Geiger & Geiger
[2025] FedCFamC2F 34
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Geiger & Geiger [2025] FedCFamC2F 34
File number(s): PAC 6208 of 2022 Judgment of: JUDGE MYERS Date of judgment: 20 January 2025 Catchwords: FAMILY LAW - Parenting proceedings – one child aged six - best interests of child – whether the Father’s time be supervised or unsupervised – court finds that it is in the best interests of the child for the Father’s time to be unsupervised.
FAMILY LAW – Property proceedings - small property pool – where court finds it is just and equitable for Wife to receive 70% of the property pool and Husband 30%
Legislation: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) ss 60CC, 60CG, 75(2), 79.
Cases cited: Stanford v Stanford (2012) 247 CLR 108. Division: Division 2 Family Law Number of paragraphs: 114 Date of last submission/s: 22 August 2024 Date of hearing: 20-22 August 2024 Place: Parramatta Solicitor for the Applicant: Browns The Family Lawyers Solicitor for the Respondent: Ad Valorem Law Pty Ltd Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 6208 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GEIGER
Applicant
AND: MR GEIGER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MYERS
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
PARENTING
1.That the child X, born in 2018 (“the child”), live with the Mother.
2.That the Mother has sole decision-making responsibility for all major long-term decisions concerning the child, provided the Mother:
(a)Notify the Father of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:
(i)Proposed decisions about the children’s schooling, elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting the child; and
(ii)Ensure that such notification is given to the Father in writing via the Family Wizard App or other co-parenting app and is given to the Father not less than fourteen (14) days before a final decision is made, except in the case of an emergency.
(b)Takes into consideration any views expressed by the Father in respect of such proposed decisions.
3.Order 2 does not limit the Father’s authority to access records or information regarding the child from the child’s school or medical practitioners.
4.Communications between the parents shall be limited to matters concerning the child only and shall occur via the Family Wizard app or other co-parenting app the parties agree to.
5.Within 14 days of the date of these Orders the parents shall do all acts and things required of them to enrol in and subsequently complete the Parenting After Separation program facilitated by B Centre.
6.Within 14 days of the date of these Orders the parents shall do all acts and things required of them to enrol in and subsequently complete the following courses/programs:
(a)Tuning in to Kids; and
(b)Keeping Kids in Mind.
7.Within 7 days of receipt of the completion certificate for the Courses referred to at Orders 5 and 6, each parent shall cause a copy of their completion certificates to be provided to the other parent.
8.Within 14 days of the date of these Orders, the Father shall do all acts and things required of him to engage in individual counselling with a Psychologist, as follows:
(a)The counselling shall be focused on improving the Father’s parenting skills, addressing his anger management and understanding the effects of Family Violence on the Mother and child.
(b)The Father shall attend for a minimum of eight sessions or more if recommended by the Psychologist.
(c)Once arranged, the Father shall, via the Family Wizard App, provide to the Mother a copy of his Mental Health Care Plan, and evidence of his first appointment with his Psychologist.
(d)When the Father’s counselling with the Psychologist comes to an end, or the Psychologist forms the view that the Father no longer requires counselling, then within 7 days, the Father is to cause a letter from the Psychologist to be provided to the Mother via the Family Wizard app, evidencing the end of his treatment and/or any further recommended therapy.
9.Leave is granted to the legal representative for the Father to provide to the Psychologist (referred to at Order 8 above) a copy of these Orders.
10.The child shall forthwith commence spending time with the Father, as agreed between the parties, and failing agreement, as follows:
(a)Each Wednesday from after school (or 3:00pm) to 6:00pm; and
(b)Each alternate Saturday 10:00am to Sunday 5:00pm.
11.Upon the later of the expiration of 6 months from the date of these orders or compliance with Orders 5, 6, 7, and 8 and until the child turns 18 years of age, the child shall spend time with the Father as follows:
(a)Each Wednesday from after school (or 3:00pm) to 6:00pm; and
(b)Each alternate weekend from after school (or 3:00pm) on Friday to Monday return to school or at 9am.
12.Despite the provision of any other Order, the child spend time with the Father on special occasions, as follows:
(a)On the Saturday immediately after the child’s birthday, between 2:00pm and 6:00pm.
(b)During Easter:
(i)For the first half of the gazetted Easter Day, between 10:00am and 2:00pm in even numbered years.
(ii)For the second half of the gazetted Easter Day, between 2:00pm and 6:00pm in odd numbered years.
(c)During Christmas:
(i)From 6:00pm on Christmas Eve (24 December) to 2:00pm on Christmas Day (25 December), in even numbered years.
(ii)From 2:00pm on Christmas Day (25 December) to 10:00am on Boxing Day (26 December), in odd numbered years.
(d)On Father’s Day as agreed and failing agreement from 9:00am to 5:00pm.
(e)On the Father’s birthday as agreed and failing agreement between 2:00pm and 6:00pm and upon the child attending school and where it is a school day from the collection of school until 6:00pm.
13.When the child commences year 3 at school and provided that the Father has complied with Orders 5, 6, 7 and 8, the child spends time with the Father during NSW Gazetted School Holidays as follows:
(a)For Term 1, from 3:00pm (or after school) on the last day of school until 2:00pm on the middle Saturday of the school holiday period.
(b)For Term 2, from 2:00pm on the middle Saturday of the school holiday period, until the commencement of school (or 9:00am on the first day of school).
(c)For Term 3, from 3:00pm (or after school) on the last day of school until 2:00pm on the middle Saturday of the school holiday period.
(d)For Term 4, for the last three weeks of the school holiday period, commencing at 2:00pm on the middle Saturday of the school holiday period, until 4:00pm on the Sunday before school commences the following year.
14.Upon the Father commencing spending time with the child pursuant to Order 13 above, the Father’s time provided for at Orders 10 and 11 shall be suspended during school holiday periods and the Father shall spend time with the child in accordance with the provisions of Order 13 during school holiday periods. For the purposes of clarity of this Order, once the child commences spending time with the Father pursuant to Order 13 the child shall spend time with the Mother during the school holidays other than at the times the Father spends with the child pursuant to Order 13.
15.When the child is living with the Mother, the child shall communicate with the Father by telephone, facetime or skype, each Friday between 5:00pm and 5:30pm.
16.When the child is spending time with the Father, the child shall communicate with the Mother, each Saturday between 5:00pm and 5:30pm.
17.To facilitate time between the child and the Father in accordance with Orders 10, 11, 12 and 13 and unless otherwise agreed between the parties, changeovers shall occur as follows:
(a)At the child’s school on a day X is attending school; and
(b)At the Maternal Grandparents home at all other times.
18.For the purposes of Order 17(b) above, the Father shall at all times be courteous to the Maternal Grandparents or any other person present at the home of the Maternal Grandparents during the changeover and shall not discuss any other issues, other than any immediate welfare concerns regarding the child.
19.That where applicable, the Father shall ensure that X’s belongings including his school uniform, bag and school equipment are returned to the Mother with X at the conclusion of the period at which he spends time with X.
20.Without admissions and by consent each parent is restrained by way of injunction from:
(a)Denigrating the other parent or members of the other parent’s family in the presence and/or hearing of the child, and shall immediately remove the child from the presence of any other person that is denigrating the parents or members of the child’s family;
(b)Physically disciplining the child;
(c)Interrogating the child in relation to events and or conversations that have occurred in the home of the other parent.
21.If the child becomes ill and/or is injured and in need of medical treatment whilst he is in the Father’s care, the Father is to:
(a)Notify the Mother via the Family Wizard App or other co-parenting app, as soon as practicable (i.e. within 2 hours); and
(b)Provide the Mother with all relevant information including the address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.
PROPERTY
22.By way of final property adjustment between the parties pursuant to section 79 of the Family Law Act 1975 (Cth), the parties shall do all acts and things and sign all documents necessary to transfer to the Wife the whole of the sum presently in the trust account of Browns the Family Lawyers ($24,452.19) being the net proceeds of sale of the home of the parties at C Street, Suburb D New South Wales.
23.That otherwise as provided for in these Orders, each party shall forthwith be declared to be the sole legal and beneficial owner of all monies in bank accounts, interest in shares in public or private companies, motor vehicles, real property, chattels, insurance policies, superannuation, furniture, furnishings and the like that stand in that parties name or in that parties possession as at the date of these Orders.
24.All Outstanding Applications and Responses are dismissed, and the proceedings are removed from the List of Matters awaiting finalisation.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MYERS:
This is a parenting and property decision in the matter of Geiger & Geiger.
At the Final Hearing the Applicant was represented by Mr Brown from Browns The Family Lawyers, the Respondent was represented by Mr Scevola from Ad Valorem Law Pty Ltd, and the Independent Children’s Lawyer was represented by Ms Edwards from Legal Aid NSW.
BACKGROUND
By way of background, the Applicant Mother/Wife was born in 1992 and the Respondent Father/Husband was born in 1991.
The parties met in or around 2007 and commenced a relationship in or around 2009.
The parties married in 2016.
The parties only child X was born in 2018 (currently aged 6).
Following the birth of the parties’ son, it is an agreed fact that the Mother took 6 months maternity leave to care for the child.
Since September 2018, the Respondent has been a tradesperson and the sole owner and operator of his business trading as E Business.
In early 2019 the Wife returned to work on a full-time basis.
Sometime in 2019 the Wife obtained her present position with F Company as a professional.
It is uncontroversial that the parties separated on a final basis on 6 June 2022.
The Mother resides at her parent’s home with her parents and older sister, Ms G.
The Father resides in rental accommodation in Suburb H.
It is not contested that the Mother was the primary carer of the child.
Despite the parties varying accounts of their post separation parenting arrangements, X was spending time with the Father from 6 June 2022-early September 2022.
In late 2022 the Father was charged with Domestic Violence offences and a provisional Apprehended Domestic Violence Order was made against him naming the Mother as the person in need of protection. From this time until 21 October 2022 the Father did not spend time with the child. It is important to note that these charges, including the provisional Apprehended Domestic Violence Order, were subsequently withdrawn and dismissed.
On 26 September 2022, the Mother, via her solicitors, proposed to the Father that the Father spend time with X each alternate weekend from 3pm Friday to 5pm Sunday. On 7 October 2022 the Father agreed to such arrangement.
Pursuant to the above arrangement, on 21 October 2022 the Father picked X up from school and returned him to the Mother on 23 October 2022. The Mother asserts that she held concerns for X’s safety following this weekend due to the child attending a venue called J Venue at night and further holding concerns that the Father did not properly restrain the child in his vehicle. The Father alleges there was no risk to X and that the car was stationery at the time the child was not properly restrained.
The Mother contends that following the child being returned to the Mother on 23 October 2022 she communicated to the Father via his solicitors that she would be suspending time between the Father and the child. The Father contends he was not aware of the Mother’s intention to suspend time and accordingly he picked X up from day care the following Friday, 4 November 2022 and thereafter spent that weekend with him.
The Mother/Wife commenced proceedings in the Federal Circuit and Family Court of Australia on 10 November 2022.
On 23 November 2022 an Interim Hearing was held before Judicial Registrar Malinowsky. Orders were made, inter alia, that provided for X to live with the Mother, the Mother have sole parental responsibility for X and that the Father spend supervised time with him on no less than one occasion per week for a period of no less than 3 hours.
The Father spent time with X pursuant to the above orders from December 2022 – early March 2023 at which point the Father decided to discontinue the visits as he suggested he could no longer afford them. As such, the Father did not spend time with X from early March 2023 – 29 February 2024.
On 13 March 2023 Judicial Registrar Weaver ordered the preparation of a Family Report. Following interviews with the parents and the children, the report was prepared and is dated 20 November 2023.
On 29 February 2024 the parties attended a court-based Family Dispute Resolution Conference where the parties agreed to Interim Orders which included a resumption of supervised time by the Father with X.
PROPOSED ORDERS
The Applicant sought the following final parenting and property orders, as contained in her written submissions, forming Exhibit ‘K’ in the proceedings, as follows:
Orders by consent
1.That the child [X], born [in] 2018 (“the child”), live with the Mother.
2.That the Mother has sole responsibility for making long-term decisions concerning the child, provided the Mother:
a. Notify the Father of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:
i. Proposed decisions about the children’s schooling, elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting the child; and
ii.Ensure that such notification is given to the Father in writing via the Family Wizard App or other co-parenting app and is given to the Father not less than fourteen (14) days before a final decision is made, except in the case of an emergency.
b. Takes into consideration any views expressed by the Father in respect of such proposed decision.
3.Order 2 does not limit the Father’s authority to access records or information regarding the child from the child’s school or medical practitioners.
4.Communications between the parents shall be limited to matters concerning the child only and shall occur via the Family Wizard app or other co-parenting app the parties agree to.
5.Within 14 days of the date of these Orders the parents shall do all acts and things required of them to enrol in and subsequently complete the Parenting After Separation program facilitated by [B Centre].
6.Within 14 days of the date of these Orders the parents shall do all acts and things required of them to enrol in and subsequently complete the following courses/programs: Tuning in to Kids; and Keeping Kids in Mind.
7.Within 7 days of receipt of the completion certificate for the Courses referred to at Orders 4 and 5, each parent shall cause a copy of their completion certificates to be provided to the other parent.
8.Within 14 days of the date of these Orders, the Father shall do all acts and things required of him to engage in individual counselling with a Psychologist, as follows: The counselling shall be focused on improving the Father’s parenting skills and reflective capacity.
a. The Father shall attend for a minimum of eight sessions unless a recommendation to the contrary is made by the psychologist.
b. Once arranged, the Father shall, via the Family Wizard App, provide to the Mother a copy of his Mental Health Care Plan, and evidence of his first appointment with his Psychologist.
c. When the Father’s counselling with the Psychologist comes to an end, or the Psychologist forms the view that the Father no longer requires counselling, then within 7 days, the Father is to cause a letter from the Psychologist to be provided to the Mother via the Family Wizard app, evidencing the end of his treatment.
9. Leave is granted to the legal representative for the Father to provide to the Psychologist a copy of these Orders.
15. When the child is living with the Mother, the child shall communicate with the Father by telephone, facetime or skype, each Friday between 5pm – 5.30pm.
16. When the child is spending time with the Father, the child shall communicate with the Mother, each Saturday between 5pm – 5.30pm.
18. Without admissions and by consent each parent is restrained by way of injunction from:
a. Denigrating the other parent or members of the other parent’s family in the presence and/or hearing of the child;
b. Physically discipling the child;
c. Interrogating the child in relation to events and or conversations that have occurred in the home of the other parent.
19. If the child becomes ill and/or is injured and in need of medical treatment whilst he is in the Father’s care, the Father is to:
a. Notify the Mother via the Family Wizard App or other co-parenting app, as soon as practicable (i.e. within 2 hours); and
b. Provide the Mother with all relevant information including the address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.
Parenting orders contended by the Mother which are not agreed by the other parties
1.The Father shall spend time with the child [X] (born [in] 2018) (“the child”) for a period of three (3) hours from the date of these Orders, at and under the supervision of [K Contact Centre] one day each week, preferably TUESDAY. The Father shall bear the costs thereof.
In the alternative, and in the event that the court orders unsupervised time with the Father:
2.That the Father shall be restrained from bringing the child into contact with the paternal grandfather or the paternal aunts
3.That the changeover shall be facilitated by the Father collecting and returning the child to and from the maternal grandparents at their home.
4.That the Father shall ensure that [X]’s belongings including his school uniform, bag and school equipment are returned to the Mother with [X] at the conclusion of each period at which he spends time with [X].
PROPERTY
Agreed orders
1.That the parties shall do all acts and things and sign all documents to transfer to the Wife the whole of the sum presently in the trust account of Browns the Family Lawyers ($24,452.19) being the net proceeds of sale of the home of the parties at [C Street, Suburb D], New South Wales.
Contentious orders
1.That the Husband shall transfer to the Wife any motor vehicle owned by him.
2.That the Husband shall pay to the Wife the whole of any money in any bank account in his name controlled by him including but not limited to CBA account [Mr Geiger] trading as [E Business] number […]11)
3.That the Husband shall pay to the Wife a further $100,000 by way of property settlement
4.Costs
The Independent Children’s Lawyer seeks Final Orders in accordance with Exhibit ‘I’ in the proceedings, as follows:
1.That the child [X], born [in] 2018 (“the child”), live with the Mother.
2.That the Mother has sole responsibility for making long-term decisions concerning the child, provided the Mother:
a. Notify the Father of any proposed decision relating to the long-term care and welfare of the child, including but not limited to:
i.Proposed decisions about the children’s schooling, elective surgery, treatment of chronic conditions, orthodontic treatment and other long-term medical issues affecting the child; and
ii.Ensure that such notification is given to the Father in writing via the Family Wizard App or other co-parenting app and is given to the Father not less than fourteen (14) days before a final decision is made, except in the case of an emergency.
b. Takes into consideration any views expressed by the Father in respect of such proposed decisions.
3.Order 2 does not limit the Father’s authority to access records or information regarding the child from the child’s school or medical practitioners.
4.Communications between the parents shall be limited to matters concerning the child only and shall occur via the Family Wizard app or other co-parenting app the parties agree to.
5.Within 14 days of the date of these Orders the parents shall do all acts and things required of them to enrol in and subsequently complete the Parenting After Separation program facilitated by [B Centre].
6.Within 14 days of the date of these Orders the parents shall do all acts and things required of them to enrol in and subsequently complete the following courses/programs:
a. Tuning in to Kids; and
b. Keeping Kids in Mind.
7.Within 7 days of receipt of the completion certificate for the Courses referred to at Orders 4 and 5, each parent shall cause a copy of their completion certificates to be provided to the other parent.
8.Within 14 days of the date of these Orders, the Father shall do all acts and things required of him to engage in individual counselling with a Psychologist, as follows:
a. The counselling shall be focused on improving the Father’s parenting skills, addressing his anger management and understanding the effects of Family Violence on the Mother and child.
b. The Father shall attend for a minimum of eight sessions or more if recommended by the psychologist.
c. Once arranged, the Father shall, via the Family Wizard App, provide to the Mother a copy of his Mental Health Care Plan, and evidence of his first appointment with his Psychologist.
d. When the Father’s counselling with the Psychologist comes to an end, or the Psychologist forms the view that the Father no longer requires counselling, then within 7 days, the Father is to cause a letter from the Psychologist to be provided to the Mother via the Family Wizard app, evidencing the end of his treatment and/or any further recommended therapy.
9.Leave is granted to the legal representative for the Father to provide to the Psychologist a copy of these Orders.
10.The child shall spend time with the Father, as agreed between the parties, and failing agreement, as follows:
a. Each Wednesday from after school (or 3:00pm) to 6:00pm.
b. Each alternate Saturday 10am to 5pm.
11.Upon the Father’s compliance with attendance of 5 sessions of therapy with his psychologist as referred to in Order 8(a) and upon him providing a copy of the letter from the psychologist confirming same, to the Mother via the Family Wizard App, then the child shall spend time with the Father as follows:
a. Each Wednesday from after school (or 3:00pm) to 6:00pm; and
b. Each alternate Saturday 10am to Sunday 5pm.
12.Upon the Father’s compliance with Orders 5, 6, 7, and 8 the child shall spend time with the Father as follows:
a. For a period of 6 months:
i.Each Wednesday from after school (or 3:00pm) to 6:00pm; and
ii.Each alternate weekend from after school (or 3:00pm) on Friday to Sunday 5pm.
b. Upon the expiration of the 6 months in accordance with Order 12(a), and until the child turns 18 years of age:
i.Each Wednesday from after school (or 3:00pm) to 6:00pm.
ii.Each alternate weekend from after school (or 3:00pm) on Friday to Monday at 9:00am.
13.The child spend time with the Father on special occasions, as follows:
a. On the Saturday immediately after the child’s birthday, between 2:00PM and 6:00PM.
b. During Easter:
i.For the first half of the gazetted Easter Day, between 10:00AM and 2:00PM in even numbered years.
ii.For the second half of the gazetted Easter Day, between 2:00PM and 6:00PM in odd numbered years.
c. During Christmas:
i.From 6:00PM on Christmas Eve (24 December) to 2:00PM on Christmas Day (25 December), in even numbered years.
ii.From 2:00PM on Christmas Day (25 December) to 10:00AM on Boxing Day (26 December), in odd numbered years.
14.Order 13(c) shall have no effect until the Father has complied with Order 11 and is spending overnight time with the child.
15.When the child commences year 3 at school and provided that the Father has complied with Orders 5, 6, 7 and 8, the child spends time with the Father during NSW Gazetted School Holidays as follows:
a. For Term 1, from 3:00PM (or after school) on the last day of school until 2:00PM on the middle Saturday of the school holiday period.
b. For Term 2, from 2:00PM on the middle Saturday of the school holiday period, until the commencement of school (or 9:00AM on the first day of school).
c. For Term 3, from 3:00PM (or after school) on the last day of school until 2:00PM on the middle Saturday of the school holiday period.
d. For Term 4, for the last three weeks of the school holiday period, commencing at 2:00PM on the middle Saturday of the school holiday period, until 4:00PM on the Sunday before school commences the following year.
16.The parents time during the school holiday period shall be suspended in accordance with Order 13 for Time on Special Occasions.
17.When the child is living with the Mother, the child shall communicate with the Father by telephone, facetime or skype, each Friday between 6:30PM and 7:00PM.
18.When the child is spending time with the Father, the child shall communicate with the Mother, each Saturday between 6:30PM and 7:00PM.
19.To facilitate time between the child and the Father in accordance with Orders 10, 11 and 12, and unless otherwise agreed to by the parents, changeovers shall occur in a public place, and failing agreement, as follows:
a. For the first 6 months, supervised by [K Contact Centre] (with both parties to pay equally towards the cost of same); and thereafter
b. At the child’s school on a day [X] is attending school; and
c. At [Suburb L] McDonalds at all other times.
20.That should [K Contact Centre] not be available to facilitate changeover on Wednesday afternoons, then the Father shall return the child to the Maternal Grandparent’s home and the Father shall at all times be courteous to the Maternal Grandparents or any other person present at the home of the Maternal Grandparents during the changeover and shall not discuss any other issues, other than any immediate welfare concerns regarding the child.
21.Without admissions and by consent each parent is restrained by way of injunction from:
a. Denigrating the other parent or members of the other parent’s family in the presence and/or hearing of the child, and shall immediately remove the child from the presence of any other person that is denigrating the parents or members of the child’s family;
b. Physically discipling the child;
c. Interrogating the child in relation to events and or conversations that have occurred in the home of the other parent.
22.If the child becomes ill and/or is injured and in need of medical treatment whilst he is in the Father’s care, the Father is to:
a. Notify the Mother via the Family Wizard App or other co-parenting app, as soon as practicable (i.e. within 2 hours); and
b. Provide the Mother with all relevant information including the address, contact telephone number and name of the treating hospital, medical centre and/or treating practitioner.
The Respondent Father consented to the parenting orders sought by the Independent Children’s Lawyer save for Orders 10, 11 and 12. It was submitted on behalf of the Father that should the Court make Orders for the Father to recommence unsupervised overnight visits with the child, then Order 11 would be removed and Order 10 would read:
10.The child shall spend time with the Father, as agreed between the parties, and failing agreement, as follows:
a. Each Wednesday from after school (or 3:00pm) to 6:00pm.
b. Each alternate Saturday 10am to Sunday 5pm.
In essence, the Father seeks that overnight time commence forthwith upon the making of Orders. Consequently, the Father seeks Order 12 as sought by the ICL to be amended to read as follows:
12.Upon the Father’s compliance with Orders 5, 6, 7, and 8 the child shall thereafter spend time with the Father as follows:
a. Each Wednesday from after school (or 3:00pm) to 6:00pm.
b. Each alternate weekend from after school (or 3:00pm) on Friday to Monday at 9:00am.
The Father seeks property orders as contained in his case summary document filed 17 August 2024 as follows:
It is submitted that it is just and equitable for a property settlement adjustment to be made in this matter in a 50%/50% split.
PARENTING DETERMINATION
Section 60CC(1) of the Act specifies that when determining what is in a child's best interests the Court must:
a. consider the matters set out in subsection (2); and
b. if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
The Court is not aware that the child is an Aboriginal and/or Torres Strait Islander child.
The Act specifies six matters which must be considered in determining what is in the child’s best interests at subsection 60CC(2). The matters to be considered include:
a.what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
i. the child; and
ii. each person who has care of the child (whether or not a person has parental responsibility for the child);
b.any views expressed by the child;
c.the developmental, psychological, emotional and cultural needs of the child;
d.the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
e.the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
f.anything else that is relevant to the particular circumstances of the child.
Pursuant to section 60CC(2A), in contemplating the foresaid matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that currently or has previously applied to a child, or a member of the child’s family.
Section 60CG of the Act further requires a Court when considering what parenting Order to make to ensure that whatever Order is made, does not expose a person to an unacceptable risk of family violence and is consistent with any family violence Order.
Section 60CC(2)(a)
Pursuant to subsection 60CC(2)(a) the Court must have regard to that arrangement which would promote the “safety” of a child and those who have care of the child.
The Court is of the view that ‘safety’ of a child and its carer means, in this context, protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing acts or behaviours. It includes protection from fear. It is not the complete elimination of prospective hurt, injury or danger, but rather making such Order as affords the child and its carer the most optimal protection from these harms or potential harms.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence Order previously or currently in place.
The Court heard the cross examination of both parties. The Court notes the video recordings that were tendered into evidence. The video recording of the Father refusing to hand the child’s bag to the Mother forming Exhibit ‘F’ in the proceedings does the Father no credit. It demonstrates the Father’s willingness to engage in controlling behaviour towards the Mother. The video shows the Father being somewhat joyed by the Mother’s reaction and her repeated requests for the return of the bag. The Father conceded in cross examination that at the time the Mother’s reaction had caused him “amusement”. (Transcript 22 August 2024, page 213, line 17).
Similarly, the Court found the video recording of the Mother suggesting to the Father there was someone on her mobile phone painted the Mother in a poor light. From the Court’s point of view, it was clear that the Mother was seeking to intimidate the Father, and it looked like to some extent the Mother’s suggestion about who was on the phone did just that. The recording in the view of the Court showed that the Mother was not intimidated by the Father.
The Court and the Court Child Expert, Mr M, noted the assault charges and associated ADVO against the Father were dismissed in the Local Court. On the topic the Court accepts, and Mr M acknowledges, that at least in respect of the criminal charges, any determination of those charges was dealt with on the higher standard of ‘beyond reasonable doubt’ as compared to the standard employed by this Court in its usual determination of issues of fact based on the civil standard of ‘balance of probabilities’.
The Mother gave significant evidence of having been subjected to physical and emotional family violence. While the Court is not prepared to accept that each and every allegation made by the Mother against the Father is correct, particularly where there is little independent evidence that supports each and every allegation (save and except for some photographs of alleged bruising that are hard to make out), the Court still finds that the Father perpetrated family violence on the Mother and particularly at the point in the parties’ relationship when the Father alleges he found out the Mother was having an affair.
The Court notes the Father’s evidence contained at paragraph 13 of his trial Affidavit where he states:
…I never resorted to violence in trying to deal with my former wife, who constantly antagonized me particularly towards the end of our marriage when I actually caught her out continuing an extra marital affair.
The Court finds that the Father’s belief about the Mother having engaged in an affair was genuinely held and that it has impinged upon the Father’s ability to treat the Mother with respect. The solicitor for the Mother made the point during submissions on the topic as follows:
…the fact of the matter is that there’s – you know, the evidence is replete with [Mr Geiger] making the allegation that my client had an affair. That’s an allegation that my client denies. And I am not asking your Honour to decide whether it happened or not. But it’s significant that he can’t stop telling everybody about it. And, you know, your Honour would be wondering, well, if this was one catalyst to his violence and his negative conduct towards my client, well, you know, has it resolved? I mean, he has done nothing to resolve it. He hasn’t done any work on himself. He hasn’t gone to the courses that have been recommended up to two years ago. Of course, he has a Damascus Road conversion in the witness box about the need to attend some form of counselling or anger management, but it’s all very unconvincing, in my respectful submission.
(Transcript 22 August 2024, page 271, lines 3-14)
During cross examination, the ICL engaged with the Father on the topic of the Father’s view of the Mother that can be seen in the following exchange:
ICL: All right. Now, do you respect the mother as a parent?
Father: Of course.
ICL:That’s good. Can you tell the court three positive things that you would say about the mother’s parenting of [X]?
Father:Care, affection and tenderness.
(Transcript 22 August 2024, page 213, lines 22-25)
The ICL engaged with the Father further and elicited a concession from the Father that despite the Father’s positive view he had of the Mother he had spoken disrespectfully to the Mother as seen in the following exchange:
ICL: So you accept she’s providing very good care for [X]?
Father: Of course, yes.
ICL:That’s good. So you’ve called her some really derogatory names over time, haven’t you? We saw an AVL yesterday where you were calling her a slut, a bitch and that she needs a hiding. Well, it was played yesterday. And it was your voice. Well, either way, if you’re saying she’s a really – well, it’s not an appropriate way to speak to the Mother of your child, is it?
Father: No.
(Transcript 22 August 2024, page 213, lines 35-42)
Mr M was asked questions by the Court and the ICL in respect of the Mother’s position that there was a need for ongoing supervision of the child’s time with the Father and the failure of the orders to progress to unsupervised time as recommended by Mr M as set out below:
His Honour: So the Mother’s position is that [X] have ongoing supervision, endlessly, until, maybe, he’s 18. What would be your view about the impact of long term supervision on a child?
[Mr M]:Your Honour, could I just answer that by saying when I looked at the Mother’s application, she talked about ongoing supervision, Father doing a course, counselling for anger management, and coming back to a mediation. So that’s what I read. But what I’m hearing
His Honour: That wasn’t the Mother’s evidence during cross-examination.
[Mr M]: Okay.
His Honour: The Mother’s evidence during cross-examination was very much, well, really, it should just be supervised time, basically, forever?
[Mr M]:Yes. Okay, in answer to that, totally unrealistic. That never works. I mean, even if there’s a private person that can do it, like a friend or a member of the family, that person couldn’t maintain that. And of course, a child’s needs and what the issues are about safety vary as a child gets older. But as you know, in my report, I didn’t recommend any supervision. There was a really strong bond between [X] and his Father that I witnessed.
ICL:Would it concern you, [Mr M], that one of the recommendations in your report was that – that the alternate weekend arrangement be immediately put back into place. That was at 56, and that didn’t happen?
[Mr M]: Did it concern me that that didn’t happen?
ICL: Yes?
[Mr M]:I was surprised that it was still being supervised, you know, another go at supervision. You know, based on what I recommended – but I know it’s only a recommendation based on what I observed and my experience. I didn’t think that [X] – there were any safety issues in relation to [X]. I mean, I do believe that the Mother was exposed to violence from the Father, and her affidavit was extensive about that. You don’t fabricate something that’s that extensive. But the issue about [X] and his safety when with his Father, I know it’s hard to separate those two when that abuse occurred towards the Mother, but I think [X] was about three […] when they separated. Children up to [that age] can be affected by what’s going on with violence in the household, but there was no indication that [X] has been or has been aware of it. I’m not saying he hasn’t, but there’s no indication of it.
(Transcript 22 August 2024, page 231, lines 18-47, page 232, lines 1-5)
What was clear to the Court was that Mr M was aware of and accepted the Father had engaged in family violence towards the Mother. Mr M was clear that despite his view about family violence having been perpetrated by the Father he maintained his view that supervision was not appropriate or workable and that X should have a relationship with his Father that would see him spend significant and substantial unsupervised time with him.
The Father agreed to undertake counselling to ensure issues of family violence are mitigated and prevented.
The solicitor for the Mother was scathing of the Father’s agreement and willingness to attend upon counselling to address issues of family violence where he submitted to the Court the following:
He hasn’t done any work on himself. He hasn’t gone to the courses that have been recommended up to two years ago. Of course, he has a Damascus Road conversion in the witness box about the need to attend some form of counselling or anger management, but it’s all very unconvincing, in my respectful submission.
(Transcript 22 August 2024, page 271, lines 10-14)
Despite the submissions by the solicitor for the Mother, the Court accepts that the Father was genuine in his desire to change the nature and quality of his relationship with the Mother so as to ensure she is safe and not exposed to family violence, abuse or other harm.
The following exchange between the Court, ICL and the Father demonstrates this point:
ICL:Okay. Do you think moving forward – because hopefully we can put all of this – you two can put all of this behind you. Do you think moving forward, that you and the Mother are going to be able to be civil for [X]’s sake?
Father: Yes.
ICL:All right. Now, I’m just going to have a look at the family report. Now, you recall going to meet [Mr M] on 8 November for the purposes of preparing a family report. And you didn’t – so I think it’s paragraph (33), you said to Mr – you said to [Mr M] – sorry, yes. Paragraph (33): [Mr Geiger] stated that he and [Ms Geiger] had the usual arguments and disagreements that were nothing out of the ordinary with most couples. Would you – is that correct? .....So some of those AVLs that we played yesterday, would you say that that is a fairly normal argument, the way that a normal
His Honour: Not normal for you. But normal like is this – not normal – they weren’t normal with you and the Mother. But are they ? Just someone looking at – they – yes. Yes. For someone – for me looking at it, do I look at it and think that it’s particularly normal?
Father: No, no.
His Honour: Yes.
ICL:Okay. So you can reflect on that – so you can reflect on that now and see that really those arguments were not normal at all. They were really heightened, really aggressive?
Father: Yes. ..... reflect elements, yes.
ICL:Good. And what have you learned in that two years? Because you did say that yesterday as well, that you’ve had two years to reflect. So can you tell the court what you’ve reflected on in those two years? What have you ?
Father:Just everything; the breakdown in the marriage. Looking back at it, it could have been handled a lot differently.
ICL: Yes?
Father:And maybe, you know, like just – just a figure of speech, not to touch the kettle when it’s hot.
ICL:Yes. Have you reflected on what impact all of these sparks might have had on [X]?
Father: Would have been all negative.
ILC:Yes. It would have been because a lot of those AVLs we saw yesterday, he was actually present. And what I did observe in those AVLs is that he didn’t seem to be crying. He didn’t seem to be – didn’t appear – I didn’t hear any crying when these arguments were erupting. And it could be that he was – maybe do you accept that he was ?
Father: Used to it.
ICL: used to that level of shouting and yelling and ?
Father: Yes.
ICL:it was uncommon for him? So moving forward, what -well, you can see that the Mother’s evidence is – her case is that she’s really worried. And she’s really concerned about family violence. And that [X] is not necessarily going to be safe with you. She’s very worried about that. So what are you prepared to do to reassure her that [X] will be safe with you?
Father:You know, I – I would never do anything to hurt him or put him in a position that he would be unsafe. You know, I’m willing to complete the courses that, you know, you guys have set out.
ICL:Are you willing to complete the men’s behaviour change program? I looked – I looked
His Honour: Do you know what it is?
Father:No. I looked – looked a little bit into it yesterday. ..... feels like I benefit more from the psychologist one, like one-on-one therapy
ICL: Because the men’s behavioural program is a group program?
Father: Yes.
ICL:And it’s long. And it’s a group program. And you would need to show that – you would need to accept that you have perpetrated some family violence to be able to
His Honour: Well, I haven’t seen the terms of reference for your new minute of order with the one-on-one psychological intervention with the Father. If that touched on one issue, it included as issues family violence
ICL: Okay.
His Honour: and anger management and family violence, that would be helpful. So in other words, if your psychologist sat down and spoke to you about anger management and spoke to you about family violence and stuff in those areas, that’s something you would do?
Father: 100 per cent, yes.
(Transcript 22 August 2024, page 214, lines 1-47, page 215, lines 1-35)
The Court accepted the Father was genuine in his desire to engage with a psychologist to change the nature of his relationship with the Mother and to address issues of family violence and anger management. In respect of the submissions made by the solicitor for the Mother scathing of the Father’s agreement and willingness to attend upon a counselling to address issues of family violence likening it to a “Damascus Road conversion” the Court makes the following comments:
·Exploring the Mother’s solicitor’s biblical analogy the Court notes that Saul’s conversion to Paul and in turn his conversion to Christ on the road to Damascus was no small journey and left Paul blind and unable to eat for a period of 3 days. (Acts 9 verses 3-7, Bible - New King James Version). The Court however accepts the point the solicitor for the Mother was trying to make was that the Father changed his position on counselling in an instant.
·In these proceedings the Father’s journey to the final hearing has been one where he had time to reflect on his behaviour and the importance of the relationship with his son not just for a period of hours, days, weeks or even months but for a period of two years where the Father’s time was supervised and at one point the Father did not see his son for 8 months.
·The imposition of supervision by the Court on a parent’s time with a child is never meant to be punitive. It is made by the Court where the Court considers supervision is in the best interest of the child to mitigate risk of harm to a child. The Court does not and cannot ignore the fact that there is a collateral effect of ordering professional supervision. One where a parent is in actual fact punished for their behaviour where the way in which the time they were spending with their child is removed. One where the supervised parent experiences a controlled, regulated and minimalist relationship with their child, where notes of visitations are recorded in often the most excruciating minutest of detail. It provides a window into the future for the supervised parent of how things could look long term if something in their behaviour towards the other parent or the child does not change for the better. In many cases the imposition of professional supervision causes the supervised parent (borrowing another religious analogy) to pay their penance.
·There can be no greater motivation to improve oneself when confronted with the option of either doing a course and or undertaking counselling or instead have limited time or no time with one’s child.
The Court was assisted by Mr M’s view around whether the Father should be required to undertake a men’s behavioural change course as a condition of spending time with the child. The following exchange in cross examination of Mr M by the solicitor for the Father well demonstrates this point:
Solicitor for Father: Thank you. And your recommendation, on page 13 of your report, is unequivocal in its endorsement that unsupervised visits recommence, whether or not [Mr Geiger] engages with the men’s behavioural change program?
[Mr M]: Yes.
Solicitor for Father: And how have you come to that conclusion?
[Mr M]:Well, as I said before, men’s behaviour change programs depend on people’s motivation to want to be there, in the first place. And there are mixed results about the success of them. But I didn’t – I thought his relationship with [X] had been delayed for too long, and for it to be a precondition for him to do that course – with mixed results, and his commitment to want to do it – didn’t really – didn’t really help [X].
(Transcript 22 August 2024, page 257, lines 20-29)
The Court accepts that the Father has had time to reflect and that he is genuine in his desire to undertake counselling through a psychologist motivated by his desire to normalise his relationship with his son.
The Court was assisted by Mr M’s opinion in relation to any risk posed by the Father to the child and the desirability of the Father undertaking counselling through a psychologist as set out in the Mr M’s cross examination by the solicitor for the Father:
Solicitor for Father: And she also told you that she wanted [X] to have a relationship with the Father, but ?
[Mr M]:Yes. she couched that in terms that she was concerned about his safety.
Solicitor for Father: You’ve quite clearly said to this court today that you don’t believe there is any issue with [X]’s safety whilst in the presence of his Father?
[Mr M]:Well, I mean, of course, I haven’t got a crystal ball, but I mean based on my experience, expertise, I don’t think safety is an issue for [X] with his Father.
Solicitor for Father: And in light of what has been recommended as opposed to the men’s behavioural program, I think you’ve said earlier that personal visits upon a psychologist would be better in your view; could you elaborate ?
[Mr M]:Yes. Yes, that is on that? It’s more personal, more flexible, group – some people don’t function well in groups and the courses, you know, take place in chunks of time. I know a lot of them you can do online, but you still got to wait until you can get in. Yes, they’re, on average, 20 weeks and all people note at the end is the person attended. There’s no feedback on them, you know, growth and change from the course. And, you know, I know a psychologist, you know, having counselling sessions is confidential, they’re not going to reveal what was discussed in each session, but it’s much more on point, you know, I guess about what needs to be addressed, providing that the parties being counselled is up front about why they’re there and what they want to work on.
(Transcript 22 August 2024, page 258, lines 25-47)
The orders that are proposed by the ICL and the orders that will be made by the Court numbered 5-11 that require the Father to undertake certain courses and counselling through a psychologist tied with an increase in the Father’s time will in the view of the Court have the effect of giving the Father the psychological tools to positively change the way in which he deals with and negotiates with and communicates with the Mother such that the Father’s behaviour towards the Mother will be improved. The Court finds these orders will provide for an arrangement which promotes the safety of the child and the safety of the Mother (who will pursuant to the orders have the primary care of the child), including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm.
The Court is not satisfied that it is necessary or desirable to make the orders the Mother sought to the effect that the Father be restrained from bringing the child into contact with the paternal grandfather or the paternal aunts. The Court is of the view and finds that the Father will at all times act protectively of his son and ensure he is safe if he is in the presence of the paternal grandfather or the paternal aunts.
The Court further finds that the Court making the following orders will promote the safety of the child and the Mother including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm:
·An order that neither party denigrate one another or allow any other person to do so in the presence of the child.
·An order that the parties communicate via the My Family Wizard Application.
·An order that the parties be prohibited from physically disciplining the child.
·An order prohibiting the parties interrogating the child in relation to events and/or conversations that have occurred in the home of the other parent.
·An order that the Father return the child’s bag and belongings to the Mother at the end of the time the child spends with the Father.
Section 60CC(2)(b)
The Court accepts that the child’s views are that he adores the Father and wants to spend time with him.
To this end, the Court considers the importance that X be able to spend time with his Father on special occasions that include his birthday, the Father’s birthday, Father’s day, Christmas and the like. It is important because the Court does not want X to think even for a moment that his Father doesn’t love him or that X is not important enough for his Father to not want to spend time with him on these special occasions. The Court does not want X being a child in his class at school who makes craft gifts for his Father for Father’s day that he never gets to give to him. There is a benefit to X in the Court ensuring that these special occasions are mandated without need for the parties to reach agreement. Similarly, it is important that X be able to spend school holidays with the Father, particularly to ensure that X does not feel that he is not important enough for the Father to do things with him such as going away camping or the like. Again, given the nature of the parties poor relationship and their inability to communicate and reach an agreement it is desirable that the Court should mandate school holiday time where the Court has no faith the parties would reach agreement without orders in place.
Section 60CC(2)(c)
The child has no discernible developmental, psychological, emotional or cultural needs more than any other ordinary child of his age.
Section 60CC(2)(d)
The capacity of a parent to ensure the safety of a child, is further a consideration under subsection 60CC(2)(d) of the Act, requiring a consideration of the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
The Mother criticised the Father for having taken X to a food and bar venue known as J Venue at night. The Court heard cross-examination on the topic and accepts that the venue had a children’s menu and was not an undesirable place. Cross-examination of the Father on the venue centred on whether the Father had taken the child to the venue after nightfall. The Court was not convinced that the Father had taken X to the venue at night and to be frank even if he had, it did not demonstrate a lack of capacity of the Father to ensure the safety of the child. The Father was also cross-examined on the Mother’s concerns that he had driven with X and that the Father did not properly restrain the child in his vehicle. The Father alleges there was no risk to X and that the car was stationery at the time the child was not properly restrained. The Court is not prepared to find that the Father will fail to ensure the child is safe when travelling in a vehicle with him.
The Father has agreed to an order that will provide for the Mother to have sole parental responsibility for X subject to the Mother providing the Father certain information and notifications.
The Father is a functional capable adult who has the capacity to provide for X’s developmental, psychological, emotional needs while noting the issue of culture was not a feature in the proceeding beyond the Father having been criticised for making derogatory comments about the Mother’s Country N heritage that are denied by the Father.
The Court finds that the Mother has the capacity to provide for X’s developmental, psychological, emotional needs while again noting the issue of culture was not a feature in the proceeding.
Section 60CC(2)(e)
There is no doubt, and it is not contested that there is a real benefit in the child having a meaningful relationship with both parents.
The Child Court Expert, Mr M gave significant evidence during cross examination by the ICL in respect of the strength of the child’s relationship with the Father as follows:
ICL:And you obviously observed a very strong bond between the Father and [X]?
[Mr M]:Yes, and probably one of the strongest bonds I’ve seen for a boy who hasn’t seen his Father for eight months. It overwhelmed me, your Honour, if I could say that. I mean, that’s probably why I, sort of, went straight to alternate weekend again. I thought, well, [X] has been denied this relationship with his Father, partly by his Father’s own refusal to accept alternate weekend during the daytime, which I thought he should have just maximised the time he could spend with [X]. Instead, he sort of held his ground that no, he wanted overnight, and [X] was denied a relationship with him for eight months
ICL:And that would have had quite an effect on [X], wouldn’t it, that length of time not having any time with his Father?
[Mr M]:Yes, yes, and I would have expected him to be a little hesitant seeing his Father again, and you know, just sort of work his way in. But he rushed to him straight away, and it’s like they picked up a conversation as though they had just seen each other the week before. I was just really impressed by that bond.
(Transcript 22 August 2024, page 232 lines 7-22)
Section 60CC(2)(f)
There is nothing else that is relevant to the particular circumstances of the child.
Parental Responsibility
The parties have agreed to final orders for the Mother to have sole decision-making responsibility.
PROPERTY DETERMINATION
It should be noted at the outset of the property decision that the evidence in these proceedings with respect to property, including the cross-examination, was very limited and the greater time during the hearing concentrated on the parenting aspect of the matter.
Balance sheet
The Court notes the contents of the Joint Balance Sheet jointly tendered by the parties that forms Exhibit ‘A’ in the proceedings that is set out below. The parties agree upon everything except items numbered 8 and 9.
The Court was assisted by the documents tendered in the proceedings being the Father/Husband’s integrated ATO client accounts forming Exhibit “H” and the Husband’s Commonwealth Bank account statement for account number ending xxxx62 forming Exhibit “G”.
Exhibit “H” shows the running balance owed to the ATO by the Father/Husband in the sums of $32,465.60 and $15,826.74 as at 1 August 2024. Combined, the sum of $48,292.34 is owed to the ATO. The Court accepts that the Father/Husband has a tax liability to the ATO. The Court does not allow the amount proffered for by the Father/Husband in the balance sheet but will allow $48,292.34 for item 9 in the Joint Balance Sheet.
Exhibit “G” are the bank account statements in respect of account number ending XXX62. The Court heard the Father/Husband cross-examined in respect of the transactions in the bank statements including the payment of monies to a vehicle retailer/repairer, to a vehicle dealership for the purchase and then sale of Motor Vehicle 1 to a friend and in respect of a withdrawal of monies which the Father/Husband said that he had spent. The Court rejects the Father/Husband’s position that there should be no add back of notional funds to him and accepts the ‘Add Back’ contended for by the Mother/Wife in the sum of $50,000 as notional property of the Father/Husband at item 8 in the Joint Balance sheet set out below.
The Court notes item numbered 10 is that of an accumulated interest in Super Fund 1 that is referred to as being a ‘Joint’ asset of the parties. The Court notes that the fund is not that of a SMSF and as such it is to the Court’s knowledge unlikely to be a joint fund.
The Court notes the Financial Statements filed by the parties. The Father/Husband discloses his Super Fund 1 interest. The Mother/Wife discloses her superannuation interest of $86,362 and does not suggest any ownership in the Super Fund 1. The Joint Balance Sheet forming Exhibit “A” replicated below is clearly wrong and the Court finds that item number 10 is the Husband’s interest in Super Fund 1.
Ownership
Description
Applicants value
Respondents value
ASSETS
1
Ms Geiger
Commonwealth Bank Account …07
$1,327
$1,327
2
Ms Geiger
National Australia Bank Account …41
$176
$176
3
Ms Geiger
Motor Vehicle 2
$12,000
$12,000
4
Joint
Proceeds of sale former matrimonial home Browns Family Lawyers trust account
$24,452
$24,452
5
Mr Geiger
E Business bank account National Australia Bank
$9,500
$9,500
6
Mr Geiger
Motor Vehicle 3
$20,000
$20,000
7
Mr Geiger
E Business
$5,000
$5,000
Total
$72,455
$72,455
ADDBACKS
8
Mr Geiger
Money unaccounted for from E Business January 2023
$50,000
Total
$50,000
$0
LIABILITIES
9
Mr Geiger
H tax liability
$0
$55,000
Total
$0
$55,000
SUPERANNUATION
Member
Name of Fund
Type of Interest
Applicants value
Respondents value
10
Joint
Super Fund 1
Accumulation interest
$18,025
$18,025
11
Ms Geiger
Super Fund 2
Accumulation interest
$86,362
$86,362
Total
$104,387
$104,387
Total Net
$226,842
$121,842
FINANCIAL RESOURCES
Ownership
Description
Applicants value
Respondents value
Total
$0
$0
SHOULD THE COURT MAKE ORDERS
The Court having identified, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties, now considers whether it should make an order pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’). Section 79(2) of the Act provides:
(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.
In Stanford v Stanford (2012) 247 CLR 108 the High Court set out how the intersection of sections 79(2) and 79(4) operate. At [35] the Court held:
35. It will be recalled that s 79(2) provides that “[t]he 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”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
Helpfully, and particularly relevant to this case, the High Court stated at [42]:
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the Husband and Wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the Husband and Wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In this case the Court considers whether it is satisfied that it is just and equitable to make an order adjusting the parties’ property by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property identified by the Court.
The Court finds that it is just and equitable to make a property adjustment between the parties where the express and implicit assumptions that underpinned the parties’ existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.
The Court is required to consider the legislative pathway set out at section 79(4) of the Act. Section 79(4) provides that 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.
CONTRIBUTIONS
Section 79(4)(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. Section 79(4)(b) - Contributions (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.
Interestingly both parties made submissions in their respective Outlines of Case document that with small exception are strikingly similar on the topic of contributions.
In the Mother/Wife’s Outline of Case document filed on 15 August 2024 it was submitted at page 14 that:
At the commencement of the relationship neither party had significant assets. Each of them had a motor vehicle of approximately equivalent value, subject to a loan, and some superannuation. The amount of superannuation of the Husband at the commencement of cohabitation is not known. Otherwise, each party made financial and non-financial contributions. The overall contributions of the Wife would be assessed is greater than those of the Husband because her homemaker and parent contribution was made in circumstances where she was a victim of family violence.
While in the Father/Husband’s Outline of Case Document filed on 17 August 2024 it was submitted at page 11 that:
At the commencement of the relationship neither party had significant assets. Each of them had a motor vehicle of approximately equivalent value, subject to a loan, and some superannuation. That is agreed. The amount of superannuation of the Husband at the commencement of cohabitation is not known. Otherwise, each party made financial and non-financial contributions. The overall contributions of the parties would be equal or close to it. There should be no Addbacks at all. The contributions would be assessed 50%/50% equal distribution.
The Court accepts that the parties’ contributions made pursuant to section 79(a) and (b) should be treated equally. As will be discussed below, the Court is not of that view when considering the parties’ contributions pursuant to section 79(4)(c).
Section 79(4)(c) - 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.
It was submitted on behalf of the Wife in her said Case Summary Document that:
The overall contributions of the Wife would be assessed is greater than those of the Husband because her homemaker and parent contribution was made in circumstances where she was a victim of family violence. The evidence of family violence is otherwise referred to in this submission, and is contained in the Wife’s parenting affidavit filed 9 August 2024. The effect of the family violence upon the Wife’s contribution as homemaker and is set out in paragraphs 67-69 of her affidavit filed 13 August 2024. Additionally, the Wife has made the sole contribution as homemaker and parent in caring for [X] since the time of separation. This is a significant contribution where the parties separated over 2 years and 2 months prior to the hearing date. The contributions would be assessed 65%/35% in favour of the Wife (at least).
Ordinarily the Court would have made an adjustment in the Mother/Wife’s favour in relation to her contributions to the welfare of the family and as homemaker and parent. That adjustment would have, in the view of the Court, been some 7%. The Court has found the Father/Husband perpetrated family violence on the Mother. The Court viewed the various video recordings tendered in the proceedings. The Court accepts that the Father/Husband’s conduct during the course of the parties’ relationship made the Mother/Wife’s contributions to the welfare of the family and as homemaker and parent more difficult or as referred to in the decision in Kennon v Kennon [1997] FamCA 27, ‘more arduous’. The Court takes into account that the Mother/Wife’s contributions were made more arduous and gives them greater weight and in doing so assesses those contributions of the Mother/Wife in terms of an adjustment of 15% instead of 7% for her contributions to the welfare of the family and as homemaker and parent.
RELEVANT SECTION 75(2) FACTORS
The Court considers those matters referred to in s 75(2) of the Act so far as they are relevant.
The age and state of health of each of the parties: s 75(2)(a)
The Husband is 33 and the Wife is 32 years old. There was no admissible evidence that would allow the Court to find other than the parties being in reasonable health.
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: s 75(2)(b)
The Husband set out in his Financial Statement filed 9 August 2024 that he receives the sum of approximately $1,800 per week from E Business. While the Wife sets out in her Financial Statement filed 30 May 2024 that she receives the sum of approximately $1,500 per week from her employment with F Company. The disparity of income between the parties is not significant.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years: s 75(2)(c)
The Mother/Wife has had and will continue to have pursuant to the orders made in accordance with this decision, the primary care of the parties’ son. This is a consideration of significance and a factor that will allow the Court to make an adjustment in favour of the Mother/Wife.
Commitments of each of the parties that are necessary to enable the party to support; himself or herself; and a child or another person that the party has a duty to maintain: s 75(2)(d)
The Court acknowledges the parties’ commitments to support themselves and their son.
The responsibilities of either party to support any other person: s 75(2)(e)
The Court is not aware of either party having a responsibility to support any other person.
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: s 75(2)(f)
The Court is not aware of either party being eligible for a payment referred to pursuant to this subsection.
A standard of living that in all the circumstances is reasonable: s 75(2)(g)
Despite the pool of assets being limited, the parties’ income will allow them a standard of living that in all the circumstances is reasonable.
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: s 75(2)(h)
This factor is not relevant to these proceedings.
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: s 75(2)(ha)
The making of orders in this matter will not affect the ability of a creditor of a party to recover a debt owed by one of the parties.
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: s 75(2)(j)
This factor is not relevant to these proceedings.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration: s 75(2)(k)
The Court finds based on the evidence, that the duration of the marriage has not adversely affected the earning capacity of either party.
The need to protect a party who wishes to continue that party’s role as a parent: s 75(2)(l)
The Court notes the Wife’s desire to continue her role as primary carer/ parent for the parties’ son X but finds that this factor is not relevant to these proceedings.
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation: s 75(2)(m)
The Court is not aware of either party cohabiting with another person.
The terms of any order made or proposed to be made under s 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party; the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii): s 75(2)(n) and s 75(2)(naa)
The Court takes into account the orders proposed to be made by both parties under section 79 of the Act in relation to the property of the parties.
The Court notes that neither party is bankrupt.
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provide, is to provide, or might be liable to provide in the future, for a child of the marriage: s 75(2)(na) and s 79(4)(g)
The Court notes the modest child support assessment to be paid by the Husband for X under the Child Support (Assessment) Act 1989 (Cth). The Court also notes that the Husband has been well less than diligent in his payment of Child Support to the Wife in respect of X, noting specifically in cross-examination that the Husband conceded that the delay in making payments and the reason for any arrears is merely that he “forgets” to make payments. It is an agreed fact in these proceedings that the Husband tends to make lump sum payments of child support as opposed to periodic payments. In light of this, the Court notes the Husband’s intention to set up automatic child support payments moving forward.
Any other matters: s 75(2)(o)
There are no other matters of relevance.
The terms of any binding financial agreement binding on the parties to the marriage and the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage: s 75(2)(p) and s 75(2)(q)
The Court is not aware of there being any Financial Agreement that is binding on the parties nor of there being any Part VIIIAB Financial Agreement that is binding on a party to the marriage.
Any other order made under this Act affecting a party to the marriage or a child of the marriage: s 79(4)(f)
Other than the final parenting orders made on this date for X, the Court is not aware of any other Order made under the Act affecting the parties or their son.
The Court considers the provision of s 79(4)(g) of the Act and notes the Husband remains liable to pay child support to the Wife.
JUST AND EQUITABLE
When considering the parties’ contributions being financial contributions, non-financial contributions and contributions as homemaker and parent, the Court finds that it is just and equitable to make an adjustment in the Wife’s favour of 15%. When considering the matters set out at section 75(2) of the Act, the Court finds that it is just and equitable to make an adjustment in the Wife’s favour of 5%. The Court thus finds that when considering the parties’ contributions and matters at section 75(2) of the Act there should be an overall division of superannuation and non-superannuation assets between the parties of 30% to the Husband and 70% to the Wife.
An adjustment of assets based on the above division where the proceeds of sale of the former matrimonial home is paid to the Mother/Wife would see the parties receiving the following:
Wife:
Item 1 CBA $1327
Item 2 NAB $176
Item 3 Motor Vehicle 2 $12,000
Item 4 Proceeds of Sale FMH $24,452
Total: $37,955
Item 11 Superannuation $86,362
Total: $124,317
Husband:
Item 5 NAB (E Business) $9,500
Item 6 Motor Vehicle 3 $20,000
Item 7 E Business $5,000
Item 8 Addback $50,000
Less:
Item 9 ATO Liability $48,292.34
Total: $36,207.66
Item 10 Superannuation $18,025
Total: $54,232.66
Given the relatively small size of the pool of assets available for division, the fact that all of the cash proceeds of sale of the former matrimonial home are to be paid to the Wife and that the assets that the Father/Husband will receive being items numbered 6 and 7 are assets from which he derives his income, in a personal exertion business as a tradesperson, the Court notes and finds that it is just and equitable that the Wife receives a disproportionate share of the assets that make up the 70% of assets she will receive in super.
Final parenting and property orders will be made in accordance with the findings and reasons set out above and are contained at the beginning of this judgment.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers. Associate:
Dated: 20 January 2025
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