Ritchie & Ritchie (No 2)
[2023] FedCFamC1F 877
•19 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Ritchie & Ritchie (No 2) [2023] FedCFamC1F 877
File number(s): BRC 17822 of 2020 Judgment of: HOGAN J Date of judgment: 19 October 2023 Catchwords: FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where the mother seeks to be able to relocate the parents’ five year old child to live with her in the United Kingdom – Where the father opposes the relocation and seeks that the child live primarily live with him – where it is in the child’s best interests to continue to live with the mother – the relocation is considered to be in the child’s best interests
FAMILY LAW – PROPERTY SETTLEMENT – Where there is one child of the marriage – where the husband is 38 years of age – where the wife is 36 years of age – where the duration of the relationship was about 12 years – where the husband made significant financial contributions because his income was larger than that of the wife –where the wife made financial contributions for the first nine years of the relationship and then made the overwhelming parenting contributions – where the husband has had the sole benefit of the former matrimonial home since August 2020 – where the husband’s earning capacity is no less than three times that of the wife – where the wife has not worked for remuneration since the end of 2017 – where the wife will bear the vast majority of the responsibility for the care of the child in the future
Legislation: Family Law Act 1975 (Cth) Cases cited: AJO and GRO (2005) FLC 93-218; [2005] FamCA 195
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Baglio & Baglio [2013] FamCA 105
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
C & C [1998] FamCA 143
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Harper & Harper [2013] FamCA 528
Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
KB and TC (2005) FLC 93-224; [2005] FamCA 458
Kouper & Kouper (No 3) [2009] FamCA 1080
Kowaliw and Kowaliw (1981) FLC 91-092
Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
M&M [1998] FamCA 42
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morden & Coad [2019] FamCAFC 233
NHC v RCH (2004) FLC 93-204
Pastrikos and Pastrikos (1980) FLC 90-897; [1979] FamCA 56
Re Line and Line (1997) FLC 92-729
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
U v U (2002) 211 CLR 238; [2002] HCA 36
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Waters and Jurek (1995) FLC 92-635; [1995] FamCA 101
Watson & Ling (2013) FLC 93-527; [2013] FamCA 57
Number of paragraphs: 286 Date of hearing: 15, 16 and 17 March 2023, 21 April 2023 Place: Brisbane Counsel for the Applicant: Mr Duplock Solicitor for the Applicant: A P Hodgson & Associates Counsel for the Respondent: Mr Trost Solicitor for the Respondent: Genuine Legal Counsel for the Independent Children's Lawyer: Mr Dodd Solicitor for the Independent Children's Lawyer: Stewart Family Law ORDERS
BRC 17822 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RITCHIE
Applicant
AND: MS RITCHIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
19 OCTOBER 2023
IT IS ORDERED BY WAY OF FINAL PARENTING ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
Parental responsibility
2.The mother have sole parental responsibility for making major long-term decisions (as that expression is defined in the Family Law Act 1975 (Cth)) for the child, X born 2018 (“the child”).
3.Other than in emergency circumstances, the mother shall, prior to making a decision about any major long-term issue for the child:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father in writing of the final decision she has made with respect to that issue as soon as practicable thereafter.
4.Each parent shall be responsible for the daily care, welfare and development of the child when he is spending time with that parent.
Live with and spend time
5.The child shall live with the mother.
6.The mother is at liberty to relocate the child to live with her in the United Kingdom.
7.Until the mother relocates the child to live with her in the United Kingdom, the child shall spend time and communicate with the father as agreed between the parents in writing and failing agreement as follows:
(a)each Wednesday from daycare until Thursday before daycare; and
(b)each Saturday from 8.45 am to Sunday at 4.45 pm.
8.Upon the mother relocating the child to live with her in the United Kingdom, the child shall spend time with the father as agreed between the parents in writing and failing agreement as follows:
(a)the child shall spend time with the father in Australia for the first four weeks of the United Kingdom summer holidays (being those which occur from July to September) in even numbered years and the last four weeks in odd-numbered years and, for this purpose:
(i)in 2024 and 2025: such time shall occur as follows:
A.the child shall spend the first three (3) nights with the father and then one night with the mother; and
B.the child shall spend the next four (4) nights with the father and then one night with the mother; and
C.the child shall spend the next five (5) nights with the father and then one night with the mother; and
D.the child shall spend the next six (6) nights with the father and then one night with the mother; and
E.the child shall spend the balance of the four weeks with the father.
(ii)in 2026: such time shall occur as follows:
A.the child shall spend the first three (3) nights with the father and then one night with the mother; and
B.the child shall spend the next five (5) nights with the father and then one night with the mother; and
C.the child shall spend the next six (6) nights with the father and then one night with the mother; and
D.the child shall spend the next six (6) nights with the father and then one night with the mother; and
E.the child shall spend the balance of the four weeks with the father.
(iii)in 2027: such time shall occur as follows:
A.the child shall spend the first four (4) nights with the father and then one night with the mother; and
B.the child shall spend the next five (5) nights with the father and then one night with the mother; and
C.the child shall spend the next six (6) nights with the father and then one night with the mother; and
D.the child shall spend the next six (6) nights with the father and then one night with the mother; and
E.the child shall spend the balance of the four weeks with the father.
(iv)in 2028: such time shall occur as follows:
A.the child shall spend the first six (6) nights with the father and then one night with the mother; and
B.the child shall spend the next six (6) nights with the father and then one night with the mother; and
C.the child shall spend the next six (6) nights with the father and then one night with the mother; and
D.the child shall spend the balance of the four weeks with the father.
(b)beginning in 2029 and thereafter: the child shall spend time with the father in Australia for half of the United Kingdom summer holidays (being those which occur from July to September) each year, being the first half in even-numbered years and the last half in odd-numbered years; and
(c)beginning in 2024: for Christmas in each even-numbered year and being for the two-week period of the United Kingdom December/January gazetted school holidays; and
(d)if the child is in Brisbane at any time other than those provided for above: for three (3) consecutive nights per week; and
(e)if the father travels to United Kingdom during the United Kingdom school holidays other than the summer school holidays in July to September each year and the December/January school holidays: for four (4) consecutive nights per week for a period of three consecutive weeks; and
(f)if the father travels to the United Kingdom at a time other than during the United Kingdom school holidays and stays sufficiently proximate to the child to enable his continued participation in school and extra-curricular activities: for three (3) consecutive nights per week for a period of three consecutive weeks provided that the father ensures that the child attends school and his extra-curricular activities and provides the mother with twenty-one (21) days written notice of his intention to spend time with the child.
9.In order to give effect to:
(a)Clauses 8(a)(i) to 8(a)(iv) and 8(c) until and including 2028: the mother shall travel with the child to Australia; and
(b)Clause 8(d): the mother shall give the father no less than (21) days’ notice in writing of her intention to travel to Brisbane; and
(c)Clauses 8(e) and 8(f): the father shall give the mother no less than (21) days’ notice in writing of his intention to travel to the United Kingdom.
10.The parents shall meet equally the cost of the child’s return flights to and from City C Airport and Brisbane International Airport.
Changeovers
11.Once the mother has relocated the child to live with her in the United Kingdom:
(a)changeovers associated with the child’s time with the father in Australia shall occur at such public place as may be agreed between the parents in writing but, failing agreement, at the McDonald’s Restaurant at Suburb D; and
(b)changeovers associated with the child’s time with the father in the United Kingdom shall occur at such public place as may be agreed between the parents in writing.
Telephone Communication
12.Once the mother has relocated the child to live with her in the United Kingdom, the child shall communicate with the father by telephone and/or FaceTime (or other equivalent video means) at all such reasonable times as agreed between the parents in writing and, failing agreement:
(a)each Sunday, Tuesday and Thursday between 7.30 am and 8.30 am GMT, with the father to initiate the telephone call to the child; and
(b)on all special occasions if the child is not already spending time with the father on that day, with such occasions to include the child’s birthday, the father’s birthday, Father’s Day, Easter Sunday and Christmas Day, with such calls to occur between 7.30 am and 8.30 am GMT, with the father to initiate the communication with the child.
13.In order to give effect to Clause 12, the mother shall:
(a)ensure that the child is available to receive the communication from the father; and
(b)arrange for the child to contact the father on the following morning if, for any unforeseen circumstances, the child misses the communication from the father; and
(c)ensure that the child has privacy during the conversation.
14.At any time when the child is spending seven consecutive nights or longer in the father’s care, the child shall communicate with the mother by telephone or FaceTime (or other equivalent video means) on no less than one occasion in every seven days and, failing agreement, this shall occur each Tuesday between 4.30 pm and 5.30 pm AEST, with the mother to initiate the communication with the child.
15.In order to give effect to Clause 14, the father shall:
(a)ensure that the child is available to receive the communication from the mother; and
(b)arrange for the child to contact the mother on the following morning if, for any unforeseen circumstances, the child misses the communication from the mother; and
(c)ensure that the child has privacy during the conversation.
16.The child is at liberty to contact the parent with whom he is not then spending time at all reasonable times via telephone or FaceTime (or other equivalent video means) and the parent with whom he is then spending time shall take all reasonable steps to facilitate such communication.
Passport and Overseas Travel
17.The name of the child, X, a male, born 2018 be removed from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
18.The Australian Federal Police is requested to give effect to Clause 17 by forthwith removing the child’s name from the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
19.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father is restrained and an injunction issue restraining the father from taking any action, or causing any other person to take any action, to have the child’s name included on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia following the removal of the child’s name from the list.
20.The child’s United Kingdom and Australian passports are to be held by the mother.
21.At any time that the child’s United Kingdom and Australian passports require renewal or reissue:
(a)the parent in possession of the child’s existing passport shall forward the relevant passport application to the other parent no less than two (2) months prior to the expiration date of the existing passport; and
(b)the other parent shall sign the application and return it to the parent making the passport application within twenty-one (21) days; and
(c)the costs of such application be shared equally between the parents.
22.For the purpose of facilitating the child’s travel outside of the Commonwealth of Australia and in the event the child requires a travel visa and/or other travel related documents:
(a)the child, X born 2018, is permitted to have an Australian travel document as that term is defined in, and for the purpose of, the Australian Passports Act 2005 (Cth); and
(b)both parents shall do all things necessary (including signing all documents, deeds and instruments and providing all necessary consents) to facilitate the issue of all required travel visas and all other travel related documents for the child within seven (7) days of the parent receiving a request and documents from the other parent.
23.The mother and father are at liberty to travel outside of the United Kingdom and Commonwealth of Australia with the child during the time the child is with them pursuant to these Orders and, unless otherwise agreed between the parents in writing:
(a)save in the case of a family emergency, the travelling parent shall provide the other parent with not less than three (3) months’ notice in writing of any such intended overseas travel; and
(b)the travelling parent shall provide a copy of the return flight bookings and planned itinerary to the other parent not less than four (4) weeks prior to any such intended travel; and
(c)the travelling parent shall provide the other parent with a phone number on which the child will be contactable during the travel period.
Communication between the Parents.
24.Both parents shall keep the other informed at all times of a telephone number, including a mobile telephone number, and an email address and shall advise the other of any change to such details forthwith and, in any event, by no later than twenty-four (24) hours of a change occurring.
25.All communication between the parties about the child shall occur via the parenting application, Our Family Wizard, or by email, unless the issue is urgent and then by telephone.
26.Both parents shall keep the other informed at all times of the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other allied health professionals upon whom the child attends and shall provide such details within forty-eight (48) hours of the child’s first appointment with the same.
27.Both parents shall inform the other of any serious medical condition or significant health issue or illness suffered by the child as soon as reasonably practicable and:
(a)in any event: within twenty-four (24) hours of the child being diagnosed with the same; and
(b)if the child attends hospital for any illness or injury: within two (2) hours of the child’s attendance at hospital.
28.Both parents shall inform the other of any specialist medical, optical, dental or health appointments (including counselling, psychiatric or any other therapeutic appointments) made in advance for the child within a reasonable period of notice and, in any event, at least three (3) days prior to such appointments and each parent is at liberty to attend such appointments.
29.By this Order, any treating medical practitioner or allied health professional is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.
30.The mother shall keep the father informed of the details of any school, educational facility or extra-curricular activity provider at which the child attends.
31.By this Order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child, including any school reports, photographs, certificates obtained by the child and any newsletters, notices or other correspondence, documents or information relating to the child.
32.If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or school, educational facility, or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
33.During the time the child is spending time with a parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)speak of the other parent respectfully in the presence, or hearing, of the child; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and shall use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d)not discuss adult issues with the child, including but not limited to these court proceedings; and
(e)refrain from involving the child in any parental conflict.
Dispute Resolution
34.The process to be used for resolving disputes about the care arrangements for the child, or the terms or operation of this Order, shall be as follows:
(a)the parents shall consult with a Family Dispute Resolution Practitioner to assist in resolving any dispute or reaching agreement about changes to be made; and
(b)the parents shall equally share the cost of the Family Dispute Resolution Practitioner; and
(c)in the event the parents cannot agree on a Family Dispute Resolution Practitioner, the mother shall nominate these Practitioners within seven (7) days of their inability to agree and advise the father in writing the details as to each Practitioner’s fees, experience and availability; and
(d)the father shall choose one of the listed Practitioners within seven (7) days of receipt of the list; and
(e)if the father fails to choose a Practitioner within seven (7) days, then the mother may choose; and
(f)both parents are to attend upon the nominated Family Dispute Resolution Practitioner (whether in-person or via other means) and endeavour to reach agreement in respect of the matters in dispute.
IT IS FURTHER ORDERED, BY WAY OF FINAL ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH), THAT:
35.Within forty-five (45) days of the date of these orders, the father pay the mother the sum of $552,907 by payment into the trust account of the mother’s solicitors, Genuine Legal.
36.Save for the purpose of using the Suburb F property as collateral for any borrowings needed to pay the mother the amount of $552,907, the father is restrained and an injunction issue restraining him, his servants or agents, from dealing with or further encumbering the real property located at E Street, Suburb F in the State of Queensland, more particularly known as Lot … on RP … Title Reference … ("the Suburb F property").
37.In the event the father fails, omits or neglects to comply with Order 35 above, then the Suburb F property shall be offered for sale by private treaty and, for the purpose of this Order:
(a)the Suburb F property shall be listed for sale by private treaty within 14 days, with such listing to be with a real estate agent agreed between the parties within seven (7) days or, failing agreement, as appointed by the President of the Real Estate Institute of Queensland; and
(b)the listing price will be as agreed between the parties or, in the absence of agreement reached within the time prescribed for the listing for sale of the Suburb F property, such price as nominated by a valuer jointly engaged by the parties or, in the event of a disagreement about the valuer, as nominated by the president of the Queensland division of the Australian Institute of Valuers and Land Administrators (Inc); and
(a)each party shall co-operate in every way with the selling agent including by:
(i)allowing inspection of the property at all reasonable times requested by the agent; and
(ii)ensuring that the property is in a neat and clean condition at the time of any inspection undertaken by the agent and prospective purchasers; and
(iii)assigning all documents that the agent may request which relate to the listing for sale of the property, other than a contract or agreement for sale which has not been authorised by the parties respective solicitors.
(b)the parents shall jointly instruct a solicitor as agreed to have the conduct of the sale of the Suburb F property and, in the event that they are unable to agree about the solicitor to be appointed then the solicitor shall be as nominated by the President for the time being of the Law Society of Queensland; and
(c)the father shall execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed between the parties or, failing agreement as to price, at any price at or above the price nominated by the valuer appointed pursuant to Order 37(b); and
(d)neither party may confer on any agent, without the consent of the other party, any right to any sole or exclusive agency in respect of the Suburb F property or to any commission payable in respect of the sale of the same; and
(e)in the event the Suburb F property is not sold by private treaty within forty-five (45) days, or such other time frame as agreed between the parties in writing:
(i)the parties shall list the Suburb F property for sale by public auction with the agent appointed pursuant to Order 37(a) of these Orders; and
(ii)the reserve price for the purpose of such auction shall be such as the parties agree upon within fourteen (14) days after the date upon which the Suburb F property is first listed for sale in accordance with Order 37(a) of these Orders or in the absence of agreement a price determined by the valuer appointed pursuant to Order 37(b) of these Orders; and
(iii)in the event the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb F property at a price which is not more than 5% below the reserve price; and
(f)if the Suburb F property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the Suburb F property for sale by public auction again, on a date nominated by the said agent.
38.On settlement of the sale of the Suburb F property, the proceeds of sale be paid in the following manner and priority:
(a)all costs and expenses of sale including legal costs and disbursements, agents commission, valuer’s fees, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties); and
(b)the amounts required to discharge the mortgage(s) registered number … in favour of G Bank; and
(c)the amounts required to pay all municipal and water rates outstanding with respect to the Suburb F property; and
(d)the balance then remaining be paid to the parties as follows:
(i)such amount to the mother as is necessary to see her receive 62.5% of the total value of the property of the parents as set out in the Schedule to this Order, taking into consideration the value of the property she will receive as consequence of Order 39 and 42; and then
(ii)the balance to be paid to the father.
39.Unless otherwise specified in these orders and save for the purpose of enforcing the payment of any monies due under them or any subsequent orders:
(a)each party is entitled, to the exclusion of the other, to be the sole legal and beneficial owner of all property (including any choses-in-action) in that party’s possession or under that party’s control, including but not limited to:
(i)any interest held by that party in any real property; and
(ii)any funds standing to the credit of that party in any bank account; and
(iii)any furniture, furnishings and personal effects of whatsoever nature in that party’s possession; and
(iv)any entitlement to superannuation.
(b)each party is solely liable for and shall indemnify the other in relation to any liability encumbering any item of property to which that party is entitled pursuant to this Order.
40.The father shall ensure that the Suburb F property remains insured and shall pay all insurance premiums, water charges and municipal rates as and when they fall due.
41.Pursuant to section 90XT(4) of the Family Law Act 1975 (Cth), a base amount of $100,000 is allocated to the mother out of the father’s interest in the Superannuation Fund 1.
42.In accordance with section 90XT(l)(a) of the Family Law Act 1975 (Cth) whenever a splitable payment becomes payable from the father’s interest in the Superannuation Fund 1, the Trustee, for the Superannuation Fund 1 shall pay the mother an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of $100,000 in favour of the mother and that there be a corresponding reduction in the entitlement that the father would have had in the Superannuation Fund 1 but for these Orders.
43.The operative time of this Order is the fourth business day after the day on which the order is served on the Trustee.
IT IS FURTHER ORDERED THAT
44.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made today and the Reasons for Judgment published in support of the same to the school at which the child attends, to any therapist upon whom the parents and/or the child attends for the purpose of therapy, to the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police
45.Save as is otherwise ordered herein, no party is permitted to use any document provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
46.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
47.In the event that any party seeks an order that another party pay the costs of and incidental to the Further Amended Initiating Application filed 9 December 2022:
(a)any such party shall, within fourteen (14) days of today, file and serve written submissions in support of such application for costs; and
(b)the party against whom an order for costs is sought shall, within a further seven (7) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking an order for costs; and
(c)the party seeking an order for costs shall, within seven (7) days of being served with the submissions relied on by the party against whom an order for costs is sought, file and serve any further written submissions, strictly in reply, to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
48.All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
49.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
SCHEDULE
For the purposes of this Order:
1.The total value of the property of the parents is the net sale proceeds from the Suburb F property (being the sale price less the amounts referred to in Orders 38(a), 38(b) and 38(c)) + $225,540 (being the value of the property of the father as set out below) + $168,148 (being the value of the property of the mother as set out below).
2.The property of the father is:
(a)Assets
(i)Motor Vehicle 1 – $17,250; and
(ii)Motor Vehicle 2 – $4,950; and
(iii)H Bank Account (ending …22) – $0; and
(iv)G Bank Account (ending …05) – $1,000; and
(v)J Bank Account (ending …93) – $220; and
(vi)CBA Account – $200; and
(vii)Household contents – $3,280.
(b)Superannuation
(i)Superannuation Fund 1 (consequent to the super-splitting order) – $174,613
(c)Liabilities
(i)G Bank Home Loan – $69,119
(d)Notional add-backs
(i)Gifted money from paternal grandparents – $50,000; and
(ii)Additional mortgage drawdown and proceeds from sale of shares – $43,146
3.The property of the mother is:
(a)Assets
(i)G Bank Account (ending …04) – $4,738; and
(ii)K Bank Account (ending …60) – $1,890; and
(iii)Household contents – not known; and
(iv)Wedding and engagement rings – $4,200.
(b)Superannuation
(i)Superannuation Fund 1 – $47,320; and
(ii)Superannuation Fund 2 (consequent to the super-splitting order) – $100,000.
(c)Notional Add-backs
(i)Withdrawal from superannuation for expert report – $10,000
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Ritchie & Ritchie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders which are in the best interests of five-year-old X, who was born on 2018, and those orders which are just, equitable and appropriate, in all the circumstances, with respect to the property of X’s parents.
A BRIEF OVERVIEW
The mother was born and grew up in Region M, United Kingdom. She has not worked outside the home for remuneration since December 2017 and lives with X in rented premises at an address she has decided not to provide to the father. Her parents (X’s maternal grandparents) remain living in the same town in which she grew up; her siblings and their families, together with members of the extended maternal family and longstanding friends, continue to live in or around that town.
The father was born in Town L and grew up in various locations in Australia. He is employed on a fulltime basis as a professional and continues to live in the former matrimonial home in Suburb F (the Suburb F property); members of his family, including X’s paternal grandmother, live on or around Region N.
X’s parents met in City O in 2008. Having commenced a relationship, they lived together in the United Kingdom until late 2009, when they moved to live in Australia. In 2012, they bought the Suburb F property; they married in this country in 2013 and, in 2014, the mother was granted Australian citizenship.
After the mother suffered two miscarriages, the parents returned to live in the United Kingdom in 2017, with the intention that they would live there for at least five years. It was acknowledged that at least part of the reason for their return to the United Kingdom was so that the mother could be closer to members of her family and be supported by them.
X was born in the United Kingdom 2018.
In March 2019, X’s parents separated – the father returned to Australia; X and the mother remained in the United Kingdom.
The mother and X travelled to Australia between early 2019 and mid-2019 for a holiday; they stayed with the father – the parents considered whether to reconcile their relationship.
In mid-2019, the mother and X returned to the United Kingdom.
Later in 2019, the mother and X returned to Australia and resumed living with the father. In late 2019, the parents participated in marriage counselling.
In 2020, the mother removed X from Australia without notice to the father; she and X travelled to the United Kingdom and, at least initially, lived with X’s maternal grandparents before obtaining their own accommodation in or close to the village where they live.
In September 2020, the father applied to the relevant State authority, seeking it commence proceedings in the United Kingdom for an order returning X to Australia. In November 2020, a return order was made by the relevant United Kingdom court. The mother and X returned to Australia in late 2020. After spending the required time in quarantine, they moved to live in Brisbane and X resumed spending time with the father, albeit that this was initially on a supervised basis.
After interim parenting orders were made by consent on 16 August 2021, X spent unsupervised time with the father:
(a)for four weeks: from 9.00 am until 5.00 pm each Saturday; and then,
(b)for four weeks: from 9.00 am Saturday until 12.00 pm Sunday; and then,
(c)from 9.00 am Saturday until 5.00 pm Sunday each week.
After further interim parenting orders were made on 31 March 2022[1], X started to spend from Wednesday afternoon until Thursday morning each week in his father’s care.
[1] Amended 9 May 2022.
Consequently, since 31 March 2022, X has spent time with the father from Saturday morning until Sunday afternoon each week and from Wednesday afternoon until Thursday morning each week as well as on celebratory occasions. Despite the mother having repeatedly offered to have changeovers occur in a public place such as a McDonald’s Restaurant relatively close to where she and X live, the father has continued to insist that the same continue to occur at a Contact Centre.
The competing parenting proposals
The father[2]
[2] As particularised in the Further Amended Initiating Application filed 9 December 2022.
The father proposed that, irrespective of where the mother lives, X should live primarily with him and that he should be accorded sole parental responsibility for the major long-term issues relating to him.
His proposal for X’s time with the mother depended on where she chooses to live. By way of broad overview, the father proposed that, if the mother remained living in Australia, X should spend time with her from Wednesday 3.00 pm until Thursday 9.00 am (in week 1) and from Friday 3.00 pm until Monday 9.00 am (in week 2) – that is, for four nights every fortnight – and, once he started to attend primary school, for half of the school holidays. He also proposed that: X spend time with each parent on celebratory days; there be liberal telephone, Skype and/or video communication, at reasonable times with reasonable frequency, between X and the parent with whom he was not then living; changeover occur at X’s school and, on non‑school days, at McDonald's Suburb F; once X was eight years of age (that is, from 2026 onwards), each parent be at liberty to travel overseas with him for no more than 14 days each year. The father also proposed a variety of other orders to regulate parental interactions and to oblige each of them to keep the other informed of their current living arrangements and contact details.
By way of broad overview, the father proposed that, if the mother chose to return to live in the United Kingdom, X should spend time with her for all of the school holidays at the end of Terms 1 and 3 and for half of the school holidays at the end of Terms 2 and 4. He also proposed that X have telephone, Skype and/or video communication at reasonable times and frequency with the mother and, from when X was eight years old, she should be permitted to travel outside of Australia with him for no more than 28 days each year.
The mother[3]
[3] As particularised in the Amended Response to Initiating Application filed 3 November 2022.
The mother’s primary position was that orders should be made for X to live with her and to enable her to relocate him to live with her in the United Kingdom; she proposed that she be accorded sole parental responsibility for the major long-term issues relating to him. If she was permitted to take X to live in the United Kingdom, she proposed that he communicate with the father by telephone at all reasonable times agreed between the parents but, failing agreement, between 7:30 am and 8:00 am on Wednesday and between 8:30 am and 9:00 am on Saturday and that X spend time with the father as follows:
(a)until he is 12 years of age (when he can travel as an unaccompanied minor): for four weeks during the United Kingdom summer school holidays, with such time to occur in Australia and, each alternate year, for two weeks during the end of year school holidays; and
(b)once he is 12 years old (that is, from 2030 onwards): for half of the United Kingdom school holidays and, each alternate year, for two weeks during the end of year school holidays.
The mother also proposed that, from when X is 12 years of age, the father be permitted to spend time with him for up to nine nights, separated into blocks of no more than three consecutive nights, during a 21 day period (with no more than three consecutive nights in every seven day period) if he travelled to the United Kingdom or if she and X travelled to Queensland, on the provision that each parent provide the other with at least 21 days’ notice of the dates for such time.
The mother’s position was that, if the Court determined that it was not in X’s best interests to return to the United Kingdom to live with her, she would remain living with him in Australia. In such a scenario, she proposed that X live primarily with her and spend time and communicate with the father as follows:
(a)until he started school: from the conclusion of daycare/3:00 pm on Wednesday until the commencement of daycare/9.00 am on Thursday each week and from 9.00 am Saturday until 5.00 pm Sunday each weekend; and
(b)once he started school in 2024: on a gradually increasing basis until the time occurs each alternate weekend, from the conclusion of school on Friday until the commencement of school Monday; and
(i)for half of the school holidays periods at the end of Terms 1, 2 and 3; and
(ii)for the first four weeks of the Term 4 school holiday period and, in alternating years, for the remainder of the Term 4 school holiday period; and
(c)on celebratory occasions as particularised; and
(d)by telephone communication at all reasonable times, but at least each Wednesday.
The mother also proposed that each parent be at liberty to travel outside of Australia with X during any time he is in their care and that, in order to facilitate this, his name be removed from the Watchlist; she proposed that she retain possession of X’s passports and that the parental communication occur using the Our Family Wizard app or by email unless the same was urgent; she sought to be able to change X’s name.[4]
The Independent Children's Lawyer[5]
[4] As particularised in the Amended Response to Initiating Application filed 3 November 2022.
[5]As particularised in the “proposed orders sought by the Independent Children's Lawyer” provided by Counsel for the Independent Children's Lawyer on 21 April 2023.
The Independent Children's Lawyer proposed that the orders that are in X’s best interests are orders which would accord the mother sole parental responsibility for the major long-term issues relating to him, that he live with the mother and that she be at liberty to relocate him to live with her in the United Kingdom. The Independent Children's Lawyer proposed that X communicate with the father at least each Sunday, Tuesday and Thursday and that he spends time with the father in Australia during the United Kingdom summer school holidays each year, during the end of year school holidays in each even-numbered year and at any time he may otherwise be in Australia. It was also proposed that X spend time with the father in the United Kingdom if the father travelled there.
APPLICABLE PRINCIPLES
The statutory framework does not deal differently or specifically with cases involving the proposed relocation of a child. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[6] and, subject to s 61DA, s 65DAB[7] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[8]
[6] Family Law Act 1975 (Cth) s 60B.
[7] Parenting plans.
[8] Family Law Act 1975 (Cth) s 65D.
In deciding whether to make a parenting order, I must regard X’s best interests as the paramount consideration.[9] Such interests should not be viewed in the abstract or separate from the circumstances of his parents[10] and the statutory exhortation to regard his best interests as the paramount consideration does not mean that the legitimate desires and interests of his parents are to be completely ignored – rather, where legitimate parental interests conflict with X’s best interests, the former must give way.[11]
[9] Family Law Act 1975 (Cth) ss 60CA and 65AA.
[10]See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.
[11] Ibid.
In determining the issue of a child’s relocation, a parent’s right to freedom of movement is just one of the factors to be weighed; this and all of the other relevant factors must be taken into account in deciding what parenting orders are in X’s best interests[12] such that the determination of those parenting orders which are in X’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal. Whilst any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live, that right must defer to the expressed paramount consideration – the welfare of a child – if the same was to be adversely affected by a movement of a parent.[13]
[12] KB and TC (2005) FLC 93-224 at [72].
[13]See, for example: U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed.
The matters to be considered in determining those parenting orders which are in X’s best interests are those prescribed by s 60CC of the Act. However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[14] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in his best interests. Rather, I have considered all relevant considerations in arriving at my conclusion about those orders which are in X’s best interests.
[14]See: Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
Similarly, it is unnecessary to refer specifically to the evidence of each of the witnesses called in each of the parents’ cases: I have had regard to the same in arriving at those findings which must necessarily be made, in the context of the parenting orders proposed by each of the parents, in determining those parenting orders which are now in X’s best interests.
Insofar as the credit of the various witnesses is concerned, I make the following comments.
I consider that the father was, on occasion, less than truthful. For example, his evidence included that the only occasion on which X had been upset when coming into his care was on 8 June 2022, when the mother brought him to the changeover in a tired and distressed state; he said that after X came into his care, he immediately fell asleep on the trip home, remained asleep the entire night and was back to his happy, playful self the next morning.[15] He also said that the mother struggled with X and claimed he hit, pinched and threw things at her; he said that X did not have meltdowns in his care[16] and, in essence, the mother's allegation was unfounded and could as easily be attributed to her parenting style.[17] He said that X did not regularly show signs of aggression towards him and that the incident in November 2022 where he started to hit him occurred after he had taken X to the doctor in November 2022 at which time the child said that the mother had hurt him: the father believed that X lashed out in frustration because, when he had collected him from daycare in late 2022, the workers said he had had 12 incidents of hurting other children that day. He also said that X did not have any anxiety issues or display any extreme behaviour whilst in his care.[18]
[15] Affidavit of the father filed 9 December 2022, paragraph 60.
[16] Father’s affidavit filed 23 December 2022 at paragraph 30.
[17] Father’s affidavit filed 23 December 2022 at paragraph 28.
[18] Father’s affidavit filed 23 December 2022 at paragraph 24.
When cross-examined by Counsel for the mother, the father’s evidence included that “[X] while in my care hasn’t exhibited any major problems, like we have a good time. We’re always doing activities. We have a – a very loving relationship between the two of us. He always comes to me. You know, save for that one thing where he was over-tired and irritable, every changeover he has been quite happy to run and jump into my arms.”[19]
[19] Transcript 15 March 2023, p.62, line 44 to p.63, line 2.
I consider that the father intended to convey that, unlike the situation described by the mother in her evidence, X was never dysregulated whilst under his care. However, such contention was clearly dispelled by the evidence given by the father’s friend, Mr Q, when he was cross‑examined by Counsel for the Independent Children's Lawyer. Mr Q’s evidence included that, during a visit to a theme park with X and the father, X had awoken in his father’s arms, was very grumpy and started to lash out for about 20 minutes – he said X had started screaming and hitting the father and that, whilst the father had tried to console him and feed him, his behaviour worsened and he started to lash out again. Mr Q said that X had hit the father everywhere he could (for example, on his, upper body, legs and head) and that when they tried to get him to hit a bag or towel, he did not want to do that and wanted to hit the father. Mr Q said that, after he held X’s hand, the child calmed down, but every time his father tried to calm him down, he became angrier.
I also note that whilst the father said, during his cross-examination, that he repaid $50,000 to his grandparents from the loan secured by mortgage over the Suburb F property, it was clear from Exhibits 6 to 8 that this was not the case; he then said that he thought that there were three draws on the loan account and that of these, one was returned to that account and the other two were paid to his grandmother – however, he also then accepted that, in the documents he had provided to the court, only one payment of $25,000 from the loan account was shown to have been paid to his grandmother. It seemed to me that he ultimately accepted the suggestion that one of the amounts of $25,000 in January 2021 withdrawn from the G Bank loan account was returned to that account after being transferred into his H Bank account. He also then said that he did not know whether the second payment of $25,000 was sourced from the loan account as it was “two and a half years ago” and that he was not sure whether he had paid his grandmother first and then drawn down on the loan account to reimburse himself. His evidence about the source of funds used to repay his grandparents was less than illuminating or satisfactory.
A further matter which has caused me to approach the father’s evidence with some circumspection is the difference between his evidence about X’s comments to the doctor in November 2022 and the contents of the notes of that consultation. In particular, the father said that, when he took X to the doctor in November 2022, X told the doctor the same thing in the same way that he had told the father the night before – namely, that “mummy hurts me when she is angry with me” – and so he (the father) could only assume that X was telling the truth. However, there is nothing in the notes of the consultation[20] to suggest that X told the doctor what the father said he did – rather, it appeared to me that the father told the doctor, amongst other things, that X had said “mum hurt him” and that, when the doctor asked X, he (X) said something to do with “couch” but otherwise did not specify how the incident occurred.
[20] Exhibit 14.
Whilst the father maintained that X had said more to the doctor than the doctor recorded in the notes, I think it highly unlikely that the doctor would have failed to take a careful and accurate note of any comment made directly by X – especially given that the “reason for visit” was said to be “alleged non-accidental injury” and that the doctor was clearly alert to the responsibility of being a mandatory reporter.
Where the evidence given by the mother, the maternal grandmother and the maternal uncle diverge from that given by the father, I generally prefer the evidence given by the witnesses in the mother’s case for reasons expressed through-out these Reasons.
Insofar as the paternal grandmother is concerned, before she corrected what she described as a mistake in one little part of her affidavit, her evidence included the assertion that the mother would not let anyone hold X after he was born; however, in correcting her evidence she said that what she had said that paragraph 19 of her affidavit should be seen as referring only to very soon after X’s birth and not after that. When cross-examined about this change to her evidence, the paternal grandmother accepted that the mother’s evidence in reply to her contention included a photograph of X in her arms whilst he was very much a new-born baby and they were at the hospital. Given this, it seems highly likely to me that, once confronted with photographic proof that her assertion was untrue, the paternal grandmother moved to remedy her error.
It is, I think, appropriate that I record that I do not intend to place any weight on Ms P’s comments, opinion or view about the causes of X’s comments. Should I accept other aspects of her evidence, that will be apparent from the Reasons which follow.
The father: his contentions; his involvement in X’s life; his capacity to meet X’s emotional, intellectual and other needs; his attitude to X and to the mother and to the responsibilities of parenthood
By way of broad summary, the father advanced that it was in X’s best interests to move to live primarily with him because: he has completed a number of parenting courses; he was previously involved in X’s care prior to the parental separation on those occasions when the mother permitted this to occur; he has a close bond with X and involves him in activities; he is the parent responsible for instigating X’s attendance at daycare which has had positive consequences for him; the mother has a history of withholding X from spending time with him without offering make up time; the mother has a documented history of international child abduction; the mother harmed X in November 2022; the mother has not previously promoted X’s relationship with him; the mother’s conduct demonstrates that she does not value X having a meaningful relationship with him; the mother has made false allegations of family violence against him; the mother has, in the past, exaggerated her concerns about X’s behaviours and regards them to be problematic when they are “normal”; the behaviours the mother has reported X to have exhibited in her care have happened only when he is in her care and, consequently, reflect her incapacity to parent him appropriately and have been caused by her inability to parent X appropriately; he is the parent better able to deal with X’s behaviours and is also the parent better able to reach agreement with the mother about parenting issues such that, in the future, he is the parent who is less likely to require court intervention to resolve such issues.
Despite the Reasons for Judgment delivered by the High Court of Justice in November 2020 in support of the order to return X to Australia noting that the father’s case then was that there was no evidence to show that X was at risk in the mother’s care, that nothing suggested X had been harmed by her mental health issues (being her anxiety and depression)[21], and that he had described the mother as a “good and loving mother”[22], the father’s evidence made it overwhelmingly clear that he regards her as an untruthful, deficient and incapable person and parent – his evidence included that: she projected her own deficiencies onto X and then blamed him for her failure to parent him responsibly;[23] she appeared unable to handle any kind of outburst from X and, instead of adjusting her parenting style, her first impulse was to seek that X attend upon a child psychologist;[24] the issues she had with X were really the result of her parenting and nothing else; her claims of suffering financial hardship following her return with X to Australia in late 2020 were refuted by the photos she sent him of X with new toys she had bought him (despite her assertion that she had no funds) and by the fact that she was not living on the street, had no liabilities and had chosen not to work in paid employment; he would be greatly concerned about X’s education and wellbeing if he continued to live with her; he thought X was eating unhealthy food for the majority of his time with the mother because she sent him photos of X constantly eating foods like ice-cream and chocolate; he was concerned about the mother controlling X and felt that maybe the reason their son was having issues in her care was because, as he tried to become his own person (at five years of age), the mother was still trying to treat him like a baby.
[21] Exhibit 2 at [24].
[22] Exhibit 2 at [31].
[23] Father’s affidavit sealed 23 December 2022 at paragraph 33.
[24] Father’s affidavit sealed 23 December 2022 at paragraph 35.
In addition, and by way of further broad summary, the father opposed the mother’s application to be able to relocate X to live with her in the United Kingdom because: given that, during previous video communications he had with X when X was in the United Kingdom, the mother regularly left the room deliberately to give X a negative experience when communicating with him, she would not support X’s continued relationship with him; he does not have any confidence that, once living with X in the United Kingdom, the mother will follow the orders which provide for X to spend time with him in either the United Kingdom or Australia; X has only known Brisbane as his home and has primarily lived in Australia; the mother is unlikely to positively support X in maintaining a relationship with him if she is permitted to relocate X to live with her in the United Kingdom; relocating to live in the United Kingdom would result in X having less frequent and regular interaction with him, members of the extended paternal family and friends; the distance and time difference between the United Kingdom and Australia will make communication a problem, particularly given that previous video calls have been problematic (either because the mother has interrupted or distracted X or there have been issues with the Internet); the mother has friends in Australia from whom she can obtain whatever support she seeks and would be capable of obtaining employment in this country; he cannot return to live in the United Kingdom because of a combination of his current employment, his ties to his family (who live in Australia) and that he will be unable to work in the United Kingdom.
An aspect of the father's evidence when cross-examined about the mother’s account of his reaction when she and X woke him on the morning of his birthday in 2019 to give him a birthday cake provides what I regard as a clear demonstration of his general attitude toward the mother – when it was suggested to him that the mother had brought him a birthday cake, his response that it was a “cupcake” seemed to me to seek to diminish her actions. Noting that the father's evidence included that, at the time, he had been extremely tired and was annoyed and upset that the mother had disturbed him as he had had little sleep the night before, I think it much more likely than not that he acted as the mother said he did on that occasion.
I also accept the account given in the mother's case of the father’s conduct when the mother and her brother later attended at the jointly rented premises to collect some belongings. I accept that the father barricaded the door to prevent the mother entering the premises. I reject the father’s evidence that he barricaded the door because he was fearful for his safety given that, seven years earlier, the maternal grandfather broke the car window in 2012 to prevent him leaving the property on that occasion. After all, the father had not been so fearful of the maternal grandfather as to prevent him from demanding then that he pay to fix the car window.
Mr R, the mother’s brother, gave evidence in her case. I prefer his evidence to that given by the father where the two conflict. I accept that he accompanied the mother to the home to assist her to collect some belongings and that after she used her key to unlock the door, he moved the chair that had been placed to prevent entry; I accept his account that the father was very angry when he realised they were in the house and that he accused them of breaking in; I accept that he became angrier and more aggressive as they tried to explain their intentions and that he shouted at them to leave, which they did. I accept Mr R’s evidence that, as he left, he kicked the father’s car; I also join with him in expressing that his conduct in that respect was inappropriate.
I accept the mother's evidence about the father's comment when she declined his request to return X to his care; I accept he said, “this is war”. I also accept that he accessed her email account, noting that the father agreed he had remotely “wiped” the mother's mobile phone and deleted the information stored on that device. Whilst he denied it, I accept the mother’s evidence to the effect that the father later admitted to her that he had done this and that he described it as being funny. I also note that, when cross-examined about this incident, the father did not accept that deleting the information stored on the mother’s phone was a massive invasion of her personal property: his evidence included that it would have been a minor inconvenience to her given that the information would have been stored in the cloud and, as I appreciated it, easily recovered. I am not remotely persuaded that the mother would have seen it that way at the time and there is, I think, much in the suggestion that, by remotely deleting the contents of the mother’s mobile phone, the father was showing her the extent of his control. I also note that the father’s evidence about this issue included that it had not been his intention to show the mother that he had the control and ability to wipe her mobile phone and that if she had taken it that way then it was really on her.
I think it much more likely than not that, when the father left the United Kingdom in 2019, he did so on the basis that he did not intend to return to that country. Given the father's attitude to the importance of conserving money, I think it is highly unlikely he would have purchased a one-way ticket to Australia if he intended to return to the United Kingdom; I do not accept his evidence that he purchased such a ticket because he did not know how long he intended to remain in Australia. I do not accept his assertion that he left the United Kingdom despite not wanting to but because he could not see X; I do not accept his evidence that he could not then return to the United Kingdom because, when he landed in Australia, the mother advised him that he no longer had a job or accommodation. Similarly, I reject his evidence to the effect that his employer had misunderstood his absence in concluding that he had quit his job.
I accept the mother’s evidence to the effect that, in March 2019, the father accessed her bank account online and transferred the funds held there to an account under his control. Whilst the father first said, when asked about this incident, that he could not recall whether he had done that or not (because a lot was happening), he subsequently said that he did not transfer the entirety of the funds but just took the money that had been earmarked for a property purchase in the United Kingdom; he also seemed to me to attempt to justify his withdrawal of the funds from the mother's bank account on the basis that, whilst she did not have a job, she was being supported by her family. His evidence was also that, when he transferred funds from the mother's bank account to an account under his control, the mortgage over the Suburb F property was not in arrears – that is, there did not seem to me to be any urgent need for the father to remove the mother’s ability to financially support herself at that time, as I accept he essentially did. I think it much more likely than not that the father acted as he did at this time because he simply decided that it was better for him for the funds held in the mother's bank account to be under his control in Australia.
Further, given the father's conduct in wiping the mother's mobile phone, the suggestion that he removed funds from her bank account by way of “payback” because she had taken X with her to the maternal grandparent’s home is not fanciful or far-fetched.
I accept Ms S’s account of the father’s telephone conversation with her in April 2019 during which I accept he made comments to the effect that he was cutting all ties with the mother and X, that they were now her and her husband’s responsibility and that he would no longer provide for them. As noted elsewhere in these Reasons, I accept that the father did not provide any financial support for either the mother or X between early 2019 and about mid- 2019 when they travelled back to Australia and stayed with him.
The father’s evidence included that he “managed” the parents’ finances during their relationship. He also accepted, as the mother asserted, that after X was born, she was restricted to a weekly allowance of £25. His evidence that this amount was as much as he could give the mother certainly seems to me to suggest that he exercised determinative control over the household expenditure. Such conclusion is buttressed by the father’s further evidence to the effect that he later required the mother to contribute $4 or $5 toward the cost of X’s sports lessons from the $115 per week that he then allocated to her, despite his evidence including that, whilst the mother received an allowance, the costs of petrol, classes, “anything for [X]” and food was covered by him and the allowance was for the mother’s personal use.[25]
[25] Father’s affidavit filed 23 December 2022 at paragraph 124.
I generally accept the mother's evidence about the promises the father made to her before she returned to Australia with X in 2019. I accept that these promises included that she would have more financial freedom and that she would be able to raise X as she saw fit. I accept that, after the mother and X returned to live in Australia in 2019, the father again provided the mother with a weekly “allowance” – this time in the amount of $115 per week. I accept the mother’s evidence about how she was required to use these funds.
I also accept, as the father did when asked about this during his cross-examination, that when he decided to give the mother an allowance of $115 per week, there were more funds than that available to the parents after the payment of mortgage repayments (and, I infer, other necessary expenses). I think it much more likely than not that the father simply decided to prioritise saving ahead of spending. I also note that the father’s evidence included that he also used some of these surplus funds to acquire shares (clearly during the parental cohabitation) which he no longer owned and which he had sold (clearly after the August 2020 separation) to pay for things like: the Family Reports; the cost of the flights on which X and the mother returned to Australia from the United Kingdom after the return order was made in November 2020; the costs of the mandatory quarantine into which X and the mother went upon their return to Australia in late 2020 (which he said was about $2,500); the cost of a contribution to Legal Aid Queensland (which he said was about $3,000) and the costs associated with the use of Contact Centres (which he said was around $20,000).
Whilst I accept the father’s evidence that he used the funds he obtained from the post-separation sale of shares acquired prior to separation to meet these costs and that he did not offer to provide the mother with any of these funds, I reject his contention that he acted as he had because he would not otherwise have been able to afford to pay child support for X. I think it much more likely than not that the father simply decided that he would use the equity in the Suburb F property and sell assets to meet these costs rather than pay them from his post-separation income.
I also note that the father accepted, when cross-examined, that (as the mother alleged) he had told her during their cohabitation that, if she wanted to obtain her own health insurance, she could pay for it using the $115 per week allowance and that he would pay any out-of-pocket expenses associated with her required dental work if she did that.
On balance, I am persuaded that the mother's use of the word “control” to describe the father’s management of the household finances (including her earnings) accurately describes what happened during their cohabitation. I also accept the mother's evidence that, in essence, the father regularly asked her to explain her expenditure, chastised or berated her if he did not agree with her spending choices and forced her to return items that he did not agree she should have bought.
I accept that when X spent his first overnight with the father on 25 September 2021 he tripped and cut himself to the extent that his wound required gluing. However, the father only told her he had tripped and that it was a tiny cut.
Given that the father emailed the mother’s solicitors on 13 October 2021 in terms which included the following:
“[X] is my number 1 priority and will always be, nothing is going to change that, I am a loving and caring father who works very hard, I regretfully say that your client is not the same, who refuses to work and not be a contributing member of society, and who repeatedly uses our child “[X]” as a weapon for her abuse towards me, as she has done so since he was born.”
I accept the mother's evidence that, after she and X returned to live with the father in Australia in 2019, he often called her lazy, untidy and unmotivated.
Further examples of the father’s attitude to the mother can, I think, be seen in the following aspects of his evidence. He said, in effect, that as the mother chose to live far away from the Contact Centre despite knowing where it was, she was responsible for the amount of public transport she and X had to take in order to travel to and from the Contact Centre for changeovers. Such a position seems to me to ignore completely the fact that, unlike him, the mother did not have the security of living in a home that she owned. He also said that she constantly used financial circumstances as a way of deflecting from her own failings in supporting X – he said that she had no liabilities, was not living on the street, chose not to work and had spent money on unnecessary items. The father also said that he would have liked to have had an equal time parenting regime for X but because the mother was unable to parent him, hurt him and blocked ordinary parenting decisions, it was not in X’s best interests for this to occur.
It was, I think, clear that the father has shared his view of at least the mother’s alleged control of his interactions with X during their cohabitation – and I suspect his other criticisms of her – with Mr T (the paternal great uncle) and Mr Q (a long-term friend). Given this, it is unlikely that the mother would call on them for support and, it seems to me, equally unlikely that they would assist her if asked.
When cross-examined about his approach to meeting the expenses he had agreed during the Hague Convention proceedings that he would meet, the father’s evidence included that he had offered to pay these expenses before he knew the mother could access $10,000 from her superannuation: he said that he had paid her $1,899 before she left the United Kingdom and that she had about $12,000 in her account (which I infer was the total of the $1,899 and the $10,000 she had been able to withdraw from her superannuation entitlement) before she arrived in Australia. He also said, in essence, that it was the mother’s fault that he had not provided her with the furniture and car that had been agreed during the Hague proceedings – because she refused his offer to have furniture delivered to where she was staying with X (as she did not want him to know her address), he could not provide her with this; because she later told him that where she was staying could not accommodate a car, he could not provide this to her.
Whilst the terms of the orders and undertakings in the Hague proceedings refer to the provision by the father of furniture and a car, I consider that a parent focused on their child’s well-being (and wanting to co-operatively co-parent) would not have considered themselves restrained by the same from offering funds to the other parent in substitution for the items. If, as the father’s evidence sought to convey, he had truly wanted to work with the mother to ensure that she had a “safe landing” in Australia (as referred to in the Hague proceedings), I think he could so easily have offered to pay the same amount of money he would have spent on acquiring those items to the mother in lieu of providing her with the chattels, thus enabling her to purchase what she decided she needed. Instead, consistent with his controlling approach during their cohabitation, I consider that the father wanted to re-assert control over the mother once she and X returned to Australia in late 2020 – he wanted to be the person to decide what she was allowed to have by way of furniture and car. I reject his evidence that he did everything he could have done to try and help the mother financially at this time.
I also consider that the father adopted the position of wanting to “follow the Hague order to the letter to the best of his ability” because it suited his attempt to reassert control over the mother’s finances. After hearing his evidence about his knowledge of the mother’s withdrawal of $10,000 from her superannuation to meet her expenses after X was ordered to return to this country, I was also left with the very strong impression that the father may well have simply changed his mind about the level of financial support he was prepared to provide to the mother once he knew she had accessed funds from that source.
When cross-examined about the mother’s contention that, in order to try to locate where she was living with X after they returned to Australia in late 2020, he had extracted her location from the metadata of photographs she sent him, the father’s evidence included that he would not say that he had “extracted” that information but that it had appeared on his phone when he opened the photographs the mother had sent him; he said that, whilst it showed GPS coordinates, he had not been to the property in which the mother and X were then living; he denied looking at the photographs’ metadata on purpose and said that it was simply something that he had stumbled upon.
Whilst I retain some residual concerns about this aspect of the father’s evidence, in the absence of any expert evidence to contradict what he said about how he came to know the GPS details of the locations where the mother had taken the photographs she had sent him, I accept his explanation.
The mother’s evidence included the assertion that, during their relationship, the father had access to her email, banking and social media accounts. Whilst the father’s evidence included that the mother had shared her passwords and logins with him as she continually forgot them,[26] his evidence when cross-examined included a denial of having had the ability to access the mother's email or social media accounts – although he accepted that he was able to access her bank account. He clearly had access to her mobile phone because he was able to delete the information from it remotely.
[26] Father’s affidavit filed 23 December 2022 at paragraph 126.
The father’s evidence made it clear that he does not trust the mother’s recounting of events involving X; he clearly did not accept what she told him in November 2022 about how X came to have band-aids on his arm when he collected him from daycare. As a consequence, the band‑aids were removed; he took photos of the reddened skin underneath the same; he told Mr Q and the paternal grandmother about it and it was overwhelmingly clear that they joined him in his view about, and mistrust of, the mother.
The father did not accept the mother’s description of the meltdowns X had had whilst in her care and at daycare; his evidence was, in essence, that X had not behaved like that at any time when in his care. However, as noted earlier, his evidence in this respect differed from the evidence given by Mr Q about X’s behaviour at a theme park.
The father was critical of the fact that the mother had moved residences about four times since returning to Australia in late 2020 – during which time he remained living in the former matrimonial home at the very minimal cost discussed elsewhere in these Reasons. That he expressed such criticism in the circumstances of this case seems to me to say more about his absence of insight than it does about the mother’s capacity to ensure that X has been provided with appropriate accommodation. Similarly, his refusal to take up the mother’s suggestion that changeover on Christmas Day 2022 occur at Suburb D McDonald’s – because of the limited public transport available that day and the likely increased cost of travelling from her home to the Contact Centre – seems to me to say much about his unwillingness or inability to focus on the impact on X of his decisions.
When asked whether he maintained the view he had expressed for the purpose of the Hague proceedings, as noted in the Reasons for Judgment delivered in those proceedings, that the mother was a “good and loving mother”, the father first said that he thought she cared very dearly for X; when asked whether he thought she was a good mother, he said “I think that she is doing the best that she knows how.”
After expressing his opinion that the mother’s choice of the “tools” she uses to manage X’s emotional outbursts and her decision around his education (by which he meant her preference to care for X herself rather than have him attend daycare) were some of the limitations to the mother being a “good mother”, the father said he thought she was “majoratively doing a good job” – although he also said he thought her relationship with X was one of “control” in that the decisions she made were a way of controlling him and minimising his relationship with his father.
Despite all of his criticisms of the mother’s parenting, I note that, when cross-examined by Counsel for the Independent Children's Lawyer about the consequences for X of the orders that he sought – namely, that X be removed immediately from the mother, his primary carer and move to live with him – the father’s response was: “maybe not immediately but, like, over an adjustment period.” When asked (given that, until then, there had been no mention of this idea at all) how he thought X’s transition to his primary care would be managed, the father said, in essence, whatever was best for X and that he would try to come up with a plan with the mother to do that; when pressed further, he said his plan was to slowly increase X’s time with him over six or so weeks; he then said eight weeks, before finally suggesting three months as the transition period.
It seems to me to follow logically that, if the father used funds from the sale of shares and drawings from the loan to meet these costs (as he said he had), he would not have been meeting them from his income (as he says via his Financial Statement that he has been); if he was meeting them from income (as his Financial Statement asserts), he would not have needed to sell assets or draw on the loan facility to meet them.
Whilst Counsel for the mother conceded that the amount paid by the father for the preparation of the Family Reports should be notionally added-back for the purpose of determining the total value of the property of the parties, I consider, in the circumstances, that justice and equity require that I notionally add-back all of the funds obtained by the father from the sale of shares and the draw on the loan other than those that were used to pay for the Ms DD’s involvement in the matter, as this issue will be considered elsewhere. I calculate the amount at $43,146.
Proceeds received for the sale of shares: Item 21
The mother contended that, following their March 2019 separation, the father sold shares owned in her name without her knowledge for an amount of approximately $43,938[64] on 4 April 2019. Whilst she initially sought that this amount be notionally added-back or apportioned to the father somehow, her Counsel ultimately submitted that it was conceded that the funds obtained from the sale of these shares at that time were applied in reduction of the loan secured by the mortgage over the title to the Suburb F property. Consequently, the mother did not press for such amount to be notionally added-back.
[64] Rounded up.
The mother’s withdrawal from her superannuation: Item 24
The parents accepted that the mother withdrew $10,000 from her superannuation entitlement and applied the same to the cost of obtaining an expert report for these proceedings. Counsel for the mother conceded that this amount should be notionally added-back for the purpose of determining the total value of the property of the parties.
The costs of the flights to the United Kingdom: Item 25
Counsel for the mother submitted that the cost of flights should not be notionally added-back for the purpose of determining the total value of the property of the parties because the father agreed in the Hague proceedings to pay the costs of the return flights. If such costs represented the amount spent by the mother in travelling with X to the United Kingdom, it was submitted that the court would not be persuaded to exercise the discretion to notionally add the amount back because, from the mother’s perspective, the expenditure was necessary.
I am not persuaded that justice and equity requires that this amount is notionally added-back for the purpose of determining the total value of the property of the parents, but it will be taken up when I consider the relevant s 75(2) considerations.
The mother’s legal fees: Item 27
I accept the submission made by Counsel for the mother that the amount sought to be notionally added-back in this item is not, in fact, an add-back at all. The mother will have to pay her legal expenses from her own assets.
Conclusions about the value of the property of the parents
Having regard to the findings made above, I find the property of the parents and the value of the same to be as follows:
Description Ownership Value 1 Real property at E Street, Suburb F QLD Applicant $760,000 2 Motor Vehicle 1 Applicant $17,250 3 Motor Vehicle 2 Applicant $4,950 4 H Bank Account (ending …22) Applicant NIL 5 G Bank Account (ending …05) Applicant $1,000[65] 6 J Bank Account (ending …93) Applicant $220 7 CBA Account Applicant $200 8 Household contents Applicant $3,280 9 G Bank Account (ending …04) Respondent $4,738 10 K Bank Account (ending …60) Respondent $1,890 11 Household Contents Respondent NK 12 Wedding and engagement rings Respondent $4,200 Assets subtotal $797,728 13 G Bank Home Loan Applicant $69,119 Liabilities subtotal $69,119 Name of Fund Type of interest Member 14 Superannuation Fund 1 Accumulation Applicant $274,613 15 Superannuation Fund 2 Accumulation Respondent $47,320 Superannuation subtotal $321,933 TOTAL (assets – liabilities) $728,609 TOTAL (assets – liabilities + superannuation) $1,050,542 Description Ownership Value 18 Gifted money from paternal grandparents Applicant $50,000 19 Additional mortgage drawdown; proceeds from sale of shares Applicant $43,146 20 Withdrawal from superannuation for expert report Respondent $10,000 Other subtotal $103,146 TOTAL (assets – liabilities + superannuation + notional add-backs) $1, 153,688 [65] Which the wife contended for an amount of $1,072, I have accepted the husband’s amount for this item.
The s 79(4) considerations
I accept that, in considering the relevant matters mandated by s 79 of the Act, it must be remembered that:
(a)“community of ownership arising from marriage has no place in the common law”;[66] and
(b)there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[67] and
(c)the exercise of the discretion conferred 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.[68]
[66]Stanford v Stanford (2012) 247 CLR 108 at [39] citing Hepworth v Hepworth (1963) 110 CLR 309 at 317 per Windeyer J.
[67] Mallet v Mallet (1984) 156 CLR 605.
[68] Bevan & Bevan (2013) FLC 93-545 at [73].
The parents’ contributions until separation in August 2020
There is no documentary evidence to corroborate the father's assertion that, by the age of 23, he had saved close to $100,000 which he subsequently applied to the 2012 purchase of the Suburb F property. In the absence of documents to corroborate his assertion, I am not persuaded that the father has discharged the evidentiary onus of establishing that he owned a combination of cash savings and shares to the value of $100,000 at the time the parents commenced their relationship in 2008. To the extent that the father’s account of his asset position at this time and the mother’s account of the same differ, I prefer the account provided by the mother, which was to the effect that the father had savings of about $15,000.
I accept that, when the parents met in 2008, neither parent had assets of any significant value – the father was employed as a professional and the mother was studying and working on a part-time basis.
I accept that the mother was employed on a full-time basis from March 2009 and that, from then until about late 2017 (when the mother ceased to work outside the home for remuneration due to her pregnancy and desire to be a full-time mother), both parents applied the income that each of them derived from their respective remuneration for the benefit of their partnership.
It is accepted that the father was the person who was responsible for managing the parents’ finances. Where his account of how that came to be differed from the account provided by the mother, I prefer her account, for the reasons expressed elsewhere in these Reasons.
Given that the Suburb F property was purchased in 2012 (approximately four years after the parents commenced their relationship and cohabitation and about three years after the parents were both working full-time), I consider that the parents contributed equally to its acquisition – whether directly, via their respective incomes, or indirectly, via their respective contributions to what I accept were very significant joint efforts and sacrifices to save the approximately $120,000 which was applied to the purchase.
I am also persuaded that the parents contributed equally – either directly, via their respective incomes, or indirectly, via their respective contributions to what I accept were very significant joint efforts and sacrifices – to the repayment, as quickly as possible, of the approximately $325,000.00 which had been borrowed from a commercial lender to fund the acquisition of the Suburb F property – an asset owned legally by only the father.
Whilst I accept, as Counsel for the mother did, that the father’s direct financial contribution to the repayment of the borrowings secured over the title to the Suburb F property was, on a dollar-for-dollar basis, greater than that of the mother (because his income was greater than hers prior to late 2017 when she ceased working for renumeration outside the home), her decision to join in making financial contributions to an asset only he owned legally – rather than applying her funds to the acquisition of an asset in her own name – should not, in my view, be retrospectively undervalued. I accept the submission made by Counsel for the mother to the effect that, as the legal owner of the Suburb F property, the father benefited from what I will describe for this purpose as the mother’s acquiescence in his plan that they make very significant financial sacrifices and live very frugally so they could focus on repaying the borrowings used to acquire that property. The mother’s “decision” to join with the father in committing the vast majority of their financial resources to the repayment of the borrowings and, consequently, to significantly restrict their expenditure on items other than the repayment of debt were decisions made in furtherance of their partnership and in the expectation of their joint future financial benefit.
I accept that both parents contributed, to the extent that their respective incomes permitted it, to the payment of household and living expenses from when they started to live together until the mother stopped working for remuneration in late 2017 (that is, for approximately eight years of their relationship); I am not remotely persuaded that the mother retained any of her income and applied it to anything but these expenses and costs.
I think it much more likely than not that, during any periods of cohabitation, the mother was responsible for the vast majority of household duties (such as, but not limited to, cooking, cleaning, laundry and preparing meals) whilst the father mowed the lawn, maintained the pool (when they had one) and generally attended to the garden. I do not accept that the parents shared equally in X’s care following his birth; instead, I am easily persuaded that it is much more likely than not that the mother was overwhelmingly responsible for ensuring that X’s day‑to‑day needs were met, whilst the father continued to work for remuneration outside the home.
I accept that, after the father returned to Australia in March 2019, the mother was solely responsible for meeting X’s day-to-day needs and that she was also solely responsible for meeting his financial needs. I accept her evidence to the effect that the father did not make any direct financial contribution to X’s care costs until the parties reconciled their relationship in August 2019 – although I also note that it is uncontested that, when the mother and X travelled to Australia between April and May 2019, they stayed with the father.
I accept that, when he returned to Australia in March 2019, the father moved into the Suburb F property and that he alone benefited from the availability of the same. I accept that he did not account to the mother financially for his occupation of that property between about early 2019 and mid-2019, when she and X returned to Australia to live there with him. I have already accepted that the father withdrew funds from the mother’s bank account at or around this time and sold shares held in her name for $49,938. As noted earlier, whilst the mother initially sought that this amount be notionally added-back, she ultimately accepted that the funds obtained from the sale of these shares at that time were applied in reduction of the loan secured by the mortgage over the title to the Suburb F property and represent a contribution to the acquisition of the same.
I accept that, from when X and the mother returned to Australia to live with the father in 2019 until the final parental separation in August 2020, the father was solely responsible for financially supporting the family unit whilst the mother was overwhelmingly responsible for attending to X and his needs and that she did the vast majority of the household duties (such as, but not limited to, cooking, cleaning, laundry and preparing meals).
The parents’ contributions from the final separation in August 2020 until trial
I accept that the father has remained living in the Suburb F property since the final parental separation in August 2020 and that he has been responsible for paying any mortgage repayments from time to time, the cost of rates and insurance. Whilst he has also, no doubt, paid for utilities such as water and electricity in this time, he alone has had the benefit of those services.
In the absence of any direct evidence to the contrary, it seems to me that by the time the parents separated for the final time in August 2020, no loan repayments were being made (because none were owing), although it is also clear that the loan facility and mortgage had not been discharged.
It follows from such conclusions that I am also persuaded that, in the period from August 2020 until early January 2021, the father’s occupation of the Suburb F property was unburdened by the requirement that he make mortgage repayments. During this time, he had the entire benefit of the previous joint contributions made by both parents to the early repayment of the borrowed funds used to purchase that property.
Having regard to the contents of Exhibit 8, it also seems much more likely than not that the father was only required to resume making loan repayments after he redrew $25,000 from the G Bank loan secured by mortgage over the Suburb F property in January 2021 (that is, about four months after the August 2020 separation) and paid this sum to his grandmother. Further, given that the amount owing on the G Bank loan as at 1 March 2021 was $24,044[69] (before the father redrew a further $20,000 that day) and the repayment made on 4 March 2021 was in the amount of $243.99, I think it safe to conclude (even absent direct evidence about the state of the loan in the period from August 2020 until 1 March 2021) that the cost to the father of continuing to occupy the Suburb F property (exclusive of prorated amounts for house insurance and rates) from August 2020 until 1 March 2021 was no more than about $245.00 per month – or about $56.50 per week.
[69] Exhibit 6.
Having regard to the content of Exhibit 6, it appears to me that the cost to the father of living in the Suburb F property (exclusive of prorated amounts for house insurance and rates) from 1 March 2021 until 11 November 2021 was no more than $2,884.73 in total – or about $80.13 per week.[70]
[70]Using a period of 36 weeks and on the basis that the father appeared to have chosen to make two payments per month – one to pay off the calculated interest entirely and the other which appears likely to have been the facility’s minimum monthly repayment amount.
There is no direct evidence before me to establish the quantum of loan repayments made by the father between from 11 November 2021 (at which time the loan amount stood at $41,833.56)[71] until 1 November 2022 (at which time the loan amount stood at $44,585.24).[72] However, given the amount of the repayments made by the father from 1 March 2021 until 11 November 2021, I think it safe to infer that the cost to the father of continuing to occupy the Suburb F property (exclusive of prorated amounts for house insurance and rates) from 11 November 2021 until 1 March 2022 was no more than about $280.00 per month – or about $65.00 per week.
[71] Exhibit 6.
[72] Exhibit 7.
Having regard to the contents of Exhibit 7, it appears to me that the cost to the father of living in the Suburb F property (exclusive of prorated amounts for house insurance and rates) from 1 November 2022 until 15 March 2023 was no more than $1,945.00 in total – or about $102 per week.[73]
[73] Using a period of 19 weeks.
The conclusions I have reached about the cost incurred by the father in continuing to live in the Suburb F property after August 2020 certainly substantiate the mother’s assertion that he has had the benefit of living in that property at minimal expense to himself whilst she was been required, after returning to Australia with X in late 2020 and being released from quarantine, to incur significantly greater accommodation expenses (namely, $350 per week[74]) – despite being solely reliant of Centrelink benefits and the receipt of child support payments made to defray X’s expenses.
[74] Amended Financial Statement sealed 9 December 2022.
In my view, it is also relevant to note that, whilst the mother was solely reliant on these sources of financial support as she discharged the primary care of X, the father was employed and in receipt of a relatively significant income – as at trial, his remuneration was no less that about $154,00 per annum.
The reality is, I consider, that the father has had the entire benefit of the past joint parental conduct in repaying the borrowed funds used to purchase the Suburb F property, whilst the mother has been left to make her overwhelming post-separation parenting contributions as a parent to, and home-maker for, X whilst enduring significant financial difficulties and the instability associated with living in rented premises. Despite promises made during the Hague proceedings, the father has simply failed to provide the mother with the financial assistance he promised she would receive upon returning to Australia.
I accept, as the mother said in her evidence, that the father paid child support for X until the Hague Convention proceedings commenced; I accept that she received child support payments in about February 2021 (following her return with X to Australia) and that the father has continued to make payments of child support to her in the amount assessed from time to time.
I also accept that, having insisted that X attend childcare (despite the mother being willing to care for him), the father has met the costs associated with this – either from drawing down on the loan over the Suburb F property (according to his evidence when cross-examined) or from his income (according to his Financial Statement) and has received the associated childcare rebate. Whilst the father has also met the ongoing costs associated with the parents using a Contact Centre to facilitate X’s weekend changeovers – either from drawing down on the loan over the Suburb F property (according to his evidence when cross-examined) or from his income (according to his Financial Statement) – this has occurred because he has continued to insist that they continue to use this facility rather than, as the mother proposed, meeting in a public place closer to where she and X live.
Conclusions about contributions
In assessing the contributions made by the parents, the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ. Whilst this process is neither an accounting nor a mathematical exercise, it does involve a movement from a “qualitative evaluation of contributions to a quantitative reflection of such evaluation” – that is, a “leap” from words to figures.[75]
[75] Steinbrenner & Steinbrenner [2008] FamCAFC 193 per Coleman J at [234].
I consider that the parental contributions until the final separation in August 2020 were, albeit different, equal other than in relation to the gift of $50,000 made by the father’s grandparents in 2018 (approximately two years before the final separation in August 2020). Whilst the father made greater financial contributions from income (as his income was more than the mother’s income) during the cohabitation, I consider that these were met and offset by the mother’s greater contributions as homemaker prior to X’s birth (noting that she too worked outside the home for remuneration until December 2017) and, following his birth, as both a parent and as a homemaker – including between March 2019 and August 2019 when she was entirely responsible for X’s care and financial support.
Whilst the father has made greater direct financial contributions after separation, he alone had the very significant financial benefit of living in the Suburb F property without the requirement of making mortgage repayments until he unilaterally determined to redraw from the loan facility secured over the property. Even after he drew on the loan, the required repayments were relatively minimal.
Having regard to the mother’s overwhelmingly superior contributions to X’s care and what I regard as her indirect financial contribution to the father’s almost cost-free occupation of the Suburb F property – an asset in which she has a significant equitable interest and for which she received no recompense from the father – I would have considered it appropriate to assess contributions as to trial as to 55 per cent in her favour and 45 per cent in the father’s favour.
However, I regard the $50,000 (which amount is about 4.3 per cent of the total value of the property of the parents) provided by the father’s grandparents as being a gift to him, which was applied very late in the relationship to the acquisition of the Suburb F property. Having regard to this and that the mother’s equal share of Ms DD’s costs of about $6,500 (which amount is about .05 per cent of the total value of the property of the parents) was met by the father using either funds drawn from the loan account or obtained via the sale of shares[76] and noting that the exercise of discretion is not a mathematical exercise, I have concluded that the parents’ contributions to trial were equal.
[76]But which has not been notionally added-back for the purpose of determining the total value of the property of the parents.
The assessment of contributions in this manner would see each parent receive property valued at $576,844.
None of the orders proposed by either parent will have any effect on their respective earning capacities.
Relevant s 75(2) matters and conclusions about the same
The father is 37 years of age and is in good health. His base salary is $154,500.00 (gross) per annum and, therefore, he has between $3,891(net)[77] and $4,391 (net) [78] per fortnight for his and X’s financial support. He currently pays child support as assessed in the amount of $295.24 per week, leaving him with between $3,301 and $3,801 per fortnight for his own support.
[77]Financial Statement sealed 9 December 2022: $2,971(gross) per week less $775 per week tax less $250 per week superannuation contribution.
[78]Financial Statement sealed 9 December 2022: $2,971(gross) per week less $775 per week tax but excluding the $250 per week superannuation contribution on the basis that it is a voluntary contribution.
The mother is 36 years of age and is in good health. She has not worked for remuneration outside the home since December 2017. Whilst the father asserted that she had approximately $4,000 per month available to her for her financial support, his calculation included the $592.50 per fortnight that he pays by way of child support for X. Using the father’s figures (exclusive of the child support), the mother receives government-provided financial assistance of about $1,216 per fortnight. According to her Amended Financial Statement, the funds available to her, exclusive of the amount of child support paid to defray X’s financial costs, is about $1,208 per fortnight.
As a result of the parenting orders to be made, the mother will continue to be primarily responsible for X’s day-to-day care; given that she will be permitted to relocate him to live with her in the United Kingdom, this responsibility will be exercised for all of the year other than during those periods when X will spend time with his father in accordance with the terms of the parenting order.
Whilst I accept that the mother has the capacity to engage in paid employment outside the home, I also accept that her income-earning capacity is very significantly less than that of the father. Whilst I accept that she may well, at some time in the future, be able to earn the equivalent of about $50,000 per annum, the father’s current base salary is no less than three times that amount. I also accept that it is more likely than not that, given her absence from the paid workforce for nearly six years, the mother will be required to undertake some study of some kind in order to exercise her latent earning capacity and that, at best given her parenting obligations, she may well be likely to be able only to work on a part-time basis until such study is complete. It is certainly not beyond the realms of possibility that the mother may be unable to start her planned study immediately and that this may be delayed until she is confident that X has settled into their life in the United Kingdom.
Given the father’s evidence to the effect that his current employment is the best job he has ever had, it seems highly unlikely that he will face any disruption to his continued exercise of his earning capacity. On any assessment, his financial future is highly likely to be very significantly superior to that of the mother – both in terms of his likely annual salary and, also, his associated capacity to continue to contribute to his superannuation entitlements.
Taking into account the mother’s withdrawals from her superannuation (which occurred, I consider, in circumstances where the same could have been avoided if the father had chosen to exercise his superior financial capacity to ensure that her necessary financial needs were met after she returned with X to Australia) and the costs of flights associated with the return of the mother and X to Australia, I consider that an adjustment of 12.5 per cent in the mother’s favour is appropriate to reflect the very significant disparity between the father’s overwhelmingly superior earning capacity and that the mother will, in the future, be overwhelmingly responsible for meeting the day-to-day care of five-year-old X.
What orders are just and equitable and proper?
The consequence of the conclusions outlined above is that:
(a)having regard to the parents’ respective contributions to trial and the relevant s 75(2) matters; and
(b)at the conclusion of a cohabitation of approximately 12 years’ duration, that was productive of a now five-year-old child; and
(c)during which cohabitation each contributed equally (albeit differently) and from which the mother will continue to be overwhelmingly responsible for the discharge of the primary parenting obligations and the father will retain an overwhelmingly superior earning capacity and a significantly more secure financial future,
the mother shall be entitled to receive property valued at 62.5 per cent of the total value of the property of the parties ($721,055) whilst the father shall be entitled to receive property valued at 37.5 per cent of the property of the parties ($432,633) – a difference which is the equivalent of the father’s net income over no more than three years.
Given that the mother currently has property valued at $68,148[79] and there will be a super-splitting order allocating a base amount of $100,000 from the father’s current entitlement to superannuation, the father will be required to pay her $552,907.
[79]Inclusive of her past receipt of $10,000 drawn from her superannuation entitlement and used to pay for the expert report.
If the father cannot make this payment within forty-five days of the date of the Order, the Suburb F property will have to be sold.
Given the father’s past conduct in drawing down on the loan faciality secured over the Suburb F property, I am satisfied that it is proper that he be restrained from further encumbering the Suburb F property other than as may be necessary to enable him to make the required payment to the mother. Given that the father continues to occupy the Suburb F property, I am satisfied that it is proper that he continue to ensure that it remains insured and that he continues to pay any municipal rates and water charges as they fall due.
For the reasons outlined above, I am satisfied in all the circumstances of this case that it is just and equitable that orders be made adjusting the existing interests of the parents in property and superannuation and that the orders set out at the commencement of these Reasons will, as far as practicable, determine the financial relationship between the parents and are the orders which are just and equitable and appropriate to be made.
I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 19 October 2023
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