CARON & CARON

FAMILY COURT OF AUSTRALIA

CARON & CARON

[2017] FamCA 1033

FAMILY LAW – CHILDREN – best interests – parental responsibility – whether the child should spend time with the father – where it is not in the best interests of the child for the parents to have equal shared parental responsibility – order that the mother have sole parental responsibility for the child – order that the child live with the mother – order that the child spend no time nor communicate with the father – Watch List order made by consent.

FAMILY LAW – PROPERTY – small asset pool – only non-superannuation asset of the parties is money held in the Supreme Court of Victoria – where the contributions during the marriage were equal – where the post separation contributions by the wife were greater than those of the husband – where the husband’s earning capacity is greater than that of the wife – where the wife has the full time care of the child – section 75(2) factors favour the wife – order for the husband to indemnify the wife in respect of a credit card liability – orders by consent that the parties retain their superannuation interests – order that the entire funds held in the Supreme Court of Victoria to be released to the wife.

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61B, 61DA(1), 61DA(4), 65DAC, 75(2), 79
Family Law Rules 2004 (Cth)
Evidence Act 1995 (Cth) s 140

Bevan & Bevan (2013) FLC 93-545
Marsh & Marsh (2014) FLC 93-576

Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Caron

RESPONDENT:

Mr Caron

INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

FILE NUMBER:

MLC

2480

2015

DATE DELIVERED:

15 December 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

24 & 25 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Clarke

SOLICITOR FOR THE APPLICANT:

Basil Nurendini Solicitor

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

IT IS ORDERED THAT:

All previous parenting orders be discharged.
The mother have sole parental responsibility for the child, B born … 2006 (“the child”).

BY CONSENT IT IS ORDERED THAT:

The child live with the mother.

IT IS ORDERED THAT:

The child not spend any time, nor communicate with the father.

BY CONSENT IT IS ORDERED THAT:

The name of the child be placed on the Airport Watchlist for a period of two (2) years.
The Applicant mother MS CARON born … 1977 (“the mother”) and the Respondent father MR CARON born … 1967 (“the father”), their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child B born … 2006, male, (“the child”) from the Commonwealth of Australia until 15 December 2019.
The child be and is hereby restrained from leaving the Commonwealth of Australia for a period of two (2) years commencing 15 December 2017.
It is requested that the Australian Federal Police give effect to the preceding Order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Airport Watch List until 15 December 2019
Upon expiration of the period referred to in Order 8 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Airport Watch List.

IT IS FURTHER ORDERED THAT:

All extant applications be otherwise dismissed.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
That the parties each retain the furniture, household items, equipment, tools, motor vehicles and any other assets they either retained or took with them at the date of separation being 10 October 2013.
That the parties do all things and execute all documents to cause the entire funds currently held in the Supreme Court of Victoria in the amount of $67,499.15 to be paid to the applicant wife.
That the husband indemnify the wife and keep her indemnified against all liabilities and debts owing in respect of the NAB Credit Card Account Number … .

BY CONSENT IT IS ORDERED:

That the parties each retain their respective superannuation entitlements.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Caron & Caron has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2480 of 2015

Ms Caron

Applicant

And

Mr Caron

Respondent

REASONS FOR JUDGMENT

Introduction

Parenting proceedings

The parents of B who is aged 11 years bring competing parenting applications about whether he should spend any time with his father. The mother seeks to rebut the presumption of equal shared parental responsibility for the child and proposes that she have sole parental responsibility for the child. The father proposes that the parents have equal shared parental responsibility for the child and that he spend supervised time with the child for two hours each Saturday, graduating to unsupervised time each alternate weekend in a 9/5 spend time arrangement and for half the school holidays and special days.
The parents and Independent Children’s Lawyer consent to an order that the child live with the mother and for the child’s name to be placed on the Airport Watch List.
When the parties separated in November 2013, the father left the country for the United States and the child has not seen him since then. An attempt to reconnect the child with the father in a supported and supervised setting by way of interim orders made by Judge Curtain in February 2016 in the Federal Circuit Court was unsuccessful and the child refused to get out of the car. The proceedings were transferred to this Court from the Federal Circuit Court on 5 May 2016 by Judge Curtain and an Independent Children’s Lawyer appointed.
The child has consistently told the family consultant that he does not want to see the father and that he is fearful of him. The mother cooperated with the attempt to reconnect the child with the father to the best of her ability.
The proposals of the mother that the child spend no time, nor communicate with the father were supported by the Independent Children’s lawyer. The proposals of the mother and the Independent Children’s Lawyer are consistent with the recommendations of the family consultant. It is the mother’s case that she and the child and the parties’ adult daughter were subjected to serious family violence during the marriage and that this is the reason for the separation of the parties and that the child is in fear of the father. A final intervention order against the father was made in the Magistrates’ Court for a period of five years expiring on 26 February 2019. The order names the mother, the child and his sister as protected family members.
The father denies that there was any family violence perpetrated by him during the course of the marriage and maintains that the child needs his father, particularly having regard to the stage of his development. It is the father’s case that the mother and her family, in particular her brothers, have influenced the child to the point that he has been “brainwashed” against the father.
The father also maintains that his life is in danger because of threats from the maternal family and that this is the reason that he left the country when the parents separated.

Property proceedings

The husband and wife bring competing applications under s 79 of the Family Law Act 1975 (Cth) (“the Act”) for final alteration of their property interests acquired during a marriage of approximately 19 years. The parties had been separated for almost four years before the trial. There are two children of the marriage who have both resided with the wife since separation. B’s sister is an adult aged 19 years who is currently studying at University and living with the mother and B.

Background

I am satisfied of the following background facts on the balance of probabilities.
The parties were married in Country Y on 20 October 1994 and there are two children of the marriage. B was born on 22 June 2006 and Ms C was born on 8 March 1998 and is now an adult.
The mother, father and Ms C arrived in Australia in May 1998 from Country Y.
The evidence was unclear about when the parties purchased land in Town F and built a house on the property. There was no evidence about when the land was purchased. The mother deposed that in January 2005 they moved into the house and the father deposed that it was February 2006. In cross-examination the mother appeared to concede that it could have been February 2006. I cannot make any finding about the date.
The family relocated to Brisbane in 2006 according to the mother and in June 2007 according to the father. Whilst in Brisbane the parties rented a property. The parties returned to Melbourne in or about January 2009 according to the mother and according to the father in or about February or March 2008. Upon returning to Melbourne the parties rented a property in Town E.
In December 2012 the parties purchased a block of land in Town E (“Town E land”). There is a dispute between the parties about what funds were used to purchase the Town E land. The mother alleges that her brother, Mr D, loaned the parties $80,000 to complete settlement. The father denied any loan, claiming payments made by the mother’s brother were payments of invoices rendered to Mr D’s company for renovation work the father’s company had completed.
The parties separated when the father left the mother and children on 10 October 2013 and travelled to the United States on 11 October 2013 where he stayed for about two and a half months before returning to Australia for about two weeks. On his return a final intervention order was made against him naming the mother, B and Ms C as protected persons in February 2014. The intervention order expires in February 2019.
The father then travelled to Country Y for about 11 months from 18 January 2014. He returned to Australia in December 2014.
The mortgagee took possession of the Town E land in 2014 and it was sold by way of mortgagee sale. The settlement of the mortgagee sale was effected in October 2014 and $67,499.15 being the surplus of funds was paid into the Supreme Court of Victoria on 10 October 2014 pursuant to s 77(3)(d) of the Transfer of Land Act 1958 (Vic) .
The mother’s brother, Mr D filed an originating motion in the Supreme Court claiming the entire funds on the basis of a loan agreement to the parties of $104,078 to assist them to buy land and for the father’s business.
On 18 February 2015 the father appeared in person in the Supreme Court on the return of the motion. He sought to make a claim on behalf of his brother Mr G Caron who lives in Country Y for repayment of a loan of $15,000 from the funds which he claimed were paid to the parties “to help to buy the house”. The father claimed that the $15,000 should be paid from the funds to his brother and the balance then divided equally between the parties.
On 27 March 2015 the Supreme Court stayed Mr D’s application by consent pending resolution of the proceedings in this Court. The order records that the father filed an affidavit sworn by his brother Mr G Caron in City W, Country Y. It is recorded that the affidavit:
…says in essence that in February 2013 he, [Mr G Caron], lent [Country Y currency] 11 750 to [Mr Caron] and his mother [Ms Caron] to help them buy land to build a home here, to be paid back no later than three years at 4% interest. He does not say that he has a security interest in the land which was sold by the secured lender here who has paid the balance of the proceeds into Court.[1]
[1] Affidavit of the mother filed 16 June 2017, Annexure EC 5.
The father’s brother Mr G Caron is not a party to the proceedings in this Court. The mother’s brother Mr D is not a party to the proceedings in this Court.
The mother initiated proceedings in the Federal Circuit Court in March 2015.
The parties divorced in 2015.
Interim orders were made in the Federal Circuit Court on 12 February 2016 by Judge Curtain which provided that B spend time with the father supervised by Ms H or her nominee, for no more than two hours each alternate week on four occasions prior to the final parenting hearing with two occasions to occur in March 2016 and two occasions to occur in April 2016. A notation to the order provided:
[Ms H] be permitted to reduce or terminate the time the father spend with the child pursuant to Order 2 herein if the child is distressed.
This time did not occur because of the child’s refusal to see the father.

Evidence

The documents relied upon by each party are listed in Annexure A. Each of the parties and the following witnesses were cross-examined during the trial:
·The Senior Family Consultant, Ms T; and
·The mother’s brother, Mr D
The father sought to rely on a document annexed to his trial affidavit which he asserted was an affidavit from his brother Mr G Caron, translated from the language of Country Y into English. The document was not in the form of an affidavit and appeared to have been filed in the Supreme Court of Victoria. The document did not comply with the Family Law Rules 2004 (Cth) for the filing of an affidavit and I ruled the document inadmissible in the trial. The respondent’s brother was also not available for cross-examination.

Standard of proof

When determining what orders the Court should make, the relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[2]

Parenting

[2] Evidence Act 1995 (Cth), s 140.

The applications

The Independent Children’s Lawyer supported by the mother sought the following orders in the Outline of Case:
·All previous parenting Orders be discharged.
·The mother have sole parental responsibility for the child.
·The child live with the mother.
·The father spend no time, nor communicate with the child.
·The child be placed on the Airport Watchlist for a period of two years.
·Within seven days, the mother do all things necessary to enrol the child in a Supporting Children After Separation Program and thereafter:
oDo all things necessary to facilitate the child attending and completing the program;
oFollow all reasonable directions of the providers of the program
·All applications be otherwise dismissed.
The Independent Children’s Lawyer also sought a notation that:
The Family Report recommends that the father obtain a referral from his general practice doctor, via a Mental Health Care Plan to a psychologist to assist him with matters of grief and loss, and the Independent Children’s Lawyer supports this recommendation.
The father agreed that the child should continue to live with the mother.
The father sought parenting orders in his Outline of Case filed 7 April 2017 for the parents to have equal shared parental responsibility for the child.
The father sought that the child spend time and communicate with him as follows:
·Until 29 May 2017 for two supervised hours every Saturday, and thereafter;
·Every alternate weekend from the conclusion of school on Friday (or 3:30pm if it is a non-school day) until the commencement of school on Monday (or 10:00am if it is a non-school day);
·Every Wednesday after school (or 3:30pm if it is a non-school day) until the commencement of school on Thursday (or 10:00am if it is a non-school day);
·For the first half of the term school holidays, commencing at the conclusion of school of the last day of term until 10:00am the following Saturday;
·For one half of the long summer school holidays, on a week about basis with B to be in the father’s care for the first week (and alternating thereafter);
·On Christmas Day:
oFrom 3:30pm on 24 December 2017 until 3:30pm on 25 December 2017 and every alternate year thereafter;
oFrom 3:30pm on Christmas Day (25 December 2018) until 3:30pm on 26 December 2016 and each alternate year thereafter.
·On Father’s Day, if B is not already spending time with the Father, from 5:00pm the proceeding Saturday until 6:00pm Father’s Day;
·On B’s birthday if the father is not already spending time with B:
oFrom 3:00pm until 7:00pm if it is a school day;
oFrom 2:00pm until 6:00pm if it is a non-school day;
oAt any other time as agreed by the parties in writing including SMS text message.
·The father’s time above is suspended as follows:
oOn Mother’s Day, if it falls during the father’s time spent with B, from 5:00pm the proceeding Saturday until 5:00pm Mother’s Day
The father sought a number of other detailed orders, including orders for non-denigration, notification of addresses for each parent and communication. He also proposed travel for both parents with the child and notification about any serious health issues and health professionals treating the child. The father also sought orders that he be permitted to communicate directly with the child’s school and attend any school or extracurricular activities and receive copies of all school reports and newsletters and notices and school photographs.
During submissions the father relied on the orders sought in his Case Outline but proposed that any time spent by the child with him be graduated to progress to the times sought in his Case Outline.
At the conclusion of the trial, the father agreed to the proposal of the Independent Children’s Lawyer and the mother for a Watch List Order to be made restraining both parents from removing the child from the Commonwealth of Australia, and I am satisfied that it is in the best interests of the child to make that order.

Evidence of the mother

The mother deposed that the parties met in 1993 and married in 1994.
The mother deposed to the parties having nominal financial resources upon arriving in Australia and living with her parents and siblings in Town F. She deposed that she and the father commenced working on her uncle’s fruit farm almost immediately upon arriving in Australia.
She deposed that in early 2005 the parties completed construction of a house on land they had purchased in Town F and moved into the house in or about January 2005. In cross-examination she appeared to agree with the proposition that the parties moved into the house in February 2006. She deposed that the parties borrowed money for the purchase and construction of the house, but that she did not know about the details as the father controlled “all financial matters in our household” and that he did not share those details with her. [3]
[3] Affidavit of the mother filed 16 June 2017, par 15.
The mother deposed that following her parents and siblings move to Brisbane, she and the father and children moved to Brisbane in late 2006. She deposed that the parties financed the move through the sale of the Town F property. The mother denied pressuring the father to move to Brisbane. She further deposed that to the best of her knowledge the property was not sold below market value as alleged by the father. She refuted the father’s evidence that the sale of the property was a surprise to him because the parties co-signed the agent’s sale authority, contract of sale, transfer of land and other necessary documentation.

She deposed that upon arriving in Brisbane she and the children lived with her parents for around 3-4 weeks and then moved to live in a rented property. During the time she lived with her parents in Brisbane the mother deposed that the father travelled to Country Y to visit his relatives.
The mother deposed that she did not work while she was in Brisbane and that the father “barely worked”, apart from some occasional casual maintenance work. She deposed that the parties “lived off welfare” and the funds from the sale of the Town F property.[4]
[4] Affidavit of the mother filed 16 June 2017, par 23.
The mother deposed to the family moving back to Melbourne in or about January 2009 with little or no savings. She deposed to moving into rented accommodation in Town E.
The mother deposed to the father commencing work upon their return to Melbourne, working in this capacity for two years and that his income was irregular and “insubstantial”.[5] She deposed that in 2011 he started his own business, but that it was never successful and did not provide a reliable source of income at any time. The mother deposed that she commenced working at Business S as a Customer Service Officer and remained in that positon until 2016. She deposed that she now works as a Customer Service Officer at Business F.
[5] Affidavit of the mother filed 16 June 2017, par 26.
The mother deposed that she and the father purchased the Town E land on 8 December 2012 for $258,000. She deposed that the parties paid a deposit of $25,800 from their savings. She deposed that:
We did not have sufficient funds to complete the [Town E] land purchase and the respondent asked my brother [Mr D]… for a loan to help us complete the purchase.[6]
[6] Affidavit of the mother filed 16 June 2017, par 29.
She deposed that her brother provided the loan in three payments comprising $55,000 on 19 December 2012, $20,000 on 21 December 2012 and $5,000 on 24 December 2012. She deposed that:
The loan was both given by [her brother] and received by us on the dual understandings that it wold be repaid to [her brother] as soon as we could and that it would be used for the settlement of the [Town E] land.
Regarding the loan, she deposed that there was no written agreement as it was against her culture to ask for or expect a written agreement. Further she deposed to the same cultural considerations applying to interest on the loan and therefore there was no agreement to pay interest.
She deposed that she and the father obtained a loan from X Bank on 24 December 2012 for $200,000 to complete settlement. She deposed that settlement occurred on 25 January 2013.[7] I note that this is $47,800 more than required for settlement but this was not explained.
[7] Affidavit of the mother filed 16 June 2017, par 35- 36.
The mother deposed to her brother also helping the family financially as the father’s business was struggling and her income was low. She deposed that consequently the father asked her brother Mr D for financial help. She went on to depose that all monies advanced by her brother were a loan and under the same terms and considerations as the previous loan for the Town E land. She detailed that her brother loaned $15,000 on or about 1 July 2013 which was paid into the father’s business. Further, that $4,078 was paid to Flight Centre on 8 July 2013 to pay for the father to visit his ailing father in Country Y and on or about 24 July 2013, $5,000 was also paid into the father’s business.
The mother denied that the father was actively involved in the children’s day to day care and described him as being typically distant from their day to day needs. She further denied that the father shared in the responsibility for the care of the children and deposed that he rarely participated in the children’s school activities or parent teacher events.
The mother deposed to there being a risk to the child because of the father’s animosity towards her and his desire to punish her, whether that be by causing physical harm to the child or by seeking to remove the child from the jurisdiction. She deposed that the relationship between the children and the father always contained an “element of fear”.[8]
[8] Affidavit of the mother filed 18 August 2017, par 20.
The mother deposed to a serious history of family violence directed towards her by the father during the marriage and at times in the presence of the children.
The mother deposed that there was an “undercurrent of violence during the entire period of our marriage” and that the violence commenced shortly after the marriage and continued until separation.[9] The mother deposed that one of triggers for violence was the overconsumption of alcohol by the father.
[9] Affidavit of the mother filed 16 June 2017, par 51.
The mother deposed to a number of incidents of family violence which included:
·In or about September 1997 while the mother was pregnant the father loaded a gun and aimed it at her and threatened to kill her;
·In or about 1997 the father slapped her in the face and punched her in the nose and gave her a blood nose; and
·In or about January 1999 while the mother was sleeping he pressed a pillow hard against her face and told her if she didn’t listen to him he would kill her.[10]
[10] Affidavit of the mother filed 16 June 2017 par 53.
The mother deposed that the father was also violent towards Ms C and when she cried he would grab and slap her and sometimes hold her upside down to stop her crying.
In particular she deposed to an incident on 9 October 2013 which caused the separation on 10 October 2013. The mother deposed to the violence escalating because of continuing arguments about returning to Country Y in the lead up to this incident. She deposed that she and the children wanted to stay in Australia and the father wanted to return to Country Y.
She deposed that on 9 October 2013, the father had an argument with Ms C who was aged 15, because he insisted that the family return to Country Y and Ms C said that she would not go. The mother deposed that the father went into a rage and punched her and Ms C and that he then threw a glass at Ms C, almost hitting her in the head. She deposed that the glass missed Ms C’s head and struck the pantry with such force that it left a mark on the pantry and smashed the glass. The mother deposed to the father physically grabbing Ms C by the shoulders, shaking her aggressively and when the mother tried to protect her, pushing the mother forcefully to the floor. The mother deposed that the father then “went into a rage” and went into the garage, returning with a hand gun. The mother deposed that the father pointed the hand gun to her head and said “if you don’t do what I say and if you tell anyone I will kill youse [sic] all cause you don’t know me and what I am capable of”.[11]
[11] Affidavit of the mother filed 16 June 2017, par 55.
In response to the father’s affidavit in which he asserted that he left for the United States of America as he feared for his life due to threats from the mother’s brothers, she deposed that the father planned to travel to the United State of America prior to 9 October 2013 and therefore his decision was before the alleged threats. The mother went on to depose that she never witnessed any threats from her brothers and to the best of her knowledge no threats had been made.
The mother deposed that the following day, she returned from work and realised that the father had taken most of his belongings and $20,000 and her ring from the family safe. She deposed that the only people who had access to the safe were herself, the father and Ms C. She deposed that Ms C informed her that she did not take the contents and that she believed Ms C. The mother also deposed that the father took his work vehicle, a 2007 Ford Utility when he left. She deposed that he also took the tools he used.
The mother deposed that following separation in December 2013 she sold the family car, a 2006 Kia Sportage, for $2,000. She deposed that she sold the car because she had “no financial support from [the father] as he had simply abandoned us and I desperately needed money to buy food and to pay for rent”.[12]
[12] Affidavit of the mother filed 16 June 2017, par 40(a).
The mother also deposed that at the time of separation she was left with some furniture, home appliances and clothing which were of nominal value.
The mother deposed that on 25 October 2013 while the father was overseas he sent Ms C the following text message:
If u [sic] think I’m a bad person you [sic] wrong… if I was a bad [sic] I would put her family I [sic] jail but I’m not that person. And here is when [sic] your mother got it very very [sic] wrong. I haven’t done anything (yet) to wards [sic] her family. But I will if she does bring B on the phone because u [sic] do not want to talk to me. Remember I have nothing to loose [sic] any more…[13]
[13] Affidavit of the mother filed 16 June 2017, Annexure EC7.
The mother deposed that she believed the father meant to write “if she “doesn’t” bring B on the phone”.[14] She had deposed that she interpreted the word “yet” to mean that the father would be violent towards her parents or siblings if she did not bring B to the phone to speak with the father.
[14] Affidavit of the mother filed 16 June 2017, par 57.
The mother deposed that following the text message she sought and obtained an intervention order on 26 February 2014 naming Ms C, B and her as protected persons. The order expires on 26 February 2019.[15] Responding to the father’s allegations that the intervention order was obtained to carry out threats made by the mother and her brother, she deposed that the only purpose of obtaining the intervention order was to protect the children and herself from the father.
[15] Affidavit of the mother’s affidavit filed 16 June 2017, Annexure EC8.
In response to the father’s allegations in his affidavit that the mother smashed a mobile phone and TV remote on the ground on or about 6 October 2013, she deposed that the father committed those acts. She deposed that it was she, not the father, who had to comfort the children after this event as it was the father who was violent.
In response to the father’s allegation that the children continue to be exposed to family violence from the mother’s brothers, she deposed that the children have not been exposed to family violence since separation.
In relation to the Town E land, the mother deposed that following separation she could not pay the monthly mortgage repayments and that she was informed by X Bank that the father had not made any repayments. She deposed that on or about 11 March 2014 the bank loan had increased to $209,424 and the bank took possession of the land shortly thereafter and then sold the land. She deposed that settlement of the sale was effected in early October 2014 and the excess of funds in the sum of $67,499.15 paid into the Supreme Court.[16]
[16] Affidavit of the mother filed 16 June 2017, Annexure EC 4.
The mother deposed that on 13 November 2014 her brother Mr D filed an originating motion in the Supreme Court claiming the funds in Court on the basis of the loans he had advanced the parties. On 27 March 2015 the Supreme Court stayed the proceedings pending the outcome of the family law proceedings.[17]
[17] Affidavit of the mother filed 16 June 2017, Annexure EC 5.
The mother deposed to the father being in arrears with child support.
In response to the father’s affidavit, the mother deposed that she has never known the father to be qualified as a lawyer and never known him to be a Public Official. She asserted that these claims by the father were lies. She also deposed that to the best of her knowledge the father did not study Horticulture at TAFE for three years. She further deposed that to the best of her knowledge the father is not a licensed builder.
In relation to the husband’s assertions in his affidavit that he provided financial assistance to her brothers, the wife deposed that she had never heard of the husband offering them financial assistance and that the parties “were never in any position to offer or provide anyone with financial assistance”.[18]
[18]Affidavit of the mother filed 21 August 2017, par 11.
The wife denied that the asset pool was small due to the family moving across Australia to follow her family, and she deposed that the reason why the asset pool was small was because the parties had poor combined earning power during the marriage.

Attempts at supervised contact with the father

The mother deposed that there has been no contact between the child and the father since 10 October 2013, when the father left the family home and travelled to the United States.
The mother deposed to the efforts she had made in implementing the Court-ordered supervised time which began on Saturday 27 February 2016 when the child met Cindy who was appointed to facilitate the contact. She deposed to introducing the idea to the child “gently” by starting to talk to him from the date the orders were made on 12 February 2016. She deposed to the child crying a lot and being very upset, telling her that he did not want to meet anyone, and later that night complaining that he had a headache and a stomach ache and was unable to sleep on 27 February 2016.
The mother deposed to the child not wanting to eat or undertake activities and vomiting on the following day. She deposed to him refusing to receive a phone call from his father at approximately 7:00pm on the following day.
The mother deposed to meeting Cindy with the child on Thursday 3 March 2016 at McDonald’s where the child explained that he did not want to meet his father and that he did not want to go to the contact centre because he was scared of him. She deposed that the child was upset and crying.
The mother deposed to the child wanting to sleep with her on Friday 4 March 2016 when he had a nightmare and was crying again. She deposed that it took her a long time to calm him down. She deposed that on 5 March 2016 the child awoke upset and did not want to go to the contact centre. She deposed that she and Ms C eventually “half forced and half encouraged” him to get into the car.
The mother deposed to Cindy attempting to get the child out of the car at the contact centre, but that they were unsuccessful. She deposed to the child refusing to get out of the car and developing a rash on his cheeks. She deposed to the child being angry and continuing to ask her why she was not listening to him and that he did not want to see the father and that the father is “evil”.
The mother deposed to this attempt continuing for a little over an hour when it was abandoned and she deposed to the child crying on the way home and telling her that he did not feel well and not eating or drinking anything. The mother deposed to the child being so distressed by the experience at the weekend that he could not go to school for the rest of the week and she took him to a doctor to assess and monitor him.
The mother deposed to being co-operative with the persons who assisted with the supervised contact but that it was abandoned on their advice.
The mother denied that she has alienated the child from the father by failing to facilitate the child spending time with him.

Cross-examination of the mother

The mother was unshaken in her evidence in cross-examination by the father.
The mother maintained the allegation in her affidavit that the father pressed a pillow to her face while she was sleeping in or about January 1999. She gave evidence the father tried to suffocate her with the pillow. She conceded she never reported any incident of family violence to the police prior to separation because she was scared of the father and he would threaten to kill her if she told anyone. She also gave evidence that she was scared and embarrassed and she thought things would get better. However she gave evidence it escalated and things got worse.
In relation to the night of separation on 9 October 2013, the mother gave evidence that the father threatened to kill her with a gun in front of Ms C and that he told her if she told anyone he would kill her and hurt the children. She maintained the father threw a glass which just missed hitting Ms C in the face. She gave evidence she took the threats seriously and she didn’t go to the police the following day as the father had left Australia. She stated she thought that because the father was not in Australia she was safe.
The father asked the mother whether on the night of separation he threw a glass or “hit the glass”. The mother was unshaken in her evidence that the father threw the glass and it just missed Ms C’s head.
The mother maintained that she has never “involved” her brothers to threaten the father and she has never been present when her brothers have allegedly threatened the father. It was put to the mother by the father that on one occasion the mother’s eldest brother threatened to kill him if he ever left the mother and this threat was made in front of the children. The mother denied this.
The mother gave evidence during cross-examination by the father that she still fears the father because of what has occurred in the past.
The mother was questioned by the father as to why she made an application for an intervention order two days after the police applied for an intervention order against her brother on behalf of the father. The mother replied that she applied for the intervention order to protect herself and the children because the father was back in Australia.
The father asked the mother whether she believed that B needs his father. She responded that B has made it clear that he fears the father and doesn’t want to see, spend time or communicate with the father. She gave evidence she has tried to make B feel comfortable, but that it is his wish not to see the father. She gave evidence that B feels abandoned.
The mother was asked whether she would be able to work with the father to improve the relationship between him and B. The mother responded that:
It’s been a long time since the separation… B hasn’t seen his father for four years now. All the experience that he had in the past, it’s stressing B in a very very high stress [sic]. He’s been distressed for a long time and I’ve tried to obey Court orders to make something happen but B has shown clearly that he doesn’t want that. Then it’s very hard for me as mum, all the physical abuse that has happened in front of the kids to Ms C, to B to myself [sic]…it’s like leaving B in this room with this tank of petrol that any moment can explode…there is nothing I can do after that. It is extremely hard and the experience the kids have had because of their father’s violence and abuse is all because of him… the way that B feel [sic] is because of his father’s violent history…
The mother was firm in her evidence that B has been present when the father has been violent.

Evidence of the mother’s brother, Mr D

The mother’s brother deposed that he had provided the parties with a series of loans in total $104,078 between 19 December 2012 and 24 July 2013 comprising the following:
·$55,000 on 19 December 2012 to assist the parties to complete the purchase of the block of land at Town E;
·$20,000 on 21 December 2012;
·$5,000 on 24 December 2012;
·$15,000 on or about 1 July 2013 to assist the father with the payment of his payroll;
·$4,078 on or about 3 July 2013 to pay for a flight to Country Y so that the father could visit his ailing father; and
·$5,000 on or about 24 July 2013 to assist the father with his payroll.
The mother’s brother annexed copies of his bank statements evidencing the transfer of $20,000 on 21 December 2012 and $5,000 on 24 December 2012. Further the statements evidenced a withdrawal of $55,000 and the transfer of $4,078 and $5,000.
The mother’s brother deposed that none of the loans have been repaid in part or in full and the money was to be repaid to him by the respondent father as soon as he could. He deposed that there was no written agreement documenting the loans, that it was a family agreement and there was no agreement to pay interest and no interest was expected because the loans were made to assist the parties, being his sister and brother-in-law.

The mother’s brother denied that he ever threatened the respondent; he denied ever harming or attempting to harm the father[19] and also denied having been requested to threaten the father by any person. He denied that he has witnessed his family members threaten the father.[20] He also denied that he had a violent history or that he informed the father that he had a violent history.[21]
[19] Affidavit of the mother’s brother filed 16 June 2017, par 16.
[20] Affidavit of the mother’s brother filed 18 August 2017, par 4.
[21] Affidavit of the mother’s brother filed 18 August 2017, par 3.
The mother’s brother denied the father’s allegations that he attended the family home at 8:00pm on the night prior to separation. He deposed that to the best of his knowledge the last time he attended the property was on or about 30 September 2013. He denied making any threats to the respondent and denied lifting his blazer to show the father a gun handle. He deposed that at the time, and presently, he does not own or possess a handgun and reiterated he was not at the family home on the date alleged.[22]
[22] Affidavit of the mother’s brother filed 18 August 2017, par 7.
In response to the father’s affidavit where it is alleged the father has CCTV footage of the mother’s brother threatening him, he denied these allegations and deposed that he has never been questioned nor charged by police in relation to such threats.[23]
[23] Affidavit of the mother’s brother filed 18 August 2017, par 8.
The mother’s brother also deposed in his affidavit to the “attempted supervised contact” between the father and the child. He deposed that he attended the mother’s home on 5 March 2016 at approximately 8:30am as he had been previously asked to drive the mother and B to the contact centre in order for supervised time between the father and child to occur. He deposed to the following:
On entering the home I observed that the [mother] and my niece, Ms C… were trying to console B. B was crying and telling them that he did not want to see their father. The [mother] and Ms C were encouraging B to go. They told him that he would have fun on the trampolines. That he would be safe and that he should see his father.[24]
[24] Affidavit of the mother’s brother filed 16 June 2017, par 18.
He deposed to B telling the mother “I told you before, I told you yesterday, I don’t want to see him. Why don’t you listen to me?”.[25]
[25] Affidavit of the mother’s brother filed 16 June 2017, par 19.
The mother’s brother went on to depose that at approximately 9:00am the same day they left the house and attempted to get B into the car but that B refused and he “lashed out at the [mother] when she tried to grab him and put him in the car”.[26] He deposed that eventually Ms C managed to get B into the car but that B was “very upset”. He deposed that B was consoled during the car trip by the mother and that Ms C was rubbing his back and telling him “everything would be OK and that he would be safe”.[27]
[26] Affidavit of the mother’s brother filed 16 June 2017, par 21.
[27] Affidavit of the mother’s brother filed 16 June 2017, par 24.
The mother’s brother deposed that B refused to get out of the car when they arrived at the contact centre. He deposed that the mother and Ms C tried to encourage him but he refused. He deposed that the contact supervisor tried to convince B to get out of the car but that she “also had no success and B was progressively getting even more distressed”.[28] He deposed to B having broken out in a rash on his face and neck area.
[28] Affidavit of the mother’s brother filed 16 June 2017, par 26.
The mother’s brother went on to depose that after approximately one hour after arriving at the contact centre, the supervisor decided that the supervised contact would be abandoned. He deposed “she told us to leave and we obeyed her instruction as we had obeyed all other instructions she had given us”.[29]
[29] Affidavit of the mother’s brother filed 16 June 2017, par 29.
Further the mother’s brother deposed to B continuing to be very distressed as they drove off and that he sobbed the entire return trip.
In cross-examination the mother’s brother confirmed that the evidence in his affidavit was true and correct and that he had loaned the parties $104,078. However he stated that he was not seeking repayment of the loan because the children needed the money. It was not clear whether he proposed to withdraw his claim in the Supreme Court.
The mother’s brother maintained during cross-examination by the father that he had never made any threats towards the father. He was unshaken in his evidence in cross-examination.

Evidence of the father

The father deposed that he studied for a degree in Country Y and and was appointed a Public Official on or about 5 March 1998. However he deposed he never commenced work as a public official due to the birth of his daughter and because the parties obtained visas to move to Australia on or about 12 March 1998.
The father deposed that upon arriving in Australia the parties lived with the mother’s family for about six weeks before renting a property. He deposed that he worked full time as a labourer in an orchid while the mother had the full time care of their daughter. He deposed that he studied English language and Horticulture courses at TAFE for three years.
He deposed that in or about February 2005 the mother commenced work in customer service for Business R and he was employed as a building supervisor.
The father deposed that in or about October 2005 the parties obtained a loan and began to build and moved into their home in Town F in or about February 2006.
The father deposed that the parties moved to Brisbane in or about June 2007. He deposed at paragraph 15 that the parties were forced to sell their home in Town F for $287,500, approximately $60,000 below “normal sale price according to experts at the time”. Following the move the father deposed that it took him two months to find work as a carpenter in Brisbane “only to again follow the [the mother’s] family when they decided to move to Melbourne in or about February or March 2008”.[30]
[30] Affidavit of the father filed 14 July 2017, par 16.
Upon returning to Melbourne he deposed that he eventually found work as a builder. He deposed that he studied with Master Builders and obtained a qualification in building and construction and became a licensed builder and established his own company, Z Pty Ltd.
In relation to the purchase of the Town E land the father deposed the following:
After much savings from the successes of my business, in December 2012 I purchased a vacant block of land in Town E, Victoria on which I intended [the mother] and I would build our dream home again. I spent approximately $40,000 obtaining plans and permits and the build was set to commence on or about 15 October 2013.[31]
[31] Affidavit of the father filed 14 July 2017, par 17.
He went on to depose later in his affidavit that the land was purchased from funds in his NAB business account and from a loan from X Bank. He deposed that $25,000 was paid into his NAB business account from J Pty Ltd, Mr D’s company. He deposed that these payments were not loans as alleged by the mother and her brother but “in payment of invoices rendered to J Pty Ltd for renovation carried out by my company” on a property in Suburb U.
The father deposed that he provided financial support to the mother’s brothers.
In relation to the separation the father deposed that the “circumstances that occurred prior to the final separation revolved around [the mother’s] extended family, namely her brothers”. He deposed he has had “lots of trouble and runs [sic] with the [brothers]”, always [sic] threatened to “fix me up” and “burry [sic] me” for no reason at all”.[32] He deposed that the mother was aware of these threats and present for most of them. He deposed that the brothers would threaten to harm him and show guns to him and that he took the threats seriously and feared for his life.
[32] Affidavit of the father filed 14 July 2017, par 44.
The father further deposed to an incident “days before” the parties separated where the mother’s brother Mr D came to the family home around 8pm and was shouting and screaming abuse at him in the presence of the mother and children. The father does not depose to the date of this incident. He deposed that Mr D then came up close to him in a very “menacing and threatening manner”.[33] The father went on to describe the mother’s brother lifting up his blazer and showing him a gun and that the father asked the mother if she told her brother to threaten him and she responded with words to the effect of “yes”.
[33] Affidavit of the father filed 14 July 2017, par 49.
Following this incident the father deposed that he rang his brother who advised him to leave the house, go to the police and “go to a safe place”. He deposed that he had “also had discussions with [sic] [Suburb V] family law lawyer about my situation and other incidents of family violence and she suggested I hide or leave the house while things cooled down”.[34]
[34] Affidavit of the father filed 14 July 2017, par 50.
The father deposed that he booked plane tickets to the United States of America on 9 October 2013.
The father deposed that he flew to the United States of America on or about 10 October 2013 and stayed with his cousins for two and a half months before returning to Australia. He described leaving everything behind besides taking one suitcase of clothes with him. He deposed that he left his “tools of the trade” behind. The father deposed that the value of the tools is approximately $20,000.
He deposed that he did not tell his family that he was leaving because he was afraid for his life. He deposed that he did not contact the mother while in the United States of America and only contacted his daughter.
He deposed that he returned to Australia on or about 2 January 2014 because he missed his family.
When he returned to Australia the father deposed that on 8 January 2014 he sought assistance from the police for protection against the mother’s brothers. He deposed to providing the police with CCTV footage of Mr D threatening him and that the police applied for an intervention order on his behalf against Mr D.
The father deposed that he had seen Mr D’s car outside the police station on 8 January 2014 and that he therefore felt unsafe. He described that due to this, coupled with the threats, he decided to leave Australia on 18 January 2014 to travel to Country Y. He deposed that he did not tell the mother or Ms C that he was leaving Australia. Upon arriving in Country Y the father deposed that in or about March 2014 he commenced working as a lecturer.
The father deposed to his relationship with the children prior to separation. He deposed that he:
·    Was involved in their day to day care and routine;
·    Had been there for the children “all of their lives until separation”;
·    Shared responsibility for the care of the children with the mother after their birth;
·    Changed nappies, bathed them, fed them;
·    Took them to the doctors when they needed to go;
·    Picked them up from school regularly; and
·    Was actively involved in their education, health, wellbeing, homework and school activities.
He deposed that he had an “excellent relationship” with the children “at all times” and that he communicated with them extremely well and they regularly confided in him.
He deposed that following the birth of B the mother worked full time and she “did not have the flexibility that I have had as a builder working for myself enabling me to always be there when the children needed me”.[35]
[35] Affidavit of the father filed 14 July 2017, par 29.
The father deposed that he has a “very strong bond” with B. He deposed that he was the coach of the child’s soccer team for two years and that he and the child went swimming every Sunday and occasionally fishing.
He further deposed that he cooked for the family regularly and that weekends were occupied with “entertaining, outings, holidays and shopping”.[36]
[36] Affidavit of the father filed 14 July 2017, par 35.
The father maintained that the mother has “alienated the children” from him by “not facilitating any time for me to spend or communicate with the children when I have requested to do so”.
In relation to family violence, he denied having a history of family violence and deposed that he has no criminal record. He denied the mother’s allegations that his behaviour was threatening.
He went on to deny that he posed a threat to the mother or his children and maintained that he would never cause them harm. He deposed that apart from “normal father and teenage daughter arguments” he has never threatened or harmed Ms C and argued that there is no evidence he has ever threatened or harmed B.[37]
[37] Affidavit of the father filed 14 July 2017, par 79.
The father deposed to an alleged incident that occurred on 6 October 2013 in which the mother smashed her mobile phone and a TV remote in front of him and the children. The father deposed that the children were scared and that B was crying.
The father deposed that the mother did not want him to visit or talk to his family in Country Y during the relationship and she “controlled everything that I did and used the threats of taking the children away from me or using her 3 brothers to threaten me all the time”.[38]
[38] Affidavit of the father filed 14 July 2017, par 43.
In relation to the intervention order proceedings initiated by the mother, the father deposed to having no knowledge of the proceedings on 10 January 2014. He deposed that the proceeding took place two days after the police made the application for the intervention order against the mother’s brother.
The father responded to the mother’s affidavit in which she deposed to a text message the father sent to Ms C on 25 October 2013. The father deposed that the SMS text message was taken out of context and that he meant that he would like to hear the children’s voices because he has nothing else in his life.
The father denied ever making threats to the mother’s family and maintained that he is “terrified” of the mother’s brothers as they are violent men and that the “two younger brothers are convicted criminals”.
He deposed that:
I am very concerned that the children continue to be exposed to family violence of the [mother’s] brothers while [living] with their maternal grandparents and [the mother’s] two youngest brothers, which is not in their best interests.[39]
[39] Affidavit of the father filed 14 July 2017, par 64.
The father deposed that at the time of separation there was a credit card debt of $30,000. He further deposed that his brother Mr G Caron loaned the parties $15,000 on 28 February 2013 for a term of no more than 3 years at 4 percent interest.
The father asserted that he could not file tax returns for his business for the year ended 30 June 2012 because the mother “has in her possession my business laptop computer which contains all my business records”.
Further the father asserted that the matrimonial asset pool is small due to the various moves within Australia to follow the mother’s family.

Cross-examination of the father

The father maintained in cross-examination that he has never committed family violence towards the mother.
The father maintained in cross-examination that he was not going overseas until he was threatened on 9 October 2013 by the mother’s brother who attended the home at about 8 pm. He stated that as a result of that he left the house.
The father maintained that he left Australia in October 2013 as he was threatened and he left for no other reason. However he stated he didn’t leave just because of the alleged threat on 9 October 2013 but that there had been threats for five years and that for the last two years they were more consistent, every time he met with the mother’s eldest brother. He gave evidence that from 21 July 2013, the date his father died, until the day he left the threats were every day from Mr D. However he then stated it was “almost every day”. He gave evidence Mr D had a key to his house and would enter it without his permission.
The father conceded he had booked his flights prior to 8pm on 9 October 2013. He maintained that as far as he could remember Mr D came to his house at 8pm on 9 October 2013. The father denied holding a gun to the mother’s head on the night before separation in October 2013. He conceded there were arguments on 9 October 2013. When questioned what the arguments were about he responded the mother wanted “things done in her way” and threatened him her brothers were going to kill him and she threw the phones.
Exhibit C (page 2) records what appears to be a credit card statement of the father, with an amount highlighted in pink showing a payment of $62.69 on 3 October 2013 for “[Company K] – TRAVELVISATOUS HA NOI”. On the basis of Exhibit C, the father conceded in cross-examination that he applied for a visa to the United States on 3 October 2013 well before the date of separation. He conceded that he had his airline tickets issued at 5:17 pm on 9 October 2013 consistent with Exhibit D.
Exhibit D (page 1) records the invoice for the purchase of flights to the US, issued on 9 October 2013 at 5.17pm, invoice number …44.
Exhibit D (page 3) records the ‘Statement of Account – Booking …72’ which indicates both the Visa purchase referred to in Exhibit C (ref ...78) and the ticket purchase (invoice …44). The statement records that the flight amount is due to be paid for and is shown as ‘balance outstanding’, and the visa is showing as ‘credit’.
This was inconsistent with his evidence that because the mother’s brother had threatened him on the evening of 9 October 2013 about 8 pm that he decided to leave for the United States for his own safety. In explanation of this inconsistency the father maintained that he had been threatened over a period of time leading up to the separation.
During cross-examination the father conceded that he did not tell the mother or the children that he was going to the United States of America. He stated he didn’t tell the children because he was afraid. He also conceded that while in the United States of America he did not have any communication with B. He maintained that he received legal advice from a lawyer to “go in hiding”.
The evidence the father gave in relation to the safety of the children with the mother’s family was conflicting. The father was asked by counsel for the mother whether he thought the children would have “any problems” with any of her family when he left in October 2013 and he responded yes. Later it was put to the father he left the children with people he considered to be dangerous and he responded “dangerous to me” and “that’s why I’m here to fight for”.
When questioned by counsel for the mother as to whether the mother is a good mother he responded “now, no” and when questioned whether the mother was a good parent he said “I don’t know”. He was questioned whether he thought the mother was a good mother when he left and he responded “I believe so”.
The father in cross-examination maintained that he had a loving relationship with B before October 2013 and conceded it would have been a shock to the child when he disappeared.
When questioned by counsel for the Independent Children’s Lawyer about not saying goodbye to B when he left Australia in January 2014 he gave evidence he “could not” see B. He gave evidence that he was “not allowed” to have contact with B when he was in Australia in January 2014. The father admitted he did not have contact with B from January to December 2014 however stated he rang the child’s school a few times. He stated he could not speak or write to B.
The father’s evidence about why he didn’t make an application to the Court to spend time with B was confusing and unclear at times. It was put to the father that when he said that he couldn’t speak to B, the father could have made an application to the Court at any time. The father responded “I thought we were going to fix the situation by communicating with each other”. It was put to the father he could have made an application to the Court in October 2013 and he responded “I was threatened again in January”. It was also put to the father that he could have made an application in January 2014 when he returned to Australia and he responded “I had to run for my life”. Further it was put to him he could have made an application at the end of 2014 and he responded “I did…as soon as I came back, I made an application straight away”. He later gave evidence again that he initiated proceedings in December 2014. However the father has never made an application to this Court, he is the respondent and his first response was filed on 26 June 2015. He later gave evidence he made an application to revoke the Intervention Order.

Counsel for the Independent Children’s Lawyer asked the father whether he still thought his life was at risk today and he responded “yes.” The father was asked what had changed since October 2013 concerning his alleged sense of fear and the risk the mother’s family poses to him. He gave evidence he has “police protection”. The father was repeatedly asked about the nature of the police protection. He gave evidence he has informed the police but then conceded that “police protection” might be a strong statement. When asked what has changed since October 2013 until the present time he responded that he is not in contact with the mother’s family anymore and they “got what they wanted”.
The father maintained that he is still in fear of the mother’s family as he was when he left in October 2013. The father was asked by counsel for the Independent Children’s Lawyer if the mother’s family are still capable of the same things and capable of killing him and he responded “Yes”.
When questioned whether he had changed his view after reading the family report and hearing the evidence of the family consultant, the father was firm that his position in relation to B would “never change” and he will “always be demanding that my child needs me, needs his father next to him to guide him, to give him support, opportunities in life”. In response to questions from counsel for the Independent Children’s Lawyer he disagreed with the family consultant’s opinion that the child should spend no time with him.
The father was asked about how to address the child’s distress in seeing him. He responded that both parties should work for the benefit of the child. He further responded that the mother should tell the child “you have a father to see. Make him proud. Make him want a father. That’s mother’s responsibility”.
The father stated that he was very concerned about the child. The father was questioned by counsel for the mother about whether trying to see B might harm him more and he responded “possibly”. He was questioned whether he should wait until B is ready to see him and he disagreed. He ultimately disagreed with the proposition that it might harm the child to see him.
The father agreed that it is his belief that the child’s views as expressed to the family consultant are a product of the child being “brainwashed” by the mother and perhaps with the assistance of Ms C and extended family members.
He agreed with counsel for the Independent Children’s Lawyer that the child is quite justified in his feelings of “abandonment” and “rejection” and that the reason he is justified is because in October 2013 the father “simply disappeared”. Finally the father conceded that the child’s feelings are “completely and utterly valid”.

Evidence of Senior Family Consultant, Ms T

The senior family consultant, Ms T interviewed the child on three occasions and prepared two reports. Ms T is a Senior Family Consultant in the Melbourne Registry and holds a Bachelor of Social Work and a Graduate Diploma in Psychology. Her expertise was not challenged. The first report was prepared for the Federal Circuit Court and is dated 9 September 2015. The second report dated 31 July 2017 was prepared for this trial.
In the latest report the senior family consultant made the following written recommendations concerning the issues in the trial:
·that the mother have sole parental responsibility for the child;
·that there be no time or communication between the child and his father;
·that the mother enrolled the child in a Supporting Children After Separation Program;
·that the father consult with his GP with a view to obtaining a mental health plan for access to psychological services that can assist with his experience of loss.
At paragraph 42 of her second report, the senior family consultant noted that attempts to re-establish a relationship between the child and his father in a professionally supervised setting had been unsuccessful. She noted that a “gentler approach in the form of a gift from his father was trialled and rejected by B”. The senior family consultant referred to her conclusion in 2015 that:
It is difficult to point to a time in the future where B may be ready to see his father. His distress was palpable at interview and his feelings of being abandoned by a poor parenting figure exacerbate the sense of injustice he and his sister feel.[40]
[40] Family report dated 9 September 2015, par 40.
It was her opinion at paragraph 42 of the second report that “Much is unchanged for B and his position of resistance to seeing his father appears to have galvanised over time.”
At paragraph 45 of her second report, the senior family consultant stated that it is likely that the child’s views of his father have been influenced by his sister’s very strong and negative views. She was of the opinion that the child holds the belief that his father was a poor parent pre separation. She reported that the child makes claims of being exposed to his father’s “frightening behaviours including the use of guns. Importantly B interprets his father’s sudden departure from the home as abandonment and this appears to be a driving factor in B’s rejection of his father.”
The senior family consultant pointed out that it is difficult to accurately assess whether the child’s views are from his lived experience of his father or whether they are from the undue influence of maternal family given that there was no information from independent sources to support either party’s claims.[41]
[41]Family report dated 31 July 2017, par 46.
The interview of the child by the senior family consultant revealed that the child’s views remained the same, and were consistent with what he told her during the previous interview in 2015. The child also expressed a view that no one was listening to him, claiming that the meetings result in him having to restate a position that is distressing for him. He referred to having met with the former Independent Children’s Lawyer for the earlier proceedings and telling that person that he did not want to see his father, and that he had “a nice life” without him. The senior family consultant noted at paragraph 32 of the second report that the child began to retell his earlier reports of the reasons why he was frightened of his father and that he did so without prompting.
The senior family consultant recorded in the second report that the child said “He used to drink and then shoot things with a gun, he has a gun… One day when my Mum was out he was drinking a lot and he went outside with his gun and I had to go with him. It was dark he was pointing the gun at cars, I don’t know if there were bullets but he was aiming the gun at cars… cars used to sometimes speed up our road”.[42]
[42] Family report dated 31 July 2017, par 32.
The senior family consultant noted that the child could not envision a time in the future when he may want to see his father and he said that his father had “done so many bad things… I stress a lot I can’t sleep I have nightmares a nightmare he will come and take me from the laundry. When I wake up I go into the laundry to see if he is there… it’s awful”.[43]
[43] Family report dated 31 July 2017, par 33.
During the interview with the senior family consultant, the child reported negatively on his experience being forced to travel to the contact centre to spend supervised time with the father under the interim orders made in the Federal Circuit Court. He said “I didn’t want to get out of the car… I would have been fine in the car but I was thinking he will do something bad to me… I can’t trust him… Why now? Why does he want to see me now…. he’s faking it… they were forcing me to get out but I didn’t want to… I didn’t want to get out”.[44]
[44] Family report dated 31 July 2017, par 29.
At paragraph 34 of the second report the senior family consultant summarised what the child had told her to assure him that she was listening to him. When she told the child that it was understood that he did not want to see his father “for now”, the child responded “that’s mostly right but not the ‘for now’. It’s not now or ever. No. Never. Zero. I don’t like talking about this or coming here.”
At paragraph 26 of her second report, the senior family consultant recorded that she asked the father if he had considered the possibility of ending the litigation to relieve the pressure on the child. The father’s response was “the mother should not stop B seeing his father… he needs a person to guide him… he needs a father figure.” The senior family consultant highlighted that the father’s focus throughout the interview was dominated by discussion about the influence of the maternal family, but that the father could not elaborate on what could be done to provide any tangible options in light of the unsuccessful attempt to reconnect the child with him for the proposed supervised spend time arrangements. The father told the senior family consultant that the child is older now and needs him to guide him in his life and that he has been “manipulated, threatened and his mind is scared.” He was of the firm view that the child had been “brainwashed” by the mother and the maternal family. The father told the senior family consultant that he believed that he was being punished and the child’s resistance to him was manufactured.
For the second report the senior family consultant also interviewed the child’s adult sister who had assisted the mother with the earlier attempts to reconnect the child with his father during supervised visits. Ms C reported witnessing the child screaming and yelling and that she and her mother could not get him out of the car. She also confirmed that in the days leading up to the scheduled visit her brother was having nightmares.
At paragraph 47 of her second report the senior family consultant pointed out that if the child and his sister’s experience of the father is accurate, it would be entirely appropriate for there to be no time ordered between the child and his father. It was her opinion that in the circumstances, B would need time and space to recover from his experience and continued pressure to reconnect with a parental figure whom he fears. She was of the view that it would pose a range of risks to his emotional and psychological well-being and may also begin to undermine his basic sense of trust in his mother and this would leave him highly vulnerable.
The senior family consultant cautioned in her second report that any order for the child to spend time with the father in accordance with the child’s wishes may be developmentally burdensome for him and may drive the child further from his father, and was not recommended.
The senior family consultant’s assessment of the mother was that she provided answers to questions posed, was appropriately child focused and did not need redirecting. The senior family consultant reported that the mother’s views and perspective on the dispute remain unchanged since the last report and it is her strongly held belief that the child needs protection from his father. The mother reported that the child’s views are as a result of his lived experience of his father’s behaviour, and claimed that she has not overexposed the child to her views of the father. The mother was of the view that it is harmful for the child to be forced to see his father and that the child gets hysterical when thinking about it. She reported that the child is progressing well at school and otherwise the family functions well. However the mother maintained her fear that the father would remove the child from the country.

Cross-examination of the family consultant

In cross-examination by the father, the senior family consultant confirmed the recommendations made in her report and was unshaken in her opinion.
In cross-examination the senior family consultant was asked whether she questioned B about what sort of “bad things” the child was scared that the father would do. She responded that the child required little prompting in relation to his experience of the father and when she asked the child “tell me about your father” he told her a “whole lot of bad things about what his father had done”. She explained that he believes the father will take him and might hurt him. She stated that the child maintained these two statements over the course of her interviews with him.
The senior family consultant was asked in cross-examination by the father about the timing of the child saying he didn’t want to come to the interview with the family consultant. The senior family consultant was asked whether this was due to a fear of the father, or as a result of pressure from his mother. She responded that it could be all of those things and that the “overwhelming sense I get from B is these interventions are unwanted and that they are intrusive and he doesn’t see the point of having to come and tell me again what he has already told me”.
The father put to the senior family consultant that there was an inconsistency between a statement the child made in the first family report and the second family report. In the first family report the child described an incident when the father pointed a gun at “cans” and in the second family report the child described the father pointing a gun at “cars”. The family consultant conceded that there was an inconsistency but in her view she did not find this significant or that it detracted from the “disclosure”. She stated that the central features of that statement were consistent across both reports; in that he was with the father and that the father had a gun and was going to do something with the gun.
In response to questions in cross-examination by the father, the senior family consultant stated that at this point in time the child is rejecting the father. She said that the child’s statements about not wanting his father in his life and not wanting to see or communicate with the father have been consistent over the three occasions when she assessed the child. She emphasised that when arrangements were tested for the child to spend time with the father the child refused to get out of the car. She stated that it was “difficult to not conclude as a result of all of that information available that what hasn’t been tried is providing B with a bit of respite from actually what is happening and what that means in plain language is that he should not see the father”.
The senior family consultant was asked by the father during cross-examination whether she believed the child had been “brainwashed” by the mother or other members of the family. The family consultant stated:
Yes, I wouldn’t use the word brainwashed but I have referred in my report to the fact that in high conflict cases and where there are allegations of family violence and where there are counter allegations of alienation and undue influence, you can’t eliminate the possibility that there has been some undue influence. I think that there are some clues to suggest that his older sister has been potentially more influential in terms of B developing a negative view of his father… so yes it is possible that there has been some undue influence… the flip to that is that if the claims of family violence are accurate and if the abuse has occurred in the way that the mother and Ms C describe then perhaps some of this influence is actually designed to protect B from his father, rather than be perceived as the actions of an alienating parent or agent…
When it was suggested to the senior family consultant that the father had a good relationship with the children during the marriage, she stated that this was entirely possible and that most dysfunctional relationships are not dysfunctional at every minute of the day. She stated that she was sure there were moments of harmony and moments where there was a lack of conflict. However she stated that the children dispute that and the overwhelming feeling she had about their appraisal of his parenting was that he was an “absent father, a remote figure and that he was largely self-interested”.
The senior family consultant was firmly of the view that at this stage the child did not need his father. The family consultant was asked by the father why the child does not need his father at this stage and she responded that:
…of course generally speaking it’s entirely appropriate for kids to have a healthy post separation relationship with both parents… one of the issues for B is that he perceives that his father has abandoned him…
…It becomes about what type of father should be in B’s life. Now B is telling us that firstly he feels rejected and abandoned by his father and part of the strong reaction in B’s comments to me may well be about B wanting to do to his father what he perceives his father did to him…At this point I think that any reunification between B and his father is further opportunity for B to reject his father and that is wholly unhelpful for him and will just reinforce to B that this relationship is not a nurturing one and it is not a relationship that is available to him. So at this point in time I don’t think it’s a good idea.
The family consulted agreed with the father that this is sad.

Assessment of the mother

The mother impressed as a witness of truth who answered questions to the best of her ability and who was child focused. She impressed as having been genuinely traumatised by the incident in October 2013 which led to the father leaving the family home. There is no likelihood of the mother communicating with the father for the purposes of making long-term decisions about the child because she remains in fear of him and relies on an intervention order for protection.

Assessment of the father

It was clear during cross-examination of the father in the trial that the father continues to harbour great animosity towards the mother and her family whom he blames for the child’s rejection of him. During cross-examination he suggested that he was reasonable in refraining from reporting the mother to the Director of Public Prosecutions for having sold his car without his authority after he left the country and he continued to maintain that he was in fear of his life from the mother’s brothers.
He ultimately accepted that the child’s feelings of abandonment as described by the senior family consultant may stem from the fact that he left the family without telling them. He could not proffer any practical proposal for addressing the fractured relationship with his son. He gave the impression of being oblivious to the impact of the litigation upon his family and in particular on his son. He appeared to be consumed with his own emotional needs as opposed to B’s needs.

Findings

I am satisfied that the father provided no explanation to the mother or his children about why he left for the United States in October 2013. I am satisfied that the father has had no contact with the child since October 2013 and that the father stayed in the United States for approximately two and a half months after separation, returned to Australia for two weeks and then travelled to Country Y where he stayed for approximately 11 months.
I am satisfied on the balance of probabilities that the child has been exposed to a violent outburst by the father directed at the mother and his sister on 9 October 2013 at the family home on the evening before the parties separated and the father left for the United States. I accept and prefer the evidence of the mother about this incident because her evidence was compelling.
I accept the evidence of the mother about the text message sent to the child’s sister by the father on 25 October 2013 whilst he was overseas. The content of the message was not challenged by the father. I am satisfied that this message constituted a threat towards the maternal family and corroborates the evidence of the mother about the aggressive attitude of the father.
It is unnecessary to make more detailed findings about the serious allegations made by the mother about the father assaulting her during the course of the marriage in Country Y and Australia. The allegations involve serious criminal conduct and no complaint was made at the time. The father denies the allegations. There has been a considerable delay since these alleged incidents occurred and the focus of the trial was upon the best interests of the child and the reality of what has occurred since separation some four years ago.

Accordingly, on all the evidence I am satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for B and I am satisfied that it would be in the best interests of the child for the mother to be vested with sole parental responsibility for him. This is because the mother has been making all of those decisions on behalf the child, and particularly in circumstances where the father left the country without telling the mother or the children and the mother has been the child’s primary carer since birth. The mother has a close relationship with the child.
As there will be no order for equal shared parental responsibility, I am not required to consider whether it is in the child’s best interests, and reasonably practicable, that the child spend equal or substantial and significant time with the father. I am at liberty to determine directly which parenting orders are in the best interests of the child.

Conclusion: Parenting

With the exception of the proposal for the child to attend counselling, I accept on all the evidence that the proposals of the Independent Children’s Lawyer supported by the mother are in the best interests of the child. I am satisfied that the mother is a responsible parent who will facilitate any counselling that might be necessary for the child without the need for a court order. The mother has demonstrated great fortitude in her efforts to comply with the interim parenting orders, contrary to her own perceptions about this being against the best interests of the child. Accordingly, I am not satisfied that there is any need to make an order for counselling for the child and I do not propose to make such an order.
The father has consented to the proposal for the child’s name to be placed on the Airport Watch List for a period of two years and that order will be made by consent of the parties and the Independent Children’s Lawyer.
I do not propose to make any of the other orders sought by the father which would require the mother to inform him about the child’s health, treating professionals, travel with the child or for non-denigration. This is because of the intervention order and the child’s fear of the father and fear that the father might remove him from the care of the mother. I am satisfied that to make the numerous other orders proposed by the father would be counterproductive to any meaningful relationship with the father and would not be in the best interests of the child. Those proposed orders such as non-denigration orders are difficult to enforce and might also result in further litigation which would not be in the best interests of the child.
The Independent Children’s Lawyer proposed a notation in the orders which I do not propose to make. The father has seen the family report and it is a matter for him if he wishes to follow the recommendations of the family report writer that he obtain a referral to a psychologist to assist him with matters of grief and loss.

Property

The applications

The wife sought the following property orders:
·That the wife receive the funds currently held in the Supreme Court of Victoria in the amount of $67,499.15.
·That the parties each retain the furniture, household items, equipment, tools, motor vehicles and any other assets they either retained or took with them at the date of separation (10 October 2013).
·That the parties retain their respective superannuation entitlements.
·That the respondent pay the applicant’s costs in these proceedings.
·Any other orders the court deems fit.
The husband sought the following property orders:
·That the net proceeds of sale of $67,499.15 held by the Supreme Court of Victoria be distributed as follows:
o$30,000 to pay the NAB credit card loan in the name of the husband;
o$15,000 in repayment of a loan from the Husband’s brother Mr G Caron.
o$10,132.50 to pay the ATO of the income tax liability of Z Pty Ltd for year ended 30 June 2012.
·There be a just and equitable division of the asset pool after distribution of the $67,499.15 proceeds pursuant to the above paragraph with a 40:60 split in favour of the Wife.
·Each party retain their superannuation entitlements.
·Any such further or other Orders as this Honourable Court deems appropriate.

Legal principles

Section 79 of the Act provides for the discretionary alteration of property interests between the parties to a marriage. Under s 79(2) of the Act, an order cannot be made unless it is just and equitable in all the circumstances.
The relevant factors under s 79(4) of the Act which must be taken into account in considering what order (if any) should be made are as follows:
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
e)the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage; and
g)any child support under the Child Support (Assessment) Act 1989 that a party to a marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
In Bevan & Bevan (2013) FLC 93-545 (“Bevan”) at 87,232, the Full Court of this Court considered s 79 of the Act and set out the three fundamental propositions in relation to this section which the High Court of Australia laid down in Stanford & Stanford (2012) 247 CLR 108 (“Stanford”). These are as follows:
(1)Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
(2)The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
(3)A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(emphasis in original)
In applying those principles, the parties’ legal and equitable interests in property must first be identified.

The approach

I have applied a holistic assessment of the parties’ contributions and they each agreed that the contributions of the parties during the marriage were equal.
The approach I have taken is to consider the contributions of the parties by determining the nature, form and characteristics of all contributions across the whole of the marriage and post-separation. In Marsh & Marsh (2014) FLC 93-576, Murphy J observed at 79,075:
The expression “post-separation contributions” has, of course, been used widely in many authorities within the context of discussions about the assessment of contributions. But, importantly, it is not the fact of separation or when contributions are made that is the delineator. It remains crucial to analyse and weigh that nature, form and characteristics of all contributions across the whole of the period under consideration.
It is not possible to ascribe a mathematical value with any precision to the comparable weight of the differing contributions between the parties and this would be inconsistent with the holistic approach required by s 79 of the Act.
There are a number of factors to be taken into account under s 75(2) of the Act when considering what, if any, order should be made under s 79 of the Act. These factors are considered later in these reasons

Is it just and equitable to make an order?

Both parties seek that an order be made to determine the distribution of the amount of $67,499.15 currently held in the Supreme Court of Victoria.
The parties have agreed that each party should retain their own superannuation entitlement and I note that the value of the wife’s superannuation entitlement is only approximately $1,200 more that the value of the husband’s superannuation entitlement.
These parties have ended the marriage where there was an intermingling of finances and the only non-superannuation asset of the parties is the sum of $67,499.15 held in the Supreme Court of Victoria being the surplus funds from the mortgagee sale of the Town E land by the bank as mortgagee. The land was registered in joint names. Both parties seek to put an end to their joint financial arrangement.
I am satisfied that it is just and equitable under s 79(2) of the Act to make an order altering the interests of the parties in the property of the marriage.
There is no dispute that each party should retain their own superannuation.

Identification of existing property interests

The parties each produced a balance sheet of assets and liabilities (Exhibit B for the wife and Exhibit 2 for the husband) during the trial.
The wife’s balance sheet is as follows:

ASSETS		AMOUNT
1	Funds in Supreme Court	$67,499.15
2	Superannuation	$16,395.98
3	Commonwealth Bank Account	$167.68
4	Household furniture, utensils	Nominal value
*Total*		*$84,062.81*
LIABILITIES		AMOUNT
1	Legal fees	$13,000.00

The husband’s balance sheet is as follows:

ASSET POOL		AMOUNT
1	Land sale proceeds held by Supreme Court	$67,499.15
2	Superannuation of wife	$16,395.00
3	Superannuation of husband	$15,600.00
*Total Estimated Assets*		*$99,494.15*
LIABILITIES		AMOUNT
1	NAB credit card	$32,631.74
2	Z Pty Ltd income tax debt	$10,132.50
3	Loan from Mr G Caron	$15,000.00
4	Tools of trade	$20,000.00
5	Full house furniture	$25,000.00
6	Business laptop computer	$2,000.00
*Total Estimated Liabilities*		*$104,764.24*

The valuation of the superannuation of each party was agreed and as referred to earlier it was agreed that each party should retain their own superannuation.
I find that the parties have combined superannuation of approximately $31,995.98 being $16,395.98 held by the wife and $15,600 held by the husband.
I find that the only significant non-superannuation asset of the parties is the sum of $67,499.15 held by the Supreme Court from the proceeds of the mortgagee sale of the Town E block of land.

The Evidence in the property proceedings

I incorporate my earlier findings insofar as they relate to the property of the parties.
There was a dispute between the parties about which property the wife retained at separation. I accept and prefer the evidence of the wife that when the husband left he took his work vehicle, a 2007 Ford Utility, his firearm, his laptop, tools and clothing together with $20,000 cash in savings from a safe at the home of the parties and a ring which was a gift to her.[47] The wife was not challenged by the husband in cross-examination about the work vehicle, the cash or the ring but the husband in cross-examination denied that he had taken the cash or the ring.
[47] Affidavit of the mother filed 16 June 2017, par 40.
The husband maintained that he left his laptop with the wife but I prefer the evidence of the wife that the husband took this with him. The husband in cross-examination maintained that he supported himself in the United States without using a credit card but with the assistance of his cousins who accommodated him. In cross examination he denied taking $20,000 from the safe when he left. He stated in cross-examination that he left his utility with his “worker” in Australia. The husband was unable to answer why he didn’t leave the car with his family.
The husband gave evidence that when he left for the United States he left the wife approximately $1,500 to $2,000 in a joint bank account and that rent had been paid for two months and that the fridge was full. He conceded he left the family no money when he went to Country Y. Counsel for the mother relied upon Exhibit F which showed there was $416.05 in the parties’ joint account at separation on 10 October 2013. The husband gave evidence that the wife had her own bank account.
I rely on Exhibit C which is evidence of the purchase of a Visa by the husband on 3 October 2013 which indicates that he made preparations to leave the country before 10 October 2013 when he travelled to the United States, which is the date the parties separated. From this evidence I infer that he had time to consider what items to take with him including his laptop and this supports the evidence of the wife. In cross-examination the husband said that he had one gun, for which he possessed a licence, which he sold on 10 October 2013.
At separation I am satisfied on the evidence of the wife that she retained the furniture, linen, cutlery, clothing and a motor vehicle which she sold for $2,000 in or about December 2013 to pay for rent and food for herself and the children. This car was the car which she drove during the marriage. The wife also had savings from the joint bank account of $416.05 (Exhibit F) which she used for living expenses.
I accept the evidence of the mother’s brother Mr D that he has supported the family financially by providing them with funds amounting to $104,078, between 19 December 2012 and 24 July 2013 which have never been repaid. There was no evidence that there was ever any demand for repayment. I reject the evidence of the husband that some of these funds were paid for work which he had undertaken through his company as there was no other evidence to support this claim.

Alleged liabilities

The respondent husband seeks to prove a number of liabilities of the marriage. The wife does not agree that the NAB credit card debt was incurred jointly. The wife denies that the parties ever borrowed $15,000 from the husband’s brother. The wife also denies that there is evidence of an income tax debt for Z Pty Ltd.

NAB credit card debt

The husband relies on Annexure VC 5 to his affidavit to prove that he has a debt outstanding to the NAB for a credit card which he estimates at $32,631.74. Annexure VC 5 is a photocopy of a default notice addressed to the husband from Credit Corp Group dated 26 May 2017 which refers to the husband being in default under the terms of his credit contract relating to National Australia Bank account – 4557016843778858 with an outstanding balance of $47,099.36. He deposed at paragraph 69 of his affidavit that “there is a credit card balance outstanding of $47,099.36, most of which was incurred during the marriage. The amount owed at the separation was approximately $30,000”. He deposed to annexure VC 5 as a true copy of the credit card statement at the time of separation and a letter dated 26 May 2017 from Credit Corp Group. Annexure VC 5 is not a credit card statement at the time of separation.
At the beginning of the trial, the husband tendered Exhibit 1 which was a bundle of documents including NAB credit card bank statements for the husband for the periods:
·    19 September 2013 – 18 October 2013;
·    20 August 2013 – 18 September 2013;
·    19 July 2013 – 19 August 2013;
·    19 April 2013 – 17 May 2013;
·    19 February 2013 – 18 March 2013;
·    19 January 2013 – 18 February 2013;
·    19 December 2012 – 18 January 2013;
·    20 November 2012 – 18 December 2012;
·    19 October 2012 – 19 November 2012; and
·    19 September 2012 – 18 October 2012;
These statements appear to refer to payments for restaurants, expenses for the building business and living expenses. The statement from NAB at the time of separation is for the period 19 September 2013 to 18 October 2013. This is evidence of a closing balance in debit of $30,766.17.
Counsel for the wife relied upon Exhibit F which was a copy of the parties’ joint bank statement for Account number 45-560-3393 for the period beginning 1 October 2013 until 10 October 2013 being the date of separation. This statement indicated that the account was in credit at the date of separation in the amount of $416.05. The wife deposed that to the best of her knowledge the only debts of the parties at separation were the loan to her brother and the bank loan which amounted to $209,424 by 11 March 2014 and which was repaid through the mortgagee sale in October 2014.
I find that the husband had a liability to the NAB of $30,766.17 at the time of separation. This was a personal debt for Visa Account No. 4557016843778858 which is referred to in Annexure VC 5 of the husband’s trial affidavit which is the default notice dated 26 May 2017 from the National Australia Bank.
I am satisfied that the credit card debt was incurred by the parties before separation and for living expenses and that this is therefore a joint liability of the parties at the time of separation.

Loan from respondent’s brother, Mr G Caron

It is the husband’s case that in February 2013 the parties borrowed $15,000 from his brother who lives in Country Y which the parties used to purchase the Town E block of land. This is denied by the wife.
The husband relies on Annexure VC 6 to his trial affidavit which at paragraph 71 of his trial affidavit he deposed to being a “true copy of our joint NAB bank statement showing the receipt of $15,000 from Country Y”. Annexure VC 6 is not such a statement. The husband put to the wife a portion of a bank statement for identification by the wife in cross-examination which was tendered by counsel for the wife as Exhibit A.
Exhibit A appears to be a NAB bank statement for the period 1 February 2013 until 28 February 2013 and for the period 1 March 2013 until 28 March 2013 from a joint bank account of the parties. It is account number 45-560-3393. The husband relies upon an entry which indicates that on 28 February 2013, $15,000 was credited to the joint account from Country Y from the respondent’s brother Mr G Caron. The husband relies on this evidence for his assertion that his brother loaned to the parties $15,000 for no more than three years at 4 per cent interest and that the funds were used to purchase the block of land at Town E.
In response to questions in cross-examination the wife agreed that there was a transfer from the husband’s brother of $15,000 into the parties’ joint account on 28 February 2013 (Exhibit A). However she stated it was not a loan from Mr G Caron but it was money that the husband’s brother owed to the parties. She stated that they had sent the money overseas to him years ago and the husband took the money physically from Brisbane to Country Y after the parties sold the Town F property. She stated the money was “returned” to them as it was their money. She denied that the $15,000 was used to purchase the Town E block of land. The wife pointed to other transactions recorded in Exhibit A which evidenced the use of that money for other purchases.

I can make no finding about Annexure VC6 of the husband’s affidavit filed 14 July 2017 because there is no further explanation about that document and part of the document appears to be in another language. I accept and prefer the evidence of the wife that $15,000 was paid by the husband’s brother into the parties’ joint account on 28 February 2013 (Exhibit A) as repayment of a loan and that it was used for purposes other than the purchase of the Town E property.
The husband’s brother was not available to be cross-examined and there is no admissible evidence from him to support the husband’s claim.
The husband bears the onus of proof of the alleged debt and I find that the husband has failed to prove that there was any loan made to the parties for $15,000 by his brother.

ATO income tax debt of Z Pty Ltd

There is little evidence about the husband’s company Z Pty Ltd. The husband deposed that when he left the country at separation he was a licensed builder, that he left everything behind and took one suitcase of clothes. He deposed “I left my business, my workers all the tools of the trade”.[48] He did not refer to his motor vehicle in his affidavit. There is no other evidence about the company or whether the husband has been employed since his return to Australia. However the husband gave evidence that he is currently working but not full time. He gave evidence he is a contract worker through his business.
[48] Affidavit of the father filed 14 July 2017, par 54.
In his Statement of Financial Circumstances the husband made no reference to the company and deposed that he receives unemployment benefits of $283 per week.
The husband at paragraph 72 of his trial affidavit deposed that he has been unable to file tax returns for his company Z Pty Ltd for the year ended 30 June 2012 because the wife has in her possession his business laptop computer which contains all of his business records. He deposed to a liability of an estimated income tax debt for his building company Z Pty Ltd of between $15,000 and $25,000, but that the debt remains unquantified until the laptop is returned to him.
The evidence of the wife is that the husband took his laptop computer with him when he left the family home in October 2013 and I accept and prefer that evidence.
The husband appeared to claim a further liability when he tendered a bundle of documents (Exhibit 1) which included a Superannuation Guarantee Employer Statement of Account from the Australian Taxation Office for the period 3 October 2016 to 9 January 2017 directed to Z Pty Ltd which referred to an amount of $10,132.50 being overdue as at 9 January 2017.
The husband provided no other evidence about this debt. It would appear to have been incurred post separation by the company in circumstances where the wife had no knowledge or control over it. Prima facie it is a debt of the husband’s company which might be enforceable against the company and may be a joint debt of the parties. However there is no evidence about the overall circumstances of the company and I was not taken to any evidence which would be a basis for establishing that this debt would be enforceable against the husband personally.
I am not satisfied on the balance of probabilities that the husband has proved that there is any income tax debt which is a liability of the parties as opposed to a liability of Z Pty Ltd.
As part of Exhibit 1 the husband also provided a statement of legal costs which disclosed that he had paid his lawyers $16,400 from his weekly income and a loan from a friend and that he owed his lawyers $16,783.85. The quantum of the loan from his friend was not specified and there is no evidence of this. There was no evidence in the husband’s Financial Statement of any income other than unemployment benefits.

Findings as to identification of ownership and value of existing property interests liabilities and superannuation of the parties

On all the evidence I am satisfied that the parties have the following joint assets and liabilities:

ASSETS	AMOUNT
Funds held in Supreme Court from proceeds of mortgagee sale of Town E block of land	$67,499.15
LIABILITIES	AMOUNT
NAB Credit card owed at separation	$30,766.17
SUPERANNUATION	AMOUNT
Wife	$16,395.98
Husband	$15,600.00

After finding the ownership and value of the existing property, superannuation and liabilities of the parties, I turn to the question of the extent of the contributions made by each of them during the marriage and post-separation.

Contributions

The parties agree and I find that they had no assets at the commencement of the marriage.
Consistent with mutual concessions of the parties, I am satisfied that the contributions of the parties to the property of the marriage during the marriage were equal.
Both parties contributed financially when they were employed during the marriage. When the parties arrived in Australia in 1998 they both worked as seasonal workers. The husband worked in his company as a builder and was the primary breadwinner during the marriage. The wife worked part-time and also made a non-financial contribution to the welfare of the family as the primary carer of the children.

Conclusion as to assessment and quantification of s 79(4)(d)-(g) factors

I accept the evidence of the wife that during the marriage, both parties contributed the income that they received from working towards the purchase of their property. I accept and prefer her evidence that she had the primary responsibility for the care of the children during the marriage.
The parties have each made different contributions to the property of the marriage and the welfare of the family during the marriage and post-separation. I have concluded that the contributions made by each of the parties overall during the marriage are equal.
I accept the evidence of the wife’s brother, Mr D that he has made significant financial contributions to the welfare of the family which amount to approximately $104,000. I accept his evidence that these funds have been used by the husband to purchase a ticket for a flight to Country Y, to assist in the purchase of the Town E block of land, and to assist the husband in the payment of his payroll. This amount is a direct financial contribution made on behalf of the wife.
Post separation since November 2013, the wife has had the sole care of the two children of the marriage and has financially supported them for a period of approximately four years with the assistance of the maternal grandparents and the maternal uncles. Ms C was aged about 15 when the husband left the children in the care of the wife. Although Ms C is an adult now, the wife has been responsible for the full time care of both children without any support from the husband for a period of approximately four years. This was in circumstances where the wife had to pay rent to house the family with little savings and no contribution from the husband.
The husband has made no contribution to the financial support or care of the children since separation and the post-separation contributions of the wife weigh in her favour. The husband was assessed to pay child support but is in arrears in the sum of $8,051.74 which he is challenging with the Child Support Agency.
Whilst the contributions of the parties up to the time of separation were equal, the post separation contribution made by the wife in the financial support and care of the children for a period of approximately four years weighs in her favour.
Consequently the contributions overall favour the wife as at the date of trial.

Relevant s 75(2) factors

Section 79(4)(e) of the Act requires that the Court take into account the factors in s 75(2) of the Act so far as they are relevant. These factors are significant by reason of the small asset pool. The factors in s 75(2) of the Act are as follows:
a)the age and state of health of each of the parties; and
b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
d)commitments of each of the parties that are necessary to enable the party to support:
i)himself or herself; and
ii)a child or another person that the party has a duty to maintain; and
e)the responsibilities of either party to support any other person; and
f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
i)any law of the Commonwealth, of a State or Territory or of another country; or
ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
iii)and the rate of any such pension, allowance or benefit being paid to either party; and
g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
l)the need to protect a party who wishes to continue that party's role as a parent; and
m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
n)the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party; and
naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i)a party to the marriage; or
ii)a person who is a party to a de facto relationship with a party to the marriage; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

na) any child support under the Child Support (Assessment) Act1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p)the terms of any financial agreement that is binding on the parties to the marriage; and

q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

The wife is aged 40 and the husband is aged 50. Both parties are in good health. The wife is employed part-time as a customer service officer earning an average weekly income which includes Centrelink tax benefits of $748 with average weekly expenses for her and the children of $948.
The husband owes the wife arrears of child support amounting to approximately $8,051.74 which he is challenging. The husband deposed that he is unemployed and in receipt of benefits of $283 weekly and that he has weekly expenses of $506. However he gave oral evidence that he is working on contracts via his business. There was no evidence of any income from this business. His weekly expenses include rent of $230 and child support of $46 which it would appear is not being paid. He has deposed to “nil” liabilities. There is no evidence about what amount of child support has ever been paid by the husband.
The husband deposed to being a licensed builder and having worked as a carpenter and being successful in his business.[49] The husband on his own evidence has capacity to earn an income and gave evidence that he was working.
[49] Affidavit of the father filed 14 July 2017, par 16-17.
The wife will continue to have the full time care of the child who is aged 11 years without any other support from the husband for many years into the future. There is no evidence that the husband will financially support the child so the wife is likely to have the primary responsibility to maintain the child subject to any child support the husband might pay in the future. The wife will be meeting all of the needs of the child into the future with no realistic prospect of support or assistance from the husband.
The mother wishes to remain the primary carer and is entitled to do so but this limits her employment. However she cannot currently meet all of the expenses for herself and the child with the limited income available to her. She relies upon her family for financial support.
Accordingly the s 75(2) factors favour the wife.
The particular facts and circumstances of this case which the justice of the case requires to be taken into account under s 75(2)(o) of the Act is the fact that this is a very small property pool and the wife has received no financial support for the children post separation, apart from limited child support payments. It would appear that there is no realistic likelihood of obtaining any support from the husband if the history is any indication.
The wife has no savings and no financial security whatsoever. Despite suggestions that he has worked overseas and in Australia the husband has done nothing to reduce the credit card debt since separation some four years ago. In these circumstances the justice of the case demands that the husband be responsible for the NAB credit card debt of $32,631.74, which included debts for his business, and that the small amount of property being the funds of $67,499.15 held in the Supreme Court of Victoria be released to the wife.

Conclusion: Property

The s 75(2) factors under the Act favour the wife whose income earning capacity is not as great as the husband having regard to her role as primary carer of the child and her employment history and qualifications. There is no explanation for the husband’s unemployment and his evidence was that he is a builder.
I am satisfied that it is just and equitable having regard to the small property pool, the equal contributions of the parties, and the indirect financial contributions made by the wife through her brother during the marriage, the greater contribution made by the wife as homemaker and financially for the support of the children post separation, together with the s 75(2) factors, that an order should be made for the parties to do all things and sign all documents to cause the entire funds of $67,499.15 held in the Supreme Court of Victoria to be released to the wife.
The husband is to be responsible for the payment of the NAB credit card debt.
I have also taken into account that the parties will each retain their superannuation which results in the wife retaining the amount of $16,395.98 in her fund and the husband retaining $15,600 in his fund.

I certify that the preceding three hundred and nineteen (319) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 15 December 2017.

Associate:

Date: 15 December 2017

Annexure A

The applicant mother relied upon the following documents:

Amended Initiating Application filed 21 August 2017;
Case Outline filed 3 May 2017;
Summary of Argument filed 21 August 2017;
Affidavit of the mother filed 16 June 2017;
Affidavit of the mother filed 21 August 2017;
Affidavit of Mr D filed 16 June 2017;
Affidavit of Mr D filed 21 August 2017;
Wife’s Financial Statement filed 27 March 2015;
Family Report prepared by Ms T dated 9 September 2015;
Family Report prepared by Ms T dated 31 July 2017.

The respondent father relied upon the following documents:

Outline of Case filed 7 April 2017;
Affidavit of the father filed 14 July 2017;
Husband’s Financial Statement filed 26 June 2015.

The Independent Children’s Lawyer relied upon the following documents:

Family Report prepared by Ms T dated 9 September 2015;
Family Report prepared by Ms T dated 31 July 2017.

[2017] FamCA 1033

15 December 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Injunction

Remedies