Savage & Haines (No 2)

[2024] FedCFamC1F 864

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Savage & Haines (No 2) [2024] FedCFamC1F 864

File number:

SYC 7724 of 2023

Judgment of:

ALDRIDGE J

Date of judgment:

13 December 2024

Catchwords:

FAMILY LAW – PARENTING – International relocation – Where the parties agree the child will relocate with the mother to the USA – Where the father seeks to delay the relocation to July – Child has a good relationship with the father – Disadvantages of delay outweigh the advantages – Relocation to occur in February – Where it is desirable for the father’s time with the child to increase in manageable increments – Father has a history of drug and alcohol abuse – Father falsified drug test results – Father has not acted on single expert’s recommendation for changes to his therapeutic engagements – Where it is in the child’s best interest for testing to continue until the child is 10 years of age.

FAMILY LAW – PROPERTY – Balance sheet items – Add backs – Where the parties agree their contributions were equal – Where the mother will retain primary care of the child – Consideration of the mother’s student loans – Where the father has significant capacity for employment but is currently unemployed – Consideration of the father’s expenditure on drugs and alcohol – Property to be divided 65 per cent to the mother and 35 per cent to the father.

Legislation:

Family Law Act 1975 (Cth) ss 60CC, 75

Cases cited:

Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633

Division:

Division 1 First Instance

Number of paragraphs:

87

Date of hearing:

4–7 November 2024

Place:

Sydney

Counsel for the Applicant:

Dr Barnett SC

Solicitor for the Applicant:

Boyce & Boyce

Counsel for the First Respondent:

Mr Dura SC

Solicitor for the First Respondent:

Barkus Doolan Winning

Solicitor for the Second Respondent:

Karras Partners Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Wallace

Solicitor for the Independent Children’s Lawyer:

Tiyce & Lawyers

ORDERS

SYC 7724 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SAVAGE

Applicant

AND:

MR HAINES

First Respondent

MS HAINES

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	13 DECEMBER 2024

THE COURT ORDERS THAT:

PARENTING

1.The mother is permitted to relocate the residence of X, born 2017 (“X”), to the United States of America (“USA”) at any time on and from 1 February 2025.

2.Pending X’s relocation to the USA, he shall spend time with the father as follows:

(a)From Friday 13 December 2024 and for the remainder of Term 4 2024:

(i)In Week 1, from after school or 3.00 pm if a non-school day on Friday to the commencement of school or 3.00 pm if it is a non-school day on Monday of Week 2; and

(ii)In Week 2, from after school Thursday or 3.00 pm if a non-school day to the commencement of school or 3.00 pm if it is a non-school day on Friday.

(b)During the school holiday period at the conclusion of Term 4 2024:

(i)With the mother from 12.00 pm on 20 December 2024 to 12.00 pm on 24 December 2024;

(ii)With the father from 12.00 pm on 24 December 2024 to 6.00 pm on 30 December 2024;

(iii)With the mother from 6.00 pm on 30 December 2024 to 6.00 pm on 6 January 2025; and

(iv)With the father from 6.00 pm on 6 January 2025 to 6.00 pm on 27 January 2025.

(c)From the commencement of the NSW School Term 1 dates in 2025, and until the date of X’s relocation to the USA, as agreed between the parties in writing and failing agreement, as follows:

(i)On a week-about equal time basis with changeover to occur at X’s school on each Monday at 9.00 am.

3.Upon X’s relocation to the USA and in the event that the father remains habitually resident in Australia, X shall spend time with the father as follows:

(a)During the Christmas break from 17 December to 10 January in years with an even number, such time to take place in Australia;

(b)During the Christmas break from 28 December to 11 January in years with an odd number, such time to take place in Australia;

(c)During summer break:

(i)In 2025, from the Monday of the first week of the summer break until the day that is 21 days later, such time to take place in Australia;

(ii)In 2026, from the Monday of the first week of the summer break until the day that is 35 days later, such time to take place in Australia; and

(iii)In 2027 and ongoing, from the Monday of the first week of the summer break until 14 days prior to the commencement of the new school year in the USA in August, such time to take place in Australia;

(d)During and after the spring recess, from the first day of the spring recess and for a total period of 14 nights, such time to take place in the USA, and the father shall facilitate X’s attendance at school and extra-curricular activities, and upon the father providing 60 days written notice to the mother that he intends to travel to the USA to spend time with X;

(e)During school periods:

(i)In 2025, for three occasions per year for a period of up to 21 nights on each occasion;

(ii)In 2026, for two occasions per year for a period of up to 21 nights on each occasion; and

(iii)In 2027 and ongoing, for two occasions per year for a period of up to 14 nights on each occasion,

as elected by the father, but no less than 14 days following the conclusion of any other period of time that X is to spend with the father pursuant to these orders, provided the father gives the mother 60 days written notice of his intention to travel to the USA to spend time with X and the father facilitates X’s attendance at school and extra-curricular activities.

4.The mother shall purchase X’s return flights to Australia pursuant to Orders 3(a) and 3(b) herein (X’s holiday time each December/January) and provide a copy of the return travel itinerary to the father two months prior to the anticipated travel to Australia, and the father shall reimburse the mother one half of X’s airfare one month prior to travel via funds transfer.

5.The father shall purchase X’s return flights to Australia pursuant to Order 3(c) herein (X’s holiday time during summer breaks) and provide a copy of the return travel itinerary to the mother two months prior to the anticipated travel to Australia, and the mother shall reimburse the father one half of X’s airfare one month prior to travel via funds transfer.

International changeover

6.The mother shall deliver X to the father at City H International Airport at the commencement of X’s time with the father pursuant to Orders 3(a)–(c) herein, and the father shall deliver X to the mother at Sydney International Airport at the conclusion of X’s time with the father.

7.The parties shall each be responsible for the costs of their own flights between USA and Australia.

8.All changeovers during the time X spends with the father in the USA that are not otherwise specified in these orders shall occur at a location agreed between the parties which shall fall within a 2km radius of X’s school.

If the father relocates to the USA

9.In the event that the father relocates his place of residence or spends 183 days or more in any one year period within 30km of the mother’s place of residence in the USA, the following Orders 10 and 11 shall apply.

10.X shall spend time with the father on a fortnightly basis as follows:

(a)In Week 1, from after school or 3.00 pm if a non-school day on Friday to the commencement of school or 3.00 pm if it is a non-school day on Monday of Week 2; and

(b)In Week 2, from after school or 3.00 pm if it is a non-school day on Wednesday to the commencement of school or 3.00 pm if it is a non-school day on Thursday.

11.X shall live with the father during school holiday periods as follows:

(a)In even years, from the conclusion of school on the day prior to each spring break until the commencement of the next school day;

(b)In even years, from the conclusion of school on the day prior to each fall recess until the commencement of the next school day;

(c)In odd years, from the conclusion of school on the day prior to each winter recess until the commencement of the next school day;

(d)In even years, from the conclusion of school on the day prior to the summer recess until 12.00 pm on the Wednesday of the middle week of the summer recess;

(e)In odd years, from 12.00 pm on the Wednesday of the middle week of the summer recess until the commencement of the next school day; and

(f)In even years, from the conclusion of school on the day prior to the Christmas break until the commencement of the next school day.

Hair follicle testing

12.On and from 24 April 2026 and until X attains 10 years of age, the father shall attend upon an accredited testing clinic for chain of custody hair follicle (10 Panel) drug testing within 48 hours of any request by the mother, with not more than two requests to be made in any calendar year as follows:

(a)The first request to be made anytime during the first six months of a calendar year;

(b)The second request to be made anytime during the second six months of a calendar year;

(c)Such tests to be at least three months apart in request;

(d)Such tests to cover at least the three month period immediately prior to when such test is undertaken;

(e)Such requests by the mother to be made during Eastern Standard Time business hours and in writing to the father either by way of text message or email;

(f)The father to ensure that such results are provided to the mother directly from his chosen accredited testing clinic; and

(g)The father shall ensure he is able to provide a hair strand test sample of at least 3cm that has been neither dyed nor bleached, straightened or permed, or treated in any manner that might adversely affect any hair follicle testing procedures undertaken by the father and pursuant to these orders.

Restraints

13.On and from the making of these orders and for a period of 18 months of continuous compliant test results, the father is restrained from consuming alcohol, illicit drugs or any other drugs to which he does not have a prescription, while X is in his care or in the 24 hour period before X comes into his care.

PROPERTY

14.Pursuant to s 90XT(1)(b) of the Family Law Act 1975 (Cth), Ms Savage is entitled to be paid the amount equivalent to 100 per cent of the entitlement of Mr Haines (date of birth, 1982) in the J Trust, Superannuation Fund 1 (“Superannuation Fund 1”) as at the operative time, adjusted by fund earnings (positive or negative) from that time to the payment date, and the entitlement of Mr Haines is correspondingly reduced.

15.Having been accorded procedural fairness in relation to the making of this order, Orders 14, 16 and 18 bind the trustee of Superannuation Fund 1.

16.The operative time for Order 14 is four business days after the date of service of a sealed and certified copy of these orders on the trustee of Superannuation Fund 1.

17.The mother shall effect service of a sealed and certified copy of these orders on the trustee within 14 days of the date of these orders.

18.Each party and the trustee has liberty to apply on not less than three business days notice in respect of the implementation of the super splitting orders.

19.Within 90 days of the date of these orders, the father shall pay the mother the sum of $506,972.

20.In default of Order 19 above, and upon the expiration of the option held by the second respondent pursuant to the orders dated 4 November 2024, the real property at K Street, Suburb E (Folio …) (“the Suburb E property”) be forthwith listed for sale in accordance with the sale procedure set out at Orders 27 to 33, with the proceeds of sale as defined therein to be distributed in the following order and priority:

(a)To the second respondent, 50 per cent;

(b)To L Bank, any amount required to effect a discharge of mortgage with dealing number … secured over the title to the Suburb E property;

(c)To the mother, $506,972; and

(d)To the father, the then remaining balance.

21.In the event that the father’s half share of the sale of the Suburb E property, pursuant to Order 20 above, exceeds or falls short of the agreed value of $2,450,000, the mother and father will share in the excess or shortfall as to 65 per cent to the mother and 35 per cent to the father.

22.Pending compliance with Order 19 or 20, as the case may be:

(a)The father is restrained from further encumbering or drawing down on any loan account secured by mortgage over the Suburb E property other than for the purpose of complying with Order 19 (however he will be permitted to use the funds standing to the credit of the L Bank Offset account).

(b)The father shall be solely responsible, indemnify and keep the mother indemnified for the following property related expenses and shall pay as and when they fall due:

(i)All statutory and consumable utilities for the Suburb E property, including in respect of all council rates, land tax, water charges, insurance premiums, electricity services; and

(ii)All principal and interest repayments in relation to any loan facility secured by the Suburb E property.

23.Within 60 days of the date of these orders, the parties shall do all acts and things and sign all documents necessary to close the following bank accounts in the joint names of the parties:

(a)Commonwealth Bank account ending #...42, with the closing balance to be distributed to the father; and

(b)M Bank accounts ending #...88 and #...83, with the closing balances to be distributed to the mother.

24.Upon the payment of the $506,972, the mother return to the father Motor Vehicle 1 presently in her possession and control, such vehicle to be in good order and repair.

25.Subject to and without limiting the above orders:

(a)The mother and father be solely legally and beneficially entitled to the exclusion of the other party, to all other real and personal property of whatsoever nature and kind as is in their respective ownership, possession and/or control as at the date of these orders, including but not limited to, real estate, superannuation funds and policies, monies on deposit, shareholdings and options, insurance policies, motor vehicles and personal effects;

(b)Each party hereby foregoes any claim they may have to any superannuation benefit or insurance policy to or owned by the other. The party in whose name any such policy of superannuation or insurance stands shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other;

(c)From the date of these orders, the mother do all acts and things necessary to indemnify, and keep indemnified, the father from and against all liabilities of the mother, whether past, present or future, including, but not limited to:

(i)All labilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the mother’s interest in any real property;

(ii)Any liability owing in relation to the mother’s US student loans;

(iii)Taxation (including CGT); and

(iv)Duties (including stamp duty).

(d)From the date of these orders, the father do all acts and things necessary to indemnify, and keep indemnified, the mother from and against all liabilities of the father, whether past, present or future, including, but not limited to:

(i)All labilities including claims, actions, suits or demands of whatsoever nature arising out of, or in connection with, the father’s interest in any real property;

(ii)Taxation (including CGT); and

(iii)Duties (including stamp duty).

Sale procedure

26.Orders 27 to 33 apply only in the event that the Suburb E property is to be sold in accordance with Order 20 above.

27.The mother, the father and the second respondent shall do all things and sign all documents necessary to list the Suburb E property for sale and, for that purpose, unless otherwise agreed between the parties in writing, the parties shall:

(a)List the Suburb E property for a sale price of $4,900,000;

(b)List the Suburb E property for sale with such agent agreed between the parties in writing (who shall not be Ms N) within seven days. If no agreement is reached, the father shall nominate three agents and the mother shall, within seven days, select one of the agents so nominated, failing which the father shall select one (“the agent”);

(c)Execute all documents requested by the agent for the sale of the Suburb E property and, in the event that the parties cannot agree on the terms of the agent’s contract within seven days of being provided such contract, the parties shall enter into such contract in the agent’s standard terms; and

(d)Give such instructions as are necessary to such conveyancing solicitor as agreed between the parties in writing within seven days. If no agreement is reached within seven days, the father shall within a further four days propose three names to the mother who shall select one within four days, failing which the father shall select one, to act on the conveyance relating to the sale (“the legal practitioner”).

28.The property shall be marketed for sale by public auction to occur within two months (“the first auction”) of the appointment of the agent with a reserve price agreed between the parties in writing and failing agreement, the sum of $4,900,000.

29.In the event that the Suburb E property does not sell at the first auction, the parties shall continue to market the Suburb E property for sale with the agent by way of private treaty and conduct a further public auction within eight weeks (“the second auction”) with a reserve price agreed between the parties in writing and failing agreement, the sum of $4,600,000.

30.In the event that the Suburb E property does not sell at the first auction or the second auction, the parties shall continue to market the property for sale as recommended by the agent and shall accept any price within five per cent of the reserve from the second auction.

31.For the purpose of Orders 27 to 30 above, the parties shall:

(a)Each attend any auction (whether in person or by video link) and in the event that the reserve price set for that auction is not reached, negotiate with the highest bidder and the second highest bidder and accept the highest offer to purchase made within five per cent of the reserve price set for that auction unless the parties otherwise agree;

(b)Execute the contract for sale and in the event that the parties fail to agree on the terms of the contract for sale the terms recommended by the legal practitioner will be adopted;

(c)Execute all other documents necessary to complete the sale within the time required by the contract for sale to ensure that the purchasers do not have a right to terminate or rescind due to failure to do so;

(d)Ensure that the completion date of any contract of sale entered into is not greater than two months from the date of exchange of contracts; and

(e)Cooperate in every way with the agent in relation to the sale of the property at all times requested by the agent including (without limiting the generality of the foregoing):

(i)Making the key available to the agent;

(ii)Allowing inspection of the Suburb E property at all reasonable times requested by the agent;

(iii)Not doing or saying anything to hinder or prevent a sale being effected;

(iv)Ensuring the Suburb E property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

(v)Signing all documents requested by the agent in relation to the listing for sale of the Suburb E property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.

32.On settlement of the sale of the Suburb E property, the parties shall forthwith do all things and sign all documents necessary to divide and distribute the proceeds of sale of the Suburb E property in accordance with Order 20 of these orders.

33.Pending the settlement of the sale of the Suburb E property as provided for in the orders dated 4 November 2024, the father and the second respondent shall:

(a)Provide all instructions to the agent and the legal practitioner in writing;

(b)Copy the mother to all correspondence with the agent and the legal practitioner; and

(c)Direct the agent and the legal practitioner to copy the other to all correspondence sent by either of them to the father and/or the second respondent is respect of the sale.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Savage & Haines has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

1. These are parenting and property proceedings between the mother, Ms Savage, and the father, Mr Haines. The issues in each matter are narrow and there is little point in providing a detailed chronology or dealing closely with the evidence. It is only necessary to have regard to those matters relevant to the questions being determined.

2. The mother was born in the United States of America (“USA”) and met the father in 2013 while he was on secondment there.

3. They underwent a ceremony of marriage in another country in 2016 and married under USA law in 2017.

4. The parties have a son, X, who was born in 2017 in the USA.

5. In 2021 the parties moved to live in Australia so that the father could take up a promotion with his employer.

6. They separated on 30 June 2023.

   PARENTING

7. The main dispute in the parenting proceedings was whether the mother should be allowed to take X to live with her in the USA. However, that issue, like many others in this aspect of the proceedings, was resolved by the parties throughout the course of the hearing.

8. On 4 November 2024 the following orders were made by consent:

   8.In respect of the child [X] born [in] 2017 (“the child”):

   8.1The parties shall have equal shared parental responsibility and joint decision-making for major long-term issues for the child;

   8.2The mother shall have sole responsibility for making decisions for the day-to-day care, welfare and development of the child during the periods in which the child is living with her; and

   8.3The father shall have sole responsibility for making decisions for the day-to-day care, welfare and development of the child during the periods in which the child is living with him.

   9.        The child shall live with the mother.

   Special occasions

   10.The child shall spend time with each parent provided that on the relevant date the parents are in the same country:

   10.1On the mother’s birthday with the mother from 3.00 pm to 7.00 pm if a school day or from 9.00 am to 7.00 pm if a non-school day;

   10.2On the father’s birthday with the father from 3.00 pm to 7.00 pm if a school day or from 9.00 am to 7.00 pm if a non-school day;

   10.3The child spend time with the parent with whom he is not residing on his birthday, from 3.00 pm to 7.00 pm;

   10.4On Mother’s Day with the mother from 9.00 am to 7.00 pm; and

   10.5On Father’s Day with the father from 9.00 am to 7.00 pm.

   Electronic contact

   11.The child may communicate with each parent when not in his/her care by telephone, or Facetime or by other electronic means at reasonable times.

   12.In the event the parties are in different countries, the child shall communicate with the parent with whom they are not currently spending time each Tuesday, Thursday and Sunday at:

   12.1     5.00 pm local time when the child is in the USA; and

   12.2     7.30 am local time when the child is in Sydney.

   Alcohol and drug testing regime

   PEth alcohol testing

   13.Within 7 days of the making of these orders and monthly thereafter for a period of 9 months of continuous compliant test results the father shall attend upon an accredited testing facility […] for chain of custody PEth testing.

   Hair follicle drug testing

   14.The father shall attend upon an accredited testing clinic for chain of custody hair follicle (10 Panel) drug testing within 48 hours of the following dates:

   14.1     23 January 2025;

   14.2     23 April 2025;

   14.3     23 July 2025;

   14.4     23 October 2025;

   14.5     23 January 2026; and

   14.6     23 April 2026.

   Notification of testing

   15.Within 24 hours of any PEth, hair follicle or other test for alcohol or drug use undertaken by the father (whether such test was required by these orders or otherwise):

   15.1The father shall provide written confirmation to the mother together with details of the facility at which the testing was conducted; and

   15.2The father shall instruct the testing facility in writing, copy to the mother, to provide copies of all test results directly to the mother.

   16.The father shall be solely responsible for all costs of and associated with the PEth tests and hair follicle tests.

   [B]reathalyser

   17.For a period of 2 years of compliant test results the father shall undergo regular and ongoing monitoring for alcohol consumption by way of a […] breathalyser device, and for that purpose, the following shall apply:

   17.1The father shall undergo ongoing breathalyser testing with the [breathalyser] device and specifically as follows:

   17.1.1Within 1 hour prior to the commencement of the child’s time with the father; and

   17.1.2By 7.00 am each morning after the child has been in the father’s overnight care.

   17.2The father shall configure and continue to use the [device’s] mobile application so that the mother receives automatic, direct notification of the results of each test undertaken by the father as and when the tests take place by way of email to an email address notified by the mother to the father from time to time; and

   17.3The father shall be solely responsible for and shall pay all costs and expenses associated with [breathalyser] testing.

   Consequences of non-compliance

   18In the event that the father produces a non-compliant test result, or fails in any way to comply with any of the alcohol and drug testing regime orders (including not taking a test strictly within the required timeframe), the father’s time shall be suspended until he produces a compliant test result.

   19.If any of the events listed at Order 18 occur during time that the child is with the father, that occasion of time will be suspended, and the father will make the child available for immediate collection by the mother or her agent.

   Restraint

   20.      Until 1 April 2026:

   20.1The father is restrained from consuming alcohol and illicit or prescription drugs of addiction while the child is in his care or in the 24-hour period before the child comes into his care.

   20.2The father is restrained from cutting his hair shorter than 3 cm and from bleaching, dyeing or chemically treating (including straightening or perming) in such manner that might adversely affect any hair follicle testing procedures taken by the father pursuant to these orders.

   21.Both parties on a without admissions basis, be restrained from engaging in any verbal abuse or physically disciplining the child.

   Specific issues

   22.The parties are permitted to travel internationally with the child during the periods of time the child is living or spending time with that party pursuant to these orders provided the travelling party provides the other party with a copy of the child’s return travel itinerary, and particulars of where the child will be staying whilst travelling internationally 30 days prior to such travel.

   23.The mother shall retain the child’s passports and shall promptly provide the passports to the father as required for the child to undertake international travel pursuant to these orders and the father shall return the passports to the mother on the day that the child first returns to her care.

   24.The parties shall ensure that the child holds valid USA and Australian passports at all times with no less than 6 months validity and the parties will do all acts and things and sign all necessary documents so as to renew the child’s passports and the parties will share equally the fees payable for each passport renewal and for the purposes of this order.

   25.Each party notify the other, as soon as possible and in any event within 24 hours, of any serious injury or illness suffered by the child whilst with that party.

   26.Each party give the other party 14 days prior notice of any change to their residential address, and notify the other not more than 24 hours after any change to their contact telephone numbers and/or their email address.

   27.Each party notify the other of the address and telephone number/s of the place/s where the child will be staying during any interstate holidays spent away from their residence, not later than 7 days prior to the commencement of any holiday period.

   28.Each party notify the other and keep each other informed of the names, addresses and telephone numbers of all medical professionals who treat the child and authorise each of them in writing to provide copies of any test results, letters of referrals, reports, and letters received from other medical professionals to the other party and authorise them to discuss any aspect of the child’s health with the other party.

   29.In the event the child is taken to hospital for any reason or consults a specialist whilst in the mother’s care, the mother shall promptly inform the father of the name of the hospital, treating doctor and authorise the father to contact the hospital/doctor/specialist to make enquiries as to the child’s wellbeing.

   30.In the event the child is taken to hospital for any reason or consults a specialist whilst in the father’s care, the father shall promptly inform the mother of the name of the hospital, treating doctor and authorise the mother to contact the hospital/doctor/specialist to make enquiries as to the child’s wellbeing.

   31.Neither parent shall criticise or denigrate the other parent to the child or within hearing distance of the child.

9. By the time the matter came to final submissions, the parties had further agreed that the mother would be permitted to relocate with X to the USA such that only four matters remained in dispute. These were:

   ·When does X go to the USA;

   ·How long should X’s first visit with the father be;

   ·For how long should drug testing of the father occur; and

   ·Until the return to the USA, should the fourth day that X spends with his father a fortnight be for an afternoon or an overnight?

10. Given the narrow range of the matters in dispute, and the limited submissions that were made in respect of each, it is not necessary to give a detailed history of the matter or to dwell on the s 60CC considerations set out in the Family Law Act 1975 (Cth). It is implicit in the orders agreed to by the parties that they consider that it is in X’s best interests to live with the mother in the USA and spend significant periods of time with the father in both Australia and the USA.

    When should X move to the USA?

11. The evidence of the mother was that she would not be in a position to move back to the USA until February 2025 and she proposed to do so then. The father contended for a return date in July 2025.

12. The argument put in favour of a delayed return was that it would allow X to spend more time with his father and continue “to enhance the relationship” that he would have with him (Transcript 7 November 2024, p.73 line 42). It was also submitted that it would avoid X having to return to Australia in the first week of June 2025, which he would be doing if he moved to the USA in February.

13. Mr O, a child and family consultant appointed as a single expert in this matter, described the later return as a “mixed blessing” (Transcript 7 November 2024, p.38 line 40). Mr O expanded upon that as follows:

    …But if I could refer to my previous evidence and summarise it as in living with the prospect of separation from his dad in the context that he would be living in both households, it – it could be considered to be something of a sword of Damocles, which is the phrase I used previously, hanging over everyone’s head, and I think that needs to be really considered.

    [Counsel for the father]: Yes?

    [Mr O]: The – my experience has been, in circumstances like this, that the tension – the apprehension of something as major as this about to happen is significantly impactful on both parents, on children and on parenting and on communication between all of the adults and the child. It’s inevitable that that’s going to be a factor there, and I think that should be given significant weight.

    [Counsel for the father]: Yes. It’s balancing all those factors?

    [Mr O]: Well, it’s more than that. I think that should be given significant weight.

    (Transcript 7 November 2024, p.39 lines 8–22)

14. Earlier, Mr O had said:

    [Counsel for the ICL]: In terms of [X’s] relocation, do you have any particular view as to whether it should occur as per the mother’s position being in February or whether it should occur at a later stage, say, in July?

    [Mr O]: Yes, I do. I can see the argument both ways. But I feel that February would be the preferred option, in my view. The reason being the whole issue of the relocation is going to hover over this family and him as a major issue. I don’t know how that would manifest in family terms but there are, for my money, risks involved in him being in an environment where such a major thing is going to happen. And he will be living with the people who are experiencing that major thing. And that’s not to make any negative comment about anybody but I think, self-evidently, it’s going to be a huge thing in this family. And for it to be hanging over like the sword of Damocles over the family and indirectly over him is, I think, the significant issue and that’s why, whilst I understand the other perspective, it’s why I would come down in favour of the early move.

    (Transcript 7 November 2024, p.7 lines 11–23)

15. I accept the evidence of Mr O that the disadvantages of a delayed return to the USA outweigh the advantages. This is particularly so where X already has a good relationship with his father (see single expert report of Mr O, paragraph 97). No doubt X would enjoy and benefit from spending some more time with his father, but that is outweighed by the stress of the impending move that will be hanging over him throughout that period. If a change is to be made, it would be better for it to be made sooner rather than later, so that X can settle into his new life immediately.

    How long should the first visit with the father be?

16. It is agreed that if the mother and X go to the USA in February, X will return to Australia in June to spend time with his father. The question is whether that visit should be 21 days or 35 days?

17. Leaving aside the father’s issues with alcohol and drug use, which presently appears to be under control, there is no suggestion that the father is not able to care for X.

18. Mr O opined that X, will probably not perceive much of a difference between a 21 day visit and 35 day visit.

19. The longest X has spent in his father’s sole care is seven days. As Mr O accepted, the father is untested as a parent for longer periods. The father needs some time to adjust to the role. It seems clear that one of the matters that contributed to the father’s drug and alcohol intake was stress, albeit possibly in large part from his employment. A shorter period of time initially will not thereby put pressure on him to resume that harmful behaviour. Further, the shorter period of time will give some degree of comfort and ease to the mother given that the father’s control of his drug and alcohol issues has only been fairly recent. These last two matters carry particular weight and persuade me that the first visit should be, on balance, for 21 days and not 35.

    How long should the father’s drug testing last?

20. The father accepts that there should be random chain-of-custody hair follicle drug testing at the request of the mother until April 2026, with up to two requests to be made within a calendar year and the results to be sent directly from the testing laboratory to the mother. The father also agrees that until April 2026, for the period of the drug testing, he be restrained from cutting his hair shorter than 3 cm and from chemically altering it.

21. The mother proposes that the drug testing continue until X turns 13 years of age, which would be 2030.

22. The Independent Children’s Lawyer took a middle course and proposed that testing last until X turned 10 years of age, which would be 2027.

23. The basis of the drug testing orders comes about in this way. The father has a long history of alcohol and drug abuse which is set out in significant detail in the mother’s affidavit. That evidence demonstrates that those issues had an adverse effect on his behaviour including his behaviour in front of X. Whilst the father did not accept all this to be so, I am inclined to accept the mother’s version, in substance, for three reasons.

24. The first is that her version is consistent with there being a long-term issue of drug use which was not substantially disputed by the father, nor could it be given the evidence of the money he paid to people he ultimately identified as his drug dealers.

25. Secondly, the father falsified drug testing results.

26. In mid-July 2023 the father commenced spending supervised time with X. On 22 September 2023 he gave the mother a copy of a drug test taken on 16 September 2023 which showed his CDT level, a marker for alcohol use, to be low. The actual reading was higher but the father had altered the document.

27. The father signed an undertaking on 29 September 2023, not to drink or take illicit drugs whilst X was in his care.

28. On 30 September 2023 the parties agreed that X would spend unsupervised time with the father.

29. On 26 October 2023 the father provided a CDT drug test result to the mother which showed a low range reading. Again, the father had altered the document which showed a true test result of a higher reading.

30. The parties agreed to orders on 4 December 2023 for X to spend three nights each week with the father for the Christmas school holiday period.

31. The father provided a further CDT test result on 31 January 2024. Again, the father had altered the actual result to a much lower one. Around this time, the parties agreed for X to spend four nights plus one afternoon per fortnight with the father.

1. On 30 April 2024 the father provided a hair follicle test which tested positive for an illicit drug. The CDT test result sent to the mother around this time made it apparent that previous results had been altered before the mother received them.

2. Finally on this point, the father provided financial disclosure to the mother by way of bank statements. It has subsequently emerged by way of further disclosure that the father had altered those bank statements both as to the amounts paid and the identity of the payees to disguise his purchases of drugs and use of sex workers.

3. It is easy to see why the mother is sceptical of the father’s suggestions that whilst he may have had a problem with drugs and alcohol, it is no longer an issue. He has demonstrated to her that he is completely untrustworthy. What is more, he acted fraudulently to hide his problem so that he could have care of X.

4. Indeed, the mere fact that the father was prepared to undergo drug testing whilst he was drinking alcohol to excess and using drugs and then falsified the results, indicates to me the seriousness of his problem and that he was not able, voluntarily, to control it at that time.

5. The third matter is the confusing, inconsistent and inherently improbable evidence, particularly in the course of cross-examination, given by the father and the paternal grandmother as to what occurred in early 2024.

6. At that time the mother was living in the former matrimonial home, which was owned in equal shares by the father and the paternal grandmother. The mother travelled to Town P with X in early 2024. The father and the paternal grandmother attended the home in her absence, had a locksmith change the locks and placed a sign on the house which read “Do not change locks. Contact legal owner [phone number]. Do not allow [Ms Savage] into property”. Upon learning of this via the neighbour, the mother, not unsurprisingly, became extremely distressed.

7. The father and paternal grandmother’s evidence as to why they did this and what they thought the effect of it was or was intended to be was, frankly, quite unbelievable. This included that the property needed to be prepared for sale because the father was at risk of defaulting on the mortgage (despite the fact there was no evidence of it having been in arrears), the father wished to renovate the property and live there, the grandmother wished to renovate the property, the grandmother needed access to belongings she stored there, possibly in the lower level which did not need key access and it was never intended to disturb the use of the property by the mother.

8. These matters combined persuade me to prefer the mother’s evidence as to father’s drug use where it differs from the father’s evidence. It indicates that it was a severe problem.

9. Dr Q, a psychiatrist appointed as a single expert, considered that the father met the diagnostic criteria from the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) for Alcohol Use Disorder and Stimulant Use Disorder. Dr Q reviewed the father’s current counselling arrangements and considered that he would benefit from a trained drug and alcohol counsellor and treatment with a psychiatrist specialising in substance abuse disorders rather than those with which he is currently consulting. The father has, however, declined to change those arrangements.

10. Dr R, a specialist consultant physician specialising in addiction medicine and other specialties, provided a medicolegal opinion. He has been treating the father since May 2024. He did not agree with the diagnosis of Dr Q, and said:

    This episodic use, in defined social settings, and which [the father] has been able to control and cease, would not meet the criteria for a substance use disorder. The key requirements for that diagnosis is a persisting and irresistible desire to use the substance in question and use despite ongoing harms. This assessment does not mean that the substance use was harmless or without consequences.

    (Report of Dr R dated 30 September 2024, p.6 of Annexure “B” of the affidavit of Dr R filed 4 October 2024)

11. The consequence of the evidential finding I have just made suggests that the father’s drug use went beyond episodic and “defined social settings”. Falsifying drug tests would seem to point to a persisting and irresistible desire to use alcohol. However, it is not necessary for me to ascribe a label or diagnosis – it is the behaviour itself that is important, the impact on the wellbeing of the mother, and the direct impact on X that counts.

12. It is much to the credit of the father that he has attended a three week residential course of treatment for drug and alcohol addiction, which he said has helped him enormously, and seems to have in fact done so. However, there are two issues that remain. One is the possibility of a relapse. The other is the mother, and indeed the Court, need some comfort that X will be safe in the care of his father. X would not be safe if some of the episodes described by the mother were to repeat themselves whilst X was in the extended sole care of the father.

13. It must be recognised, as the mother accepted, that there must be some end to the drug testing. It must also be recognised, however, that two tests per year, in the circumstances of this case, cannot be regarded as onerous.

14. Absent the falsifying of the tests, a period of one year of testing, as accepted by Mr O, would most likely have been sufficient, but in these circumstances the weight of evidence in this case favours a longer-term regime. The testing will become less critical as X gets older and more mature and will be more able to report any concerns to his mother.

15. Taking these matters into account, I am of the view that the best interests of X will be served by drug testing to occur until he reaches the age of 10.

    What time should X spend with the father pending relocation and if the father relocates to the USA?

16. This is really a minor issue given the mother will be returning to the USA (most likely) in February.

17. For the remainder of the term, the father seeks that X spend five nights a fortnight with him being each Thursday overnight and alternate Friday to Monday. He also seeks that X spend the bulk of the Christmas holidays with him.

18. The mother seeks for the father’s time with X to be overnight every second Friday to Monday and then an additional afternoon each week.

19. In the event that the father moves to the USA, the mother’s proposal is that X would spend four nights per fortnight with him. The father and the Independent Children’s Lawyer submitted that five nights per fortnight would be appropriate.

20. Mr O said that there was little difference between four and five nights a fortnight. I agree, and the same can be said of the difference between three and four nights a fortnight.

21. It will be desirable for X to spend significant time with the father, but in a manageable way without too sudden an increase. To the extent that the orders for holiday time do not cover the period between now and the return to the USA, X will spend time with the father from Friday to Monday in the first week, and overnight on Thursday in the alternate week. The holiday orders will be as proposed by the mother.

22. In the event that the father does relocate to the USA, X will spend time for four nights per fortnight being alternate weekends and one additional overnight in the opposite week.

    PROPERTY

23. The paternal grandmother (“the second respondent”) is a party to the proceedings but the claim against her was resolved at the outset of the hearing and the following orders were made by consent:

    1.In the event that the [father] is unable to satisfy any order made by the Court in the alteration of the property interests of the spouse parties so as to permit him to retain his legal interest in the property at [K Street, Suburb E], being the whole of the property contained in Certificate of Title Folio Identifier […] (“the [Suburb E] property”), then the [father] shall firstly offer to the second respondent the option for her to acquire his interest in the [Suburb E] property at a value of $2.45 million (“the offer”).

    2.The offer shall be in written form and shall require the second respondent to indicate in writing within 42 days whether she is prepared to acquire the [father’s] interest in the [Suburb E] property at the value of $2.45 million.

    3.In the event that the offer is accepted by the second respondent, then the [father] and the second respondent shall exchange contracts for the transfer of the [father’s] interest in the [Suburb E] property within 42 days thereafter, at which time the second respondent shall pay to the [father] the consideration of $2.45 million and the [father] shall contemporaneously discharge the mortgage registered upon the title of the [Suburb E] property in favour of [L Bank] being dealing number […].

    4.In the event that the second respondent does not accept the offer, and in circumstances where the [father] has not firstly opted to retain his interest therein, the second respondent shall facilitate the sale of the [Suburb E] property pursuant to any order made by the Court which incorporates:

    4.1An auction sale being conducted within two months of such order being made.

    4.2A sale completion date of not greater than two months from the date of exchange of contracts.

    4.3A selling agent being appointed to the satisfaction of the [father], being any agent other than [Ms N] of [S Real Estate, Suburb E].

    4.4A conveyancing solicitor being appointed to the satisfaction of the [father].

    4.5The second respondent receiving one-half of the gross sale price of the [Suburb E] property free of any deduction for any encumbrance including by way of mortgage and statutory charges.

    4.6The registered proprietors being equally responsible for the disposition costs incurred in the sale of the property including, but not limited to, marketing costs, agent’s commission and conveyancing fees.

    5.The second respondent is restrained from drawing down upon any loan account secured by mortgage over the [Suburb E] property, or from further encumbering the [Suburb E] property pending compliance with Orders 1 and 4 hereof, save and except that this restraint does not limit the second respondent’s capacity to enter into residential leases from time to time.

    6.That upon the making of these orders the second respondent is discharged from the proceedings.

    7.No order as to costs as between the second respondent and each of the spouse parties.

24. The principal assets to be divided are the father’s interest in the property co-owned by the second respondent and the sums held in a number of bank accounts, but there are still some disputes to be resolved about the inclusion of other assets and liabilities.

    The balance sheet

    The mother’s student loans

25. The mother currently has a student loan which she incurred prior to meeting the father with a current balance of USD213,470 ($316,502). The primary reason why the mother says it should be included in the balance sheet is that she had paid minimal payments under the student loan because she had understood that if she worked for a not-for-profit organisation for 10 years, the principal would be expunged. This was without challenge. The mother was unable to complete the 10 years because of the move to Australia.

26. The documents provided by the mother suggest that in relation to each of the two loans, she is subject to an income-based repayment plan. The available options seem to include options to extend the repayment period from 10 years to 25 years.

27. The loan is not presently owing, at least in full. Whilst it is likely that the mother’s income, once employed in the USA, will be sufficient to attract repayments or even enhanced repayments, it is not known what they will be. Presumably, again, as appears from the documents, there is the possibility of a long-term instalment plan. Also, in some circumstances, further payment is not required. The student loans will not be included in the balance sheet because of this uncertainty, but of course, they must be noted as significant debts that the mother owes.

    Tax payable on sovereign funds

28. Prior to returning to Australia the father held assets and funds in the USA which he realised and transferred to Australia, thereby incurring a tax debt of $129,545. The mother submits that this liability should not go into the balance sheet because the decision was one made unilaterally by the father and because he could have transferred the funds into a superannuation type account in the USA and thereby paid no tax.

29. Regardless of whose decision it was, the tax was incurred. The funds were used by the parties or by the father and the balance of the funds ($215,209) appears in the balance sheet.

30. In those circumstances it is appropriate that the tax liability be included.

    Add backs

    Legal fees and interim costs

31. It is agreed that an interim costs order paid to the mother in the sum $150,000 which was used to pay legal fees should be “added back” in accordance with the well-known principles set out in Chorn and Hopkins (2004) FLC 93-204.

32. It was agreed between the parties that the father’s paid legal fees of $211,850 will also be added back.

    Other add backs

33. Despite a now longstanding preference for items such as these to be dealt with under s 75(2)(o) of the Act, the mother contended that the following payments be added back:

    38.      Payments to ‘[Mr T]’  $14,911.00

    39.      Payments to ‘[Ms U]’     $5,400.00

    40.      Payments to ‘[V Pty Ltd]’                  $44,705.00

    41.      Payments to ‘[Ms W]’  $7,580.00

    42.      Cash withdrawals  $51,155.00

    (Exhibit 16)

34. During cross-examination, the father identified Mr T as a drug dealer who supplied the father. He also admitted that Ms U and Ms W were sex workers and V Pty Ltd was an entertainment venue.

35. The father has been unemployed since late 2023 when his employment was terminated. Since that time the father has been living off a settlement of $880,000 received from his former employer in mid-2024.

36. It follows that the payments have diminished the sum available for distribution between the parties and should be taken into account. These matters are best addressed, as was suggested by counsel for the father, under s 75(2)(o). It must, however, be recognised that the father’s drug and alcohol issues have persisted for some time and presumably he had to purchase those drugs and the alcohol. Similarly, it seems that his use of sex workers and services was also not a recent phenomenon. The exact quantum of how much money was spent on these activities remains unknown and cannot be guessed, and therefore these matters can be taken account of in only the most general terms.

    Final balance sheet

37. Thus, the balance sheet is as follows:

Item	Ownership	Description	Value
ASSETS
1	Mother	CBA account #...63	$11,495
2	Mother	CBA account #...74	$863
3	Mother	USA M Bank account	$5,287
4	Father	K Street, Suburb E	$2,450,000
5	Father	L Bank offset account #...94 Transaction account #...57 ($107.76)	$40,320
6	Father	Barkus Doolan trust account	$117,879
7	Father	Motor Vehicle 1	$60,000
8	Father	Y Law Firm trust account	NIL
9	Father	Balance of sovereign funds (Z Bank account)	$215,209
Total			$2,901,053
LIABILITIES
10	Father	L Bank mortgage #...70	$483,901
11	Father	L Bank mortgage #...71	$1,303,388
12	Father	L Bank credit card #...65	$7,243
13	Father	Income tax portal statement	$172,104
14	Father	Tax estimate for FY 2024	$66,317
15	Father	Tax payable on the sovereign funds	$129,545
16	Father	Motor Vehicle 1 financial	$38,000
Total			$2,200,498
SUPERANNUATION
17	Mother	Superannuation Fund 1	$33,993
18	Mother	Superannuation Fund 2	$20,823
19	Father	Superannuation Fund 1 (as at October 2024)	$153,199
20	Father	Superannuation Fund 3 #...47 (as at October 2024)	$87,476
21	Father	Superannuation Fund 4 IRA account (USD191,066)
Total			$295,491
ADD BACKS
22	Mother	Interim distribution to the mother (paid to legal fees)	$150,000
23	Father	Legal fees paid by the father	$211,850
Total			$361,850
FINAL TOTAL		$1,357,896

1. The net “available” assets are therefore $1,357,896 but it must be recognised that nearly a quarter consists of notional assets – the add backs for legal fees. That euphemism refers to assets that no longer exist and cannot be divided but are being taken into account in this manner consistent with authority.

   Contributions

2. The parties agree that their contributions up to the date of separation were equal. 

3. Since separation, the mother has had the primary care and support of X. The father has made a significant financial contribution through the provision and use of the settlement sum from his former employer, accepting that there must have been some contribution to that sum by the mother in moving to Australia to aid the father’s employment.

4. The contributions until the date of hearing should be regarded as equal.

   Section 79(4) considerations

5. As a result of the parenting orders, the mother will retain the primary care and support of X. It is likely that she will earn a significant income in the USA, but that may well trigger an obligation to repay the student loan that she carries which must be taken into account.

6. The father clearly has the capacity for significant employment but has not been able to obtain a job. He says that that is due, in large part, to the nature of his dismissal which will make it difficult to obtain work with a leading firm. Accepting that to be so, he still has capacity to obtain a significant income, perhaps not in the roles he desires. He too, has liabilities to be paid and he must be left with some cash to do so and to support himself as he looks for work.

7. The funds used by the father toward drugs, alcohol and sex services, as identified above, must also be considered.

8. Taking these matters into account, the appropriate division of property is achieved by making an adjustment in favour of the mother so that she receives 65 per cent of the property and the father 35 per cent.

   Disposition

9. To achieve that percentage from the net assets of $1,357,896 the mother must receive $882,632.

10. She already has:

Description	Value
CBA account #...63	$11,495
CBA account #...74	$863
USA M Bank account	$5,287
Superannuation Fund 1	$33,993
Superannuation Fund 2	$20,823
Interim distribution (add back)	$150,000
TOTAL	$222,461

1. Therefore, to achieve the desired sum the mother needs to receive a further $660,171. From where is this sum to come? There is $373,408 available in cash, but this cannot be depleted completely because the father has outstanding debts to pay and must also support himself for the present.

2. There is approximately $660,000 in equity in the father’s half share in the Suburb E property.

3. Accepting that they are based on property pools and division different to that above, it is of assistance to look at the final property orders proposed by each party. The father suggested that his Superannuation Fund 1 be the subject of a splitting order so that the mother receive 50 per cent of that (approximately $75,000) and he pay the mother a further $400,000.

4. The mother sought all of the father’s interest in Superannuation Fund 1 ($153,199 as at October 2024) plus payments of $660,000 and $107,000.

5. The competing interests of the parties are best served by the mother receiving the entirety of the father’s Superannuation Fund 1 plus a payment of $506,972. As was submitted by counsel for the mother, this will provide the mother with both a cash component and superannuation component.

1. The father will be left with some superannuation. Presumably the payment to the mother will have to come from the father’s cash (bank accounts, the balance of the sovereign funds and money in his solicitor’s trust account) and the equity in the Suburb E property. This will leave him with either cash or equity in the Suburb E property which can be realised in the sum of $529,147 (being the total cash available plus the equity, with the payment to the mother deducted).

2. Therefore, the father will receive:

Description		Value
Cash and/or equity in the Suburb E property		$529,147
Motor Vehicle 1		$60,000
Superannuation Fund 3 #...47 (as at October 2024)		$87,476
Paid legal fees (add back)		$211,850
Sub-total		$888,473
Less	Credit card #...65	($7,243)
	Income tax portal statement	($172,104)
	Tax estimate for FY 2024	($66,317)
	Tax payable on sovereign funds	($129,545)
	Lexus financial	($38,000)
Total		$475,264

1. The differential between the parties is 30 per cent or $407,368, accepting that the figure in assets that actually exists is somewhat lower. This differential is appropriate in the circumstances. I consider these orders to be just and equitable.

   COSTS

2. The Independent Children’s Lawyer, as obliged, sought an order that the parties pay his costs in the sum of $8,369.90. Both the mother and the father resisted such an order. Whilst each party will have assets after the property division they cannot be described as substantial. Each faces considerable expenses including the cost of complying with the orders for X to spend time with the father. It is not in his interests, in particular, for that to be affected by the burden of a costs order. The application will be dismissed.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       13 December 2024