Edinger & Duy (No 4)
[2024] FedCFamC1F 303
•10 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Edinger & Duy (No 4) [2024] FedCFamC1F 303
File number(s): PAC 4543 of 2020 Judgment of: ALTOBELLI J Date of judgment: 10 May 2024 Catchwords: FAMILY LAW – PARENTING AND PROPERTY – Undefended hearing – Final orders – Where final orders were made on 2 June 2023 for the child to live with the mother and spend no time with the father – Where the mother has since taken the child to Country D and has not returned – Where the final orders were successfully appealed – Where the matter has been remitted for hearing – Where the mother has disengaged from these proceedings but the Court is satisfied she is aware of these proceedings and the listing for final hearing – Final parenting orders made in the absence of the mother for the child to live with the father and spend supervised time only with the mother – Where Country D is not a Hague Convention country – Orders made pursuant to s 121 of the Family Law Act 1975 (Cth) to allow the father to provide a copy of these orders to various government officials, members of parliament and courts in Country D – Final property orders made for each party to retain assets and liabilities already in their names. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33(2), 10.13(1)
Cases cited: Allesch v Maunz (2000) 204 CLR 172; [2000] HCA 62
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Division: Division 1 First Instance Number of paragraphs: 81 Date of hearing: 18 April 2024 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Maclarens Lawyers The Respondent: No appearance Counsel for the Independent Children's Lawyer: Mr Reeves Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 4543 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR EDINGER
Applicant
AND: MS DUY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to s 121(g) of the Family Law Act 1975 (Cth), leave is granted to the Applicant father (“the Father”) to:
(a)Provide a copy of these orders, reasons and the orders made 18 April 2024 to any government department and/or any official of a government department whether in Australia or in Country D to assist in causing the child, X born 2015 (“the child”), to be returned to Australia;
(b)Provide a copy of these orders, reasons and the orders made 18 April 2024 to a member or members of parliament either in Australia or Country D to assist in causing the child to be returned to Australia; and
(c)Provide a copy of these orders, reasons and the orders made 18 April 2024 to any court relating to parenting proceedings or the recovery of the child instituted in Australia and/or Country D.
2.Liberty is granted to the Father to apply for an Information Order within 21 days of the date of these orders.
3.Liberty is granted to the Father to apply for a Recovery Order within 21 days of the date of these orders.
4.Service be effected by forwarding a sealed copy of these orders, reasons and a sealed copy of the orders made on 18 April 2024 to the following email addresses:
(a)…@...; and
(b)…@....
5.The Father be declared sole and beneficial owner of:
(a)The property situated at K Street, Suburb L;
(b)The property situated at M Street, Suburb N;
(c)Motor Vehicle 1;
(d)Father’s bank accounts in the name of the Father;
(e)Shareholding in the name of the Father; and
(f)Personal effects in his possession or control.
6.The Mother be declared sole and beneficial owner of:
(a)The property situated at 1 P Street, Country D;
(b)Mother’s bank accounts; and
(c)Personal effects in her possession or control.
THE COURT NOTES THAT:
A.The Father is the sole appointor and trustee of the Edinger Family Trust (“the trust”).
B.The assets and liabilities of the trust are referred to in the Affidavit of Mr Q sworn 14 March 2024.
C.The Father acknowledges the major asset of the trust is R Street, Suburb S.
D.The corporate trustee of the Edinger Self Managed Superannuation Fund is T Pty Ltd. The Father is the director and sole shareholder of the corporate trustee company.
E.The Edinger Self Managed Superannuation Fund is the owner of the property situated at U Street, Suburb L.
F.The Father seeks no orders altering the beneficial ownership of the trust or the Edinger Self Managed Superannuation Fund.
G.Pursuant to Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court may vary or set aside a judgment or order made in the absence of a party.
H.In the event that the Respondent seeks to make an application pursuant to Notation G hereof, the Respondent must make such application within 28 days of the making of these orders and ensure that they contemporaneously file an affidavit in support explaining their absence and lack of participation in these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Edinger & Duy has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the parenting orders made on a final basis on 18 April 2024 between the Applicant father (“the father”) and the Respondent mother (“the mother”), and further parenting orders and orders altering property interests made today.
The matter proceeded on an undefended basis in circumstances where the mother failed to comply with orders of the Court made on 14 December 2023 and where the Court is satisfied that the mother was aware of the proceedings, the orders sought by the father, and of the listing of the matter for final hearing.
The parenting orders made on 18 April 2024 were made by consent between the father and the Independent Children’s Lawyer.
FACTUAL BACKGROUND
The parties married in 2012 and separated on 31 August 2020. There is one child of the marriage, X born 2015. The mother had another child from a previous relationship who also lived with the family.
Both parties deposed to serious family violence incidents, including allegations of choking and sexual assault of the mother perpetrated by the father, and physical abuse inflicting wounds on the father perpetrated by the mother. Each denied the other’s allegations. After these proceedings commenced and X began spending overnight time with the father, the mother alleged that X disclosed witnessing sexual activity between the father and his girlfriend.
Throughout the substantive proceedings over a period of two years, it was the mother’s case that X repeatedly made reports that he had witnessed sexual activity in the father’s home, that he was subjected to sexual abuse by the father’s girlfriend, and that he had been physically abused and neglected by the father and the paternal grandfather. X’s reports resulted in the mother involving the police and the Department of Communities and Justice (“the DCJ”) on multiple occasions and X was subjected to repeated interviews and a physical examination. With the mother’s assistance, X also contacted E Services on multiple occasions to complain about the father. The father also took thousands of photographs to document X’s time in his care.
At the conclusion of evidence in the final hearing before Hannam J, the mother conceded that the Court could not make a finding of unacceptable risk as a result of abuse or neglect in the father’s home. However, it was submitted on her behalf that as a result of her lived experience of the father, she remained highly suspicious and vigilant, and continued to hold the view that the father posed a risk to X. Accordingly, it was her case that if X continued to spend time with the father, it was likely she would continue to document and report his complaints to the authorities. X would then be subjected to repeated interviews – being the continuation of a pattern that had emerged in the years leading up to the final hearing.
The father and the Independent Children’s Lawyer submitted X was at an unacceptable risk of harm if he continued to live with the mother as a result of the mother’s firmly held – but misconceived – belief that X was at risk in the father’s care. Those risks included that the mother could not support X having a relationship with the father, that X may be repeatedly subjected to interview and investigation, coached, or encouraged to make false statements about the father, and led to believe a false narrative about the father and the quality of the father’s care.
PROCEDURAL BACKGROUND
On 2 June 2023, Hannam J made final orders for X to live with the mother, for the mother to have sole parental responsibility, for X to spend no time with the father, and for the mother to be permitted to apply for a passport for X and travel overseas with him for a holiday.
On 16 June 2023, the father filed a Notice of Appeal.
Soon after, the mother departed Australia with X to Country D and has not returned since that date.
On 20 June 2023, the father filed a stay application. On 30 June 2023, I made orders staying Order 3, 7 and 8 of the final orders (being the order for no time, the mother being at liberty to apply for X’s passport and travelling overseas with him). I also noted the effect of the stay of Order 3 meant that prior orders for X to spend time with the father remained in full force and effect.
The appeal hearing took place on 28 September 2023 before the Full Court. Judgment was delivered on 10 November 2023 setting aside the final orders made by Hannam J on 2 June 2023, and the matter was remitted for rehearing.
On 14 December 2023, I made orders by consent between the father and the Independent Children’s Lawyer for the mother to return X to Australia, cause him to reside within a 15 km radius of V School, and for substituted service to be effected to the mother. I also listed the matter for final hearing and made trial directions, noting that if there was no appearance by the mother, the matter would proceed on an undefended basis.
The matter proceeded before me on 18 April 2024 on an undefended basis as there was no appearance by or on behalf of the mother. On that day I made orders on a final basis for the father to have sole parental responsibility for X, for X to live with the father, for the mother to return X to Australia within 21 days, and thereafter for the mother to be restrained from causing X to reside in any country other than Australia. I further made orders for X to spend time with the mother from 10.00 am until 1.00 pm each Sunday supervised by a contact agency who is able to understand the Country D language.
I reserved judgment on the father’s Minute of Proposed Order filed 17 April 2024 which sought leave pursuant to s 121(g) of the Family Law Act 1975 (Cth) (“the Act”) to publish the orders through news outlets, provide the orders to government departments and officials, members of parliament and any other courts to assist in causing X to be returned to Australia. He further sought leave to apply for an information order and a recovery order within 21 days of judgment delivery.
In relation to property issues, on 18 April 2024, the father was ordered to provide a precise minute of proposed orders by no later than 4.00 pm that day. In those orders, he seeks that he be declared the sole and beneficial owner of the properties situated at K Street, Suburb L (“the Suburb L property”) and M Street, Suburb N (“the Suburb N property”), Motor Vehicle 1, bank accounts currently in his name, shareholdings currently in his name and personal effects. He further seeks an order that the mother be declared the sole and beneficial owner of the property situated at 1 P Street, Country D, her bank accounts and personal effects in her name.
EVIDENCE BEFORE THE COURT
In support of his case, the father relies on the following documents:
(1)His Amended Initiating Application filed 10 March 2022;
(2)His affidavit filed 2 November 2022;
(3)His affidavit filed 21 July 2023;
(4)His affidavit filed 15 April 2024;
(5)Financial Statement filed 1 March 2024;
(6)Affidavit of Ms W filed 2 November 2022;
(7)Affidavit of Mr Y filed 25 March 2022;
(8)Affidavit of Ms Z filed 31 July 2023;
(9)Affidavit of Mr AA filed 15 March 2024;
(10)Affidavit of Mr BB filed 14 March 2024;
(11)Affidavit of Mr Q filed 14 March 2024;
(12)Case outline filed 16 April 2024;
(13)His Minute of Order filed 4 March 2024;
(14)His Minute of Order filed 17 April 2024;
(15)His Minute of Order received 18 April 2024; and
(16)Various documents tendered during the proceedings, and marked in chambers as Exhibits A1–A23.
In support of their case, the Independent Children’s Lawyer relies on the following documents:
(1)Case outline filed 11 April 2024.
APPLICABLE LAW
Undefended Hearings
The Court has an obligation to ensure a fair trial and afford procedural fairness to all parties in proceedings. In Allesch v Maunz (2000) 204 CLR 172, Kirby J held:
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice". It is a rule of natural justice or "procedural fairness". It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
36.The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.
(footnotes omitted)
When parties fail to comply with procedural directions, the Court has a number of options available pursuant to r 1.33(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) as follows:
1.33 Failure to comply with a legislative provision or order
…
(2)If a party to a proceeding does not comply with these Rules, the Family Law Regulations or a procedural order, the court may do any of the following:
(a) dismiss all or part of the proceeding;
(b) set aside a step taken or an order made;
(c) determine the proceeding as if it were undefended;
(d) order costs;
(e)prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;
(f) make any other order the court considers necessary, having regard to the overarching purpose of these Rules (see rule 1.04).
Hence, due to non-compliance with procedural directions, it was open to this Court to proceed on an undefended basis.
However, it is noted that pursuant to r 10.13(1)(a) of the Rules, the Court may vary or set aside a judgment or order if it was made in the absence of a party. In the event the mother seeks to make such an application, she must make such an application within 28 days of the making of these orders and ensure that she contemporaneously files an affidavit in support explaining her absence and lack of participation in these proceedings.
Parenting
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Property
This is an application under s 79 of the Act which relevantly provides:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(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 or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 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.
Section 79(4) incorporates the provisions contained in s 75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(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;
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) Act 1989 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.
In Bevan & Bevan (2013) FLC 93-545 (“Bevan”), the Full Court considered the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108, which provided guidance on how s 79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four‑step approach articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”), but on the basis that it is a shorthand distillation of the words of s 79, as opposed to being a statutory edict. The four steps articulated in Hickey at [39] are:
(1)Identify and value the property, liabilities and financial resources of the parties;
(2)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property;
(3)Identify and assess the other facts relevant under s 79(4)(d)–(g) including s 75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
PARENTING ORDERS
The evidence before the Court leads it to make the following findings in relation to the parenting issues.
Contrary to orders of this Court, X is living with the mother most likely in Country D where she is known to have both family and assets. As Country D is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the father will be using his best endeavours to have orders made by this Court recognised and enforced in Country D, such that X returns to Australia.
X has lived in Country D from 2015 until 2019, then in Australia from 2019 until 2023 when he was unilaterally taken back to Country D.
X has enjoyed a meaningful relationship with both the mother and the father, but because of the mother’s wrongful and unilateral actions he is being prevented from continuing his meaningful relationship with the father.
There is no risk of harm arising from abuse, neglect or family violence associated with X either living with, spending time, or communicating with the father. If X is returned to Australia, but the mother does not also return, there is a risk of psychological harm to X of not being able to regularly spend time and communicate with the mother. If X does not return to Australia, there is a risk of psychological harm to him arising from the potential loss of his relationship with the father in circumstances where the Court finds the mother is unable to support that relationship.
There are no relevant views of X which the Court is prepared to place any significant weight, given his young age.
X has enjoyed a close relationship with both the mother and the father who have both been involved in all stages of his life, but it is likely that X regards the mother as his primary carer.
After the mother unilaterally, and contrary to Court order, removed X and herself from Australia, she has denied the father any opportunity to participate in decision-making about him, or to spend time and communicate with him. This is to X’s disadvantage.
There are no issues in this case about maintenance of X.
The orders proposed by the father, and which the Court made on 18 April 2024, might lead to the return of X to Australia which was his home between 2019–2023. The actions of the mother in taking him to Country D represents a substantial change in his circumstances, both physically and emotionally. By her actions, the mother has denied X a relationship with the father, particularly in circumstances where there is no evidence before the Court of her attempt to, or desire for, there to be any communication between X and the father. If the orders made by this Court are implemented, the change in X’s life should be manageable as he is returning to a familiar environment, and to the father. The orders sought by the father contemplate an ongoing relationship between X and the mother. The mother may also have the opportunity to revisit the orders made by this Court, in her absence. The Court is satisfied that there will be less change to X as a result of the implementation of these orders, than not implementing them.
If X is returned to Australia, and if the mother returns with him, there will be no unmanageable issues of practical difficulty and expense arising out of X spending time and communicating with both his parents. If X is not so returned, and in the absence of the mother manifesting any recognition of the benefits to X spending time and communicating with the father, there will be almost insurmountable issues of practical difficulty and expense for the father spending time and communicating with X. The mother’s location, and therefore also X’s location, is unknown to the Court, but is likely to be Country D. The Court is confident, however, that she has been accessing the Commonwealth Courts Portal and is aware of what has been happening in the proceedings after she left for Country D.
The Court has no concerns about the capacity of the father to provide for all of X’s relevant needs. Before Hannam J, the mother’s counsel conceded that there was no evidence before the Court that the father presented a risk of harm to him. The Court does have concerns about the mother’s capacity to provide for the emotional needs of X. The Court also finds that she has disregarded the importance of X having a relationship with the father, by absconding to Country D. The evidence before the Court demonstrates that she sought to systematically undermine X’s relationship with the father by enlisting him in making false allegations about abuse, all of which have been unsubstantiated. Those allegations included allegations of torture, sexual abuse by the father and his partner, starvation and neglect. The mother seems to have prioritised her own highly negative and unsubstantiated view of the father over the needs of X maintaining a relationship with the father.
Both X and the mother have a Country D cultural background. The Court is satisfied that the father will do all things to foster and encourage this. But X also has an Australian cultural background. He lived many years of his life here. He went to school here. By removing him to Country D, the mother has denied him a continuation of this.
The Court finds that the mother has an irresponsible attitude towards X, and to her responsibilities as his mother. The long history of seemingly false allegations against the father, and the enlistment of X in her quest to undermine his relationship with the father, clearly manifests this irresponsible attitude. The evidence includes examples of the mother coaching X to make false allegations. The evidence also reveals examples of the mother taking X to authorities such as NSW Police, the DCJ, medical professionals and caseworkers in pursuit of her campaign against the father. X suffered repeated interviews, a physical examination at hospital, and examination of his penis by doctors, as well as forensic interviews by experts. Removing him to Country D as she has, contrary to Court order, further demonstrates this. The father, by contrast, has shown a responsible attitude towards his responsibilities as X’s father. He persisted with the litigation, notwithstanding the wrongful allegations made against him. He proposes that if X is returned to Australia, he will continue to have a relationship with the mother.
The evidence suggests that the relationship between the mother and the father was, at times, a volatile and conflictual one, and that X was exposed to this at times, both directly and indirectly. It is possible that they were both violent towards each other. Of concern to the Court is the role model the mother presents to X. The evidence overall suggests that she manages conflict in a volatile and occasionally violent manner.
It is in the interests of X that this matter be finalised. The litigation relating to him commenced in 2020. There has been a defended final hearing that resulted in orders that were subsequently overturned on appeal by the Full Court for compelling reasons. The mother has chosen not to participate in subsequent proceedings. Whether the father needs to resort to further litigation in Country D to enforce these orders is not apparent to the Court. He may well pursue legal but non-judicial avenues to secure X’s return. Provided that he always acts in accordance with the law, it is understandable that he might seek to do so.
The Court finds that the presumption of parental responsibility in s 61DA of the Act is rebutted. The Court is satisfied that it would not be in the best interests of X for his parents to have equal shared parental responsibility. As is evidenced by the course of the litigation and the mother’s unilateral actions, the relationship is a toxic one. There is no trust between them, and no capacity to communicate or to make decisions in the interests of their son. An order for sole parental responsibility in favour of the father is in the best interests of X.
The father proposes that should the mother return to Australia with X, she will be able to have supervised time with him. In the circumstances of this case, where the Court has such concerns about the mother’s parenting capacity, attitudes, insight, and actual behaviours, the Court finds there is a risk of harm to X if his time with the mother is unsupervised. It is not necessarily the case, however, that X’s time with the mother will remain supervised. In all likelihood, that is a matter for the Court to decide if and when the mother returns to Australia and makes any such further application as she considers appropriate.
In Order 5.1 of the Minute of Order filed 4 March 2024, the father seeks an order that the mother deliver X’s passport to the father upon their return to Australia. In the circumstances of this case, where the mother has an established track record of unilaterally taking the child to Country D contrary to Court order, and further in circumstances where the Court is ordering the father to have sole parental responsibility, the Court agrees that Order 5.1 is in X’s best interests and is otherwise appropriate.
In his Minute of Order filed 17 April 2024, the father proposed the following further orders:
1. Pursuant to Section 121(g) of the Family Law Act 1975 leave is granted to the father, [Mr Edinger] to:-
1.1. Cause the publication of these Orders through news outlets either by print or electronic means.
1.2. Provide a copy of these Orders to a government department and/or an official of a government department [whether in Australia or in [Country D]] to assist in causing the child to be returned to Australia.
1.3. Provide a copy of these Orders to a member or members of parliament either in Australia or [Country D] to assist in causing the child to be returned to Australia.
1.4. Provide a copy to any Court relating to parenting proceedings or the recovery of the child instituted in Australia and/or [Country D].
2. Liberty is granted to the Father to apply for an Information Order 21 days after delivery of judgment.
3. Liberty is granted to the Father to apply for a Recovery Order 21 days after delivery of judgment.
The father’s counsel acknowledged that such orders would have little utility in Australia because of the likelihood that X is not here. He submitted, however, that these orders would assist the father in securing the recognition, and possible enforcement, of these orders in Country D. Orders 1.2 and 1.4 are therefore appropriate. The Court could discern no justification for, or benefit to X that would result from the making of Order 1.1. The rationale for Order 1.1 might be understandable for enforcement of any recognised order in Country D, but such application should be made to that court, not this one. Order 1.3 seems to have a more general purpose and has sufficient potential benefit to X to be in his interests and will thus be made. Accordingly, the Court is prepared to make Orders 1.2, 1.3 and 1.4. The liberty sought in Orders 2 and 3 is also granted.
The Court is satisfied, based on the evidence before it, that these orders are in the best interests of X. All of the orders made, whether in relation to parenting or property, are to be served on the mother pursuant to orders dispensing with personal service on conditions that have previously been made. Orders will be made reflecting this.
ALTERATION OF PROPERTY INTERESTS
The father’s proposed Minute of Order altering property interests is reproduced in the first schedule to these reasons. As the notations to his orders indicate, in practical terms he controls the Edinger Family Trust whose major asset is the property situated at R Street, Suburb S (“the Suburb S property”). For all practical purposes, he also controls the Edinger Self-Managed Superannuation Fund, the trustee of which is T Pty Ltd, of which he is the sole director and shareholder. No orders are sought altering property interests in these assets.
He otherwise seeks a declaration that he is the sole beneficial owner of the Suburb L property, the Suburb N property, his motor vehicle, bank accounts, shares, and personal effects. He likewise seeks a declaration that the mother is the sole beneficial owner of her property at 1 P Street, Country D, her bank accounts and her other personal effects.
The balance sheet that was provided in this case is reproduced below.
Ownership Description Husband’s Value ASSETS 1 H K Street, Suburb L 300,000 2 H M Street, Suburb N 350,000 3 H Edinger Trust
R Street, Suburb S $450,000450,000 4 H Motor Vehicle 1 7,000 5 H Bank accounts 31,227 6 H Loan to superannuation fund 19,000 7 W 1 P Street, Country D 637,718 8 H Household contents 4,000 9 H H’s shares 43,314 10 W CC Street, Country D NK 11 W DD Street, Country D NK Total 2,192,259 ADDBACKS 12 W 2 P Street property 523,463 13 W Wife’s legal fees paid (EE Lawyers) 10,369.84 14 W Wife’s legal fees paid (FF Lawyers) 79,105 15 H Husband’s legal fees paid (Maclarens Lawyers) 249,693 Total 859,631.14 LIABILITIES 16 H Visa credit card 1,652 17 H Legal fees (debt to parents) 35,404 18 National Australia Bank (Trust properties) 387,085 19 GG Bank (Suburb L) 456,384 Total 880,525 SUPERANNUATION Member Name of Fund Type of Interest Value 20 H Self-managed superannuation fund (U Street, Suburb L) 272,131 Total 272,131 NET POOL (INCLUDING SUPERANNUATION): 2,443,496.14
As can be seen, however, the balance sheet does not, strictly speaking, reflect the father’s legal and equitable interests in property and resources. However, the Court is satisfied that it does adequately identify the substantive assets and resources that he either owns or controls.
Item 7, the mother’s known Country D property has been valued by an expert as $637,718.
Items 10 and 11 are properties that the father contends the mother either owns in Country D or has an interest in, the value of which is unknown. More will be said about this below, in the context of his argument about the mother’s nondisclosure.
Item 12 is a contented add back being property which the mother originally owned in her name, transferred to her mother, who then transferred it back to the mother, who then transferred it to her brother. The father contends that for all practical purposes this is either property beneficially owned by the mother, or in effect controlled by her. The evidence in support of this is set out below. The Court is satisfied that the mother either owns this property, or controls this property, and that in all likelihood this was the case throughout their relationship. The father has had a valuation of this property conducted in the amount set out at item 12. Accordingly, item 12 will be treated as property of the mother.
Items 13 and 14 are contented add backs on the basis that the funds used by the mother to pay for legal fees must have come from joint funds. The contention is unsupported by any evidence and is therefore not accepted. Items 13 and 14 will not be allowed as add backs.
Item 15 is a conceded add back for legal fees paid by the father.
It is also noted that some of the totals in the father’s balance sheet were mathematically incorrect and these will be corrected. Accordingly, the Court finds the balance sheet as follows:
Ownership Description Value ASSETS 1 H K Street, Suburb L 300,000 2 H M Street, Suburb N 350,000 3 H Edinger Trust
R Street, Suburb S $450,000450,000 4 H Motor Vehicle 1 7,000 5 H Bank accounts 31,227 6 H Loan to superannuation fund 19,000 7 W 1 P Street, Country D 637,718 8 H Household contents 4,000 9 H H’s shares 43,314 10 W CC Street NK 11 W DD Street, Country D NK Total 1,842,259 ADDBACKS 12 W 2 P Street property 523,463 13 W Wife’s legal fees paid (EE Lawyers) 0 14 W Wife’s legal fees paid (FF Lawyers) 0 15 H Husband’s legal fees paid (Maclarens Lawyers) 249,693 Total 773,156 LIABILITIES 16 H Visa credit card 1,652 17 H Legal fees (debt to parents) 35,404 18 National Australia Bank (Trust properties) 387,085 19 GG Bank (Suburb L) 456,384 Total 880,525 SUPERANNUATION Member Name of Fund Type of Interest Value 20 H Self-managed superannuation fund (U Street, Suburb L) 272,131 Total 272,131 NET POOL (INCLUDING SUPERANNUATION): 2,007,021
The difficulties faced by the father in the financial aspect of the case needs to be recognised. He contends that the mother has failed to disclose the full extent of her assets and resources, particularly in Country D.
For example, at paragraph 221 of his affidavit filed 2 November 2022 he deposes that the mother said to him that she owned three properties in Country D at the commencement of their relationship. There is the conceded property which is found at item 7 of the balance sheet. There is a property at CC Street. He deposes to attending the property with the mother to collect rent from the tenant on no less than five occasions. There was also an investment property at Region HH, Country D at DD Street. He deposes to the mother telling him that she had this house, that it was also rented, and that it “will be our retirement plan when we retire”. Little is known about the value of these properties at the time.
Three years after they commenced cohabitation they purchased what became their family home at 1 P Street, Country D which adjoins the property at 2 P Street (item 7 on the balance sheet). He deposes that during their marriage, and at the mother’s request, they renovated the aforementioned property. He contends that it cost $80,000. They then commenced living there in 2017.
Despite what the mother told the father, a matter which the Court accepts as it was unchallenged in evidence, the mother in fact contended by way of solicitor’s letter in 2022 that she had no interest in any Country D properties other than their family home at 1 P Street. This is consistent with the mother’s Financial Statement filed 15 February 2023. In relation to the property at 2 P Street, the one which the father contends they renovated at a cost of $80,000, the mother asserted that the property was, in fact, never hers, it was owned by her mother. What transpires is that whether or not it was in the name of her mother at the time of the renovations, by about the time of separation her mother had transferred the property to the mother, who transferred it to her brother. The lack of transparency, and lack of plausibility, in the mother’s contentions about this property leads the Court to conclude that for all practical purposes she either remains the owner or effectively controls it, irrespective of whether it is registered in her name.
The father’s evidence is that at cohabitation he had a home and four investment properties in New Zealand. By 2013 all five properties had been sold, and the net sale proceeds invested. He also had superannuation.
Counsel for the husband contended that, in all likelihood, the financial value of the contribution they each made at the time of cohabitation was about equal. It is somewhat difficult to understand this contention as far more is known about the father’s assets at cohabitation than the mother’s. Nonetheless, that is the manner in which the father’s case was conducted, and the Court accepts the same.
During the relationship it is clear that the father earned more than the mother and thus made a greater financial contribution. Nonetheless the mother also worked, as well as being responsible for most of the parenting and homemaking.
The parties thus made different types of contributions but, even though the father’s financial contribution was arguably greater, the different types of contributions are assessed to be equal. The Court thus assesses contribution as at the date of the hearing to be equal. This is consistent with the submissions made on behalf of the father.
The father makes no claim for future needs. Such claim would have been unsuccessful on the evidence. The mother did not participate in the case to make a claim, but the Court has, of course, had regard to her evidence about financial matters contained in her affidavit filed 3 November 2022. Commencing from paragraph 771, she deposes to matters in relation to her future needs. The reliability of this evidence is severely undermined by the rather inauspicious evidence of the mother at paragraph 771 stating:
I have no intention of leaving Australia and I would like my children to remain in this country as I believe they can achieve a bright and prosperous future here.
The absence of any evidence from the mother about her financial and personal circumstances since leaving Australia makes assessment of her future needs impossible. The mother owns the property at item 7 of the balance sheet, and the Court infers that she either owns or controls other properties from which she may well derive an income, but which she has not disclosed to the Court.
The father’s case was that, in effect, he should retain everything in his possession or control, as should the mother.
On this scenario, the mother would receive known net assets and resources consisting of 1 P Street, Country D and 2 P Street and having a total known value of $1,161,181.
Likewise, the husband would receive net assets and resources consisting of the Suburb L property, the Suburb N property, the Edinger Trust, his motor vehicle, bank accounts, superannuation fund, household contents and shares. This has a total known value of $845,840.
ORDERS MADE
In the absence of further evidence from either of the parties, the Court is satisfied that the orders proposed by the father are just and equitable in the circumstances. Those orders will be made.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 10 May 2024
SCHEDULE ONE
1. The Court Notes:
1.1.The father is the sole appointor and trustee of the Edinger Family Trust (“the trust”)
1.2.The assets and liabilities of the trust are referred to in the Affidavit of Mr Q sworn 14 March 2024.
1.3. The father acknowledges the major asset of the trust is R Street, Suburb S.
1.4.The corporate trustee of the Edinger Self Managed Superannuation Fund is T Pty Ltd. The husband is the director and sole shareholder of the corporate trustee company.
1.5.The Edinger Self Managed Superannuation Fund is the owner of the property situate at U Street, Suburb L.
1.6.The father seeks no orders altering the beneficial ownership of the trust or the Edinger Self Managed Superannuation Fund.
2. The Father be declared sole and beneficial owner of:-
2.1. The property situate at K Street, Suburb L.
2.2. The property situate at M Street, Suburb N.
2.3. Motor Vehicle 1.
2.4. Father’s bank accounts in the name of the Father.
2.5. Shareholding in the name of the Father.
2.6. Personal effects in his possession or control.
3. The Mother be declared sole and beneficial owner of:-
3.1. The property situate at 1 P Street, Country D.
3.2. Mother’s bank accounts.
3.3. Personal effects in her possession or control.
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