ZAIDA & BADOURI

[2018] FamCA 645

FAMILY COURT OF AUSTRALIA

ZAIDA & BADOURI [2018] FamCA 645

FAMILY LAW – CHILDREN – Where the parties sought opposing orders in relation to parental responsibility and how much time the child shall spend with each parent – Where the Court makes a finding that there was a distinct power imbalance in the parents’ relationship – Where the Court finds that the child does not face an unacceptable risk of any sexual, physical or emotional harm in the mother’s principal care and that the father inappropriately made such allegations – Where the court does not find that the father poses an unacceptable risk to the child’s emotional health – Where it is not in the child’s best interests for the parents to have equal shared parental responsibility save for major-long term decisions about her name and certain changes to her living arrangements – Where the child shall live with the mother and spend unsupervised time with the father – Where neither the father nor any other man shall play any role in the intimate care of the child – Where the father is restrained from having the child wear religious dress – Where both parents are restrained from taking the child outside Australia.

FAMILY LAW – PROPERTY – Transaction to defeat claims – Where it is clear that the father made a series of cash transfers and withdrawals to himself and his mother and that they then secreted not insignificant amounts of cash away in their home – Where the evidence of the mother was often preferred to that of the father or his mother – Where the Court is not satisfied that these payments were in repayment of money the father owed his mother but rather it was to defeat the mother’s prospects in these proceedings – Where certain dispositions of cash by the husband to his mother are set aside pursuant to s 106B of the Family Law Act 1975 (Cth) – Where the husband’s mother is required to pay those monies to the mother.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the father’s debt owed to his mother for legal fees is not to be included in the property pool – Where monies found to have been disposed of by the father to his mother are to be included in the property pool – Where it is just and equitable to make orders adjusting the interests of the parties – Where the money spent by the father on legal fees is to be taken into account – Where the father made slightly greater contributions but the circumstances favour a 15 per cent adjustment to the mother.

FAMILY LAW – COSTS – Where the husband and his mother sought costs against the mother – Where such applications are dismissed given the father and his mother’s dishonesty and findings of complicity by each of them for the purpose of defeating the mother’s prospects of obtaining an order in her favour.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 53
Family Law Act 1975 (Cth), ss 80(1), 106B

Family Law Rules 2004, r 19.04

APPLICANT:

Mr Zaida

RESPONDENT: Ms Badouri

INDEPENDENT CHILDREN’S LAWYER: Bruce Michael Dodd

FILE NUMBER: BRC 1270 of 2014

DATE DELIVERED: 24 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15, 16, 17, 20 and 21 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Minnery

SOLICITOR FOR THE APPLICANT: Nita Stratton-Funk & Associates

COUNSEL FOR THE RESPONDENT: Mr Waterman

SOLICITOR FOR THE RESPONDENT: Doyle Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rice Naughton McCarthy Lawyers

Orders

Parenting

1. That all previous parenting orders be discharged.

2. That the child, X born … 2011, (“the child”) shall live with the mother.

3. That the mother shall have sole parental responsibility for all “major long-term issues” (as that term is defined in the Family Law Act 1975 (Cth) (“the Act”)) in relation to the child, except in respect of decisions about the change of the child’s name and decisions about changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the father.

4. That the child shall spend time with the father as may be agreed between the parties, but failing agreement as follows:

   During school term

   (a)each alternate weekend from after school on Friday until before school on Monday, or Tuesday morning in the event Monday is a Public Holiday;

   (b)the father, or his wife, shall collect the child from her school as school finishes on the Friday afternoon and shall deliver her to her school as school starts at the end of the weekend she spends in his care;

   (c)alternate weekends during school term will start on the first or second weekend of term depending on whether the child has spent the first or the second half of the immediately preceding school holidays with the father, such that when she spends the first half of those holidays with him then alternate weekends will start on the first weekend of school term and when she spends the second half of those school holidays with him then alternate weekends will start on the second weekend of school term;

   During the child’s school holidays

   (d)for the first half of her school holidays, including the summer school holidays, that commence in even numbered years; and

   (e)for the second half of her school holidays, including the summer school holidays, that commence in odd numbered years;

   (f)that for the purposes of working out how long “half of her school holidays” are, the child’s school holidays shall be deemed to start as soon as school finishes on the last day of term before the holidays and deemed to end as soon as school starts on the first day of term after the holidays;

   (g)should the exact halfway point in the child’s school holidays determined pursuant to the previous paragraph fall between the hours of 6:00 pm and 8:00 am the next morning, then the child shall be handed over from the parent who has her for the first half of the holidays to the other parent at 6:00 pm at the start of that night during which the half way point falls, otherwise if the half way point falls between the hours of 8:00 am and 6:00 pm in the evening on any given day then the child shall be handed over from the parent who has her for the first half of the holidays to the other parent at that particular time that marks the half way point;

   (h)when the child is to spend the first half of her school holidays with the father, he, or his wife, shall collect the child from her school at the start of those holidays;

   (i)when the child is to spend the second half of her school holidays with the father, he, or his wife, shall deliver the child to her school at the end of those holidays;

   (j)at the half way point in each school holidays the parent with whom the child has spent the first half of the holidays shall deliver the child to the parent with whom she is to spend the second half of the holidays at the home of the parent with whom she is going to be spending the second half of the holidays.

   For Celebratory Days

   (k)if the child is not with the father for the weekend or school holidays on Father’s Day she shall spend that day with him from 8:00 am until school starts the next morning;

   (l)if the child is not with the father for the weekend or school holidays on his birthday or her birthday, she shall spend four hours with him on such day if his birthday or her birthday is on a Saturday or Sunday or during school holidays and two hours with him on such day if his birthday or her birthday is on a school day;

   (m)if the child is not with the mother for the weekend or school holidays on Mother’s Day she shall spend that day with her from 8:00 am with the father to deliver the child to the mother at her home at the commencement of this time;

   (n)if the child is not with the mother for the weekend or school holidays on the mother’s birthday or her own birthday, she shall spend four hours with the mother on such day if the mother’s birthday or her own birthday is on a Saturday or Sunday or during school holidays;

   (o)which exact hours the child shall spend with the father or the mother on birthdays pursuant to the previous paragraphs shall be agreed between the parents in writing in advance and the delivery and collection arrangements shall be agreed between the parents in writing in advance.

5. That the child shall communicate with the father by telephone or by internet video conferencing (with a platform such as Skype or FaceTime) at the father’s election on three occasions between the alternate weekends she spends with him during school term and on one occasion per week during school holidays when she is not with him. During school term that shall be between 6:00 pm and 7:00 pm on Wednesday and Sunday evenings and during school holidays between 6:00 pm and 7:00 pm on Wednesday evenings. Each such call shall not exceed 20 minutes in duration.

6. That when the child is with the father during school holidays she shall communicate with the mother by telephone or by internet video conferencing (such as with platforms such as Skype or FaceTime) at the mother’s election between 6:00 pm and 7:00 pm on one occasion per week which shall be Wednesday evenings. Each such call shall not exceed 20 minutes in duration.

7. That each parent shall do all things necessary to facilitate the child’s communication with the other parent when the child is in the first parent’s care and shall ensure that the child’s telephone or video conferencing call with the other parent is able to be conducted by the child in privacy.

8. That the father is restrained from having the child wear a hijab or other religious dress whenever she is in his care without the prior written consent of the mother.

9. That the father is restrained from bathing, washing, changing, undressing, dressing, toileting of the child or bathing or showering with the child or being naked or semi naked in the child’s presence (swimming trunks excepted) and he is not to inspect the child in any intimate manner and he shall ensure that if the child needs assistance with any of these things whilst she is in his care that either his wife or his mother provides that assistance.

10. That the mother shall ensure that no man plays any role in the intimate care of the child whilst in her care, including in respect of her bathing, washing, changing, undressing, dressing, and toileting.

11. That each parent shall ensure that the child does not refer to any person other than the father as “dad” or “daddy” or any person other than the mother as “mum” or “mummy”.

12. That the father shall, notwithstanding the mother having sole parental responsibility for all major long-term decisions about the child’s education, be permitted to attend at the school the child may be attending on all occasions and for all such events that parents of children who attend that school are welcome to attend by the administration of that school, for as long as he continues to have the permission of the school’s administration to do so.

13. That the father shall be entitled to receive, at his expense if there is a cost, from the administration of the school the child may be attending, any information or documents that parents of children who attend that school are entitled to receive from the administration of that school, for as long as he continues to have the permission of the school’s administration to do so.

14. That the mother shall keep the father informed in writing of:

    (a)her residential address and contact telephone number and an email address she has;

    (b)decisions she makes in respect of major long-term issues pertaining to health, religion and education in the exercise of sole parental responsibility for the child;

    (c)any major illness, accident or significant change in health the child experiences and the treatment the child receives for same.

15. That the father shall keep the father informed in writing of:

    (a)his residential address and contact telephone number and an email address he has;

    (b)any illness, accident or significant change in health the child experiences whilst in his care and the treatment, if any, the child receives for same.

16. That save for in an emergency, the child shall only be taken to the one general medical practice for medical attention, and that shall be one the mother takes the child to, the name and address details of which she shall provide to the father in writing.

Restraint on taking the child out of Australia

1. That the child, X born … 2011 (female), is restrained from leaving the Commonwealth of Australia.

2. That each of MR ZAIDA born … 1982 and MS BADOURI born … 1984 be restrained and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of X born … 2011 (female) from the Commonwealth of Australia.

3. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Family Law Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until … 2029.

4. That upon expiration of the period referred to in Order (19) and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch list. 

5. That any Contravention Application filed by either parent in this matter shall be filed in this Court and shall, unless it is otherwise impracticable, be listed for hearing before his Honour Justice Forrest.

6. That the Independent Children's Lawyer be discharged.

7. That pursuant to s 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Property

1. That pursuant to s 106B of the Act the following dispositions of cash by the applicant father, Mr Zaida, to his mother, Ms B, are set aside:

   (i)the transfer of the sum of $40,000 on 9 October 2012;

   (ii)the transfer of the sum of $50,000 on 11 December 2013;

   (iii)the transfer of the sum of $50,000 on 13 December 2013;

   (iv)the transfer of the sum of $7,050 on 23 December 2013;

   (v)the transfer of the sum of $2,235 on 23 December 2013;

   (vi)the transfer of the sum of $36,059 on 22 January 2014.

2. That Ms B pay to the respondent mother’s solicitors’ trust account the sum of $185,344 within 28 days of the date of these Orders.

3. That the respondent mother retain as her sole property and the applicant father relinquish and transfer to the respondent mother all right, title and interest, if any, to and in the following:

   (i)the respondent mother’s bank account or accounts;

   (ii)the furniture, chattels and personal effects in her possession;

   (iii)the respondent mother’s superannuation entitlement with C Super;

   (iv)the cash payment of $185,344 when received from Ms B into the respondent mother’s solicitors’ trust account.

4. That the applicant father retain as his sole property and the respondent mother relinquish and transfer to the applicant father all right, title and interest, if any, to and in the following:

   (i)the applicant father’s bank accounts;

   (ii)the furniture, motor car, chattels and personal effects in the applicant father’s possession;

   (iii)the applicant father’s superannuation entitlement with D Super Fund subject to paragraph (30) hereof.

5. That the applicant father be responsible for and meet payment when due all his own credit card debts and any other liability (including taxation liability, personal loan liability or liability to his mother, wife or any other person) in his name not otherwise dealt with in these orders and indemnify and keep indemnified the respondent mother from all liability howsoever arising in relation to same.

6. That the respondent mother be responsible for and meet payment when due all her own credit card debts and any other liability (including taxation liability, personal loan liability or liability to any other person) in her name not otherwise dealt with in these orders and indemnify and keep indemnified the applicant father from all liability howsoever arising in relation to same.

7. That, pursuant to s 90MT(1)(a) of the Act, whenever a splittable payment becomes payable in respect of the superannuation interest of the applicant father in D Super Fund, the respondent mother shall be entitled to be paid an amount calculated in accordance with the regulations using a base amount of $12,856 and there will be a corresponding reduction in relation to the applicant father’s interest in D Super Fund.

8. That Order (30) have effect from the operative time and the operative time is four (4) days after a sealed copy of these Orders are served on the Trustee of the D Super Fund.

9. That the operation of Orders (30) – (31), be stayed for 21 days from the date of these Orders.

10. That within 7 days the solicitor for the applicant father shall give the Trustee of D Super Fund written notice of the proposed splitting order contained in these orders.

11. The Trustee of D Super Fund has liberty to apply to be heard against this court making the splitting order, which liberty expires 21 days from today.

12. That within 14 days the solicitor for the applicant father shall file an affidavit of compliance with Order (33).

13. That Ms B’s property at E Street, Suburb F in the State of Western Australia, more particularly described as Lot … on Plan … Registered Number … and her property at G Street, Suburb F in the State of Western Australia more particularly described as Lot … on Plan … Volume … Folio …, be charged with the payment of the sum of $185,344 payable to the respondent mother’s solicitors’ trust account pursuant to Order (25) hereof and any interest that may accrue according to the provisions of the Act and the Family Law Rules 2004 and to implement such charge Ms B shall, within 7 days of these Orders, do all necessary acts and things and sign all necessary documents to cause a charge or caveat to be registered upon the title of the properties referred to only to be discharged upon her compliance with Order (25) of these Orders.

14. That in the event that the said Ms B refuses or neglects to sign any document necessary to comply with Order (36) hereof, then upon such refusal or default being proved by affidavit of the Respondent mother’s solicitor, pursuant to s 106A of the Act, a Registrar of this Court’s Brisbane Registry is appointed to execute all and any such documents in the said Ms B’s name and to do all acts and things necessary to give validity and operation to any such document.

15. That the parties are given liberty to apply to this Court for further directions or orders pertaining to the enforcement of these Orders upon the giving of 2 days’ notice in writing to the other party and the Applicant father’s mother, Ms B.

Costs

1. That the Application in a Case filed by Ms B on 18 November 2016, seeking costs against the respondent mother, is dismissed.

2. That the Application in a Case filed by the father on 7 December 2016, seeking costs against the respondent mother, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zaida & Badouri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1270 of 2014

Mr Zaida

Applicant

And

Ms Badouri

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. I presided over a five day trial in these parenting and property alteration proceedings in February last year. At the end of the trial, I reserved my judgment.

2. I regret that it has taken me as long as this to deliver judgment, but the responsibility of hearing and determining so many other difficult parenting and property matters in the ensuing months, along with the necessity of taking sufficient recuperative leave in that time, explains the delay. At the same time, I was mindful that I would not be making orders that moved the subject child from the principal care of one of her parents to the principal care of the other parent, so was cognisant of the child’s best interests not demanding urgent action that required prioritisation ahead of other more urgent and longer outstanding matters.

3. The issues for determination in this matter are starkly divided between parenting and property. Accordingly, the following written reasons will address the issues by that same divide.

Parenting Dispute  

1. When the father came into Court at the start of the trial, he was seeking parenting orders from the Court that would have the parties’ now seven year old daughter live principally with him and spend time with the mother from after school on a Thursday to before school on the following Tuesday in each alternate week (5 nights out of every 14 during school term) and for one half of each of her school holidays. He was also seeking sole parental responsibility for the decisions about the child’s health and her religion and religious education, with parental responsibility for all other major long-term issues to be equally shared.

2. When the father’s barrister stood to his feet to begin his oral submissions very late in the day on the fifth and final day of the trial, by clear implication, he conceded much ground in respect of the father’s position. He submitted that the Court would make orders that provided for the child to live in an equal time arrangement with both of her parents or, alternatively, if that was not accepted, then whilst the child would live principally with the mother she should still spend at least five nights per fortnight in the father’s care during school term, all in the one block of time, as well as half of the school holidays. He also submitted that parental responsibility for all matters in respect of the child should be shared equally between the parents. 

3. In contrast, the mother’s barrister made submissions that the Court should not make orders that provide for the child to spend any time with the father at all, unless it is supervised at a children’s contact centre. The mother also seeks an order granting her sole parental responsibility for the child. The mother’s case asserts an unacceptable risk of emotional harm to the child if she spends unsupervised time with the father.

4. Mr McGregor, a very experienced barrister within the family law jurisdiction, instructed by the Independent Children’s Lawyer (“the ICL”), Mr Dodd, another very experienced family lawyer, submitted that the mother should be given sole parental responsibility for the child, but that the child should continue to spend unsupervised time with the father as she had been from October 2014 until the time of the trial in February 2017 (and has been, presumably, from the time of the trial until now).

5. By the interim orders in place in all that time, the child has spent unsupervised time with the father from 3:00 pm on Tuesday until 9:00 am Thursday and from 9:00 am on Saturday until 5:00 pm Sunday in the first week of each two week cycle and then again from 3:00 pm on Tuesday until 9:00 am Thursday, as well as from 9:00 am until 5:00 pm on the Saturday in the next week of that cycle. That is a total of five nights each fourteen nights spent in a 2-1-2 pattern.

6. Relevantly though, counsel for the ICL submitted that the child’s unsupervised time with the father should be spent in one block each fortnight during school term, and did not have to be for five nights but rather could be for three nights from after school Friday until before school on Monday. He submitted that the child should also be able to spend half of her school holidays with the father. 

7. I am, for all of the following reasons, satisfied that those submissions made on behalf of the ICL reflect a proposed regimen of care of the subject child that would be, in all the circumstances of the case, in her best interests. It will form the basis of my parenting orders.

Some Relevant History

1. The father was born in 1982 in Country H. He was the only child of his parents who separated when he was only around one year old. His father is said to have “disappeared” and, it seems he was raised solely by his mother with little, if any, contact with his father during his childhood. He and his mother, who played a significant role in this case as it happened, moved to Australia and lived in Perth where he was educated, completing a degree at a university there. The two of them then moved to Country J together in 2003, where the father undertook a further degree before starting work there in 2007. When he commenced work, his mother returned to Perth to live. 

2. The mother was born in 1984 in Country K. She was one child of a relatively large intact family, though having experienced the death of her father at some time in her late teenage/early adult years. She obtained an undergraduate degree in her home country and, in 2008, she travelled to Europe where she was studying towards a post-graduate Master’s degree course.

3. The former couple met by internet connection through a dating website aimed at members of the Islamic faith. They communicated from afar, Country J to Europe, for some months before meeting in person when the father travelled from Country J to Europe and spent time with the mother there. Their commitment to each other established itself quickly and they agreed to marry. It was for each of them, they both have said, their first significant adult relationship. They travelled to Country K together and obtained the approval of the mother’s family for the partnering. There is conflicting evidence from each side about whether the father’s mother approved of his decision and his choice. I am satisfied that the mother’s evidence about this is more reflective of the truth of the circumstances. As such, I am satisfied that the father’s mother was very upset by the father’s decision and his choice of partner, tried her best to break up the partnership before and after their marriage, and encouraged her son to have the mother enter into a “pre-nuptial agreement” aimed at protecting their “family” assets.

4. A document styled as a ‘pre-nuptial agreement” was prepared, presented to the mother and signed by her. She took no legal advice before signing it. There was no contention by the lawyers for the father that in form, or substance, it somehow bound the mother, or the Court, in this case. That was clearly a sensible position, as it plainly does not oust the Court’s jurisdiction to make orders pursuant to s 79 of Family Law Act 1975 (Cth) (“the Act”).

5. The mother moved to Country J in 2009, after obtaining an internship as part of her post-graduate studies with a non-government organisation there. The former couple married there in Country J. Soon thereafter, a decision was taken that they would relocate from Country J to Australia to live and work. They firstly returned to Europe where the mother was required to finish her Master’s degree. After two months there, the father returned to Perth to live, look for work and take steps to help procure a visa for the mother permitting her to come and live with him in Australia. The mother returned to Country K, where she remained for several months whilst waiting to see whether a visa was able to be obtained for her. One was, and she arrived in Brisbane in or around May 2010. The father had obtained a job for a company, and was required to live and work in L Town, a small town in Region M, a little under four hours’ drive west of Brisbane. He and his mother travelled from Perth to meet the mother on her arrival in Brisbane and to take her out to L Town. After a week in Brisbane, the couple headed for L Town to live. The father’s mother went with them. Not unsurprisingly, I consider it fair to say that the father’s mother’s presence did not work out very well for the three of them and after some time, she returned to her home in Perth.

6. Upon arrival in L Town, the mother obtained employment, though it was in relatively unskilled fields, having regard to her academic qualifications. She worked for several months but fairly soon thereafter, their child was conceived and she was born in 2011. The child is now seven years of age.

7. Unfortunately, the mother experienced some post-natal depression. She sought and obtained appropriate treatment for that. Unhappiness with the quality of the relationship with the father continued for her though, and in December 2012, when their baby was approximately 18 months of age, the mother unilaterally, and secretly left the home she shared with the father in L Town, taking the child with her. She relocated to Brisbane, initially to a refuge for women, then into Queensland Government residential accommodation in one of the northern suburbs of the city.

8. There is further dispute between the parties as to when the mother first began letting the child spend time with the father, or to communicate with him, and as to how, exactly, she facilitated that. What is agreed is that the father was still living at L Town and working until September 2013. In that time, it is agreed that the mother facilitated Skype video communication between the father and the child. The nature of that communication has to be understood against the fact that the child was 18 months old when her mother brought her to live in Brisbane and only two years and three months old when the father left L Town and moved to Brisbane. It is also agreed that when he came to Brisbane for visits, the mother did let him see the child and spend time with her, but only in her (the mother’s) company, either at her residence or out at parks or shopping centres and the like, save for a few short occasions when she did let him have the child on his own.

9. The mother complains that during this time, the father was trying to encourage her to reconcile with him and continued to try to control her as she said he had done during their marriage. His efforts and her resistance to his efforts seemingly caused further friction in their relationship that impacted upon their co-parenting relationship. Relations did not improve when the father gave up his employment in L Town and moved to Brisbane in September 2013, unilaterally taking up residence in rental accommodation within a few hundred metres of the mother’s residence, and, I accept, visiting the mother’s place unannounced and when he unilaterally considered it appropriate.

10. The mother, with some merit in my judgment, considered the father’s move to her immediate neighbourhood to be provocative and controlling. She did not consider he was respectful of her privacy or that he accepted their relationship was over. She began to put the process of family dispute resolution counselling in place and a date in December was set for that to commence through a Family Relationships Centre.

11. At around this same time, the mother formed a friendship with another man. They decided to go on a holiday cruise together and the mother wanted to take the child. She sought and obtained the father’s consent to her taking the child out of the country on that cruise by misleading him as to who she was going with and keeping the fact from him that she was going with a new male friend. In return for his consent though, she had to agree with him to let the child spend some daytime contact with him on an unsupervised basis. She did agree to that and it happened.

12. Upon her return from the cruise, the relationship between the mother and the father quickly became very hostile. Each of them attributes that to different reasons, but the original argument that sparked this appears to have involved the mother telling the father that she wanted his financial support for the child to be provided by cash deposited into her bank account for her use rather than through provision of a credit card, her use of which was available for total scrutiny by the father. The mother saw this as just another form of control by the father and wanted it to stop. The father also was complaining about what he perceived to be the mother’s poor physical care of the child who he says was presented to him with insect bites and a bruise on her face.

13. The mother stopped the father seeing their child and filed an application for a family violence protection order in a local Magistrates Court. That was eventually settled in the early months of 2014 with undertakings given by the father that satisfied the mother. In the meantime, the father had commenced these proceedings in the Federal Circuit Court. He had also moved into a rental property in another inner northern suburb in Brisbane with his mother. He had also cancelled the mother’s access to his credit card.

14. The proceedings came before a Judge of the FCC and a family report was ordered to be prepared as well as orders being made that provided for the child to spend time with the father in an independent, supervised setting.

15. The family report was prepared by Mr N, experienced social worker and family report writer. He recommended an array of interventions, including the preparation of a sexual offenders risk assessment report in respect of the father because of some complaints the mother had made about the father’s conduct both towards her and towards their baby when they were together. Mr N recommended that the child continue to live with the mother and that brief unsupervised visits between the father and the child, in the context of the paternal grandmother’s availability and supervision, commence.

16. Further orders were made by the FCC Judge to facilitate some of these recommendations including for the preparation of a sexual offenders risk assessment report by Mr O, an experienced psychologist and report writer. No unsupervised time between the father and the child was put in place at that time, despite the recommendations of Mr N. The matter was transferred to this Court and an ICL ordered to be put in place to represent the child’s best interests. 

17. Later in 2014, Mr N updated his report in the light of the sexual offenders risk assessment report done by Mr O and the matter went before Principal Registrar Filippello who made the orders that have governed the co-parenting arrangements ever since.

The Sexual Offenders Risk Assessment

1. The mother had made allegations that the father had acted sexually inappropriately with her during their short marriage. She also had alleged that he had acted inappropriately with their baby girl in various ways that she asserted caused her concern that the child may be at some risk from sexual abuse in the father’s unsupervised care.

2. The mother’s allegations included assertions that the father had insisted on photographing and videoing her in sexually explicit poses and engaging in sexual acts with him. She asserted, effectively, that her will was overborn in this process and that she was forced to participate in these activities. She asserted that she saw some evidence during the closing stages of their relationship that made her believe that the father was uploading some of those images of her, without her consent, to an internet website on which such things were shared. She also asserted that he placed strange and inappropriate demands upon her with respect to her own personal hygiene, including carrying out visual inspections of her body to her embarrassment and disgust.

3. As for the mother’s allegations about things she had said she had seen the father doing with their baby daughter whilst they were still living together, these included putting the tip of his tongue in the baby’s mouth and letting her suck on it, offering his own bare nipple to the child to suck on, and also carrying out close visual hygiene inspections of the child’s genitals.

4. The father agreed that he had photographed and filmed the mother in sexually explicit poses and had filmed their sexual activity. He argued that it had all been consensual and done for their mutual pleasure.  He denied that he had been uploading images to the internet without the mother’s consent. He agreed also that he had put the tip of his tongue in the child’s mouth, saying that he did that to soothe her and could see nothing inappropriate about it. He admitted having offered the child his own bare nipple to suck on, but said that was in jest and not a serious matter. He denied the other allegations of the mother.

5. The mother had secured possession of some of the digital images and videos before she left the father. Some were adduced into evidence by her. She had also caused Mr O to be provided with copies for the purposes of his assessment. I determined not to view those in Court during the trial but rather obtained the parties’ agreement to do so privately in chambers, so as to spare the mother hurt and embarrassment and not to have to subject Court staff to viewing that material. I did that.

6. Though Mr O ultimately arrived at an assessment of the father as being of a low risk of acting out sexually toward children “even under protracted periods of non-supervision”, of the images and videos he viewed, he said the following:

   The writer formed an impression that on balance, the wife appeared as an ambivalent-to-reluctant participant; and seemed particularly unhappy in the video involving her performing fellatio on [the father]. Specifically, in this regard, she appeared as a reluctant and passive participant at best.

   In essence, the writer formed an opinion that the sample of sexual activities provided for review, did not seem primarily designed for the couple’s pleasure, but more to meet [the father’s] fantasies, desires and wants; and to this extent, seemed insensitive, callous and controlling.

   Further, the writer considered that such samples did not reflect considerate, loving and intimate, sexual play activities between willing equals as suggested by [the father]; or as representing material that would be used to enhance the couple’s future relationship and mutual sexual pleasure.

   The writer highlights, however, that while such experiences have likely formed a significant part [of] relationship difficulties and unresolved issues leading to separation; and while such potentially involved some level of sexual humiliation and abuse of his wife, nevertheless such behaviours are not necessary, or sufficient to inform risk of sexually acting-out against minors; or more specifically against the couple’s daughter.

7. Having viewed the still images and the video images myself, I entirely accept and adopt Mr O’s opinions expressed in the above cited paragraphs from his report. Having also formed my own opinion that in the only images (that of the videos) that were in evidence that the father appeared in, the father was particularly careful to ensure that his own face was never able to be observed, such that he could not readily be identified by a third party observer, and considering the assertions of the father that the mother was a willing, consensual and active participant in the filmed and photographed activity, that I do not accept, I have little difficulty accepting the mother’s evidence that she observed evidence that reasonably caused her to believe that the father had been posting the images to an internet website. As such, I reject the father’s evidence of denial of that and consider it to be false.

1. However, I also acknowledge the position adopted by the mother and her legal representatives at the trial that the mother no longer advanced the proposition that the father presented an unacceptable risk of sexual abuse to the child. I accept that as an appropriate and reasonable adjustment to her position, having regard to all of the evidence. Nevertheless, the mother’s evidence, the video and photographic evidence, and the father’s own evidence about that, supports a finding that there was a distinct power imbalance in the relatively short relationship of the parents. That imbalance, and the father’s views about the relationship between him and the mother, in my opinion, have sustained and explained the position the father maintained up to the trial – namely, that the child should be principally cared for by him and not her mother.

Significant Changes in the Lives of the Parties Post-Separation

1. As already observed, the mother formed a relationship with another man in late 2013. She remained in that relationship until early 2015. That relationship, she said, was significantly affected by the father’s reaction to it having been formed. I am satisfied that neither the father nor his mother were ever happy with the fact that the mother had formed a relationship with a non-Muslim, European Australian man. Indeed, within a few weeks of the change in October 2013 to the parenting arrangements that provided for the child to begin spending substantial periods of unsupervised time with the father, the father and his mother began making allegations that the child was telling them that the mother’s new partner was abusing her, physically and sexually. They also made allegations that the child had told them she was being physically abused and bullied by the young sons of the mother’s new partner and physically abused by the mother’s new partner’s elderly mother, with whom the mother’s new partner and his sons lived.

2. None of the allegations were ever raised by the father directly with the mother to ascertain her reaction or response before the child was taken to the police or complaint was made to the Queensland Department responsible for child welfare. The child was interviewed by police in video recorded interviews on two occasions following some of these reports. The child was also taken by the father for examination at the P Hospital in Brisbane and examined.

3. Video recordings of police interviews were adduced into evidence by the ICL. They were played at the commencement of the trial. The child was three and a half years old at the time of the first interview. She was four years old at the time of the second one.

4. The child did say things during the interviews that, if true, could implicate the mother’s new partner in sexual abuse of her. She also said things that, if true, could implicate his sons and his mother in bullying and physical abuse of her. However, there was a lot of inconsistency in the things the child said during the interviews. There was also an innocent but telling assertion by her that her grandmother had taught her one of the big words that she used in telling her story that I am satisfied she would not have known herself.

5. Police and Departmental records were also adduced into evidence. They reveal that the mother and her new partner were questioned at and around the time of the allegations being made. They also reveal that Police clearly determined that the evidence did not support a charge being laid against the mother’s partner or anyone else. They also reveal that the Department clearly determined that the allegations of harm to the child were “unsubstantiated”.

6. Notwithstanding the positions adopted by the authorities, the evidence of the mother and that new partner in the lead up to the trial and at the trial was that they had ended their relationship, a year or so prior to the trial, as a direct consequence of the repeated allegations made by the father and his mother. They asserted that the new partner was not prepared to risk being subjected to continued allegations being made against him, his boys and his mother, so he ended the relationship with the mother.

7. At the trial, their evidence was that they were still friends. Indeed, the mother brought the man into the trial after I had indicated that it would be best if she filed an affidavit from him in her case. The man was cross-examined. There was nothing about his evidence or the way he gave it that caused me to doubt his honesty or to conclude that he was not an appropriate person for the mother to be in company with or for her to expose her daughter to. He struck me as an apparently decent man.

8. Their evidence was that they both would indeed be open to rekindling their arrangement in the future, if they could be satisfied that the allegations would not continue to be made. Whilst no one can provide that assurance, I got a sense that the mother would like to be back in a relationship with this man and that he would like that, too. I could see no reason, from a child welfare perspective, as to why that would not be a good thing for the subject child, save for the prospect of the relationship not being accepted by the father and the impact that may have. However, with respect to the father, in my view that says more about the father and his attitudes than it does about the mother and this other man.

9. In any event, as I have already observed, the father’s legal representatives, to their credit, did not press a case, when submissions were made at the end of the trial for any finding that the subject child faced an unacceptable risk of sexual, physical or emotional harm in the mother’s care, in circumstances where it was particularly clear on the evidence, in my view at least, that the prospect of the child coming into contact with, and spending time in the company of, this man, his children and his mother in the future is very high. I understand why they did not. That was an appropriate position. I am satisfied that the child does not face an unacceptable risk of any such abuse in her mother’s principal care. I do not accept that there was substance to any of the allegations made by the father and I am actually satisfied that there was some inappropriate behaviour on the part of the father and his mother in the way the allegations were raised and taken to the authorities in the first place. That behaviour was primarily motivated, I am satisfied, by a desire and an intent to secure principal residence of the child and get her away from the mother’s predominant care.

10. A significant piece of evidence in the parenting proceedings is the record of the handwritten case and progress notes of the children’s contact centre at which the father’s supervised time with the child took place in 2014 up to October that year. In an entry dated 1 July that year, the following appears:

    At the paternal grandmother’s intake she put the mother down. Stated that they (p/grandmother & father) just wanted to get the court finished and take [the child] home to Western Australia, legally. They had a home there for her.

    P/grandmother stated that she was a retired lawyer & that money was not a problem. If the mother did not let the p/grandmother visit her granddaughter at the contact centre that would be good as it would go against the mother.

11. The paternal grandmother was asked about that entry. She totally denied that she had said those things. I did not believe her denial at all. I am actually satisfied that she, at least, and probably the father as well, were involved in conversations with the child in which inappropriate things were put into the child’s mind, one way or another, for her to repeat to police and Departmental officers with the ultimate goal of securing her principal care. There were other things about which the father and his mother gave evidence that damaged their credibility and caused me to be satisfied that I could not accept all of their evidence as honest or true at face value.

The Father’s New Relationship

1. In August 2015, the father met a woman through the congregation at the mosque he was attending in Brisbane. They formed a relationship and married in November that same year. She is a woman of Country Q birth and ethnicity. She is also a devotee of the Islamic faith. She was married to an Australian man she met when he was working in Country Q and she came to live in Australia with him. He was a wealthy businessman. They had no children and, sadly, he took his own life several years after they married. She has been a beneficiary of his testamentary bequests and has inherited assets the Court was told are worth in excess of $6 million dollars, including a real property at R Town, about an hour and a half by road north of Brisbane. The father’s new wife does not work and lives off the remaining assets she has inherited and, presumably, the passive income generated by those assets.

2. The father’s new wife apparently supports the father from that passive income as well, given that from the time he left L Town in September 2013 to the time of the trial in February 2017, he had not worked in employment for income at all, despite expressing a desire to and asserting that he had made many applications for suitable positions. Prior to meeting his new wife, the father was living off Centrelink unemployment benefits, and, interestingly, has continued to receive them since he married her, telling the Court he has not been able to secure any employment in all that time.

3. Of course, one of the consequences of his unemployed status is that he has paid very minimal child support to the mother for the support of the child either directly or through the Child Support Agency, notwithstanding the fact that he is now married to a very wealthy woman. Indeed, in the Financial Statement he filed in December 2016, he deposed to actually receiving Newstart allowance, family assistance benefit, rental assistance and a small amount of child support from the mother (apparently calculated because of her income compared to his and the number of nights the child was spending in his care).

4. It became apparent during the oral evidence at the trial, despite efforts, in my assessment, by the father and his mother not to reveal the full circumstances, that the father’s new wife and his mother (like his last wife and his mother) do not have a very good relationship. At least they did not from when he married her until the time of the trial.

5. The father’s mother was living in the home in an inner northern suburb of Brisbane. She had lived there from when she and the father moved there in 2014 and was still there at the time of the trial. Although the father, in his written evidence, had asserted that he and his wife lived in the rental property with his mother, I was quite satisfied that the father was not living there with her at the time of the trial. His evidence was initially supported by his mother who also wanted the court to accept that the father and his wife shared a house with her. Eventually, the evidence came out, assisted by cross-examination around bank and credit card statements that revealed that the father was paying for accommodation elsewhere in Brisbane through an internet accommodation provider and also that he was doing a lot of shopping around a different suburb much further north in Brisbane than the one his mother was living in.

6. As the evidence ultimately came out, I am satisfied that after the father and his current wife married, that they actually began to live elsewhere. For some months, I am satisfied that they were living in an apartment in Brisbane, but then for most of the time since, I am satisfied that they have been living principally in the new wife’s home at R Town and only travelling to Brisbane and staying in short-term rental accommodation in Brisbane when the father had the child in his care. On occasions when the father’s new wife did not accompany him to Brisbane, I am satisfied that the father did stay with his mother in the rental property in the inner northern suburb. I reject the evidence that the father and his wife were living with his mother in the inner northern Brisbane property.

7. The father’s mother gave evidence that there was some agreement with the owner of the place that she rents for her to buy the property from him if she wants to at some time in the future. The paternal grandmother’s future intentions in respect of whether she continues to live in Brisbane or returns to Perth to live were not entirely clear to me, I have to say.

The Mother’s Position at trial

1. The mother was working in an administrative role at the time of the trial and was also studying part-time to improve herself and her living circumstances. She was still living in her place in the mid-northern suburbs of Brisbane and the child was attending a local State Primary school. The child attended ‘out of school hours care’ on the days when she was in the mother’s care and the mother had to work. I accept it was the mother’s intention to continue on that course. In all her circumstances, I consider that commendable.

2. The mother’s counsel submitted, at the end of the trial, that the father presented as an unacceptable risk to the child’s emotional health if he was to continue to have unsupervised time with the child as he had been. The thrust of his submission, as I apprehended it, was that the Court could not be satisfied of the father’s assurances that he would not continue to disrupt and undermine the mother’s care of the child in the future (as the mother asserted, with some basis, he had been in the past) and that the risk of that continuing elevates the level of risk of emotional harm to the child to an unacceptable level. He drew some support from things that Mr N had said in his final report about the father’s attitude to the Court and its authority vis his devotion to the Islamic faith.

3. I do not consider it necessary to go into all of the evidence about that, save to say that I am satisfied that the father was trying hard to persuade the mother in the lead up to the trial to participate in ‘faith based’ dispute resolution processes in respect of this parenting dispute, comfortable in the expectation that ‘faith based’ dispute resolution processes would favour him as the child’s “guardian”, particularly as the mother had chosen to partner with a non-Muslim and turn away, to a significant degree at least, from the Islamic faith.

4. After some consideration, I did not form the impression that the father would not ultimately respect the authority of this Court or the law of this country. He assured me that his faith teaches him to respect the authority of the secular government of Australia, of which this Court is an important part, and that he would respect and abide by whatever this Court’s decision is (acknowledging, as I do, his right to appeal against my first instance decision if he and his lawyers are of the view that they can identify appealable error). Of course, whilst the Court is comforted by this assurance, the reality is that the Court’s orders are enforceable and compliance with them is enforceable by way of properly invoked due process. If the father was not true to his assurance, not only would the wellbeing of the parties’ little girl be negatively impacted but the orders made by the Court could again come under very close scrutiny to see whether or not the child’s wellbeing required them to be re-considered.

5. Suffice to say, I consider, that I respectfully do not accept the submission of counsel for the mother that the child should spend no time with the father or only limited supervised time with the father. As the evidence was before the Court, I do not currently consider that to be in her best interests. She was observed by Mr N on a number of occasions to relate well and positively with her father. I accept that she does and that the benefit to her of having a meaningful relationship with her father as well as her mother, in the circumstances, significantly outweighs any current risk to her of experiencing physical or psychological harm in his care.

Parental Responsibility

1. The Court is required, by the competing applications of the parties, to make a parenting order in relation to the subject seven year old child. Section 61DA(1) of the Act requires the Court, when making such an order, to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. Without a parental responsibility order in place, each of the parents of a child has parental responsibility for the child and parental responsibility in relation to a child means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (ss 61B, 61C).

3. The presumption just referred to above does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence (s 61DA(2)). In addition, even if that exception to the application of the presumption does not apply, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared responsibility.

4. In her reasons for judgment published on 23 October 2014, the then Principal Registrar said this:

   The issue of family violence has been addressed and although these are interim proceedings and making of findings of fact are limited, I am satisfied having considered the mother’s evidence, and the assessment by [Mr O], that the conduct of the father towards the mother falls within the definition of family violence as defined in s 4. The presumption of equal shared responsibility it rebutted, and I am not required to consider the provisions of s 65DAA as to equal time.

5. The definition of “family violence” is “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence. Relevantly, they include “a sexual assault or other sexually abusive behaviour”.

6. Like the then Principal Registrar was, I am satisfied having considered the mother’s evidence, the father’s evidence, Mr O’s opinion evidence, and the video evidence, that the father’s sexual conduct towards the mother was plainly abusive and that it falls within the definition of “family violence” contained in the Act. Accordingly, pursuant to s 61DA(2), the s 61DA(1) presumption does not apply. However, I hasten to add that even if I am wrong on this point, I am also readily satisfied by the balance of the evidence in the case that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child, save for major-long term decisions about her name and about changes in her living arrangements that would make it significantly more difficult for the child to spend time with the father.

7. My view on this is directly related to the provisions of s 65DAC of the Act. Those provisions apply if, under a parenting order two or more persons are to share parental responsibility for a child and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. The provisions of the section, when such an order is made, require the decision to be made jointly after each of the persons on whom shared parental responsibility is conferred has consulted the other person in relation to the decision to be made about that issue, and after each has made a genuine effort to come to a joint decision about the issue. There is, it seems, no exception to the obligation imposed upon the persons upon whom shared parental responsibility is conferred to make such a decision jointly.

8. I have said time and time again in judgments in these difficult, highly conflictual parenting cases that I am satisfied that to make an order that imposes such an obligation on two persons who cannot communicate respectfully and effectively, and with recognition of the important co-parenting role the other parent plays in the life of the child, is not in a child’s best interests. Conscious of my recorded views about this, I suspect, counsel for the father submitted that there is evidence that the parents in this case have been able to communicate at what might be called the “micro level” about day to day issues. He submitted, effectively, this is evidence that their communication is not so bad that I would consider shared parental responsibility not to be in the child’s best interests.

1. With respect, I am not persuaded. I am quite satisfied that the father’s continued devotion to the Islamic faith and its teachings and traditions around male “guardianship” of females, be they children or adult, the mother’s self-declared reduction in her level of commitment to the same faith, and their difficulties with mutually acceptable communication historically since separation will create insurmountable difficulties for this former couple and their child if parental responsibility is shared and they are obliged to make those decisions about major long-term issues in relation to the child’s religion, education and health jointly. I will not make an order that confers shared parental responsibility for those major long-term issues on both parents. I am not satisfied that it is in the child’s best interests. I will give the mother sole parental responsibility for the child in respect of those long-term issues as the child will be, pursuant to the parenting orders I will make, living principally with the mother as she has been all her life so far.  

Living Arrangements for the Child

1. I am quite satisfied that the child should continue to live with the mother. The mother has been the parent who has principally cared for her all of her life. I am not satisfied by any evidence that such principal care should be interfered with. I am equally not satisfied by any evidence that it is in the child’s best interests to live in an equal time arrangement with the father, as he sought as one of two alternative propositions at the end of the trial.  

2. I am satisfied that the best interests of this little girl will be met by making orders that permit her to live principally with her mother in the northern suburbs of Brisbane and continue to attend the school that her mother has chosen to send her to. I accept the submissions made on behalf of the ICL that her best interests will be served by moving from a regimen of a few days with her father during the middle of each week and some time on each weekend to an arrangement by which she spends half of her school holidays with him and all of every second weekend during school term with him.  

3. I am satisfied that the time she has been spending with her father and his new wife since the father married his new wife will have facilitated the development of relations between the child and her father and his new partner, such that regular, but less frequent time can be spent by the child with him without it impacting negatively on her relationship with him. The time that she spends with her father during school term should be in one block on a weekend.

4. Principally, as the evidence disclosed, the father and his current wife live in her home at R Town, not with his mother in inner northern Brisbane. Whenever the child was spending time with the father that was during the school week, it seemed as if the father was predominantly renting short term accommodation in Brisbane through share accommodation websites. I do not consider it in the child’s best interests for that to continue. It exposes the child to the instability of regular changes of accommodation and an inability to call any such place home. On other occasions, the father was just staying at the home rented by his mother, but that was only when his wife did not travel to Brisbane with him.

5. In these particular circumstances, I am of the view that the child’s unsupervised time with the father should be limited to alternate weekends from after school on Friday to before school on Monday. In this way, the father can collect the child from her school at the finish of school on Friday afternoons and deliver her back to her school at the start of school on Monday mornings, or on Tuesday mornings if the Monday is one of the Public Holidays that falls on occasion during the year. He should not come into face to face contact with the mother in this way.  It would be expected that he would drive the child back to the home he shares with his wife at R Town to spend the weekend there with her. Those weekends, living near the beach, should be very enjoyable for the father and the child. Combined with spending half of the school holidays with her father, most probably at that same R Town home that she would already know well enough by now, that will, in my judgment, give her an additional sense of routine and stability without added instability during the course of her school weeks. At the age of seven, commencement of a more settled and stable routine, particularly around her day to day schooling, is, in my judgment, in her best interests. I am also taking into consideration the evidence, confirmed by the child’s school records adduced into evidence, that on 18 out of 20 days the child had been recorded as absent from school in her Grade 1 school year in 2016, she was in her father’s care and not her mother’s care. I do not accept the father’s assertion that all of those absences were for legitimate reasons. The school records certainly do not record that the father reported the child was unwell and unable to attend school on those days.

6. I do not expect that the reduction in nights the child spends with the father during school term from five per fortnight to three per fortnight over one whole weekend will significantly impact on the child or her relationship with her father. Whilst she has not been spending longer than two nights at a time with the father, I consider she is old enough now to begin to regularly spend blocks of three nights (and occasionally four on long weekends) with her father during school term, and even longer during the school holidays, including for half of the Summer school holidays. Additionally, the extra time that she will spend in her father’s care during school holidays will enable her to enjoy his and his wife’s company in an ideal location for her to spend school holiday time and will, in my view, adequately substitute for the two nights per fortnight that she will miss from now on during school term. The child’s current good relationship with her father should, in my judgment, be able to continue to appropriately develop with these arrangements in place in the future. I will permit the father to have his wife collect, transport and deliver the child, if he cannot do it.

7. My orders will identify which alternate weekends during term and which half of the child’s school holidays she is to spend with the father and how to work out half of those school holidays. This should reduce potential for disagreements.

8. Whether the child spends time with her paternal grandmother will be a matter principally for the father to address during the weekends and holidays that the child spends with him.

9. I will make orders that provide for the child to spend time with the father on Father’s Day and the father’s birthday and her birthday if those days fall outside the provisions for regular time in his care. Similarly, the orders will provide for the child to spend time with the mother on Mother’s Day, the mother’s birthday and the child’s birthday if the child is otherwise with the father on those days pursuant to the terms of the orders. There will be a need for some discussion and agreement about the particular hours the child spends with the father and mother on those special days. Having agreed on some ‘micro matters” in the past, I expect that they should be able to manage this in the future.

10. Whether the child spends time with the father during Ramadan, such as, for example, on the day known as Eid, or any other religious celebration day, will be a matter for the parents to agree upon. There was some evidence that they had agreed for the child to spend time with the father for the Eid celebration in 2016. That being the case, I consider it appropriate to leave that as a matter for the parties to agree upon in the future. I will not order that the child must spend time with the father for Eid or other religious festivals. That will be a matter for the mother to decide upon if the father asks for such time.

Some Other Issues

1. The parenting Orders I will make will permit communication between the father and the child by internet video conferencing on a platform such as Skype or FaceTime on three occasions each fortnight outside the time she spends with him during school term and on one occasion per week whilst she is with her mother during school holidays. Similar communication with her mother will be provided for on one occasion per week whilst she is with her father during school holidays. I will, for certainty, specify the time and days when this is to happen, the length of time that it is to be limited to and obligate the parent with whom the child is living at the time to facilitate the child’s communication with the other parent and to provide privacy for her during that communication.

2. My parenting Orders will permit the father to attend at the child’s school as may be permitted by the school administration having regard to such opportunities that are offered to parents of all children who attend at that school. They will also permit him, at his expense, to obtain any documents, photos or records from the school that parents are generally permitted to obtain.

3. My Orders will restrain the father from insisting that the child wear the hijab or similar Islamic religious garb before she reaches adulthood, such that any decision to do so will be hers, and hers alone but only when she reaches adulthood, unless her parents agree. Otherwise, if such restraint is not in place, I expect the father might insist on her wearing it when she is in his care, after she has reached puberty. The mother has clearly said that she will not do so. Accordingly, I do not consider it will be in the child’s best interests to be subjected to different regimes in respect of the religious clothing she must wear in the different homes she will be living in.

4. My Orders will also restrain both parents from being able to take the child outside Australia without the written agreement of the other parent. Both parties came to the trial seeking orders that he or she, but not the other, be allowed to take the child out of the country. The mother wishes to be able to travel with the child back to Country K from time to time to visit her family. The father specifically wished to be able to take the child on religious pilgrimages to Islamic holy sites. Each opposed the other on the grounds of belief that the other parent might not bring the child back to Australia.

5. At the end of the trial, counsel for the father informed the Court that the father had changed his position. He was now prepared to agree to restraint on both of the parents taking the child out of the country. The mother still sought permission to be able to take the child out of the country. The ICL submitted that it would be in the child’s best interests to impose the restraint on both parents. I accept that submission. I do not consider it in the child’s interests to permit her to be taken from the country against the wishes of the other parent when there has been such a history of conflict and mistrust between the parents as there has been in this case.

6. Such restraint will not prevent the mother alone from returning to Country K to visit her family during time, such as school holidays, when the child is with the father. If the mother wishes to visit Country K for longer, she may agree to leave the child with the father in his care for a longer period. The eleven years between now and when the child will reach adulthood and can make decisions about travel for herself will pass very quickly. If she wishes to travel with her mother to Country K as a young adult woman, she will be able to. If she wishes to visit holy sites with her father as a young adult woman, she will be able to. Such travel, without parental agreement, in my judgment, must wait until then. The Federal Police will be asked to maintain the child’s name on the Family Law Watch List at all points of departure until her eighteenth birthday.

7. Having noted the undertaking the father gave to the Principal Registrar in October 2014 and the concerns each parent expressed about the other (and from the father’s perspective, the mother’s then partner) in respect of the child’s intimate care, I consider it to be in the child’s best interests to put in place final orders restraining the father from involving himself in the child’s intimate care and obliging him to ensure that his wife or his mother assist the child with those things, if she needs such assistance whilst in his care. I will also restrain him from showering or bathing with the child or being naked or semi naked in her presence (save for swimming trunks). I will also oblige the mother to ensure that no man plays any role in the intimate care of the child whilst in her care.

8. The Principal Registrar had also made orders obliging the mother not to have the child refer to any other man other than the father as “dad” or “daddy” given the evidence was that the child had been referring to the mother’s then partner in that way and the father was unhappy with that. I consider it best to keep such obligation in place and will order a similar obligation on the father, given that he is re-married, not to permit the child to call any other woman than the mother “mum” or “mummy”.

9. My Orders will permit the father to attend at the child’s school for events and any occasions that parents are welcome to attend, and for that to continue whilst he has the permission of the administration of the school to do so. He shall also be entitled to receive information and documents from the school in the same way.

10. I will make Orders obliging the parents to keep each other informed in writing of various things such as residential addresses, contact telephone numbers and an email address, and any major medical issues. I will oblige the mother to keep the father informed in writing of decisions she makes in respect of major long-term issues about health, religion and education in the exercise of sole parental responsibility for the child.

11. I will order that the child continue to be taken to the one general medical practice for medical attention, save for emergencies, and that it be the practice chosen by the mother. The father supported this position through his counsel’s final submissions.

12. I will discharge the ICL and I will order that any Contravention Application filed by either parent in this matter shall be filed in this Court and shall, unless it is otherwise impracticable, be listed for hearing before me. I am now familiar with this case and its issues. I consider it will save the Court a lot of time in the future if any contravention applications are heard and determined by me.

Property Matters

1. When the mother moved to Country J to marry and live with the father they took up residence in an unfurnished, rental apartment. She was working as an intern, earning no income. The father was employed in a professional occupation. She asserts she did not know how much he was earning then, or at any time during their marriage, as he would not tell her whenever she asked.

2. The mother had little, if any, assets at that time. The father had a Country J bank account in which he had approximately $24,000 Country J dollars, saved from his Country J employment in the previous few years. He was also a joint signatory to a Country J bank account that was held jointly with his mother. In that account, in mid-2009, there was approximately $100,000 Country J dollars. The father says that it was his mother’s money. His mother supports his evidence about this.

3. Although I do not accept the veracity of much of the evidence of the father and his mother, it is difficult to determine that the assertion that the money in that bank account was his mother’s is not true. I accept that the father had only been working for a couple of years in Country J after having completed his studies there and that the money in his own account more likely reflects his savings from his income earned in that employment. I accept that the father was living quite frugally there, but am aware that he must have paid for travel to Europe and Country K and back to Country J when he was spending time with the mother. The costs associated with that would have reduced those savings of his. The mother said in one of her affidavits that the father had told her that her that he had saved up from his job as a chemist in Australia after he had finished his first degree in Australia. There was no other evidence that supported that assertion.  Indeed, there is evidence that he only worked in Australia for several months before going to Country J.

4. It is asserted that the father’s mother took her savings with them to Country J when they went over and that was the source of the money in that joint account and that she used that money to fund her own support and the father’s support whilst he was studying in Country J. She asserts that she left the money in an account in their joint names so that he could access it himself as and when he needed it. As all of this evidence stands, and there was, respectfully, no serious challenge to any of that, I cannot determine that just because the father’s name was jointly on the account with his mother that it was his money or that he actually had an interest in a particular share of it. Whilst I do not reject the mother’s evidence that the father told her he had saved money in Australia, I am not persuaded that the father had saved $100,000 Country J dollars in addition to the amount he had in the Country J bank account in his own name, Additionally, there was simply no evidence that would explain why the father would have his own savings in joint accounts with his mother if all of that money was indeed his, sourced from his savings. On balance, I consider that money in that account probably was sourced from his mother’s savings and that whilst he had access to it as needed, he did not have an interest in it.  

5. As observed earlier, I accept that in or around August 2009, the father made a decision, acquiesced in by the mother, that they would leave Country J and move to Australia to live and work. Clearly, that was based on an assumption that the mother could secure a visa to live in Australia. They first travelled to Europe for the mother to finish her studies and obtain her Master’s degree. In or around November 2009, the father returned to Perth and was living with his mother there whilst looking for employment and helping the mother, who had returned to Country K, to secure a visa permitting her to come and live in Australia.

6. The father presumably supported himself using his savings and with the assistance of his mother. It seems that in and around the process of helping secure the mother’s passage to Australia, the father spent some money on her as well. The mother asserted, whilst the father’s mother denied it, that his mother still tried to talk the mother out of coming to Australia and to break up with her son during this time. In all the circumstances of this case, I accept the mother’s evidence as truthful and prefer it to the evidence of the father’s mother.

7. I also accept that the mother had to borrow $2,500 from her own sister in Country K to pay for her airfare to Australia to come and join the father. In addition to that, after the mother’s arrival in Australia, the father’s mother insisted upon the quantification of all the money that the father had spent on the mother up until and around her arrival in Australia and impressed upon the mother the responsibility to repay that to him as soon as she could. When the father, his mother and the mother travelled out to L Town to live, the father’s mother assisted the mother in finding employment as soon as she could.

8. By July 2010, the mother was in casual employment earning money for herself. In September 2010, the mother changed employment and obtained administrative work. She remained in that employment until June 2011 when their child was born and she obtained parenting leave entitlements in connection with that employment. She did not, however, return to work after the birth of the baby.

1. The father and his mother asserted that $50,000 of that $200,000 in cash was “loaned back” to the father on 18 December 2013 to assist him with the legal expenses he anticipated he would be incurring in these proceedings that he was about to commence and Magistrates Court Protection Order proceedings that had been commenced on behalf of the mother. The oral evidence they gave about this under cross-examination was completely inconsistent and totally unbelievable. The father had $100,000 cash that he had withdrawn from his accounts and retained in the home. He did not need more money from his mother at that time, even though she clearly had $100,000 in cash in the home that had come from him.

2. But it did not end there. The evidence establishes that the father then transferred the last $7,050 from his T Bank account to his mother’s T Bank account on 23 December 2013, and that same day also withdrew $6,500 from his U Bank account with his mother’s statements showing $2,235 cash being deposited into her Westpac account on the same day from Citigroup. I am satisfied that $2,235 was the father’s money, taken out of the money he withdrew from his U Bank account and then paid to his mother. He may very well have put the balance on his credit account as he asserts.

3. The father asserted that $7,050 of this money he paid to her was the balance of the approximately $60,000 that he owed her, of which he asserts he had already repaid $50,000. As I have already observed, what the father did not even try to explain was why he did not simply transfer $60,000 to her in the first place two weeks before and why he did not actually repay her a total of $60,000, but rather simply the last of the money he had in his accounts. He did himself little credit, in my judgment, trying to assert that it is to his “culture” one can look for the explanation as to why he only paid her an additional $7,050 rather than the extra $10,000 he still allegedly owed his mother.

4. I do not accept that these payments were in repayment of money he owed his mother. I am satisfied it was just another $9,285 that he was disposing of to his mother to try to remove it from being subject to property adjustment orders in these proceedings. That took the amount he had given her to $109,285.

5. In another piece of telling evidence, or rather the telling omission of evidence, when the father completed two Financial Statements, the first filed on 3 March 2015 and the second filed on 19 December 2016, in Part M of each of those, which is the Part in which he is required to disclose the disposal of property in the twelve months prior to separation and in the time since separation, he only referred to the $40,000 transferred to his mother prior to separation, though he said that occurred in August 2012 rather than October 2012 when it actually occurred. He failed to mention the transfer to his mother of $109,285 in four separate amounts over a two week period in December 2013. Nor did he mention the withdrawal of another $100,000 of his money in that same two week period. When asked to explain that in cross-examination he said that it was just an “oversight”. I do not accept that was a truthful answer.   

6. The father came into more funds soon thereafter. By his own evidence, on 14 January 2014, he organised for the transfer of $22,500 Country J dollars that he still held in a Country J Bank account in his sole name to a credit card that he held. He said he later used that money to pay legal fees to the solicitors who were acting for him at the trial.

7. The evidence also establishes that for one reason or another the father organised the transfer of all of the funds in the account still held in Country J in the joint names of the father and his mother back to Australia and into his mother’s Westpac Bank account on 15 January 2013. $109,342 (Australian dollars) was recorded as being deposited into that account with that transfer.

8. Remarkably, given that money is said to have been the money of the father’s mother, sourced from her life savings taken over to Country J with her in 2002 (and I consider, as I have already said, on the balance of probabilities, that it probably was), the father’s mother then went about going to branches around Brisbane again over a period of five days withdrawing it all in various large cash amounts. One lot of $10,000, one lot of $15,000, one lot of $25,000, one lot of $5,000 and another lot of $10,000 on 16 January 2014. There was another lot of $5,000 and one lot of $20,000 on 17 January 2014 and, finally, one more lot of $20,000 on 20 January 2014. That, too, was all said to have been stored in a suitcase in the home of the father and his mother, taking the approximate amount of cash allegedly stored in their home at that time to around $310,000.  

9. I do not accept the father’s oral evidence at trial that he did not know why his mother was withdrawing all of that money in cash and storing it in a suitcase as that was his mother’s “business” and not his. They had clearly, I am satisfied, embarked on a ‘campaign’ of getting all of their cash savings out of bank accounts and into cash said to be stored in drawers and a suitcase in their apartment.

10. And yet, the father’s actions in divesting himself of his assets did not end there. On 21 January 2014, the father sold 17,337 shares in the company for which he had previously worked. He received a net amount of $46,051.63 as the proceeds of sale for them. He said that he paid $10,000 to his credit card. He gave, in his two affidavits filed, two different sworn versions of what he did with the balance. In the first affidavit, he said that he had used the balance of $36,051 to “meet living expenses and legal fees”. In his second affidavit, after the mother had deposed in one of her affidavits to the fact that he had actually transferred that balance to his mother’s T Bank account (in actual fact the father’s mother’s T Bank statement shows the relevant transfer from the father as $36,059), he agreed that he had done that but asserted that it was in “part repayment of the $50,000 [he] had asked her to loan back to [him] on 18 December 2013”. I do not accept that she had loaned $50,000 back to him in December as they allege.

11. I am satisfied that he disposed of the amount of $36,059 to his mother but I am not satisfied that it was in part repayment of a loan to him of $50,000, obtained on 18 December 2013. Therefore, this disposition to his mother took the total of his money given to his mother in less than two months to $145,344. It was yet another disposition of assets by him that was not mentioned in any of his filed Financial Statements.

Money then spent by the Father

1. Counting the $100,000 in cash, the $22,500 Country J dollars transferred to a credit card and the $10,000 from the sale of the shares that was also paid to a credit card, the father had access to $110,000 Australian and $22,500 Country J in early 2014. The Country J dollar was apparently reasonably close to parity with the Australian dollar at that time, having regard to the $109,000 approximately that came from the Country J account held in joint names.

2. The father has asserted that in or around December 2013, he paid a tax bill that he received for the 2013 financial year in an amount of $14,000. I did not apprehend the mother or her legal representatives to be mounting any serious challenge to that.

3. Apart from some living expenses (and I have already observed that I am satisfied that the father lived very frugally), the father’s most significant expenses from December 2013 onwards were the costs of these proceedings and the Magistrates Court proceedings. I am satisfied that his mother paid the rent for the home they lived in.

4. In his affidavit filed 19 October 2016, the father said that the total of the fees he paid to the first firm of solicitors that represented him up to around the middle of 2014 was $40,947. I am satisfied he was able to pay that from the sum of approximately $118,500 (after the tax bill of $14,000 was paid) that he retained from the beginning of 2014.

5. Exhibit 14 in the trial is the father’s solicitors’ costs notification provided to him and the Court pursuant to r 19.04 of the Family Law Rules 2004. The notification dated 17 February 2017, says that the father had paid a total of $168,080.11 in legal fees which included the amount paid to his former solicitors (approximately $41,000). Accordingly, the father had paid approximately $127,000 to the firm that represented him up to the trial. It was expected he would owe that firm a further $20,000 for work not yet billed.

6. Interestingly, the costs notice did not include specification of the source of the funds for the costs paid as is also required by r 19.04(5) in financial cases.

7. The father deposed in his Financial Statement filed 3 March 2015 that he owed his mother $50,000 that she had lent him for legal fees. I must presume that is the $50,000 that is said to have been loaned to him on or around 18 December 2013 and I have already rejected their evidence that such amount was actually loaned by the father’s mother to him at that time. He simply did not need it at that time they say she lent it to him. Accordingly, I reject his assertion in March 2015 that he owed his mother $50,000 for money she lent him to pay legal fees.

8. In his Financial Statement filed 19 December 2016, the father deposes to owing his mother $90,000 for money she had lent him to pay legal fees. I must also accept that this amount includes the $50,000 that he previously asserted he owed his mother that I have already rejected. Accordingly, I apprehend the father is asserting that his mother lent him an additional $40,000 to pay his legal fees.

9. Counsel for the father handed up a schedule of assets and liabilities at the trial on 21 February 2017 that included the alleged liability of $90,000 to the father’s mother for legal fees.

10. If the father’s total legal fees to the time of the trial were around $168,000 and he had around $118,500 in his own funds at his disposal at the beginning of 2014, it follows that he could very well have borrowed $40,000 from his mother over the course of 2015/2016 to help him pay his legal fees. It is to be remembered that he was receiving Centrelink benefits (including rental assistance allowance when the evidence was that he was not even paying the rent for much of the time) all the time he was not working; he was not paying child support of any real significance; he was used to living frugally; there is no evidence about an income tax refund that he may have been entitled to in the financial year 2013-2014; his mother was clearly supporting him in 2014 and 2015 by paying rent and other expenses; and it is entirely possible that his wealthy, new wife, who he married in 2015 was supporting him from the time of their marriage and possibly even helping him with his legal fees.

The Property of the Parties or either of them at the time of the Trial

1. Both parties agree pm on the following values:

   Father’s motor car    value       $1,300

   Household contents in father’s possession            value          $500

   Household contents in mother’s possession          value       $1,000

   Father’s superannuation interest at 9/1/17             value     $38,749

   Mother’s superannuation interest at 13/1/17         value       $2,337

   Sub-total  $43,886

2. For the father, it is submitted the mother’s bank account balance deposed to in her Financial Statement filed 6 December 2016 of $13,838 should also be included. No argument was mounted against that by counsel for the mother. I accept that it should be included. Cash in the bank of a party at the time of trial is property “of the parties or either of them”. That takes the total to $57,724.

3. Both parties agree that the mother’s debt to the man she was in a relationship with of $5,000 should be included in determining the net property to be considered. That brings the net total to $52,724.

4. The mother has also said that she has a $10,784 “HELP” debt that relates to her studies that she has undertaken since separation. I will not include that as a debt that reduces the value of “the property of the parties or either of them”. It is a liability incurred post-separation by the mother as part of her endeavours to improve her position.

5. The father seeks to include the debt he says he owes his mother. He wants it included at $90,000. Clearly, if it was, it would take the parties’ net property position into the negative. I have already determined that only $40,000 of that amount could be borrowings from his mother for legal fees. In any event, principles discerned from Full Court authorities cause me to determine that a debt owed to a third party for legal fees paid for one’s representation in these very proceedings should not be taken into account. If it were, the other party would be contributing to the cost of their former partner’s legal fees. I will not include the debt.

The Mother’s s 106B case

1. For the mother it was submitted that all of the money in the father’s bank accounts in Australia and Country J, including the joint account held with his mother, should be included as property. It was submitted that the $40,000 that the father transferred to the mother in October 2012 should be included. It was submitted that the sale proceeds of the father’s shares should be included.

2. With respect, I do not agree with this approach. I have already said that I am satisfied, on the balance of probabilities that the money that was held in the Country J bank account in the joint names of the father and his mother was his mother’s money. I will not include that in the property of “parties or either of them”. I do, however, consider s 106B of the Act to have application in the circumstances of this case. Relevantly, it provides:

   (1)    In proceedings under this Act, the court may set aside or restrain the … disposition by … a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

   …

   (4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1)...

3. As I have already stated earlier in these reasons, I am satisfied that the father disposed of a total of $185,344 of his money (including the proceeds of sale of his shares) to his mother as part of a plan that she was party to, to defeat the mother’s prospects in these proceedings. The mother sought to join the father’s mother to the proceedings on an interim basis. The father’s mother opposed that but, through experienced counsel, told the Court that it was not necessary that she be a party to the proceedings for this Court to make orders that affect her rights and bind her. I said in reasons that I gave for dismissing the application to join her as a party that I took that to be a concession that procedural fairness has been done to the father’s mother and that she has been on appropriate notice of orders sought against her pursuant to ss 106B and 80(1) of the Act. No contrary argument was ever put on her behalf.

4. Furthermore, s 80(1) of the Act provides as follows:

   The court, in exercising its powers under this Part, may do any or all of the following:

   (a)order payment of a lump sum …..

   …

   (c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs.

5. I am, in all the circumstances, satisfied that I have the power under s 106B to order the father’s mother to repay the sum of $185,344 to her son. I consider, if necessary, that I can also order the father’s mother to pay that amount, or any part of it, directly to the mother if that is determined to be a necessary part of the making of a property adjustment order that is just and equitable. I will, accordingly, include that amount in the property “of the parties or either of them” in this case. Doing so will take the net property to $238,068.

6. I am also satisfied that I have the power, pursuant to the combination of the two sections, ss 106B and 80(1), to order the payment of any such sum by the mother to be secured by a charge over real property that she owns, if I consider that appropriate in the circumstances.

Section 79(2) of the Act

1. As the mother has net property worth only $12,175, I am quite satisfied that it will be just and equitable to make orders adjusting the interests of the father and the mother in the property of them or either of them. Each of them contends for adjustment orders, and neither submits that it would not be just and equitable to make any. I will.

Add-backs

1. Although money already spent in the form of legal fees can no longer be considered property of the parties, where, as is the case in this matter, one party has spent capital that existed at separation on their own legal fees, it is not inappropriate to notionally take it into account, when assessing what property adjustment orders would be just and equitable to make as between the parties.

2. I am satisfied, as set out earlier in these reasons, that the father spent $118,500 of the capital that existed at separation on his legal fees. I consider that justice and equity requires it to be taken into account when determining what property adjustment orders are just and equitable.

3. Notionally adding it to the other property of $238,068 would result in property and notional property being valued at $356,568.

Contributions assessment

1. As I have already set out, the father had the Australian dollar equivalent of about $24,000 Country J dollars in an account in Country J in his own name when he and the mother got together and she had little if anything. That was down to the equivalent of $22,500 in Country J dollars at January 2014 when it was apparently used to pay legal fees, so is therefore notionally included in the above figure. That figure is approximately 6.3 per cent of the total if Country J dollars are treated at parity with the Australian dollar. I accept that as an initial contribution of the father. He also had, I accept, a very small amount of superannuation at the time their relationship commenced.

2. I am satisfied of the following matters of contribution during their marriage from 2009 to separation in December 2012 and from then until the trial:-

   ·The father financially supported the mother in Country J for a few months whilst she interned without income. They lived frugally though.

   ·The mother contributed throughout those initial few months in Country J by way of the housework and homemaking duties she undertook.

   ·There was some limited financial assistance provided by the father to the mother whilst they were apart from late in 2009 until May 2010.

   ·From May 2010 until December 2012, the parties each contributed in substantial ways to their marriage relationship, the welfare of their family and the accumulation of assets. Indeed, I am satisfied that each contributed across these different spheres throughout that time in equal degrees.

   ·From separation in December 2012 until September 2013, the father contributed his work and his income to the continued accumulation of cash assets. He also obtained some more shares from his company as part of his employment. His superannuation continued to accumulate. At the same time, the mother principally, with very little practical and financial assistance from the father, cared for and supported their child.

   ·From September 2013 until trial, the father was unemployed, contributing little to the financial support of the parties’ child (save for when she was in his care) and contributing to her practical care only when she was with him. During this time he contributed little to the generation of wealth or maintenance of the property of the parties or either of them, save that to the extent his mother contributed to his financial support, he did not have to use his money to support himself but was able to use that to pay for his legal representation.

   ·From September 2013 until trial, the mother principally supported the child of the parties both financially and practically. 

1. Having regard to my satisfaction with these things just set out, I would assess the contributions of the parties as follows. The father contributed more in terms of property at the start of the marriage and that needs an appropriate weighting at this assessment stage. His contributions were slightly greater than the mother’s contributions between the time of their marriage and when they both moved to work in L Town. Their contributions from that time until separation I consider to be equal and this was by far the most significant few years under consideration, so will carry substantial weighting in the assessment. Their contributions from separation until September 2013, I consider to be equal. Finally, I am satisfied that the mother’s contributions from the time the father gave up his employment until the trial were greater than the father’s contributions.

2. Translating these assessments to a notional percentage division, I am satisfied that a division of the property and the notional property on a 56 per cent-44 per cent basis in favour of the father reflects a just and equitable assessment of their respective contributions.

Adjustment

1. I now have regard to the matters set out in s 79(4) (d) to (g) of the Act, including, pursuant to (e) the matters referred to in s 75(2) of the Act, so far as they are relevant. I do not consider it necessary to set all those statutory provisions out in these reasons.

2. Significantly, the father has remarried a woman of relative wealth and, although he says he has been looking for work, he had not worked in paid employment from September 2013 to the trial in February 2017. I was not persuaded that he genuinely intends to work again, but rather I consider he is relatively content to rely on the support of his wealthy wife. He is certainly not living in need or poverty, and was always a man of frugality in any event. However, I consider that if he really desired employment he could, with effort, probably find some given his significant educational qualifications and his past experience. There is nothing about his health that would hinder him in such a quest. He is still a relatively young man.

3. The mother is still a relatively young woman. She is showing initiative and endeavour by finding work and undertaking tertiary studies. She, too, had re-partnered, but the pressures associated with these proceedings resulted in the end of that relationship. I am satisfied that there were, at trial, prospects of a rekindling of that relationship. However, the mother will not, I am satisfied, experience the same financial benefit from that relationship if it is rekindled, as the father is already receiving from his marriage.

4. The mother will have the principal care of the child of the parties in the future, both financially and practically. She will be responsible for caring for the child 11 days and nights in a fortnight during school term and half of all of the child’s school holidays. She will, I am satisfied, receive little financial support from the father for the child, unless he, of course, goes and takes up employment. I am not convinced that there is a high probability of that.

5. In dollar terms, 1 per cent of the property and notional property is $3,565 and 10 per cent is, of course, $35,656. The lack of child support of any significance from the end of 2013 to the time of trial and into the future is perhaps the most significant of the many factors to be considered at this stage of the assessment. It costs a lot to properly care for a young child. The mother deposed in December 2016, without challenge, to the fact that she was spending at least $209 per week on the parties’ child at a time when she was caring for her for 9 days and nights out of 14. Pursuant to the parenting Orders I will be making, she will be caring for the child for 11 days and nights out of 14 during school term and half of the school holidays. Clearly, her expenditure on the child has to be expected to increase accordingly.

6. I consider an adjustment of 15 per cent in the mother’s favour is a just and equitable adjustment in the circumstances. That is $53,485 of the property and notional property. That will take the final percentage division of the property and notional property to 59 per cent in favour of the mother and 41 per cent in favour of the father.

7. For the mother to receive 59 per cent of $356,568 taking into account what she is already credited with, namely her household contents worth $1,000, her superannuation interest at $2,337, her bank savings of $13,838 less the debt of $5,000 that she owed, she is entitled to property and/or a cash payment to the value of $198,200. That can be achieved by the money the father’s mother is to be ordered to repay her son, simply being ordered to be paid directly to the mother. It is $185,344. In all the circumstances, I consider that the payment of that amount by the father’s mother to the mother should be secured by a charge over unencumbered real property that she owns in Western Australia as was sought by the mother at the trial, and about which the father’s mother was well and truly on notice, even if she was not formally a party to the proceedings.

8. In addition, the balance of $12,856 can be paid to the mother by the father by way of a superannuation splitting order in that amount being made in favour of the mother.

9. I consider orders that give effect to this property adjustment are just and equitable and will make them.

10. Given that there is no evidence that the trustees of the father’s D Super Fund have been given procedural fairness in this matter by having been given any notice of the prospect of a superannuation splitting order being made against the father’s superannuation interest in this matter, I will make orders that appropriately give them procedural fairness.

Outstanding Costs Matters

1. After I dismissed the mother’s interim application to join the father’s mother as a party to the proceedings, the father’s mother and the father each made application for costs against the mother. I reserved the question of the father’s mother’s costs for further consideration after I had determined these proceedings. I did not determine the father’s application either, leaving it for determination at the conclusion of the trial.

2. In my reasons given for reserving the father’s mother’s costs I said, relevantly, the following:

   I am of the view at this point in the proceedings that the determination of whether or not circumstances justify the making of a costs order in favour of the paternal grandmother is one most appropriately left now to the conclusion of the determination of the substantive property matters between the parties and in particular, insofar as the paternal grandmother is concerned, the issues that give rise to the wife’s application for orders pursuant to s 106B. (my emphasis now)

3. Now I have decided the s 106B application quite clearly in favour of the mother to a most substantial degree, based on findings of dishonesty on the part of both the father and his mother and findings of complicity by each of them in a plan for the father to rid himself of cash and assets so as to defeat the mother’s prospects of obtaining an order in her favour in these proceedings, I am readily satisfied that the father’s mother’s costs application the determination of which was reserved, should be dismissed. I am also satisfied that the father’s application for costs of and incidental to that dismissed application for joinder should, in the same circumstances, be dismissed. I will so order.

4. I make all of the orders set out at the commencement of these written reasons.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 August 2018.

Associate: 

Date:  24 August 2018