A and A and Y - [2004] FMCAfam 209

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & A & Y

[2004] FMCAfam 209

FAMILY LAW – Property – obligation to give full and frank disclosure – husband fails to comply with order that he give discovery – where wife has boxes of husband’s financial records and is aware of relevant account details – Townsend does not establish a rule of general application that all assets held at separation, if disposed of, must be notionally added back into the asset pool.

CHILDREN – Husband lives and works overseas – international travel – security – an important factor influencing the assessment of risk is whether there is outstanding child support.

Family Law Act 1975
Child Support (Assessment) Act 1989

Lee Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335

Clauson (1995) FLC 92-595

Tomassetti (2002) FLC 93-032
Kowaliw (1981) FLC 91-092
Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Junti (1986) FLC 91-759
Mezzacappa (1987) FLC 91-853
Jenkins v Livesey (1985) 1 All ER 106
Luciano (2000) FamCA 401
Townsend (1995) FLC 92-569

Applicant:

N A A

First Respondent:

C G A

Second Respondent:

E Y

File No:

PAM344 of 2003

Delivered on:

18 May 2004

Delivered at:

Parramatta

Hearing dates:

22 & 27 April 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr R. Greenaway

Solicitors for the Applicant:

Ian Harper & Co.

Counsel for the First and Second Respondent:

Mr A. Givney

Solicitors for the First and Second Respondents:

Harman & Co

ORDERS

The parties shall immediately sign all such authorities and give all necessary consents to distribute the sale proceeds of the Dural Property as to $214,411 to the wife and the balance to the husband.
During one period of school holiday contact in which the husband is entitled to have contact pursuant to orders made 27 April 2004, the husband may exercise that contact outside of Australia. This order is conditional upon the following:
(a)No less than eight (8) weeks prior to the children’s proposed departure date, the husband shall give the wife written notice of his intention to exercise contact to the children outside of Australia and the place where that contact will be exercised.
(b)The country to which the children will travel is Malaysia or a South Pacific nation that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction;
(c)Not later than fourteen (14) days prior to the children’s departure from Australia the husband’s mother shall deposit $10,000 with the husband’s solicitors, Harman & Co.;
(d)Not less than fourteen (14) days prior to the children’s departure from Australia the husband deposits $20,000 with his solicitors, Harman & Co.;
(e)The husband’s solicitors give the wife written confirmation no less than (10) ten days prior to the children’s departure from Australia that they hold all monies referred to above in trust or a controlled monies account.
(f)There are no child support arrears payable by the husband concerning the children; and
(g)Whilst travelling the children shall be accompanied by the husband, his mother or an adult acceptable to the wife.
The husband shall included in the written notice given to the wife referred to in Order 2 above the following:
(a)The country to which the children will travel;
(b)The name of the person who will accompany the children;
(c)The dates upon which the children will depart from and return to Australia;
(d)The airline/s with whom the children will travel;
(e)The address/es that the children will stay and telephone contact numbers.
Within forty-eight (48) hours of the children’s return to Australia the wife shall give the husband’s solicitors written notice that the children have returned. Upon receipt of this notice the husband’s solicitors shall return to the husband and his mother all monies held as security for the children’s return.
In the event that the children or either of them are not returned to Australia at the end of contact, the wife has liberty to apply on short notice or by ex parte application, whichever is appropriate, for the payment of the security to her.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings shall be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM344 of 2003

N A A

Applicant

And

C J A

First Respondent

And

E Y

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings for the adjustment of property and parenting orders. The parenting orders concern the parties’ two children C D A born 1994 and D T A born 1997 (“the children”).

The applications

N A A (“the wife”) started the proceedings when she filed an application for final orders on 24 January 2003 in the Family Court of Australia at Parramatta. Later that day the proceedings were transferred to the Federal Magistrates Court. Shortly prior to the commencement of the hearing the wife filed an amended application which sets out the orders sought at trial. They are set out below.
1.
That the children of the marriage, C D A born

1994 and D T A born 1997 live with the wife and the wife be responsible for the day to day and long term care, welfare and development of the said children.
2.That the father have contact with the said children as follows:
(a)Each alternate week from 6 pm Friday to 5 pm Sunday, commencing the first weekend after the date of these orders and suspended during school holiday periods.
(b)Telephone contact between 6 pm and 7.30 pm each Monday and Wednesday, Australian Eastern Standard time or daylight saving time, whichever is applicable.
(c)Such other times as agreed to between the parties.
3.That the respondent husband collect the children from the applicant wife’s home and return them to her home at the end of contact, but he is not otherwise to enter into the wife’s residence.
4.That the paternal grandmother shall have contact with the said children from 9 am to 5 pm on the alternate Sundays that the father would otherwise have contact on occasions when the father is overseas and at any other time agreed between the paternal grandmother and mother.
5.That during periods of the paternal grandmother’s contact, the paternal grandmother shall be present at all times.
6.That neither the husband nor the second respondent paternal grandmother denigrate the wife in the presence or hearing of the children nor allow the children to remain in the presence or hearing of any other person denigrating the wife.
7.That should either child be required to attend a soccer match, or other sporting match, whilst in the care of the paternal grandmother, she shall ensure the attendance of the child at the soccer match or other sporting activity of the child.
8.That the paternal grandmother shall collect the children at the commencement of her contact period from the mother’s residence and shall return the children to the mother’s residence at the conclusion of contact.
9.That the balance of the proceeds of sale from the former matrimonial home, situated at and known as the Dural property, being all that property in Folio Identifier X the whole of the proceeds held in any joint account in the names of the husband and the wife be paid to the wife.
10.That in accordance with section 90MT(1)(b) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the superannuation interest of C J A in Colonial Super Retirement Fund (Sub-plan CPSL Personal Superannuation Plan) N A A shall be entitled to be paid 100% of the splittable payment and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders. These orders shall bind the Trustee of Colonial Super Retirement Fund (Sub plan CPSL Personal Superannuation Plan) and take effect from the operative time being the fourth business day after the date of service of these orders on the trustee.
11.That each party retain as the sole owner in law and equity of all items of property and financial resources in their name, possession or control not otherwise dealt with in these orders.
C G A (“the husband”) relied on his amended response filed 26 March 2004.   The orders he sought are set out below:
1.That the children of the relationship, namely C D A born 1994; and D T A born 1997 (hereinafter referred to as “C D A and D T A”) shall live with the mother.
2.That the parties shall be and shall remain jointly responsible for making decisions with respect to the long term care, welfare and development of C D A and D T A and shall, as far as is practical, consult with each other prior to any such decision being made and shall endeavour to make all such decisions jointly and by consensus.
3.That each party shall be responsible for making decisions with respect to the day-to-day care, welfare and development of C D A and D T A and each of them at such times as C D A and D T A (or either of them) are in their respective care.
4.That the father have reasonable and liberal contact with C D A and D T A, such contact to include but not be limited to :-
(a)   Each alternate weekend during school terms from the conclusion of school Friday until the commencement of school the following Monday, (extending to Tuesday in the event of a Long Weekend or Pupil free day);
(b)   From the conclusion of school each Tuesday during school terms until the commencement of school the following Wednesday;
(c)    For not less than one half of each New South Wales school holiday period as agreed between the parties and failing agreement for the first half of all such holidays in 2005 and each alternate year thereafter and for the second half of all such holidays in 2004 and each alternate year thereafter.
(d)   9am Christmas Eve until 3pm Christmas Day in each alternate year commencing Christmas Eve 2005;3pm
(e)   Christmas Day until 6pm Boxing Day in each alternate year commencing 2004;
(f)     For the Father’s Day weekend from 5pm Saturday until the commencement of school the following Monday in each year (and provided that in the event that Mother’s Day falls on a weekend when the father would, pursuant to these orders, be exercising contact that contact shall, for that weekend, conclude at 5pm Saturday).
(g)   For a period of time on the birthday of each of C D A and D T A and of the father as agreed between the parties or failing agreement from 5pm until 7pm if a school day and 1pm until 7pm if a non-school day;
(h)   By telephone at all reasonable times and with reasonable frequency;
(i)     By attending with C D A and D T A or either of them at the children’s school/s at any time and subject to same being in accordance with policies of and acceptable to the children’s school;
(j)     For such further and/or other periods as agreed between the parties from time to time;
5. Whilst the father is absent from the Commonwealth of Australia that the paternal grandmother shall have contact with C D A and D T A on the same basis as the father would otherwise exercise pursuant to these orders.
6. That for the purpose of contact being exercised by the father that the father shall be responsible for collecting or arranging the collection of C D A and D T A at the conclusion of school (or in the event that contact is to commence on a non-school day from the mother’s home) and at the conclusion of contact that the father shall be responsible for delivering or arranging the children to be delivered to school (or in the event that contact is to conclude on a non-school day the mother shall collect or arrange for the collection of the children from the father’s home).
7.   That neither party shall denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of C D A or D T A or either of them.
8.   Each party shall ensure that C D A and D T A and each of them are transported to any sporting or cultural activities in which they or either of them are participating from time to time and which occur at times when the children are in the care of each party together with any training or other tuition relating to that activity.
9.   Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to C D A and D T A or either of them and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit C D A or D T A if hospitalised.
10. That each party shall do all things and sign all documents necessary to authorise and direct any Pre School or School attended by C D A and D T A or either of them to discuss with the father the children’s school attendance and progress, furnish reports and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the children specifically and both parties shall be entitled to fully participate in all and any activities at the school or connected with the school.
11. That each party shall do all things within their power to actively promote and encourage the relationship between C D A and D T A and the other parent and members of the other parent’s extended family.
12. That each of the parties shall forthwith do all things and sign all documents necessary and give all consents and authorities required to cause the funds held in trust on behalf of the parties and representing the nett proceeds of sale of the former matrimonial home known as the Dural property to be distributed equally between the parties.
13. That the wife shall forthwith and within 7 days deliver to the husband in a neat, fit and proper state of repair all personal affects of the husband presently in her possession, custody and/or control and including but not limited to photographs, documents and certificates, clothing and jewellery and other items of personal adornment.
14. That each of the parties shall forthwith and within 7 days do all things and sign all documents necessary and give all consents, authorities and co-operations necessary to cause and effect an equal division of all items of furniture and contents contained within the matrimonial home, known as the Dural property, as at 1 December 2002 to be divided equally between the parties and with respect to same such items shall be divided equally between the parties and on the basis of the net worth of such items; in the event that the parties are unable to agree upon such division within 7 days then the wife shall prepare two lists such that all items are contained within one or other list and such that the total value of items contained in each list are, as far as is practicable, equal and/or comparable.
15. Upon completion of such lists same shall be presented to the husband who shall, within a further period of 7 days, make an election as to which list is to be retained by him and upon such election being made each party shall be declared to be the sole and absolute owners at law and in equity (as against the other) of such items as are contained within that list and each party shall then forthwith and thereafter do all things and give all consents and authorities necessary and provide such assistance and co-operation as is reasonably required to enable the party who is then declared the owner of such items to uplift those items
16. That pursuant to Section 78 that the wife shall be declared to be the sole and absolute owner at law and in equity (as against the husband) of:-
(a)   the proceeds of sale of the Mercedez Benz;
(b)   the wife’s contributions and membership entitlements with respect to any fund of superannuation including but not limited to the wife’s Colonial Mutual Superannuation Fund;
(c)    the balance and proceeds of any banking account maintained by the wife in her sole name;
(d)   subject only to these orders all items of jewellery in the wife’s possession;
(e)   subject only to these orders all items of furniture and contents in the wife’s possession.
17. That pursuant to Section 78 that the husband shall be declared to be the sole and absolute owner at law and in equity (as against the wife) of:
(a)   the husband’s contributions and membership entitlements with respect to any fund of superannuation including but not limited to the husband’s Colonial Mutual Superannuation Fund;
(b)   the balance and proceeds of any banking account maintained by the husband in her sole name;
(c)    subject only to these orders all items of jewellery in the husband’s possession;
(d)   subject only to these orders all items of furniture and contents in the husband’s possession.
18. That pursuant to Section 78 Family Law Act that each of the Husband and the Wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of all items of furniture, furnishings, personalty, chattels, jewellery and monies (whether held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party’s possession, custody or control together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant.
19. That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act that the Registrar of the Family Court of Australia, Parramatta Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
20. That each party shall indemnify the other and hold the other forever harmless with respect to any liability in their sole name arising from or relating to any credit card facility, personal loan or otherwise.
21. That the wife shall forthwith do all things and sign all documents necessary (including, if necessary to comply with this order, an Acknowledgment of Direct, Non-Agency Payment) to acknowledge receipt from the husband of an amount equal to any arrears of child support presently assessed and alleged to be payable by the husband to the Child Support Agency and such as to reduce the balance of the husband’s Child Support Agency payment account to nil.
22. Noted:-That of the funds received by the wife pursuant to these orders and otherwise received by the wife from the husband (whether through direct payment from the husband or by retention of assets including funds held in any bank account in the joint names of the parties) an amount equal to the present balance outstanding by the husband to the Child Support Agency is paid to the wife and is attributable to the provision of child support.

The hearing

The applicant wife relied upon the following evidence:
·Her affidavit filed 2 April 2004, her financial statement filed 26 March 2004 and her oral testimony.
·Proof of evidence and oral testimony from S V.
The respondent husband relied upon the following evidence:
·His affidavits sworn 20 April 2004 and 27 April 2004, and his oral testimony.
·His financial statement sworn 30 April 2003.
·Affidavit of E Y sworn 16 April 2004 and her oral testimony.

Both parties tendered documents that became exhibits.
The husband’s mother, E Y filed an application for contact, which was listed for hearing at the same time as these proceedings. At the start of the hearing the parties and E Y reached agreement in relation to her application. Orders were made by consent on

27 April 2004 as set out below:
1. The paternal grandmother, EY, shall have contact with C D A born 1994 and D T A born 1997 from 9.00 am to 5.00 pm each alternate Sunday during school terms on occasions when the father is overseas.
2. During each period of the paternal grandmother’s contact she shall be present at all times.
3. Such further or other contact as agreed between the mother and paternal grandmother.
4. Without admission none of the parties shall denigrate the other in presence or hearing of the children and shall remove the children from the presence or hearing of any person who is denigrating a party.
5. Should either child be required to attend a soccer match whilst in the care of the paternal grandmother, she shall ensure the attendance at soccer by the child.
6. The paternal grandmother shall collect the children at the commencement of her contact from the mother’s residence and shall return the children there at the conclusion of contact.
During the hearing the parties reached agreement in relation to their parenting orders subject only to one outstanding issue concerning contact overseas. Specifically, the nature and quantum of security that the husband should provide before the children departed. On the last day of the hearing, the court made the following consent orders.
1. That the children of the marriage C D A born 1994 and D T A born 1997 live with the wife and the wife be responsible for the day to day care, welfare and development of the said children.
2. That the husband have contact with the said children as follows:
(a)   Each alternate weekend from 6.00 pm Friday to 7.00 pm Sunday and to be extended to 5.00 pm Monday on long weekends, commencing the first weekend after the date of these orders and suspended during school holiday periods and on Mother’s Day weekend.
(b)   For one half of each school holidays, being the first half of the school holiday in the year 2003 and each alternate year thereafter being and second half of the school holidays in the year 2004 and each alternate year thereafter except for the period from 5.00 pm on 24 December to 3.00 pm on 25 December in the year 2004 and each alternate year after.
(c)    From 5.00 pm on 24 December to 3.00 pm on 25 December in the year 2004 and each alternate year thereafter.
(d)   On the children’s birthday from 5.00 pm to 7.00 pm if a weekday or 9.00 am to 5.00 pm if a non-contact weekend but suspended from 9.00 am to 5.0 pm on a contact weekend, when said children will be returned to the wife by the husband.
(e)   On Father’s Day weekend from 6.00 pm Friday to 5.00 pm Sunday, but if such weekend is a non-contact weekend, then the wife have the following weekend in its place.
(f)     Telephone contact at appropriate times.
(g)   Such further or other contact as agreed to between the parties in writings.
3. That the mother provide to the school all consents necessary for the school to send directly to the father copies of all school reports, weekly notices, correspondence and applications for school photographs.
4.That each party notify the other party within three (3) hours of either or both children being admitted to hospital and provide all consents necessary for the other party to consult the relevant medical practitioner in order to discuss the child’s diagnosis and treatment.
5. That the husband not attend the wife’s residence except for the purpose of picking up and returning the children in accordance with contact orders or written submissions.
6. That the husband collect the children from the wife’s residence at the commencement of contact and return the children to the wife’s residence at the end of contact.
7. That the husband not denigrate the wife in the presence or hearing of the children nor allow the children to remain in the presence or hearing of any other person denigrating the wife.

The issues

The principle issues raised in these proceedings are:
·Whether the husband gave full and frank disclosure.
·If he did not do so, the consequences of his failure to fully disclose.
·
Whether monies held in the husband’s bank account as at

30 January 2004 should be notionally added back.
·Whether part or whole of the sale proceeds of a Mercedes Benz, received by the wife should be notionally added back.
·Post separation contributions.
·Whether the husband is likely to make proper provision for child support.
·The parties financial future.

Short history

The husband was born in 1969 and is 35 years old.
The wife was born in 1969 and is 34 years old.
The parties married on 21 November 1992 at Our Lady of the Rosary Catholic Church at St Marys. They did not cohabit prior to their marriage.
They have the two children, C D A and D T A to whom I have made reference.
The parties last lived together in August 2002, at which time the wife and children returned to Australia while the husband remained in the United States. Although the wife contends that separation took place at about this time, I am satisfied that separation occurred in mid November 2002.
On 14 December 2002 the husband returned to Australia. Later that day the wife left the former matrimonial home.
On 12 February 2003 the husband commenced employment in Malaysia. He has resided in Malaysia since then.
The wife and children live in Australia.
The marriage still subsists.

Important events

During closing addresses both counsel agreed that as at the date of separation the court would find that the parties made an equal contribution. Thus, factual disputes concerning the acquisition of a home at Guildford, disposition of money during the marriage, the wife’s role as home maker and parent, for example, do not require adjudication. However, in order to evaluate post separation contributions and what adjustment, if any, is warranted pursuant to s.75(2) it is necessary to consider some key elements of the marriage prior to separation.

The parties’ work history

When the parties commenced cohabitation the wife was employed in a clerical capacity with John Fairfax Pty Limited and the husband worked as a radio-engineering officer with Optus Communications Sydney.
After C D A’s birth in late 1994, the wife took six months maternity leave. She then returned to work full time until approximately September 1996 when the husband left for Saudi Arabia. From that time on the wife became a full time home maker and parent.
In September 1996 the husband obtained employment as a senior radio system design engineer in Riyadah, Saudi Arabia. Since then the parties and children have lived overseas, changing countries as the husband’s employment changed. Basically, they took up an ex patriot lifestyle, with the husband providing a good income and the wife accepting responsibility for the children, and establishing and relocating their homes each time they moved.
In summary the parties’ movements can be summarised as follows. In September 1996 the husband left for Riyadah. The wife remained in Australia and joined him in Saudi Arabia in January 1997. In June 1997 the husband took a position in Warsaw, Poland. The parties and C D A moved to Warsaw together. Thomas was born whilst they lived in Poland. The husband’s employment in Poland finished in December 1997 whereupon he took a position in Taipei, Taiwan. The husband lived in Taiwan until December 1998. For all but approximately five weeks the wife and children lived in Australia with her sister and brother-in-law, M V and S V.
In January 1999 the husband obtained employment with Nokia in the Netherlands and lived there from January 1999 until August 1999. The wife and children lived with him in the Netherlands from approximately February 1999 until August 1999. In August 1999 the husband obtained employment in Frankfurt, Germany and the parties resided together in Frankfurt from the commencement of the contract until June 2000. In June 2000 the husband obtained a position with Orange Communications in Switzerland. The family moved from Frankfurt to Switzerland and resided there until about September 2001 when the wife and children returned to Australia.
In October 2001 the husband obtained employment in Brazil. Notwithstanding considerable effort by and on his behalf, the husband was unable to secure visas needed for the wife and children to live with him in Brazil. In late May 2002 the husband moved to the United States in anticipation of taking up a contract in Texas commencing June 2002. The wife and children joined him on 5 July 2002 and remained in the United States until 2 August 2002. The husband was worked in Texas until 13 December 2002, when he returned to Australia.
On 12 February 2003 the husband took up his current position as a salaried employee in Malaysia. The husband has a valid work permit and expatriate card for Malaysia.
On 21 July 2003 the wife commenced a six-month course of study at the Australian Business Academy. She graduated with a Diploma of Business on 12 December 2003. The cost of the course was $5,000 for the six-month period. Presently, she is negotiating with Commonwealth Rehabilitation Services Australia for full time work and expects to start with CRS in May 2004 on approximately $36,000 per annum. The wife wishes to work with the public service so that she can have the benefits of flexible working arrangements, which she needs in order to care for the children. Both parties agree that the children will reside with their mother and have contact with their father. As it is likely that he will continue to live overseas for at least the foreseeable future other than during holiday contact, the wife will be exclusively responsible for the children’s care.

The Dural Property

On 27 February 1998 the parties purchased vacant land at Dural for $167,500 funded completely from savings. The parties contracted with Allam Homes to build a house on their land. Although the home was substantially funded from savings, their savings were exhausted before the house was completed. On 29 December 2000 the parties borrowed approximately $200,000 from St George Bank, secured by a first mortgage. When those funds were exhausted they borrowed an additional $130,000 from St George Bank, which was secured by a second mortgage. The monthly loan repayments were $1,917 and $1,112 respectively. The husband made all instalment payments on the mortgages, as well as occasional lump sum payments from the time the mortgage was obtained in 1997 until the end of January 2003. There were no loan repayments made by either party after this time.
When the husband returned to Australia in December 2002 the wife left the family home. She has resided with her sister and brother in law ever since.
On 17 October 2003 St George Bank took possession of the former matrimonial home. As mortgagee in possession the bank sold the property for $650,000. Neither party contends that there is a Kowaliw (1981) FLC 91-092 waste issue arising from the loss of the family home. After discharge of the mortgage and other selling costs there is $277,018 remaining for the parties. This money is held in a joint account pending further order of the court.

The Mercedes Benz

In June 2000, whilst the parties were living in Germany, they purchased a customised Mercedes Benz for approximately $120,000. This was paid entirely from savings. The car was shipped to Australia in September 2001 and remained in the wife’s possession thereafter.
On 18 October 2003 the wife sold the Mercedes Benz for $75,000. The husband does not impugn the transaction however is concerned about the treatment of the nett proceeds. The wife paid the entire sum to her sister and brother in law who put into their mortgage offset account. Using these funds the wife spent $27,000 on a second hand BMW and says the balance has been applied to her and the children’s living expenses.

Child support

On 20 February 2003 the wife made application to the Child Support Agency for the administrative assessment of child support. Prior to the conclusion of the hearing, the husband made one payment of $2,995, which was intercepted by the Australian Taxation Office.
Other than the single child support payment to which I have made reference the wife’s income has been social security payments.
Pursuant to s.72D(1) of the Child Support Registration and Collection Act 1988 on 15 April 2004 at the wife’s behest[1] a departure prohibition order was made preventing the husband’s departure from Australia. Through her solicitors, the wife advised the Child Support Agency of the husband’s arrival in Australia for this hearing and sought the departure prohibition order. The husband received notification of the order when the wife’s counsel disclosed it at the end of the first day of the hearing. So, that the husband could return to Malaysia, late in the afternoon on 27 April 2004 the wife completed a non-agency credit, acknowledging that she had received $29,000 child support. The husband has not actually paid the credited money to the wife, it being conceded however, that the monies would be paid from his s.79 entitlement or utilising his share of the Mercedes Benz sale proceeds which had been retained by the wife.
[1] Exhibit L

Relevant Law

The approach to the determination of an application under s.79 is well established by authority (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595 the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the “Child Support (Assessment) Act 1989” that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
One of the important issues concerns the parties’ obligation to make full and frank disclosure, which means that they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said at 79,593: “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make full and frank disclosure of their financial affairs.” See also Junti (1986) FLC 91-759 and Mezzacappa (1987) FLC 91-853. And further on: “Irrespective of any obligation created by the Family Law Act or the Family Rules that we have identified, in our opinion the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to simply adhere to the obligations specified by the rules of court. If the relevant rules are deficient in identifying an aspect of a party's financial circumstance then this is not a basis for a plea that there was non-disclosure because the rules did not identify an aspect of a party's circumstances that may be relevant.”
In the matter of Luciano (2000) FamCA 401, O'Ryan J summarised the principles that emerge from these cases as follows:
·“In proceedings in the Family Court in relation to financial matters, there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.
·The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party.
·The obligation is not created by the rules or the practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled.
·If there is a deficiency in the practice adopted for the purpose of making such a disclosure, mere compliance with the requirements of the relevant rules if deficient, is not enough.
·If there is non-disclosure in the relevant sense then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters.
·A finding of non-disclosure may in appropriate cases, depending on the circumstances, result in the other party being granted without more, the relief sought.”

Assets, liabilities and financial resources as at the date of the hearing

The parties agree on the value of some of the assets and liabilities.
I find that the assets, liabilities and financial resources as at the date of hearing are set out in the table below.

Assets	$
Sale proceeds of the Dural property	277,018
BMW (W)	27,000
Non agency child support credit (H)	29,060
Furniture in storage (W)	5000
Artefacts in husband’s possession (H)	5000
Wife’s jewellery	3000
Non superannuation assets	346,078
Superannuation assets	$
Colonial State Superannuation (H)	36,523
Colonial State Superannuation (W)	21,005
TOTAL SUPERANNUATION ASSETS	57,528
TOTAL ASSETS	403,606

It was the wife’s contention that the court would notionally add back the husband’s savings held as at 30 January 2003. In relation to his savings the wife’s counsel appeared to categorise the payments as a premature disposition of a proportion of the matrimonial assets. Although he did not make reference to it, counsel appeared to rely on the line of authority emanating from Townsend (1995) FLC 92-569. Townsend does not establish a rule of general application that all assets held at separation, if disposed of, must be notionally added back into the asset pool.
A great deal of time was taken exploring the operation of the husband’s Swiss UBS bank account. The wife contended that the husband failed to give adequate disclosure of his accounts, which allegation he vehemently denied. Although the UBS account is operated in the husband’s sole name the mailing address was the family home at Dural. Annexed to the wife’s affidavit are copies of UBS bank statements, revealing that she was aware of the account including the account number and the banks contact details. This is the same account that the husband disclosed in his financial statement filed 30 April 2003. As well as these statements the wife has boxes of the husband’s bank records and has had them since at least February 2003. The wife did not successfully challenge the husband’s evidence that throughout the marriage the wife knew about the account’s existence and it’s operation. The wife’s assertion that the husband has 4 bank accounts with the Swiss UBS bank was mischievous. I am satisfied that the wife knew that the husband had one UBS account within which the husband has different money market accounts. The different money market accounts relate to savings held in four different currencies, which the bank trades on the husband’s instructions. These four currencies are Swiss Francs, Euros, Australian dollars and English Pounds. Usually the husband is paid in Swiss Francs, which he distributes amongst his money market accounts. How the money is divided between the accounts depends upon matters such as current exchange rates, where the parties were living and how much they expected to draw. Thus I accept the husband’s evidence that as at 31 January 2003 he had one USB account which had CHF 9199.60, EUR 9118, AUD 15.53 and GBP 9.30. In total about $30,000. Curiously, even though there are continuous bank statements, the opening balance on 1 February 2003 is CHF 9199.60.

The husband was properly criticised for not complying with an order that he gives discovery. He made a deliberate decision that he would not give it. During the weekend adjournment he managed to have a considerable quantity of financial material sent from Malaysia, some relating to this account. The wife’s counsel submits in essence that the husband’s failure to give discovery, even if disclosure is made late, means that the court must find that he has failed to give adequate disclosure. I do not agree. Here, the wife had boxes of the husband’s financial material. His mailing address for his only solely operated banking account was the house the wife lived in while he lived overseas. She was a joint signatory to their St George working account. The husband’s generous financial support was maintained over many years and even after she says that they separated. At least after the husband filed his financial statement in early 2003 the wife knew his employer and his employers contact details. Apparently the wife made no independent inquiries nor issued subpoena to UBS or any other bank concerning the husband’s accounts. Nor when discovery was refused, at times when she was before the court on other matters, did she seek further disclosure type orders nor ask that the court direct the husband to sign any necessary authorities to his banks directing that they answer her inquiries or give her duplicate statements. Her failure to take these steps satisfies me that the wife had a quite sophisticated knowledge of the husband’s financial circumstances including the specific details of his accounts. Thus while the husband’s failure to give discovery is regrettable the consequences in this case are not as concerning as they would be in a case where the other party had virtually no knowledge of the other’s financial affairs.
By end February 2003 the husband’s savings reduced and continued to fall until by end April 2003 he had about $2,000 remaining. Exhibit B corroborates the husband’s evidence that he continued to deposit his wages into this account and paid his outgoings from it. He says that he had significant outstanding bills, for example credit card debts that he paid. In circumstances where the wife does not explain in any detail her disposition of about $100,000 spent during 2003, I do not strongly criticise the husband for his failure to give a detailed accounting of his use of these monies. It is obvious that these parties were used to spending substantial sums and at different times incurred significant living expenses. Because the husband’s pay cycle was somewhat irregular it seems likely that he built up debt that was paid out when he was paid. On balance I am satisfied that the husband has adequately accounted for the expenditure of the monies held in his UBS account at separation and that these monies were paid out for joint matrimonial debts. In those circumstances the money will not be notionally added back.
Similar issues arise concerning the sale of the Mercedes Benz. Because she was unable to support herself and the children without notice to the husband the wife sold their car. It was advertised through the Sydney Morning Herald and sold in an arms length transaction. The wife claimed that she had spent the entire sale proceeds. It was the wife’s contention that she had an agreement with her brother-in-law and sister that they would support her and the children which she would repay when funds were available. I accept the husband’s counsel’s submission that S V was demonstrably uncomfortable with the notion that a running debt was established against the wife, calculated as the wife contended. S V revealed that the entire $75,000 was paid into his mortgage off-set account and that after the purchase of the wife’s BMW and payment of her TAFE fees, the majority of the $75,000 was still held in the account. The wife has given the husband credit with the Child Support Agency of $29,060. So that she actually receives this money, I will notionally add back $29,060 as a premature distribution of the husband’s interest in the Mercedes Benz. As the husband did not actually receive any of the proceeds from the Mercedes Benz, the notional add back and actual child support credit result in the wife receiving the money from the husband. After payment of the wife’s TAFE fees, the CSA credit and the wife’s BMW, there is $14,000 remaining of the Mercedes Benz sale proceeds. Although S V may not have formally claimed a debt from the wife, it is reasonable that the wife has paid MV and SV a proper amount for accommodation and living expenses since January 2003.

I declined to notionally add back the monies held by the husband as at January 2003 and I am not persuaded that I should notionally add back this remaining $14,000. The wife’s modest circumstances post-separation compared to the husband’s considerably greater income would make a notional add back unjust to the wife.
The wife’s jewellery comprised a gold plated ladies watch with small diamonds, a De Beers diamond and 18 carat gold necklace, black pearl earrings, an 18 carat gold 35pt cluster diamond ring, an 18 carat wedding ring, 18 carat gold solitaire diamond ring, 18 carat gold and sapphire cluster ring and various 18 carat gold chains and bracelets. The court was not given satisfactory valuation evidence of this jewellery. The wife’s assertion that her jewellery has a current value of $3000 is implausible. Her watch, dress rings and diamond pendant is likely to have considerably greater value than that alleged by the wife. I will include the wife’s assertion as to value as an admission against interest and take the matter into account when considering her Black and Kellner submission and under s.75(2)(o).
The husband has a Tag Heuer watch and some gold chains, the value of which is not in evidence. I will deal with this under s.75(2)(o).
The husband has unpaid legal fees of $8,461.34 and owes Optus $10,000 for a mobile telephone account. These liabilities have been incurred since separation. Thus they will be the husband’s responsibility and are not included in the pool of assets and liabilities. See Farnell (1996) FLC 92-681.
I accept the husband’s submission that the furniture and artefacts are of roughly comparable value.

Evaluation of the contributions and other factors

Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial. For the welfare of the family as well as to the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
As I have already found the parties agree that, as at the date of separation their total contributions should be recognised as equal. The issues concern post separation issues and s.75(2) factors.
Since separation the wife has effectively been exclusively responsible for the children’s care. Left without any financial support from the husband she has cared for them in difficult circumstances. The retrospective payment of child support does not alleviate the burden that providing for the children imposed on the wife post-separation. In the circumstances there should be a small adjustment that recognises her post-separation contribution as home maker and parent.
The orders I propose will not affect the earning capacity of either party.
I have already made findings of the payment of child support.
I find therefore that the parties’ total contributions and other factors should be assessed as being 52 per cent by the wife and 48 per cent by the husband.

Section 75(2)

Subsection (a) – The husband is 35 years old and is in good health. The wife is 34 years old and she too is in good health. I make no adjustment pursuant to the subsection.
Subsection (b) – The husband works full time as a telecommunications engineer. Since September 1996 he has worked overseas as a contractor or employee. He has earned a good income in each of his positions, ranging between $80-$1,500 a day. In addition his contracts provided a perdaum allowance and some included provision of a motor vehicle, travel costs and accommodation. It appears that the most well paid contract was that which he took with Nokia in Brazil. This contract paid $US580 a day, equivalent to $US211,700 per annum. At Thales, the husband is paid $US80,000 per annum less applicable taxes and withholding[2]. In addition, an annual incentive bonus is payable, payable only if the husband is employed on December 31 of the particular calendar year and the company achieves specified performance measures. Thales agreed to meet relocation and temporary living expenses for up to eight weeks upon his arrival in Malaysia.

I accept the husband’s evidence that as an employee he earns less than when working as a contractor. The wife does not make any real challenge to his evidence that he is able to earn more working overseas than in Australia. The husband has acquired considerable skills and acumen in his chosen field and I am satisfied that he will continue to earn an income at least comparable to that which he currently earns in the medium to long term. While the wife has some earning capacity, it does not compare to the husbands. Previously, she acquired skills in a clerical capacity. By the time she gave up work to care for the children, the gap in the parties’ earning capacity was wide and it is now substantial. The wife has improved her earning capacity by completing a TAFE course last year. Although she intends to work full time, she does not expect to earn more than about $36,000 (with small annual increments) for the medium to long term. The wife’s income may be supplemented by a family allowance payment and child support. Whilst this narrows the gap between the husband’s total income and the wife’s total income there is still a stark difference in their income and earning capacity. I have already made findings concerning the parties’ property and do not repeat them. I make an adjustment in the wife’s favour pursuant to the subsection.
[2] Exhibit J
Subsection (c) – C D A is 9 and a half years old and D T A is 6 and a half years old. Throughout the marriage responsibility for the children has overwhelmingly fallen to the wife. The husband agrees that the children should live with the wife and day to day primary responsibility for their care will remain with her. Their ages mean they will be dependent upon her for many years to come. Because the husband lives overseas, his contact with the children is limited and the burden on the wife is significant indeed. In Clauson (supra) the Full Court of the Family Court of Australia said, “In addition it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction an independent lifestyle which the obligation to care for children usually entails”. These observations apply to this case. I make an adjustment in the wife’s favour pursuant to the subsection.
Subsection (d) focuses on the financial needs of the parties including their financial commitments supporting the children. The wife uses all of her income supporting herself and the children. Once she starts work her circumstances will improve but nonetheless she will expend all her income on necessary expenses. The husband has a far greater income and his day to day necessary expenses are less than the wife’s. In order to have contact with the children he incurs substantial travel and accommodation costs that must be taken into account. Overall the subsection requires an adjustment in the wife’s favour.
Subsection (e) – Other than the children neither party has responsibility to support any other person. I make no adjustment pursuant to this subsection.
Subsection (f) – Presently, the wife receives Centrelink benefits, which entitlements will cease upon her taking up a position with CRS. She may be entitled to continue to receive a small family allowance benefit. Other than these payments, neither party currently receives a pension, allowance nor benefit from any superannuation fund or scheme.

I make no adjustment pursuant to the subsection.
Subsection (g) – Between September 1996 and their final separation, the parties enjoyed a good standard of living. By 2002, the husband was earning over $US200,000 per annum. The parties travelled extensively and agree that they lived well. During the last year of their marriage, the husband sent $93,976[3] to Australia which money the wife used for the mortgage and living expenses. The mortgage was approximately $3,000 per month, which means the wife spent about $62,000 on living expenses. On top of this she received additional funds paid during May and part of June 2002. With this income, the wife enjoyed a comfortable standard of living. Since separation the wife’s standard of living has reduced. She has been unable to support herself and has relied on the good graces of her sister and brother-in-law. She no longer has the amenity of her own home nor the opportunity to enjoy the same comfortable standard of life that she did previously. The husband’s standard of living has also fallen, but to a lesser extent than the wife’s. He has lived alone in rented accommodation from the time he transferred to Brazil. It is appropriate to make an adjustment in the wife’s favour pursuant to the subsection.
[3] Exhibit I
Subsection (h) to (k) – These subsections do not arise.
Subsection (l) – The wife has decided to return to the paid workforce and does not claim an adjustment pursuant to the subsection. Her work ethic and responsible attitudes must be commended. I have already taken into account aspects of the financial consequences of the wife’s care of the children. In the circumstances I make no adjustment pursuant to the subsection in the wife’s favour.
Subsection (m) – The husband has a 19 year old girlfriend, V K. V K stays with him on weekends and four nights each week lives at university where she is studying engineering. There is no suggestion that she contributes to the husband’s support or that he makes any significant contribution beyond providing accommodation and living expenses during the period that she stays with him. The wife lives with her sister and brother-in-law who have provided her with substantial financial assistance. They must have struggled to do so and have no obligation to continue their financial support. As soon as she is able, the wife wishes to establish her own home and financial independence. Whilst the financial circumstances of cohabitation have been advantageous to the wife, this has been by dint of necessity and will only continue if the wife is destitute. In the circumstances I am not persuaded that there should be an adjustment in the husband’s favour pursuant to the subsection.
Subsection (n) – Section 75(2)(n) achieves a cross-referencing between s.75 (2) and s.79. The outcome of the assessment of contributions and other factors has resulted in the wife having 52 per cent of the assets compared to the husband’s 48 per cent. Neither party seeks a split of superannuation. These factors do not warrant an adjustment pursuant to the subsection.
Subsection (na) – The husband is assessed to pay child support, which is calculated using his salary earned whilst he was in Brazil. He no longer earns an income even remotely comparable to that upon which the assessment is based. If the husband makes a departure application, he may well succeed in obtaining a considerable reduction in his child support liability. A secondary issue is whether he is likely to pay the amount assessed. Based on his failure to pay child support to date, the wife contends that it is unlikely the husband will comply with future assessments. Australia has reciprocal arrangements with Malaysia for the collection of child support and even if he is unwilling to do so, it is likely that child support will be obtained. The husband was clearly shocked by the departure prohibition order. He has strong ties to Australia and appreciates that if he wishes to enter and leave Australia with the frequency he has enjoyed to date, his child support must be paid and kept up to date. During the hearing the husband thanked Mr and MV for their support of the wife and children and was obviously remorseful for his failure to pay child support to date. While there may be occasions when he falls into arrears, I consider it likely that proper child support will be paid. Emotionally, the husband has made an enormous investment in his career and children. He is unlikely to put either at risk by maintaining a persistent refusal to pay child support.

I make an adjustment pursuant to the subsection in favour of the husband.
Subsection (o) – The wife has jewellery that is worth more than the value quantified in these reasons. The value alleged by her is an understatement of its current value. Because the evidence is inadequate I am unable to make findings as to its true value other than to find it is considerably greater than the conceded $3000.00. The husband’s watch and jewellery has not been valued, but is unlikely to be anywhere nearly as valuable as the wife’s. I make a tiny adjustment in the husband's favour pursuant to the subsection.
Subsection (p) – This issue does not arise.
Having regard to all of the s.75(2) factors I find that it is appropriate that there should be an adjustment in the wife’s favour of 15 per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomassetti (2002) FLC 93-032. Any lesser adjustment given the size of the asset pool would be notional.

Section 79(2) is this outcome just and equitable?

Because the court must consider the actual orders not just the percentage distribution under s.79(2) justice and equity in cases like this requires the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process. It is at this stage that the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an outcome favourable to the wife of 67 per cent compared to the husband’s entitlement of 33 per cent is just and equitable. These include that the children will continue to live with the wife and she will be overwhelmingly responsible for their day to day care. Although the husband will pay considerable child support, the payment of child support does not compensate the wife for the financial impact upon her of many years of child care. The husband has a well established career which produces him a good income. It is unlikely that the wife will ever earn a comparable income. In the years that lie ahead the husband’s financial security, because of his greater income and earning capacity is far more assured than the wife’s.
The effect of the orders means that the husband will have the child support credit, artefacts and superannuation, the total value of which is $70,083. Excluding the proceeds of sale of the home, the assets total $126,588. Of this, the husband is entitled to 33 per cent, which is $41,774. Thus, he must pay the wife $28,809. By way of cross-check 67 per cent of $126,588 is $84,814. The wife has assets worth $56,005. Rounded out the wife is entitled to a further $28,809. Applying the same formula to the proceeds of sale, the wife is entitled to 67 per cent of $277,018, which is $185,602. Added together $185,602, $28,809 and $56,005 totals $270,416. Sixty seven per cent of $403,606 is $270,416. Hence, from the husband’s 33 per cent of the nett proceeds, $91,416 after he pays the wife $28,809 he receives a nett amount of $62,607.

This outcome is just and equitable.

Overseas travel

Because the husband lives and works overseas, he wishes to be able to have contact to the children in Australia as well as where he lives. Unless he secures employment in Australia, which is a possibility, he plans to live in Malaysia for the foreseeable future. Malaysia is not a signatory to the Hague Contravention on the Civil Aspects of International Child Abduction. Thus the inter country arrangements for the return of children wrongfully retained in a signatory country do not apply in this matter.
The wife is anxious about the children travelling overseas without her. The husband’s financially irresponsible behaviour since separation and his hostile attitude towards her have surprised her. Whilst she does not claim that the husband has threatened to take the children from her or made any covert attempt to remove them from Australia, she seeks the reassurance of proper security that would ensure the children’s return to Australia.
From an early age the children have lived and travelled extensively throughout the world. Both parties recognise that there are obvious cultural and educational advantages for their children from travel and exposure to other cultures. The wife has no concerns about the husband’s contact with the children in Australia, indeed actively promotes it. Thus she is not concerned that the children would be concerned about separation from her for short periods. The husband proposed that either he or his mother would accompany the children on their journeys to and from Malaysia. If the court refused his application for contact overseas or alternatively he was unable to meet the conditions imposed for such contact he will exercise contact two or three times annually in Australia.
The husband has strong ties to Australia. It is the country of his birth and his extended family lives here. He retains Australian citizenship and although he has lived overseas in recent years, he regularly returns to Australia during holidays and since separation, in order to see the children. The husband lives in rented accommodation in Malaysia and has not established a permanent home in any other country. After separation when the wife insisted that the husband sign an agreement to return the children at the end of contact, he did so. Since separation he has had contact in Australia and has returned the children as agreed and made no attempt to remove the children from the wife’s care or Australia. My assessment is that the risk that the husband would withhold the children in another country is low.
If the children are withheld overseas, the degree of difficulty the other party may have in securing their return must be considered. It is likely that it would be profoundly difficult for the wife to secure the children’s return. As I have already found, Malaysia is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction. This means that in order to secure the children’s return to Australia the wife is likely to incur legal costs in Malaysia. This influences both the need for and quantum of security.
An important factor influencing the assessment of risk will be whether or not the husband has outstanding child support. If the husband has regularly paid child support and is up to date before making arrangements for the children to travel overseas, there is no risk that he would be detained in Australia. However, if there are child support arrears the husband is likely to be disinclined to travel to Australia and the risk that he may keep the children with him in Malaysia increases. Through his counsel the husband agreed that he would not seek to have the children travel outside of Australia unless all child support was up to date. I agree that this must be a prerequisite before the children could depart Australia.
The husband’s mother indicated that she would provide whatever security the court required on order to guarantee the children’s return to Australia. E Y is a woman of limited means and is about to lose her home. The husband has a good income and in the past has been able to acquire significant savings. Setting a modest security is unlikely to influence his decision to retain or return the children. Because the husband is willing and able to exercise contact in Australia ordering adequate security is unlikely to cause him hardship. That is because contact will still happen. Security that is too onerous will deprive the children of the opportunity to spend time with their father overseas and to continue an international lifestyle that they have enjoyed to date.
The wife’s counsel contended that $30,000 security is appropriate. E Y has no savings or assets of value. Therefore she does not have immediate access to $10,000. Raising this sum will be difficult for her and is a burden she will treat seriously. The husband will need to raise and lodge with his solicitors $20,000 before he can remove the children from Australia. Thus the wife will have access to $30,000 in the event the husband fails to return the children to Australia. This money will be security for the children’s return. So that there can be no misunderstanding, the husband’s solicitors must confirm in writing that they have received the security deposit. Upon the children’s return to Australia the wife must immediately advise the husband’s children that they are home. If the children are not returned then the wife will have liberty to approach a court for the immediate release of part or all of the money so that she can commence necessary recovery action.
The conditions for travel overseas must be carefully structured. The husband must give the wife no less than eight weeks notice of his intention to travel overseas with the children. The notice must address where and with whom the children will travel and stay. The wife is entitled to have relevant contact details, which enable her to make such enquiries as she considers appropriate and stay in touch with the children while they are away. If there has been a material change in the parties’ circumstances and the risk that the children will not be returned to Australia, this gives the wife sufficient time to make an application to vary these orders.
I am concerned to facilitate overseas travel for the children more extensive than merely Malaysia. Provided the children are accompanied by either the father, paternal grandmother or another person acceptable to the mother, should the husband wish to holiday with the children in a convention country within the south pacific, these orders will facilitate that travel. Any other overseas travel will need to be the subject of the wife’s agreement or an application to a court.
I am satisfied that these orders are in the children’s best interests.
For these reasons I make the orders identified at the beginning of this judgment.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 18 May 2004