Gerard & Santino
[2024] FedCFamC1F 386
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gerard & Santino [2024] FedCFamC1F 386
File number(s): MLC 53 of 2021 Judgment of: JOHNS J Date of judgment: 5 June 2024 Catchwords: FAMILY LAW – CHILDREN – best interests – international relocation – where the mother seeks to relocate to the United Kingdom with the child – where the father opposes the relocation – where the mother is the primary carer for the child – where the child spends time with the father – where the mother deposes to experiencing family violence perpetrated by the father – where the mother lacks practical, emotional and financial supports in Australia – where the maternal family reside in the United Kingdom – where the mother has been unable to obtain secure housing in Australia – where the father submits the child cannot have a meaningful relationship with him should relocation be permitted – where the expert suggests that a meaningful relationship can be maintained with regular communication and periods of Facetime throughout the year – orders made permitting the relocation
FAMILY LAW – PROPERTY – de facto relationship – property division – where it is alleged the primary asset is a residential property held on trust for the respondent by his parents – where the applicant seeks a declaration that the respondent’s parents hold a share of the property on constructive or resulting trust for the respondent – where the respondent submits he has no interest in the property – where the respondent made periodic repayments to his parents – declaration made – s 90SM(3) adjustment
Legislation: Evidence Act 1995 (Cth) s 140(2)
Family Law Act 1975 (Cth) ss 4AA, 4AB, 60B(1) & (2), 60CA, 60CC(2) & (3), 61DA, 64B, 65C, 65DAA, 90SB, 90SE, 90SG, 90SM, 90SF
Family Law Amendment Act 2023 (Cth) s 2
Cases cited: AMS v AIF (1999) 199 CLR 160;
Baumgartner v Baumgartner (1987) 164 CLR 137;
Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545;
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
Donnell & Dovey (2010) FLC 93-428;
Hunter & Borman and Anor [2020] FamCAFC 250
Jones v Dunkel [1959] HCA 8;
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518;
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405;
Mulvany & Lane (2009) FLC 93-404;
Muschinski v Dodds (1985) 160 CLR 583;
Stanford v Stanford (2012) 247 CLR 108;
U v U (2002) 211 CLR 238;
Watson & Ling [2013] FamCA 57; (2013) FLC 93-527;
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 400 Date of last submission/s: 2 November 2023 Date of hearing: 30 October – 2 November 2023 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: RRR Lawyers Counsel for the Respondent: Mr McIntyre Solicitor for the Respondent: Kenna Teasdale ORDERS
MLC 53 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SANTINO
Applicant
AND: MR GERARD
Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for making all decisions regarding the long-term care, welfare and development of the child X born 2019.
3.That prior to the mother making any decision regarding the child pursuant to Order 2 hereof, save in the event of a medical emergency:-
(a)The mother provide the father with no less than 14 days’ notice in writing of any decision she proposes to make;
(b)The father provide a written response thereto within seven days of receipt of the mother’s written proposal;
(c)The mother consider the response provided by the father pursuant to sub‑paragraph (b) hereof, if any, prior to making a decision; and
(d)The mother notify the father in writing of any decision made by her within 72 hours of such decision.
4.That the child live with the mother.
5.That the mother be permitted to relocate the residence of the child to the United Kingdom as and from 31 July 2024.
6.That not less than one month prior to the date upon which the mother intends to relocate the residence of the child to the United Kingdom, the mother inform the father in writing of the anticipated date of departure and details of the flights that the mother has booked for the child, together with contact details for the child in the United Kingdom.
7.That until such time as the child’s residence is relocated to the United Kingdom the child spend time and communicate with the father as follows:-
(a)each alternate weekend from 9:00 am Friday until 5:00 pm Sunday;
(b)each Tuesday from the conclusion of kindergarten or 3:30 pm, until the commencement of kindergarten Wednesday or 10:00 am;
(c)a 10-minute call by Facetime each Thursday between 6:00 pm and 6:30 pm; and
(d)as may otherwise be agreed between the parties from time to time.
8.That upon the child relocating to the United Kingdom the child spend time and communicate with the father as follows:-
(a)In Australia:-
(i)In 2024, for one period of up to 14 days during which time the child shall spend the first three days with the father from 10.00 am to 3.00 pm each day and thereafter spend two blocks of four consecutive nights and five days with the father from 9:00 am on the first day until 6:00 pm on the last day of each four-night block, the costs of the child’s travel to be at the mother’s expense;
(ii)As and from 2025 until such time as the child is permitted to travel as an unaccompanied minor, for two periods of 16 days in each calendar year as follows:-
A.such periods to be at times agreed between the parties and failing agreement the first such period to occur in the first half of the calendar year and the second such period to occur in the second half of the calendar year;
B.the time to occur during the child’s scheduled school holiday periods;
C.during each period of travel the child shall spend time with the father in blocks of seven consecutive nights and be returned to the mother’s care for one night before commencing the second period of seven consecutive nights, such time to commence at 9:00 am on the first day and conclude at 6:00 pm on the last day of each seven-night block;
(iii)As and from the time when the child is permitted to travel as an unaccompanied minor, for two periods of 14 consecutive nights as follows:-
A.such periods to be at times agreed between the parties and failing agreement the first such period of travel to occur in the first half of the calendar year and the second such period of travel to occur in the second half of the calendar year;
B.the time to occur during the child’s scheduled school holiday periods;
C.during each period of travel the child shall spend time with the father in blocks of fourteen consecutive nights, such time to commence at 9:00 am on the first day and conclude at 6:00 pm on the last day of each period;
(b)In the United Kingdom, upon the father providing the mother with not less than 28 days notice in writing of his intended travel, as follows:-
(i)In the event of such travel within the first three months following the child’s relocation to the United Kingdom, for two periods of three consecutive nights in a 14 day period.
(ii)As and from 2025, on one occasion each calendar year for a period of up to 16 days with the child to spend such time with the father in two blocks of seven consecutive nights and be returned to the mother’s care for one night before commencing the second period of seven consecutive nights until the child attains the age of 8 years, and thereafter for a period of 14 consecutive nights, such time to commence at 9:00 am on the first day and conclude at 6:00 pm on the last day of each period, conditional upon:-
A.The periods to occur during the child's kindergarten/school holiday periods;
B.The father providing the mother notice in writing not less than 4 weeks prior to the travel period of the dates of the proposed travel and details of the child’s accommodation; and
C.The father pay all costs associated with travelling to and from the United Kingdom and for his and the child's accommodation during said periods.
(c)By telephone, Skype or Facetime:-
(i)at times agreed between the parties and failing agreement each Tuesday, Thursday and Sunday between 7:00 pm and 7:30 pm in the time zone in which the child is living; and
(ii)at such other time as the child initiates a request for such communication;
(d)As may otherwise be agreed between the parties from time to time.
9.For the purposes of X’s time with the father pursuant to order 8 (a)(ii) and (iii) hereof:-
(i)The father shall be responsible for the cost of return airline flights between Australia and the United Kingdom for the child for the second period of travel in each calendar year and the mother be responsible for the cost of return airline flights between Australia and the United Kingdom for first period of travel in each calendar year, and the party who is responsible for the cost shall make arrangements for booking the airline tickets and advise the other party no less than 4 weeks prior to the proposed travel dates; and
(ii)The said periods to occur during the child's kindergarten/school holiday periods and at least one of the periods occur during the Australian summer holiday period.
10.That during his periods of time with X the father facilitate telephone or Facetime communication between the mother and the child on one occasion each week at times to be agreed and failing agreement each Wednesday between 6.00pm and 6.30pm.
11.That each parent is to notify the other parent as soon as possible if the child suffers any serious illness or injury or hospital admission whilst in their care and each parent is at liberty to contact any doctor, hospital or other medical professional treating the child to obtain information.
12.That within 14 days of relocating to the United Kingdom, the mother will authorise and direct the following to provide information, including school reports and photographs to the father upon his request:-
(a)The child’s kindergarten (and later, school), her educators and teachers; and
(b)The child’s doctor, dentist, therapist or other medical or allied health professionals including information about her treatment, diagnosis and prognosis from time to time.
13.Without admission of necessity for same, the mother and the father each be restrained by injunction from:-
(a)Using the child to pass messages between the parents;
(b)Exposing the child to adult issues including the issue of child support;
(c)Denigrating, abusing, belittling, bullying or otherwise speaking badly about the other parent or a member of that parent’s immediate household, or allowing the child to remain in the presence of hearing of anyone doing so;
(d)Denigrating or speaking badly about the other parent or any member of that parent’s household on social media or from allowing the child to remain in the presence or hearing of anyone doing so; and
(e)Discussing these family law proceedings in the presence or hearing of the child or from allowing the child to remain in the presence or hearing of anyone doing so.
14.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
15.Pursuant to s 90SL of the Family Law Act 1975 (Cth) it is declared that the father holds (for the purposes of these proceedings only) a 50 per centum equitable interest in the property situate at and known as B Street, Town C, registered in the name of Mr D and Ms E.
16.That within 60 days the father pay or cause to be paid to the mother the sum of $36,000.
17.That save for as otherwise may be provided by these orders and except for the purpose of enforcing the payment of any money due under these or any subsequent orders:-
(a)Each of the father and the mother shall be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Monies standing to the credit of the father and the mother in any bank accounts shall be the property of the party in whose name such bank account is held;
(c)Each of the mother and the father foregoes any claims they may have to any superannuation benefits belonging to or owned by the other;
(d)Insurance policies shall remain the property of the owner named therein;
(e)Any joint tenancy of the father and the mother and any real or personal estate is hereby expressly severed;
(f)Each of the mother and the father shall be solely liable for and indemnify the other against any debts or liabilities in their name or encumbering any item of property to which that party is entitled pursuant to these orders.
18.That all extant applications be otherwise dismissed.
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 Gerard & Santino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant mother, Ms Santino, was born in the United Kingdom in 1993 and is aged 30 years. She moved to Australia in 2016 and obtained permanent residency in 2021; she is not an Australian citizen. The mother works as a craftsperson, albeit her capacity to work is limited due to her parenting responsibilities.
The respondent father, Mr Gerard, was born in Australia and is aged 43 years. He currently works as a craftsperson and manages several properties on short-term accommodation websites.
The parties commenced cohabitation in 2018 (when the mother was aged 24 years and the father was aged 37 years) and the following year, the only child of their relationship, X, who is now aged 4 years, was born. By April 2020, when X was an infant, the parties’ relationship had broken down; they physically separated approximately two months later in May/June 2020 upon the father vacating the home.
X has lived with the mother since the parties’ separation. The father spends time with X pursuant to Court orders. Following the conclusion of the final hearing, interim orders were made for the father to spend time and communicate with X each alternate weekend from 10:00 am Friday to 5:00 pm Sunday, by Facetime each Thursday between 6:00 pm and 6:30 pm and on special days.[1]
[1] Interim orders dated 2 November 2023.
Since their separation, the parties have been in conflict as to parenting arrangements for X. The mother seeks to return to the United Kingdom with X to live with her family. She contends that she has been subjected to ongoing family violence, including coercive control and financial abuse, at the hands of the father. She further contends that she has little financial and emotional support in Australia and that her family in the United Kingdom can and will provide those supports.
It is the mother’s case that due to the nature of her work as a craftsperson, her income fluctuates and is uncertain. She submits that if permitted to relocate to the United Kingdom, she will have the opportunity to live rent-free with her father and his partner. Additionally, the mother contends that this arrangement will provide her with emotional and practical support to assist with X’s care.
The mother proposes that if she is permitted to relocate with X, the father visit the United Kingdom each year to spend time with X, and further that X travel to Australia to spend time with the father on two occasions each year for gradually increasing periods, culminating in two periods of seven consecutive nights. She also proposes that X communicate with the father electronically on three occasions per week.
If not permitted to relocate to the United Kingdom, the mother proposes that X live with her and spend time with the father each alternate weekend from 5:00 pm Friday until 5:00 pm Sunday, each Tuesday afternoon from 3:30 pm until 6:30 pm and for one half of school term holidays, and week about during the long summer holiday period.
The father opposes the mother’s application for relocation and submits that it is in X’s best interests that she remains in Australia, where she can have frequent and regular time with him. It is the father’s position that were relocation permitted, X will not have the benefit of maintaining a meaningful relationship with him. He further contends that X has built a close bond with the paternal family who reside in Australia and that this connection will be lost in the event the relocation is permitted.
The father proposes that the parties have equal shared parental responsibility and that his time with X gradually increase, so that by the commencement of Year 1 in 2026, X lives with the parties on a week about basis.
In addition to parenting orders, the mother seeks orders in relation to property. She contends that the principal asset of the parties’ is the property at B Street, Town C (“the Town C property”) which was purchased in 2017 by the father’s parents (Mr D and Ms E), brother and sister-in-law. It is now held by the father’s parents, who are not parties to these proceedings. Whilst the parties are in dispute as to whether the Town C property should be included in their asset pool, they agree that it is valued at $450,000 and is unencumbered, albeit that the mother contends that the father owes his parents the sum of $116,000 in relation to its acquisition (Exhibit A4).
The mother’s case is that the father has an equitable interest in the Town C property, and accordingly she seeks a declaration that his parents hold their legal interest on trust for him. It is her case that since its acquisition, the father has been servicing the loan repayments secured by mortgage over the title to the Town C property. In addition, she submits that the father has, with the mother, affected improvements to the property. On this basis, the mother contends that the father has an equitable interest in the property arising from a resulting or constructive trust. Accordingly, she seeks orders that the father pay to her the sum of $43,527 within 30 days, failing which the Town C property be sold and she be paid that sum with interest from the sale proceeds. It was submitted that such payment represents an adjustment to the mother of approximately 12.5 per centum of the parties’ interests.
The father denies the mother’s allegations in relation to the Town C property; he maintains that he holds no interest in it. He also denies the allegation that his parents advanced him money for the purposes of acquiring the Town C property. Notwithstanding that position, the father proposes that he pay to the mother periodic maintenance until 1 June 2025 in the sum of $1,522 per month. Further, the father proposes that he pay to her by way of property settlement the sum of $40,000 in instalments of $10,000 per annum.
For the reasons that follow, I am satisfied that it is in X’s best interests that the mother have sole parental responsibility for making decisions regarding her long-term care, welfare and development, that X live with the mother, and that the mother be permitted to relocate to the United Kingdom with her as and from 31 July 2024.
In relation to property, I have determined that it is just and equitable that orders be made and that the father pay to the mother the sum of $36,000 within 60 days.
These are my reasons for judgment with respect to those matters.
PROCEDURAL HISTORY
The proceedings were commenced by the father in the Federal Circuit Court and Family Court of Australia (Division 2) in January 2021. At that time, he sought orders restraining the mother from removing the child from Australia.
In her response filed in February 2021, the mother sought orders in relation to both parenting and property.
In March 2021, interim orders were made that X live with the mother and that she spend time with the father each Wednesday and each Saturday for specified periods. In addition, orders were made for X to communicate with the father by Facetime each Tuesday and Thursday.
In June 2021, further orders were made by consent increasing the father’s time with X from two hours to four hours each Wednesday.
The father commenced spending overnight time with X in February 2022.
In March 2022, the mother amended her response to seek orders that she be permitted to relocate with X to the United Kingdom.
In June 2022, the mother further amended her response to seek orders that the father’s parents be joined as parties to the proceedings. That application was dismissed by Judge Burt of the Federal Circuit and Family Court of Australia (Division 2) in July 2022. In addition, orders were made that the mother be treated as the applicant and the father as the respondent for the purposes of the final hearing, which was then listed before Her Honour in November 2022.
In November 2022, the proceedings were transferred to this Court and the matter was allocated to my docket. At the case management hearing conducted by me on 30 November 2022 the only issues identified as requiring determination at final hearing by Counsel then appearing for the parties were the extant parenting issues. Accordingly, the matter was originally listed for final hearing on 1 June 2023 and directions were made for the filing of material in relation to that hearing.
The mother filed her Further Amended Response to Application for Final Orders in March 2023 seeking final property orders in addition to parenting orders. Given that the mother was seeking to agitate her property application, orders were made vacating the original trial date and relisting it for final hearing to commence on 30 October 2023. Further trial directions were made at that time.
The final hearing commenced before me on 30 October 2023 and proceeded over four days.
MATERIAL RELIED UPON
The applicant relies upon the following material:-
·Outline of Case document filed 25 October 2023;
·Amended Response to Application for Final Orders filed 2 October 2023;
·Trial affidavit of the applicant filed 2 October 2023;
·Notice of Child Abuse, Family Violence or Risk filed 26 February 2021;
·Financial Statement filed 2 October 2023;
·Affidavit of Ms F filed 17 October 2023;
·Affidavit of Mr G filed 17 October 2023;
·Affidavit of Ms H filed 17 October 2023;
·Affidavit of Ms J filed 27 October 2023;
·Affidavit of Dr K filed 26 October 2022;
·Affidavit of Ms L filed 10 November 2022;
·Family Report of Ms M dated 11 September 2022; and
·Exhibits A1 – A4, being exhibits tendered during the course of proceedings.
The respondent relies upon the following material:-
·Outline of Case document filed 25 October 2023;
·Amended Application for Final Orders filed 5 April 2023;
·Trial affidavit of the respondent filed 26 September 2023;
·Affidavit in Reply of respondent dated 23 October 2023;
·Financial Statement filed 25 September 2023;
·Affidavit of Mr D filed 27 September 2023;
·Affidavit of Ms N filed 23 October 2023; and
·Exhibits R1 – R7, being documents tendered during the course of proceedings.
ORDERS SOUGHT
The mother seeks parenting orders in the terms of her Amended Response to Application for Final Orders filed 2 October 2023 which provides as follows:-
1.The Mother have sole parental responsibility for the child [X] born […] 2019 (“the child”).
2.The child live with the Mother.
3.The Mother be permitted to relocate with the child to the United Kingdom immediately following the making of these orders.
4.The Mother advise the Father prior to exercising sole parental responsibility of the decision she proposes to make, having regard to the Father’s position but with the final decision to be made by her solely.
5.The Mother do all acts and things and sign all documents necessary such that the Father may receive from any kindergarten or school that the child attends, copies for her school reports, notices of parent teacher interviews, photographs, newsletters and any other material ordinarily received by parents.
6.The Mother do all acts and things and sign all documents necessary such that the Father is authorised to contact any of the child’s treating medical health professionals to receive information about her health, treatment, diagnosis and any medication prescribed to her.
7.The child spend time and communicate with the Father as follows:
(a)If the Father chooses to travel to the United Kingdom and provides the Mother with 28 days’ written notice, for up to 2 period of 3 consecutive nights within a 14 day period from 9:00 a.m on the first day to 6:00 p.m. on the last day conditional upon the following:
(i)The Father having suitable accommodation for overnight time and providing to the Mother booking confirmation and details of said accommodation confirming that said accommodation has two bedrooms;
(ii)Said periods to occur during the child’s kindergarten/school holiday periods;
(iii)The Father advising the Mother in writing 28 days prior to the travel period of the details of the child’s accommodation; and
(iv)The Father pay all costs associated with travelling to and from the United Kingdom and for his and the child’s accommodation during said periods.
(b) On two occasions each calendar year in Australia as follows:
(i)For periods occurring in 2023, for up to two periods of 3 consecutive nights and 4 days in a 14 day period from 9:00 a.m. on the first day until 6:00 p.m. on the last day;
(ii)For periods occurring in 2024, for up to 2 periods of 4 consecutive nights and 5 days in a 14 day period from 9am on the first day until 6pm on the last day; and
(iii)From 2025 and thereafter for up to 2 periods of 7 consecutive nights and 8 days from 9:00 a.m. on the first day until 6:00 p.m. on the last day.
(iv)The periods of time pursuant to paragraphs 7(b)(i), 7(b)(ii) and 7(b)(iii) hereof be conditional upon the following:
1. The Father shall be responsible for the cost of return airline flights between Australia and the United Kingdom for the child and the Mother on one occasion each calendar year and the Mother shall be responsible for the cost of return airline flights between Australia and the United Kingdom for one occasion each calendar year and the party who is responsible for the cost shall make arrangements for booking the airline tickets and advise the other party within 7 days of agreement being reached on the travel dates;
2. The Father having suitable accommodation for overnight time and providing to the Mother photographs and details of said accommodation confirming that said accommodation has two bedrooms;
3. The Mother and Father shall agree on the dates for travel not less than 4 weeks prior to the commencement of time.
4. Said periods to occur during the child’s kindergarten/school holiday periods and at least one of the periods occur during the Australian long summer holiday period.
(c)By telephone, Skype or Facetime each Tuesday, Thursday and Sunday between 7:00 p.m. and 7:30 p.m. in the time zone in which the child is living or at any other reasonable time that the child initiates a request for communication;
(d)At further times as agreed to in writing by the parties.
8.During periods of time when the child is in the Father’s care, the Father shall facilitate the child communicating with the Mother by telephone, Skype or Facetime each evening between 7:00 p.m. and 7:30 p.m. in the time zone which the child is living at the time.
9.Each parent is to notify the other parent as soon as possible if the child suffers any serious illness or injury or hospital admission whilst in their care and each parent is at liberty to contact any doctor, hospital or other medical professional treating the child to obtain information.
10.Within 14 days of relocating to the United Kingdom, the Mother will authorise and direct the following to provide information, including school reports and photographs to the Father upon his request:
(a)The child’s kindergarten (and later, school), her educators and teachers; and
(b)The child’s doctor, dentist, therapist or other medical or allied professionals including information about her treatment, diagnosis and prognosis from time to time.
11.The Father be restrained by injunction from denigrating, belittling or demeaning the Mother or any member of her family, within hearing of the child.
In the event the Mother is not permitted to relocate with the child to the United Kingdom the following shall apply:
12.The child [X] born […] 2019 spend time and communicate with the Father as follows:
(a)Each alternate weekend from 5pm Friday until 5pm Sunday and upon [X] commencing primary school in 2025, said periods commence at the conclusion of school or 3:30pm if a non-school day;
(b)Each Tuesday from 3:30pm until 6:30pm provided that said period occur in thevicinity (sic) of the Mother’s home;
(c)Upon [X] commencing primary school in 2025, if the child is not overseas with the mother, then for one half of each of the school term holidays by agreement and failing agreement the first half from the conclusion of school on the last day of school term until 5pm on the day being the mid point of the holiday period;
(d)Commencing the 2025/2026 long summer holiday period, on a weekabout basis;
(e)From 4pm Christmas Day until 6pm Boxing Day in odd numbered years;
(f)By telephone on a regular basis; and
(g)Further by agreement.
13.Save for changeovers that occur at the child’s kindergarten/school, all changeovers occur at a public venue nominated by the mother no more than 5 kilometres from the mother’s home.
14.The Mother be permitted to suspend the child’s time with the Father for up to eight weeks each year in order to travel with the child to the United Kingdom and each alternate year, this periodshall (sic) occur during the Australian long summer holidays and shall include the Christmas period. The father to pay for one return airfare and the mother to provide itinerary and within seven days the father must transfer the funds into the mother’s allocated bank account.
Further, the mother seeks property orders in the terms specified in the Minute of Proposed Property Orders tendered on her behalf (Exhibit A3) during closing submissions, which provides as follows:-
1.That [Mr AA] (sic) and [Ms BB] (sic) be joined as parties to the proceeding.
2.A declaration that the 2nd and 3rd Respondents hold their legal interest in the property at [B Street, Town C] on trust for the 1st Respondent.
3.That within 30 days (the date) the first Respondent pay to the Applicant the sum of $43,527 (the sum).
4.That if the sum is not paid by the date, the property at [B Street, Town C] be forthwith thereafter sold altogether out of court and the proceeds be distributed:
(a) Firstly, to pay reasonable costs of sale;
(b)Secondly, to pay to the Applicant that part of the sum as remains unpaid together with interest of 10% per annum from the date;
(c) Thirdly, to pay to the 1st Respondent the remainder.
5.That the parties have liberty to apply with an abridgment of time in relation to the terms of the sale in order 4 above.
The father sought final parenting and property orders in the terms specified in the minute of proposed orders, tendered on his behalf (Exhibit R7) on the final day of hearing. That minute did not address the father’s proposals as to what time he would spend and communicate with X in the event of relocation to the United Kingdom. His Counsel confirmed that his proposals in that event are those contained in his Second Further Amended Application for Final Orders filed 5 April 2023.
The father’s minute (Exhibit R7) seeks the following orders:-
1.That commencing on 1 December 2023 until 1 June 2025, the father pay to the Mother on the first day of each month $1,552, such payment to be characterised as de facto maintenance.
2.That the father pay to the mother the sum of $40,000 as follows:
2.1. $10,000 within 60 days of the date of Orders;
2.2.$10,000 on or before 12 months after the date of payment pursuant to paragraph 2.1;
2.3.$10,000 on or before 12 months after the date of payment pursuant to paragraph 2.2; and
2.4.$10,000 on or before 12 months after the date of payment pursuant to paragraph 2.3.
3.Save for as otherwise may be provided by these orders, and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
3.1Each of the father and the mother shall be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders;
3.2Moneys standing to the credit of the father and the mother in any bank accounts shall be the property of the party in whose name such bank account is held;
3.3Each of the father and the mother foregoes any claims they may have to the superannuation benefits belonging to or owned by the other;
3.4Insurance policies shall remain the sole property of the owner named herein;
3.5Any joint tenancy of the father and the mother in any real or personal estate is hereby expressly severed; and
3.6Each of the father and the mother shall be solely liable for and indemnify the other against any debts or liability in their name or encumbering any item of property to which that party is entitled pursuant to these orders.
3.7That all extant applications be and are otherwise dismissed.
Parenting
Parental responsibility
4.That the Mother and the Father have equal shared parental responsibility for the child [X] (“the child”) born […] 2019.
Live with and spend time
5.Until the child’s first day of grade 1 in 2026 the child live with the mother.
In 2024 (4 year old kindergarten)
6.That from Friday 27 January 2024 until Friday 29 December 2024 the child spend time and communicate with the father as follows:
6.1.1 In Week one from 10am Friday until 5pm Sunday and;
6.1.2In week two from the conclusion of kindergarten or 3:30pm Tuesday until the commencement of kindergarten on Wednesday or 10:00am and from Thursday 10 am until Friday 5pm
6.2During the Victorian Government School term holiday periods (although the child will not yet be attending school) the child’s time with the father commencing at 10am on Friday of week one shall be extended beyond the Monday to 2:30pm the following Friday in week two, such that the child shall spend a continuous period of seven nights with the father;
6.3In the event that Mother’s Day falls on the child’s weekend with the father, such time to be suspended from 4:30pm on the day prior to Mother’s Day until 10:00am on the day after Mother’s Day;
6.4On Father’s Day from 4:30pm on the day prior to Father’s Day until 5pm on the day after Father’s Day;
6.5On the father’s birthday from 10:00am to 5pm; and
6.6From 10am on Christmas Eve 2024 until 2:00pm on Christmas Day 2023 and in the event that Christmas Day falls on the father’s weekend in 2024, then his time for that weekend to be suspended from 2:00pm on Christmas Day 2024 until 5:30pm on Boxing Day 2024.
7.From Friday 29 December 2024 until the commencement of term 1 of the Victorian Government Schools in 2025 the child to spend time with the father as follows:
7.1.1From 10am on 29 December 2024 until 5pm on Friday 5 January 2025;
7.1.2From 10am on Friday 12 January 2025 until 5pm on Friday 19 January 2025; and
7.1.3From 10am on Thursday 25 January 2025 until 5pm on Monday 29 January 2025.
In 2025 (prep)
8.From Tuesday 30 January 2025 until Friday 27 December 2025 the child to spend time with the father as follows:
8.1 In each fortnight
8.1.1 In week one: from 2:30pm Friday until 10am Monday; and
8.1.2 In week two: from 9:00am Thursday until 2:30pm Friday.
8.2During the Victorian Government School term holiday periods the child’s time with the father commencing at 2:30pm on Friday of week one shall be extended beyond the Monday to 2:30pm the following Friday in week two, such that the child shall spend a continuous period of seven nights with the father;
8.3On Father’s Day from 4:30pm on the day prior to Father’s Day until 10am on the day after Father’s Day;
8.4On the child’s birthday from 2pm until 6:30pm;
8.5In the event that the mother’s birthday falls during time which the child would otherwise be spending with the father, the (sic) such time to be suspended on the mother’s birthday from 10am until 6:30pm;
8.6On the father’s birthday from 10am to 6:30pm; and
8.7On Christmas Day 2025 from 2:00pm until 5:30pm on Boxing Day 2025 and in the event that Christmas Day falls on the father’s weekend, then the child’s time for that weekend be suspended from 12 noon on Saturday 24 December 2025 until 2:00pm on 25 December 2025.
8.8For such further and other periods as may be agreed between the parties in writing.
In 2026 (grade one)
9.Commencing from the child’s first day of grade 1 in 2026 the child to live with each of the parents as follows:
9.1During the school terms and the school term holidays on a week about basis with changeovers to occur at the conclusion of school (or 3:15pm) on Fridays; and
9.2During the long summer holidays (which commence at the conclusion of school on the last day of term 4 and conclude at the commencement of school on the first day of term 1) for one half at times to be agreed between the parties and in default of agreement:
9.2.1In the 2026/2027 long summer holidays and in each alternate year thereafter, with the mother for the first half and the father for the second half; and
9.2.2In the 2027/2028 long summer holidays and in each alternate year thereafter, with the father for the first half and the mother for the second half; and
9.3For such further and other periods as may be agreed between the parties in writing.
Special occasions
10.Commencing from the child’s first day of grade one in 2026 and thereafter the child to spend time with the parents for special occasions as may be agreed between them in writing and in default of agreement as follows and this order shall take priority over any other order:
10.1With the mother for Mother’s day from 4:30pm on the day prior to Mother’s Day until 9:00am on the day after Mother’s Day;
10.2With the father for Father’s day from 4:30pm on the day prior to Father’s Day until 9:00am on the day after Father’s Day;
10.3On the child’s birthday, with the parent that she is not otherwise spending time with from 2pm (or the conclusion of school on a school day) until 6:30pm
10.4In the event that the child’s birthday and [another special occasion] fall on the same day, the child to spend time with the father from 4:30pm on the day prior to [the special occasion] until 2pm on [the special occasion] and then with the mother form 2pm on [the special occasion] until 9am the following day;
10.5On the mother’s birthday from 10am (or the conclusion of school on a school day) until 6:30pm;
10.6On the father’s birthday from 10am (or the conclusion of school on a school day) until 6:30pm;
10.7In 2026 and in each alternate year thereafter the child to spend from 12noon on Christmas Eve until 2pm Christmas Day with the father and from 2pm Christmas Day until 5:30pm Boxing Day with the mother; and
10.8In 2027 and in each alternate year thereafter the child to spend from 12noon on Christmas Eve until 2pm Christmas Day with the mother and from 2pm Christmas Day until 5:30pm Boxing Day with the mother (sic); and
11.The child to communicate with the parent that she is not with via Facetime or other video conferencing between 6:00pm and 6:30pm on each Wednesday and the parent that is caring for the child to do all things necessary to initiate such communication with the other parent and assist the child with the necessary technology.
12.The child otherwise be at liberty to communicate with the parent she is not otherwise living with at all reasonable times as requested by the child.
13.In the event a parent is travelling in a different time zone parenting shall be varied such that the said calls take place on each Monday, Wednesday and Friday in the time zone where the child is and at a time on each occasion which is reasonable for both the child and the parent taking into account international time differences.
Changeover
14.For the purpose of changeovers:
14.1Changeovers which coincide with the commencement or conclusion of child care, kindergarten or school shall take place at that location;
14.2Otherwise, the father to collect the child from the mother’s residence at the commencement of his time and the mother to collect the child from the (sic) at the conclusion of his time; and
14.3In the event that either parent is unable to attend a changeover they may nominate another suitable adult known to the child and the other party to undertake the said changeover on their behalf.
Travel
15.Each parent be and is hereby restrained from removing the child from the Commonwealth of Australia save as may be agreed between them in writing, as provided for by this order or as may otherwise be ordered by the court:
15.1Each parent may only take the child outside the Commonwealth of Australia twice in each calendar year;
15.2Any travel with the child outside the Commonwealth of Australia shall be limited to a period of 28 days per annum
15.3The mother may only take the child outside the Commonwealth of Australia during the period 24 to 26 December in even numbered years;
15.4The father may only take the child outside the Commonwealth of Australia during the period 24 to 26 December in odd numbered years;
15.5The parent intending to travel with the child shall give the other parent no less than 60 days prior notice of their dates for all flights upon which the child will be travelling, addresses for each place in which the child will be staying while overseas and a contact phone number or email address (for video conferencing) upon which the child can be contacted while they are overseas;
15.6Orders for the child to live with or spend time with the non-travelling parenting (sic) shall be suspended for the duration of such overseas travel;
15.7Orders for the child to communicate via Facetime or other video conferencing with the non-travelling parenting (sic) shall be varied such that the said calls shall take place on each Monday, Wednesday and Friday in the time zone where the child is travelling and at a time on each occasion which is reasonable for both the child and the non‑travelling parent taking into account international time differences agreed no later than 2 weeks before departure; and
15.8Once the child commences school the travelling parent shall make travel arrangements which coincide with school holidays periods in order to minimise the amount of school missed by the child unless otherwise agreed by the parties.
16.In the event of a medical emergency, serious injury or illness in relation to the child, the party in whose care the child is at that time must contact the other parent as soon as possible to inform them of any such emergency, injury or illness.
17.If the child has been unwell or attended medical professional for any reason, the parents must advise each other of the child’s illness as soon as reasonably practicable, the parent attending the GP, or other like medical practitioner, shall provide to the other parent via the AppClose app or otherwise in writing:
17.1 Details of the GP and/or medical practitioner;
17.2 Details of any illness diagnosed;
17.3 Any medications prescribed; and
17.4 Details of the name of the medication, dose and time of last dose.
18.These orders shall act as any necessary authority for either parent to communicate with any treating and other medical practitioners of the child and for each parent to obtain such information about the child.
19.These orders shall act as any necessary authority for either parent to communicate with any educators and child care of the child and for each parent to obtain such information about the child.
20.That the other parent is the listed first emergency contact with any treating professionals, babysitters, care givers, child care, kindergarten or school attended by the child.
21.Each parent be at liberty to provide a copy of these orders to any child care, kindergarten, school attended by the child and/or the child’s treating professionals.
22.Without admission of necessity of same, the mother and father each be restrained by injunction from:
22.1Using the child to pass messages between the parents;
22.2Exposing the child to adult issues including the issue of child support;
22.3Denigrating, abusing, belittling, bullying or otherwise speaking badly about the other parent or a member of that parent’s immediate household or allowing the child to remain in the presence or hearing of anyone doing so;
22.4Denigrating or speaking badly about the other parent or any member of that parent’s household on social media or from allowing the child to remain in the presence or hearing of anyone doing so; and
22.5Discussing these family law proceedings in the presence or hearing of the child or from allowing the child to remain in the presence or hearing of anyone doing so.
23.That the mother and father be restrained from relocating the child’s residence outside a 35km radius from the [Suburb O] Railway Station.
24.Usual orders pursuant to Order 65DA(2) and Section 62B.
In the event of relocation, the father proposed that he spend time with X in the United Kingdom for up to two periods of 15 consecutive nights within a 31-day period, and on two occasions each calendar year for gradually increasing periods, culminating in two periods of 14 days.
THE HEARING
The hearing commenced before me on 30 October 2023 and concluded on 2 November 2023. Both parties were represented by Counsel throughout the hearing.
The mother and the father were cross-examined, as were the mother’s witnesses, Ms F, Mr G, Ms H, Ms L, Ms J and Dr K. Of the father’s witnesses, only his father, Mr D, was required for cross-examination.
The Family Report Writer, Ms M was also cross-examined by Counsel representing each of the parties.
On the final day of hearing, Counsel for the father tendered a Minute of Orders Sought (Exhibit R7). That day, the mother’s Counsel tendered a Minute of Proposed Order in relation to property (Exhibit A3) and a joint balance sheet prepared on behalf of the parties (Exhibit A4).
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)The nature of the cause of action or defence; and
(b)The nature of the subject-matter of the proceeding; and
(c)The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing.
In what follows, statements of fact constitute findings of fact. In determining the matter, I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the mother and the father and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
PARENTING
LEGAL PRINCIPLES
Whilst Part VII of the Family Law Act 1975 (Cth) (“the Act”) has been amended, those amendments have no application to the current proceedings which was heard prior to them coming into effect on 6 May 2024.[2]
[2] Family Law Amendment Act 2023 (Cth) s 2.
Section 60B(1) sets out the objects of Part VII of the Family Law Act1975 (Cth) ("the Act"), to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child's best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parties seek parenting orders as defined by s 64B of the Act. That is, they seek orders relating to with whom and where the child is to live, and the time the child is to spend with the other parent.
Each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act, as the parents of the child.
In deciding what parenting orders are appropriate in a particular case, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act sets out the primary and additional considerations to which the Court must have regard in determining what is in the child's best interests. The Court must give greater weight to the necessity to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2A) of the Act). Otherwise, there is no requirement for the primary and additional considerations to be examined in any particular order, or for any single consideration to be afforded greater weight than others. Ultimately, the weight to be afforded to each of the considerations is a matter dependent upon the unique circumstances of each case.
That this is so was confirmed by the Full Court of the Family Court of Australia (as it then was) in Donnell & Dovey (2010) FLC 93-428 at [103], where it described the section 60CC considerations as:-
…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another…
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 as follows:-
[76]It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by parliament as those the court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
[77] It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. While the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance…
(Emphasis in Original)
There is a presumption that it is in a child's best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility; it does not relate to the time the child spends with each parent. For the reasons set out below, I am satisfied that that presumption is rebutted in this case, and further that it would be contrary to X’s best interests for the parties to have equal shared parental responsibility; I am satisfied that the mother should have sole parental responsibility for making decisions regarding X’s long-term care, welfare and development.
If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the child's best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent (s 65DAA of the Act). In circumstances where I have determined that the mother should have sole parental responsibility, those considerations do not apply.
The above principles apply to applications for international relocation of a child just as they do in other parenting applications. In Zahawi & Rayne [2016] FamCAFC 90 the Full Court stated that:-
[48]"Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
As with all parenting cases, the Court must weigh up the parties' various competing proposals, while maintaining the best interests of the child as the paramount consideration. However, a determination of what is in the child's best interests does not mean that the legitimate desires and interests of her parents are ignored; rather, where those interests conflict with the child's best interests, the former must give way to the latter (AMS v AIF (1999) 199 CLR 160 at [207]-[208]). Whilst a parent enjoys the right of freedom of movement to live wherever they so choose, that right must defer to the paramount consideration, being what is in the best interests of the child (U v U (2002) 211 CLR 238 at [89]).
ASSESSMENT OF THE EVIDENCE
The mother’s case
The mother’s application to relocate to the United Kingdom is motived by her desire to return to her country of origin and to be nearer to her family, who she contends, have the capacity to provide both physical and emotional support to her and X.
It was submitted on behalf of the mother, and I accept, that her life in Australia, particularly following the parties’ separation has been “highly stressful”. That this is so, she says is due to the financial hardship she has endured since separation, coupled with ongoing control and intimidation by the father. The mother deposes that she is isolated in Australia, in part because she is removed from her family, but also as a result of the father’s behaviour in preventing her from developing close friendships of her own during their relationship.
The mother submits that she has no familial supports in Australia and has few friends who are available to provide her with regular and meaningful ongoing support.
The mother and X are currently living in rental accommodation, shared with two other adults. Accordingly, there is little stability or long-term security in relation to the mother’s living arrangements.
In contrast, if permitted to return to the United Kingdom, the mother contends that she will be able to live rent-free with her father and his partner, both of whom are able to provide her and X with practical physical and emotional support. She submits that those arrangements will provide her (and therefore X) with financial security and emotional support that is not available to them in Australia.
Further, the mother submits that she will have support from her sisters, her mother and members of her extended family in the United Kingdom. If permitted to relocate, the mother intends to attend university to enhance her qualifications. The mother deposes that in the United Kingdom she is eligible for grants and student loans which are not available to her in Australia.[3] The mother is also entitled to housing benefits and parenting payments in the United Kingdom which are not available to her here.[4]
[3] Mother’s trial affidavit filed 2 October 2023, paragraph 63.
[4] Mother’s trial affidavit filed 2 October 2023, paragraph 64.
As to the financial hardship endured by her, the mother’s evidence is that she has received little by way of financial support from the father since the parties’ separation. For example, in 2021 the father’s taxable income was assessed at $2,492, resulting in an assessment of his child support liability at $446 per annum for the period 11 April 2022 to 31 January 2023.[5] Following a review of that assessment, the father’s child support liability was increased to $370 per month.
[5] Mother’s trial affidavit filed 2 October 2023, paragraph 161.
The mother’s evidence is that the father’s child support liability and payments have fluctuated since separation and have been subject of review by the Child Support Registrar. In her Financial Statement filed 2 October 2023 the mother deposed that the father was required to pay child support of $67 per week, but that she received varying amounts from him.[6]
[6] Mother’s financial statement filed 2 October 2023, p. 3, paragraph 13.
A significant part of the mother’s case is that the father has income far greater than that disclosed by him. Considering the father’s evidence, which I will address in more detail later, there is much force in that contention.
Other than child support paid by the father, the mother’s only sources of income are the Special Benefit payments received from Centrelink, totalling approximately $313 per week, and the modest sums received by her upon sale of her work.[7]
[7] Mother’s financial statement filed 2 October 2023, p. 3.
The mother’s evidence as to her income from the sale of her work is that she earns on average $100 per week. However, when such income is received, it reduces her entitlements to the Special Benefit payment from Centrelink. The mother is not entitled to the full Centrelink parenting payment due to her residency status and will not be eligible for the full parenting payment until 2025.
The mother was challenged during cross-examination as to the amounts earned by her from the sale of her work. The mother’s evidence was that monies received by her from the sale of such pieces were deposited into her bank account. As to cash payments received, the mother’s evidence was that such payments were rarely received, and this usually only occurred when friends purchased her work. She estimated that she might receive $100 in cash every three months.
The mother was extensively cross-examined as to her sale of work and was challenged in relation to her pieces advertised on various websites. The mother confirmed that she endeavours to sell her pieces on consignment through dealers who advertise her wares on their social media sites. The mother’s evidence is that she has disclosed her income from those sources and that she makes little money from such work. She also confirmed during her oral evidence that she has limited opportunity to attend to her craft due to her responsibilities to care for X. The mother confirmed that she does not retain stock, but makes pieces to order.
Whilst the father contended that the mother’s income from the sale of her work was greater than that disclosed by her, the mother was steadfast in her position that she derives little income from that source and her evidence was not shaken during cross-examination.
The reality is that the mother lives in a share house with two other adults. That she does so is due to her inability to meet rental payments without assistance. Currently she has two housemates living with her to assist with the rent. In her Financial Statement, the mother disclosed savings of approximately $560.[8] I am well satisfied, having regard to that evidence and the mother’s oral evidence, that the mother has been living in straitened financial circumstances since the parties’ separation. The mother’s evidence as to her capacity to work and her limited financial resources was detailed and compelling. I accept her evidence in relation to those matters and accordingly, am satisfied that she has found herself in a stressful and difficult financial position since the parties’ separation.
[8] Mother’s financial statement filed 2 October 2023, p. 6, paragraph 37.
The mother contends that her difficulties have been compounded due to her experience of family violence at the hands of the father. The mother contends that she has been a victim of the father’s intimidating and controlling behaviour, and that such behaviour has continued in the post-separation period. For example, the mother deposes that the child’s name is registered on the father’s Medicare card and that he has refused to provide those details to her, thereby hindering her ability to access medical and dental care for the child.[9]
[9] Mother’s trial affidavit filed 2 October 2023, paragraphs 77 – 78.
The mother also deposes that during her pregnancy she became financially dependent upon the father, and that he withdrew sums from her savings account without notice, consequently exhausting her savings and resulting in her credit card being declined. As a result of that conduct, the mother alleges on one occasion she was forced to borrow monies from a friend to purchase a bus fare to return to the parties’ home.[10]
[10] Mother’s trial affidavit filed 2 October 2023, paragraph 94.
The mother alleges that the father constantly belittled and criticised her, complaining that “the house isn’t clean enough”, that she “takes too long at the supermarket”, or that she was “psychotic”, “hormonal” and “ungrateful”.[11] In addition, the mother alleges that the father humiliated her by making such derogatory comments about her in the presence of others. That evidence is consistent with the evidence of the father’s witness, Ms N, who deposed that the father attributed primary responsibility for the parties’ disagreements to the mother, stating that the mother was “being irrational”, was “manipulative” or “abusive”.[12]
[11] Mother’s trial affidavit filed 2 October 2023, paragraphs 98 – 99.
[12] Affidavit of Ms N filed 23 October 2023, paragraph 5.
The mother contends that the father also accused her of being mentally unstable and made threats to have X removed from her care.[13]
[13] Mother’s trial affidavit filed 2 October 2023, paragraph 102.
The father denied the mother’s allegations as to his abusive and controlling behaviour.
The mother contends that a further example of the father’s controlling behaviour was his attendance upon her General Medical Practitioner, Dr K. The mother alleges that the father sought to denigrate her to Dr K, alleging that she had committed family violence against him, and asserting that she had mental health issues.
Dr K’s report as to his attendances upon the mother and the father is dated 9 June 2021 and annexed to his affidavit filed 26 October 2022. In that report, Dr K assessed the mother as follows:-
[The mother] has always demonstrated a measured and rational approach to her healthcare, and the welfare of her young daughter. Likewise, [the mother’s] hormone profile was completely normal, and showed no evidence that supported 19th century type ideas of hysteria and a “wandering uterus,” as suggested by the idea that somehow pregnancy had affected [the mother’s] rationality in any way.
[The mother] was however, presenting as a significantly vulnerable person, given her isolation from family, and seemed like someone at risk of domestic and intimate partner violence and control. Unfortunately, [the father], … also started seeing me in the clinic, and despite outlining my concerns about a conflict of interest, he continued to consult me, and I would not refuse care.
Dr K was required for cross-examination.
During his oral evidence, Dr K confirmed that the father reported to him his own “domestic concerns” and that as a result, Dr K prepared a mental health plan for the father.
Dr K differentiated the doctor-patient relationship he had with the mother as compared to with the father. Dr K confirmed that he had attended upon the mother for a considerable period and that many of those attendances included face-to-face consultations. In contrast, Dr K first consulted the father during the Covid-19 pandemic and those consultations were by telephone.
Accordingly, Dr K considered that he was better able to assess the mother. He confirmed that his assessments of her were based not only on what she told him, but also on observing her during examinations and observing her interactions with X.
When questioned as to the mother’s report of domestic violence, Dr K confirmed that it was his opinion that she was a victim of domestic violence and manipulation.[14] During his oral evidence Dr K also confirmed that having reflected on his care of the mother and the father, he should have refused to treat the father due to the conflict between them.
[14] Transcript 1 November 2023, p. 6, lines 24 – 25.
Dr K further stated that the father’s behaviour towards him should have caused him to end their professional relationship. Dr K expanded, stating that he felt intimidated by the father, and felt that the father’s behaviour towards him was “bordering on bullying at times”.[15]
[15] Transcript 1 November 2023, p. 7, lines 15 – 18.
When asked about what aspects of the father’s behaviour he found to be bullying, Dr K stated that the father’s tone of voice was “fairly aggressive”. He also noted the father to express “fairly chauvinistic ideas” and discussing “misconceptions around males and talking about males being discriminated against”. Dr K observed that he did not feel comfortable and did not feel safe with the father. He confirmed that he felt intimidated by the father, and that the father was trying to bully him into retracting earlier statements made by him. Dr K confirmed that he ultimately felt bullied by the father into writing a subsequent letter.
Dr K also confirmed that the father questioned the mother’s mental health and her integrity. Dr K confirmed that the father reported the mother to be unstable, erratic, and to have behaved irrationally. He also stated that the father alleged that the mother had a borderline personality disorder. Dr K stated that the opinions expressed by the father did not accord with and were inconsistent with his own observations and interactions with the mother and the child. Dr K noted his interactions with the mother to be positive.
Dr K’s evidence in relation to his interactions with the parties was forthright and compelling and I found his observations of the parties to be insightful and helpful. I accept Dr K’s evidence as to his interactions with the mother and the father.
Dr K’s experiences of the father’s behaviour as being bullying and intimidating are consistent with the mother’s reports as to the father’s behaviour towards her. Similarly, Dr K’s reports as to the father’s attempts to undermine the mother and question her mental health accord with the mother’s reported experiences of such behaviour. Having regard to the evidence of Dr K, I am satisfied on the balance of probabilities that that the father has engaged in intimidating and controlling behaviour as alleged by the mother.
The mother also alleges that X has been exposed to the father’s manipulating and controlling behaviour. At the commencement of her oral evidence, the mother gave evidence as to the changeover that occurred with the father on 20 October 2023. That day she stated that the father attended the changeover, having taken X shopping for clothing and toys. She stated that the father would not permit X to bring the clothing and toys into the mother’s home. Further, the mother contends that the father videoed that changeover, which depicted X as being very upset that she was not permitted to bring the toys into her home. The mother alleges that the father videoed the changeover in an attempt to give the impression that X did not wish to return to her care.
The mother’s account of that event was unshaken during cross-examination; her evidence was detailed and compelling. The evidence as to the father’s conduct is consistent with the evidence of Dr K as to his experience of the father’s manipulative and bullying behaviour. I accept the mother’s evidence as to the father’s conduct at that changeover.
During cross-examination, the mother was also challenged as to the strength of her relationship with her own father, with whom she will live in the event relocation is permitted. She readily conceded that she had not lived with her father since 2001 and that she had told the father that she did not have a good relationship with her own father during her teenage years. Nonetheless, she maintained that her father had always been available to support her.
The mother also readily acknowledged that she had difficulties when her parents separated, noting that she was aged approximately 10 years when that occurred, and that she felt some abandonment by her parents due to their separation. Further, the mother acknowledged that she has never lived with her father and his partner in their home. Nonetheless, she maintained that she had spent months together with them in the same house and was confident that her proposed living arrangements in the United Kingdom were appropriate.
The mother also made concessions as to the nature of X’s relationship with the father. She confirmed that X is delighted to see the father at changeovers and that she has a positive relationship with him.
The mother’s evidence was consistent with that contained in her trial affidavit. She made concessions where appropriate and her account of the father’s conduct towards her was not shaken during cross-examination. I found the mother to be a truthful, forthright and compelling witness. I accept the mother’s evidence as to the father’s controlling and intimidating behaviour. I also accept her evidence as to her feelings of social isolation in Australia.
As to the mother’s proposals for study and work in the United Kingdom, the mother’s evidence was limited and there was little detail as to those proposals. Nonetheless, I accept the mother’s evidence that she will have greater access to government benefits in the United Kingdom than is available to her in Australia.
The mother’s witnesses
Mr G
Mr G is the mother’s father. Mr G swore an affidavit filed on 17 October 2023. At the time of swearing that affidavit, Mr G was living in Town P which is in the United Kingdom.
Mr G deposed that he has been in a relationship with his partner, Ms F, for 14 years and that Ms F is a stepmother-figure to the mother. Mr G deposed that X is his only grandchild.
Mr G’s evidence is that he is in the process of moving in with his partner, Ms F, to live with her at her home in Suburb Q. It is that residence which the mother intends to live in with X, in the event of their relocation to the United Kingdom.
Mr G confirmed that he shares a close relationship with his three children, and that he has regularly communicated with the mother via Facebook Messenger and Facetime since she moved to Australia. He confirmed that he messages the mother daily, either on Facebook or instant messaging. Mr G also confirmed that since the parties’ separation he has observed in his communications with the mother that she has struggled living in Australia.
Mr G confirmed that in the event of the mother’s return to the United Kingdom with X, he is available to support them both. He confirmed that he is retired, which provides him with greater capacity to assist the mother in caring for X, to support her finding employment or alternatively continuing with her tertiary studies. Mr G confirmed that the mother and X can live with him and Ms F rent-free.
Mr G was required for cross-examination and gave his evidence electronically. Mr G was cross-examined as to the support he has provided to the mother since she commenced living in Australia. Mr G confirmed that the mother has not asked for assistance but confirmed that if asked, it would be provided. He noted that the mother is independent. Nonetheless, he confirmed that he had provided the mother with financial assistance to enable her to undertake a joinery course in Australia.
As to the proposal that the mother and X live with him, Mr G confirmed that the mother has not lived with him since she was a child. However, Mr G was optimistic that the proposed living arrangements were workable and appropriate. He confirmed that both he and his partner spent much time with the mother during her childhood, noting that she spent weekends with them both. Mr G confirmed that he has always had good communication with the mother and expressed the view that the proposed living arrangements would be good for both the mother and for X.
Mr G confirmed his support for the mother’s resumption of either part-time or full-time study, observing that the mother was quite gifted academically.
Mr G also confirmed during his oral evidence that he would support and assist the mother in travel to Australia to facilitate the father’s time with X. He confirmed that he was prepared to give the mother a few thousand pounds each year to support that time and to promote X’s relationship with the father.
Mr G impressed as a down-to-earth and committed parent who made concessions where appropriate, particularly acknowledging that the mother has not lived with him since her childhood. I accept his evidence as to the practical and emotional support he is able to provide to the mother and X in the event of their relocation to the United Kingdom.
Ms F
Ms F is the partner of the mother’s father, Mr G. She swore an affidavit in the proceedings filed on 17 October 2023.
Ms F deposed that she is aged 63 years and enjoys good health. She lives in Suburb Q which is approximately a 40-minute drive from City R. She owns her own home which has three bedrooms and a fenced garden.
Ms F gave evidence as to the amenities at Suburb Q which she described as a safe and quiet suburb which has a small primary school, a farm shop and café, a children’s nursery, an after‑school holiday club and a children’s playground. Further, she deposed that the suburb is approximately a 15-minute drive from a town where there is a university. She also noted that the suburb is close to two cities which provide employment opportunities.
Ms F deposed that she has two adult sons and one grandchild whom she cares for once per week and during holiday periods. Both her children live independently and in close proximity to her home.
Ms F deposed that she met the mother’s father in 2008 and that they have been in a relationship for more than 15 years. She considers the mother and the mother’s sisters to be her stepchildren, having commenced her relationship with Mr G when they were all young and still at school.
Ms F deposes that she spent much time with the mother during her childhood at either the father’s home or at her own home, and that the family holidayed together during school holiday periods. Ms F confirmed that the mother’s sisters, Ms S and Ms H, both live within a few hours from her home and that Ms H is a regular visitor to her home.
Ms F deposed that she has kept in regular contact with the mother via the family group chat and Facetime, and that she and Mr G had planned to visit the mother in Australia, but that those plans were disrupted due to the outbreak of Covid-19.
Ms F confirmed that she spends most weekends with Mr G and that they holiday together regularly. She deposed that they have a motorhome that they use on weekends. She confirmed that it is intended that Mr G will live with her in her home in order to support the mother and X in the event of their return to the United Kingdom.
Ms F confirmed her commitment to support the mother and X in re-establishing themselves in the United Kingdom. She confirmed that she would provide both emotional and financial support to the mother and X. Ms F also confirmed that the mother and X could live with her rent-free for as long as needed and that she is available to care for X as required. Ms F confirmed that she is qualified in education.
Ms F was required for cross-examination and was challenged as to the strength of her relationship with the mother. Ms F confirmed during her oral evidence that she first met the mother when she was quite young, and that they have holidayed together. She confirmed that she has a close partnership with the father and that they “share the bumps in the road with the children as well as the good times”.
Ms F conceded that she has never personally met the child X and that she has never lived full‑time with Mr G. Ms F was questioned as to the potential challenges that might arise in living with Mr G and the mother. Ms F did not consider there to be any issues with the change in her living arrangements, as she and Mr G have been in a committed relationship for a period of more than 15 years. Ms F noted that her priority will be to ensure that the mother feels secure and safe in her home.
Ms F was also cross-examined as to her financial capacity to support the mother. Ms F confirmed during her oral evidence that her home is unencumbered, that she is “fairly comfortable” and will not require the mother to pay rent if living with her. Ms F also confirmed that she was able to assist the mother with travel to Australia, if required.
Ms F was an impressive witness. She made concessions where appropriate, acknowledging that the proposed living arrangements were untested. Ms F was considered and insightful as to the potential challenges facing the mother and X. I accept her evidence in its entirety.
Ms H
Ms H is the mother’s sister. She swore an affidavit in the proceedings filed 17 October 2023. Ms H deposed that at the time of swearing that affidavit she was 31 years and living and working at a hospitality venue in the United Kingdom. Ms H deposed that she has flexible working hours due to the nature of her employment and further that both the mother and X would be able to visit and stay at her workplace.
Ms H deposed that she and the mother are close in age, share a loving relationship and have many common interests. Ms H has a background in design and in the past has assisted the mother in her work as a craftsperson.
Ms H confirmed that she is in regular contact with the mother via the family Whatsapp group chat as well as through other social media. She confirmed that she regularly communicates with the mother and X during video calls. Ms H also confirmed that she has a close relationship with her father and Ms F, and that they have provided her with financial and emotional assistance in the past. She also confirmed that she has lived with Mr G for periods during her adult life.
Ms H confirmed that she considers Ms F to be a mother-figure and that Ms F has provided her with emotional support over the years. She also confirmed that she has holidayed with Mr G and Ms F and that the family gets on well.
Ms H deposed that due to her flexible work hours she is able to assist with X’s care if required, to support the mother’s education and employment.
Ms H was required for cross-examination. During her oral evidence she confirmed that her home is approximately two hours’ drive from Suburb Q, but that she was accustomed to the drive as her own partner lives approximately 45 minutes from Ms F’s home.
During her oral evidence, she also confirmed the support provided to her by Mr G over the years, which has included accommodation, financial support and assistance with her motor vehicle.
Ms H impressed as a truthful witness who would endeavour to support the mother and X in the event of their relocation to the United Kingdom.
Ms L
Ms L is a friend of the mother who lives in Suburb T, a suburb of Melbourne. Ms L affirmed an affidavit filed in the proceedings on 10 November 2022. In that affidavit, Ms L confirmed that she met the mother in 2019 in a mothers’ group. She has a child who is the same age as X.
Ms L deposed that she provided support to the mother following her surgery in 2020. Whilst the mother initially stayed with the father’s parents following her discharge from hospital, she then contacted Ms L requesting that she stay at her home with X during her recovery.
Ms L deposed to an incident that occurred in early 2020 whilst the mother and X were staying at her home. She deposed that the father attended her home in the early morning uninvited and banged loudly on the door. She deposed that she was frightened at the father’s attendance at the property and that when she opened her door the father pushed past her, and entered the room where the mother and X were sleeping. The father removed X from the room, notwithstanding the mother’s request that X needed to be breastfed and have her nappy changed. Ms L deposed that both the mother and X were distressed by that event. The father returned with X approximately half-an-hour later.
Ms L also deposed as to another occasion when she attended the mother’s home for dinner. On that occasion, she deposed that the father entered the property uninvited, using a key that he had retained, that he entered the kitchen and slammed his hands on the table asking, “Where is my food?”. Ms L deposes that she was frightened by the father’s behaviour. Ms L deposed that she found the father’s behaviour to be aggressive and overpowering, that she had heard him speaking in a loud voice to the mother and to have been rough with X.
Ms L was required for cross-examination. During her oral evidence she confirmed that she has known the mother since X was aged approximately three months and that they usually see each other every week.
Ms L confirmed during her oral evidence that she has assisted the mother with X’s care when requested, albeit that because of her own commitments to work, her support is limited to caring for X for a few hours at a time. Ms L confirmed that the mother has little support available to her in Australia.
Ms L impressed as a truthful witness. There was no challenge to Ms L’s observations of the father’s behaviour and her evidence as to her limited capacity to support the mother appeared genuine. Accordingly, I accept her evidence.
Ms J
Ms J is a Psychologist who has been treating the mother since March 2021. Ms J prepared a report in relation to her treatment of the mother dated 5 September 2022 which is annexed to her affidavit filed 5 September 2022. Ms J confirmed in her report that she has been a Registered Psychologist for over 25 years, specialising in trauma related to family violence and sexual assault. There was no challenge to Ms J’s professional qualifications or capacity to give evidence.
In her report, Ms J confirmed that her sessions with the mother focussed on discussing the mother’s experiences with the father, noting the mother’s report that those experiences were “distressing and disturbing and sometimes frightening”.[16] Ms J reported that the focus of her work was in supporting the mother.
[16] Affidavit of Ms J filed 5 September 2022, p. 6.
Ms J assessed that the mother does not have a mental health disorder but rather is experiencing significant stress and distress due to the circumstances she finds herself in. Ms J reported that the mother’s problems largely relate to the father and to the fact that she has minimal supports. Ms J also noted that the mother impressed as being determined to succeed in life and as having a strong commitment to the care of her child.
Ms J was required for cross-examination. She confirmed during her oral evidence that the mother was referred to her by Dr K. Ms J confirmed that the references in her report to family violence relate to the mother’s reports of those events to her and confirmed that she had accepted the mother’s accounts of those events as true. Ms J confirmed that she had attended upon police with the mother on one occasion.
There was no serious challenge to Ms J’s evidence. I accept Ms J’s evidence as to the mother’s reports of her experiences to her and her assessment of the mother’s mental health.
The father’s case
The father seeks orders that the mother and the child remain living in Melbourne. The father contends that he shares a meaningful relationship with X, but that relationship will deteriorate if the relocation to the United Kingdom is permitted. It was further submitted that X does not yet have a secure attachment to the father and that the relationship between X and the father would likely be severed in the event of relocation.
The decision in Stanford has been considered in detail by the Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 ("Bevan") and Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592.
In Bevan at [73] the Full Court referred to the three "fundamental propositions" laid down by the High Court which should guide trial judges in approaching the task under s 79 or 90SM. They were summarised as follows:-
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties' interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(Emphasis in original)
Accordingly, in determining applications pursuant to s 90SM of the Act, the Court is required to:-
·Identify the parties' respective legal and equitable interests in property;
·Determine whether, in accordance with s 90SM(3), it is just and equitable to make a property settlement order having regard to the parties' existing interests;
·Determine all relevant contributions of each of the parties;
·Identify and weigh against each other the matters set out in s 90SM(4)(a) to (c) inclusive of the Act; and
·Consider the matters contained in s 90SM(4)(d) to (g) inclusive of the Act and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 90SF(3) of the Act.
The Act does not prescribe the order in which the matters in s 90SM(4) of the Act are to be considered. The circumstances of individual de facto relationships as to their nature and form differ; how parties have organised and lived within the relationship are factors which may be relevant in the exercise of the discretion pursuant to s 90SM(3) of the Act.
The Court's approach may be less compartmentalised than was previously the case and a more "holistic" approach adopted, as was described by Murphy J in Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 at [13].
BACKGROUND
At the commencement of the parties’ relationship the mother did not hold any assets of significance.
At that time the mother worked as a tradesperson. The father worked as a craftsperson and managed the accommodation properties.
The mother contends that at the commencement of their relationship, the father stated that he owned the property at B Street, Town C (“the Town C property”). She deposes that a few months after the commencement of the relationship, the father informed her that he held a share in that property with his brother and sister-in-law.
The Town C property was purchased in 2017 for the sum of $250,000 in the names of the father’s parents, Mr D and Ms E and his brother and sister-in-law.
The father denies the allegation that he has an interest in the Town C property or that he ever made representations that he held such interest. I will refer to that dispute in more detail later in the judgment.
The mother relies upon the father’s regular payments into his parents’ Commonwealth Bank of Australia home loan account to found her claim as to his equitable interest in the Town C property on the basis of a constructive and/or resulting trust.
The mother also relies upon the fact that when the contract for purchase was signed, it was prepared in the father’s name, together with his parents, brother and sister-in-law. The contract was subsequently amended to delete the father’s name as a purchaser of the property.
The mother alleges that during the relationship the parties made improvements to the Town C property, including landscaping and gardening at the property, clearing the land and salvaging firewood, demolishing walls, hiring equipment to polish the concrete floors, installing plumbing and employing carpenters to assist in the construction of the carport.
Upon the parties’ physical separation, the father lived at the Town C property.
During the latter stages of the mother’s pregnancy with X, she ceased work. She has not been engaged in paid employment since that time and has had only sporadic income from the sale of her work. She has otherwise been reliant upon government benefits and child support.
Following X’s birth, the mother was a full-time parent and homemaker. She has continued to be X’s primary caregiver since separation.
During the cohabitation the father conducted a business managing short-term accommodation. The operation of that business was disrupted by the advent of the global pandemic. However, the father has now resumed the operation of that business from which he is able to derive a significant income.
The issues
The issues that emerge from the parties’ competing applications for property division which require determination are:-
·The composition and value of the parties’ interests, particularly whether the Town C property ought be included in the parties’ asset pool;
·What weight should attach to the father’s contribution of the Town C property, if found to be part of the pool of assets;
·The assessment of each party’s contributions;
·What adjustment, if any, should be made having regard to s 90SM of the Act; and
·What amount is required to be paid by the father to the mother in order to effect a just and equitable division of the parties’ interests?
The asset pool
At the conclusion of the hearing the parties tendered a joint balance sheet (Exhibit A4) which identified their interests as follows:-
Ownership
Description
Applicants value
Respondents value
ASSETS
1
R
B Street, Town C
450,000
450,000
2
R
Motor Vehicle
3,500
3,500
3
R
ANZ …77
927
927
4
R
ANZ …53
4,000
4,000
5
R
ANZ …69
2,663
2,663
6
R
ANZ …27
539
539
7
R
Household contents
3,500
3,500
LIABILITIES
10
R
Respondent’s loan from parents
116,000
Nil
11
R
ATO tax debt
Nil
44,000
Analysis of that balance sheet discloses that the principal areas of dispute are as to whether:-
(a)The Town C property, or part of it, is included as an asset of the parties;
(b)The loan from the father’s parents is a liability of the parties; and
(c)The father’s ATO liability is included in the balance sheet.
Item 1 – B Street, Town C
There is no dispute as to the value of the Town C property, rather the issue is whether it should be included in the calculation of the parties’ asset pool. As noted earlier, the mother contends that the father holds an interest in that property pursuant to either a resulting or constructive trust.
At the time of trial, that property was registered in the names of the father’s parents, Mr D and Ms E.
The mother alleges that the father stated to her that he had an interest in the property at the commencement of their relationship. The father denies that allegation.
The mother contends that the property was purchased in the names of the father’s parents, brother and sister-in-law as the father was not in a position to secure a loan. The monies required for the purchase, being the sum of $250,000 were drawn down on the father’s parents’ Commonwealth Bank of Australia loan secured over the title to their property at Suburb Y.
The mother alleges that the father made regular monthly payments into his parents’ Commonwealth Bank loan account for the period 6 November 2017 to 30 July 2021. Further, she contends that some of those payments are described as “to [B Street] loan repay”.
It was put to the father that a total of $117,000 was paid by him to his parents between 2017 and 2021. The father took issue with that amount, although could not confirm the amount he had paid into his parents’ loan account.
Of the payments referred to in the mother’s trial affidavit at Annexure MS-13, the father contended that he did not make the payments identified on 2 March 2018, 23 April 2019, 27 June 2019, 4 November 2019, 5 December 2019, 6 April 2020, 2 January 2018, 5 April 2018 and 4 May 2018. The alleged payments challenged by him totalled approximately $17,107. Otherwise, the payments alleged by the mother to have been made by the father to his parents loan account were not the subject of challenge. Accordingly, there is no controversy, and I accept, that the father has transferred to his parents’ loan account the sum of approximately $100,000 over that four-year period and that some of those payments were described as “to [B Street] loan repay”.
The father maintained that those payments related to various loans obtained by him from his parents and applied by him towards the commencement of a business and the purchase of a motor vehicle. The father also contends that he owes his parents approximately $50,000 in relation to legal costs. The legal costs referred to by him largely post-date the payments identified by the mother as relating to the repayments on the Town C property.
Mr D, the father’s father, filed an affidavit on 27 September 2023 in relation to these matters. He deposed at [24] of that affidavit that the father and the mother never made any financial contributions towards the acquisition or improvement of the Town C property. Mr D was required for cross-examination in relation to these matters.
During his oral evidence, Mr D confirmed that the father owes to him the sum of approximately $53,000. He stated that that amount was advanced over a period of time for the father to commence operation of a warehouse, for the purchase of a motor vehicle and the like. He confirmed that the amount was not advanced as a lump-sum. He further stated that he had been lending the father money ever since he had left home.
However, Mr D was unable to particularise what amounts were advanced to the father or when. When invited to estimate the amounts of monies advanced by him to the father in 2017, he stated that he did not know and could not provide a rough estimate of the amounts. He was asked whether he had recorded the loans somewhere and responded that “we had a book”. When questioned whether that book was still in existence, Mr D responded that there is a book where the loans are recorded but as amounts are repaid, the pages are pulled out and thrown away.
Mr D confirmed that there was no written record of the total amount advanced to the father. He justified his inability to provide particulars on the basis that “it’s a family matter – we’re not accountants”.
Mr D was also questioned as to whether he had advanced money to the father to enable him to purchase crypto currency. Mr D stated that he had not advanced funds for that purpose. That evidence directly contradicted the father’s oral evidence that his father had advanced an amount of approximately $9,000 for that purpose.
It was put to Mr D that the father had repaid to him the sum of approximately $60,000 between 6 November 2017 and 30 January 2020. Mr D stated his belief that the repayments were less than that sum but he did confirm that the father made direct payments into the Commonwealth Bank loan account. Mr D had no idea as to when the father last repaid money to him. Further, he could not confirm the purpose of the first repayment made by the father to the loan account on 6 November 2017, being shortly after settlement of the purchase of the Town C property.
Mr D was also questioned as to why the original contract for the purchase of the Town C property included the father’s name. Mr D stated that that was an error that occurred as he had asked the father to attend upon the real estate agent. Mr D stated that he had already paid a deposit at the time he requested the father’s attendance upon the agent.
The particulars of the purchaser on the contract of purchase are typed and included the father’s name and address, in addition to details of the other purchasers.[39] Given those matters, in my view, it is likely the contract was prepared upon instructions in anticipation of the purchasers attending to execute the document. The more likely explanation for the deletion of the father’s name from the contract is that the amendment was made upon it becoming apparent that he was unable to borrow funds to proceed with the purchase in his name. That is consistent with the mother’s account regarding the father’s explanation as to why the property was not held in his name.
[39] Affidavit of Mr D filed 27 September 2023, annexure MD1, p. 9 – 21.
Mr D conceded that the father commenced payments into the loan account on 6 November 2017, being one month after the settlement of the purchase of the Town C property. Mr D maintained during his oral evidence that the father’s payment on that date was a “coincidence”. Mr D also agreed that the father paid regular monthly payments into that account for a period of approximately 33 months in the second week of each month and that those payments were no less than $1,000 per month and sometimes as much as $5,000 per month.
Mr D was also questioned as to whether the father left money for safekeeping in his safe. Mr D denied that allegation, stating that he was not aware of the father doing so. Again, that evidence directly contradicted the father’s oral evidence.
Mr D agreed that the payments made by the father to the loan account were described as either “repayment” or “[B Street] loan repayment”.
Mr D confirmed that he and his wife purchased his son and daughter-in-law’s one-half interest in Town C for the sum of $108,000 together with a $4,000 cash payment. When asked the source of the cash, Mr D stated that he could not recall.
Throughout his evidence, Mr D sought to maintain that the father had no interest in the Town C property. Annexed to his affidavit were a bundle of accounts in relation to works attended to at the property, which included an invoice from ‘[Z Business]’ in the name of the father dated mid-2021, regarding the purchase of an air conditioning system for the sum of $2,550.[40]
[40] Affidavit of Mr D filed 27 September 2023, annexure MD2, p. 33.
Mr D was an unimpressive witness. At times, his evidence was vague, non-responsive and evasive. Given the central issue in the property dispute is the question of whether the father has an interest in the Town C property, Mr D’s inability to respond to questions as to payments made to him by the father and deposited into his loan account was extraordinary. Those issues were compounded in circumstances where it was his evidence that records of loans allegedly made by him to the father were contained in a book that has not been produced by him in these proceedings. During cross-examination Mr D stated that it was his wife who generally attends to banking.
In light of that evidence, the failure by the father to call his mother, Ms E, as a witness in the case as to her role in administering the banking was, in my view, a significant omission, particularly given she has previously sworn affidavits in earlier interlocutory proceedings.
It was submitted on behalf of the mother that the inference to be drawn from that omission was that the evidence of Ms E could not have assisted the father’s case (per Jones v Dunkel [1959] HCA 8). In light of the evidence of Mr D, there is much force in that submission.
It is also significant in my view that the father did not call his brother or sister-in-law, who the father alleges were parties to the acquisition of the Town C property and subsequently sold their interest in that property to his parents. Again, it was submitted that the failure to call evidence from the father’s brother and sister-in-law invites an inference that their evidence could not assist the case. I accept that submission.
Equity will intervene to prevent a person unconscionably retaining the benefit of a property in the context of a relationship or endeavour to which another person has made contributions.[41] That principle was expressed by Deane J in the High Court decision of Muschinski v Dodds as follows:-
…The principle operates in a case where the sub-stratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise been enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party would so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do.
[41] Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137.
Further, a constructive trust can be imposed irrespective of the intentions of the parties. That this is so was confirmed by Deane J as follows:-
…[T]he constructive trust can properly be described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle. [42]
[42] Muschinski v Dodds (1985) 160 CLR 583, at 614.
Those principles were confirmed and followed by the High Court in Baumgartner v Baumgartner where it was said:-
…[T]he constructive trust serves as a remedy which equity imposes regardless of actual or presumed agreement or intention “to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle”….In rejecting the notion that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair his Honour acknowledged that general notions of fairness and justice are relevant to the traditional concept of unconscionable conduct, this being a concept which underlies fundamental equitable concepts and doctrines, including the constructive trust.[43]
[43] Baumgartner v Baumgartner (1987) 164 CLR 137, at 148.
The mother contends that the whole of the value of the Town C property ought be attributed to the father. She maintains that the half-share in that property purchased by the father’s parents from his brother and sister-in-law ought also be considered to be held upon trust for the father.
It is uncontroversial that the father’s parents drew down the sum of $108,000 from the loan account and paid that amount together with $4,000 to the father’s brother. The evidence of Mr D is that those sums were paid in consideration for the transfer of a one-half interest in the Town C property to he and his wife.
Given that circumstance, I am not satisfied that there is sufficient evidence before the Court that satisfies me on the balance of probabilities that the father has any entitlement to that half‑interest in the property.
Whilst it is evident that the father has deposited the sum of approximately $100,000 into his parents’ loan account, that is the extent of his direct financial contribution to the property.
I am satisfied that it would be unconscionable for the father’s parents to rely upon the legal title of the Town C property so as to exclude the father’s interest in the Town C property in circumstances where:-
·The father has been involved in the acquisition of the Town C property from the outset, it being common ground that the contract of purchase originally drafted included the father’s name and address as a purchaser;
·The father commenced monthly payments towards the loan facility used for the purchase of the Town C property shortly after settlement of the purchase;
·The funds paid by the father into the loan account from which the purchase price was paid were on occasion described as repayments or “to [B Street] loan repay”;
·Mr D conceded that the father made those payments for 33 months until the advent of Covid-19 and the disruption to the father’s business;
·The father paid approximately $100,000 into the said loan account; and
·The father paid expenses related to the Town C property, including the air conditioning unit.
Doing the best I can, having regard to the available evidence, I am satisfied that the father, to his detriment, has made direct financial contributions to a one-half interest in the Town C property. Accordingly, I am satisfied that the father holds a 50 per cent equitable interest in the Town C property pursuant to a constructive trust. Accordingly, I will include the value of that half interest in the Town C property for the purposes of the calculation of the parties’ balance sheet.
Item 10 – Respondent’s loan from parents
The mother asserts that the father has an outstanding loan to his parents in the sum of $116,000. She asserts that that loan relates to monies drawn from the parents’ loan account for the purposes of acquiring his brother and sister-in-law’s one-half interest in the Town C property.
I am not satisfied on the balance of probabilities that the payments made by the father’s parents to his brother and sister-in-law to acquire their half interest in the Town C property were made on the father’s behalf. Other than the mother’s assertion as to those matters, there is little evidence to support that contention.
Accordingly, I am not satisfied that that amount is a liability of the parties to be included in their balance sheet.
Item 11 – ATO tax debt – $44,000
The father asserts that he has a taxation liability of $44,000. The father adduced no independent evidence as to the existence of that liability. Although referred to in his Financial Statement filed 25 September 2023 at item 49, the father produced no income tax returns or assessments to support that claim. Further, the father adduced no evidence that indicates the period to which the alleged liability relates, or when that liability is payable.
The only evidence adduced by the father as to the existence of the liability is an Account Summary statement from the Australian Taxation Office.[44] However, that document does not identify the periods to which the liability relates, nor does it indicate when the debt was payable.
[44] Father’s affidavit filed 23 October 2023, annexure MG6, p. 45.
In circumstances where the father has not produced Notices of Assessment or taxation returns in relation to the alleged liability, and where the mother contends that if the liability exists, it is not a liability that relates to the period of the parties’ relationship, I will not include that liability in the parties’ balance sheet; rather I will take it into account in the overall assessment of s 90SF factors.
The asset pool
Based on my findings, the parties’ legal and equitable interests for the purposes of the orders I am asked to make are as follows:-
Assets
Ownership
Value
B Street, Town C (50% equitable interest)
Father (half interest)
$225,000
Motor vehicle
Father
$3,500
ANZ …77
Father
$927
ANZ …53
Father
$4,000
ANZ …69
Father
$2,663
ANZ …27
Father
$539
Father’s household contents
Father
$3,500
Total
E$240,129
Section 90SM(3)
The parties cohabited for a period of approximately 17 months and had one child during the period of their relationship. Both parties seek an adjustment of property. Having regard to those matters, I am satisfied that it is just and equitable to make orders adjusting the parties’ property interests.
Contributions
The mother had no assets of significance at the commencement of cohabitation.
I am satisfied that the father’s parents hold a one half interest in the Town C property upon trust for the father, and that this interest was held on his behalf at the commencement of the parties’ relationship.
The father operated an accommodation business during the relationship.
The father has a learning disorder and it is conceded by him that the mother provided him with assistance in the administration of his business. She also assisted with cleaning the properties sub-let by him.
The mother also contends that she assisted in the development and improvement of the Town C property, sourcing materials and assisting with the clearing of land. Her evidence in relation to those contributions was not challenged during cross-examination.
Since the birth of parties’ child X, the mother has been primarily responsible for her day‑to‑day care. Since separation, the mother has been X’s primary caregiver, with only modest amounts of child support paid by the father.
Given my earlier findings in relation to the Town C property, I am satisfied that but for the assistance of the father’s parents, he would not have been able to acquire an interest in that property. Further, I am satisfied that the father’s parents have made ongoing financial contributions to that property since its acquisition, as is evidenced by the invoices for plumbing and electrical works, architectural plans and the like annexed to Mr D’s affidavit.[45] I am satisfied that significant weight ought be attributed to the father as a result of those contributions made by his parents on his behalf.
[45] Affidavit of Mr D filed 27 September 2023, annexure MD2.
In circumstances where almost the whole of the parties’ assets are directly attributable to the father’s contributions arising from his interest in the Town C property, such contributions attract significant weight.
I also have regard to the contributions made by the mother in her role as homemaker and parent, particularly those contributions made by her in the post-separation period where she has been almost solely responsible for X’s care, with at times, only nominal financial support from the father.
Taking into account those matters, I am satisfied the contributions ought be assessed in the proportion of 95 per cent to the father and 5 per cent to the mother. That is a 90 per cent adjustment in favour of the father, which based on a pool of approximately $240,000, represents approximately $216,000. That adjustment recognises the contribution of the half interest in the Town C property.
Section 90SF(3) Factors
The mother is aged 30 years. Other than sporadic income earnt from the sale of her work, she is reliant upon government benefits and child support for her financial support.
The father is aged 43 years. He operates a business and earns additional income from the sale of his work. Further, at the time of trial, he was receiving government benefits.
I am satisfied that the father’s income exceeds that which was disclosed by him in his Financial Statement and I refer to my earlier findings in relation to those matters.
The mother has the primary care of the parties’ only child, X, who is aged four years. The mother will continue to be principally responsible for X’s support at the conclusion of these proceedings.
The father pays modest child support to the mother as assessed, currently approximately $67 per week.
The mother contends that there ought be an adjustment in her favour to take into account her ongoing responsibilities for the care of the parties’ only child and the disparity in the parties’ income-earning capacities. The mother seeks a total adjustment of 12.5 per cent of which it was submitted 7.5 per cent is attributable to s 90SF factors.
Whilst the father contends that there ought be no adjustment for those matters, the final orders proposed by him that he pay to the mother the sum of $40,000 in instalments of $10,000 per annum represents an adjustment to her of approximately 17 per cent of the parties’ assets.
Taking into account the totality of the evidence, and the concession made by the father as evidenced by his proposal, I am satisfied that there should be an adjustment pursuant to s 90SF(3) in favour of the mother having regard to the fact that:-
(a)she will have the primary care of the parties’ only child with little practical or financial assistance from the father; and
(b)the father has not disclosed the extent of his income earning capacity, which I am satisfied is significantly greater than that of the mother.
Doing the best I can, having regard to the manner in which the case was presented and the proposals made, I am satisfied in all of the circumstances, that an adjustment of 10 percent for s 90SF(3) factors in favour of the mother is appropriate. Based on a pool valued at approximately $240,000 the value of that adjustment is approximately $24,000.00.
CONCLUSION
Having regard to the matters within s 90SM of the Act, I am satisfied that there should be a division of assets on the basis that the father receives 85 per cent and the mother receive 15 per cent of the pool. Based on a pool of approximately $240,000 that results in an adjustment in favour of the mother in the sum of $36,000.
In his Minute of Proposed Orders tendered at the conclusion of the final hearing (Exhibit R7), the father proposed that he pay to the mother a property settlement of $40,000 to the mother by way of instalments of $10,000 per annum.
Given my findings as to the father’s income-earning capacity, I am not persuaded that there should be any delay in the payment of the mother’s entitlements. Accordingly, I will order that the father effect payment to the mother of the sum of $36,000 within 60 days.
I am conscious that the amount the father is ordered to pay is less than the sum proposed by him. However, the father proposed that that sum be paid over a period of four years. In circumstances where he is to pay the mother her entitlements within 60 days, I am satisfied that that adjustment is just and equitable in all of the circumstances of this case.
Neither Mr D nor Ms E have been joined as a party to the proceedings. Whilst the mother sought an order for their joinder as part of her final orders sought, that is a late made application, which was not served on those proposed respondents. Given the modest pool in issue, even if all of the mother’s arguments are accepted, I am not minded to delay the finalisation of these proceedings to enable the agitation of that issue. It is a matter that ought to have been ventilated prior to the commencement of the final hearing.
The mother seeks a declaration that the father’s parents hold their legal interest in the Town C property on trust for the father. Given that they are not party to the proceedings, any declaration made with respect to the Town C property does not bind the father’s parents. Accordingly, I will make a declaration, for the purposes of these proceedings only, that the father’s parents hold a one-half interest in the Town C property on trust for the father.
The mother seeks consequential orders in the event that a declaration is made. That is, she seeks the sale of the Town C property in the event that the father does not make the payment sought by her. In circumstances where the father’s parents have not been joined to the proceedings and are not on notice as to the relief sought by the mother, that part of her application must fail.
Spousal maintenance
Although the mother sought a final order that the father pay to her periodic spousal maintenance in her Further Amended Response to Application for Final Orders filed 2 October 2023, that application was not pressed at final hearing and indeed there was no order sought as to spousal maintenance in the Minute of Proposed Order tendered on her behalf at the commencement of closing submissions (Exhibit A3). Accordingly, I will dismiss that application.
I certify that the preceding four hundred (400) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 5 June 2024
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