FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Savage & Haines (No 2) [2024] FedCFamC1F 864
File number: SYC 7724 of 2023 Judgment of: ALDRIDGE J Date of judgment: 13 December 2024 Catchwords: FAMILY LAW – PARENTING – International relocation – Where the parties agree the child will relocate with the mother to the USA – Where the father seeks to delay the relocation to July – Child has a good relationship with the father – Disadvantages of delay outweigh the advantages – Relocation to occur in February – Where it is desirable for the father’s time with the child to increase in manageable increments – Father has a history of drug and alcohol abuse – Father falsified drug test results – Father has not acted on single expert’s recommendation for changes to his therapeutic engagements – Where it is in the child’s best interest for testing to continue until the child is 10 years of age.
FAMILY LAW – PROPERTY – Balance sheet items – Add backs – Where the parties agree their contributions were equal – Where the mother will retain primary care of the child – Consideration of the mother’s student loans – Where the father has significant capacity for employment but is currently unemployed – Consideration of the father’s expenditure on drugs and alcohol – Property to be divided 65 per cent to the mother and 35 per cent to the father.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 75 Cases cited: Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633 Division: Division 1 First Instance Number of paragraphs: 87 Date of hearing: 4–7 November 2024 Place: Sydney Counsel for the Applicant: Dr Barnett SC Solicitor for the Applicant: Boyce & Boyce Counsel for the First Respondent: Mr Dura SC Solicitor for the First Respondent: Barkus Doolan Winning Solicitor for the Second Respondent: Karras Partners Lawyers Counsel for the Independent Children’s Lawyer: Ms Wallace Solicitor for the Independent Children’s Lawyer: Tiyce & Lawyers ORDERS
SYC 7724 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAVAGE
Applicant
AND: MR HAINES
First Respondent
MS HAINES
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
PARENTING
1.The mother is permitted to relocate the residence of X, born 2017 (“X”), to the United States of America (“USA”) at any time on and from 1 February 2025.
2.Pending X’s relocation to the USA, he shall spend time with the father as follows:
(a)From Friday 13 December 2024 and for the remainder of Term 4 2024:
(i)In Week 1, from after school or 3.00 pm if a non-school day on Friday to the commencement of school or 3.00 pm if it is a non-school day on Monday of Week 2; and
(ii)In Week 2, from after school Thursday or 3.00 pm if a non-school day to the commencement of school or 3.00 pm if it is a non-school day on Friday.
(b)During the school…
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- [2024] FedCFamC1F 864
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CaseChat Overview and Summary
The court concluded that the disadvantages of delaying the relocation outweighed the advantages, and therefore permitted the relocation to occur in February 2025. It also outlined a detailed schedule for the father's contact with the child, increasing his time with the child in manageable increments. The court ordered ongoing drug and alcohol testing for the father until the child turns ten, due to his history of substance abuse and falsification of drug test results. The reasoning behind the property division was based on the equal contributions of the parties up to the hearing date, the mother's retention of primary care of the child, and the father's capacity for employment despite his current unemployment. The mother was awarded 65% of the property, and the father 35%, with specific orders for the distribution of superannuation and real property.
The court's final orders permitted the mother to relocate with the child to the USA from February 2025, detailed the father's contact arrangements, mandated drug and alcohol testing, and outlined the property division, including the sale of a specific property and the distribution of its proceeds.
Orders
Orders of the court
SYC 7724 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS SAVAGE
Applicant
AND:
MR HAINES
First Respondent
MS HAINES
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
PARENTING
1. The mother is permitted to relocate the residence of X, born 2017 (“X”), to the United States of America (“USA”) at any time on and from 1 February 2025.
2. Pending X’s relocation to the USA, he shall spend time with the father as follows:
(a) From Friday 13 December 2024 and for the remainder of Term 4 2024:
(i) In Week 1, from after school or 3.00 pm if a non-school day on Friday to the commencement of school or 3.00 pm if it is a non-school day on Monday of Week 2; and
(ii) In Week 2, from after school Thursday or 3.00 pm if a non-school day to the commencement of school or 3.00 pm if it is a non-school day on Friday.
(b) During the school holiday period at the conclusion of Term 4 2024:
(i) With the mother from 12.00 pm on 20 December 2024 to 12.00 pm on 24 December 2024;
(ii) With the father from 12.00 pm on 24 December 2024 to 6.00 pm on 30 December 2024;
(iii) With the mother from 6.00 pm on 30 December 2024 to 6.00 pm on 6 January 2025; and
(iv) With the father from 6.00 pm on 6 January 2025 to 6.00 pm on 27 January 2025.
(c) From the commencement of the NSW School Term 1 dates in 2025, and until the date of X’s relocation to the USA, as agreed between the parties in writing and failing agreement, as follows:
(i) On a week-about equal time basis with changeover to occur at X’s school on each Monday at 9.00 am.
3. Upon X’s relocation to the USA and in the event that the father remains habitually resident in Australia, X shall spend time with the father as follows:
(a) During the Christmas break from 17 December to 10 January in years with an even number, such time to take place in Australia;
(b) During the Christmas break from 28 December to 11 January in years with an odd number, such time to take place in Australia;
(c) During summer break:
(i) In 2025, from the Monday of the first week of the summer break until the day that is 21 days later, such time to take place in Australia;
(ii) In 2026, from the Monday of the first week of the summer break until the day that is 35 days later, such time to take place in Australia; and
(iii) In 2027 and ongoing, from the Monday of the first week of the summer break until 14 days prior to the commencement of the new school year in the USA in August, such time to take place in Australia;
(d) During and after the spring recess, from the first day of the spring recess and for a total period of 14 nights, such time to take place in the USA, and the father shall facilitate X’s attendance at school and extra-curricular activities, and upon the father providing 60 days written notice to the mother that he intends to travel to the USA to spend time with X;
(e) During school periods:
(i) In 2025, for three occasions per year for a period of up to 21 nights on each occasion;
(ii) In 2026, for two occasions per year for a period of up to 21 nights on each occasion; and
(iii) In 2027 and ongoing, for two occasions per year for a period of up to 14 nights on each occasion,
as elected by the father, but no less than 14 days following the conclusion of any other period of time that X is to spend with the father pursuant to these orders, provided the father gives the mother 60 days written notice of his intention to travel to the USA to spend time with X and the father facilitates X’s attendance at school and extra-curricular activities.
4. The mother shall purchase X’s return flights to Australia pursuant to Orders 3(a) and 3(b) herein (X’s holiday time each December/January) and provide a copy of the return travel itinerary to the father two months prior to the anticipated travel to Australia, and the father shall reimburse the mother one half of X’s airfare one month prior to travel via funds transfer.
5. The father shall purchase X’s return flights to Australia pursuant to Order 3(c) herein (X’s holiday time during summer breaks) and provide a copy of the return travel itinerary to the mother two months prior to the anticipated travel to Australia, and the mother shall reimburse the father one half of X’s airfare one month prior to travel via funds transfer.
International changeover
6. The mother shall deliver X to the father at City H International Airport at the commencement of X’s time with the father pursuant to Orders 3(a)–(c) herein, and the father shall deliver X to the mother at Sydney International Airport at the conclusion of X’s time with the father.
7. The parties shall each be responsible for the costs of their own flights between USA and Australia.
8. All changeovers during the time X spends with the father in the USA that are not otherwise specified in these orders shall occur at a location agreed between the parties which shall fall within a 2km radius of X’s school.
If the father relocates to the USA
9. In the event that the father relocates his place of residence or spends 183 days or more in any one year period within 30km of the mother’s place of residence in the USA, the following Orders 10 and 11 shall apply.
10. X shall spend time with the father on a fortnightly basis as follows:
(a) In Week 1, from after school or 3.00 pm if a non-school day on Friday to the commencement of school or 3.00 pm if it is a non-school day on Monday of Week 2; and
(b) In Week 2, from after school or 3.00 pm if it is a non-school day on Wednesday to the commencement of school or 3.00 pm if it is a non-school day on Thursday.
11. X shall live with the father during school holiday periods as follows:
(a) In even years, from the conclusion of school on the day prior to each spring break until the commencement of the next school day;
(b) In even years, from the conclusion of school on the day prior to each fall recess until the commencement of the next school day;
(c) In odd years, from the conclusion of school on the day prior to each winter recess until the commencement of the next school day;
(d) In even years, from the conclusion of school on the day prior to the summer recess until 12.00 pm on the Wednesday of the middle week of the summer recess;
(e) In odd years, from 12.00 pm on the Wednesday of the middle week of the summer recess until the commencement of the next school day; and
(f) In even years, from the conclusion of school on the day prior to the Christmas break until the commencement of the next school day.
Hair follicle testing
12. On and from 24 April 2026 and until X attains 10 years of age, the father shall attend upon an accredited testing clinic for chain of custody hair follicle (10 Panel) drug testing within 48 hours of any request by the mother, with not more than two requests to be made in any calendar year as follows:
(a) The first request to be made anytime during the first six months of a calendar year;
(b) The second request to be made anytime during the second six months of a calendar year;
(c) Such tests to be at least three months apart in request;
(d) Such tests to cover at least the three month period immediately prior to when such test is undertaken;
(e) Such requests by the mother to be made during Eastern Standard Time business hours and in writing to the father either by way of text message or email;
(f) The father to ensure that such results are provided to the mother directly from his chosen accredited testing clinic; and
(g) The father shall ensure he is able to provide a hair strand test sample of at least 3cm that has been neither dyed nor bleached, straightened or permed, or treated in any manner that might adversely affect any hair follicle testing procedures undertaken by the father and pursuant to these orders.
Restraints
13. On and from the making of these orders and for a period of 18 months of continuous compliant test results, the father is restrained from consuming alcohol, illicit drugs or any other drugs to which he does not have a prescription, while X is in his care or in the 24 hour period before X comes into his care.
PROPERTY
14. Pursuant to s 90XT(1)(b) of the Family Law Act 1975 (Cth), Ms Savage is entitled to be paid the amount equivalent to 100 per cent of the entitlement of Mr Haines (date of birth, 1982) in the J Trust, Superannuation Fund 1 (“Superannuation Fund 1”) as at the operative time, adjusted by fund earnings (positive or negative) from that time to the payment date, and the entitlement of Mr Haines is correspondingly reduced.
15. Having been accorded procedural fairness in relation to the making of this order, Orders 14, 16 and 18 bind the trustee of Superannuation Fund 1.
16. The operative time for Order 14 is four business days after the date of service of a sealed and certified copy of these orders on the trustee of Superannuation Fund 1.
17. The mother shall effect service of a sealed and certified copy of these orders on the trustee within 14 days of the date of these orders.
18. Each party and the trustee has liberty to apply on not less than three business days notice in respect of the implementation of the super splitting orders.
19. Within 90 days of the date of these orders, the father shall pay the mother the sum of $506,972.
20. In default of Order 19 above, and upon the expiration of the option held by the second respondent pursuant to the orders dated 4 November 2024, the real property at K Street, Suburb E (Folio …) (“the Suburb E property”) be forthwith listed for sale in accordance with the sale procedure set out at Orders 27 to 33, with the proceeds of sale as defined therein to be distributed in the following order and priority:
(a) To the second respondent, 50 per cent;
(b) To L Bank, any amount required to effect a discharge of mortgage with dealing number … secured over the title to the Suburb E property;
(c) To the mother, $506,972; and
(d) To the father, the then remaining balance.
21. In the event that the father’s half share of the sale of the Suburb E property, pursuant to Order 20 above, exceeds or falls short of the agreed value of $2,450,000, the mother and father will share in the excess or shortfall as to 65 per cent to the mother and 35 per cent to the father.
22. Pending compliance with Order 19 or 20, as the case may be:
(a) The father is restrained from further encumbering or drawing down on any loan account secured by mortgage over the Suburb E property other than for the purpose of complying with Order 19 (however he will be permitted to use the funds standing to the credit of the L Bank Offset account).
(b) The father shall be solely responsible, indemnify and keep the mother indemnified for the following property related expenses and shall pay as and when they fall due:
(i) All statutory and consumable utilities for the Suburb E property, including in respect of all council rates, land tax, water charges, insurance premiums, electricity services; and
(ii) All principal and interest repayments in relation to any loan facility secured by the Suburb E property.
23. Within 60 days of the date of these orders, the parties shall do all acts and things and sign all documents necessary to close the following bank accounts in the joint names of the parties:
(a) Commonwealth Bank account ending #...42, with the closing balance to be distributed to the father; and
(b) M Bank accounts ending #...88 and #...83, with the closing balances to be distributed to the mother.
24. Upon the payment of the $506,972, the mother return to the father Motor Vehicle 1 presently in her possession and control, such vehicle to be in good order and repair.
25. Subject to and without limiting the above orders:
(a) The mother and father be solely legally and beneficially entitled to the exclusion of the other party, to all other real and personal property of whatsoever nature and kind as is in their respective ownership, possession and/or control as at the date of these orders, including but not limited to, real estate, superannuation funds and policies, monies on deposit, shareholdings and options, insurance policies, motor vehicles and personal effects;
(b) Each party hereby foregoes any claim they may have to any superannuation benefit or insurance policy to or owned by the other. The party in whose name any such policy of superannuation or insurance stands shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;
(c) From the date of these orders, the mother do all acts and things necessary to indemnify, and keep indemnified, the father from and against all liabilities of the mother, whether past, present or future, including, but not limited to:
(i) All labilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the mother’s interest in any real property;
(ii) Any liability owing in relation to the mother’s US student loans;
(iii) Taxation (including CGT); and
(iv) Duties (including stamp duty).
(d) From the date of these orders, the father do all acts and things necessary to indemnify, and keep indemnified, the mother from and against all liabilities of the father, whether past, present or future, including, but not limited to:
(i) All labilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the father’s interest in any real property;
(ii) Taxation (including CGT); and
(iii) Duties (including stamp duty).
Sale procedure
26. Orders 27 to 33 apply only in the event that the Suburb E property is to be sold in accordance with Order 20 above.
27. The mother, the father and the second respondent shall do all things and sign all documents necessary to list the Suburb E property for sale and, for that purpose, unless otherwise agreed between the parties in writing, the parties shall:
(a) List the Suburb E property for a sale price of $4,900,000;
(b) List the Suburb E property for sale with such agent agreed between the parties in writing (who shall not be Ms N) within seven days. If no agreement is reached, the father shall nominate three agents and the mother shall, within seven days, select one of the agents so nominated, failing which the father shall select one (“the agent”);
(c) Execute all documents requested by the agent for the sale of the Suburb E property and, in the event that the parties cannot agree on the terms of the agent’s contract within seven days of being provided such contract, the parties shall enter into such contract in the agent’s standard terms; and
(d) Give such instructions as are necessary to such conveyancing solicitor as agreed between the parties in writing within seven days. If no agreement is reached within seven days, the father shall within a further four days propose three names to the mother who shall select one within four days, failing which the father shall select one, to act on the conveyance relating to the sale (“the legal practitioner”).
28. The property shall be marketed for sale by public auction to occur within two months (“the first auction”) of the appointment of the agent with a reserve price agreed between the parties in writing and failing agreement, the sum of $4,900,000.
29. In the event that the Suburb E property does not sell at the first auction, the parties shall continue to market the Suburb E property for sale with the agent by way of private treaty and conduct a further public auction within eight weeks (“the second auction”) with a reserve price agreed between the parties in writing and failing agreement, the sum of $4,600,000.
30. In the event that the Suburb E property does not sell at the first auction or the second auction, the parties shall continue to market the property for sale as recommended by the agent and shall accept any price within five per cent of the reserve from the second auction.
31. For the purpose of Orders 27 to 30 above, the parties shall:
(a) Each attend any auction (whether in person or by video link) and in the event that the reserve price set for that auction is not reached, negotiate with the highest bidder and the second highest bidder and accept the highest offer to purchase made within five per cent of the reserve price set for that auction unless the parties otherwise agree;
(b) Execute the contract for sale and in the event that the parties fail to agree on the terms of the contract for sale the terms recommended by the legal practitioner will be adopted;
(c) Execute all other documents necessary to complete the sale within the time required by the contract for sale to ensure that the purchasers do not have a right to terminate or rescind due to failure to do so;
(d) Ensure that the completion date of any contract of sale entered into is not greater than two months from the date of exchange of contracts; and
(e) Cooperate in every way with the agent in relation to the sale of the property at all times requested by the agent including (without limiting the generality of the foregoing):
(i) Making the key available to the agent;
(ii) Allowing inspection of the Suburb E property at all reasonable times requested by the agent;
(iii) Not doing or saying anything to hinder or prevent a sale being effected;
(iv) Ensuring the Suburb E property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
(v) Signing all documents requested by the agent in relation to the listing for sale of the Suburb E property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
32. On settlement of the sale of the Suburb E property, the parties shall forthwith do all things and sign all documents necessary to divide and distribute the proceeds of sale of the Suburb E property in accordance with Order 20 of these orders.
33. Pending the settlement of the sale of the Suburb E property as provided for in the orders dated 4 November 2024, the father and the second respondent shall:
(a) Provide all instructions to the agent and the legal practitioner in writing;
(b) Copy the mother to all correspondence with the agent and the legal practitioner; and
(c) Direct the agent and the legal practitioner to copy the other to all correspondence sent by either of them to the father and/or the second respondent is respect of the sale.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The contributions until the date of hearing should be regarded as equal.Section 79(4) considerations As a result of the parenting orders, the mother will retain the primary care and support of X. It is likely that she will earn a significant income in the USA, but that may well trigger an obligation to repay the student loan that she carries which must be taken into account. The father clearly has the capacity for significant employment but has not been able to obtain a job. He says that that is due, in large part, to the nature of his dismissal which will make it difficult to obtain work with a leading firm. Accepting that to be so, he still has capacity to obtain a significant income, perhaps not in the roles he desires. He too, has liabilities to be paid and he must be left with some cash to do so and to support himself as he looks for work. The funds used by the father toward drugs, alcohol and sex services, as identified above, must also be considered. Taking these matters into account, the appropriate division of property is achieved by making an adjustment in favour of the mother so that she receives 65 per cent of the property and the father 35 per cent.Disposition To achieve that percentage from the net assets of $1,357,896 the mother must receive $882,632. She already has: Therefore, to achieve the desired sum the mother needs to receive a further $660,171. From where is this sum to come? There is $373,408 available in cash, but this cannot be depleted completely because the father has outstanding debts to pay and must also support himself for the present. There is approximately $660,000 in equity in the father’s half share in the Suburb E property. Accepting that they are based on property pools and division different to that above, it is of assistance to look at the final property orders proposed by each party. The father suggested that his Superannuation Fund 1 be the subject of a splitting order so that the mother receive 50 per cent of that (approximately $75,000) and he pay the mother a further $400,000. The mother sought all of the father’s interest in Superannuation Fund 1 ($153,199 as at October 2024) plus payments of $660,000 and $107,000. The competing interests of the parties are best served by the mother receiving the entirety of the father’s Superannuation Fund 1 plus a payment of $506,972. As was submitted by counsel for the mother, this will provide the mother with both a cash component and superannuation component. The father will be left with some superannuation. Presumably the payment to the mother will have to come from the father’s cash (bank accounts, the balance of the sovereign funds and money in his solicitor’s trust account) and the equity in the Suburb E property. This will leave him with either cash or equity in the Suburb E property which can be realised in the sum of $529,147 (being the total cash available plus the equity, with the payment to the mother deducted). Therefore, the father will receive: