Ashforth & Ashforth

[2012] FamCA 621

FAMILY COURT OF AUSTRALIA

ASHFORTH & ASHFORTH [2012] FamCA 621

FAMILY LAW - CHILDREN – Where the child is to live with the mother as the father usually resides overseas and is employed by the British public service – whether the mother should have sole parental responsibility – The frequency and duration that the father should spend with the child given that he is usually resident outside of Australia

FAMILY LAW - PROPERTY – alteration of property interests – Global or Asset by Asset Approach – short marriage – Whether there should be a departure from the administrative assessment of child support payable by the father – Whether the father should pay the mother spousal maintenance in the context where the father submits that he cannot afford to pay.

Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001(Cth)
Child Support (Assessment) Act 1989 (Cth)

B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92–755
In the Marriage of Vlug and Poulos (1997) 22 Fam LR 324; (1997) FLC 92-778 (FC)
Goode and Goode [2006] FamCA 1346
Webster v Webster [1998] FamCA 336
In the Marriage of McMahon (1995) 19 Fam LR 99; FLC 92–606,
Norbis v Norbis (1986) 161 CLR 513; 65 ALR 12; 10 Fam LR 819; FLC 91–712

APPLICANT: Mr Ashforth

RESPONDENT: Ms Ashforth

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: MLC 9801 of 2009

DATE DELIVERED: 3 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 21, 22, 23 and 24 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

SOLICITOR FOR THE RESPONDENT: Mr Foley

SOLICITORS FOR THE RESPONDENT: Foleys Lawyers

INDEPENDENT CHILDREN’S LAWYER: Ms Shea

INDEPENDENT CHILDREN’S LAWYERS: Legal Aid NSW

Orders

Parenting

1. The child E (“the child”), born … April 2009, live with the mother.

2. Each parent is to be responsible for the child's day-to-day care, welfare and development while the child is in that parent's care, and otherwise each parent has parental responsibility as provided for by Section 61C of the Family Law Act 1975.

3. The child is to spend time with the father as follows:

   (a)from 10.00 am on 4 August 2012 until 5.00 pm on 5 August 2012 in Canberra

   (b)from 10.00 am on 18 August 2012 until 5.00 pm on 19 August 2012 in Sydney

   (c)from 10.00 am on 1 September 2012 until 5.00 pm on 2 September 2012 in Canberra

   (d)from 10.00 am on 8 September 2012 until 5.00 pm on 9 September 2012 in Sydney

   (e)from 10.00 am on 22 September 2012 until 5.00 pm on 23 September 2012 in Canberra

   (f)from 10.00 am on 6 October 2012 until 5.00 pm on 7 October 2012 in Sydney

   (g)from 10.00 am on 20 October 2012 until 5.00 pm on 21 October 2012 in Canberra

   (h)from 10.00 am on 27 October 2012 until 5.00 pm on 28 October 2012 in Sydney

   (i)from 10.00 am on 10 November 2012 until 5.00 pm on 11 November 2012 in Canberra

   (j)from 10.00 am on 24 November 2012 until 5.00 pm on 25 November 2012 in Canberra

   (k)from 10.00 am on 8 December 2012 until 5.00 pm on 9 December 2012 in Sydney

   (l)from 10.00 am on 15 December 2012 until 5.00 pm on 16 December 2012 in Canberra

   (m)from 10.00 am on 24 December 2012 until 11.00 am on 25 December 2012 in Sydney

   (n)from 10.00 am on 29 December 2012 until 5.00 pm on 30 December 2012 in Sydney

   (o)from 1 January 2013 until 1 January 2014, on those occasions the father is in Australia for any block period of time in the following pattern with the fortnightly pattern commencing the day after the father arrives in Australia:

Week 1

(i)

from 9.00 am to 3.00 pm on three alternate days in Week 1 (for example, if the father arrives in Australia on a Monday, he shall spend time with the child from 9.00 am until 3.00 pm on Tuesday, from 9.00 am until 3.00 pm on Thursday and 9.00 am until

3.00 pm on Saturday in Week 1)

Week 2

(ii)for two separate overnight periods at the beginning and end of Week 2 (for example, from 10.00 am on Tuesday until 5.00 pm on Wednesday and from 10.00 am on Saturday until 5.00 pm on Sunday in the Week 2)

(p)from 1 January 2014 until 1 January 2015, on those occasions the father is in Australia for any block period of time in the following pattern with the fortnightly pattern to commence the day after the father arrives in Australia:

Week 1

(i)from 9.00 am to 5.00 pm on three alternate days in Week 1 (for example, if the father arrives in Australia on a Monday, he shall spend time with the child from 9.00 am until 5.00 pm on Tuesday, from 9.00 am until 5.00 pm on Thursday and from 9.00 am until 5.00 pm on Saturday in Week 1)

Week 2

(ii)for two consecutive overnight periods at the beginning and end of Week 2 (for example, from 10.00 am on Sunday until 5.00 pm on Wednesday and from 10.00 am on Friday until 5.00 pm on Monday)

(q)from 1 January 2015 until the end of Term 1 in 2017:

(i)for three consecutive nights each week during the school holiday periods at the end of Terms 1, 2 and 3 in 2015

(ii)for three consecutive nights each week during three consecutive weeks of the school holiday periods at the end of Term 4 in 2015

(iii)for the first half of the school holiday periods at the end of Terms 1, 2 and 3 in 2016

(iv)for two consecutive weeks during the school holiday periods at the end of Term 4 in 2016, as agreed between the parties and failing agreement in writing not less than 28 days prior to the commencement of the holiday period, for the first two weeks in January 2017.

(r)from the commencement of Term 1 in 2017:

(i)for one-half of all school holiday periods as agreed between the parties but failing agreeing in writing not less than 28 days prior to the commencement of each holiday period, for the first half of each school holiday period in odd-numbered years and the second half of each holiday period in even-numbered years.

1. In the event that the father is in Australia for Christmas and he is not otherwise spending time with the child, the child shall spend time with the father from 9.00 am Christmas Eve to 12 noon Christmas Day in even-numbered years and from 12 noon Christmas Day to 5.00 pm Boxing Day in odd-numbered years.

2. The father is to provide to the mother written notification to the email addresses … and … no later than eight weeks prior to any period of time the father intends to be in Australia setting out the dates and times he will spend with the child pursuant to Orders 3(o) to 3(r) and (4) hereof.

3. The mother is to provide to the father details of any social and extracurricular activities that the child has scheduled during the father’s time with the child so that the father may take the child to those activities if he wishes to do so.

4. The father shall be permitted to remove the child from the Commonwealth of Australia for the purposes of spending time with her as follows:

   (a)during his time with the child pursuant to Order 3(q)(iv) hereof and thereafter

   (b)on no more than two occasions each school year

   (c)the father shall travel with the child on all overseas flights and

   (d)the father shall meet the costs of all airfares for the child until further Order.

5. Changeovers for the purposes of these Orders shall be as follows:

   (a)in the event the commencement/conclusion of time coincides with the child’s attendance at school or any other sporting or extracurricular activity then the time shall commence/conclude at that time and changeovers shall take place at that location

   (b)changeover shall otherwise take place at the entrance to the McDonalds restaurant closest to the mother’s residence

   (c)the mother if not undertaking such task herself is to arrange the delivery of the child at the commencement of time and collection of the child at the conclusion of time by a third party other than the maternal grandfather and is to ensure that the father is advised by way of SMS text message confirmation as to the name of the person facilitating all changeovers on her behalf no later than one hour prior to the commencement and/or conclusion of the time.

6. For the purpose of these Orders, holiday periods as published by the school (which includes the school’s website) that the child attends and does include pupil-free days falling on either side of such holiday periods.

7. The mother is to do all acts and things and sign all documents necessary to facilitate the child having Skype contact with the father during those periods of time he is residing overseas at T Contact Centre, or such other location (including the mother’s home or the home of the child’s maternal aunts or grandparents or the mother’s friends) so as to facilitate the child’s relationship with the father on at least one occasion each fortnight when the father is not otherwise spending time with the child on such dates as shall be agreed between the parties, and in default of agreement each alternate Saturday at 6.00 pm Sydney time and the mother shall ensure that the child is available to communicate with the father for not less than 15 minutes.

1. The father is to facilitate the child having Skype contact with the mother on no less than two occasions each week during any overseas trip that the child takes with the father.

2. The child may communicate with each parent at such times as the child so wishes and the other party shall assist the child, if necessary, to facilitate such communication by telephone, in writing, or by other electronic means including but not limited to email and if the facility exists, and the party wanting it provides it, webcam or video conference.

3. Each party is to notify the other, as soon as possible and in any event within three hours, of any serious injury or illness suffered by the child whilst with that party and provide the other party with the name and contact details of any medical practitioner upon whom the child has or is attending.

4. Each party is to notify the other, not more than 48 hours after any change to their address and/or landline and/or mobile telephone numbers and/or their email address and/or Skype address.

5. The mother be and is hereby restrained from relocating the child’s permanent residence to a location which is greater than 200 kilometres radius of an international airport within Australia without first obtaining the father’s consent in writing and in the event that the mother does relocate with the child within said radius, she shall provide the father with three months written notice including details of where she intends to reside with the child.

6. Each parent is to notify the other of the address and telephone number(s) of the place(s) where the child will be staying during holidays spent away from their residence of more than three days duration, not later than 48 hours prior to the commencement of any holiday period.

7. The mother is to forthwith authorise any childcare centre, pre-school or school the child may attend to provide to the father photocopies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of the child, and the mother shall authorise staff members at any childcare centre, pre-school and school the child may attend, to discuss the child’s progress with the father.

1. The mother is to provide to the father the names, addresses and telephone numbers of any day care centre, school, doctor or other health professional and any other professional or service involved with the child in relation to her health, education or welfare as follows:

   (a)prior to the child engaging with that person or service, unless the child’s engagement with the person or service occurs in circumstances of emergency

   (b)in circumstances of emergency, within five working days of the emergency.

2. The father is permitted to contact and obtain information from any day care centre, school, doctor, other health professional and any other professional or service involved with the child in relation to her health, education or welfare.

3. For the purposes of communicating information between the parties the mother and father shall:

   (a)communicate by speaking on the telephone only in situations of emergency

   (b)communicate by text message for the purpose of the father being advised on any delegate facilitating changeover for the mother

   (c)communicate by email about all other matters.

4. Both parties are restrained from:

   (a)denigrating the other parent and/or their family in the presence or hearing of the child or permitting any other person to do so

   (b)discussing the Family Court proceedings and/or the parties’ relationship in the presence or hearing of the child or permitting any other person to do so.

5. Within fourteen days of the date of these Orders, each party shall do all acts and things and sign all documents necessary to allow an Australian passport to be issued for the child and thereafter, each party do all acts and things and sign all documents necessary to ensure that the child’s Australian passport is renewed before it expires.

6. Each party is to do all acts and things and sign all documents necessary to ensure that the child’s UK passport is:

   (a)forthwith released to the father from the Melbourne Registry of the Family Court of Australia and

   (b)ensure that the child’s passport is renewed before it expires and it is noted that the child’s UK passport is due to expire on 11 September 2014.

7. The mother bear all costs associated with an Australian passport being issued and renewed for the child and the father bear all costs associated with a UK passport being renewed for the child.

8. The mother shall retain the child’s Australian passport and the father shall retain the child’s UK passport and each party shall provide certified copies of the child’s Australian and/or UK passport to the other party if requested within 14 days of such a request being made.

9. Each party give to the other party no less than 30 days notice of their intention to take the child overseas and provide the other with the following no less than

   
   

   14 days before the child’s departure from Australia:

   (a)a copy of the child’s tickets and travel itinerary

   (b)details (including phone numbers) of the places where the child will be staying overseas.

10. The Australian Federal Police are requested to remove forthwith the name of the child E born … April 2009 (female) from the Airport watch list and PASS alert system and the father shall be responsible for serving a sealed copy of these orders on the Australian Federal Police.

11. The parties shall notify each other of any major long-term decisions they intend to make for the child prior to any such decisions being made and that in the event of a dispute between the parties in relation to any major long term issues, then the parties shall attend upon a registered Family Dispute Resolution Practitioner (with the father to attend any such session by telephone or video conference if he is not in Australia) in an attempt to agree upon any long-term decisions concerning the child.

12. Any injunctions restraining the father from contacting the mother directly and attending her residence and place of employment are dissolved.

Property

1. The father is declared as against the mother the legal and beneficial owner of the property situate and known as:

   (a)The property at Town H, UK

   (b)The property at Town B, UK

   (c)The property at P, London, UK.

2. The father is to do all such acts and things as may be necessary to procure the sale for the best price reasonably obtainable of the property situate at and known as the property at L, London, UK and after payment of agents selling commission, legal costs and disbursements of and incidental to the sale payment of a sum sufficient to discharge the mortgage charged upon the said property and any Capital Gains Tax payable with respect to the sale of the said property the father is to pay the balance proceeds as to 90 % thereof to the mother and as to the balance to the father.

3. The father and mother are to do all such acts and things as may be necessary to cause the release of the monies in the controlled monies account held by Newnhams Solicitors (being part of the balance of the sale proceeds of the G Holdings proceeds) and to cause the said money to be paid to the father.

4. The mother is to do all such acts and things as may be necessary to cause the payment of $11,372 to the father (noting that this sum represents a net payment allowing for the set off of the father’s entitlement to the G Holdings proceeds previously paid to the mother less the amount payable to the mother by the father of $15,000 and $13,628).

5. Except as otherwise provided the mother and the father each are declared as against the other to be the sole legal and beneficial owners of all items of property including without limiting the generality thereof, money, shares, motor vehicles, insurances, equities, superannuation entitlements, personal effects and financial resources currently in the possession or control of each of them respectively.

6. The father is to indemnify and save harmless the mother from and against all actions, claims, suits and demands made against the mother in relation to any liabilities of the father.

7. The mother is to indemnify and save harmless the father from and against all actions, claims, suits and demands against the father in relation to any liabilities of the mother.

8. In the event that the father or the mother refuses or neglects to comply with the provision of any Order or Orders therein, the Registrar of the Family Court of Australia at Sydney is hereby appointed to execute all deeds and documents in the name of the father or mother as the case may be and to do all such acts and things necessary to give validity and operation to the said Order or Orders and the party in default is ordered to pay any and all reasonable costs for the purposes of enforcing this Order.

9. The application of the mother for spouse maintenance is dismissed.

10. The application of the mother for a departure from the child support assessment made on 16 May 2012 is dismissed.

11. Any application for any order as to costs is to be filed within 21 days of the date of this Order.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 9801 of 2009

Mr Ashforth

Applicant

And

Ms Ashforth

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before the Court are proceedings between parents with respect to the parenting of the child of their marriage, E (“the child”), born in April 2009 and now 3 years of age. The proceedings also involve applications for orders for alteration of the parents’ property interests and other financial matters.

2. The parties met and were married in the United Kingdom (“the UK”).

3. The father is holds a senior position in the British public service. He is currently residing in Canberra after organising through the British public service to be posted in Australia to attend a course at an Australian educational organisation. The father intends to return to the UK in January 2013 and then move to Country U in Southeast Asia in July 2013.

4. From July 2013 to the end of 2015 the father has been selected for a senior level posting in Country U for the British public service. The father requested this posting as he wishes to reside closer to the child to reduce the effect of residing overseas on his relationship with her. Country U is one of the most proximate locations to Australia available to him as a senior British public servant in his field.

1. The father is presently leasing a four bedroom house in Canberra which has a fully set up bedroom for the child, in anticipation of orders being made that permit the child to travel to Canberra to spend overnight time with him.

2. From the commencement of the proceedings on 2 November 2009, there have been 14 Case Applications, 9 of which were filed by the father. Many of them were for interim parenting arrangements. The assistance of the Court was sought by the father when the parties had been unable for a variety of reasons to reach agreement on what arrangements should be in place.

3. This matter has been one of a litigious nature, hitherto marked with hostility and a lack of communication and cooperation between the parties.

4. On the final day of the hearing consent orders were entered into allowing the child to spend overnight contact with the father in Sydney fortnightly on five occasions commencing on the weekend of 26-27 May 2012 up until the weekend of 21-22 July 2012. The mother agreed in her evidence that it was important for the child to spend time with the paternal grandmother prior to her return to the UK on Sunday, 27 May 2012.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. In 1973, the father was born in the UK. He is now 39 years of age.

3. In 1977, the mother was born. She is now 34 years of age.

4. On 10 September 1995, the father entered the British public service.

5. On 19 August 1999, the father acquired the property at Town B, UK (“the B property”), subject to a mortgage which was coupled to payments on an endowment life insurance policy.

6. On 13 June 2005, the father acquired a property at Town H, UK (“the H property”), subject to a mortgage.

7. In August 2006, the mother purchased a property at Y, London, UK for £249,000 (“the Y property”).

8. On 1 December 2006, the father acquired a property at P, London, UK (“the P property”), subject to a mortgage.

9. On 10 February 2007, the mother obtained a personal loan from GE Money to finance a new kitchen for her Y property for £6,000.

10. The mother asserts that the parties first met face to face in March 2007 in the UK whilst she was there on a working holiday visa.

11. In June 2007 the parties commenced their relationship.

12. In September 2007, the parties jointly ordered and selected features and accessories for a VW motor vehicle for £32,706.

13. In October 2007, the mother listed the Y property for sale. She deposes that she did this owing to its persistent vacancy and the desire of the parties to purchase a bigger property for them both to live in.

14. In December 2007, the Y property was sold for £325,000 netting the mother total proceeds of £72,161.25.

15. In December 2007, the parties commenced cohabitation in the UK in the father’s P property. The mother disputes this and states that cohabitation commenced in August 2007 at the father’s P property.

16. In January 2008, the parties were engaged to be married.

17. In April 2008, the parties acquired the property at L, London, UK (“the L property”), in their joint names for the sum of £585,000. Stamp duty charged was £23,400 and legal costs £650. The father asserts that the parties paid for these costs from funds sourced from the mother’s pre-relationship property sale to the extent of £53,400 and a mortgage advance in the sum of £555,750 (the mother says £555,720) from an organisation known as Scottish Widows. The mother asserts she paid the stamp duty, legal costs and the deposit of £29,250 amounting to £56,495 in total.

18. In April 2008, the parties paid £13,652 jointly from their incomes to renovate the L property.

19. On 7 April 2008, the mother was made redundant by Company X. The mother received a total of £44,293.20 in redundancy payments from April 2008 to July 2008.

20. In May 2008, the father deposes that the mother ceased working.

21. In June 2008 the parties were married.

22. In July 2008, the mother became pregnant.

23. In July 2008, the parties relocated to County Z for the father’s employment in a rented home at BB Street (“the BB Street property”). The mother deposes that she had to decline favourable employment at Company AA in April 2008 as the parties had already agreed that they would relocate for the father’s employment, and also because of their desire to start a family prior to the father’s posting to South Asia in May 2009 for six months.

24. In August 2008, the parties rented out the L property and have not resided in it since.

25. On 17 September 2008, the father surrendered his endowment life insurance policy for £20,328 and paid it into a joint account with the mother.

26. On 15 October 2008, the father acquired in the joint names of the parties an investment with G Holdings for the sum of £20,028, using for its acquisition the proceeds of the surrender of his endowment life insurance policy.

27. In November 2008, the mother returned to Australia for a holiday. The mother deposes this was respite with her family and friends owing to the deterioration of the marriage and the stress the mother felt the father was placing on her and their unborn baby.

28. In December 2008, the mother deposes that the parties commenced to sleep in separate bedrooms. The parties also commenced marriage counselling at this time.

29. In January 2009, the mother was in hospital due to having medical complications with kidney stones. Soon after this the mother wrote a card and letter to the father, becoming Exhibits 27 and 29 apologising for her behaviour towards him and praising him for being a good husband.

30. On 24 February 2009, the mother moved to Australia to give birth. The mother was seven months pregnant. The father deposes that she did so against his desire. The mother deposes that the father bought her the airline ticket and drove her to the airport. The Court accepts that both positions can co-exist.

31. On 24 April 2009, the father arrived in Australia.

32. In late April 2009, the child E, was born, now aged 3.

33. On 13 May 2009, the parties separated on a final basis after an 18 month relationship.

34. On 16 May 2009, the father deposes that the mother refused to sign registration papers for the child’s birth prepared by the father, and refused to confirm to the father that the child’s birth had been registered, or provide a copy of the birth certificate. An altercation occurred at the mother’s residence and she called the police. The mother deposes that the father refused to leave her home after repeated requests to do so.

35. On 16 May 2009, the father returned to the UK, and undertook subsequent roles within the British public service until the end of November 2011.

36. During his six month posting to South Asia the father paid voluntary spousal maintenance and child support. This ceased upon his return from South Asia and he initiated a Child Support Agency Case in November 2009.

37. In October 2009, the mother returned to the UK, without the child who was left in the care of the maternal grandparents, to collect her personal belongings and to also obtain legal advice about commencing proceedings in the UK.

38. On 2 November 2009, the father filed his Initiating Application seeking both parenting and property orders in the Melbourne Registry of this Court.

39. On 7 December 2009, the mother filed a Divorce Petition in the Principal Registry of the Family Division of the High Court of England and Wales in London.

40. On 9 December 2009, the mother filed a Notice of Intention to proceed with Ancillary Relief (financial) proceedings at the Principal Registry of the

    
    

    High Court of England and Wales in London.

41. On 21 December 2009, the father filed an Application in a Case seeking interim parenting orders and an anti-suit injunction restraining the mother from pursuing her proceedings in the High Court of England and Wales.

42. On 22 December 2009, the mother filed her Response to Initiating Application seeking parenting orders and the dismissal of the property proceedings. She also sought interim relief for a change of venue to Sydney; appointment of

    
    

    Dr CC to prepare a regulation 7 report; a watchlist order; a

    
    

    non-molestation order; and a stay of the father’s property case.

43. On 22 December 2009, Orders were made by Cronin J allowing for the child to spend time with the father between 23 December 2009 and 7 January 2010 in Sydney, first for one hour, then for two hours, on most days in that period. The father was also restrained from removing the child from Sydney and a Watchlist Order was made. The father spent time with the child during this time pursuant to the Orders.

44. On 22 December 2009, the parties attended mediation which had been pre-arranged by the parties’ legal representatives.

45. On 27 December 2009, the father attended the child’s christening. The father deposes that the mother and her family sought to exclude him, and that he was assaulted and threatened by the maternal grandfather.

46. On 4 January 2010, the father deposes that the mother, unprovoked, verbally abused him in the presence of the child.

47. On 8 January 2010, the father filed a Reply seeking dismissal of the mother’s interim application and the grant of an anti-suit injunction already sought by the Application in a Case.

48. On 29 January 2010, Rose J made orders dismissing the mother’s stay application; granting an anti-suit injunction against the mother; and transferring the proceedings to the Sydney Registry by consent.

49. In February 2010, the mother listed her diamond engagement ring and diamond earrings and platinum wedding band for sale with a jewellers in Sydney.

50. On 23 February 2010, the mother filed an interim application seeking orders for payment of $1,900 per week spousal maintenance; for the sale of the G Holdings investment with the proceeds to be paid to the mother as interim property settlement; and obliging the father to pay all single experts’ fees.

51. On 29 March 2010, the father filed an application seeking his costs of his

    
    

    anti-suit injunction application. Also on this day the father filed a Response to Application in a Case filed 23 February 2010 seeking its dismissal.

52. On 1 April 2010, the mother filed an Amended Response to Initiating Application seeking financial orders.

53. On 6 April 2010, Johnston JR (as he then was) made Orders for the dismissal of the mother’s application filed on 23 February 2010.

54. On 12 April 2010, the mother commenced full-time employment at Company NN with a salary package of $113,000 plus superannuation (in total a $125,000 package), and the child commenced three days per week at G Early Learning Centre and two days and two nights per week in the care of the maternal grandparents.

55. On 17 April 2010, the mother filed a review application of the Orders made

    
    

    6 April 2010 seeking lump sum spouse maintenance of $7,920; weekly spouse maintenance at $664 per week; orders to realise the G Holdings amount and payment of the whole of that realisation to the mother by way of interim property settlement; sale of the L property and divide proceeds 75 per cent to the mother and 25 per cent to the father; restraining the father from dealing with his three UK properties; restraining the father from using rental income except to meet outgoings of properties; the father to withdraw £15,000 from his investments in NS&I PB and pay it to the mother by interim property settlement; restraining the father from terminating a lease of the P property and from occupying it; and the father to pay all joint experts’ fees.

56. On 21 April 2010, the Child and Family Meeting Memorandum was filed.

57. On 22 April 2010, Rose J dismissed the father’s application for costs.

58. On 30 April 2010, the father filed an Application in a Case seeking dismissal of the review application.

59. On 10 June 2010, the father filed a Response to Application in a Case filed

    
    

    17 April 2010 seeking the sale of the L property, and for the proceeds to be paid into a controlled monies account.

60. On 10 June 2010, Orders were made by Cohen J for the sale of the L property, with the proceeds to be paid into a controlled monies account administered by the mother’s lawyers; for the rent to be used to pay mortgages and outgoings; and for the father to account to the mother each month in relation to those matters.

61. On 1 July 2010, the father filed an interim application seeking parenting orders.

62. On 28 July 2010, the mother filed a Response to Application in a Case filed

    
    

    1 July 2010 seeking different interim parenting orders.

63. On 30 July 2010, Orders were made by Ainslie-Wallace J providing for nearly daily time for the father between 2 and 20 August 2010 for up to five hours at a time, unsupervised. The father spent time with the child during this time.

64. On 4 August 2010, Orders were made by Ainslie-Wallace J disposing of the remainder of the mother’s review application and the spouse maintenance application. She made Orders for $4,800 arrears of spouse maintenance to be paid; for $40,000 from G Holdings investment money to be paid to the mother and otherwise not deal with that money; restraining the father from dealing with his three UK properties; that the father pay the outgoings if he occupies the P property; and the spouse application was otherwise dismissed. Ainslie-Wallace J ordered that the father was to bear any costs of division of the G Holdings fund, and that the costs of such division are to be taken into account in the resolution of the property matters between the parties.  There has been so far no quantification of those costs.

65. On 10 August 2010, the parties participated in a Conciliation Conference.

66. On 21 September 2010, the father filed an Application in a Case seeking interim parenting orders.

67. On 22 October 2010, the mother filed a Response to Application in a Case filed on 21 September 2010.

68. On 25 October 2010, the parties withdrew the L property from the market after failing to secure a sale and rented it out over the Northern winter of 2010/2011.

69. On 4 November 2010, the Court made Orders for a Family Report to be prepared; for the father to spend time with the child from 20–30 December 2010 daily, unsupervised, for up to five hours; and for various communication orders. The father spent time with the child during this period.

70. Ms Q, the Family Consultant, produced the first Family Report on 24 December 2010.

71. On 18 January 2011, the father filed an affidavit setting out his efforts to sell the G Holdings investment.

72. On 7 February 2011, the father received notice that the G Holdings investment had been sold.

73. On 10 February 2011, the father’s solicitor received $64,987 being the proceeds of sale of the G Holdings investment. The funds were disbursed as to $40,000 to the mother and the balance to be invested in an interest bearing trust account.

74. On 17 March 2011, the Court made Orders for the father to spend unsupervised time with the child for up to six hours for the period 28 March to 12 April 2011. The father was also restrained from communicating directly with the mother. The father spent time with the child during this period.

75. On 15 April 2011, the Court made Orders for the appointment of single joint experts to value the parties’ property; for an updated Family Report to be prepared; and for the appointment of a single joint expert psychiatrist to assess the mental health of the parties.

76. On 15 April 2011, the father filed an Application for Divorce.

77. In April 2011, the father re-listed the L property for sale in accordance with the June 2010 Orders.

78. In June 2011, the Child Support Agency review was completed and the father was required to make an adjustment payment for underpaying his liability.

79. On 10 June 2011, the father asserts that the mother unilaterally instructed the agent to cease marketing the L property.

80. On 14 June 2011, the parties received an offer on the L property in the sum of £614,000 from a Mr TT. On 15 June 2011, the father asserts the mother unilaterally instructed the agent not to accept this offer.

81. On 20 June 2011, a Memorandum of Sale was issued from the agent for the L property. On 1 July 2011, the father signed the Contract and Transfer to Mr TT, whilst the mother failed to do so.

82. On 23 June 2011, the father filed an Application in a Case seeking enforcement of sale orders made on 10 June 2010, including the appointment of a Registrar under s 106A.

83. In July 2011, the father filed an application for Social Security Appeals Tribunal (“SSAT”) review of the Child Support Agency decision regarding his child support liabilities.

84. On 7 July 2011, the mother filed a Response to Divorce seeking dismissal of the divorce application.

85. On 12 July 2011, Mr TT withdrew his offer to purchase the L property.

86. On 14 July 2011, the mother filed a Response to Application in a Case filed

    
    

    23 June 2011, seeking its dismissal and a discharge of the sale order.

87. On 14 July 2011, Sexton FM transferred the divorce application to the Family Court of Australia.

88. On 19 July 2011, the father filed an Application in a Case seeking interim parenting orders.

89. On 20 July 2011, the father filed an Amended Application in a Case filed

    
    

    23 June 2011 seeking that the L property be transferred to him and dealt with by him in accordance with the 10 June 2010 Orders.

90. On … July 2011, the Court made Orders for the parties’ divorce. The Court also made Orders for the parenting application to be listed on 19 August 2011, and for the enforcement application to be listed on 25 July 2011 for the mother to consider if she would give an undertaking as to damages.

91. On 25 July 2011, the mother refused to give an undertaking as to damages. The enforcement application was adjourned to 28 July 2011.

92. On 27 July 2011, the father further amended his Application in a Case filed on 23 June 2011 requiring the mother to sign a form TR1.

93. On 28 July 2011, an application filed by the father for enforcement of the June 2010 Orders to sell the L property was heard. The Court made Orders for the ownership of the L property to be transferred to the father. The mother signed the transfer form in Court on this day. The Court also made Orders requiring the father to put the Orders of 10 June 2010 into effect with a minimum sale price of £599,000. The Orders of 10 June 2010 were also varied to include a deduction being a payment due to the management agent, and for the proceeds to be administered by Barkus Doolan Kelly solicitors.

94. From 29 September to 6 October 2011 the father spent time with the child in Sydney pursuant to Orders of 25 August 2011.

95. The father deposes that on 5 and 6 October 2011, when he was spending time with the child, he was followed by associates of the mother.

96. On 7 October 2011, the mother breached parenting orders by failing to make the child available to spend time with the father.

97. On 9 October 2011, Dr LL produced a report and assessment of the mental health functioning of the mother and father.

98. Ms RR produced a Family Report on 14 October 2011.

99. On 19 October 2011, the SSAT hearing was conducted by telephone. The mother did not attend the hearing due to the inability of the SSAT to facilitate separate calls for the mother and father.

100. On 2 November 2011, SSAT delivered its final determination regarding the father’s application for review.

101. On 9 November 2011, the father filed an interim parenting application.

102. On 23 November 2011, Bell J made interim parenting Orders, which were in part by consent.

103. On 3 December 2011, the father moved to live temporarily in Australia, initially in Sydney.

104. On 20 December 2011, the Child Support Agency sent a letter to the mother advising of overpayment to her of child support by the father of $3,304.08.

105. On 22 December 2011, interim parenting consent orders were entered into allowing for regular contact between the father and the child. These Orders specified for periods up until the weekend of 19-20 May 2012.

106. On 15 January 2012, the father moved to Canberra to attend a course organised by the British public service. The father intends to return to the UK in January 2013 and then move to Country U in June 2013 for two years for a foreign posting.

107. In late April 2012, the father received an offer for the L property of £625,000.

108. On 8 May 2012, the Court made Orders dismissing the mother’s application to restrain the father from selling the L property and made further directions about expert evidence.

1. On 9 May 2012, the mother was made redundant by Company NN and received a termination payment of $36,354.22. It emerged in evidence that the mother advised Company NN that she would be interested in an opportunity for redundancy. It also emerged that as part of the redundancy package the mother has access to the services of a placement agency, which she has yet to contact.

2. The matter was listed for hearing on 21 May 2012.

3. On 24 May 2012, consent orders were entered into by the parties allowing the child to spend overnight contact with the father in Sydney fortnightly on five occasions commencing on the weekend of 26-27 May 2012 up until the weekend of 21-22 July 2012.

The Issues

Parenting

1. It is not in issue with which parent the child shall reside. It is agreed that the child shall ordinarily reside with the mother. The father is employed by the British public service and is not ordinarily resident in Australia.

2. There is an issue as to whether the mother should have sole parental responsibility, or whether each parent shall have parental responsibility pursuant to s 61C of the Family Law Act 1975 (Cth) (“The Act”).

3. There is no issue as to whether the child should spend time with the father. What is in issue is the frequency and duration of such time.

4. What is also in issue is at what time the child should start spending overnight time in Canberra with the father; the mother says it should start in October, while the father and Independent Children’s Lawyer propose that this should commence in August.

5. The Court must consider how best to allow the child to develop and maintain a proper foundation of her relationship with the father given that the father will be returning overseas in January 2013 to continue his employment with the British public service.

6. At issue also is whether an injunction which is currently in place preventing the father from attending the mother’s residence or place of employment should remain in place. The father argues that such an order creates a shadow and stigma over him which is not supported by the evidence and has no foundation. The mother suggested in her submissions that in place of an injunction that the father might consider giving an undertaking to the Court that he would not attend the mother’s residence or place of employment. The father was not agreeable to this, submitting that this has the same shadow and stigma attached to it. Having regard to the contact with the father, the Court finds there is no need to continue the injunction and indeed to seek any undertaking from him.

7. Whether the orders should not include contact between the child and the father on the weekend of 1-2 September 2012, being Father’s Day, for the purposes of allowing the mother to take the child to Europe for a holiday. The Court notes that the mother admitted in evidence that this holiday was a hypothetical event at the moment as she cannot presently afford to travel to Europe.

8. Whether the mother should be permitted to relocate the child’s ordinary place of residence to anywhere in the world as long as it is within a 200 kilometre radius of an international airport, and whether only one month’s notice of such relocation should be given to the father in such circumstances.

Property

1. There is a dispute as to the date of commencement of cohabitation with the father asserting it was December 2007 and the mother asserting it was August 2007.

2. What is the property of the parties to the marriage or either of them?

3. What is a just and equitable re-distribution of that property having regard to the contributions made by each of the parties as described in s 79 of the Act?

4. Given the assets of the parties to the marriage or either of them, what, if any, is an appropriate alteration to their property interests which will do justice as between them, having regard to the matters required to be taken into account under s 75(2) of the Act?

5. Whether there should be a departure from the administrative assessment of child support payable by the father, in the context where the parties have recently been through the review process through the Child Support Agency and been to the Social Security Appeals Tribunal.

6. Whether the father should pay the mother spousal maintenance in circumstances where the father asserts that he cannot afford to pay.

The Orders sought

1. The Independent Children’s Lawyer and the father agreed on a joint Minute of Parenting Orders on the first day of the hearing. On the final day of the hearing an updated Minute of Orders, which was largely the same as the first minute, was tendered and became Exhibit 43. The orders sought are as follows:

   1.That [the child] live with the mother.

   2.That pursuant to Section 61C, the parties shall each have parental responsibility for [the child]

   3.That [the child] spend time with the father as follows:

   3.1.From 10.00am on 26 May 2012 until 12.00pm on 27 May 2012 in Sydney;

   3.2.From 10.00am on 9 June 2012 until 5.00pm on 10 June 2012 in Sydney;

   3.3.From 10.00am on 23 June 2012 until 5.00pm on 24 June 2012 in Sydney;

   3.4.From 10.00am on 7 July 2012 until 5.00pm on 8 July 2012 in Sydney;

   3.5.From 10.00am on 21 July 2012 until 5.00pm on 22 July 2012 in Sydney;

   3.6.From 10.00am on 4 August 2012 until 5.00pm on 5 August 2012 in Canberra;

   3.7.From 10.00am on 18 August 2012 until 5.00pm on 19 August 2012 in Sydney;

   3.8.From 10.00am on 1 September 2012 until 5.00pm on 2 September 2012 in Canberra;

   3.9.From 10.00am on 8 September 2012 until 5.00pm on 9 September 2012 in Sydney;

   3.10.From 10.00am on 22 September 2012 until 5.00pm on
   23 September 2012 in Canberra;

   3.11.From 10.00am on 6 October 2012 until 5.00pm on 7 October 2012 in Sydney;

   3.12.From 10.00am on 20 October 2012 until 5.00pm on 21 October 2012 in Canberra;

   3.13.From 10.00am on 27 October 2012 until 5.00pm on 28 October 2012 in Sydney;

   3.14.From 10.00am on 10 November 2012 until 5.00pm on
   11 November 2012 in Canberra;

   3.15.From 10.00am on 24 November 2012 until 5.00pm on
   25 November 2012 in Canberra;

   3.16.From 10.00am on 8 December 2012 until 5.00pm on 9 December 2012 in Sydney;

   3.17.From 10.00am on 15 December 2012 until 5.00pm on
   16 December 2012 in Canberra;

   3.18.From 10.00am on 24 December 2012 until 12.00pm on
   25 December 2012 in Sydney;

   3.19.From 10.00am on 29 December 2012 until 5.00pm on
   30 December 2012 in Sydney;

   3.20.From 1 January 2013 until 1 January 2014, on those occasions the father is in Australia for any block period of time in the following pattern with the fortnightly pattern commencing the day after the father arrives in Australia:

   Week 1

   3.20.1.From 9.00am to 3.00pm on 3 alternate days in Week 1 (for example, if the father arrives in Australia on a Monday, he shall spend time with [the child] from 9.00am until 3.00pm on Tuesday, from 9.00am until 3.00pm on Thursday and 9.00am until 3.00pm on Saturday in Week 1);

   Week 2

   3.20.2.For 2 separate overnight periods at the beginning and end of Week 2 (for example, from 10.00am on Tuesday until 5.00pm on Wednesday and from 10.00am on Saturday until 5.00pm on Sunday in the Week 2);

   3.21.From 1 January 2014 until 1 January 2015, on those occasions the father is in Australia for any block period of time in the following pattern with the fortnightly pattern to commence the day after the father arrives in Australia:

   Week 1

   3.21.1.From 9.00am to 5.00pm on 3 alternate days in Week 1 (for example, if the father arrives in Australia on a Monday, he shall spend time with [the child] from 9.00am until 5.00pm on Tuesday, from 9.00am until 5.00pm on Thursday and from 9.00am until 5.00pm on Saturday in Week 1);

   Week 2

   3.21.2.For 2 consecutive overnight periods at the beginning and end of Week 2 (for example, from 10.00am on Sunday until 5.00pm on Wednesday and from 10.00am on Friday until 5.00pm on Monday);

   3.22.From 1 January 2015 until the end of Term 1 in 2017:

   3.22.1.For 3 consecutive nights each week during the school holiday periods at the end of Terms 1, 2 and 3 in 2015;

   3.22.2.For 3 consecutive nights each week during 3 consecutive weeks of the school holiday periods at the end of Term 4 in 2015;

   3.22.3.For the first half of the school holiday periods at the end of Terms 1, 2 and 3 in 2016;

   3.22.4.For two consecutive weeks during the school holiday periods at the end of Term 4 in 2016, as agreed between the parties and failing agreement in writing not less than 28 days prior to the commencement of the holiday period, for the first two weeks in January 2017.

   3.23.From the commencement of Term 1 in 2017:

   3.23.1.For one half of all school holiday periods as agreed between the parties but failing agreeing in writing not less than 28 days prior to the commencement of each holiday period, for the first half of each school holiday period in odd numbered years and the second half of each holiday period in even numbered years.

   4.That the father provide to the mother written notification to the email addresses […] and […] no later than 8 weeks prior to any period of time the father intends to be in Australia setting out the dates and times he will spend with [the child] pursuant to Orders 3.20 to 3.23 hereof.

5.That the mother provide to the father details of any social and extracurricular activities that [the child] has scheduled during the father’s time with [the child] so that the father may take [the child] to those activities if he wishes to do so.

6.That the father’s time with [the child] until 31 July 2012 is to take place in the Sydney metropolitan area.

7.Until 31 July 2012, if at any time whilst [the child] is in the father’s care [the child] becomes distressed or unable to be settled, the father will contact [the child’s] maternal grandmother by telephone call and make arrangements for [the child] to be returned to the mother or her maternal grandparents immediately.

8.That the father shall be permitted to remove [the child] from the Commonwealth of Australia for the purposes of spending time with her as follows:

8.1.During his time with [the child] pursuant to Order 3.22.4 hereof and thereafter;

8.2.On no more than 2 occasions each school year;

8.3.The father shall travel with [the child] on all overseas flights; and

8.4.The father shall meet the costs of all airfares for [the child] until further Order.

9.That changeovers for the purposes of these Orders shall be as follows:

9.1.In the event the commencement/conclusion of time coincides with [the child’s] attendance at school or any other sporting or extracurricular activity then the time shall commence/conclude at that time and changeovers shall take place at that location;

9.2.Changeover shall otherwise take place at the entrance to the McDonalds restaurant closest to the mother’s residence;

9.3.The mother is to arrange the delivery of [the child] at the commencement of time and collection of [the child] at the conclusion of time by a third party other than [the maternal grandfather] and is to ensure that the father is advised by way of SMS text message confirmation as to the name of the person facilitating all changeovers on her behalf no later than 1 hour prior to the commencement and/or conclusion of the time.

10.That for the purpose of these Orders, holiday periods as published by the school (which includes the school’s website) that [the child] attends and does include pupil-free days falling on either side of such holiday periods.

11.That the mother do all acts and things and sign all documents necessary to facilitate [the child] having Skype contact with the father during those periods of time he is residing overseas at [T Contact Centre], or such other location (including the mother’s home or the home of [the child’s] maternal aunts or grandparents or the mother’s friends) so as to facilitate [the child’s] relationship with the father on at least one occasion each fortnight when the father is not otherwise spending time with [the child] on such dates as shall be agreed between the parties, and in default of agreement each alternate Saturday at 6.00pm Sydney time and the mother shall ensure that [the child] is available to communicate with the father for not less than 15 minutes.

12.That the father facilitate [the child] having Skype contact with the mother on no less than two occasions each week during any overseas trip that [the child] takes with the father.

13.That [the child] may communicate with each parent at such times as [the child] so wishes and the other party shall assist [the child], if necessary, to facilitate such communication by telephone, in writing, or by other electronic means including but not limited to email and if the facility exists, and the party wanting it provides it, webcam or video conference.

14.That each party notify the other, as soon as possible and in any event within 3 hours, of any serious injury or illness suffered by [the child] whilst with that party and provide the other party with the name and contact details of any medical practitioner upon whom [the child] has or is attending.

15.That each party notify the other, not more than 48 hours after any change to their address and/or landline and/or mobile telephone numbers and/or their email address and/or Skype address.

16.That the mother be and is hereby restrained from relocating [the child’s] permanent residence to a location which is greater than 200 kilometres radius of an international airport within Australia without first obtaining the father’s consent in writing. And in the event that the mother does relocate with [the child] within said radius, she shall provide the father with three (3) months written notice including details of where she intends to reside with [the child].

17.That each parent notify the other of the address and telephone number/s of the place/s where [the child] will be staying during holidays spent away from their residence of more than three days duration, not later than
48 hours prior to the commencement of any holiday period.

18.That the mother forthwith authorise any childcare centre, pre-school or school [the child] may attend to provide to the father photocopies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of [the child], and the mother shall authorise staff members at any childcare centre, pre-school and school [the child] may attend, to discuss [the child’s] progress with the father.

19.That the mother provide to the father the names, addresses and telephone numbers of any day care centre, school, doctor or other health professional and any other professional or service involved with [the child] in relation to her health, education or welfare as follows:

19.1.Prior to [the child] engaging with that person or service, unless [the child’s] engagement with the person or service occurs in circumstances of emergency;

19.2.In circumstances of emergency, within 5 working days of the emergency.

20.That the father is permitted to contact and obtain information from any day care centre, school, doctor, other health professional and any other professional or service involved with [the child] in relation to her health, education or welfare.

21.That for the purposes of communicating information between the parties the mother and father shall:

21.1.Communicate by speaking on the telephone only in situations of emergency;

21.2.Communicate by text message for the purpose of the father being advised on any delegate facilitating changeover for the mother;

21.3.Communicate by email about all other matters.

22.That both parties are restrained from:

22.1.Denigrating the other parent and/or their family in the presence or hearing of [the child] or permitting any other person to do so;

22.2.Discussing the Family Court proceedings and/or the parties’ relationship in the presence or hearing of [the child] or permitting any other person to do so.

23.That within fourteen days of the date of these Orders, each party shall do all acts and things and sign all documents necessary to allow an Australian passport to be issued for [the child] and thereafter, each party do all acts and things and sign all documents necessary to ensure that [the child’s] Australian passport is renewed before it expires.

24.That each party do all acts and things and sign all documents necessary to ensure that [the child’s] UK passport is:

24.1.Forthwith released to the father from the Melbourne Registry of the Family Court of Australia; and

24.2.Ensure that [the child’s] passport is renewed before it expires and it is noted that [the child’s] UK passport is due to expire on 11 September 2014.

25.That the mother bear all costs associated with an Australian passport being issued and renewed for [the child] and the father bear all costs associated with a UK passport being renewed for [the child].

26.That the mother shall retain [the child’s] Australian passport and the father shall retain [the child’s] UK passport and each party shall provide certified copies of [the child’s] Australian and/or UK passport to the other party if requested within 14 days of such a request being made.

27.That each party give to the other party no less than 30 days notice of their intention to take [the child] overseas and provide the other with the following no less than 14 days before [the child’s] departure from Australia:

27.1.A copy of [the child’s] tickets and travel itinerary;

27.2.Details (including phone numbers) of the places where [the child] will be staying overseas.

28.That the Australian Federal Police are requested to remove forthwith the name of the child [E] born […] April 2009 (female) from the Airport watch list and PASS alert system and the father shall be responsible for serving a sealed copy of these orders on the Australian Federal Police.

29.That the parties shall notify each other of any major long term decisions they intend to make for [the child] prior to any such decisions being made and that in the event of a dispute between the parties in relation to any major long term issues, then the parties shall attend upon a registered Family Dispute Resolution Practitioner (with the father to attend any such session by telephone or video conference if he is not in Australia) in an attempt to agree upon any long term decisions concerning the child.

1. On the third day of the trial the mother tendered her proposed Minute of Parenting Orders which became Exhibit 22. The Minute of Orders was a

   
   

   track-changed version of the Independent Children’s Lawyer’s and father’s Minute of Orders which were filed on the first day of the trial. The orders sought by the mother are as follows:

   1.That [the child] live with the mother.

   2.The mother shall have sole parental responsibility for [the child].

3.That [the child] spend time with the father as follows:

3.1.from 10.00am on 26 May 2012 until 12.00pm on 27 May 2012 in Sydney;

3.2.From 10.00am on 9 June 2012 until 12.00pm on 10 June 2012 in Sydney;

3.3.From 10.00am on 23 June 2012 until 5.00pm on 24 June 2012 in Sydney;

3.4.From 10.00am on 7 July 2012 until 5.00pm on 8 July 2012 in Sydney;

3.5.From 10.00am on 21 July 2012 until 5.00pm on 22 July 2012 in Sydney;

3.6.From 10.00am on 4 August 2012 until 5.00pm on 5 August 2012 in Sydney;

3.7.From 10.00am on 18 August 2012 until 5.00pm on 19 August 2012 in Sydney;

3.8.From 10.00am on 8 September 2012 until 5.00pm on 9 September 2012 in Sydney;

1. The father will receive an allowance for the time that he resides in Australia. The father states that the purpose of this allowance is to alleviate the costs of maintaining links with the UK while overseas and to offset the difference in salary and living costs in relation to the local currency and exchange rate.

2. The father states that he has had to purchase a motor vehicle given that his posting is in Canberra and the child resides in Sydney. The father borrowed $9,000 from a friend, Mr VV, and paid the difference with his own funds. There is a loan agreement between the father and Mr VV dated 1 December 2011.

3. The father has given details of paid legal costs in the sum of $27,256 which were paid from the sale proceeds of the VW motor vehicle and an amount of $20,230 secured against his real estate.

4. The father has also borrowed money to pay legal costs. He asserts that the terms are all equal; namely they are interest free but payable on demand on conclusion of the proceedings. He has borrowed money as follows:

   a)Mr OO personal loan of £3,000 in September 2010 to pay an outstanding MBNA Visa bill for legal fees. A loan agreement was entered into with Mr OO on 3 September 2010.

   b)Mr UU personal loan of $10,000.00 on 26 May 2011. He asserts this was paid directly to Barkus Doolan Kelly by Mr UU to pay his legal costs. A loan agreement was entered into with Mr UU on 26 May 2011.

   c)Mr QQ personal loan of £10,000 on 22 November 2011. This was transferred directly to Barkus Doolan Kelly’s Trust Account. A loan agreement was entered into with Mr QQ on 22 November 2011.

   d)Mr PP personal loan of £5,000 on 22 November 2011. This was paid directly to Barkus Doolan Kelly’s Trust Account. A loan agreement was entered into with Mr PP on 22 November 2011.

5. The father also borrowed £25,000 from Lloyds TSB by way of unsecured personal loan on 8 January 2010. He applied the funds as follows:

   a)£5,431.11 to his Platinum Visa card on 13 January 2010 to meet legal costs paid on that card.

   b)£4,487 in repayment of his Platinum visa card and towards legal costs.

   c)£15,000 in an investment of National Savings and Investments (NS&I) premium bonds. The father received £25 by way of a return on that investment.

6. The father states that the Lloyds TSB loan has now been settled and was repaid by taking out a new unsecured personal loan with Lloyds TSB for £25,000 on 13 February 2012. He deposes that the loan is fully drawn with £12,951.69 being used to settle the old loan and all remaining funds being used for legal fees.

7. In May 2010 the father redeemed his investment in the premium bonds and applied them to his legal costs.

8. It is the father’s evidence that he had made overpayments totalling £7,181.24 on two Nationwide mortgages secured against the B property. He states that he drew this money down on 11 May 2010 and paid this money to clear his AMEX credit card, which has been used to pay his then legal representatives on account of legal costs.

9. The father also states that he has borrowed an additional $70,000 from

   
   

   Mr UU to pay for the trial. He entered into a loan agreement with

   
   

   Mr UU on 6 March 2012.

10. The Court notes that the mother has had the benefit of a payment of portion of the G Holdings proceeds of $40,000, as well as the proceeds of sale of the engagement ring and earrings which were $13,795 and $5,355 respectively which were sold in March 2010.

11. It is the mother’s evidence that the proceeds of sale from the diamond engagement ring were transferred directly to the maternal grandparents’ bank account in order to repay them for monies they had extended to the mother to assist her to pay rent and meet other expenses.

12. The mother’s evidence is that she currently owes her parents approximately $106,000 for legal fees and other various living costs that they have paid on her behalf and $18,995.58 for the loan for their business leased motor vehicle from 29 February 2009 to 18 July 2010. The mother states that the amount she owes them excludes monies she has already repaid to them from the sale of her diamond engagement ring and interim property settlement of $40,000. The mother deposes that any funds she receives from the property settlement will be applied to the satisfaction of her outstanding liabilities to her previous legal representatives and counsel. She also states that any further funds received will be applied second to the satisfaction of her outstanding liabilities to her parents.

13. It is the mother’s evidence that the father assisted her in paying her GE Money loan up until 27 March 2010.

14. The mother has superannuation of $31,586 as well as financial resources in the form of UK Pension/Superannuation with Fidelity and Scottish Widows in the sum of approximately £15,906 ($24,814). It is the mother’s submission that her superannuation entitlements compared to the father’s likely entitlement is grossly disproportionate.

15. The father has an entitlement to a pension upon his retirement, which is government funded. The Court cannot know what the father’s pay grade may be by the time of his retirement, and therefore what his pension entitlement may be. Its value to the father is in a future income stream at a time probably well into the future.

16. It is the father’s evidence that he is unable to make additional voluntary contributions to the pension scheme as it is a public sector non-funded plan. He also states that his entitlements in the pension scheme are calculated with regard to his years of service within the British public service, with only his basic salary being pensionable; no special allowance or other additional income is taken into account.

17. The father’s evidence is that he does not intend to retire early from the British public service, and he is employed currently on a basis which allows him to remain until aged 55 or 60.

18. The father submits that a further adjustment under s 75(2), so as to take the notional contribution entitlement from the L property up to the amount that the mother has already received from the G Holdings funds, would be appropriate. It was submitted that the offsetting effect of the early distribution of that fund would leave the mother with no further adjusted entitlement, would see her application dismissed and each party left with the property that they have. He submits that that would leave the father with the balance of the proceeds from the sale of the L property.

19. It is the father’s submission that, on his asset pool, if you compare that approach with a global outcome, then it equates to a division on the assets and liabilities of 74 per cent to the father and 26 per cent to the mother, which accords within one percent of the global contention that was made in the father’s case outline document that was filed at the beginning of the trial. The father’s pool does not take into account liabilities of the mother as to her outstanding legal fees, or her liability to her parents.

Conclusion on section 75(2)

1. The Court has made the decision for an allowance to be made to the mother, because of the potential effect that the primary and future care of the child will have on the mother’s earning capacity into the future.

2. In a case such as this where the amounts involved are but small, rather than making a percentage adjustment, the Court must look at a cash value of a sum to adequately meet the s 75(2) elements of the case.

3. The Court is not unmindful of the continuing costs of the father with regard to his continuing contact with the child, but believes in this case an appropriate amount should be paid to the mother. The Court proposes to allow an amount of $15,000. The father will be obliged to pay to the mother that amount from his share of the assets by way of offset against liabilities as hereafter set out of the mother to the father.

Overall division of assets

1. The above determination will see the mother receive 90 per cent of the sale proceeds of the L property and 50 per cent of each of the other parties’ joint assets and the father receive 10 per cent of the sale proceeds of the L property and 50 per cent of each of the other parties’ joint assets.

2. The mother has already had the benefit of a payment in the amount of $40,000 from the G Holdings Proceeds, which was an asset that falls into the father’s assets as he contributed the whole of the funds to that investment. Accordingly, the Court agrees with the father’s submission that the Court must have regard to this and finds that the mother has a credit to offset against what would otherwise be her entitlement.

3. The mother will be required to pay the father the $40,000 that she received subject to an offset of payments required to be made by the mother to the father.

4. The parties will retain each of their assets owned pre-maritally and still in existence and those assets acquired post-separation.

5. As a cross check and reflecting upon an alteration of property interests on a global basis, and upon the net pool of assets of $434,655 the mother, by the Orders, will receive approximately 28 per cent of the parties’ assets and the father will receive approximately 72 per cent.

Just and equitable

1. The division of assets would see the mother receive $58,056 worth of nett joint assets, and the father receive $24,820 worth of joint assets.

2. The mother will also retain her assets owned pre-maritally and still in existence and those assets acquired post-separation.

3. The father will also retain his assets owned pre-maritally and still in existence and those assets acquired post-separation.

4. As stated above, the father will be required to credit to the mother $15,000 as an adjustment under section 75(2) which will be offset against the mother’s liability to the father.

5. The father will also be required to credit to the mother $13,628, representing 50 per cent of the sale proceeds of the VW motor vehicle, to be likewise offset against the mother’s liability to the father.

6. The mother will be required to repay to the father the $40,000 already received as a partial property settlement subject to the offsets referred to above.

7. In total the mother will receive $121,953 worth of nett assets and the father will receive $312,702.

8. The Court proposes to order that such amounts the father will be required to pay to the mother are to be offset against what the mother will be required to pay to the father, resulting in a balance of $11,372 to be paid by the mother to the father.

9. In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

1. I propose orders which will give effect to the following division.

2. The mother will receive:

Joint Assets	($)
·       90 per cent of estimate amount from sale proceeds of L property	37,391
·       50 per cent of SA Business Lloyds TSB a/c	797
·       Furniture/household contents	6,240
Total Assets	$44,428
·       Payment to the mother by the father representing 50 per cent of the VW sale proceeds	$13,628
Total to be received from joint assets	$58,056
Mother’s Assets
·       Barclays UK account ending …52	353
·       Westpac Choice Account	1
·       NAB Gold account	11,175
·       NAB I-saver account	2
·       Renault motor vehicle	5,000
·       NAB Shares	3,900
·       Company NN Superannuation	18,580
·       XX Superannuation	230
·       Australian Eligible Rollover Superannuation	198
·       AMP Superannuation	12,578
·       Addback: partial property settlement from G Holdings Proceeds	40,000
Total Assets to be retained	$92,017
Liabilities
·       GE Money Loan	3,120
Total Liabilities	$3,120
·       Payment to the mother by the father (adjustment under s 75(2))	$15,000
·       Repayment to father of amount paid from G Holdings Proceeds already received by the mother and which the Court has found is an entitlement of the father.	$40,000
Nett Assets	$121,953

1. The father will receive:

Joint Assets	($)
·       10 per cent of estimate amount from sale proceeds of L property	4,155
·       50 per cent of SA Business Lloyds TSB a/c	797
·       Household contents/furniture	6,240
·       Addback: Paid legal costs from sale of VW motor vehicle	27,256
Total Assets	$38,448
·       Repayment by the father to the mother 50 per cent of the VW sale proceeds	$13,628
Total to be received from Joint Assets	$24,820
Father’s Assets
·       H property	293,280
·       B property	277,680
·       P property, London	600,600
·       G Holdings proceeds	24,986
·       CBA a/c	107
·       Ford Motor Vehicle	11,500
Total Assets to be retained	$1,208,153
Liabilities
·       H property mortgage	241,802
·       B property mortgage	237,522
·       P property mortgage	465,947
Total Liabilities	$945,271
·       Payment by the father to the mother from the G Holdings proceeds	$15,000
·       Repayment by mother to father from the partial property settlement from G Holdings proceeds already received	$40,000
Net Assets (including superannuation)	$312,702

1. The mother will also retain and bear the responsibility for her post-separation liabilities being the debt to her parents for legal fees and other expenses.

2. The father will also retain and be responsible for his post-separation liabilities which include his personal loans for legal fees to Lloyds TSB, Mr OO, Mr PP, Mr QQ and Mr UU. The father will also bear the responsibility of the ALD Car Lease, and the motor vehicle loan from Mr VV.

3. The Court notes that should the father sell any of the properties held in his sole name he will bear the selling costs and any capital gains tax that arises from the sale of such properties.

Child Support Application

1. The mother seeks orders for a departure from the administrative assessment of child support.

2. It was submitted by the father the mother’s child support application should be dismissed. He submitted that the only jurisdiction the Court has in any case to determine such a matter is that pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth). In order for the Court to exercise that jurisdiction, the father submitted that the Court needs to be satisfied, among other things, of sub-section 116(1)(b)(ii) which states as follows:

   the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case.

1. The father submitted that the mother gave evidence that she has recently taken a redundancy, that she approached her employer and sought out the opportunity for her to take a redundancy, and that she has available to her as part of the redundancy package the assistance of a placement agency. It is submitted that the Court has no evidence other than the mother indicating that she is planning to seek further employment.

2. It is further submitted by the father that in a context where the parties have recently been through the review process with the Child Support Agency and been to the SSAT, that the Court would not embark upon such a process knowing that it is imminent that the mother’s position is likely to change, and in particular because of the mother’s evidence about her desire to discharge her liabilities.

3. It is the father’s evidence that after the determination made by the SSAT his account with the Child Support Agency was in credit. The father’s recent statement from the Child Support Agency contained in Annexure C to the father’s affidavit sworn 30 April 2012 indicates that his account is in credit to the amount of $3,304.08. It is his evidence that the credit on his account will be exhausted after the 7 May 2012 payment has been made and that regular payments of $820 per month will resume on 7 June 2012 in accordance with the new assessment made in accordance with the SSAT decision.

4. It is the Court’s view that the father is making his child support payments in accordance with what has been assessed by the Child Support Agency and that he is unable to afford to pay anymore. The mother’s application is therefore dismissed.

Maintenance

1. The mother seeks that the father pay by way of spousal maintenance $1,900 per week.

2. The mother submits that the Court has powers under s 80 to order a wide range of options if the Court thinks appropriate in terms of provision of a maintenance order in favour of the mother, especially given the immediate needs of the mother in her present circumstances.

3. The mother submits that the situation is quite clear; she does not have an income, she does not have much money and she is concerned about how much money she will have after paying her rent.

4. It seems clear that the mother’s capacity to earn in full-time work is greater than that of the father.

5. The father submitted that irrespective of where the Court could find the mother’s needs lying, the father does not have any reasonable capacity to contribute to her maintenance. The Court agrees with this submission.

6. The Court proposes to make the orders set forth above.

I certify that the preceding five-hundred and seventy-five (575) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 3 August 2012.

Associate: 

Date:  3 August 2012