Garson & Pedraza
[2025] FedCFamC1F 206
•31 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garson & Pedraza [2025] FedCFamC1F 206
File number: SYC 3568 of 2023 Judgment of: ALDRIDGE J Date of judgment: 31 March 2025 Catchwords: FAMILY LAW – PARENTING – International relocation – Where the mother sought to relocate with the child to Country B – Where the father opposed the relocation and sought a graduated regime of time with the child – Whether the father is a risk of harm to the child due to violence, alcohol consumption or sexual abuse – Where the evidence as to the mother’s proposed relocation is lacking – Where the mother proposed the father’s time would be supervised by her sister in Country B but called no evidence from her sister – Where counsel for the mother informed the Court that the mother would relocate to Country B without the child contrary to her previous evidence – Where relocation to Country B is likely to end the child’s relationship with the father – Where there are too many uncertainties to be satisfied a relocation to Country B would be in the child’s best interests – Where the father is not such a risk of harm that the child could not live with him if the mother relocates – Child not permitted to relocate – Child to live with the mother whilst she lives in Australia and spend time with the father – Child to live with the father if the mother relocates.
FAMILY LAW – PROPERTY – Balance sheet items – Initial contributions favour the father – Contributions during the relationship were equal – Mother has had primary care of the child post-separation – Contributions considered equal – Where the mother is not working but has significant earning capacity – Where it is impossible to make an adjustment for who the future care of the child as it is not known who the child will be living with – Property to be divided equally between the parties.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CC
Division: Division 1 First Instance Number of paragraphs: 131 Date of hearing: 17–20 February 2025 Place: Sydney Counsel for the Applicant: Ms Ingenito Solicitor for the Applicant: James & Jaramillo Lawyers Counsel for the Respondent: Dr Wong Solicitor for the Respondent: Longton Legal Counsel for the Independent Children’s Lawyer: Mr Ladopoulos Solicitor for the Independent Children’s Lawyer: Legal Aid New South Wales ORDERS
SYC 3568 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARSON
Applicant
AND: MS PEDRAZA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
31 MARCH 2025
Amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 7 April 2025
THE COURT ORDERS THAT:
PARENTING
1.Ms Pedraza (“the mother”) is restrained from doing any act or thing, or attempting to do any act or thing, relocating the residence of the child, X born 2020 (“the child”), outside the Commonwealth of Australia.
2.The mother is restrained from doing any act or thing, or attempting to, change the child’s name.
If the mother remains living in Australia
3.The child shall live with the mother.
4.The mother shall have sole decision-making responsibility for the child in respect of major long-term decisions in relation to matters pertaining to health, education and religion for the child:
5.In the exercise of her decision-making responsibility pursuant to Order 4, the mother shall:
(a)Within 21 days prior to the decision being made, notify Mr Garson (“the father”) in writing of her proposed decision and the reasons for it and provide the father the opportunity to express his views in writing in relation to the proposed decision; and
(b)Consider the father’s expressed views; and
(c)Within 48 hours of making the major long-term decision, inform the father in writing of the decision made.
Spend time – Stage 1
6.Should the child not have had at least eight occasions of spending time with the father under supported contact supervision by E Family Servicesby the date of these orders, the child shall spend time with the father as follows:
(a)For a period of eight weeks or such number of remaining weeks to bring the total number of occasions to eight, unless otherwise agreed in writing between the parties;
(b)Under supported contact supervision by the contact service each week for a period of two hours at such time and on such days as the Contact Service can facilitate;
(c)The mother or her nominee is to deliver the child to the Contact Service at the commencement of the child’s time with the father and collect the child from the Contact Service at the conclusion of the child’s time with the father;
(d)Each party shall comply with all reasonable requests or directions of the staff of the Contact Service;
(e)The father shall pay the fees nominated by the Contact Service for the provision of its service; and
(f)The parties are permitted to provide a copy of these orders to the Contact Service.
Spend time – Stage 2
7.Should the father cancel or fail to attend a supported contact visit during the eight week period referred to in Order 6, an additional supported contact visit shall occur prior to the commencement of the child’s time with the father pursuant to Order 8.
8.Commencing on the first Saturday at the conclusion of the eight week period referred to in Order 6 subject to Order 7, the child shall spend time with the father as follows for a period of three months, unless otherwise agreed in writing between the parties:
(a)Each Saturday from 10.00 am to 2.00 pm under the supervision of the paternal aunt, Ms D, or such other person as agreed between the parties in writing (“the nominated supervisor”);
(b)Prior to supervision occurring, the nominated supervisor shall sign an undertaking to this Court as follows:
(i)I will supervise the child’s time with the father and will not allow the child to be left in the sole care of the father whilst I am supervising his time with the father;
(ii)I undertake to cease the visit, inform the mother and return the child to her care in the event that there are concerns in relation to:
A.The father being under the influence of alcohol;
B.The father denigrating the mother in the presence of the child;
C.The father exposing the child to domestic violence;
D.The child’s safety as a result of the father’s conduct.
while the child is spending time with the father.
Spend time – Stage 3
9.Commencing on the first Saturday at the conclusion of the three month period referred to in Order 8, the child shall spend time with the father each alternate weekend as follows, for a period of nine months, unless otherwise agreed between the parties in writing:
(a)On Saturday from 10.00 am to 6.00 pm under the supervision of the paternal aunt, Ms D, or such other person as agreed between the parties in writing.
Spend time – Stage 4
10.Commencing on the first Saturday at the conclusion of the
threenine month period referred to in Order 9, the child shall spend time with the father each alternate Saturday as follows, for a period of six months, unless otherwise agreed between the parties in writing:(a)On Saturday from 10.00 am to 6.00 pm with the paternal aunt, Ms D, or such other person as agreed between the parties in writing to remain within the general vicinity of the child and the father during the child’s time with the father.
Spend time – Stage 5
11.Commencing on the first Saturday at the conclusion of the six month period referred to in Order 10, the child shall spend time with the father each alternate weekend as follows, for a period of six months, unless otherwise agreed between the parties in writing:
(a)On Saturday from 10.00 am to 6.00 pm under the supervision of the paternal aunt, Ms D or such other person as agreed between the parties in writing; and
(b)On Sunday from 10.00 am to 2.00 pm, unsupervised.
Spend time – Stage 6
12.Commencing on the first Saturday at the conclusion of the six month period referred to in Order 11, the child shall spend time with the father each alternate weekend as follows, until the end of Term 1 2028, unless otherwise agreed between the parties in writing:
(a)On Saturday from 10.00 am to 6.00 pm, unsupervised; and
(b)On Sunday 10.00 am to 6.00 pm, unsupervised.
Spend time – Stage 7
13.Commencing on the first Saturday of the Term 1 school holiday period in 2028, the child shall spend time with the father each alternate weekend as follows, for a period of six months, unless otherwise agreed between the parties in writing:
(a)From 10.00 am on Saturday to 10.00 am on Sunday.
Spend time – Stage 8
14.Commencing on the first Saturday at the conclusion of the six month period referred to in Order 13, the child shall spend time with the father each alternate weekend as follows, for a period of six months, unless otherwise agreed between the parties in writing.
(a)From 10.00 am on Saturday to 6.00 pm on Sunday.
Spend time – Stage 9
15.Commencing on the first Friday at the conclusion of the six month period referred to in Order 14, the child shall spend time with the father each alternate weekend as follows, for a period of six months, unless otherwise agreed between the parties in writing:
(a)From after school on Friday, or 3.00 pm on a non-school Friday, to 6.00 pm on Sunday.
Spend time – Stage 10
16.Commencing on the first Friday at the conclusion of the six month period referred to in Order 15, the child shall spend time with the father each alternate weekend as follows, unless otherwise agreed between the parties in writing:
(a)From after school on Friday, or 3.00 pm on a non-school Friday, to before school on Monday, or 9.00 am if a non-school Monday.
School holidays
17.In 2030, the child’s time with the father pursuant to Order 16 above shall be suspended for the first three weeks of
eachthe Term 4 school holiday period.18.In 2030, Order 16 above shall be suspended during school holiday periods and the child shall spend time with the father in the middle weekend of each Term 1, 2, and 3 school holiday periods from 10.00 am on Friday to 10.00 am on Tuesday.
19.Commencing in 2031, Order 16 above shall be suspended during school holiday periods and the child shall spend time with the father as follows:
(a)From 10.00 am on the second Saturday of each of the Term 1, Term 2 and Term 3 school holiday periods until 10.00 am the following Saturday; and
(b)From 10.00 am on 15 January until 6.00 pm on 26 January.
Special occasions
20.The child’s time with the father shall be suspended from 10.00 am to 6.00 pm on Mother’s Day and the mother’s birthday.
21.On each Father’s Day and the father’s birthday, the child shall spend time with the father for the amount of time and under the conditions provided for the Saturdays in the relevant stage above.
Changeovers
22.Where changeovers do not otherwise occur at the child’s school, and unless otherwise agreed between the parties in writing, changeovers shall occur at Suburb F McDonalds with:
(a)The mother or her nominee to deliver the child to Suburb F McDonalds at the commencement of his time with the father;
(b)The paternal aunt or such other person as is known to the child, other than the father, to collect the child from the mother at Suburb F McDonalds; and
(c)The paternal aunt or such other person as is known to the child, other than the father, is to return the child to the mother at Suburb F McDonalds at the conclusion of his time with the father.
If the mother leaves Australia
23.In the event the mother intends to relocate from Australia, the mother shall give the father 28 days written notice that she intends to leave Australia, identifying the date of departure.
24.On the date before the date of departure, the mother is to deliver the child to the father at his home or such other place as may be agreed between the parties in writing.
25.The child shall thereafter live with the father.
26.In the event that the mother relocates prior to 31 December 2026, for a three month period commencing on the date the child commences living with the father pursuant to Order 25, the father and the child shall reside with the paternal aunt.
27.The father shall have sole decision-making responsibility for the child in respect of major long-term decisions in relation to matters pertaining to health, education and religion for the child:
28.In the exercise of his decision-making responsibility pursuant to Order 27, the father shall:
(a)Within 21 days prior to the decision being made, notify the mother in writing of his proposed decision and the reasons for it and provide the mother the opportunity to express her views in writing in relation to the proposed decision; and
(b)Consider the mother’s expressed views; and
(c)Within 48 hours of making the major long-term decision, inform the mother in writing of the decision made.
29.Should the mother notify the father in writing 28 days in advance of a visit to the Commonwealth of Australia, the mother shall be at liberty to spend time with the child in the Commonwealth of Australia on up to 12 occasions each year in blocks of up to four consecutive nights but not exceeding 90 nights cumulatively in any calendar year, unless otherwise agreed in writing between the parties.
30.For the purposes of the mother’s time with the child pursuant to Order 29, the mother shall notify the father in writing of which days and nights she proposes to spend with the child not less than 28 days prior to such time and shall provide the father with details of where the child will be staying and her contact telephone number.
Restraints
31.Both parties are restrained from:
(a)Denigrating the other party and/or any member of the other party’s family or household to or in the presence or hearing of the child;
(b)Physically disciplining the child; and
(c)Exposing the child to family violence.
Communication
32.Unless otherwise agreed in writing between the parties, the parties are to communicate with one another by way of the “App Close” parenting application (or such other parenting application as agreed in writing between the parties) unless there is a medical emergency concerning the child in which case the parties are permitted to communicate by telephone call or SMS text message.
33.Within 24 hours of the making of these orders, the mother shall advise the father in writing of the name and details of the school at which the child is enrolled.
34.The parties shall keep each other informed of their residential address, email addresses and mobile number they nominate for the purposes of communicating with one another solely in relation to parenting issues and shall notify the other parent of any change to those details within 48 hours of such change occurring.
35.The parties shall notify one another as soon as practicable of any matter relating to the health or wellbeing of the child which requires the attention of a medical practitioner or health professional and provide to the other party the name and telephone contact details of the medical practitioner or health professional.
36.This order authorises any treating medical or allied health practitioner to release medical information that they are lawfully able to provide about the child to the other parent at the requesting parent’s expense.
37.This order authorises the school or outside school hours care centres or extra-curricular bodies attended by the child to provide each parent information about the child’s progress and supply them with copies of reports, photographs, certificates, newsletters, information and awards obtained by the child (at the requesting parent’s cost, if any).
Overseas travel
38.That both parties and their servants and/or agents are restrained from travelling with X outside of the Commonwealth of Australia until 20 April 2032, irrespective of authenticated consent other than by way of subsequent Parenting Plan pursuant to s 64D of the Family Law Act 1975 (Cth) permitting such travel AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child X born 2020 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 20 April 2032.
39.That upon X turning 12 years old in 2032, Order 38 herein be discharged AND IT IS REQUESTED that the Australian Federal Police give effect to this order by removing the name of the child X born 2020 from the Family Law Watchlist on 20 April 2032.
40.From 20 April 2032, both parties shall be permitted to remove the child from the Commonwealth of Australia for the purposes of holiday travel only and subject to the following conditions unless otherwise agreed between the parties in writing:
(a)The parent proposing to travel shall provide to the other parent no less than 28 days notice prior to their departure of the proposed travel with:
(i)A copy of the proposed travel itinerary including proposed dates of departure and return and e-tickets;
(ii)Details of all proposed accommodation arrangements whilst overseas including the address(es) at which the child will be staying;
(iii)Details by which the non-travelling parent can contact the child whilst he is overseas (should these be different from when in Australia).
(b)Such travel is to occur during the time the child is due to spend with the travelling parent, pursuant to these orders.
(c)International travel is not to occur:
(i)To any country to which the Australian Government has declared via the Department of Foreign Affairs and Trade as Trade Advice Level 3 or 4;
(ii)To any country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, unless for the purposes of a layover only, in which case neither the child nor the travelling parent shall leave the airport; and
(iii)To any country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction but does not have a treaty in force with Australia, unless for the purposes of a layover only, in which case neither the child nor the travelling parent shall leave the airport.
41.From 20 April 2032 onwards, unless otherwise agreed, both parents shall do all acts and things necessary to ensure the child holds a valid and current Australian passport.
42.The parent with whom the child lives under these orders will hold the child’s passport in their possession.
43.In the event the child requires his passport to travel pursuant to Order 41 with the parent with whom he is not living with under these orders, the live-with parent shall provide the child’s passport to the other parent not less than 14 days prior to the proposed departure date and the other parent shall return the child’s passport to the live-with parent within seven days of his return to Australia.
PROPERTY
44.The sale proceeds from the sale of the property at G Street, Suburb HNSW currently held in the controlled monies account held with James and Jaramillo Lawyers shall be disbursed equally between the parties.
45.The mother receive a $52,261 superannuation split from the father’s superannuation fund as follows:
(a)A base amount of $52,261 (provided such base amount does not exceed the value of the interest determined under s 90XJ(4)) is allocated as required by s 90XT(4) of the Family Law Act 1975 (Cth) to the mother out of the father’s interest in Superannuation Fund 1, membership number …;
(b)Whenever a splitable payment within the meaning of s 90XE of the Family Law Act 1975 (Cth) becomes payable to or on behalf of the father from his interest in Superannuation Fund 1, the trustee shall pay the mother the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) and make a corresponding reduction in the entitlement the father would have but for these orders.
(c)The trustee of Superannuation Fund 1 do all acts and things and sign all documents as may be necessary to:
(i)Calculate in accordance with the requirement of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement for the mother created under this order; and
(ii)Pay the entitlement whenever the trustee makes a splitable payment out of the father’s interest in the fund.
(d)These orders have effect from the operative time and the operative time is seven business days from the date of service on the trustee.
(e)These orders bind the trustee.
46.Pending the superannuation split pursuant to Order 45 coming into effect, the father is restrained from withdrawing or causing any release of his superannuation funds held with Superannuation Fund 1.
47.Within 28 days of the orders being made, the parties do all acts and things and sign all documents necessary to close any bank accounts held in their joint names and divide any funds standing to the credit at the time of closing, if any, equally between them, and in the event that the account is overdrawn, the parties shall pay an equal share of any such overdraft.
48.Unless otherwise set out herein, each party retain and be solely entitled to all property in their possession, control or name including but not limited to their personal effects, funds in any bank account registered in their sole name, and their motor vehicle.
49.That the parties indemnify and keep indemnified the other from and in respect of any actions, claims, suits, and demands as may be made against that party in relation to any liabilities in that party’s name and any other liabilities in relation to any property that vests with that party pursuant to these orders.
50.In the event either party refuses or neglects to execute any deed or instrument, the registrar of the court is appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of that deed or instrument.
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 Garson & Pedraza has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
These are property as well as parenting proceedings concerning the parties’ child, X, who was born in 2020. X is currently living with his mother, Ms Pedraza (“the mother”), and spending two hours a month with his father, Mr Garson (“the father”) at a supervised contact centre.
PARENTING
The issues in this aspect of the matter seemed fairly settled until the mother’s counsel made her closing submissions. Things then took a sudden and unexpected turn.
The mother’s case until then was that she found life in Australia intolerable and wished to move to Country B with the child to live near her sister. The mother proposed that the child spend time with the father three times per year in Country B supervised by her sister. This was consistent with her view that the father posed a risk of harm to the child, which could only be ameliorated by supervision. The father was said to be violent and a potential sexual abuser of the child.
The father denied these last two matters and proposed a graduated regime of increasing time and reducing supervision culminating in substantial unsupervised overnight time.
Thus, the two substantial issues were the possible relocation to Country B and whether the father posed a risk of harm to the child. There was a clear, if implicit, assumption by the parties and the Independent Children’s Lawyer that whatever orders were made, the mother would remain the primary carer of the child. The mother’s evidence during cross-examination by counsel for the Independent Children’s Lawyer was that despite her dislike of living in Australia, she was “not going to abandon [X] alone and go by [her]self” to Country B.
This changed when, in final addresses, counsel for the mother announced that the mother would be going to Country B in any event, with or without the child.
It came about in this way. I raised with counsel the poor state of the evidence in relation to the proposed move to Country B. The mother said that she had a six-month visa and would live with her sister. I asked why there was no evidence as to how the mother and child could stay in Country B after the six months, why there was no evidence at all from her sister and why there was no evidence about potential employment, schooling and healthcare – all of which directly affect the welfare of the child.
The exchange continued:
[COUNSEL FOR THE MOTHER]: This is true. The evidence is not – the evidence on this is sparse. Your Honour, there’s one major – the [ICL’s] orders have been put before the mother, and she is aware that the ICL is not with her, and she has stated that she simply cannot comply with the orders put forward.
HIS HONOUR: Well, that may be unfortunate, Ms Wong, because that might mean the child will end up living with the father very shortly.
[COUNSEL FOR THE MOTHER]: And that is what - - -
HIS HONOUR: I really think you need, and your client needs to have a strong think, because if your client’s position is she will not comply with the orders, this case might take a very sudden turn.
[COUNSEL FOR THE MOTHER]: That is exactly what she has stated to me – that she - - -
HIS HONOUR: Well, why shouldn’t I order the child to go and live with the father forthwith?
[COUNSEL FOR THE MOTHER]: I have state – the - - -
HIS HONOUR: Well - - -
[COUNSEL FOR THE MOTHER]: She’s well aware that your Honour could do so.
HIS HONOUR: So she would rather - - -
[COUNSEL FOR THE MOTHER: The mother - - -
HIS HONOUR: She would rather the child live with the father than comply with the orders? Is that what you’re saying?
[COUNSEL FOR THE MOTHER]: She has simply said that she – her mental health can no – she can no longer live in this country. She cannot.
HIS HONOUR: Where is her evidence that she would leave the country and leave the child behind?
[COUNSEL FOR THE MOTHER]: She has stated to me in - - -
HIS HONOUR: No, no - - -
[COUNSEL FOR THE MOTHER]: When she was in cross-examination, when she was in re-examination, she was asked what she would do if the court was not with her, and she said, “I will have to make a very difficult choice. I don’t want to abandon my child, but I can’t – I cannot live here any more”.
HIS HONOUR: Well, that’s not to say - - -
[COUNSEL FOR THE MOTHER]: And when I put - - -
HIS HONOUR: - - - that she would go.
[COUNSEL FOR THE MOTHER]: When I put the ICLs orders before her - - -
HIS HONOUR: No, Ms Wong, you can’t tell me what your client told you. That’s not evidence.
[COUNSEL FOR THE MOTHER]: The mother seeks to relocate to [Country B].
HIS HONOUR: Yes, I understand that.
[COUNSEL FOR THE MOTHER]: She has no alternative - - -
HIS HONOUR: All right.
DR WONG: - - - position.
HIS HONOUR: All right. Well, Mr Ladopoulos, just pause here for a moment. Whilst Ms Wong is submitting can you draft some orders that would make provision for this child to live with the father in the event the mother leaves Australia?
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: Yes, your Honour.
HIS HONOUR: I’m not saying what decision I’ve come to, Ms Wong, but that’s an extraordinary thing to be finding out at this stage of the proceedings.
[COUNSEL FOR THE MOTHER]: And I would submit that they are not in [the child’s] best interest for the mother to be – for the mother – for the son to be separated from the mother, who has always been the child’s primary carer.
HIS HONOUR: Well, yes, but if that’s her decision, that’s her decision.
[COUNSEL FOR THE MOTHER]: Yes, your Honour.
HIS HONOUR: Thank you. Carry on with your submissions.
[COUNSEL FOR THE MOTHER]: They are the submissions, your Honour. She seeks to relocate to [Country B]. If the court is not with her, she will go to [Country B] on her own, and we submit that they are the – that is not in [the child’s] best interests.
(Transcript 20 February 2025, p.62 line 8 to p.64 line 3)
I then adjourned so that counsel could confirm her instructions and so that the Independent Children’s Lawyer could fashion some draft orders to cover the parenting arrangements should the mother relocate to Country B without the child.
On return, the following occurred:
HIS HONOUR: The best of my recollection is that your client did not say in evidence yesterday that she would go to [Country B] regardless of whether [X] goes with her. Mr Ladopoulos, what’s your recollection?
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: My recollection, your Honour, was that her evidence was that she, despite wanting to go and needing to go, wouldn’t abandon her son.
[COUNSEL FOR THE FATHER]: That’s my recollection, your Honour.
HIS HONOUR: Anyway, we can check the transcript, Ms Wong…
…
[COUNSEL FOR THE MOTHER]: They are my instructions, your Honour.
HIS HONOUR: All right. Well, you both understand that this will also – has an impact on property orders, because your client – you can sit down, madam – your client would then not be entitled to have taken into account that she would be the primary care of the child or the primary support of him, but it, indeed, would be the father and that would impact the property orders.
[COUNSEL FOR THE MOTHER & COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: All right. Does anyone else want to say anything?
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: No, thank you, your Honour.
(Transcript 20 February 2025, p.64 lines 18–46)
I then enquired as to the appropriateness of an interim order for supported time and submissions continued.
Most surprisingly and concerningly, there was no application to re-open the evidence so matters relating to the new position could be put to the single expert psychologist or to call evidence as to the mother’s emotional and psychological state. With similar surprise and concern, no further submissions were made by the mother’s counsel, notwithstanding me raising with counsel that the mother’s stance would most likely have a significant impact on both the parenting and property orders.
There is no evidence as to when the mother might leave Australia, with or without the child. It seemed to me that there was a real prospect of it being sooner rather than later. The father is the only possible carer for the child in Australia despite there being no evidence as to his ability to manage that care. The father has seen little of the child in the last few years. Given the possibility that he might soon be living full-time with the father, I made an order immediately increasing the supervised time to fortnightly supported time so as to try to build the relationship.
This was a most unfortunate turn of events. The mother is entitled to seek such orders as she pleases, but the manner in which the change occurred has the effect that the Court has been deprived of potentially valuable evidence and submissions. I hope that this was a considered decision and not one made in haste under emotional and psychological strain.
The mother’s final position regarding her relocation to Country B has two possible significant effects. The first is that the mother accepts that the child would be safe enough in the care of the father. The second is that the mother continues to believe that the father poses an unacceptable risk of harm to the child, but that her emotional and psychological state is such that she must leave Australia with or without the child. In regard to the latter, there is no such evidence as to the mother’s state of mind and there was no application for an adjournment to obtain it.
There is a third possibility which is that the view expressed by the mother was a ploy to win her case by putting the Court in an unenviable position of choosing between an unacceptable risk or a move to Country B. It would be unfortunate indeed for the mother to regard the welfare of the child as a tool to blackmail the Court.
My task is to determine what orders are in the child’s best interests having regard to the matters raised in s 60CC of the Family Law Act 1975 (Cth). Such orders are not made to punish or reward parents.
Background
The parties met in Country J in 2016 and married mid that year. The parties commenced cohabitation in Australia in 2017 and separated in or around March 2023 with the father moving out of the matrimonial home in April 2023.
The child has lived with the mother since then. He did not see his father at all between late May 2023 and early March 2024. Since that time, the child has been spending supervised time with the father at a contact centre. A number of sessions have not taken place.
Family violence
The mother says that the father is violent. She asserted that throughout the relationship the father and his family were constantly abusive towards her, criticising her in many ways. It is easy enough to accept that the household was not a harmonious one.
In July 2018, the father packed his belongings and left to stay with his sister for five days after an argument.
In 2021, the mother spent six months in Country J with the child.
The mother said that in June 2021 the father appeared to be drunk. The mother asked him to give the child to her which led to an argument. She said he threw the child at her. The child’s head hit her and cut her lip. The mother asked the father to call his sister to come and look after the child. The sister did indeed arrive. She took the child to her home and returned him later in the evening. The sister did not see a cut on the mother’s lip or recall the mother saying that the child had been thrown. There was nothing about her evidence or manner of giving it that cast any doubt on her evidence. I do not think she was being protective of her brother as she readily disapproved of his evidence as to drinking alcohol. I am not persuaded the event took place as described by the mother.
There was, however, clearly a very significant argument.
The mother described another incident as follows:
24.On or around [mid] 2021, [the father] was at home and I observed that he started to drink alcohol in the morning and continued drinking into the afternoon. By the evening, [the father] and I were in the living room at home, and it appeared to me that [the father] was drunk because he was slurring his words and his eyes were red, he also appeared to be unstable on his feet. An argument started again about the […] chat history with [Ms K] that I previously observed and during this argument [the father] slapped me in the face twice with his open right hand. He then pushed me with both hands on my chest which caused me to be pinned against the wall. He started punching the wall near my head four or five times which caused […] large holes in the wall. I was scared and I thought that [the father] might kill me due to his level of violent aggression. I was crying and terribly distressed as a result. [X] was also in the room at the commencement of the argument, and whilst [the father] was hitting the wall, I saw [X] hiding in the corner of the room and crying calling out to me “mummy.” I tried to run to the door to leave the room but [the father] grabbed my hand. I said to him “Please let [X] and me go, you’re not in the right mind. We can talk about it later” and he responded “no, I want to say what I want to say and you’re not going anywhere.” Whilst I was trying to get away, I got my phone out and attempted to call someone for help. [The father] grabbed the phone out of my hand and threw it onto the floor, it broke and was no longer usable. [The father] pushed me again and then using both hands, he wrapped his hands around my throat to the point I could no longer breathe. I thought [the father] was going to kill me as I was struggling to breathe. I attempted to remove his hands from my neck but struggled due to feeling “faint.” I am aware that I blacked out. When I came to, I was lying on the sofa near where I had been standing. I can’t exactly recall what happened after that. Although I was aware of [X] crying. A day or so later, [the father] took photos of the wall and then went to [a store] to buy the appropriate products to repair the walls which he did.
(Mother’s affidavit filed 10 February 2025)
There is no dispute that the father punched holes in the wall causing the mother to be afraid. However, the father said he walked into the hallway and punched the wall there. He denied pinning the mother to the wall or strangling her and also denied that the child was in the vicinity at the time of the argument.
The mother reported this incident to the police in late 2023. She said she had been grabbed by the throat and there was no loss of consciousness, but that she felt dizzy (Exhibit 5).
In cross-examination the mother said that she did not lose consciousness or blackout.
I bear in mind that English is not the mother’s first language and that care must be taken not to impose too much significance on using different words. Strangulation is very serious family violence, not to be lightly disregarded. It must, however, be established having regard to s 140 of the Evidence Act 1995 (Cth).
I have misgivings about the evidence of both the mother and the father. I formed the impression that the mother was prone to exaggeration (such as suggesting the father was likely to kill her). I did not find the father’s evidence about the teenage girls (to be discussed shortly) at all convincing. There is no doubt that a significant act of family violence took place on this occasion, which most likely took place in the presence of the child. The mother felt very afraid. I am not persuaded that it extended to strangulation.
The teenage girls
There are three separate matters to discuss under this topic.
In or about July 2021 the mother said that she noticed messages between the father and the daughter of a friend. The daughter was about 11 years old at the time. The messages extended over about a year. None of the messages was tendered.
An argument over these messages occurred. A further argument took place in mid-2021 when the mother said the father was drunk and slapped her. This was the incident just described above.
The father said that his friend had asked him to collect the friend’s daughter from a train station and take her home. Thus, he was given her phone number, which he kept.
Also on the father’s phone was two photos of the friend’s daughter. One was described as a “selfie” – the father has his arm around the daughter’s shoulder. The other photograph shows the girl sitting in a car with a hand holding her wrist. The father explained that the daughter had tried to take his phone from him to prevent him from taking the photo. He did not explain why he persisted in taking the photo. The daughter does not appear particularly happy in either photo.
The father provided little explanation for the photos other than they were ‘selfies’. Apparently, he is no longer in touch with the girl’s family.
Also found on the father’s phone was an email from one email address of the father’s to another address of his attaching a photograph of what appears to be two young teenage girls in a pool. The father denied he sent the email but could offer no explanation as to how the email was otherwise created.
In 2021, a woman, who I will refer to as Ms C, who had just turned 18, made a number of complaints about the father to the police. Ms C made a formal statement in mid-2022. In early 2023, the father voluntarily underwent an interview with the police. No further action has been taken. Ms C did not give evidence in the proceedings before me.
The father described the allegations as follows:
236.The first incident is alleged to have occurred in 2010. As I understand it, [Ms C] alleges that, during a community gathering at an address situated at [L Street, Suburb M], I took her to my bedroom, sat on the bed, put my hands around her waist, sat on the bed, and put her on my lap. [Ms C] further alleges that I moved my body up and down under her weight, and then somehow [Ms C] was face down before she felt something hard being pushed into her buttocks, near her crotch area.
237.I did not even immigrate to Australia until 2011. I did not meet [Ms C] until 2012, at which point I was living in [Suburb N], and not [Suburb M]. While at the [Suburb N] property, I did not have a bedroom as I slept in the living room. I also did not move to the [L Street, Suburb M] property until 2013.
238.In relation to [Ms C’s] allegations as described above, I deny anything of the sort ever occurring, either in 2010, or at any other point in time, at any location.
239.In relation to the second allegation, this was alleged to have occurred in 2011. [Ms C] alleges that she travelled with her mother to my house, where my sister and I were living.
240.[Ms C] alleges that she was in my sister’s bedroom, laying on her stomach and playing on her mother’s phone, and that I then approached her and offered her a gift, which she apparently declined. [Ms C] then alleges that I climbed on top of her and, using both hands, grabbed her wrists and held her down to the bed. She alleges that I began thrusting my hips towards her “bum” and that she could feel something hard up against her buttocks. [Ms C] asserts that I then put my hands over her mouth, and she bit my thumb.
241.I understand that, in relation to this second alleged incident, [Ms C’s] account is that this also occurred at the [Suburb M] property which, again, I did not actually move into until 2013. In any event, I deny anything of the sort ever occurring, either in 2011, or at any other point in time, at any location.
242.In relation to the third allegation, this was alleged to have occurred in 2014. [Ms C] alleges that she visited my home in [Suburb F], and was laying on my bed watching a movie. [Ms C] asserts that she sat on my lap, or that I picked her up and put her on my lap, and that I grabbed her hips and made a “thrusting motion”.
243.In relation to this allegation, I deny anything of the sort ever occurring, either in 2011, or at any other point in time, and I deny anything of the sort ever occurring at any location.
244.I acknowledge and recall hugging [Ms C] as a child. I deny, however, ever touching her in a way that is sexually inappropriate.
(Father’s affidavit filed 7 February 2025)
It was not in issue that Ms C was able to describe the outlay of the father’s bedroom.
Ms O was the single expert psychologist. In relation to these three matters, she said:
213.The incidents described are considered extremely worrying in a number of ways. The fact that there are allegations relating to two girls suggests a possible pattern of behaviour that is hard to ignore. [The father’s] explanation that one of the girls was mistaken about the dates of the reported incidents does not mean those events did not occur as many children become confused about timing and sequence of events.
214. Furthermore, [the father’s] explanation that, with the first set of allegations, children were running around the house and would have seen his bedroom does not allow for the fact that he lived in different dwellings at the time of the alleged incidents. Most telling was the fact that [the father] still had the first girl’s number on his phone; his explanation for retaining this number seemed odd, and it was unclear why he had her number at all if his friendship was with the girl’s parent.
215.Another consideration is the fact that this young person reported her complaints when she reached adulthood, at age 18 years. It is difficult to know what possible incentive she could have to make complaints about [the father] if there is no basis for these complaints.
216.[The father] emphasis on the fact that the police did not pursue charges about these reports also does not demonstrate that the alleged events did not occur. The level of proof and evidence required for police to investigate and prosecute charges of child sexual abuse is very different to that required by a child welfare agency to assess whether abuse has occurred.
217.Regarding [the father’s] account of picking up a friend’s daughter from school, this also seems to be an unusual arrangement as such requests are usually made of other parents with same-age children. [The father’s] involvement in this arrangement seems to show very little insight into the mores of how such activities can be perceived. This arrangement also appears to have occurred after [the father] was made aware (in 2018) of the allegations about him sexually abusing the daughter of a friend and it is worrying that he did not exercise more caution in his future arrangements.
218.It is also concerning that [the father] has reported no longer having any contact with this family. From his own account, he ceased his contact with the family prior to his reported withdrawal from his social life in response to being unable to have contact with [X]. The lack of contact between [the father] and his friend seems odd in light of the position of trust that to which [the father] was apparently appointed.
(Single Expert Report dated 12 April 2024)
Ms O formed the view that a cautious approach would be best and recommended that the child’s time with the father be supervised until he was about 10 years old. In her oral evidence she said that this was a general suggestion and that possibly unsupervised time could start at seven years of age. This is because the child would then be able to raise any issues on his own.
The oral evidence of the father did not assuage me of the concerns raised by those three matters. It is the combination of all three that cause concern. It must be said that it may not necessarily follow that an interest in young teenage girls is an indication of sexual interest in children.
Nonetheless, any risk can be ameliorated by supervision. His sister would be an appropriate supervisor as I formed the view she would not tolerate any misbehaviour or improper conduct.
The father’s drinking
The father has understated the evidence of his drinking although I consider that it was not as bad as the mother asserted. It was more likely than not a contributor to the difficulties between the parties. The sister gave evidence that when she became aware of the father’s use of alcohol she strongly rebuked the father, demanding that he stop all use of it immediately. My impression was that this was to good effect.
The father took a number of CDT tests between October 2023 and January 2025. These tests were negative for alcohol (Annexure “F44” of the father’s affidavit filed 7 February 2025; Exhibit 7).
Whilst there is always the possibility of a relapse, there is no evidence that this is likely.
I am not satisfied that there is any risk of harm to the child by alcohol consumption by the father.
Best interests considerations
The mother wishes to take the child to Country B. It is important to recognise that the mother, as an adult, save for some exceptional cases, is entitled to live wherever she wishes. She does not need a special reason for seeking to move. As to the child, the touchstone remains the same – what orders are in his best interests.
What arrangements would promote the safety of the child and the mother?
As discussed above, there is the possibility of a risk of harm to the child of sexual abuse by the father. Whilst there is not a strong basis for it, the father’s evidence did not satisfactorily explain the presence of the photos. However, any risk can be completely ameliorated by some form of supervision until the child turns seven.
The only harm that the mother is likely to suffer from the father is if there is an angry altercation at a changeover. That can be mitigated at first by professionally supervised changeovers and then for changeovers to occur in a public place.
Views expressed by the child
No views have been expressed by the child, who is currently too young.
The developmental, psychological, emotional and cultural needs of the child
The child has no particular needs. He is happy in the care of the mother.
Both parties are trying to promote the child’s Country J heritage.
The capacity of each parent to provide for those needs
As I have said, the child is happy in the care of the mother who takes very good care of him. The single expert thought that it was likely that the mother had not shared, directly or indirectly, her concerns about the father with the child, who was accordingly happy to see the father.
An issue has arisen about some separation anxiety, but the single expert suggested this could be improved with a more regular schedule for the child.
The father is essentially untested as a parent of a young child (as opposed to a newborn). If he remains prone to anger that would not be good. To his credit, he has completed a number of courses but the effect of them is still unknown. He is to be given credit for his reaction to and apparent curtailment of alcohol use.
The single expert noted that when observing the father with the child, the father “seemed a bit oblivious” to the child’s desire to break an embrace and instead of preparing for departure, focuses on prolonging play (Single Expert Report dated 12 April 2024, paragraph 196). This was an approach noted by supervisors at the contact centre as well.
This raises a question of the father’s insight into the child’s needs over his own and also raises questions as to his receipt of advice about the child’s care. The father seemed to struggle with the single expert trying to explain this to him.
These matters suggest that the father’s parenting skills are not ideal but would not preclude orders for him to spend time with the child or, in the absence of the mother, care for the child.
There is a risk that the father’s temper may emerge again, especially when the child becomes difficult at times, as he will. There is a risk that the child will be exposed to the father’s poor boundaries, as opined by Ms O. Supervision and a graduated introduction to more time will assist with but not eliminate these possibilities.
The supervisors at the contact centre recommended that supervised time be replaced by a less controlled form of time, based on their observations of the child with the father.
The benefit of the child having a meaningful relationship with both parents
The single expert opined that for a young child, as here, and in the absence of risk, “there are enormous benefits for being able to form an attachment with both parents and for his mother and his father to be involved in his care” (Single Expert Report dated 12 April 2024, paragraph 171).
She added:
172.Such meaningful relationships provide nurturing and encompassing experiences of being loved and cherished and allow children to develop a sense of trust and completeness in their family relationships. Being able to develop relationships with both parents also contributes to a child’s sense of identity. Furthermore, when a child has contact with both parents, this enables the child to also forge relationships with extended family members on both sides of the family. These relationships can provide children with a significant network of support that can endure throughout childhood and adolescence and into adulthood.
173.It can be difficult for children – particularly young children – to comprehend why a parent may be absent from his or her life, even when there are cogent reasons for this. When a child is unable to have a relationship with a parent, this can sometimes lead to a sense of abandonment and loss and can affect a child’s self-esteem and sense of self-worth.
(Single Expert Report dated 12 April 2024)
There is no doubt that the child has a close attachment to the mother, and she has a close and loving relationship with him.
The nature of the relationship between the father and the child is difficult to gauge as they have spent so little time together. The single expert said that the child had a positive reaction when seen with the father, suggesting that this provides some basis for building the relationship. However, the father’s anger may be remembered by the child, particularly if triggered by further angry episodes.
Disposition on the move to Country B
The mother wants to move to Country B because she feels lonely and isolated in Australia. She only came to Australia because of her marriage to the father. The mother has no family here, she has some friends, which may be little or no more than acquaintances. It seems she has been taking anti-depressants since 2021 and she told the single expert that her isolation has been compounded by the local Country J community being aware of the allegations about the father. That is easy to accept.
The single expert said:
206.… [The mother’s] stress and depression could be considered part of a normal and understandable difficulty in adjusting to trying circumstances.
207.[The mother] has indicated that her parenting capacity would be enhanced if she were able to draw on family members nearby - and this is likely to be the case. However, her current difficulties are not considered to be such that would cause concerns about her parenting capacity, especially in light of her willingness to seek appropriate support and to address identified issues.
(Single Expert Report dated 12 April 2024)
As I have said, the mother finds living in Australia intolerable. Interestingly, in cross-examination she listed the desirable aspects of Country B, then added it was much like Australia.
I gained the impression from the mother’s evidence that the real difficulty with Australia, other than the absence of any family members, was the presence of the father. The mother regards him as dangerously violent and a potential sexual abuser of the child. She believes that the father is likely to kill her if given the opportunity.
The mother’s Case Outline asserted:
9.The mother submits that there is a real risk to the child’s emotional and developmental well-being arising from being in an environment marred by family violence, and that removing [X] from this environment would be in his best interests.
(Mother’s Case Outline filed 13 February 2025, p.9)
The mother proposed that if she and the child moved to Country B that there should be an order for the father to spend supervised time with the child, supervised by the mother’s sister, at the sister’s home, three times per year for a block period of three to five days at a time until X turns 10.
That is very limited time. However, I formed the view that any such time would be unlikely to occur.
I drew from the evidence that the mother has such a dim view of the father that she believes there is no benefit in the child spending time with him. So much is implicit in the quote from her Case Outline.
A number of occasions of scheduled supervised time with the father were cancelled by the mother because the child was sick and once because the mother had injured herself. Yet, on many of these occasions, including the latter, the child attended daycare. The mother was able to facilitate that but not time with the father.
At the very least, time with the father was not seen as a priority. Taken with her obvious attitude towards the father, it is unlikely that she will willingly facilitate time with the father.
The mother did not adduce any evidence as to whether any orders I make for time for the child to spend with the father, even as proposed by her, could be and would be registered and enforced in Country B. It would be significantly in her favour of the child moving to Country B if such orders would be effective there.
There would, however, be nothing stopping the mother moving to a location other than her sister’s home in Country B, or to an unknown location elsewhere, and not informing the father, therefore entirely defeating the order.
Further, all that is known about the mother’s sister is that she lives in City P. Thus, the father would need the assistance of the mother to obtain the address of her sister so the ordered time could occur.
The mother’s sister did not give evidence. There is therefore no evidence that she is able and willing to have the mother and the child live with her and if so, for how long. She has not indicated her consent to having the father present in her home or to being a supervisor. If she says no to either, the child will spend no time with the father.
This is a consideration that carries significant weight.
There is no evidence that the mother will be entitled to work in Country B, what employment is likely to be available to her and the availability of schooling and health care for her and X.
Taking these matters into account, particularly the likelihood that a move to Country B will end any relationship between the father and X and the lack of evidence on critical issues, including, but not limited to, the absence of any evidence from the mother’s sister, I am not persuaded that a move to Country B is in the child’s best interest.
However, two further matters remain to be considered.
The first is the mother’s mental state. The evidence before me is that the mother is depressed and lonely in Australia but is parenting the child well. I have already quoted the opinion of the single expert on this (at [68]). The mother’s oral evidence was not put to the single expert to see if this caused her to change her opinion. This is unsurprising given that the mother’s oral evidence was that she would not leave her child behind.
The evidence falls well short of establishing that a move to Country B is crucial to the continuing emotional and psychological wellbeing of the mother. The mother, of course, does not need a compelling reason for wishing to move. The question remains what is in the best interests of the child. However, the mother failed to establish that her psychological and emotional state, and by inference that of the child, was such that despite the identified shortcomings in the child moving to Country B already identified, it remained the course that was in the best interests of the child.
The remaining matter is whether the father poses such a risk of harm to the child that under no circumstances could the child live with him with the only alternative being that the child must move to Country B with the mother, whatever the shortcomings of that course may be.
I am not persuaded that there is such a risk of harm. As indicated earlier, all things being equal, a safe approach suggests some form of supervision until the age of seven or so, but all things are not equal. Whilst I have found that the father has been violent in front of the child, no violence has been directed to him (other than in the tussle between the two parties). The parties had a fractious relationship and whilst that is no excuse for violence, the violence was most likely exacerbated by that.
I do not see a risk of harm to the child from violence as envisaged by the mother.
The father’s interest in teenage girls is more problematic. The child’s time will not be supervised if a residential order is made.
The father is essentially untested as a parent of a young child, let alone as a residential parent. However, the single expert supported orders that would see him eventually have unsupervised overnight time for weekends.
The choice then, if the mother is indeed set on leaving Australia, is between the mother and the father. In either case, the relationship with one parent is likely to be severed. I was not aided by any submissions on this choice, especially by the mother. It was all just presented as a fait accompli.
There are too many uncertainties about any move to Country B for me to be persuaded that it is in the child’s best interests. Also, I remain to be convinced that the mother will, in fact, leave without the child. Whilst that may be her instructions to her lawyers, those instructions are contrary to the evidence she gave the day before.
It would be very much in the child’s best interests if he has both parents in his life, as the single expert said. The only way that this can occur is if the mother remains in Australia. Difficult though it may be, I hope that she comes to realise this.
Accordingly, the child will live in Australia. Whilst the mother lives here, the child will live with her and spend time with the father, generally along the lines proposed by the Independent Children’s Lawyer. I have, however, accelerated some steps so as to increase and further the relationship between the child and the father in anticipation of the mother leaving Australia.
If the mother leaves Australia, the child will live with the father. There is no evidence that the mother will return to see the child, so the only order that can be made is that time will be agreed between the parties.
The presumption of shared parental responsibility is negated by the family violence. The relationship between the parties is fraught, communication is nigh impossible. The parent with whom the child lives shall have sole parental responsibility.
The child’s school
There remains the issue of school. The father seeks an order that the child attend a particular private school. The mother proposes to send the child to a public school near where she lives.
There was no evidence as to the costs of the private school or whether places were available. Importantly, the distance from the mother’s home was not identified. Thus, the travel time involved for the child and the mode of transport are unknown. Much the same might be said of the father and how he might fit taking the child to and from the private school around his work schedule.
I am not persuaded that I should make a special order as to the school. It will be up to the party with parental responsibility to decide.
PROPERTY
Balance sheet items
The mother sought to include a property in Country J as available for division, which she asserted was owned by the father and his father. There was no independent evidence of ownership or any evidence at all of value. It will be excluded.
The father sought to include add backs of $20,829 being money sent overseas by the mother and $4,171 being a withdrawal from the mother’s superannuation fund.
The mother said that about $7,000 appeared in her bank account from an unknown source (I infer by error) so she sent it to her aunt in Country J for her to donate to a project. An alternative course would have been to return the funds. In either case, these funds were not property available for division between the parties.
The source of the other money sent overseas is unknown. The mother said she sent it for the following purposes:
156.On or around 29 March 2023, I repaid my father the sum of $4,245.91 for a loan taken out to support myself and [X] while I was staying in [Country J] for a period of […] months. On the same day I also paid the costs of going to […] for my parents as it’s a duty of a child from the religious point of view in a sum of $4,245.71.
157.On or around 1 April 2023, I repaid a loan taken from my Aunt [Ms R] to support myself and [X] while I was staying in [Country J] for a period of […] months. This was in the sum of $4,207.09.
(Mother’s affidavit filed 10 February 2025)
The amounts varied slightly in cross-examination but the mother maintained the money was used to repay loans taken out during her time in Country J.
I am not persuaded that had these funds not been sent overseas they would have remained available for division between the parties.
The mother said she spent the money withdrawn from the superannuation fund for necessary living expenses.
These funds will not be added back.
The parties contended different values for each of their vehicles, each contending a higher amount for the other’s vehicle. During submissions, it was agreed that the lower values would be adopted for both vehicles.
The balance sheet is:
OWNERSHIP
DESCRIPTION
VALUE
ASSETS
1
Joint
Suburb H property sale proceeds (held in controlled monies account)
$153,241
2
Joint
NAB Joint Account …25
NIL
3
Mother
CBA Account …33
$275
4
Mother
CBA Account …41
$565
5
Mother
CBA Account …34
$224
6
Father
CBA Account …46
$712
7
Father
CBA Account …98
NIL
8
Father
CBA Account …76
$479
9
Father
Motor Vehicle 1
$7,000
10
Mother
Motor Vehicle 2
$3,000
11
Father
Household contents
$5,000
12
Mother
Household contents/personal property
$2,000
TOTAL
$172,496
LIABILITIES
13
Joint
Costs of single expert’s attendance for cross-examination to be paid from Item 1
$3,300
14
Father
Personal Loan from Ms Q
$10,000
15
Father
Personal Loan from Mr S
$2,000
TOTAL
$15,300
SUPERANNUATION
16
Mother
Superannuation Fund 2
NIL
17
Father
Superannuation Fund 1
$109,394
TOTAL
$109,394
NET TOTAL
$266,590
Contributions
At the time of the marriage the mother had $10,000 in savings. The father had $71,000 in savings and $18,000 in superannuation.
The parties lived rent free with the father’s sister for some months in 2017 before securing rental accommodation. The property at Suburb H was purchased in 2019 for $575,000. The deposit was paid by the father ($44,750) together with borrowings from his brother-in-law ($14,000) and the mother’s father ($8,000). Both of these loans have been repaid.
I do not take into account money spent on the wedding, wedding gifts, the marriage payment, relocation to Australia or the like.
The mother worked in retail from 2017 to 2020. From mid-2022 she worked as a consultant but this ceased some time in 2023 (according to the father).
At the time of the parties’ marriage, the father taught and was in customer service with a transport organisation. He is now in a different role in the transport industry earning up to $139,000 per annum ($88,000 plus allowances and overtime).
Each party alleged that the other largely retained their own income for themselves. As the mortgage was paid, the loans from relatives repaid and the household managed to pay its expenses, this seems inherently unlikely.
Since separation, the mother has borne all of the care of the child. The father has paid child support as assessed.
The Suburb H property was sold in mid-2023 and the net proceeds are held as per the balance sheet.
The initial contributions favour the father. Having regard to the contributions they each made during the relationship, they should be regarded as equal. They both worked and although the father earnt more than the mother, the mother has been the primary carer for the child. That is not to say the father did not contribute to the welfare of the family, as he did. The post separation contributions favour the mother given she has had the ongoing primary care of the child. Overall, the contributions are regarded as equal.
As to the future, the father has secure employment in the transport industry, continuing to earn over $100,000 per annum.
The mother worked briefly as a part-time financial officer(15 hours per week) in early 2025, but resigned “due to the stress of being [the child’s] sole carer, having no support from friends or family and also the emotional toll taken [by] these Family Law proceedings” (mother’s affidavit filed 10 February 2025, paragraph 121).
Nonetheless, being qualified as a financial officer, the mother has a significant earning capacity. There was no evidence in her affidavit about any attempts to find other part-time work.
The significant issue is who will have the future care of the child. If it is the mother there is likely to be at least some impact on her ability to earn income, although that effect should lessen when the proceedings end and when the child commences school. Due to the way in which the hearing was run, there was no evidence from the father as to how he would manage the full-time care of the child and to what extent it would impair his ability to continue with his employment. It is likely that there would be some impact, at least.
I simply do not know where the child will be living so no adjustment can be made on that basis.
The amount of property available for distribution is small and any adjustment for any disparity in earning potential would be little more than nominal.
There is no other relevant matter to take into account.
In light of the very unsatisfactory state of the parenting case (as it ended up) the only just and equitable outcome is that the property be divided equally.
Disposition
Half of the net assets is $133,295. The mother already has $4,414 ($6,064 less $1,650) and therefore requires a further $128,881. It would not be appropriate to give her most of the cash and leave the father with his superannuation which he will not be able to access for many years. The funds held in the controlled monies account should be distributed equally (i.e. $76,620 each). It follows that there will need to be a superannuation splitting order giving her $52,261.
The father has $108,935 ($110,585 less $1,650). He will receive his $76,621 from the controlled monies account ($185,556). There will be a transfer of $52,261 of his superannuation to the mother leaving him with $133,295.
I was informed that procedural fairness had been effected on the superannuation trustees (Transcript 20 February 2025, p.43 lines 31–42).
I consider these orders to be just and equitable.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 31 March 2025
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