Simons & Morin (No 2)
[2024] FedCFamC1F 170
•19 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Simons & Morin (No 2) [2024] FedCFamC1F 170
File number: SYC 5136 of 2020 Judgment of: HARPER J Date of judgment: 19 March 2024 Catchwords: FAMILY LAW – PROPERTY – De facto relationship –Where relationship was approximately five years – Where parties resided in separate countries for the majority of the relationship – Where the initial contributions of the parties similar apart from substantial retained earnings in partnership of father’s business – Where retained earnings treated as a financial resource in assessment of initial contributions – Where the father made the greater financial contribution during the relationship – Where the mother made the greater parenting contribution – Where the father’s financial contribution not outweighed by the mother’s almost sole care of the child – Where loans to the mother’s parents included as liabilities on the balance sheet – Where parties made numerous unsuccessful arguments as to add backs – Contributions assessed as 42 per cent to the mother and 58 per cent to the father – 1 per cent adjustment pursuant to s 90SF(3) of the Family Law Act 1975 (Cth) – Where retained earnings treated as chose in action and considered under s 90SF – Orders for father to discharge the mortgage on and transfer his interest in the jointly held property – Adjustment payment to the mother.
FAMILY LAW – PARENTING – One child aged nearly nine years – Where child lives in Australia with the mother – Where the father resides in the United Kingdom – Where the child has spent limited time with the father – Where the child has a loving relationship with the father – Where father alleged the mother had engaged in denigration of him and the child’s step-mother – Where the mother has supported the father’s relationship with the child – Where debate centred on when time with the father in the United Kingdom should commence and the duration of that time – Where the father sought orders that time commence in June 2024 – Where the evidence favoured a more cautious approach to the child’s time with the father in the United Kingdom – Orders made for time to commence in 2025 and for the mother to accompany the child for the first two trips – Where the father sought to argue that the mother would use sole parental responsibility as a means to exert control over him – Where no such finding is available on the evidence – Where parties are unable to communicate effectively – Presumption of equal shared parental responsibility rebutted – Order made for the mother to have sole parental responsibility – Orders made for holiday time with the father.
Legislation: Family Law Act 1975 (Cth) Pts VII, VIII4AA, VIII4AB, ss 4AA, 61, 61DA, 64(B)(2), 65D(1), 65DAB, 90SB, 90SM, 90RD Cases cited: AJO & GRO (2005) FLC 93-218; [2005] FamCA 195
Anson & Meek (2017) FLC 93-816; [2017] FamCAFC 257
Barnell & Barnell (2020) FLC 93-961; [2020] FamCAFC 102
Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Burke and Burke (1981) FLC 91-055
C and C [1998] FamCA 143
Candle & Falkner (2021) FLC 94-069; [2021] FedCFamC1A 102
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57
Franklyn & Franklyn [2019] FamCAFC 256
G and G (2000) FLC 93-043; [2000] FamCA 1075
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Grunseth & Wighton (2022) FLC 94-099; [2022] FedCFamC1A 132
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353
Kowalski and Kowalski (1993) FLC 92-342
M and M [1998] FamCA 42
M & S (2007) FLC 93-313; [2006] FamCA 1408
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Manolis & Manolis (No 2) [2011] FamCAFC 105
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
NHC & RCH (2004) FLC 93-204; [2004] FamCA 633
Norman & Norman [2010] FamCAFC 66
Perras & Perras [2021] FamCAFC 109
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74
Rodgers & Rodgers (2016) FLC 93-712; [2016] FamCAFC 104
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Suffolk v Soffolk [2007] FamCA 797
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Division: Division 1 First Instance Number of paragraphs: 267 Date of hearing: 26, 27 and 30 October 2023 Place: Sydney Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: Rubin Blight Hardy Family Lawyers & Mediators Counsel for the Respondent: Mr Sirtes SC with Mr Auld Solicitor for the Respondent: Abbott Delaney Lawyers
Table of Corrections 20 March 2024 In paragraph 194 “(Exhibit 9)” has been inserted after Item 34 in the fourth and last lines. 20 March 2024 In the table of assets and liabilities following paragraph 200 the following changes have been made:
(1) The value of Item 16 has been changed from “$6,755” to “$278”.
(2) Item 23 has been inserted;
(3) The total of the assets has been changed from “$16,683,213” to “$17,734,961”; and
(4) The value of Items 56-63 has been changed from “$314,927” to “$317,027”.
20 March 2024 In the table of assets and liabilities following paragraph 265 the following changes have been made:
(1) The value of the “[Suburb F] mortgage” has been amended from “-$1,165,400” to “-$1,165,440”;
(2) The value of the “[Town G] mortgage” has been amended from “-$268,8444” to “-$268,884”; and
(3) The value for the “Loans from parents” has been amended from “$314,972” to “-$317,027”.
ORDERS
SYC 5136 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SIMONS
ApplicantAND: MR MORIN
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
19 MARCH 2024
THE COURT NOTES THAT:
A.For the purposes of these orders the following definitions apply:
(a)“City J property” means the property known as and situated at H Street, City J in the United Kingdom, registered in the Respondent's sole name;
(b)“Suburb F property” means the property known as and situate at K Street, Suburb F in the State of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier … registered in the parties’ joint names;
(c)“Suburb F mortgage” means the registered mortgage to the Commonwealth Bank of Australia secured against the Suburb F property bearing mortgage number …;
(d)“Rates and Charges” means all municipal and water rates and charges for the Suburb F property.
THE COURT ORDERS THAT:
Property
1.Within 90 days of the date of these orders (“the due date”) the Respondent, Mr Morin (“the father”), pay to the Applicant, Ms Simons (“the mother”) or as she directs $803,320 (“the Adjustment Payment”).
2.On or before the due date, the parties do all acts and things necessary to transfer to the mother the Suburb F property on an unencumbered basis, with the father to be solely responsible for repayment of Commonwealth Bank of Australia home loans #...60 and …79 secured by the Suburb F mortgage.
3.Pending compliance with Order 1 above, the father pay all statutory outgoings, and mortgage instalments as and when they fall due in respect of the Suburb F property.
4.In the event the father fails to pay the mother the Adjustment Payment by the due date, the father shall do all acts and things and sign all documents necessary to sell the City J property within a further three months for the best available price.
5.Upon settlement of any sale of the City J property pursuant to Order 4 the father shall do all acts and things and sign all documents necessary to authorise and direct the proceeds of sale of the City J property (inclusive of any deposits held) in the following manner and priority:
(a)Payment of the agent's commission, marketing and advertising costs, auctioneer's fees and any other expense incurred in respect of the sale of the City J property;
(b)Payment of legal costs and disbursements associated directly with the sale;
(c)Payment of the amount required to discharge any mortgage secured against the City J property including any fees incurred for early repayment of the mortgage (if any);
(d)Payment to the mother of the Adjustment Payment together with any interest then outstanding at the rate prescribed by the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth); and
(e)The remaining balance of the proceeds of sale shall be payable to the father.
Declarations
6.Except as specifically provided for by these orders, as between the parties, the mother is declared the sole legal owner of, and the father has no interest in any property and financial resources in the mother’s name or to which she is or becomes entitled and not otherwise referred to in these orders.
7.Except as specifically provided for by these orders, as between the parties, the father is declared the sole legal owner of, and the mother has no interest in any property and financial resources in the father’s name or to which he is or becomes entitled and not otherwise referred to in these orders.
Releases and Indemnities
8.Other than as specified in these orders, each party be solely liable for and indemnify the other against any liabilities in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to this order.
9.Except as specifically provided for by any order to the contrary, each of the mother and the father are to release each other from all debts and/or loans owing from one to the other.
Procedural Orders
10.The parties shall forthwith do all acts and things and sign all such documents as may be necessary to give effect to these orders.
11.A Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”) to execute any document and/or instrument necessary to give effect to the foregoing orders in the event of any of the parties failing, refusing or neglecting to execute such document within seven days of the date on which they are required to do so pursuant to these orders, and being requested to do so by the other party or by the other party’s legal representatives.
12.The Registrar or other officer is authorised to execute any such necessary document and/or instrument pursuant to Order 10 upon being satisfied by affidavit that refusal, neglect or default as the case may be has occurred.
13.Other than for the purpose of, and pending, compliance with Orders 1 and 2 the father is restrained by injunction from selling, transferring, dealing, encumbering or further encumbering the City J property save and except for the purpose of compliance with these orders.
PARENTING
14.X born 2015 (“the child”) live with the mother.
15.Subject to Order 16:
(a)there be allocated to the mother sole parental responsibility for the child; and
(b)the mother shall consult with the father about any decisions regarding major long term issues (as defined in the Act) in relation to the child and make a genuine effort to come to a joint decision with the father.
16.For the purposes of Order 15(b), prior to making any decision as to the long-term care, welfare and development of the child:
(a)the mother shall notify the father of her proposed decision no less than 14 days prior to making such decision including providing any documentation relating to such decision; and
(b)the father shall provide his views as to the issue to be decided within seven days of receipt of this information.
17.At such times and places as the child is in the care of the father outside Australia in accordance with these orders, there be allocated to the father parental responsibility:
(a)for decisions regarding the child’s health; and
(b)for the daily care, welfare of the child.
Time with the father
18.If the father is present in Australia, the child spend time with the father as agreed and failing agreement:
(a)During school holidays, commencing at the end of Term 3, 2024:
(i)In odd numbered years for one week of the school holiday period commencing following the conclusion of Term 1, as agreed and failing agreement at the conclusion of school in the last week of each school term;
(ii)In even numbered years for one week of the school holiday period commencing following the conclusion of Term 3 as agreed and failing agreement at the conclusion of school the last week of each school term;
(b)During the school term:
(i)From afterschool or 3.00 pm until 7.00 pm, each day for a period of up to four consecutive days;
(ii)From afterschool or 3.00 pm Friday until before school Monday each alternate weekend.
19.For the purpose of Order 18:
(a)The father shall collect the child from school (if the child is at school) or from the mother’s residence at the commencement of such period, and return the child to the mother’s residence at the conclusion of such period;
(b)The father must, unless otherwise agreed, during that time he is spending time with the child, take the child to his regular day to day activities including after-school and extra-curricular activities;
(c)The father shall provide the mother with not less than 28 days’ notice prior to his planned arrival in Australia and the dates on which he will be in Australia and not less than seven days’ notice of the address where the child will be spending time with him.
20.If the father elects, the child may spend time with him overseas at his home, as agreed and failing agreement, in lieu of the time in Order 18 as follows:
(a)In January 2025 for up to seven days commencing 5 January 2025, with one period of up to four consecutive days (five nights) and each other day from 10.00 am until 5.30 pm;
(b)In June/July holidays 2025 for up to 10 days, commencing from the first Monday, for a period of up to seven consecutive days (six nights) and each other day from 10.00 am until 5.30 pm;
(c)In January 2026 for up to 10 consecutive days, commencing 5 January 2026;
(d)In June/July holidays in 2026, and each year thereafter unless otherwise agreed, for two weeks commencing on the third day following the end of the second school term and concluding fourteen days thereafter;
(e)In 2026, and each alternate year thereafter:
(i)for half of the Christmas school holiday period, commencing on the second day following the end of the fourth school term and concluding at 5.00 pm on the middle day of that school holiday period;
(f)In 2027 and each alternate year thereafter:
(i)for half of the Christmas school holiday period, commencing at 5.00 pm on the middle day of that school holiday period and concluding at 5.00 pm two days before the commencement of Term 1;
(g)Such other times as agreed between the mother and father.
21.The father be responsible for the cost of all flights for the child for the purpose of spending time with him.
22.For the purposes of Order 20:
(a)for the first two overseas trips the mother shall accompany the child, with the father to meet the cost of the mother's return flights in economy class and reasonable accommodation in the vicinity of the father 's residence; and
(b)thereafter until such time as the child attains the age of 15 years, the father will ensure that the child is accompanied by the father, or a member of the father’s family known to the child and the costs of such travel will be paid by the father; and
(c)thereafter when the child reaches the age of 15 years, he may travel unaccompanied (if he so elects).
23.That upon the age of 15, or as otherwise agreed, the parties consider the child’s wishes when scheduling overseas travel, particularly in the face of competing schooling commitments.
Family Therapy
24.Pursuant to s 13C of the Act, each of the mother and the father continue to attend upon Mr L at M Therapy (“the Family Therapist”) for therapeutic counselling for such period after the date of these orders and at such times as the Family Therapist recommends, with an aim to:
(a)to assist the parties in gaining insight into the needs of the child;
(b)to assist the parties in improving their co-parenting relationship; and
(c)obtaining advice as to how best to introduce the child to the paternal family in a child focused and sympathetic manner if same is deemed by the Family Therapist to be in the child’s best interests.
Injunctions
25.The parties be and are hereby restrained from:
(a)discussing any Court proceedings between the parties with the child, or allowing any third party to discuss such proceedings with the child;
(b)denigrating the other party, or a member of the party's immediate and extended family, to the child or within his hearing or allowing a third party to denigrate the other party or a member of the party's immediate and extended family to the child.
26.Prior to the father’s wife, Ms B, spending time (including telephone time) with the child, the father cause the filing of an Undertaking executed by Ms B, as prepared and exhibited to the father’s affidavit filed 23 October 2023 at paragraph 107.
Ancillary
27.The parties shall keep each other informed of their residential address, phone number and email address and shall notify each other of any changes to these details in writing as soon as reasonably practicable and no later than seven days of any such change.
28.These orders mutually authorise both the mother and the father to contact such organisations, schools and health professionals joined, attended or treated by the child and obtain all relevant reports, records and notifications ordinarily provided to a parent.
29.The mother and father shall inform each other as soon as is reasonably practicable of any serious illness or injury suffered by the child whilst he is in their respective care and of any attendances upon medical professionals for serious illness and injury and provide particulars of any treatment given or medications prescribed.
Costs
30.If any party seeks costs an application in the appropriate form supported by affidavit evidence is to be filed and served within 28 days of the date of these orders.
31.If no application for costs is filed within the time specified, there shall be no order as to costs.
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 Simons & Morin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are proceedings between the applicant mother, Ms Simons (“the mother”) and the respondent father, Mr Morin (“the father”) under Pt VII and Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) concerning both parenting and property issues.
The parties have one child of the relationship, namely X (“the child”). The child was born in Sydney in 2015 and is presently aged eight years.
BRIEF BACKGROUND
The mother was born in 1976 in Queensland. She works full time as a senior manager.
The father was born in 1973 in City J, United Kingdom. He is a dual citizen of both the United Kingdom and Australia. He works full-time as a Partner in the City J office of a business with headquarters in the United States.
Both the mother and the father are qualified as professionals and maintain relevant accreditation.
The parties never married. They disagree on a great many of the circumstances of their relationship, including the date and nature of their separation. Until the first day of the final hearing the father disputed the parties were in a de facto relationship pursuant to the definition in s 4AA and s 90SB of the Act. However, this is now conceded by him and therefore, it is not necessary to traverse or resolve many of the factual disputes raised by the parties regarding their relationship. However, some background remains relevant to the remaining issues in dispute.
The parties first met while working in a business in Australia in 2004.
The father was previously married to Ms R and they have one child together, namely Mr D. Mr D was born in 2003 and is currently aged 20 years. He presently lives in New Zealand.
The mother argued that the parties had a relationship of varying levels of contact and commitment from around 2007. It appears from the evidence that a relationship began in about 2010 but waxed and waned over the next several years.
The father and Ms R separated on a final basis in 2012. The mother separated from her former husband in 2010 and was divorced in 2012.
The father resided primarily in Country U between late 2010 and early 2022. He was required to travel extensively for work. He engaged several live-in employees while living in Country U including an employee known as Ms S, who featured tangentially some of the evidence.
The evidence satisfied me that after the end of the parties’ previous marriages in 2012 and until October 2014, their relationship became closer.
The mother purchased an investment property at V Street, Suburb W, Town Y (“Town Y”) for around $320,000 in 2012.
In 2014 the father was employed as a partner of the business Z Company, located in Country U earning approximately USD1,506,033 or AUD1,611,455 per annum. The mother was employed at AA Company, another business in the same industry, until mid-2014, and between mid-2014 and early 2015 by BB Company in Country U.
The father caused a corporate entity to purchase a property in Town G, Country N (“Town G”) in 2014 for EUR800,000 or AUD1,136,000. There was no dispute that this property should be treated as an asset of the father.
The mother contends the parties commenced the IVF process in 2014, with the father having deposited his sperm sometime in early 2014 and mid-2014. The mother fell pregnant with the child through IVF in 2014.
It was ultimately an agreed position that the parties commenced cohabitation by no later than mid-2014 in the father’s rented home in Country U.
The mother returned to Sydney in 2015. The child was born in 2015.
In 2016 the parties purchased the property located at K Street, Suburb F (“Suburb F”) as joint tenants.
In 2018 the father purchased H Street, Suburb O, City J (“Suburb O”) for GBP3,250,000.
In 2019 the father purchased Q Street, Suburb T in the United Kingdom (“Q Street”) from his mother for GBP350,000. This property had passed to his mother by inheritance after the death of his father.
The father claimed that he and Ms B became engaged in 2019 and were married in 2020. Ms B has one other child from a previous relationship, namely C. C was born in 2017 and is presently aged six years old.
The parties accepted that their relationship came to an end in February 2020.
In early 2022 the father relocated to the United Kingdom. He left Z Company and joined VV Company where he is currently employed. He took a reduced income and claims to pay tax at a higher rate in the United Kingdom than he did in Country U.
The father and Ms B’s son, JJ was born in 2022 and is presently aged one year.
The father sold a one third interest in KK Street, Town LL, UK (“KK Street”) for GBP165,000 or AUD321,750, and gifted this amount to his mother in late 2022.
The child was unaware of the existence of his half-siblings, step mother and step brother until 2023, in part due to injunctive orders of 20 September 2022 which restrained the parties from introducing or discussing the child’s paternal siblings or step mother with the child accept as recommended by the family therapist, Mr L. Following a variation of the orders of 20 September 2022, the child was informed that Mr D was his half-brother on 8 January 2023 when they were introduced on a phone call. They have not seen each other in person since the child learned Mr D was his half-brother though the father contends they have had numerous video calls.
The child became aware of the existence of Ms B, C and JJ during a family therapy session in September 2023. The child has not met nor spoken to Ms B, C or JJ.
Presently, the child resides in Australia in Suburb F with the mother, who has been the primary carer since the parties’ separation. She presently works as a senior manager. She works full‑time mainly from home and goes into the office on Wednesdays.
The father presently resides in Suburb O with Ms B, C and JJ. There was no suggestion by either party that the father would not remain living in the United Kingdom.
PROCEDURAL HISTORY
The mother commenced proceedings on 30 July 2020 in the Family Court of Australia (as it then was) seeking financial orders only.
The father filed his Response on 3 November 2020 and an Amended Response on 2 December 2020 which introduced an application for parenting orders on a final basis.
On 3 March 2021 orders were made appointing Dr E to prepare the Family Report. This report was subsequently released on 22 February 2022.
On 20 September 2022, following an interim hearing orders were made for the father to spend time with the child in Australia. The father’s time was to progress gradually and included periods of overnight time. The father was restrained from introducing the child to Ms B, C, JJ and Mr D. The parties were directed to make enquiries with Dr E as to whether further family therapy with Mr L was necessary.
On 31 October 2022, Austin J heard an Application for Review and orders were made for the child and the father to have three calls per week and for an injunction restraining the introduction of Ms B, JJ or any other child other than Mr D in accordance with the recommendations of the family therapist.
On 4 November 2022, the mother filed an Application in a Proceeding seeking inter alia orders for partial property settlement and the continued payment of mortgage and expenses in relation to Suburb F.
On 29 November 2022 consent orders were made for the father to pay $6,000 per month for 12 months to be applied to the mortgage over Suburb F together with all expenses for Suburb F and the payment of the mother’s costs in the amount of $120,000. This payment was categorised as a partial property settlement.
The final hearing commenced on 25 October 2023 before me and ran for four days.
PROPOSALS AND ISSUES IN DISPUTE
The mother’s proposed orders, contained in her Amended Initiating Application filed on 4 October 2023, are set out in Annexure “A” at the conclusion of these reasons. The father’s proposed orders, as contained in his Further Amended Minute of Orders which was marked as Exhibit 8, are set out in Annexure “B”.
Parenting
Both parties agreed that the child should live with the mother. The mother seeks sole parental responsibility with a requirement to consult with the father about long term issues. The father seeks an order for shared parental responsibility with the exception that the mother have sole parental responsibility for urgent and day to day medical decisions.
The parties both agreed that the child should spend time with the father and were in broad agreement regarding the father’s time with the child in Australia. Both parties agreed that the mother should facilitate weekly and special occasion video calls between the child and the father, though the mother seeks orders for two video/telephone calls per week whereas the father seeks orders for three video calls per week.
The more difficult dispute related to the child spending time with the father in the United Kingdom. Ultimately the debate centred on whether time at the father’s City J home should commence in June 2024 or January 2025 and how long the child should spend in the father’s care in the United Kingdom. The father also proposed that the mother be at liberty to accompany the child on the first overseas trip, at the father’s expense. The mother seeks orders that she accompany the child on the first two overseas trips.
Both parties agreed that there should be a continuation of family therapy with Mr L though they differed on the duration, with the mother proposing 12 months and the father proposing six months.
Property
The mother sought 50 per cent of the property pool to be achieved by the transfer to her of the Suburb F property, with the father to discharge the mortgage and make an adjustment payment of cash. She sought further orders compelling the father to sell Suburb O in the event of default. The father agreed that his interest in the Suburb F property should be transferred to the mother but proposed to pay only $850,000 towards the mortgage by way of $6,000 monthly instalments. The father sought orders that the mother refinance the balance of the mortgage debt in her name. The father contended that no further adjustment is warranted.
ISSUES LEFT FOR DETERMINATION
Taking into consideration the proposals and issues raised by each of the parties, this leaves for determination the following:
(a)The allocation of parental responsibility;
(b)When the child should travel overseas with the father and the frequency of any overseas trips;
(c)The times and frequency of telephone communication between the child and the father;
(d)The length of time that the parties should continue attending upon the family therapist; and
(e)The percentage adjustment of property interest and how this should be achieved.
MATERIAL RELIED UPON BY THE PARTIES
According to the mother’s Case Outline filed 24 October 2023 she sought to rely upon the following documents:
(1)Amended Initiating Application filed 4 October 2023;
(2)Notice of Child Abuse, Family Violence or Risk filed 24 February 2021;
(3)Her financial statement filed 4 October 2023;
(4)Affidavit of the mother affirmed and filed 4 October 2023;
(5)Affidavit of Ms P sworn and filed 4 October 2023;
(6)Affidavit of Ms DD affirmed and filed 4 October 2023; and
(7)Affidavit of Mr CC affirmed and filed 24 October 2023.
The affidavits of Ms DD and Mr CC were the subject of objection, however were allowed and the affidavits were read. Neither Ms DD nor Mr CC were cross-examined.
The mother further relied upon her affidavit in reply filed 24 October 2023.
The mother and Ms P were cross-examined.
The father sought and was granted leave to read the following documents, despite not being filed in accordance with directions of the Court:
(1)Affidavit of the father filed 23 October 2023;
(2)Financial statement of the father filed 23 October 2023; and
(3)Affidavit of Ms QQ dated 25 October 2023.
The father was cross-examined.
The documents tendered and received into evidence are set out in Schedule 1 to these reasons.
EXPERT EVIDENCE
Property
A number of single expert witnesses were appointed to undertake property valuations in this matter. The following affidavits were filed:
(1)Affidavit of Mr RR filed 13 October 2023 annexing valuation report for Suburb F as at 8 April 2021 and 25 August 2023;
(2)Affidavit of Mr SS filed 4 October 2023 annexing the valuation report for Town Y as at 1 June 2021 and 24 August 2023;
(3)Affidavit of Mr TT filed 5 October 2023 annexing the valuation report for Suburb O and Q Street, as at 18 May 2021 and 8 September 2023; and
(4)Affidavit of Mr UU filed 10 October 2023 annexing the valuation report for Town G as at 20 June 2021 and 20 September 2023.
Neither party sought to formally read or tender the affidavits of the single expert witnesses who undertook the property valuations, nor were they required to be cross-examined. The values were ultimately agreed and relied upon by both parties.
The father’s sought leave to rely upon a retrospective valuation of Town G as at August 2014 however ultimately did not press the application, on the basis that it was accepted renovations undertaken at the Country N property and paid for by the father would have added to its value.
Senior counsel for the father on day four of the final hearing sought leave to read and rely upon the affidavit of Mr PP, being the father’s accountant, which sought to adduce evidence as to the father’s estimated taxation liability in 2024 and projected Capital Gains Tax should Town G or Q Street been sold. I declined leave to the father to file and rely upon the affidavit of Mr PP and foreshadowed that I would provide reasons in this judgment.
The reasons were as follows. The evidence was served late, outside the Court’s directions and should have been made available in proper form well before the commencement of the trial. The proposed evidence of Mr PP raised issues of the application of foreign revenue laws and the quantification of tax liabilities if certain assets were sold. He annexed calculations the basis of which were not properly disclosed, and were designed to introduce evidence which had been earlier rejected as inadmissible during the course of the trial. As the mother submitted, the issues to which the evidence was said to be relevant should have been obvious well before the trial. The late service denied her the opportunity of making her own enquiries, and receipt of the evidence by the Court would have required the mother’s senior counsel to cross-examine without the opportunity of obtaining informed instructions or would have resulted in the adjournment of the trial. Ultimately, the evidence did no more than estimate a future tax liability which may or may not accrue. The potential tax liabilities of the father can be taken into account under s 90SF, curing or ameliorating any prejudice to the father.
Parenting
The Family Report filed on 24 October 2023 (“the Family Report”), was based, as described by Dr E, on the material filed by the parties so far in the proceedings and the interviews conducted, as set out at the commencement of her report. Dr E recorded the observations made by her as a result of conducting interviews with the child and the parents individually as well as the child with each of the parents. Both parties relied upon the Family Report and Dr E was the subject of cross-examination.
I will refer to the content of the Family Report as necessary during the course of these reasons.
Family Report Recommendations
The Family Report writer made recommendations at pages 43 to 44 of the Family Report to the following effect:
(a)Prior to the child spending time with the father in the United Kingdom the father should first make a concerted effort to have regular time with the child in Australia. This time should include attending school, sport, extra-curricular events to ensure the child feels the father is involved and interested in the everyday aspects of his life;
(b)It would be beneficial for the child to spend time with Mr D in person, if Mr D would be willing to travel to Australia during one of the father’s visits with the child, prior to introductions to other members of the paternal family;
(c)The mother should accompany the child to the United Kingdom in the first instance and that the child should have daytime contact with the father. Dr E noted that in order for such time to be successful the child “will need to feel confident that both parent’s are supportive of it, and in particular that his mother is also welcomed in the UK”; and
(d)The child be introduced to his broader paternal family initially, being cousins, grandparents and aunts and uncles. After those relationships have been consolidated then the child could be introduced to Ms B, JJ and C. Dr E further recommended that the father seek additional professional support on how best to support the child in this transition.
In her oral evidence, Dr E held firm to these views. Indeed, having considered updated material, she said in her oral evidence that she felt “more cemented” in them (Transcript 30 October 2023, p.235 lines 35–39). She also confirmed that she believed the child should have knowledge of his other family members, including his half and step siblings to achieve “integration by [the child] of that knowledge without compromising his feelings of being wanted and loved by his dad” (Transcript 30 October, p.236 lines 22–23).
THE CHILD
The child is eight years old.
He attends OO School in Sydney where he is in Year 3. The school has recorded no significant behavioural or academic concerns, though it appears the child at times has been struggling with focus.
The child engages in a range of extracurricular activities in addition to compulsory school sport which commenced in 2024.
The child is in good health with the exception of a recent bout of recurring vomiting for which he is undergoing current tests.
The child has been attending upon Mr L for the purpose of family therapy from 23 June 2022. The child has had both individual sessions and joint sessions with Mr L. Mr L has also had individual sessions with the mother, the father and Ms B.
The mother deposed that the child has been exhibiting increasing signs of anxiety, particularly with respect to being separated from her. The notes of Mr L which became Exhibit “H” affirm that the child has been experiencing some anxiety which he has been assisting the child to navigate.
In her affidavit, the mother gave evidence of a range of medical needs the child has which she has attended to in the father’s absence.
PARENTING DISPUTE
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order, to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if the Court believes on reasonable grounds that a parent has engaged in abuse or family violence, or it can be rebutted in the best interests of the child.
The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb”) at [68]–[69], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. I have considered each statutory consideration. I will discuss only those which appeared relevant from the way the parties presented their cases.
I turn then to the best interests of the child.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act, which are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act), although there are no risk factors in this matter.
Section 60CC(2)(a), “meaningful relationship”
A “meaningful relationship” is one which is “important, significant and valuable to the child” (Mazorski v Albright (2007) 37 Fam LR 518; McCall & Clark (2009) FLC 93-405 (“McCall”)). A “prospective approach” is preferred, requiring the Court to consider at the date of the hearing how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (McCall at [118]–[119]). The legislation aspires to promote a meaningful relationship, not an optimal relationship (M & S (2007) FLC 93-313; Godfrey & Sanders (2007) 208 FLR 287; Champness & Hanson (2009) FLC 93-407). See also Sigley & Evor (2011) 44 Fam LR 439.
The connection between the risk of impairment to maintenance of a meaningful relationship with a non-custodial parent and a great distance between households is well recognised (Franklyn & Franklyn [2019] FamCAFC 256 at [27]).
There was no dispute that the child would benefit from a meaningful relationship with both parents. The difficulties created by the parents living in different hemispheres can be overcome. It was broadly common ground that although the child would continue to live in Australia with the mother, he should have frequent communication with the father by electronic means, and spend block time with the father in both Australia and the United Kingdom.
Section 60CC(2)(b), protection from “abuse” and “family violence” and risk
There was no submission that the child was at risk of abuse or family violence in the mother’s care. As noted the parties agreed the child should live with the mother.
There was some suggestion of risk in the father’s care. The mother filed a Notice of Risk on 24 February 2021 outlining her concerns about the father, including allegations that he drugged Ms B with a cocktail of the contraceptive pill, morning after pill and abortion pill leading to concerns that he may be suffering from a psychiatric illness or psychological disorder. She also made claims that Ms B drinks alcohol to excess. During the hearing the mother alleged controlling behaviour by the father.
A finding of family violence would result in the presumption of equal shared responsibility not applying. The father argued that the evidence in support of allegations of family violence was hearsay and of little or no weight. There is some force in that submission. But I do not consider it necessary to undertake any detailed determination of the truth of the mother’s allegations. There was no dispute that the child should spend time, including overnight time, in the father’s care in Australia and the United Kingdom in the future. I will return to the presumption later and explain that I consider it rebutted in the best interests of the child in any event.
Rather the difficulty was whether the child should travel to the United Kingdom to spend holiday time in the father’s household, beginning in June 2024, as the father proposes, or January 2025 as the mother proposes. Tensions arising from the father’s complicated relationship and domestic circumstances are relevant to this question but are more appropriately dealt with under s 60CC(3)(d) below.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34. In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
35. ... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
Dr E states that she found the child to be intelligent, sensitive and observant (Family report, p.37 line 962). The mother’s evidence suggested the child expressed anxiety about spending time with the father and was unclear about how he felt about JJ and C. She said he was anxious about separating from her. According to the father, the expressions of view by the child to him did not manifest such reservations. Rather the child was excited about his wider paternal family and wants to speak to father more frequently.
As reported by Dr E, the child is not aware of the parents’ competing proposals. However, to her he did express the view that he likes it when both parents are present at events in his life. In his written submissions the father argued that the child’s views were consistent with a child eager to connect with his father and paternal family but wary of damaging the fragile emotional balance of his mother, the primary attachment figure. I accept this is broadly correct.
The child will be aged almost nine years at the date of judgment. His views cannot be ignored, and in any event, the evidence was clear that the child wants to speak regularly and spend more time with his father. The difficulty was how this should be achieved, in light of the father’s residence in City J and the complexity of his domestic circumstances.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
Dr E found that the child has a positive, loving and secure attachment relationship with his mother. She reports the mother to have an appropriate balance of nurturing, attention and love with structure and firm boundaries. She found there to be a degree of dependence between the child and the mother based on the child being an only child, being only in the care of the mother (as opposed to a shared care arrangement), and due to spending more time together during the COVID-19 lockdowns.
I am satisfied the child also has a warm and loving relationship with his father, but it is not as comfortable or as close as the father believes it is. Dr E commented:
I think [the child] is the sort of child who tells each of his – he hides his emotions quite well, and he was very concerned, when I met him, about protecting his parents and being an adult and correcting things. And so it could also have been the case to his father [the child] was saying the things that his father wanted to hear like, “It’s great. It’s going well”. But then when he’s with [Mr L] or with his mother or with other people with home he might feel that he has a closer relationship or he’s able to express these things, he can actually say, “Actually, I was really scared. I didn’t like it. I was worried. I didn’t know what to say or what to do.” So it’s not just potentially reflective of the father ignoring or being unaware of [the child’s] cues and behaviours, but it might also be reflective of the father simply not having that – what we were talking about earlier, having a close enough relationship or bond with [the child] that [the child] would feel comfortable telling him how he truly feels.
(Transcript 30 October 2023, p.240 lines 11–23)
The father argued that the child’s relationship with him was undermined by the mother’s negative narrative about him. However, despite evidence of the mother denigrating the father at times, there was also no doubt that the child loves his father, despite any negative narrative by the mother. I consider aspects of the child’s relationship with the father further below under s 60CC(3)(d).
(ii) other persons (including any grandparent or other relative of the child);
The child has a warm relationship with the maternal grandmother. The evidence showed the child’s relationship with the wider paternal family is nascent at best.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
Both parents have been involved in making long term decisions about major long term issues affecting the child.
(ii) to spend time with the child; and
The mother clearly has taken opportunities to spend time with the child, who lives with her.
It has been much more difficult for the father to do so because of restrictions imposed by geography.
From the child’s birth in 2015 until 2020 the father travelled to Australia at least four times per year to spend time with the child. The mother and child additionally spent time with the father overseas prior to separation. However due to border restrictions the child did not have any physical contact with the father between March 2020 and January 2022. During that time, the father had frequent telephone contact with the child.
The evidence showed that between January 2022 and September 2023 the father has spent block time with the child comprising a total of approximately 29 days over six separate visits. During this time the child has spent a total of six nights with the father, with the first overnight time occurring in January 2023 and the longest consecutive period being three nights in September 2023. Pursuant to the orders of 20 September 2022 the father travelled to Australia to spend time with the child in January, April, and September 2023. Additionally, the father spent some time with the child in February 2022 when the father travelled to Australia for the interview with Dr E. The father has spent primarily holiday time with the child, however he spent some term time with the child during his five day trip in April 2023. During the father’s time in September 2023, he attended a sports game in which the child was playing, and took him to a sports camp. The father most recently spent some time with the child by agreement between the parties prior to the trial.
The father conceded that while he has endeavoured to travel to see the child four times per year as provided for in the orders, he was unable to travel to spend time with the child in the June 2023 school holidays as a result of his financial circumstances, work and other family commitments. These restraints have meant that he has at times been unable to spend the full amount of time with the child as provided for in the orders.
Some of the mother’s evidence criticised the father for failing to take up additional time with the child. I accept there is some force in this. However, the father has been diligent in maintaining communication with the child, a point made by Dr E (Family Report, p.39 lines 1026 –1029).
(iii) to communicate with the child;
Both parents have taken the opportunity to communicate with the child. As already noted the father has been diligent in maintaining communication despite living in the United Kingdom.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Both parents have fulfilled their obligations to maintain the child, although the burden has fallen primarily on the mother.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
The important question of travel to the United Kingdom, raised by both proposals, can be dealt with under this subparagraph. There is acceptance that the child’s circumstances should change in the near future by travel to the United Kingdom to live for block periods in the household of the father. This will involve separation from the mother, and the impact on the child of being exposed to the father’s household in the United Kingdom.
I have referred earlier to tensions in the father’s household. These have been exacerbated to some extent by the conflict between the parents. In Dr E’s report, it is suggested that the child has been exposed to the conflict between his parents either advertently or inadvertently. At the time of the interviews with Dr E, the child referred to Ms B as “the awful […] lady” and told Dr E “they have been together since I was in mum’s belly” and “they found out about each other when my mum found out that she was having a baby and mum and dad also loved each other. My dad told lies to keep it a secret and mummy didn’t know about it all” (Family Report, p.33 lines 818–824).
Dr E similarly expressed her concern as to the father’s failure to be “child focussed” and “transparent” in helping the child adjust to his parent’s separation. As a consequence, she opined that the child “now has a maladaptive view of his father’s new marriage and his parent’s separation and considers himself responsible for rectifying matters” (Family Report, p.41 lines 1066–1070).
Dr E agreed that the child needed a clear and agreed narrative about the circumstances of his parents’ separation, that is, “a certain understanding that’s common to the family unit as to what has happened and why he finds himself where he is” (Transcript 30 October 2023, p.242 lines 1–4). This needs to make clear he is not to blame. She commented:
… The no blame part is actually very important because the separation story he had as it was when I met him had led him to – because first of all, it was vague and very confusing actually for me let alone a then six year old child. But it left him with a feeling that he was responsible for it. And the risk in events as they have unfolded, including the father’s life in the UK and his family in the UK, I think and – I think is still high is that [the child] will feel that it was something he himself did not do. There was something wrong with him. That he wasn’t something enough, good enough ... your word there. “For Dad to love me and stay with me and Mum.” I know that’s not correct thinking but that’s, I think, is what [the child] – the risk in [the child’s] mind is that the separation story isn’t clear and child appropriate and leaves [the child] with no doubt that it is not his fault, that Mum and Dad love him and that he is a loved and wanted person. And even though there are other – Dad has other children, then that’s – then it leaves [the child] at this sort of risky, psychologically messy place.
(Transcript 30 October 2023, p.242 lines 19–32)
I outlined Dr E’s recommendations above at [60]–[61].
In answers to question from the father’s senior counsel she emphasised:
So I think that what won’t work for [the child] is a view that he can have a life in the United Kingdom that is cleaved off from, sort of, the other aspects of his life, and that is in secret from his mum and that is, you know, something that causes her anxiety and concern or anger that he is made to feel responsible for.
(Transcript 30 October 2023, p.262 line 44 to p.263 line 1)
The notes of Mr L also recorded a concern by the father that the child did not “know him” (Exhibit H, p.41). Mr L appeared to recommend that the best way for the child to know the father was by them spending quality time together.
The time spent with the child by the father since the interviews with Dr E in February 2022 is described above under s 60CC(3)(c). Dr E gave oral evidence that the number of occasions did not represent the level of engagement or type of activities referred to in her report where she spoke of the father needing to make “[a] concerted effort to have regular time”, becoming involved “in some of the everyday aspects extra-curricular and social events with [the child]” (Family Report, p.43 lines 1158–1162; Transcript 30 October 2023 p. lines 7–14). In answers to question from the father’s senior counsel she emphasised:
… the question here isn’t how much time does the father get with [the child], but what experience does [the child] have of a father who is invested in his life here, and I would say this whether the father was living down the road … being part of his life sometimes means doing things that are not in your interest but are in the child’s interest, like driving him to his activities and sitting at the side […] and watching him do his lesson …
(Transcript 30 October 2023, p.254 lines 23–39)
Dr E accepted that:
… I think [the father] has put in effort – genuine efforts to love and connect to his son, and as I said in my report – and I still hold the view – I think that he is a very good father who cares about his son and who has very good skills in getting on with [the child]. That’s – that’s definitely – there’s no risks here. There’s very positive things for [the child] to get out of his relationship with his father.
(Transcript 30 October 2023, p.255 lines 4–8)
She agreed that the father appeared more focussed on the child knowing his life in the United Kingdom as opposed to making sufficient efforts to know the child’s life in Australia. She expressed a concern that if the child was anxious and did not have a sufficiently embedded relationship with the father so that he felt comfortable to go to his home in the United Kingdom, being “catapulted” into the father’s family situation in the United Kingdom, having known “about [Mr D], his father’s marriage, the birth of a new child, all his relatives in the UK” only for a short time, he is at risk of escalating anxiety and not coping. Dr E said:
… And to me, at his age, those are really big risk factors, and the long-term sequalae of doing that prematurely without that solid base would be that he ends up having a very anxious attachment to his father and the whole paternal family; that he might feel like he’s being disloyal to his mother and that he is – has no way of dealing with what are fairly complex emotions for a little boy …
(Transcript 30 October 2023, p.237 line 46 to p.238 line 4)
Dr E emphasised that if the father wanted a meaningful and close relationship with the child he would have to put in the time and effort needed to achieve this.
Dr E also pointed to the fact Ms B’s capacity to deal with the presence of the child in her household was unknown and this impacted the question of how the child would integrate into the father’s household:
… Well, the only other thing I would say is that I think that my concern is that the issue of the father’s wife and her capacity to assist [the child] and to integrate him into a brand-new situation that he was – as I said, as I understand it, has only recently become aware of, is untested, and there are areas of that that cause me concern in reading the counselling notes …
(Transcript 30 October 2023, p.238 lines 10–14)
And later the following exchange took place:
[COUNSEL]: And so the reality is this, isn’t it, that before you could confidently support or opine as being in [the child’s] best interests and travel overseas and involvement with [Ms B], you would need to have, wouldn’t you, the opportunity to perhaps some greater understanding and assessment of [Ms B] and her part in all of this picture?
[DR E]: Yes. Well, especially if [the child] is going to be living in that household and integrated into that family unit, very much so.
…
I think that all the indicators are that a conservative or cautious slower approach is indicated to protect [the child’s] psychological health and his future relationship with his father and his siblings and broader paternal family.
[COUNSEL]: And importantly his relationship with his mother, of course?
[DR E]: Yes.
(Transcript 30 October 2023, p.247 lines 16–35)
The notes of Mr L similarly recorded the need for caution in introducing new people into the child’s life. He noted that the child was experiencing some anxiety when spending time with his father (Exhibit H). Mr L expressed the view that this was one reason why the child should be accompanied by the mother when travelling overseas to the father’s care, because he could not “yet do overnights safely” and without anxiety (Exhibit H, p.47). Dr E agreed with this view.
Senior counsel for the mother put to Dr E that the father’s domestic circumstances in City J had only come together recently, with the Ms B’s two children, C and JJ living with her and the father, and that the father proposed to introduce the child to many members of his extended family, including 12 cousins. Dr E said this heightened her concerns about his proposals and the father’s insight into the needs of the child (Transcript 30 October 2023, p.245 lines 41–44).
It was then the view of Dr E that as matters presently stand, orders requiring the child to spend the whole of the June/July 2024 holidays with the father in the United Kingdom would be too much for the child to cope with effectively.
It was also the proposal of both parents that the child should begin spending overnight time with the father in Australia. The mother proposed the child spend four nights during term time, then during holidays, three nights in 2024 progressing to four nights in 2025 and then five nights from 2026 onwards. The father sought a more rapid progression to seven nights in the school holidays. In her oral evidence Dr E supported the mother’s slower progression. She did not accept the father’s suggestion that the child may need a “push” as recorded in the notes of Mr L (Exhibit H, p.47; Transcript 30 October 2023, p.244 lines 1–6).
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
No submissions were made under this subparagraph.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There is clear practical difficulty in the child spending time with the father, although the parties have facilitated regular phone communication between the father and the child.
The father deposed that he has found it difficult to travel to Australia four times per year to spend time with the child due to his work and family commitments and financial pressure. The father’s proposed orders would see the child spending extended periods of time with him and the paternal family in the United Kingdom “in a location [where] I have lot more control and consistency in my work life … to ensure I can be present and attentive to the child” (Father’s affidavit filed 23 October 2023, paragraph 60).
The father proposes to pay for the costs of the child’s travel to and from the United Kingdom.
The parties agreed that for at least the child’s first trip to the United Kingdom he will need to be accompanied by the mother. I will return to the dispute as to how many trips the mother should accompany the child for below. The father has indicated that he will pay the reasonable costs for the mother’s travel and accommodation. The mother submitted and I accept that she is unable to work remotely and will be required to take time off work in order to accompany the child.
(f) the capacity of:
(i) each of the child’s parents, to provide for the needs of the child, including emotional and intellectual needs
I am satisfied both parents generally have capacity to provide for the child’s needs. I have some reservations about the father’s capacity to provide for the child’s emotional needs. The father’s domestic circumstances will inevitably require him to devote emotional energy to a number of competing relationships, such as Ms B, and his other children and step children.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
As previously discussed, Ms B did not provide any affidavit evidence, was not called as a witness by the father, nor did she attend the interviews with Dr E. As a consequence, the extent of the Court’s insight into Ms B’s capacity to meet the needs of the child while he is in the United Kingdom is limited to the notes of her attendance upon Mr L and the father’s evidence. The Court is unable to form a clear view regarding her attitude towards the child and her capacity to support the child while he spends time with the father in the United Kingdom. While the paucity of evidence on this point is regrettable, on either party’s proposed orders the child will be spending some time in the father home, which is also Ms B’s home. I am driven to conclude that the absence of evidence from Ms B counsels a more cautious approach to introducing the child into the father’s family and domestic circumstances in the United Kingdom.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
There are no other factors relevant under this subparagraph beyond those already set out above.
Section 60 CC(3)(h) then deals with factors to consider for Aboriginal and Torres Strait Islander children. These are not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
The mother has demonstrated a sound attitude to her responsibilities as a parent.
The father concentrated on evidence which indicated the mother had a history of denigrating him, “over-disclosing” issues in the proceedings to the child and suggested she had attempted to alienate the child from him. He submitted that this evidence and the fact that her proposed orders would mean the child would not “practically, meet his half brother and step brother, even though he knows about their existence, for another two years” (Father’s written submissions dated 30 October 2023, paragraph 100), demonstrated that the mother’s intention is to prevent the integration of the child into the father’s family life as long as she can (submitted under s 60CC(3)(e) but appropriately mentioned here).
I do not accept the evidence supports a conclusion that the mother was incapable of supporting a positive relationship between child and father. As Dr E said in her oral evidence:
… I also think it’s important that I tell the court that I, despite the concern that – being about the mother and some of the things that I have been answering questions on – that [the child] has a very close and positive relationship with both his parents. This is not a case where a mother has undermined and alienated the child’s relationship with the father. So despite the flaws in her parenting – and there have been some – she has still managed in absence. So there’s no way that [the child] could have as positive an attitude to his father, and a willingness and an openness to have this relationship, and feel positively about his father if the majority of the interactions between mother and son were not positive and supportive of that, because he is here with her the vast majority of his time. So even if there have been flaws in her parenting, and even if she has had trepidation and wariness about this, he has a – a positive relationship which couldn’t happen unless the overall flavour was supportive and positive of [the child’s] relationship with his paternal family. And I saw that in the counselling notes – that when she had made errors in her parenting and those were pointed out to her by the counsellor, she was very motivated – and this accords with my assessment of her – to do things that were in [the child’s] best interests socially, emotionally and psychologically. And so I do believe and think very strongly that she wants [the child] to have a good relationship with his father.
(Transcript 30 October 2023, p.263 lines 1–19)
Nor do I accept that father’s submission that the mother simply wants to prevent the child’s integration into the father’s family life as long as she can. No doubt the circumstances in which her relationship with the father came to an end has made the mother less than enthusiastic about the child spending time in a household formed by the father and Ms B. But the slower and more cautious proposal of the mother in this regard could only be characterised as a parenting deficit if it was objectively not justifiable. In my view it is justified. The mother’s proposed timetable for the child to travel to the United Kingdom to spend time in the father’s care is consistent with the evidence of Dr E and Mr L, as already discussed.
On the contrary, I am satisfied that the father’s attitude to the child being included in his complex family circumstances, as disclosed in his own evidence and his proposed orders, betrays a lack of insight into the emotional needs of the child.
Otherwise, I accept the father has a sound attitude to the responsibilities of parenthood.
(j) any family violence involving the child or a member of the child’s family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b).
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is preferable to make orders which are least likely to lead to the institution of further proceedings. The fact that both parents are well educated and high achieving, as well as good and loving parents, but nonetheless could not reach agreement about the appropriate parenting regime for the child raises concern about their ability to reach agreements in the future. The child will benefit from clarity and stability in the parenting regime. These observations militate in favour of a more prescriptive form of orders which reduces the possibility of impasses developing between the parents requiring intervention by the Court. Having said that, as will be discussed further below, in one respect the mother’s proposal for school holiday time with the father in the United Kingdom became unduly complex and restrictive, requiring less prescription in that regard, and removing one likely source of future litigation. Otherwise I am satisfied the proposed orders are least likely to lead to further litigation.
(m) any other fact or circumstance that the court thinks is relevant.
I have nothing add under this subparagraph.
LIVE WITH
It was an agreed position that the child should remain living with the mother. I am satisfied on the evidence that it is in the best interest of the child to remain living with the mother.
PARENTAL RESPONSIBILITY
I return to the question of parental responsibility.
The Act defines “parental responsibility” in s 61B as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. By operation of s 61C every parent of a child who is not 18 has parental responsibility for the child, subject to Court orders. A parenting order may deal with the allocation of parental responsibility (s 64B(2)). But such order confers parental responsibility “only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child” (s 61D(1)). It does not “take away or diminish any aspect of the parental responsibility of any person for the child” except to the extent expressly provided for in the order; or necessary to give effect to the order (s 61D(2)).
The mother argued that as the primary carer, for practical reasons she should be the parent to make decisions concerning major long term issues affecting the child. She also argued she should not be subject to a degree of control by the father through him also having equal parental responsibility.
At the time of the preparation of the Family Report the parties were both seeking orders for shared parental responsibility. Accordingly, Dr E did not make any recommendations regarding parental responsibility in her report beyond noting that the parties agreed that they should share parental responsibility. Counsel for both parties sought to elicit from Dr E confirmation that the allocation of parental responsibility could be used by the other party to exert some form of control over them. Dr E accepted that hypothetically a parent could do so (Transcript 30 October 2023, p.255 lines 22–25).
The father complained that an order allocating sole parental responsibility to the mother would be the mother’s “[u]ltimate control mechanism”, depriving him of “any decision-making responsibility”. In her oral evidence Dr E accepted the possibility that the mother could use sole parental responsibility to exert control over the father, but that “there’s no indication from the mother’s presentation to me that she would be motivated to act in that way” (30 October 2023, p.255 lines 25–27). Although she accepted that if the mother had continued to denigrate the father, it would suggest she held a high degree of bitterness towards him, however, the evidence does not satisfy me any such factual finding should be made. As already observed above, the child has a positive relationship with the father, despite limited contact. This is not consistent with the father’s expressed concerns about control by the mother.
The mother argued that an order allocating equal shared parental responsibility could not be made unless the Court was satisfied that “the parties have the ability to have open, functional and honest communication” (Transcript 30 October 2023, p.290 lines 11–15). She argued that, despite some sporadic examples of such communication, by and large they have a demonstrated inability to communicate constructively in the interest of the child, despite conceding some effective communication in her affidavit (filed 4 October 2023, paragraph 416).
The father accepted that since the mother will be the parent who deals with the child’s issues day to day and she should have sole parental responsibility in relation to medical care in the event of an emergency. But otherwise he presses for equal shared parental responsibility. He argued the presumption applied and was not rebutted.
Somewhat heroically the father argued that on the one hand the relationship was doomed to fail because the parties had different approaches to parenting and could not agree, and on the other hand that equal shared parental responsibility was appropriate because they could constructively co-operate. He pointed out that they had managed to reach agreement about the child’s schooling. It is possible for parties to communicate constructively, even more constructively than during the relationship, after separation. However, the evidence does not disclose that has happened in this case. The parties were unable even to agree about the details of telephone contact between child and father. The unhappy circumstances of the separation have clearly left a legacy of distrust and resentment particularly in the mother. It was the tenor of the father’s submissions that this supported equal shared parental responsibility because otherwise the mother would use sole parental responsibility against him. However, in my view, the best interests of the child compel the Court to allocate parental responsibility in such a way that the legacy of bitterness has less scope to promote further disputation.
I find that the presumption is rebutted in the best interests of the child. I consider the father’s concerns about control by the mother are exaggerated. Since the child will live primarily with the mother and in a different hemisphere to the father, with limited contact with the father, I accept it is more consistent with his best interests for the mother to have sole parental responsibility when the child is in her care. It will be the mother who carries the main burden of parenting the child in Australia where the child will spend the majority of his time. The practicalities of this reality militate in favour of allocating sole parental responsibility to her for decisions about major long term issues, such as health, schooling, and his residence. The proposal of the father in this regard is unrealistic in my view, who, by reason of the restrictions imposed by geography, cannot expect to engage with the child’s life in the way that the mother can. The mother proposes an order requiring her to consult with the father about major long term issues relating to the child. I consider this to be appropriate.
Having said that, the proposal of the mother is also unsatisfactory because it makes no obvious allowance for the fact that, on both parties’ proposals, the child will spend block time in the United Kingdom with the father in the future. As will be explained shortly, I prefer the father’s proposal in this regard. The question therefore is whether there should be allocated to the father any aspects of parental responsibility while the child is in his care. One obvious aspect is health and medical treatment. It is entirely conceivable that, in the ordinary course of human activities, the child may unfortunately suffer illness or injury which requires immediate or emergency decisions about medical intervention in the United Kingdom. It is in the best interests of the child that the father can demonstrate to hospital and medical staff that he has authority conferred by a court to make such decisions, which may affect the long term welfare of the child. Accordingly, the allocation of sole parental responsibility to the mother should be subject to the father having parental responsibility for health and day to day welfare while the child is in his care outside Australia.
TIME WITH THE FATHER
Given that no order will be made for equal shared parental responsibility, s 65DAA(1) of the Act is not engaged.
I return then to the question of the appropriate orders for the child to travel to the United Kingdom and live in the father’s home. I have discussed at length the relevant considerations in s 60CC. Overall I accept the opinion of Dr E that the father has “unrealistic expectations of the degree to which the child will be able to immediately cope with being introduced to the father’s life in [City J]” (Family Report p.36 lines 1085–1086). I conclude that the more cautious approach and timing proposed by the mother is in the best interests of the child. Therefore, the child should not begin spending block time with the father in the United Kingdom until January 2025. I also accept that he should be accompanied by the mother on the first two occasions.
The parties differed materially on the duration when the child begins spending time in the father’s City J home. The father proposed the child should spend 10 days with him in the United Kingdom in the July 2024 school holidays. I consider this would represent a commencement which is too early and inconsistent with the evidence. Consistently with the need for a cautious approach, I will make orders for 2025 holidays as the mother proposes initially, that is, seven days in January 2025, in a combination of overnight and day time, rather than half the Christmas school holidays as proposed by the father. In the interim the father can take steps to cement and enhance the child’s relationship with him by spending time in Australia.
After January 2025, the mother made no proposal for the child to spend time in the United Kingdom until June/July 2026, which would represent a gap of some 18 months. By June 2026 the child will be 11 years’ old. She then proposes time in the January 2028 school holidays, followed by the June/July 2030 school holidays and finally January 2032. By January 2028 the child will be almost 13 and by 2030 almost 15.
The father proposed a two week block period in the July winter holidays in 2025, followed by half the school holidays in the Christmas period between the end of 2025 and 2026. It seems to me that a block period of two weeks in 2025, again, is not supported by the evidence. However, 10 days in the June/July 2025 school holidays with the father in the United Kingdom in a combination of overnight and day time only, as the mother proposed for July 2026, is more consistent with the evidence, followed by 10, rather than seven, days in January 2026.
I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 19 March 2024
SCHEDULE 1 – MATERIAL TENDERED AND RELIED UPON BY THE PARTIES
Exhibit Label
Document
Tendered by
1
Therapy notes with Family Therapist session #8 with child dated mid-2023
RF
2
Therapy notes with Family Therapist session #9 with father, mother & child dated mid-2023
RF
3
Therapy notes with Family Therapist session # 10 with father & child dated late 2023
RF
4
Therapy notes with Family Therapist session #12 with mother dated early 2023
RF
5
Therapy notes with Family Therapist session #11 with father and child dated late 2023
RF
6
Exhibits to father’s affidavit
RF
7
FF Bank tax account 1/07/2023 to 30/09/2023
RF
8
Further Amended Minute of Orders sought by the father
RF
9
Joint balance sheet B
RF
A
Exhibits to the mother’s affidavit
AM
B
Exhibits to Mr CC’s affidavit
AM
C
Letter from Delaney Lawyers to EE Lawyers dated 9 December 2020
AM
D
Text messaged between parties
AM
E
Correspondence from the mother’s lawyers enclosing binding child support agreement
AM
F
Letter from Delaney Lawyers dated 28 April 2023
AM
G
Tax documents from the father for the 2022 tax year
AM
H
Notes of Mr L produced under subpoena
AM
I
Letter from Delaney Lawyers to Rubin Blight Hardy Lawyers and Mediators dated 8 May 2023
AM
J
Mother’s Costs Notice as at 30 October 2023
AM
K
Joint balance sheet
AM
L
Schedule of effect of the mother’s minute of orders
AM
ANNEXURE A – PROPOSED MINUTE OF ORDERS SOUGHT BY THE MOTHER
NOTATIONS
A.The Court notes that for the purposes of these Orders the following definitions apply:
(i) "the Act" means the Family Law Act 1975 (Cth);
(ii) "Applicant" means [Ms Simons];
(iii)"Date of these Orders" means the day on which these Orders are made by the Court.
(iv)"[City J] property" means the property known as and situate at [H Street, City J] in the United Kingdom, registered in the respondent's sole name;
(v)"[Suburb F] property" means the property known as and situate at [K Street, Suburb F] in the State of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier […] registered in the parties' joint names;
(vi)"[Suburb F] mortgage" means the registered mortgage to the Commonwealth Bank of Australia secured against the [Suburb F] property bearing mortgage number […];
(vii)"Rates and Charges" means all municipal and water rates and charges for the [Suburb F] property;
(viii)"Respondent" means [Mr Morin];
(ix)"Party" means the Applicant or Respondent;
(x)"Parties" means the Applicant and the Respondent;
(xi)"Adjustment Payment" means the sum required to be paid by the Respondent to the Applicant as is required to bring the total value of the Applicant's entitlements to net property to an amount which equates to 50% of the net divisable pool, having regard to the property interests held by and to be transferred to the Applicant pursuant to these orders.
ORDERS
1.That within 56 days of the date of these Orders (the due date) the Respondent pay to the Applicant or as she directs the Adjustment Payment.
2 .That on or before the due date the parties do all acts and, things necessary to transfer to the Applicant the [Suburb F] property on an unencumbered basis, with the Respondent to be solely responsible for repayment of Commonwealth Bank of Australia home loans #[…60] and […79] secured by the [Suburb F] mortgage NOTING the current combined balance of those two loans is approximately $1,165,439.
3.That pending compliance with the above Order 2, the Respondent pay all statutory outgoings, and mortgage instalments as and when they fall due in respect of the [Suburb F] property.
4 .That in the event the Respondent fails to pay the Applicant the Adjustment Payment as identified in Order 1 above by the due date the Respondent shall do all acts and things and sign all documents necessary to sell the [City J] property within a further 3 months for the best available price.
5.That upon settlement of the sale of the [City J] property pursuant to Order 4 the Respondent shall do all acts and things and sign all documents necessary to authorise and direct the proceeds of sale of the [City J] property (inclusive of any deposits held) in the following manner and priority:
5.1Payment of the agent's commission, marketing and advertising costs, auctioneer's fees and any other expense incurred in respect of the sale of the [City J] property;
5.2Payment of legal costs and disbursements associated directly with the sale;
5.3Payment of the amount required to discharge any mortgage secured against the [City J] property including any fees incurred for early repayment of the mortgage (if any);
5.4Payment to the Applicant of the Adjustment Payment together with any interest then outstanding at the rate prescribed by the Federal Circuit and Family Court (Family Law) Rules 2021;
5.5The remaining balance of the proceeds of sale shall be payable to the Respondent.
Declarations
6. That pursuant to section 90RD of the Family Law Act 1975 it be declared that:
6.1 a de facto relationship existed between the parties:
6.2there is a child of the de facto relationship ; and
6.3the Applicant made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c) in New South Wales.
7.That except as specifically provided for by these Orders, as between the parties, the Applicant is declared the sole legal owner of, and the Respondent has no interest in any property and financial resources in the Applicant's name or to which she is or becomes entitled and not otherwise referred to in these Orders.
8.That except as specifically provided for by these Orders, as between the parties, the Respondent is declared the sole legal owner of, and the Applicant has no interest in any property and financial resources in the Respondent's name or to which he is or becomes entitled and not otherwise referred to in these Orders.
Releases and Indemnities
9.That other than as specified in these Orders, each party be solely liable for and indemnify the other against any liabilities in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to this Order.
10.That except as specifically provided for by any Order to the contrary, each of the Applicant and Respondent releases each other from all debts and/or loans owing from one to the other.
Procedural Orders
11. That the parties shall forthwith do all acts and things and sign all such documents as may be necessary to give effect to these orders.
12. That the Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to Section 106A of the Act to execute any document and/or instrument necessary to give effect to the foregoing Orders in the event of any of the parties failing, refusing or neglecting to execute such document within 7 days of the date on which they are required to do so pursuant to these Orders, and being requested to do so by any of the other parties or by the other parties’ legal representatives.
13. That the Registrar or other officer is authorised to execute any such necessary document and/or instrument pursuant to the above Order upon being satisfied by Affidavit that refusal, neglect or default as the case may be has occurred.
15.That pending compliance in full with Orders 1 and 2 the Applicant is hereby declared to have an equitable interest in the [City J] property and by virtue of this order she shall be entitled to lodge and maintain a restriction and/or caveat against the [City J] property in the Respondent's sole name and the Respondent shall be restrained by injunction from doing any act or thing to remove the restriction and/or caveat until compliance in full with these orders.
16. That pending compliance with Orders 1 and 2 the Respondent shall be restrained by injunction from selling, transferring, dealing, encumbering or further encumbering the [City J] property save and except for the purpose of compliance with these orders.
Costs
19. That the Respondent pay the Applicant’s costs of and incidental to these proceedings.
PARENTING
20. That the child [X] born […] 2015 (the child) live with the Mother.
21 . The Mother have sole parental responsibility for the child provided that the Mother consult with the Father about major long term issues in relation to the child and endeavour to reach agreement with him as to such decisions.
22. The child spend time with the Father in Australia, as agreed and failing agreement, as follows:
School Term
22.1 If the Father is in the same city as the child in Australia during the child’s school term:
22.1.1 from afterschool or 3.00pm, until 7:00pm, each day for a period of up to 4 consecutive days;
22.1.2 from afterschool, or 3:00 pm, Friday until before school Monday each alternate weekend.
School Holidays
22.2 in the event the Father travels to Australia he spend time with [X] as follows:
22.2.1 in 2023 and 2024 for 7 days of each school holiday period, commencing at 10:00am on the first Friday, for 4 consecutive days (3 nights) and otherwise from 10:00am until 5 :30pm as follows:
22.2.1.1 Day 1 - Friday - from 10:00am until 5:30pm:
22.2.1.2 Day 2 - Saturday - from 10:00am until 5:30pm:
22.2.1.3 Days 3 to 6 - from 10:00am Sunday until 5:30pm Wednesday;
22.2.1.4 Day 7 - Thursday - from 10:00am until 5:30pm.
22.2.2From 2025 onwards for 7 days of the school holiday period. commencing at 10:00am on the first Friday, for up to 5 consecutive days (4 nights) and otherwise from 10:00am until 5:30pm as follows :
22.2.2.1 Day 1 - Friday -from 10:00am until 5:30pm;
22.2.2.2 Day 2 - Saturday - from 10:00am until 5:30pm:
22.2.2.3 Days 3 to 7 - from 10:00am Sunday until 5:30pm Thursday:
22.2.3 From 2026 onwards:
22.2.3.1 For 7 days (6 nights) of each school holiday period from 10am on the first Friday to 5:30pm Thursday.
23. For the purpose of Order 21 hereof:
23.1 the Father shall collect the Child from school (if the Child is at school) or from the Mother's residence at the commencement of such period. and return the Child to the Mother's residence at the conclusion of such period;
23.2the Father must, during that time he is spending time with the Child. take the Child to his regular day to day activities including after-school and extra-curricular activities:
23.3 the Father shall provide the Mother with not less than 28 days' notice prior to his planned arrival in Australia and the dates on which he will be in Australia, and not less than 7 days’ notice of the address where the Child will be spending time with him.
24. That if the father elects the child may spend time with the Father overseas at the Father’s home, as agreed and failing agreement, in lieu of the time in Order 22 as follows:
24.1In January 2025 for up to 7 days commencing 5 January 2025, with one period of up to 4 consecutive days (5 nights) and each other day from 10:00am until 5:30pm .
24.2In June/July holidays 2026 for up to 10 days, commencing from the first Monday, with one period of up to 7 consecutive days (6 nights) and each other day from 1 0:00am until 5:30pm;
24.3In the January 2028 school holidays for up to 10 consecutive days. commencing 5 January 2025 .
24.4In the June/July 2030 school holidays for up to 14 consecutive days commencing from the first Monday;
24.5In the January 2032 school holidays for up to 14 consecutive days, commencing 5 January 2025:
25.That the Father be responsible for the cost of all flights for [X] for the purpose of spending time with him.
26.That for the first 2 overseas trips the mother accompany [X], with the father to meet the cost of the Mother's return flights in business class and reasonable accommodation in the vicinity of the father 's residence and thereafter the father accompany [X] on all flights to and from Australia until he reaches the age of 15 years when [X] may travel unaccompanied (if he so elects).
27.From commencement of Year 7 [X’s] wishes be considered when scheduling overseas travel, particularly in the face of competing schooling commitments.
Communication
28. The Mother shall facilitate the Father having video/telephone time with the Child whenever the child requests and not less than 2 occasions per week and special occasions, as follows:
28.1 On the Child's birthday;
28.2 On the Father's birthday;
28.3 On Easter Sunday;
28.4 On Christmas Day;
28.5 On Australian Father's Day.
Family Therapy
29.Pursuant to Section 13C of the Act, for a period of 12 months each of the Mother and the Father continue to attend upon [Mr L] at [M Therapy] (“the Family Therapist”) for therapeutic counselling with an aim to:
29.1 to assist the Parties in gaining insight into the needs of the Child;
29.2 to assist the Parties in improving their co-parenting relationship; and
29.3 obtaining advice as to how best to introduce the Child to the paternal family in a Child focused and sympathetic manner if same is deemed by the Family Therapist to be in the Child’s best interests.
Restraints
30.That before the child spends any time (including telephone time) with [Ms B], she shall provide an undertaking to the court to the following effect
30.1 I will not speak to [X] (the child) in relation to the relationship of his parents;
30.2 I will not denigrate the child’s mother to the child, or in her presence or hearing;
30.3 I will not speak to the child or in his presence or hearing about any matter related to the family law proceedings between [Ms Simons] and [Mr Morin].
ANNEXURE B – PROPOSED MINUTE OF ORDERS SOUGHT BY THE FATHER
PARENTING
Notations
1. That it be noted:
1.1 [Mr Morin] (“[Mr Morin]”) is the Father of [X] born […] 2015 (“[X]”);
1.2 [Ms Simons] (“[Ms Simons]”) is the Mother of [X];
1.3[Mr Morin] resides in the United Kingdom and [Ms Simons] resides in Australia with [X];
1.4That upon [X] attaining the age of 15, or as otherwise agreed, the parties consider [X’s] wishes when scheduling overseas travel, particularly in the face of competing schooling commitments.
2.That [Ms Simons] and [Mr Morin] have equal shared parental responsibility of [X] save that [Ms Simons] have sole parental responsibility in respect to [X’s] urgent and day-to-day medical needs.
3. That [X] live with [Ms Simons].
4.That [Ms Simons] facilitate telephone communication, by way of electronic video link if practical, between [X] and [Mr Morin] until the first day of [X’s] commencement of High School as follows:-
4 .1During the period Monday to Friday of each week at a time agreed to between the parties and failing agreement on each Tuesday and Thursday between 7:00 pm and 8:00 pm (Sydney time), with [Ms Simons] to initiate the call;
4.2During the weekend at a time agreed to between the parties and failing agreement each Saturday between 6:00 pm and 7:00 pm (Sydney time), with [Ms Simons] to initiate the call;
4.3On [X’s] Birthday, in the event [X] in not in [Mr Morin’s] care, each year at a time agreed to between the parties and failing agreement at 7.30pm;
4.4On [Mr Morin’s] Birthday each year, in the event [X] in not in [Mr Morin’s] care, at a time agreed to between the parties and failing agreement at 7.30pm;
4.5On Father's Day each year, in the event [X] in not in [Mr Morin’s] care, at a time agreed to between the parties and failing agreement at 7.30pm;
4.6On Easter Sunday, in the event [X] in not in [Mr Morin’s] care, at a time agreed to between the parties and failing agreement at 7.30pm;
4.7On Christmas Day, in the event [X] in not in [Mr Morin’s] care, at a time agreed to between the parties and failing agreement at 7.30pm;
5. That [X] spend time with [Mr Morin] in Australia as agreed and failing agreement:
5.1 In even numbered years for one (1) week of the school holiday period commencing following the conclusion of term 1, as agreed and failing agreement the last week of each school term;
5.2 In odd numbered years for one (1) week of the school holiday period commencing following the conclusion of term 3 as agreed and failing agreement the last week of each school term;
5.3 During the school term, if [Mr Morin] is in Australia during [X’s] school term:
5.3.1From afterschool or 3.00pm, until 7.00pm, each day for a period of up to 4 consecutive days;
5.3.2From afterschool, or 3.00pm, Friday until before school Monday each alternate weekend.
6.That for the purpose of Order 5.3:
6.1[Mr Morin] shall collect [X] from school (if [X] is at school) or from [Ms Simons’] residence at the commencement of such period, and return [X] to [Ms Simons’] residence at the conclusion of such period;
6.2 [Mr Morin] must, during that time he is spending time with [X], take [X] to his regular day to day activities including after-school and extra-curricular activities;
6.3[Mr Morin] shall provide [Ms Simons] with not less than 28 days’ notice prior to his planned arrival in Australia and the dates on which he will be in Australia and not less than 7 days’ notice of the address where [X] will be spending time with him.
7. That from June 2024 onwards or as otherwise agreed between the parties and further and in addition to the time [X] spends with [Mr Morin] pursuant to Order 5 above, [Mr Morin] be at liberty to travel internationally with [X], not less than twice per year, as agreed and failing agreement:
7.1 In 2024:-
7.1.1For ten (10) days during the July winter school holiday period, in accordance with Order 10 below;
7.1.2for half of the Christmas school holiday period, commencing at 5.00pm on the middle day of that school holiday period and concluding at 5.00pm three (3) days before the commencement of term 1;
7.2 In 2025, and each alternate year thereafter:
7.2.1for two weeks during the July winter school holiday period on such dates and times as may be agreed between the parties and, failing agreement, commencing at the third day following the end of the gazetted second school term and concluding fourteen days thereafter;
7.2.2for half of the Christmas school holiday period, commencing at the end of the gazetted fourth school term and concluding at 5.00pm on the middle day of that school holiday period;
7.3 In 2026 and each alternate year thereafter:-
7.3.1for two weeks during the July winter school holiday period on such dates and times as may be agreed between the parties and, failing agreement, commencing at the third day following the end of the gazetted second school term and concluding fourteen days thereafter;
7.3.2for half of the Christmas school holiday period, commencing at 5.00pm on the middle day of that school holiday period and concluding at 5.00pm three (3) days before the commencement of term 1;
7.4 Such other times as agreed between [Ms Simons] and [Mr Morin].
8. That for the purpose of Order 7 above, until such time as [X] attains the age of 15, [Mr Morin] will ensure that [X] is accompanied initially by [Mr Morin] until [X] attains the age of 10 and thereafter by [Mr Morin], or a member of [Mr Morin’s] family known to [X] and the costs of such travel will be paid by [Mr Morin].
9.That for the purpose of Orders 8 above, upon [X] attaining the age of 10, [Mr Morin] use his best endeavours to travel with [X], as reasonably practicable.
10. That for the purpose of the first overseas trip pursuant to Order 7.1 above:
10.1 [Ms Simons] is at liberty to travel with [X] and [Mr Morin] pay the reasonable costs of [Ms Simons’] flights and reasonable accommodation in the vicinity of [Mr Morin’s] Residence in [Suburb O], United Kingdom;
10.2the 10 day period includes the travel time between Australia to the United Kingdom, to the intention that the departure date is not before Saturday, 29 June 2024;
10.3 the time [X] spends with [Mr Morin] is to be agreed between [Ms Simons] and [Mr Morin], and failing agreement:
10.3.1[X] and [Ms Simons] depart Australia [in mid] 2024;
10.3.2[X] spend time with [Mr Morin the following day] from 5.00pm to 9.30pm, allowing [X] time to rest following his flight;
10.3.3[X] spend time with [Mr Morin] from 9.30am to 8.30pm [the following day];
10.3.4[X] spend time with [Mr Morin] from [Tuesday to Sunday], being 5 consecutive nights;
10.3.5[X] spend time with [Mr Morin] from 9.30am to 8.30pm on Monday […];
10.3.6 [X] and [Ms Simons] depart the United Kingdom on Tuesday […], or as otherwise arranged by [Ms Simons] in accordance with her own travel arrangements;
11. That for a period of 6 months following the date of these Orders, or as otherwise recommended by the Family Therapist, [Mr L], the parties do all things and sign all documents necessary to continue to attend, and cause [X] to attend, upon [Mr L] as he recommends, including the frequency of his recommended sessions, for the purpose of Family Therapy.
12. The parties be and are hereby restrained from:-
12.1Discussing any Court proceedings between the parties with [X], or allowing any third party to discuss such proceedings with [X];
12.2Denigrating the other party, or a member of the party's immediate and extended family, to [X] or within his hearing or allowing a third party to denigrate the other party or a member of the party's immediate and extended family to [X];
12.3Discussing the circumstances, or opinions of, the relationship shared by the parties to [X] or within his hearing or allowing a third party to discuss the circumstances, or opinions of, the relationship shared by the parties.
13. That prior to [Mr Morin’s] Wife, [Ms B], spending time (including telephone time) with [X], [Mr Morin] cause the filing of an Undertaking executed by [Ms B], as prepared and exhibited to [Mr Morin’s] Affidavit sworn 18 October 2023 at paragraph 107.
PROPERTY
14. That the Respondent cause to be paid the amount of $865,000, excluding interest (the capital sum) towards the principal amount of the mortgage secured against the property situate at [K Street, Suburb F], in the State of New South Wales, being the whole of the land contained in Certificate of Title Folio Identifier […] (the [Suburb F] Property) as follows:
14.1 The amount of $6,000 per month directly into the CBA Offset Account number #[...37] as and when the mortgage falls due and until such time as the balance of the capital sum is paid pursuant to Order 14.2 below;
14.2The balance of the capital sum on or before 31 December 2027, or on payment of the [Z Company] Capital account, whichever is the earlier;
15. That for the purpose of the payments at Order 14.1 above, the interest is to be pro-rated to the effect that the portion of the interest payable by the Respondent is only in respect to the capital sum.
16. That within 30 days of the date of the Respondent's compliance with Order 14.2 above, the Applicant do all things and sign all documents necessary to refinance the balance of the mortgage secured against the (the [Suburb F] Property) being the principal amount currently of $300,440 into her sole name, or otherwise, to release the Respondent from the said mortgage.
17. That forthwith subject to compliance with Order 16 above, the Respondent do all things and sign all documents necessary to transfer to the Applicant all of his right, title and interest in the [Suburb F] property.
18. That following compliance with Order 17 above, the parties do all things and sign all documents necessary to close the joint offset accounts and the balance, if any, be distributed to the Applicant.
19. That except as specifically provided for by these Orders, as between the parties, the Applicant is declared the sole legal owner of, and the Respondent has no interest in any property and financial resources in the Applicant's name or to which she is or becomes entitled and not otherwise referred to in these Orders.
20. That except as specifically provided for by these Orders, as between the parties, the Respondent is declared the sole legal owner of, and the Applicant has no interest in any property and financial resources in the Respondent's name or to which he is or becomes entitled and not otherwise referred to in these Orders.
21. That other than as specified in these Orders, each party be solely liable for and indemnify the other against any liabilities in their sole name, including any liability encumbering any item of property to which that party is entitled pursuant to this Order.
22. Any further default Orders that the Court see fit to make.
23.That the Applicant pay the Respondent's costs of and incidental to the proceedings.
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