as there were previous incidences of family violence.
However, it was accepted that there were no current threats, especially no threats to the wife’s extended family.
The appellate court accepted this appeal in part and determined that the restraining order will be changed to apply solely to the children.
Property Settlement – Appeal To The Family Court Successful
In the trial, the primary judge found that the parties had made equal contributions to their property and that the wife should receive all the property in the settlement.
The husband challenged this order.
Due to the way the property was calculated in the trial, the husband was ordered to pay the wife amounts that were essentially non-existent.
This approach was flawed.
The main issue involves a property known as Property D.
Mr Shan purchased it in June 2013, after the parties had separated.
Two years later, he sold Property D for $685,000.
After repaying loans, only $15,973.47 remained from the profit. However, the trial judge acted on the basis that an amount of $169,688 remained as “notional property.”
Notional property is property that either does not exist or cannot be quantified.
The appeal court found that the trial judge’s acceptance of the $169,688 as notional property and the husband’s agreement to this were misapplied.
Ms Prasad also bought after separation, but unlike Property D the two apartments she purchased were not included in the asset division.
The trial judge was similarly mistaken in finding that Mr Shan had sold Property D contrary to a court order. This was not the case.
Many of the findings were inconsistent.
The entirety of the property appeal was allowed.
Order Preventing Husband from Leaving Australia
The orders made in 2015 by the trial judge prohibited Mr Shan from leaving the country until he had paid the property settlement in its entirety to Ms Prasad.
The passport was held by the court and Mr Shan was not permitted to apply for any sort of travel document until the payment had been made.
In his appeal to the family court, the husband challenged these orders, contending that the judge was wrong in the exercise of his discretion.
The wife was concerned that were the husband able to leave Australia, he might never return and would never pay the property settlement.
The appellate court found this to be very unlikely, as it would interrupt the husband’s career training.
The order restraining Mr Shan from leaving Australia was a major restriction on his freedom of movement, particularly as it prevented him from visiting family in India.
The appellate court accepted the appeal and these orders were set aside.
Succesful Appeal Removing Spousal Maintenance
There is a four-step process required to establish whether an order for spousal maintenance can be made:
- Can the applicant support themselves adequately?
- If not, what are their reasonable needs?
- What capacity does the respondent have to meet those needs?
- What order is reasonable?
The husband appealed against the order for spousal maintenance, claiming his wife was able to adequately support herself, and that he did not have the capacity to pay.
Ms Prasad was not cross-examined in detail about her financial statements, and her weekly income and expenses were inappropriately calculated.
Her financial statement included the husband’s payment of child support in her weekly income, even though child support is designated explicitly for the support of the children.
It was inappropriate to include her mortgage payments in the calculation, as well as repayments on a credit card debt.
Mr Shan filed an updated financial statement in the appeal, and the court agreed that in any case he did not have the capacity to pay.
The court accepted the appeal that the wife could indeed adequately support herself and that the husband did not have any capacity to pay the ordered spousal maintenance.
Mr Shan was successful in his appeal to the family court for the orders for property settlement, spousal maintenance and the restriction from leaving Australia.
His appeal against the parenting orders was unsuccessful, apart from the order that permitted Ms Prasad to relocate with the children out of the country.
As the property appeal was successful, there will be a rehearing before a different judge.