BAUDIN & ROSE
[2012] FamCA 724
•28 August 2012
FAMILY COURT OF AUSTRALIA
BAUDIN & ROSE [2012] FamCA 724
FAMILY LAW – CHILDREN – Parenting orders – International relocation – Where father is from the United Kingdom and has lived in Australia for nine years – Where mother is from France and has lived in Australia for four years – Where mother seeks to return to France and relocate the child – Where father opposed relocation of child and sought orders that the child live with the mother in Australia and spend time with the father – Where mother suffering depression which could become far worse if she is unable to relocate back to France – Where father accepts child’s best interests met by living principally with mother – Where it is considered best interests of child are met by allowing relocation.
FAMILY LAW – PROPERTY – Where husband asserts money borrowed from his parents had to be repaid with interest – Where the Court was satisfied that money was repayable to husband’s parents – Where there was insufficient evidence satisfying the Court that interest was included – Where there was no reliable evidence as to the value of a motor vehicle – Where it is to be transferred to the husband at his asserted value – Where wife’s initial direct financial contribution substantially greater than husband’s – Where it is a short marriage that produced one child - Where net property and superannuation interests divided as to 75 per cent to the wife and 25 per cent to the husband
Family Law Act (1975) (Cth) s 60B, s 60CA, s 60CC, s 61DA, s 65AA, s 65DAA, s 65DAC, s 69ZT(1), s 75, s 76, s 79, Part VII
Cowley & Mendoza [2010] FamCA 597
Heath v Hemming [2011] FamCA 749
Preston v Preston [2011] FamCA 618
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
U v U (2002) 211CLR 238
Don Collinzo & Don Collinzo [2012] FamCA 352
APPLICANT: Ms Baudin
RESPONDENT: Mr Rose
FILE NUMBER: SYC 5135 of 2011
DATE DELIVERED: 28 August 2012
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Forrest J
HEARING DATE: 20, 21, 22 & 23 February 2012 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Campton
SOLICITOR FOR THE APPLICANT: Cameron Gillingham Boyd
COUNSEL FOR THE RESPONDENT: Mr Jackson
SOLICITOR FOR THE RESPONDENT: Greg Alfonzetti Solicitor Orders
PARENTING
(1)That all previous parenting orders are discharged.
(2)The child shall live with the mother.
(3)That the mother is permitted to relocate the residence of the child, M Rose, born … June 2009 (“the child”) to France as soon as necessary travel arrangements are put in place by the mother for that purpose after Sunday 2 September, 2012.
(4)That the mother is permitted to uplift from the Sydney registry of this Court both the child’s French and Australian passports and may keep both of those documents in her safekeeping from then on.
(5)That the name of the child be removed from the PACE Airport Watch List, in the event the child’s name is on that list, for the purpose of facilitating and ensuring the travel of the child from Australia to France with the mother, and the Australian Federal Police are requested to do all things to facilitate this order.
(6)That in the event that the father is residing permanently in France, the mother and the father shall have equal shared parental responsibility for the child in respect of all “major long-term issues” as defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”).
(7)That in the event that the father resides permanently outside of France, the mother shall have sole parental responsibility for the child in respect of all “major long-term issues” as defined in the Act, save that the mother shall, prior to making the sole ultimate decision about any such issue:
(a)Advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response from the father prior to making any such decision;
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
(8)The parents shall each have, during all such time that the child is in their respective care, sole responsibility in respect of issues that are not “major long-term issues” as defined in the Act.
(9)The child shall spend time with the father as may be agreed between the mother and the father, in addition to:-
Before the child departs Australia as permitted by paragraph 3 of these orders
(a)from after pre-school on Friday 31 August, 2012 until 2:00 pm on Sunday 2 September, 2012 and for the same time each week thereafter until such time as the mother and the child depart Australia;
In the event that the Father is living permanently in France and within sufficient proximity of the mother
(a)from after school or pre-school until 7:00 pm each Tuesday and Thursday; and
(b)from 9:00 am until 5:00 pm on Saturday for the first three weekends after the father takes up residence there; and
(c)thereafter, until the child’s fifth birthday, each second weekend during school term, from after school or pre-school on Friday until 5:00 pm on Sunday and from her fifth birthday, each second weekend during school term, from after school or pre-school on Friday until before school or pre-school on Monday; and
(d)from the first of the child’s school holidays commencing more than six weeks after the father takes up permanent residence in France, for half of all of the child’s school holidays being the first half in even numbered years and the second half in odd numbered years.
In the event that the Father is living permanently in the United Kingdom
(a)for the first occasion that the child spends time with the father after the father takes up residence there, from 9:00 am until 5:00 pm on Saturday and from 9:00 am until 5:00 pm on Sunday on the same weekend, such time together to take place in France;
(b)for the second occasion that the child spends time with the father after the father takes up residence there, from 9:00 am on the Saturday until 5:00 pm on the Sunday of the same weekend, such time to take place in France;
(c)thereafter until the child’s fifth birthday, from after school or pre-school on Friday of every third week during school term until 5:00 pm on the Sunday of the same weekend and from her fifth birthday, from after school or pre-school on Friday of every third week during school term until before school or pre-school the following Monday, such time together not restricted necessarily to France;
(d)from the first of the child’s school holidays commencing more than six weeks after the father takes up permanent residence in the UK, for half of all of the child’s school holidays being the first half in even numbered years and the second half in odd numbered years, such time together not restricted necessarily to France.
In the event that the Father is living permanently in Australia
(a)until the child’s fourth birthday, during a period of four weeks each year in France during the European Summer, such four week period to be nominated by the father giving three months written notice to the mother and in a pattern as follows during that four week period:
(i)Day one 9:00 am until 5:00 pm;
(ii)Day two 9:00 am until 5:00 pm;
(iii)Day four 9:00 am until 3:00 pm on day five;
(iv)Day six 9:00 am until 3 :00 pm on day seven;
(v)Day nine 9:00 am until 5:00 pm on day ten;
(vi)Day eleven 9:00 am until 5:00 pm on day twelve;
(vii)Day fourteen 9:00 am until 5:00 pm on day fifteen;
(viii)Day sixteen 9:00 am until 5:00 pm on day sixteen;
(ix)Day seventeen 9:00 am until 5:00 pm day nineteen;
(x)Day twenty one 9:00 am until 5:00 pm day twenty three;
(xi)Day twenty five 9:00 am until 5:00 pm day twenty eight.
(b)from the child’s fourth birthday until her sixth birthday, during a period of four weeks each year in France during the European Summer, such four week period to be nominated by the father giving three months written notice to the mother and in a pattern as follows during that four week period:
(i)Day one 9:00 am until 5:00 pm;
(ii)Day two 9:00 am until 5:00 pm;
(iii)Day four 9:00 am until 5:00 pm on day seven;
(iv)Day nine 9:00 am until 5 :00 pm on day twelve;
(v)Day fourteen 9:00 am until 5:00 pm on day twenty;
(vi)Day twenty two 9:00 am until 5:00 pm on day twenty eight;
(c)from the child’s sixth birthday, during a period of four weeks each year in Europe during the European Summer, such four week period to be nominated by the father giving three months written notice to the mother, and the child to spend that entire twenty eight day period with the father,
(d)until the child’s fourth birthday, during a period of four weeks each year in Australia during the Australian Summer, such four week period to be nominated by the father giving four months written notice to the mother and in a pattern as follows during that four week period:
(i)Day one 9:00 am until 5:00 pm;
(ii)Day two 9:00 am until 5:00 pm;
(iii)Day four 9:00 am until 3:00 pm on day five;
(iv)Day six 9:00 am until 3 :00 pm on day seven;
(v)Day nine 9:00 am until 5:00 pm on day ten;
(vi)Day eleven 9:00 am until 5:00 pm on day twelve;
(vii)Day fourteen 9:00 am until 5:00 pm on day fifteen;
(viii)Day sixteen 9:00 am until 5:00 pm on day sixteen;
(ix)Day seventeen 9:00 am until 5:00 pm day nineteen;
(x)Day twenty one 9:00 am until 5:00 pm day twenty three;
(xi)Day twenty five 9:00 am until 5:00 pm day twenty eight.
(e)from the child’s fourth birthday until her sixth birthday, during a period of four weeks each year in Australia during the Australian Summer, such four week period to be nominated by the father giving four months written notice to the mother and in a pattern as follows during that four week period:
(i)Day one 9:00 am until 5:00 pm;
(ii)Day two 9:00 am until 5:00 pm;
(iii)Day four 9:00 am until 5:00 pm on day seven;
(iv)Day nine 9:00 am until 5 :00 pm on day twelve;
(v)Day fourteen 9:00 am until 5:00 pm on day twenty;
(vi)Day twenty two 9:00 am until 5:00 pm on day twenty eight;
(f)from the child’s sixth birthday, during a period of four weeks each year in Australia during the Australian Summer, such four week period to be nominated by the father giving four months written notice to the mother, and the child to spend that entire twenty eight day period with the father.
(g)The father shall ensure that he does not nominate four weeks during the Australian Summer for the time the child spends with him pursuant to these Orders such that the child spends Christmas Eve and Christmas Day with him in Australia in consecutive years.
(h)The mother shall be responsible in all respects for getting the child to and from Australia for the time the child is to spend with the father in Australia.
(i)The father shall be responsible in all respects for getting himself to and from France for the time the child is to spend with him in France.
(j)The two four week periods referred to herein, being once per year in France and once per year in Australia, shall, as far as is possible, be arranged during the child’s French school holidays.
(10)The child shall communicate with the father at all times as may be agreed between the parties but also as follows:-
Before the child departs Australia as permitted by paragraph 3 of these orders
(a)By telephone between 5:30 pm and 6:30 pm on each day that she is not spending time with the father pursuant to these Orders, the father to make the call to the mother’s mobile phone number or landline phone number and the mother shall encourage the child to speak with the father for as long as possible during that time;
In the event that the Father is living permanently in France
(a)By telephone between 5:30 pm and 6:30 pm on each day that she is not spending time with the father pursuant to these Orders, the father to make the call to the mother’s mobile phone number or landline phone number and the mother shall encourage the child to speak with the father for as long as possible during that time; and
(b)By internet based webcam call, such as Skype, on one occasion each week, such occasion to be agreed between the parties, and on the father’s birthday, the child’s birthday and Christmas Day if the child is not otherwise spending time with the father on those days, the mother to ensure that the child is made available for such communication and is encouraged to so communicate with the father for as long as possible.
In the event that the Father is living permanently in the United Kingdom
(a)By telephone between 5:30 pm and 6:30 pm French time on one day per week, the father to make the call to the mother’s mobile phone number or landline phone number and the mother shall encourage the child to speak with the father for as long as possible during that time; and
(b)By internet based webcam call, such as Skype, on two occasions each week, such occasions to be agreed between the parties, and on the father’s birthday, the child’s birthday and Christmas Day if the child is not otherwise spending time with the father on those days, the mother to ensure that the child is made available for such communication and is encouraged to so communicate with the father for as long as possible.
In the event that the Father is living permanently in Australia
(a)By telephone between 5:30 pm and 6:30 pm French time on one day per week, should the father wish to make a phone call, the father to make the call to the mother’s mobile phone number or landline phone number and the mother shall encourage the child to speak with the father for as long as possible during that time; and
(b)By internet based webcam call, such as Skype, on two occasions each week, such occasions to be agreed between the parties, and on the father’s birthday, the child’s birthday and Christmas Day if the child is not otherwise spending time with the father on those days, the mother to ensure that the child is made available for such communication and is encouraged to so communicate with the father for as long as possible.
In any event, wherever the father is living
(a)By card, letter or parcel sent through the post by the father to the child or the child to the father at any time, and the mother shall do all she can to facilitate such communication;
(b)By email sent by the father to the child or the child to the father at any time, and the mother shall do all she can to facilitate such communication.
(11)The mother shall, no less than once per month, send to the father by post or email photographs and videos of the child depicting the child’s daily life and activities.
(12)The mother shall send to the father the address and contact details for any school or pre-school the child attends from time to time and she shall authorise the school or pre-school to discuss the child’s educational, sporting and cultural progress with the father at his election and the mother shall send the father copies of the child’s regular school or pre-school reports as and when she receives them from the school.
(13)Each parent shall keep the other parent informed as to their current residential and postal addresses, email addresses, Skype contact details, landline and mobile telephone numbers, and shall notify the other of any changes to any of those as soon as is practicable after such change is effected.
(14)Each parent shall keep the other parent informed as to any medical treatment that the child receives as soon as practicable after the child has received such treatment and shall provide details of the reasons for the receipt by the child of such treatment and each parent shall advise the other parent as to any medication that has been prescribed to be given to the child, as well as informing that other parent, where relevant, of any instructions for the administration of any such medication.
(15)To the extent that it is possible, the mother and/or the father shall take all such steps as are necessary to cause these orders to be registered with the Courts of France so that these orders are given all such legal force and effect as is possible in France or to cause orders in identical terms, to the extent that same is possible, to be made in the Courts of France.
PROPERTY
(16)That the wife retain, as against the husband, as her property absolutely, all right, title and interest in the apartment property situated at Sydney suburb W in the State of New South Wales or the net proceeds of its sale if it has already been sold.
(17)That within three calendar months of the date of these orders the wife take all steps that are necessary to cause any liability the husband may still have to the Commonwealth Bank in respect of the debt secured by mortgage over the said Sydney suburb W apartment property to be discharged should that not already have been effected, and in default, the said apartment property shall be sold.
(18)That the wife shall, prior to leaving Australia for France, transfer all right, title and interest in the Toyota Corolla motor vehicle currently in her possession to the husband and cause the said motor vehicle to be delivered to him.
(19)That the husband shall indemnify the wife and keep her indemnified against any and all liability that he and/or the wife may have to the husband’s parents or either of them.
(20)That the wife retain as hers absolutely all interest in monies standing to her credit with any bank or financial institution, her interest in a BNP life insurance policy in France, and her Host Plus and Carpimko France superannuation entitlements.
(21)That the husband retain as his absolutely all interest in monies standing to his credit with any bank or financial institution and his Host Plus superannuation entitlements.
(22)That each party shall retain as his or her own exclusive property any personal possessions they each currently retain not otherwise dealt with in these orders.
(23)That each of the parties shall forthwith take all steps that are necessary to cause the monies standing to the credit of the parties in a Commonwealth Bank MISA account to be paid out as to the first $31,614.25 to the husband and the balance to the wife.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baudin & Rose 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 BRISBANE FILE NUMBER: SYC 5135 of 2011
Ms Baudin Applicant
And
Mr Rose Respondent
REASONS FOR JUDGMENT
Introduction
1.In 2003, Mr Rose (“the father”), who was born and raised in the United Kingdom (“UK”), came to live and work in Australia. He was 25 years old at the time. He had obtained tertiary qualifications in science and had worked in that field in the UK before he came to this country. His adult brother and parents remained in the UK but his two older step-sisters, of his mother’s first marriage, were already living in Adelaide. He, however, settled in Sydney. In 2007, the father was living, as a single man, in a share household in the eastern suburbs of Sydney and working in the music industry, having obtained some qualifications in that field after he arrived in this country.
2.In 2007, Ms Baudin (“the mother”), a French woman, came to spend some time visiting Australia on a student visa. She was 28 years old at the time. She was an allied health professional and had worked in France in that capacity after completing her studies. She left her adult sister and her parents behind in the south of France where they lived. After she arrived in Sydney, she found accommodation in the same share household lived in by the father and the two of them soon commenced a relationship.
3.The mother returned to France in mid 2007 and immediately started working again as an allied health professional. The father went with the mother to Europe at that time. He went to the UK for a while to spend time with his family around the occasion of his step-sister’s wedding. His parents, by then, had left England to live in the Mediterranean, but his brother was still living in the UK. The father then travelled to France to spend some time with the mother. He stayed with her in the apartment she had rented on her return to France. In October, 2007, the couple travelled together to South Africa for a holiday centred on the wedding of a friend of the father. During that holiday, the father and the mother agreed to marry. The father returned from South Africa to Australia whilst the mother returned to France and her employment. She surrendered that employment and came back to Australia in April, 2008 and they began to live together as a couple at that time.
4.The mother found work in Sydney as an allied health professional. Soon after, they bought an apartment in Sydney suburb W, both contributing towards the cost of its purchase, as well as using money borrowed from a bank and the father’s parents. They made it their home. They married in November 2008 and their baby girl, M, was born in June 2009.
5.Sadly, their marriage did not work out the way both of them had hoped or expected. The mother always wanted them to return to live as a family in France. She believed the father wanted to do that too and that they had actually agreed to do that. Difficulties began to emerge between them and the mother’s determination for the family to move back to France to live grew stronger. Ultimately, in May 2011, unable to resolve their difficulties any more, they separated. The father moved out of their apartment, leaving the mother and their daughter in occupation of it.
6.In August, 2011, the mother made an application to this Court for orders permitting her to take their daughter with her back to France to live and for orders effecting a property division between them. The father responded, making it clear that he did not want the mother to take their daughter back to France to live. He wanted the mother and the child to remain in Australia, with the child continuing to live with her mother and spending regular and frequent time with him. They have not been able to agree on a resolution of this dispute. They also disagree as to how their property is to be divided between them. This Court is now seized of the responsibility of resolving these disagreements, according to law.
7.The couple’s dispute about their parenting of their little girl is to be resolved by parenting orders that are to be determined by application of the statutory provisions contained within Part VII of the Family Law Act 1975(Cth) (as amended) (“the Act”). As to the division of property between them, s 79 of the Act empowers the Court to make such order as it considers appropriate altering the interests of the parties to the marriage. But it enjoins the Court against making any such order unless it is satisfied that, in all the circumstances, it is just and equitable to do so. In making such an order, the Court must take into account a number of matters, including, most particularly, the contributions the parties have made in various forms during their relationship and up to the time of the trial.
8.In giving these reasons I consider it appropriate to consider firstly the parenting dispute.
How, more particularly, is the parenting dispute to be determined?
9.Although often separately described as ‘relocation’ cases, parenting disputes that arise where one parent wants to move a child some distance away from the other parent, even internationally, are nevertheless to be determined in the same way as all parenting orders cases are determined.[1]
1See the discussion by Murphy J in Cowley & Mendoza [2010] FamCA 597, the discussion by Kent J in Heath v Hemming [2011] FamCA 749 and the discussion by me in Preston v Preston [2011] FamCA 618 and all the authorities referred to in those decisions
10.Any parenting orders that this Court makes in respect of the parties and their little girl must be made with regard to the best interests of the little girl as the paramount consideration.[2] The Act expressly sets out how the Court is to determine what is in the best interests of children who are the subject of proceedings in the Court.
[2] s 60CA and s 65AA of the Act
11.In determining what is in the best interests of the child, consideration must be given to expressly listed “primary” and “additional” considerations.[3] The process of determination is a broad one. That is clear by reference to one of the expressly listed “additional” considerations, namely s 60CC(3)(m). It lists as a matter to be considered “any other fact or circumstance that the Court thinks is relevant”.
[3] s 60CC(1), (2) and (3) of the Act
12.Determination of the parenting orders must also be made in the light of the expressly listed “Objects” of Part VII of the Act and the “Principles” underlying those Objects. These Objects and Principles are set out in s 60B. It is important for the Court to remind itself of these in a case where one parent seeks to relocate a child to another country and the other parent opposes that relocation.
13.Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
14.I have previously discussed the application of these Objects and Principles in parenting cases and the relationship between them and the matters required by s60CC to be considered when determining the best interests of the children in question.[4] I have previously referred to the Full Court’s decision in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and to the principles that were there set out. I remain mindful of all that I have previously said about these matters. As Nicholson CJ, Fogarty and Lindenmayer JJ said in their joint judgment in B and B, the ultimate obligation of the Court is to apply, in a commonsense way, the individual sections of the Act so as to achieve the best interests of the children in the particular case. The actual weight to be attached to the individual components of the statutory provisions will vary, sometimes significantly, from case to case.
[4] Preston v Preston [2011] FamCA 618, at paragraphs [37] – [47]
15.Their Honours further observed that it is well accepted that in most cases meaningful contact by a child with both of their parents is important to their welfare in the short and long-term. Their Honours were also quick to acknowledge though, that there may be cases where the best interests of the child will require contact with a parent, or even both parents, to be curtailed or even terminated.
16.Clearly, with which parent a child lives, where they live and how much time they spend with the other parent are matters to be determined having regard to the evidence that is presented in the particular case, considered against the paramountcy of the best interests of the child and the Objects and Principles set out in Part VII of the Act and in accordance with the statutory pathway also provided for in that Part.
17.That said, in my view, the various statutory provisions of Part VII of the Act require the Court to:
·apply the presumption of equal shared parental responsibility (s 61DA (1))
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply( s 61DA(2))
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility (s 61DA(4))
·if the presumption applies:
·determine whether it is in the child’s best interests for there to be an order for equal time with each parent (s 65DAA(1)(a))
·make findings as to the matters set out in section 65DAA(5) which are as follows:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
·as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable (s 65 DAA (1)(b))
·if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order (s 65DAA(3))
·if neither an equal time order, nor a substantial and significant time order, is to be made, proceed to determine what orders are in a child’s best interests.
18.At various stages along that statutory pathway, the best interests of the child have to be considered. As already observed, this is done by giving weight, in appropriate amounts, to those “primary” and “additional” considerations set out in s 60CC that are relevant to the particular child in all of the factual circumstances of the case.
19.In Heath v Hemming(No 2) [2011] FamCA 749 at [87], Kent J observed that it is appropriate to undertake consideration of and make findings about each of the s 60CC “best interests” considerations, having regard to the respective proposals of each of the parties, before commencing down the pathway just set out. Then after considering, weighing and assessing the evidence adduced in the proceedings, it is appropriate for the Court to indicate to which of the matters greater significance is attached and how all of the matters balance out.
20.Relevantly, his Honour went on to observe at [101] that parenting cases in which a parent proposes a relocation:
…bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
25.I respectfully agree with those observations made by his Honour.
The parent’s respective proposals
26.The mother proposes that she and the child move to live in the south of France as soon as possible. The child is now three years old and compulsory education for children in France commences with entry to a pre-school/kindergarten equivalent facility at the age of three. The school year commences each September. The mother would like to be back in France to start the child in her compulsory schooling in September this year.
27.The mother proposes that she and the child live initially with her parents in their home whilst they settle back in. She wants to find work and find a place for the two of them to live more permanently in the same general area. She anticipates obtaining work as an allied health professional. She did some locum work for a couple of different practices during a lengthy return visit to France in the northern summer of 2010. She had previously worked in one of those practices at the time she was home in France between July 2007 and April 2008. She put into evidence letters from the owners of those two practices who referred to her in glowing terms and indicated intention to give her work again on her return.
28.The mother urges the father to move and live in France too. She knows that as a citizen of the UK in today’s Europe, he is lawfully entitled to live and work in France on a permanent basis. She considers that he could obtain work there and settle in the area where she wants to live with their daughter. She proposes that their daughter could then spend regular, frequent time with him as he would want. She observes that even if he does not want to live in France, he could easily return to live in the UK and would be far closer to France so that their daughter could still spend regular time with him without the same difficulties that present if he continues to live in Australia.
29.The mother proposes that if the father does not move to France or back to the UK, the child’s relationship with her father ought be facilitated and maintained by spending time with him during a four week visit by him to France each southern summer and during a four week visit by her to Australia each northern summer. The mother proposes the father pay for the costs of his trip to France each year and that she pay for the costs of their daughter’s trip to Australia each year. She also proposes that the father and their daughter communicate by internet based ‘Skype’ two times each week and on other special days.
30.The mother informs the Court that if she is not permitted to take the child back to France to live that she will not go back without her. She proposes, in that event, to continue to live in Sydney and for the child to spend time with her father on a regular basis, gradually increasing as she gets older until she spends each second weekend and an overnight in the other week with him as well as time during school holidays.
31.The father proposes that the mother and child remain living in Sydney. He does not contend that the child live with him but rather acknowledges that it is in her best interests to continue living principally with her mother. He does not want to move to France or back to the UK. He proposes that the child spend time with him initially on two occasions each week overnight, as well as one other evening each week, increasing to each alternate weekend and one overnight in the other week when the child is three years old (which, of course, she now is). He proposes a further increase when she starts school so that she is in his care from Friday until Tuesday one week and from Wednesday until Friday the other week and half of all school holidays.
32.During the trial, through his counsel, the father did also propose orders that he would want the Court to make in the event that the Court permitted the mother to move the child to France with her. He proposed orders across three different potential scenarios in that event. They were:
(i)if he remained living in Australia;
(ii)if he did go back to live in the UK; or
(iii)if he did go to live in France.
The Court was informed that the father, in such circumstances, would hope to be able to make any decision about where he lived against a framework of orders providing for the child to spend time with him in each eventuality.
The evidence
33.The parents both relied on extensive, detailed affidavit evidence. They were each cross examined for several hours by experienced counsel representing the other parent. In addition, the Court had the benefit of a comprehensive report prepared by a single expert, a clinical psychologist, Ms B. Her report was dated just less than a month before the trial, after interviews and observations of the parties and their child had been conducted in December, 2011. Ms B was also cross-examined at the trial.
34.In addition, the mother relied on supporting evidence from her own mother who travelled out from France to support her during the trial. The father relied on other supporting evidence also, including from one of his step-sisters who travelled from Adelaide to Sydney for the trial. Both the maternal grandmother and the father’s step-sister were cross-examined. The mother also put in an affidavit attaching a brief report from her doctor.
The section 60CC considerations
35.In her report, Ms B observed that the child appears to benefit from a close relationship with each of her parents. Ms B’s observations moved her to opine that the mother:
·Has a good understanding of the child’s developmental needs;
·Has modified her social and occupational roles in order to best accommodate the child’s needs;
·Has provided the child with structure, stability and predictability;
·Has a child-focused and developmentally appropriate manner with the child;
·Uses appropriate verbal instruction, positive reinforcement and sensitive and responsive care giving.
36.Ms Boland opined that the child’s attachment relationship with her mother is significant to her psychological and developmental health. I did not understand the father to have taken issue with any of those opinions expressed by Ms Boland and I found no cause not to accept them.
37.Ms Boland also opined that the child has a loving and warm relationship with her father. She observed the child to seek out her father’s attention and feedback and the father to be able to manage her behaviour which was challenging at the time due to the fact that she was noticeably tired and grumpy. Ms Boland observed the child to be excited in her reunion with her father, apparently enjoying her relationship with him and referencing him as a safe and central person in her life. The child was observed to be more animated and extroverted in her play style with her father than with her mother.
38.All that noted, my understanding of Ms Boland’s observations and opinions, is that the child is currently principally attached to the mother and that her interests are best served being in her mother’s care for most of the time at this stage of her development. Indeed, it is clear the parents consensually ordered their lives and family arrangements consistently with sharing such a view from the time the child was born until they separated. The case the father presented to the Court, including his proposals for the future, suggests that he still holds that view.
39.Ms Boland did not get the opportunity to observe the child with any of her extended family, such as her grandparents or aunts and uncles. Nevertheless, she stated that reports from the parents suggest that the child has significant relationships with her maternal grandparents and with her paternal aunt Rosalie.
40.I am certainly satisfied that the child would have a significant relationship with her maternal grandmother. It is not disputed that the child has spent, since her birth, significant time with her grandmother on visits to France and during her grandmother’s frequent visits to Australia. I saw the maternal grandmother give evidence and was impressed with her sensitive, caring demeanour. She and her daughter, I am satisfied, are extremely close and have a deeply loving relationship. In such circumstances, that the maternal grandmother would be a loving, doting grandmother would hardly be surprising. I have little doubt that the child has a significant relationship with her.
41.I expect the child’s relationship with her maternal grandfather, whilst, no doubt, properly described as significant to her, would not be as close as the relationship she has with her grandmother. The child has not spent the same amount of time together with her maternal grandfather as with her maternal grandmother. However, I have no cause to doubt that the relationship between the child and maternal grandfather would continue to develop positively for the child with continued regular contact.
42.As to the child’s relationship with her paternal aunt Rosalie, whilst I am satisfied that the child has been spending time with her, particularly since the separation of the parents in May last year, on occasions that the aunt and her husband have been visiting Sydney from Adelaide, evidence that is before me causes me to be concerned about the strength of the emotional bonds between the father and his step-sister. It is clear to me that their relationship has had difficulties that relate back years to their respective childhoods and intra-family matters that I do not consider necessary to discuss in detail in these reasons. Each of them has tried to deal with these issues in their own way. Apparently, they have been able to substantially reconcile these difficulties in recent times but I cannot say I am confident that their relationship is now a close and secure one. After observing the father’s step-sister being cross-examined, I was left thinking that she was trying far too hard to give evidence that assisted her brother in this case. I was left doubting the underlying strength of their relationship. I am left unsatisfied that the relationship between the child and her paternal aunt is currently as significant in the child’s life as the father contends. That is not to say that it could not develop as such in the future but that, in my view, would greatly depend on the maintenance and further improvement of the father’s current relationship with his step-sister and that is not something that I can say with any certainty I am confident of.
43.Ms Boland went on to provide her opinions as to the effect on the child of allowing her to move with her mother to France if the father did not go to live over there as well. She opined that such circumstances would effect significant changes in the child’s relationship with each of her parents.
44.She considered the child’s relationship with her mother would be likely to improve because of the expectation that the mother’s physical and mental health will improve if she is again living in France and near her family.
45.That opinion was based on the mother presenting to Ms Boland in an extremely fragile psychological state. The mother reported to her, consistent with the evidence given by her to this Court, that she had experienced significant weight loss, loss of appetite, amenorrhoea, sleep disturbance and significantly low mood in the months since separation. Ms Boland observed the mother to become tearful and distressed when discussing her current mental health. During the trial too, I observed the mother to become tearful and markedly distressed when discussing her unhappiness at the prospect of remaining in Australia.
46.The mother is reported by Ms Boland to have said that she no longer cares about her work or own self care, frequently becoming distressed in front of her own patients at work. She reports having very few friends in Australia, with one of two French women with whom she is friendly here, about to leave Sydney. She is involved in nothing outside of her work other than caring for the child. She considers her life amounts to nothing here and feels lost and completely controlled by the father. Although Ms Boland acknowledged that the mother was well groomed and had orderly and sequential thoughts, she still observed her to be visibly distraught with noticeable hand and body tremors as well as appearing to be pale, unwell and of extremely low weight. These observations were all consistent with my own observations of the mother in Court during the trial in February.
47.Ms Boland reported being told by the mother that the mother’s GP, who had also observed the mother’s distress, had referred her to a psychologist who had been counselling her and also to a psychiatrist who told her that she had depression and recommended she start an antidepressant medication. The GP’s short report that is in evidence, corroborates parts of this though it does not mention the referral to the psychologist. Ms Boland herself opined that the mother met criteria for diagnosis with depression but noted that the mother apparently was averse to taking psychotropic medication. In that regard, the mother gave evidence that she was, instead, committed to homeopathic treatment. She told Ms Boland that she thought the resolution of these proceedings would greatly assist her but also believed that the support of her family in France would be beneficial to her.
48.I was left convinced that the mother has been completely struggling with life in Australia since the breakdown of her relationship with the father. I accept that she is very close to all other members of her family, all of whom live in France. I accept that she misses them and her life in France terribly. I am satisfied that she never came to Australia with the intention of living here permanently, either the first time she came out in 2007 or when she moved here in 2008, after agreeing to marry the father. I do not consider she ever emotionally committed to living in this country long-term. I am satisfied that she believed that she and the father and their child would be moving back to France as a family to live at some time and that as her unhappiness increased, the father, who had already given her cause to believe that they would move to France to live at some time in the future, actually caused her to believe that they would move to France to live as early as this year, 2012.
49.Counsel for the mother submitted that I should find that the father actually had no intention of moving to France. He submitted that I should find that the father was merely “leading the mother on” in telling her that they would make plans to move to France in 2012, as I am satisfied he did tell her in late 2010, so as to placate her and keep her happy. With respect, I am not convinced of that.
50.I am, however, satisfied that the father had reached an understanding with the mother early in their relationship, once they had committed to each other, that they would go and live in France at some time in the future. The retention of $100,000 from the money borrowed from the bank at the time of buying the Randwick unit, I find, was part of a plan to have a deposit to buy an apartment in France. The father had started seeking out employment opportunities in France in 2010 and he actively involved the mother in those efforts. He told the mother in writing, as I have noted, in late 2010, that they would make plans to move to France in 2012. His brother also remarked in an email to him, after the separation, that he thought the couple had reached a compromise as to moving to France in March (referencing that to 2012, I am satisfied).
51.Although the father gave evidence that he could not explain where his brother got that idea from and also maintained that all he meant in the note written to the mother in late 2010 was that in 2012 they would start making plans to move to France if they could bring all necessary matters, such as his employment, together, he did not persuade me that he had not actually intended to move to France with the mother and the child. I am satisfied that he did intend to. I am satisfied that he had conveyed that intention to the mother, even as their relationship struck difficulties, genuinely believing that making such a commitment to the mother would contribute significantly to an increase in her happiness and, consequently, the stability of their marriage. I am satisfied that he has simply changed his mind about moving to France following the breakdown of their relationship.
52.Of course, it is the father’s right to change his mind about where he is to live. The father cannot be made by this Court, the mother or any other person to move to France in circumstances where the relationship that bound him to that commitment has ended. On the other hand though, it is not his unilateral right to determine that his daughter shall live and grow up in Australia now simply because he no longer wants to live in France. Where the child lives is a matter for the parents to jointly determine and, if they cannot reach an agreement in respect of that, then it is for this Court to determine as I have discussed.
53.Should the mother be permitted to take the child to France to live, and the father were to stay in this country, Ms B opines that the big risk for the child would be that the attachment relationship that she currently has with her father would undergo “significant and deleterious” change. At her age, says Ms B, the child relies on the continuity and quality of her attachment relationships. As it is, she currently spends time with her father every few days and she has not been deprived of that regular contact with him for any significant length of time in her life.
54.If the child lives in France and the father lives in Australia, Ms B gave evidence that the nature of her relationship with her father would be put at risk and the father would potentially become more peripheral to the sphere of influence in her life. She says the child is yet too young to have the language or cognitive skills to maintain a close relationship with her father without regular contact. I do not doubt any of that opinion.
55.If the mother is not permitted to take the child to live in France and she and the child stay living in Sydney, Ms B opines that the child would continue to benefit from the current close and significant attachments relationships she enjoys with each parent. Continuing cognitive and language development should see the child more easily managing separation from her mother and spending more and more time with her father. However, Ms B identified the risk with this scenario being that the mother’s mental and physical health would continue to deteriorate thus placing the child at significant risk due to the disturbance this would potentially cause to the attachment relationship she has with her mother.
56.Ms B says that if the mother is permitted to take the child to live in France and the father also moved to live in France in reasonably close proximity to the mother and the child, the child would have the advantage of being able to maintain and develop her attachment relationships with both of her parents as well as experiencing the likely improved psychological health of her mother, which would be likely to improve the capacity of the mother to parent the child. Furthermore, the child should have the benefit of a great deal more contact with maternal and paternal extended family members.
57.I accept those assessments.
58.Ms B comfortably observed that there appeared to be genuine commitment by both parents to their ongoing involvement in the child’s life and an understanding that each has an important contribution to make as the child’s parent. However, Ms B did report that the father repeatedly denigrated the mother and viewed her position as being self-motivated. She commented that he had “limited or no expressed insight” as to how remaining in Australia was affecting the mother and how this might impact upon the child. Ms B noted that the father acknowledged the mother had lost significant weight and did look very stressed but he attributed this to her poor ability to manage stress. Ms B reported that the father could not express how this might impact upon the child.
59.Ms B acknowledged that the mother’s motivation to continue to facilitate and encourage a close and continuing relationship between the child and her father, should the child be living in France and the father elsewhere, is untested. She also acknowledged that, in such circumstances, the continuation of the child’s relationship with the father would be heavily dependent upon the mother’s continued cooperation. Ms B said she could see no particular risk factors or any reasons to say the mother would be predisposed to not cooperating in this regard and she went on to express the opinion that the mother genuinely wishes for the child to have a positive relationship with the father.
60.I understood the father’s case to be presented to include the assertion that the mother’s willingness to communicate with the father and to facilitate the child’s relationship with the father was demonstrated, in fact, to be less than optimal, and that this pointed to poor prospects of optimal facilitation of the relationship between the child and the father by the mother if they were living in different countries. However, I was not persuaded by the father’s submissions in this respect. The evidence that I read and heard did not persuade me that the mother could not be found to understand the importance of the maintenance of the relationship between the child and the father or to doubt her commitment to that cause regardless of where they were living.
61.The father asserted that the mother was planning to remain in France with the child against his wishes at the end of a holiday back to that country that the couple were planning before their separation. I am not persuaded that is true. He also presented a case that the mother’s reluctance to agree to his proposals for introducing overnight stays with him to the child’s routine was evidence that would support findings that her commitment to the facilitation of the relationship was not good. In the circumstances presented, particularly considering the child’s age and her primary attachment to her mother, and the father’s proposal to initially take the child for a weekend in Adelaide as the first of such overnight stays, I do not consider the mother’s unwillingness to agree to the father’s specific proposal demonstrated a level of commitment to the facilitation of the relationship that could be criticised.
62.The father also presented a case that the mother could not be relied upon to support a positive relationship between the child and the father because she had expressed belief that the child was at some risk in the care of the father because of his inability to manage his anger. Counsel for the father drew support from Ms B for the proposition that it is difficult for a parent to support a positive relationship if he or she believes the child is seriously at risk, physically or emotionally, in the care of the other parent. Whilst I accept that the mother said she was worried that something could happen in response to the proposition from the father’s counsel that she did not think the child would be safe in the father’s care, I note there was no greater exploration of that issue. The mother had already acknowledged that the father had not hit the child or been violent with her. She had, however, asserted in the same exchange with counsel that the father does not give her any answer when she asks him questions about his care of the child such as what food he feeds the child when she is with him. I am satisfied that her answers around this point were simply reflective of a parent’s concern for their child whilst away from their care and not part of a fundamental belief that the child is in actual danger in the father’s care.
63.I do not find that the mother is not committed to the maintenance of the child’s relationship with her father.
64.On the other hand, there was evidence of some behaviour of the father in the period after separation, when these proceedings were pending in this Court, that leads me to conclude that the father’s interaction with the mother was characterised by self-focus rather than child focus or any concern for the mother’s well-being and its potential impact upon the child. The evidence satisfied me that the father was provided with the use of a motor car that belonged to his sister and her husband. This vehicle was left with the father in Sydney although the sister and her husband lived in another State. Notwithstanding the fact that he had the use of this motor car, the father still insisted that the mother provide him with the motor car that was their car when they were together (that the mother retained in her possession at separation) whenever he picked the child up and spent time with her. The mother, apparently focused on what was best for their daughter, always agreed to this. The father would go to their apartment and pick up the car and then use it whilst he had the child in his care. During this time, when the mother was by herself, she had no motor car for her own use. At the same time, the motor car that the father was using that belonged to his sister would be simply parked by the father in the mother’s neighbourhood and left standing there until his return of the child and the family car to the mother. Then he would go to the other car and drive off in it.
65.Initially, when the mother observed the father driving another car she wrote to him by email asking him about it. He replied telling her he only had the temporary use of another car and saying he would let her know if it happened again so that she did not need to make the family car available to him. He never did let her know later on when he apparently again got the day to day use of his sister’s car. He kept asking for, and getting the use of, the family car. The mother observed the other car that the father was using parked near her home on many of the occasions that she was providing the father, at his request, with the family car. Eventually, after several months, and the mother applying for an injunction granting her the exclusive use of the family car, the father agreed to change his behaviour. Under cross-examination at the trial, the father could offer no explanation for his behaviour that would allow me to consider it reasonable as opposed to vindictive.
66.This behaviour of the father, in addition to Ms B’s evidence about the father’s apparent lack of insight as to how remaining in Australia was affecting the mother, causes me to be concerned about the father’s understanding and appreciation of the impact of his behaviour and attitudes on the mother and the nature of her relationship with the child. This is further reflected, in my view, in his stated unwillingness, post-separation, to move back to Europe, and his position that the mother should just try harder to enjoy living in Australia.
67.Of course, if the mother is to return to France to live and is permitted to take the child with her and the father decides not to go to live in France or even in the UK, there will be practical difficulties and considerable expense involved in the maintenance of a relationship between the child and her father. She will have far less regular physical contact with her father and she will not have him involved in her day to day life. Nevertheless, orders can be made that provide for her to spend substantial holiday time with the father that, although not providing the same foundation for the relationship to build upon as more frequent time together, would still ensure that a relationship is maintained.
68.I am satisfied that a positive attitude towards the importance of the maintenance of the relationship on the part of the mother would be a very important part of ensuring the quality of the child’s relationship with her father is maintained in such circumstances. I am reasonably satisfied that the mother currently has such an attitude. Whether that is likely to continue will, in my view, depend a lot on how the father continues to interact and relate with the mother. In that respect, future prospects for his relationship with the child, where ever she lives, like in so many cases, rest to a significant extent in his hands as well as in the mother’s hands.
69.I am satisfied that if the father is determined to maintain a relationship with the child, even if she was permitted to live in France and he remained in Australia, that a relationship could be maintained with regular electronic communication and substantial holiday time together. Of course, as Ms B identifies, it would not be the same quality of relationship as if they are living close enough for regular, frequent time together.
70.If the child is permitted to live in France, a meaningful relationship between the father and the child could, of course, more easily be ensured and maintained if the father was also to move to France to live, or even back to the UK to live. Fortunately, for the child and the parents in this case, the father has that option available to him. Notwithstanding the language and cultural differences that he would have to deal with if he moved to France, including, importantly, in respect of obtaining suitable employment, he was previously prepared to confront those issues when his relationship with the mother was intact. I accept that confronting them would be substantially harder now that he is not in a relationship with the mother, but the capacity to still make that decision to go to France and attempt to confront those issues if the mother and the child are living there remains available to the father should he wish to do so. It is a practical option that is so often not available to the parent not wanting to agree to a child being internationally re-located in this type of case. In this regard, I am acutely aware of the need to consider, as part of the “deeper inquiry about where the best interests of the child may lie” whether such a move by the father back to Europe, available as it is to him, could be part of arrangements that would best serve the child’s interests.[5] Whilst such arrangements might not be best for the father, particularly if he was unable to obtain employment suitable to his qualifications that meets his career ambitions and plans, arrangements centred around him living in France, even working in lower paid employment than he currently enjoys here, might nevertheless still be considered optimal for the child in terms of best interests considerations.
[5] U v U (2002) CLR 238 per Hayne J at [175] and [176]
71.Having offered the opinion that the child’s relationship with her mother would be best facilitated if they were both able to move to France, Ms B went on to say that if they remain living in Sydney the mother would need to receive ongoing social and psychological support focused on improving her current state of mental health for her relationship with her child to be optimally maintained. She opined that if the mother is not permitted to take the child to live in France that her mental health would remain poor and might possibly deteriorate to the point where she might require hospitalisation at some point.
72.I understood Counsel for the father to make the submission, effectively, that I should not accept these opinions expressed by Ms. B as she was not a psychiatrist. Pursuant to s 69ZT(1) of the Act, certain provisions of the Evidence Act 1995, including the exception to the rule against allowing opinion evidence to be adduced that is provided for in s 79 of that statute in respect of opinions based on specialised knowledge, do not apply to these proceedings in so far as they are child-related proceedings under Part VII of the Act. I am entitled to give such weight as I think fit to evidence admitted as a consequence. I am, in the circumstances, having regard to the evidence of Ms B’s qualifications and experience and my observations of her in the witness box under cross-examination by experienced counsel, satisfied that Ms. B does indeed, in any event, have specialised knowledge based on her training, study and experience and that her opinions were wholly or substantially based on that knowledge. I have no difficulty accepting them into evidence and giving them substantial weight in this case, even though Ms B is not a psychiatrist.
73.Ms B went on, when asked further questions in cross-examination, to opine that treatment with anti-depressant medication and also cognitive behavioural therapy could possibly lead to improvements in the mother’s health. She also suggested that the support of a nutritionist might assist the mother in respect of her weight loss and that medication to restore her sleep-wake cycle to normal patterns might also help. Ms B also mentioned that a more socially outgoing approach by the mother might assist.
74.However, having heard that, I am particularly concerned, on the evidence, that the mother would not adhere to prescribed regimes of medication for depression and sleep regulation (on the basis of beliefs about medication that I consider she genuinely, and not unreasonably, holds) and also that she does not have the demonstrated capacity to substantially improve her social contacts and activities in any event. If that is correct, as I consider it likely to be, there is a very real prospect that if the mother stays in Sydney with the child that her health might deteriorate further and she might need hospitalisation. That would not be conducive to the maintenance of an optimal relationship between the child and her mother. The child is primarily attached to her mother and is principally dependent upon her for her day to day care. Ms B said that the mother’s ability to meet the child’s emotional, physical and intellectual needs under these circumstances would be severely compromised, placing the child herself then at risk of increased stress, anxiety and mental health disorder herself. I am quite sure that is correct.
75.There has been some family violence between the parents in the past. Although each parent gives different accounts as to its nature, they both acknowledge it has occurred between them. One incident, not in dispute between the parties, involved the couple arguing late one night about the father’s use of the bath and the mother’s perception that he had not cleaned it after its use. The argument ended with the father placing his hands around the mother’s throat and demanding her silence. He attributed that conduct to being totally exhausted and frustrated and, whilst acknowledging it happened and accepting responsibility for it, seemed relatively unprepared to accept that it should never have happened no matter what his emotional state at the time. The stress in their relationship, exemplified by that incident, was so much harder for the mother to endure because of the absence of family and any significant friendship network in Sydney. That is not likely to be any different if the mother remains in Sydney as a result of an order that restrained her from taking the child to live in France.
76.I am concerned that there is likely to be little change to the dynamics of the couple’s relationship if the mother is not permitted to move with the child to France and that exposure to further conflict between the parents could become a reality for this little girl if she and her mother remain living in Sydney. Such conflict would, in my view, increase the prospect of the mother’s state of health deteriorating even further.
How do all these matters balance out?
77.I conclude that the most significant issues to consider, ultimately, in determining this matter are the risk of the mother’s continuing or deteriorating mental health if she was to remain living in Australia and the impact that could have on the child’s welfare on the one hand and the risk to the child of losing a close, meaningful relationship with her father on the other hand if she is permitted to be taken to France to live and if the father does not move back to Europe to live in France or even the UK.
78.Ms. B expressed the opinion that because the child is a still very young, the risks to her if her mother’s mental health does not improve, or actually deteriorates further, are significant and “could affect her immediate and long-term psychological health and stability.” I am, as I have observed, quite satisfied that there is a real prospect of the mother’s health not improving, or actually deteriorating further, if she stays in Australia. Therefore, I am satisfied that the child would likely be exposed to a level of risk to her emotional well-being high enough to be considered unacceptable in that event.
79.On the other hand, there is the risk of the child losing her relationship with her father if she goes to live in France with her mother and does not spend frequent, ongoing time with her father. Ms B says the child’s age and cognitive capacity are such that it will be difficult to maintain a meaningful relationship over a long distance, even if spending periods of time with her father during school holidays. However, I am satisfied that there are a number of matters that do significantly ameliorate the seriousness of this risk. Firstly, the father has the ability to move to France where he could live and work, allowing him to maintain a close relationship with the child through frequent, regular time spent together. Whether he does that or not is his decision alone. I do not consider it unreasonable to expect that he might make the move.
80.Whilst I am, on the evidence, able to accept that it is not his preferred position, I am not able to find that he will not make that move given his current relationship with the child and his demonstrated commitment to her. Alternatively, if he does not move to France he could readily move back to England to live and work and still be much closer to the child in France, thus making it possible to still have more frequent, regular time with the child than would likely be possible if he continued to live in Australia. Again, that is entirely the father’s decision alone. His parents live in the Mediterranean. His brother lives in England. He grew up and was educated in England. He has lived and worked there before as a young adult. I cannot find that it is unreasonable to expect that he might move back to England. I am not convinced that he will not do so if the child is allowed to be taken to France by her mother to live there.
81.Finally, even in the event the father chooses not to move back to Europe but to remain living in Sydney, I am satisfied that with sufficient commitment on the father’s part to the maintenance of a relationship with the child and the active, willing support of the mother and her extended family, a meaningful relationship between the father and the child could be achieved and maintained, albeit not one of the same nature as if they lived near each other.
82.A balancing of these most significant competing considerations leads me, ultimately, to the conclusion that it is in the child’s best interests for her mother to be permitted to take the child with her and to relocate back to France to live in close proximity to her immediate and extended family and wider network of friends. I am convinced the mother will benefit enormously from such a move. That will, I am satisfied, provide the child with optimal parenting from her principal carer, upon whom she is so clearly dependent for her own physical and emotional wellbeing at this stage of her life. Those same circumstances still offer her the potential for regular, frequent time with her father, if he chooses to make decisions that are open to him to make that a reality. Even if he does not decide to follow the mother and child to France or to move to the UK so as to facilitate more regular, frequent time with the child, I expect that the mother and the father will determine to act in a child-focused manner in the future and that the child will be able to maintain a relationship with the father that is meaningful for them both.
83.I propose to make orders that permit the mother to take the child to live with her in France as soon as she can make those arrangements after this weekend. I will make orders providing for the child to spend time and communicate with the father should he be living in France, or in the UK or in Australia. The orders will provide for the reality of the fact that the child is still young and has not spent many lengthy periods of time away from the mother to this point in time. The orders will provide for a gradual increase, initially, in respect of the time the child spends with her father but will nevertheless strike a compromise between the speeds at which each parent proposes for such time to increase, that, in my view, meets her best interests in these circumstances.
Parental Responsibility
84.Having regard to my finding that there was family violence between the two parents, I am not bound to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. I conclude, given that I am going to permit the mother to take the child with her to live in France, that an equal shared parental responsibility order, particularly having regard to the effect of such an order created by s65DAC of the Act, is not in the best interests of the child unless the father is also living in France. The statutory requirement for genuine consultation and genuine effort to come to joint decisions in respect of decisions about major long-term issues in relation to the child will create what I consider could be insurmountable problems if the parents are living in different countries. In my view, the mother needs to have sole parental responsibility in such circumstances. That said, I nevertheless consider it in the child’s best interests for the father to be consulted by the mother as to his views in respect of such decisions and for consideration to be given by the mother to any such views of the father before she makes such decisions. My orders will provide for that where the parents are not both living in France.
Other Parenting Matters
85.When a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, as the orders I will make will, subject to the father also living in France, the Court must consider whether the child spending equal time with each of the parents is in the child’s best interests and whether it is reasonably practicable (s65DAA(1)). I am not satisfied, having regard to all of the matters that I have already discussed, that even if the father lives in France it is in this child’s best interests and I am not in any position to consider whether it would be reasonably practicable, as there is currently no evidence of where the father might live if he moves to France. I cannot order that the child spends equal time with each of her parents.
86.My orders will provide for the child to spend substantial and significant time (as that term is defined in s65DAA(3) of the Act) with the father if he is also living in France. I do consider that in those circumstances that would be in her best interests but, of course, the orders I will make providing for that are made based on a presumption that the father will be living within sufficient proximity of mother and child, if he moves to France, for such orders to be reasonably practicable.
87.I will make orders for the child to communicate with the father by telephone, webcam, email, and ordinary post that I consider are in her best interests as they will enable the father to communicate with her very frequently and regularly.
88.I will also make orders requiring the mother to send the father photographs and school reports, provide him with information relevant to the child and keep him informed as to schooling. I will make orders that require the parties to keep each other informed as to their addresses and contact details. All of these are important aspects of the facilitation and maintenance of the relationship between the child and her father.
89.Whilst there was absolutely no evidence adduced as to French law and the capacity for the parties to register these orders with a French court or to have orders in the same terms made in a French court that will have legal force and effect as between the parties, I consider it in the best interests of the child to include in my orders a requirement for the mother and/or the father to take steps to register these orders with the relevant French Court to give as much legal effect to these orders as is available.
90.In the absence of any expert evidence, the utility of such an order is not entirely clear to me, although I do observe that Australia, France and the UK are signatories to the Hague Convention of 19 October, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. I understand that Convention to provide a right to both parents to apply in France for the order of this Court to be declared enforceable in France or registered for the purpose of enforcement in France. Once the order has been declared enforceable or registered for enforcement in France, enforcement should take place in France in accordance with its law and to the extent provided by such law, taking into consideration the best interests of the child.[6] This being the case, the father can have some confidence that he can take steps in France (whether he is living in France, the UK or Australia) to enforce the provisions of the orders I will make that provide for the child to spend time with him, should the mother’s expressed commitment to compliance and facilitation of the relationship between the child and the father wain in the future.
[6]See the Revised draft Practical Handbook on the operation of the 1996 Hague Protection of Children Convention (Prel. Doc. No 4 of May 2011) Paragraph 10.12 on page 67 to be found at
91.I shall now turn to the determination of the property division between the parties.
How, more particularly, is the property division to be determined?
92.It is well settled that the generally preferred approach to the determination of just and equitable orders adjusting property interests between parties is by way of a four-step process. In this case, I find no reason to deviate from that four-step process, particularly given that the parties themselves accept it is appropriate.
93.Briefly described that four-step process is as follows. Firstly, the pool of property of the parties or either of them is to be determined and the values to be ascribed to the property and the liabilities that are included in that pool are to be fixed with a view to determining the net value of all of that property after deducting the amount of the liabilities. Secondly, consideration is to be given to the contributions of the parties across all spheres of the marriage, as required by s.79(4)(a) to (c) of the Act, and a notional percentage division arrived at having regard to those contributions. Thirdly, consideration is to be given to the matters set out in s.79(4)(d) to (g) of the Act, including all of those matters referred to in s.75(2), so far as they are relevant, to determine whether justice and equity requires adjustment to the notional percentage division of the net pool arrived at after the second step. Fourthly, orders that are just and equitable in all the circumstances of the case are to be fashioned having regard, although not in any rigid sense, to the positions arrived at upon the first three steps.
Step 1 – Determining the Pool of Divisible Property
94.The parties agree that the following property should be included in the pool for division at the stated values.
The W apartment $600,000
The Commonwealth Bank MISA account $75,168
Wife’s various bank accounts $1,246Husband’s various bank accounts $17,743
Funds in husband’s solicitors’ trust account $50,000
Add back of wife’s paid legal expenses $24,749
Add back of husband’s paid legal expenses $18,918
Sub-total $787,824
95.They agree that the Toyota Corolla motor vehicle in the possession of the wife should be included but there is no agreement as to the value it should be included at. The wife asserts it should be ascribed a value of $5,600 and the husband asserts that it should be $8,000.
96.In a recent decision[7] I observed:
This Court is constantly confronted by litigants who, when they cannot reach agreement as to the value of motor cars or furniture and personal chattels, simply resort to putting their own opinion evidence as to value of those items, or reference to “Redbook” valuations, before the Court. In my view, at least, that does not assist the Court at all. Opinion evidence from properly qualified persons that falls within the s 79 (Evidence Act 1995) exception to the provision of s 76 of the same Act is readily and cost effectively obtained in respect of motor cars and furniture and personal chattels. It is a matter of constant disappointment and frustration that it is not.
[7] Don Collinzo & Don Collinzo [2012] FamCA 352 at paragraph 63
97.In this matter, neither the husband nor the wife give any evidence as to the basis of the value they each ascribe to the motor car. I have no evidence that allows me to determine the value of the car. In such circumstances, an order for the sale of the car might be expected. Given that my orders in the parenting dispute will permit the wife to leave Australia as soon as she can arrange after Sunday 2 September, 2012, and the motor car is in the wife’s possession, rather than ordering its sale, I will order that the ownership and possession of the car be transferred to the husband and the value I will ascribe to it will be the sum of $5,600, which is the value the wife attributed to it. Given the husband asserted the car was worth $8,000 and he was prepared to let the wife keep it, I do not consider that the husband is prejudiced by this course. Any disadvantage to either party caused by this course is the product of the failure of the parties to agree upon the value or to adduce expert valuation evidence.
98.The parties agree that the liability to the Commonwealth Bank to be included in the pool in respect of the mortgage secured over the W apartment is $297,318.
99.The parties also have superannuation interests. The husband has a superannuation interest with a value $26,788 ascribed to it and the wife has two superannuation interests of her with values of $7,532 and $2,249 respectively ascribed to them. She also has a life insurance “account” in France with an estimated $61,000 in it that is asserted to be a financial resource of the wife that she cannot access. It was not submitted for the husband that I should not accept that as correct. I do accept it.
100.There was an issue in respect of the determination of the pool upon which the parties could not agree. It was whether or not there is money owing to the husband’s parents by the husband and, if so, the exact amount of any such debt.
101.The trial began with the husband asserting that he owed his parents $30,111. It ended with him asserting that the amount was actually $25,111 and the husband submitting that it should be taken into account as a liability in the determination of the net pool of divisible property. I understood the wife’s position to be, rather, that, if I found that an amount of money was sourced from the husband’s parents during the course of the marriage then it should be characterised as money gifted to the parties and considered as part of the contributions consideration process at the second step of the four-step process.
102.The husband’s affidavit evidence is that he first obtained a loan from his father in June, 2008 at the time the couple was purchasing the W apartment. He deposes to having reached an agreement with his father to borrow money, repayable on demand at an interest rate of 4 per cent. The evidence is that his father then transferred an amount in English pounds that exchanged into $18,391 Australian dollars. There is documentary evidence that corroborates that fact. I accept that it happened.
103.The husband’s affidavit evidence goes on to detail obtaining a further $5,000 from his father in late November, 2008. He deposes to a conversation with his father in which it was agreed the money would be borrowed on the same terms as the earlier amount, namely repayable on demand and at 4 per cent interest. He attaches copies of bank statements to his affidavit that, he says, evidence the transaction. His evidence is that he withdrew money from the ING account he styled the ‘MA account’ (that was his mother’s money), deposited it into his Bendigo account ant then transferred it to the home loan account. He says this evidences the borrowings from his parents.
104.Annexure AC to his affidavit of evidence in chief is a copy of a statement on a Bendigo Bank account in the husband’s name. Relevantly, I find, it evidences a deposit of $8,000 into the account on 27 November, 2008 from an account that bears numbers that look like it could be the MA account. It then shows a withdrawal of $5,000 that is styled “cash – Mum& Dad”. It then shows another withdrawal of $5,000 that appears to be a transfer to the CBA MISA home loan account. Annexure AF to his same affidavit is a CBA MISA home loan statement that shows a deposit on the same day of $5,000 into the home loan. These transactions displayed on Annexures AC and AF do not, in my mind, clearly corroborate the husband’s oral evidence. There was apparently $8,000 transferred out of the MA account and two amounts of $5,000 withdrawn from the Bendigo account with only $5,000 being deposited to the home loan. The husband’s parents were in Sydney at that time for the parties’ wedding that occurred only a few days before. I cannot be satisfied that the $5,000 withdrawal styled “Cash – Mum& Dad” was not actually paid over to them for their use whilst in Sydney or that it was not gifted to the parties as a wedding gift as the wife asserts the husband told her at the time. The documentary evidence is as confusing as it is corroborative of the affidavit evidence of the husband on this exact point.
105.His affidavit evidence then goes on further to detail obtaining a further sum of $4,935 from his mother in February 2009 by the husband himself drawing that amount from an account held for his mother in Australia and depositing it against the parties’ debt secured by mortgage over the W unit. The husband attaches to his affidavit an email he sent to his mother at the time confirming that he was borrowing that money on the same terms, namely to be repaid on demand and at 4 per cent interest.
106.The husband then gives some evidence in his affidavit that caused some difficulties in understanding his position. He deposed to having calculated that he owed his father $24,650 in October 2009 having already repaid 300 English pounds to his father on his father’s birthday. He attached an email that he sent to his father in October 2009 to that effect. He deposed to having calculated the sum of $24,650 at the time “by adding interest at 4% per annum on the original advances of $18,391 and $5,000.” He clearly failed to mention the sum of $4,935 that he says he borrowed from his mother in February 2009.
107.Admitted into evidence at the trial as exhibit 8 was paragraph 56 of an affidavit of the husband filed on 5 October 2011 for the purposes of earlier proceedings in this matter. In that affidavit, the husband deposed to his parents loaning him and the wife the sum of $26,484 after they purchased the W property. That evidence adds to the confusion.
108.In the husband’s Financial Statement filed 2 February 2012, he deposed to jointly owing his parents, with the wife, the sum of $37,111.49 and he particularised the amount by reference to the original $18,391, the $5,000 in November 2008, the $4,935 in February 2009 and a further $10,000 borrowed post-separation of which he had repaid $5,000. That evidence adds further to the confusion.
109.During cross-examination of the father, counsel for the mother tendered into evidence a document that became exhibit 9. It shows bank transactions between various accounts of the husband and wife. The husband accepted that it showed he had transferred $5,300 from the parties’ Commonwealth Bank MISA account in February 2011 to another of their accounts and had withdrawn $5,000 at that time and repaid it to his parents.
110.At the end of the trial, during his oral submissions, counsel for the husband made a concession that the husband was only then maintaining that the sum of $25,111 remained owing to his parents. That was a welcome concession. Counsel conceded that the sum of $5,000 said to be borrowed in November 2008 should be disregarded, presumably as having been repaid in February 2011. Counsel still pressed for characterisation of the two amounts of $18,391 and $4,935 as loans and submitted that the amount of $25,111 should be used in the calculation of the pool.
111.I am satisfied that the two amounts of $18,391 and $4,935 were sourced from the husband’s parents during the marriage. I am also satisfied that they were advanced on the basis that they would be repaid and that they are properly characterised as loans that are repayable for the purposes of determining the net pool of divisible property. The difficulty with the submission that the sum of $25,111 should be used is that the two amounts loaned total $23,326. The evidence before me does not enable me to be satisfied that an additional amount of $1,785 is actually owed as interest.
112.The evidence presented by the husband was confusing. There was only a very basic attempt, in his Financial Statement, at setting out how interest might be calculated. It is unclear exactly how much, apart from the $5,000, might have already been repaid, as there was mention of 300 English pounds of being repaid and another reference to $300 instead of English pounds. There is also reference in the husband’s Financial Statement to $100 having been repaid to the husband’s mother.
113.In the circumstances, I will treat any amounts that have been repaid in those smaller amounts as representing interest payments. I will use the total of $23,326 as the debt that is owed by the husband to his parents and that figure will go in the pool. I am satisfied that the arrangement with respect to the record keeping surrounding the payment and the calculation of interest that might be owed appears to be so flexible that it is safe to consider that there may in fact be no demand for any such interest payment. I will not treat it as owing for the purposes of determining the divisible pool of property.
114.Accordingly, I determine that the net pool of property and superannuation interests available for division is as follows:
Sub-total $787,824
Plus
The Toyota Corolla motor vehicle $5,600
Less CBA mortgage debt $297,318
Less Husband’s debt to his parents $23,326
Plus
Husband’s superannuation interest $26,788
Wife’s superannuation interest $7,532
Wife’s second superannuation interest $2,249
Total $509,349
Step 2 – Assessing the Contributions
115.The wife’s uncontested evidence is that she had 150,000 Euros in bank accounts in France when she and the husband started living together. When they purchased the W apartment 135,067 Euros were transferred by her to Australia and converted into $231,481 which she directly contributed to the purchase of the apartment. Most of the balance was contributed by the wife to the parties’ needs on an intermittent basis during the earlier part of their marriage. There remains a small residual balance in those accounts. She also had a small amount of superannuation in France, said to have been worth about $2,000. I accept such evidence of the wife.
116.The husband’s evidence is that at the same time he had the equivalent of $27,000 in a bank account in England as well as approximately $52,000 in a bank account in Australia. He had a motor vehicle that he says was worth $3,500 that was traded on the Toyota Corolla during the marriage. He also had some superannuation in Australia, said to have been worth about $4,600. I accept such evidence of the husband.
117.When the parties purchased the W apartment, they used $231,481 from the wife’s French accounts, $130,885 from the husband’s ING account and $300,000 borrowed from the Commonwealth Bank. After paying the purchase price and costs associated with the purchase they were able to put $100,000 of that money into the MISA interest offset account that they maintained and still have funds in.
118.Of the $130,885 that came from the husband’s ING account, $77,000 was sourced from the funds he had in banks at the commencement of cohabitation, $18,391 was borrowed from his father and the balance of $35,493 was the amount that the parties had accumulated from the commencement of their relationship by savings from income earned in employment.
119.Accordingly, the wife contributed $231,481 directly to the total of $662,365 referred to from her pre-cohabitation assets. That equates to 35 per cent of that amount. She contributed jointly to the amount of $35,493 that went in, as well as to the $18,392 borrowed from the husband’s father (as it is characterised as a liability that reduces the pool of divisible property).
120.The husband contributed $77,000 directly from his pre-cohabitation assets. That equates to approximately 11.6 per cent of the total amount contributed. He contributed jointly to the amount of $35,493, as well as to the $18,392 that was borrowed from his father. The fact that I am treating that advance as an interest free loan, effectively, causes me to consider that its interest free nature amounts to some additional contribution from the husband’s family that I will regard as contribution on the husband’s behalf.
121.Of course, the borrowings from the Commonwealth Bank were also jointly contributed by the parties.
122.During the course of the relationship, the husband continued to work in employment, earning income that he contributed to the family’s needs. At the same time the wife also worked in employment at various times throughout the relationship, working it around the care she was principally providing to their child after she was born. The income she earned in employment was also contributed to the family’s needs. Both parties, I find, contributed to the best of their abilities around their home.
123.I do not understand either the husband or the wife to have asserted that their contributions across all spheres of their short relationship and up to the trial of the matter, apart from the direct financial contributions they made from their pre-cohabitation assets, should be assessed as being other than equal. That is how I would assess them.
124.Of course, the assessment of the parties’ contributions and the conversion of that assessment to a notional percentage division is not a strictly mathematical or accounting exercise. The divergent nature of the various contributions being assessed prevents it from being so. However, in this case, where other contributions are assessed as equal, there is some utility in considering the relative percentages of the direct contributions of the parties to the acquisition of their apartment from their pre-cohabitation assets. That said, I do not overlook the fact that the husband brought in superannuation interests worth $4,600 and the wife brought in approximately $2,000 worth of superannuation interests. I also have to give some weight to the motor vehicle the husband brought in, the contribution by his parents of the loans that I have treated as interest free, and the additional funds the wife contributed from her French bank accounts, which on the same conversion rate as applied to the money she transferred to Australia and contributed to the purchase of the apartment, was approximately $26,000.
125.In his concluding address, Counsel for the husband submitted that if I characterised the money advanced by his parents as a loan that it would be appropriate to notionally ascribe a percentage division of the net divisible pool of property on account of the parties’ contributions as to 65 per cent to the wife and 35 per cent to the husband. That represents, I am satisfied, an appropriate assessment in this case.
Step 3 – Determining Any Adjustment
126.The wife is 33 years old. Although she could not be described as in good health at the time of the trial, I have every expectation that her health will improve when she returns to live in France in the vicinity of her supportive family. I expect she will obtain employment as an allied health professional in France that she will be able to engage in around her parenting and that she will earn a modest income in doing so.
127.She will have the care of the child, which will involve her taking up the principal responsibility for providing physical care and financial support of the child for the remainder of her childhood.
128.Should the 33 year old husband, who is in good health, move to France, I accept that he is not likely to be readily able to obtain employment that provides him with the same income that he earns here or could expect to earn in the UK. He is also more likely to be involved to a far greater extent in the child’s practical and financial support.
129.Should the husband, stay in Australia, I expect he will be able to continue earning an income commensurate to that which he currently earns, which is around $93,000 gross per annum. He will have a lesser role in the child’s life if he does, but I do expect he will continue to provide financial assistance to the wife by way of child support as is his obligation.
130.The husband has made it clear that he does not want to move to France. I have found that it would not be unreasonable to expect that he will, given the orders that I will be making that permit the mother to take the child to live there. However, I cannot find that he actually will move there. Neither can I find that he will not. I consider I must bear both of these potential outcomes in mind when considering the level of any adjustment required in determining a just and equitable property division between the parties having regard to the matters set out in s75(2).
131.I have determined that the net divisible pool of property is valued at $509,349. 1 per cent of that is $5,093. I have to be mindful of what any percentage adjustment translates to in real dollars. 5 per cent of the net pool is $25,465. 10 per cent is $50,930. Counsel for the husband submitted that any adjustment in the division arrived at this step should be limited to 5 per cent. Counsel for the wife submitted the adjustment should be 10 per cent.
132.I do not consider that an adjustment of only $25,465 in favour of the wife would effect a just and equitable outcome having regard to the fact that she will be principally caring for the parties’ child for around another fifteen years and that her own earning capacity during those years will probably be significantly affected as a consequence. I am satisfied that the husband’s earning capacity, even if he moves to France, is likely to be much higher than the wife’s during the balance of their child’s minority.
133.I am of the view that a 10 per cent adjustment at this step, having regard to the matters set out in s 79(4)(d) to (g) of the Act, in particular, through s 79(4)(e), the matters that are set out in s 75(2), is required to arrive at property division orders that are just and equitable.
134.This leads me to a conclusion that orders that achieve a 75/25 division of the net pool of divisible property will be just and equitable.
Step 4 – Determining the Orders
135.At the end of the trial, on 23 February, 2012, I was asked by the parties to make an order by consent that, by way of partial property settlement, the husband transfer all of his interest in the W apartment to the wife and that the wife indemnify the husband in respect of the liability to the Commonwealth Bank secured by mortgage over the apartment. I consequently made that order.
136.Seventy five per cent of $509,349 is $382,011.75. Twenty five per cent is $127,337.25.The husband retains $17,743 in his bank accounts, $50,000 in his solicitor’s trust account, the notional add back of $18,918 for legal fees paid and will get the Toyota Corolla motor vehicle at $5,600. He will keep his superannuation interest at $26,788 and be solely responsible for the debt to his parents of $23,326. That is a net total of $95,723. He is therefore entitled to receive the further sum of $31,614.25 from the money in the MISA account with the wife to retain the balance that I calculate to be $43,553.75.
137.The wife retains the W apartment at $600,000 and its secured debt of $297,318. She retains that $43,553.75 from the MISA account, $1,246 in her bank accounts, the notional add back of $24,749 for legal fees paid and two superannuation interests of $7,532 and $2,249. That equals $382,011.75.
138.The orders I will make will reflect this determination. I am satisfied that they are, in all the circumstances, just and equitable.
I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 August 2012.
Associate:
Date: 28 August 2012
Key Legal Topics
Areas of Law
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Family Law
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