Baumann & Tanev (No 2)
[2023] FedCFamC1F 81
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baumann & Tanev (No 2) [2023] FedCFamC1F 81
File number(s): MLC 11841 of 2021 Judgment of: MCNAB J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – PARENTING AND PROPERTY – RELOCATION – where the mother seeks to relocate to Country B with the children – where the children are very young – where the mother is the primary carer – Where the mother is permitted to relocate at the end of the year with the children – Where the father will have substantial time until the relocation – Where the mother and children will visit Australia once a year and spend time with the father Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75(2), 77, 79 Cases cited: AMS v AIF (1999) 199 CLR 160
Cape & Cape (2013) FLC 93-549
Curzon &Curzon [2017] FamCA 575
Dickons & Dickons [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Fairfield & Hoffman [2021] FamCAFC 151
Godfrey v Sanders [2007] FamCA 102
Jabour & Jabour [2019] FamCAFC 78
Jefford & Jefford [2022] FedCFamC1F 539
Malcolm v Monroe [2011] FLC 93-460
McCall v Clark (2009) FLC 93-405
Morgan & Miles (2007) FLC 93-343
Stanford & Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
U v U (2002) 211 CLR 238
Wagstaff & Wagstaff [2022] FedCFamC1A 119
Division: Division 1 First Instance Number of paragraphs: 276 Date of hearing: 21 – 25 November 2022 Place: Melbourne Counsel for the Applicant: Ms O’Connell Solicitor for the Applicant: Berry Family Law Counsel for the Respondent: Ms Ben-Simon Solicitor for the Respondent: Tyler Tipping and Woods ORDERS
MLC 11841 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BAUMANN
Applicant
AND: MR TANEV
Respondent
order made by:
MCNAB J
DATE OF ORDER:
3 MAY 2023
THE COURT ORDERS THAT:
PARENTING
1.All previous parenting orders be discharged.
2.The parents have equal shared parental responsibility for the children X born 2015, Y born 2017 and Z born 2019 (collectively “the children”), save that the mother have sole parental responsibility in respect of all major long term decisions in respect of the children in the event of her relocation with the children to Country B after 30 December 2024 and for the purposes of exercising her sole parental responsibility shall:
(a)Inform the father in writing of any prospective decision in relation to the children’s long-term care, welfare and development;
(b)Provide the father with seven (7) days, or as much notice as is practicable having regard to the time required for such decision to be made, within which the father to provide in writing any input into the decision;
(c)Consider any of the father’s response before making any decision; and
(d)Thereafter, inform the father in writing of any decision made.
3.The children live with the mother.
4.The mother may relocate the primary residence of the children outside the Commonwealth of Australia to Country B after 30 December 2024 subject to compliance with paragraph 8, 9 and 28 of these Orders, the children are permitted to travel to Country B with the mother for the purpose of permanently residing there.
5.The mother be solely responsible for any related expenses for her and the children travelling to Country B for the purpose of relocating.
6.The mother notify the father about arriving in Country B promptly upon arrival and notify the father again once the children have reached their intended destination within Country B.
7.Within twenty-eight (28) days of the mother relocating to Country B with the children, the mother shall provide the father with a postal address for the father to send any gifts, cards, photos and letters that he may wish to do so from time to time.
8.The mother provide to the father not less than thirty (30) days’ notice of the children’s departure from Australia and her flight details.
9.Within sixty (60) days of the date of these Orders, the parties do all acts and sign all documents required to register these parenting orders with the High Court of Country B or other Court as they are advised has jurisdiction, with such costs to be borne by the mother.
10.The mother is hereby authorised to cease the children’s enrolment in E School with effect from the end of Term 4, 2024, and enrol the children in a school in Country B.
11.The mother do all acts and sign all documents as are required for the children to be enrolled in VV School in Country B for the school year commencing 2025.
12.The parties do all acts and sign all documents necessary to renew the children’s Country N, Country B and Australian passports until the children are eighteen years old, with the costs of the renewal to be borne equally between the parties.
13.The children’s passports be held in the possession of the mother.
Arrangements until the children relocate to Country B
14.The children live with the mother.
15.The children spend time with the father as follows:
(a)During the school holidays at the conclusion of Term 1, 2 and 3 from the conclusion of school on the last day of school to 6.00pm on the Saturday in the middle of the holidays.
(b)During school terms:
(i)each alternate weekend from the conclusion of school (or 3.20pm on the non-school day) on Friday to the commencement of school (or 9.00am on a non-school day) on Monday; and
(ii)each week from the conclusion of school (or 3.20pm on a non-school day) on Wednesday to the commencement of school (or 9.00am on a non-school day) on Thursday.
(c)Notwithstanding the above, the children spend time with the parents as follows:
(i)from 3.00pm on 24 December 2023 to 3.00pm on 26 December 2023 with the mother for Western Christmas;
(ii)from 3.00pm on 6 January 2024 to 3.00pm on 8 January 2024 with the father for Orthodox Christmas;
(iii)from after school (last day of Term 1) on 28 March 2024 to 9.00am on Monday 1 April 2023 with the mother for Western Easter; and
(iv)from after school or 3.00pm on 3 May 2024 to 3.00pm on 5 May 2024 with the father for Orthodox Easter.
(d)On each of the children’s birthdays as agreed in writing between the parties, and in default of agreement:
(i)if the children would not otherwise spend any time with the father, with the father from the conclusion of school (or 3.30pm if a non-school day) until 7.00pm; and
(ii)if the children would not otherwise spend time with the mother, with the mother from the conclusion of school (or 3.30pm if a non-school day) until 7.00pm.
(e)On the father’s birthday if the children are not otherwise spending time with him, as agreed in writing between the parties and in default of agreement from the conclusion of school (or 3.30pm if a non-school day) until 7.00pm; and
(f)On the mother’s birthday if the children are not otherwise spending time with her, as agreed in writing between the parties and in default of agreement from the conclusion of school (or 3.30pm if a non-school day) until 7.00pm.
16.The children be permitted to contact the party with whom they are not spending time by telephone, Facetime, Skype, text message or similar services at any reasonable times in accordance with the children’s wishes.
Father’s spend time arrangements in Country B upon the Mother’s Relocation
17.Upon the children’s relocating to Country B, the father be permitted to visit the children in Country B in the mid-2025 school holidays, with the father to be permitted to spend the entire school holidays with the children from after school on the last day of school until 3.00pm the day prior to the commencement of the new school term, and thereafter, subject to order 18, the father be permitted to travel to Country B to spend time with the children as follows:
(a)In the event that the father travels to Country B during the children’s school holidays, for a period of ten (10) days or as agreed between the parties in writing;
(b)During school term dates for a period of seven (7) days or as agreed between the parties in writing, with the father to be responsible for the travel of the children to and from school;
(c)In the event that the father travels to Country B during the school term on more than one occasion each calendar year, then in addition to the period referred to in (b) herein, the children live with the father :
(i)Each alternate weekend from the conclusion of school (or 1.00pm on a non-school day) on Friday to the commencement of school (or 7.00am on a non-school day) on Monday, commencing the first full weekend that the father is in Country B; and
(ii)Each week, from the conclusion of school (or 1.00pm on a non-school day) on Wednesday to the commencement of school (or 7.00am on a non-school day) on Thursday.
18.The father provide the mother with notice of his intention to travel to Country B to spend time with the children, in writing and not less than sixty (60) days prior to such travel.
19.The father be and is hereby responsible for the costs of the father’s return airfares for travel between Australia and Country B to spend time with the children.
20.The mother do all acts and things necessary to make arrangements for, and to offer, the father (and the father may accept) appropriate accommodation at the home of the maternal grandparents during his stay in Country B. If the father does not accept the offer of accommodation, the father be solely responsible for the costs of his accommodation.
21.During the times the father is spending time with the children pursuant to paragraph 17 of these orders, the father shall provide the mother with:
(a)The particulars of the location he will be residing at with the children;
(b)Contact information including a telephone number the mother can reach the children on; and
(c)In the event of any travel, copies of confirmed return airline tickets and details of flights and accommodation for all travelling parties.
22.The father is permitted to attend any school event, assembly or parent/teacher meeting or interaction which parents in the normal course are invited to attend at the children’s school during his time in Country B or in Australia prior to the children’s relocation.
23.Changeover for the purpose of the father’s time in Country B take place at the mother’s or maternal grandparent’s residence, or during school term at the school, or as otherwise agreed in writing.
24.The father be restrained from entering the mother’s or maternal grandparent’s property without their consent.
25.The father be and is hereby restrained by injunction from taking or sending or attempting to take or send the children from Country B during his time with the children, unless otherwise agreed in writing.
26.When the father is not visiting Country B, the children communicate with the father as follows:
(a)By videocall or telephone no less than three times each week (twice during the week and once during the weekend) with the mother to give the father 24 hours’ notice of the days and times such communication will take place
(b)For no less than an hour on the following occasions:
(i)children’s birthdays;
(ii)father’s birthday; and
(iii)Father’s Day.
(c)otherwise at reasonable times by videocall, telephone or text messages.
27.The mother provide photographs and videos of school events and performances relating to the children’s extra-curricular activities which occur when the father is not in Country B.
Bond
28.By no later than thirty (30) days prior to any departure for the purpose of relocation to Country B, the mother arrange for the sum of $15,000 to be deposited into the Trust Account of a solicitor nominated in writing by the mother (“the bond”) and further, she cause the father to be notified in writing by that solicitor confirming that the bond has been lodged.
29.The bond payable to the solicitor in accordance with order 28 herein be held by that solicitor for a period of four (4) years of the date of these orders and thereafter the solicitor is authorised by this order to release the bond to the mother. If the mother does not return to Australia pursuant to the terms of these orders (save without reasonable excuse), then the solicitor by this order is authorised to release the bond to be paid to the father.
Father’s spend time arrangements in Australia
30.The mother do all things necessary to arrange for the children to travel to Australia once every year commencing 2025 during the children’s school holidays for a period of not less than fourteen (14) days for the purpose of the children spending that period with the father, with the mother to provide the father with not less than sixty (60) days’ notice in writing of her intention to travel to Australia.
31.The father spend time and communicate with the children in Australia at the father’s residence, with the children or either of them to telephone or facetime the mother every second day between 6.00pm and 6.30pm.
32.Changeover for Order 30 herein take place at the Melbourne Airport at the commencement and conclusion of the father’s time with the children, or as otherwise agreed in writing.
33.The mother be responsible for the cost of return airfares for herself between Country B to Australia and the parties share the cost of the return airfares for the children’s travel.
34.The mother be responsible for the cost of accommodation for herself while in Australia.
35.In the event the father wishes to take the children for a holiday in Victoria or interstate, the father must give the mother seven (7) days’ notice of his intention to do so with the following details:
(a)dates of travel;
(b)destination of travel;
(c)address/es while on holiday; and
(d)provide proof of the purchase of any return air tickets interstate 14 days prior to departure,
with the children to telephone or facetime the mother every second day during the holiday.
36.The father be and is hereby restrained by injunction from taking or sending or attempting to take or send the children from the Commonwealth of Australia except where agreed in writing.
General Orders
37.The mother follow all reasonable and lawful recommendations of the children’s treating paediatricians in relation to the children’s engagement with psychologists and/or counsellors in Country B and keep the father informed.
38.The father be permitted to speak to the children’s treating general practitioner, paediatrician, psychologist or any other health professionals in Country B regarding the children, and the other to provide authorisation to such health professionals.
39.The mother shall keep the father informed about the children’s health at all times, and in the event of a medical emergency in Country B inform the father as soon as practicable.
40.The parent shall keep each other informed of their preferred contact telephone number(s), email addresses and their residential address and advise of any change thereto by providing no less than seven (7) days’ written notice.
41.The parents shall communicate regarding the children’s general care and welfare and share information about them. They will do so by the use of an agreed app, telephone, email or text message.
42.The mother must take steps to ensure that the children are directed to resources in order for them to maintain the Country F language and engage in cultural studies and shall consult with the father in relation to this.
43.The parents must not use the children as messengers between them.
44.The parents must be respectful in their communication with one another.
45.The parents must not make derogatory comments about the other parent or the other parent’s extended family in the children’s presence and/or hearing.
PROPERTY
46.Within sixty (60) days of these Orders, the father make a payment into the mother’s solicitor’s trust account of $927,666.02 (“the payment”).
47.Simultaneously with the payment:
(a)The mother pay out the Commonwealth Bank home loan … and discharge the mortgage number … registered over the property situated at C Street, Suburb D, VIC, more specifically identified in Certificate of Title Volume … Folio … (“C Street”);
(b)The father withdraw any caveat registered in his name over C Street at his sole expense; and
(c)All joint bank accounts be closed, with the contents to be transferred to the mother.
48.In the event that the payment is not made by the date specified in Order 48, all or any of the properties identified in Certificates of Title:
(a)Volume ... Folio …;
(b)Volume … Folio …; and
(c)Volume … Folio …,
be sold upon such terms and conditions (including reserve price) as are agreed and in default of agreement as to any matter then on terms, conditions, price and by such real estate agent as shall be nominated by the President of the REV and the proceeds derived therefrom be applied as follows:
(a)First, to pay all costs, commissions and expenses of that property’s sale;
(d)Second, to discharge the mortgage and any other encumbrances affecting that property;
(e)Third, so much of the payment as is then outstanding together with interest thereon at the rate of 10 per cent per annum calculated daily from the Due Date until the date that the Payment has been received in full by the Mother; and
(f)Fourth, the balance to the Father.
49.The father do all acts and things in his personal capacity, in his capacity as officeholder of the T Family Trust, and as officeholder of the trustee company T Pty Ltd to give effect to the default order above, and indemnify the mother in relation to any costs or expenses relating to the sales, included but not limited to Capital Gains Tax.
50.The mother retain to the exclusion of the father:
(a)C Street; and
(b)All bank accounts in her sole name.
51.The father retain to the exclusion of the mother:
(a)The property situated at G Street, H Town, VIC (“G Street”);
(b)The property situated at J Street, K Town VIC, more specifically identified in Volume … Folio … (“J Street”);
(c)Motor Vehicle 1;
(d)All bank accounts in his sole name;
(e)T Pty Ltd; and
(f)L Pty Ltd.
52.Within seven (7) days of the date of these orders:
(a)The father surrender possession of Motor Vehicle 2 (registration …) to the mother; and
(b)The mother surrender possession of Motor Vehicle 3 to the father (Registration …).
53.The mother be solely responsible for and indemnify the father in relation to:
(a)Any credit cards in her sole name; and
(b)M Pty Ltd loan with account number …20.
54.The father be solely responsible for and indemnify the mother in relation to any credit cards in his sole name, including but not relating to the Commonwealth Bank credit cards ending …81 and …44.
55.Contemporaneously with the payment, with respect to T Family Trust, L Trust and any related entities as well as any other company, partnership, business or trust in which the father held any interest during the period of the marriage between the parties (“The Father’s Entities”), the father pay, be liable for, procure a discharge and release in respect of and otherwise indemnify the mother against any liability in respect of:
(a)Any loss or damage suffered by the mother in respect of any claim against her by any creditors of the father and/or the Father’s Entities including any claim upon the mother in her capacity as a personal guarantor, director and/or shareholder or other office bearer of the Father’s Entities;
(b)All guarantees, charges and encumbrances pertaining to any asset be transferred to the father pursuant to these orders;
(c)All taxation liabilities of the Father’s Entities and all personal taxation liabilities of the father including interest, costs, penalties or fines;
(d)Any future taxation liabilities of the mother including interest, cost, penalties or fines with respect to any and all alleged future income paid or distributed or deemed to have been paid or distributed to her by the father’s entities.
(e)Any claim against the mother for any repayment of any monies previously paid to her by the father’s entities; and
(f)All liabilities of the father’s entities, past, present or future.
56.Contemporaneously with the payment, the mother do all things, sign all documents, and give all necessary and proper instructions at the sole expense of the father to:
(a)Resign from any position or office held by her in the father’s entities;
(b)Transfer to the father or his nominee all shares and other equity arrangements in any of the father’s entities;
(c)Transfer and/or assign to the father or his nominee the benefit of any and all loan accounts in her name in the father’s entities;
(d)Otherwise abandon and relinquish in favour of the father any right, title or interest claimed by her in the father’s entities; and
(e)Execute all and any necessary documents and join together with the father in sharing a transfer of any positon of appointor in favour of the father or his nominees.
57.The trustee do all such acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 the Trustee can calculate the entitlement of and make payment to the non-member spouse in accordance with these orders.
58.That pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the member spouse in Superannuation Fund 2:
(a)The non-member spouse shall be entitled to be paid an amount calculated in accordance with part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $199,710 (provided that such base amount shall not exceed the value of the interest determined under section 90XT(2); and
(b)There be a corresponding reduction in the superannuation interest of the member spouse to whom the splittable payment would have been made but for the order.
59.Paragraphs 57 and 58 herein bind the Trustee of the Fund and these orders take effect from the operative time being the beginning of the fourth business day after the date of service of a sealed copy of these Orders on the Trustee.
60.The Trustee of the fund must comply with the obligations imposed upon the trustees of eligible superannuation plans under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
61.Each party and the Trustee of the fund have leave to apply in relation to implementation of these Orders insofar as they relate to superannuation.
62.Until the occurrence of any of:
(a)The establishment of a separate account in the name of the non-member spouse in the superannuation fund; or
(b)The payment or “rolling over” into another superannuation fund of the payment split created by these orders; or
(c)The non-member spouse satisfies a condition of release and is paid the payment split which was created by these orders; or
(d)The non-member spouse executing a waiver of rights within the meaning of s 90XZA of the Family Law Act 1975 in relation to the payment split created by these orders,
the member spouse be and is hereby restrained by himself, his servants or agents from executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of her interest in the superannuation fund a “non-splittable payment” in the meaning of regulation 12 or 13 of the Family Law (Superannuation) Regulations 2001.
63.Within thirty (30) days, the father return to the mother, only if such items are available, the mother’s items of personalty which remain in his possession as follows:
(a)Wedding ring; and
(b)Engagement ring.
64.The parties do all acts and things and execute any documents reasonably necessary to give effect to these orders and should either party fail to execute any document within seven (7) days of their being so requested a Registrar of the Court pursuant to Section 106A be and is hereby appointed and authorised to sign such documents on behalf of such party.
65.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at this date;
(b)Money standing to the credit of either the mother or father in any bank, building society, or investment account shall be the property of the account holder;
(c)All insurance policies shall be the sole property of the owner named therein;
(d)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)Each party shall retain to the absolute exclusion of the other party all rights, title and interest in any superannuation entitlements in that party’s name;
(f)Each party shall be solely liable for and indemnify the other in respect of their individual debts; and
(g)Any joint tenancy of the parties in any property real or personal is hereby severed.
66.All extant applications be otherwise dismissed and this matter be removed from the docket of the Honourable Justice McNab.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baumann & Tanev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J
Brief Background
This matter concerns the parenting and property arrangements of Ms Baumann (“the mother”) and Mr Tanev (“the father”). The parties have three children, X (8), Y (6) and Z (3) (“the children”). The mother issued proceedings on 28 October 2021.
The parties commenced living together in late 2012, married in early 2013 and separated on 4 July 2020. The mother is the primary carer of the children. At the time of the hearing, X and Y spend time with the father:
A.In week 1 from 7:55am Thursday until 6:00pm Friday; and
B.In week 2 from 7:55am until 6:00pm Thursday and Friday, and from 7:55am until 2pm Sunday.
The youngest child spends time with the father each Thursday and Friday from 7:55am to 6pm, with no overnight time.
Interim orders were made on 5 December 2022 that the children spend time with the father as follows (as per order 3):
(a) In 2022, in a two week rotation until the Christmas holidays:
(i) In Week 1, from 7:55am on Thursday to 6:00pm on Friday.
(ii) In Week 2:
A.All the children from 7:55am to 6:00pm on Thursday.
B.All the children from 7:55am to 6:00pm on Friday, at which time [Z] shall be returned to the Mother's care.
C.[X] and [Y] remain in the Father's care until 2:00pm on Sunday.
(b) During the Christmas holidays commencing in 2022 in a two week rotation:
(i)In Week 1, from 7:55am on Thursday to 6:00pm on Friday.
(ii)In Week 2, from 7:55am Friday to 2:00pm on Sunday.
(c) During Terms 1 and 2 in 2023:
(i)In week 1, from the conclusion of school (or 3:20pm on a non-school day) on Friday to the commencement of school (or 9:00am on a non-school day) on Monday; and
(ii)In weeks 1 and 2, from the conclusion of school (or 3:20pm on a non-school day) on Wednesday to 6:00pm on Thursday.
(d)Notwithstanding the above and until further order, the children spend time as follows:
(i)From 3:00pm on 24 December to 3:00pm on 26 December with the Mother for Western Christmas.
(ii)From 3:00pm on 6 January to 3:00pm on 8 January with the Father for Orthodox Christmas.
(iii)On each child’s birthday as agreed in writing between the parties, and in default of agreement:
A.If the children would not otherwise spend any time with the Father, with the Father from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
B.If the children would not otherwise spend any time with the Mother, with the Mother from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
(iv)On the Father’s birthday if the children would not otherwise spend time with him, as agreed in writing between the parties and in default of agreement from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
(v)On the Mother’s birthday if the children would not otherwise spend time with her, as agreed in writing between the parties and in default of agreement from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm.
(e)As otherwise agreed between the parties in writing
The primary issue in this trial is that the mother seeks an order to allow her to relocate with the children to Country B, while the father will remain in Victoria. Country B is not a Hague Convention signatory.
Proposals
In her final submissions, the mother is seeking orders including:
(1)A 60:40 division of property in her favour with the mother to retain the former matrimonial home at C Street unencumbered and a cash payment of $1,126,600.
(2)The parties have equal shared parental responsibility;
(3)The mother be able to relocate to Country B from 29 December 2022, or in the alternative, at the commencement of term 2 in 2023.
(4)If the mother be permitted to relocate, the father is to spend time with the children:
(a)From 29 December to 12 January each year, with changeover at Melbourne Airport;
(b)During the term 1, 2 and 3 school holidays;
(c)At any time the father is in Country B during school terms:
(i)Each alternate weekend from conclusion of school on Friday to commencement on Monday; and
(ii)Each week from conclusion of school on Wednesday to commencement on Thursday.
(5)The father do all acts and things to enable the children to obtain Country N, Country B and Australian passports.
(6)Any orders obtained be reflected in orders obtained in Country B.
(7)In the event she is not permitted to relocate at the commencement of term 2 in Country B, she seeks the father to have time with the children from the Christmas holidays beginning 2022 as follows:
(a)During school holidays commencing 2022 in a two week rotation:
In week 1:
(i)X and Y from 7:55am Thursday to 2:00pm on Monday.
(ii)Z from 7:55am Thursday to 2:00pm on Saturday.
In week 2:
(iii)All children from Wednesday 7:55am to Thursday 6:00pm.
(b)During the school terms:
(i)on alternative weekends from the conclusion of school on Friday to the commencement on Monday; and
(ii)Each week from conclusion of school on Wednesday to commencement on Thursday.
a.During the school holidays at the conclusion of Term 1, from the conclusion of school on the last day of school to 6:00pm on the Saturday in the middle of the holidays.
In his final submissions, the father is seeking orders including:
(1)A 61:39 division of non-superannuation assets and a 64.5:35.5 split in his favour of superannuation assets, with the mother to retain the former matrimonial home at C Street unencumbered;
(2)The parties retain equal shared parental responsibility;
(3)An equal spend time arrangement with the children;
(4)The mother be restrained from removing her children from the Commonwealth of Australia; and
(5)The parties do all things to change the children’s middle names and their last names to incorporate the father’s name and cultural heritage.
Both parties seek orders for equal shared parental responsibility.
During the trial the mother’s primary submission was for her to be permitted to relocate with the children to Country B at the end of 2022. In the alternative the mother submitted that in the event the court does not allow her to relocate immediately, she be permitted to do so in two years’ time or such time as ordered by the court.
Evidence and Material Relied Upon
The mother relies on:
(1)Affidavit of Mr O filed 8 November 2022
(2)Affidavit of Ms P filed 7 November 2022
(3)Affidavit of Ms Baumann filed 31 August 2022
(4)Affidavit of Ms Q filed 29 August 2022
(5)Affidavit of Ms R filed 16 August 2022
(6)Financial statement filed 15 August 2022
(7)Further Amended Initiating Application filed 15 August 2022
(8)Affidavit of Ms V filed 15 August 2022
(9)Affidavit of Ms Baumann filed 3 August 22
(10)Financial Questionnaire filed 18 February 2022
(11)Parenting Questionnaire filed 28 October 2022
The father relies on:
(1)Affidavit of Ms P filed 1 September 2022
(2)Affidavit of Ms Q filed 29 August 2022
(3)Affidavit of Mr Tanev filed 24 August 2022
(4)Financial Questionnaire filed 6 May 2022
(5)Financial Statement filed 24 October 2022
(6)Letter from Treating GP Dr S
(7)Affidavit of Dr O filed 8 November 2022
The trial affidavits filed by each party are long and full of discursive opinion evidence. I refer to the relevant evidence of each party but have had regard to all of the evidence filed. A sensible cooperative approach was taken by counsel who had agreed that it would not be a productive or efficient use of time to deal with objections to evidence on a paragraph by paragraph basis.
The final hearing commenced on 21 November 2022 for 5 days. Both parties attended the hearing, and the mother was represented by Ms O’Connell and the father by Ms Ben-Simon.
On 5 December 2022 interim orders were made by the court allowing the mother to travel to Country B with the children from 25 March 2023 to 13 April 2023, with the mother offering her house as security, which the father would receive if she did not return, other than for airline delay, health or some other emergency directly affecting her and which is beyond her control. These orders provided that the parties do all acts and things to register those interim orders with the High Court of Country B, or other court with appropriate jurisdiction. Orders were also made for the children to continue to attend E School in 2023, at the father’s sole expense, and failing the father being able to pay, the mother have the right to enrol them in a public school. The interim orders have been incorporated in the final orders.
BACKGROUND TO PARENTING MATTERS
The father, aged 49, is a health professional, and the mother, aged 34, is a professional. The father’s work history as a professional in the V Region is set out in [37] of his trial affidavit. He has worked in the region since 2001 and has received recognition for his service.
The parties commenced cohabitation in late 2012, married in 2013, and separated 4 July 2020. They have three children, X, born 2014, Y, born 2017, and Z, born 2019. All three children were born in the U Region, and hold Australian and Country N passports.
The father has re-partnered, and the mother has not.
It is undisputed that during the relationship, the mother was the primary carer and homemaker, and the father was the primary income earner. The mother continues to have primary care of the children following separation, and remains in the former matrimonial home in Suburb D in the U Region of Victoria. The mother is currently working part time with half days on Monday and Tuesday, and full days on Thursday and Friday. The father lives in H Town 50km from the former matrimonial property and is in receipt of income protection payments since late 2021 and has a work-cover claim against his former employer, which at the time of the trial is yet to be finalised.
The children live primarily with the mother and spend time with the father 3 nights per fortnight, other than the youngest who at the time of trial spent no overnight time. They attend E School in Suburb D. X is in grade 2, while the younger children attend an Early Learning Centre.
The mother was born in Country B and came to Australia to study at university in 2008. Her family, including maternal grandmother, grandfather, cousins, and other extended family, remain in Country B. The mother has been travelling to Australia regularly from 2001, when her parents purchased a business in New South Wales.
The father was born in Australia and moved to the U Region in 2001. His parents are from Country F and immigrated to Australia in the late 1960s. The father identifies strongly with his Country F heritage, in which he encourages the children to share.
The parties met during the mother’s studies in 2012 when the mother travelled to the U Region as part of her studies, and they commenced a relationship.
There is a significant age difference between the parties. At the time of cohabitation, the father was 38 and an established professional, and had purchased a property in H Town, and was in the process of setting up a rural property. The mother was 23 and still studying. The parties cohabited together at the H Town property, and it is undisputed that the mother assisted in maintaining the property. The property was affected by natural events in early 2013.
The parties married in early 2013 in Suburb BB, and had a church wedding in Country B in mid-2013.
The parties moved to CC Town in mid-2017, and it was the mother’s evidence that this move was in order for the father to be able to pursue a career opportunity in the area.
The father was terminated from his employment in late 2019, in the context of complaints relating to the father’s alleged alcoholism. The father gave evidence that any complaints about his alcoholism were “purely vexatious” and have been disproven. There is no evidence of this before the court of any relevant finding that complaints about the father’s conduct were vexatious. However, allegations of alcoholism were not substantiated by the professional organisation, and he retains his accreditation. At [15] of their finding:
The Board considered the information available supported the conclusion that [Mr Tanev] does not pose an ongoing risk to public health and safety and his overall performance is not below the standard expected of a [health professional]. Accordingly, the Board determined that no further regulatory action was required.[1]
[1] Exhibit A3
The parties then moved to Suburb D in early 2020, where the mother remains in the former matrimonial home at the time of this hearing.
The mother gave evidence that their relationship was strained from early on due to her concerns about the father’s alcohol consumption.
Following separation in July 2020, the mother took the children on a planned trip to Country B via Country N in late 2020. This trip was initially intended to span three months. The mother gave evidence that after the three month period, there was advice given by the Australian Minister for Health introducing restrictions, including mandatory quarantine for returned international travellers, and home schooling. In this context, the mother gave evidence that she and the father discussed her remaining with the children in Country B to avoid subjecting them to hotel quarantine and home-schooling, and she said they agreed for her to remain in Country B until conditions in Australia improved. The father disputes this, and said that the mother unilaterally decided to remain in Country B beyond the three month period, and he was fearful that she would not return. It is undisputed that whilst in Country B, the mother enrolled her elder children in a school in Country B. The mother says this was with the father’s consent, and the father in his trial affidavit acknowledges he agreed to the children being enrolled for a few months whilst they resided in Country B.
The father wrote a letter on 11 August 2020 in support of the mother’s travel exemption application to travel to Country B during the Covid Lockdown in which he says the following:
Additionally, my wife is very socially isolated as she had no time to form new close friendships before Victoria went into lockdown due to Global Covid-19 Pandemic. We have no immediate family close by and in fact all our relatives live interstate or overseas…
The entire situation has placed my wife under extreme stress, not only in providing [a service locally], but making sure our three daughters are well cared for, home schooling with our eldest child and having no local social/family support…. An extended holiday to [Country B] would allow [Ms Baumann] some much needed respite in close proximity to her Auntie, at the same time ensuring our three young daughters continue to receive their high-quality care…
I have travelled to [Country B] on multiple occasions with [Ms Baumann] and also together with [X] and [Y]. My father-in-law and mother-in-law have kindly offered to accommodate my family overseas during this stressful period.
The mother and children returned to Australia in mid-2021 and spent 14 days in hotel quarantine before returning to Suburb D. She issued an Initiating Application for parenting orders on 28 October 2021.
The mother’s primary proposal is for her and the children to relocate to Country B before the start of the school year in 2023. She accepted at trial that it was unlikely the court would be able to hand down a judgment prior to the start of the 2023 school year. She sought interim orders, which were made by the court on 5 December 2022 that she be permitted to travel with the children on two occasions to Country B for the purpose of family celebrations in 2023.
CHRONOLOGY
The following chronology is based on the parties’ filed material:
Date Event Source 1973 Husband born in Australia Parties’ Outlines 1988 Wife born in City EE, Country B Parties’ Outlines 2012 Parties commence cohabitation in husband’s H Town property Parties’ Outlines Early 2013 Husband’s property suffers damage from a natural event Parties’ Outlines Early 2013 Parties marry in Australia Parties’ Outlines Mid-2013 Parties marry in Country B Father’s outline Late 2013 Wife allegedly start noticing empty alcohol bottles around the property but did not suspect her husband of alcoholism. Mother’s trial affidavit [41] 2014 X is born Parties’ Outline Early 2015 Parties travelled to Country B to have X baptised. Mother’s affidavit [60] 2017 Y is born Parties’ Outline Mid-2017 Parties move to CC Town Mother’s Outline 2019 Z is born Parties’ Outline 2019 Husband terminated from work.
Husband files fair work commission complaint, and his employer lodges twelve complaints to his professional organisationMother’s Outline
Father’s Outline
Late 2019 Husband moves to Suburb D to supervise renovations of newly purchased matrimonial home Parties’ Outline Early 2020 Wife and children move to Suburb D Parties’ Outline Early 2020 Husband moves to H Town property during COVID-19 pandemic 4 July 2020 Wife alleges as date of separation Mother’s Outline Late 2020 – Mid-2021 Wife and children leave Australia for Country B, spending one week in Country N on the way. They leave under a special exemption allowing the mother to travel overseas to support her aunt who has a terminal health condition The exemption is granted with the support of the father. They were initially scheduled to return in three months. Parties’ Outline Mid-2021 Wife and children return to Australia, spending 14 days in hotel quarantine before returning to Suburb D
Wife initiates sale of FF Street property and attempts to sell J Street property, allegedly without the father’s knowledge or consent.
Wife alleges husband informed her that he had a “confidential medical condition” which left him permanently unable to work.Parties’ Outline
Father’s Outline
Mother’s affidavit
Mid-2021 The mother and children return to Melbourne. Father’s Outline 18 July 2021 Husband alleges as date of separation Father’s Outline 28 October 2021 Wife brings application for parenting orders to FCFCOA Parties’ Outline 26 August 2022 Unsuccessful attempt at property mediation Parties’ Outline ISSUES IN DISPUTE
The issues in dispute in this matter are:
(1)Whether the mother should be permitted to relocate to Country B, and if so, when;
(2)If the mother is permitted to relocate, what arrangements should be in place for the father to communicate with and spend time with the children;
(3)If the mother is not permitted to relocate, what spend time arrangements should be in place;
(4)If the mother is not permitted to relocate, whether the mother should be required to live within 60kms of Suburb D;
(5)Whether the mother should be permitted to take the children to a psychologist or other appropriately qualified professional for counselling;
(6)Whether the children’s middle and surnames should be changed as per the father’s sought orders; and
(7)How the asset pool should be distributed between the parties.
EVIDENCE IN RELATION TO PARENTING
Relocation
The mother wishes to relocate with the children to Country B. She initially sought to do this immediately, but during cross examination she gave evidence that she was content to wait until Z started school in 2024. This approach is in line with the evidence given by the Family Report Writer both in cross examination, and in paragraph [94] of her Report filed 29 August 2022.
The mother gives evidence in her trial affidavit that it was always her intention to live in Country B, and she said the father was aware of and supportive of this intention. She stated that the father proposed to her in mid-2012, when she was about to leave Australia for Country N, where she intended to attend university, after which she intended to secure work in Country B. She stated that she and the father discussed putting her career on hold in order to raise a family together, remaining in Australia.
She stated in her trial affidavit that initially the parties’ planned to relocate to Country B together in 2015-2016, as there was an opportunity for the father to obtain work without the need for further study. She says these discussions stopped due to a falling out she had with her mother at the time. That relationship has improved and it appears that there is no ongoing strain between them.
The mother gave evidence that if she is allowed to relocate, she would facilitate phone/video calls for the children to the father at least three times per week. She gave evidence that she would encourage the father to travel to Country B as frequently as he could, and he would have free use of a residence owned by her parents, on the same property and separate to the parent’s residence. She also proposed to fly to Australia with the children once per year during school holidays, to allow the father to have substantial blocks of time with the children.
The mother gave evidence that she has extensive family connections in Country B, and relocating would allow her to have a support network which would benefit herself and the children. She said this support network would enable her to potentially work more because her family could step in to take care of the children if needed. She also stated one of her cousins has children of a similar age, who have close friendships with her own children. In contrast, she gave evidence that in Australia, the father rarely sees his own family, and the children do not regularly spend time with or have developed relationships with his family. This evidence was not subject to substantial challenge.[2]
[2] CB 414: mother’s affidavit of 3 August 2022 at [97]
If required to remain in Australia, the mother gave evidence that she would feel isolated, and it would negatively impact her mental health, although she said she would be assisted if she were permitted to travel to Country B with the children at least yearly. There is no assessment of the mother’s health available to the court, but she gave evidence that she is in good health.
Similarly, the father gives evidence that if the mother and children were permitted to relocate, it would negatively impact his health further. He refers to paragraph [84] of Dr O’s report stating that relocation would likely escalate his anxiety and depression, and likely lead to the development of a more serious mental health condition.
If permitted to relocate, the mother intends to live in her mother’s property, which she gave evidence was a gated community located 20 minutes out of the main city of City EE, on a large rural property of thousands of hectares and other houses. Her mother, who was called to give evidence, described this property as surrounded by wildlife, and enclosed in electric fencing. The mother’s parents are retired and are available to care for the children. The Family Report Writer notes the children reported having a very strong bond with their grandmother.
The mother goes into significant detail in her trial affidavit from [435] – [444] about the arrangements in place and her plans upon relocating to Country B. She gives details about the home she and the children would move into with her parents, the immediate and extended family who would be able to support her, and the schooling arrangements for the children.
The mother and her mother were asked about the children’s recent stay in Country B, and how the children coped with such a long absence from their father. The mother went into significant detail in her trial affidavit about the children’s experience and progress in Country B, including their schooling, extracurricular activities and friendships. The maternal grandmother gave evidence that the children missed their father, but she ensured they were in frequent contact, with regular phone and video calls. She gave evidence that she encouraged the children to think of their father every night as they were going to sleep. She understands that the father is a significant part of the children’s lives, and she states that understands that they will miss him, but she will continue to make every effort to facilitate the children’s relationship with him.[3]
[3] CB 448; mother’s affidavit filed 3 August 2022 at [445]-[453].
Notably, the mother has sought advice from children’s counsellors in the past to assist with how to best support the children in relation to their relationship with the father and to ease any transitional periods.
The father did not dispute that he was able to maintain frequent contact with the children whilst they were in Country B, and was kept informed about their lives, but he gave evidence that all of this contact came from the grandmother, and the mother did not facilitate any communication directly.
The mother was asked about her earning capacity working part-time in Australia, and how it would change in Country B. She gave evidence that she was limited in Australia by her commitment to being the primary carer. She said she had no support system, and was unable to call on family to assist in caring for the children, causing her to make the decision to limit her work hours and rely on nannies when necessary. She gave evidence that in Country B, she is in preliminary discussions about acquiring a business, through which she could sell products which require the holding of a professional license under Country B law. She said this would be a more flexible endeavour and she could choose her own hours. She conceded there are no firm arrangements in place as she is still unsure of whether she will be able to relocate to Country B, but said the business would cost approximately $1,000,000, which she could afford with the support of her family.
The father gave evidence that it was his view that Country B was a dangerous country, and he does not feel comfortable with his children relocating there. He spoke about rapes and muggings, the prevalence of illness, and the country having a high COVID-19 death rate. Notably, the father has been to Country B multiple times, including for his own wedding ceremony with the mother’s family, and reportedly had positive experiences. He has not prevented the children from travelling there in the past, and consented to interim orders that the mother be permitted to travel there with the children for family events.
The father gave evidence about the impact of the children’s stay in Country B on his relationship with them, including that the youngest child did not remember who he was upon her return, and had to be effectively “reintroduced” to him, and that she only spoke the language of Country N. He acknowledged that he consented to the three month trip as it was initially planned, and that the mother had obtained a travel exemption from the Australian government in order to see an aunt who had been diagnosed with cancer. The father wrote a letter in support of her application for that exemption which is referred to above.
The father gave evidence that he believed the main reason the mother returned to Australia was to obtain a property settlement. He did not deny that when she returned she immediately allowed him to spend time with the children. He conceded that he did have frequent and meaningful contact with the children while they were in Country B, and was kept up to date about their development and achievements. When asked about these communications, he was critical of the mother for not facilitating them, and gave evidence that the maternal grandmother was almost entirely responsible for maintaining his communication with the children.
The father submitted in his material that he believed the relationship between the mother and her mother to be strained and prone to conflict, and referred to the fact that they attended a family therapy session in Country B. The mother gave evidence that this was due to a misunderstanding, largely brought about by the father encouraging the mother to not talk to her family about issues relating to their marriage, which made the mother feel isolated from her mother. She said that since separation, these issues cease to affect them. Counsel for the father did not make final submissions relating to this point, and there was no suggestion made that the mother and her mother are currently in any conflict.
In response to the mother’s proposal that he spend significant and regular time in Country B with the children, the father gave evidence that he was not able to travel to Country B due to a combination of his health issues preventing him from taking long flights, and the financial stress of doing so in circumstances where he is unable to work. No medical evidence has been filed which would support a finding that the father is medically unfit to travel to Country B.
The Family Report
The court had the benefit of a Family Report prepared by Ms Q dated 29 August 2022. She met with the family on 2 August 2022 and conducted assessments of each of the parents and the parents individually with the children. She also read the filed court documents and the parties’ trial affidavits (including the father’s trial affidavit which was provided to her after the assessment interviews were conducted but before the Report was drafted.
Ms Q gives a measured and comprehensive account of the parties’ narratives as set out in their affidavits and as presented to her. She canvasses the competing positions in relation to the mother’s application to relocate to Country B with the children.
During Ms Q’s interview with the mother, the mother provided an explanation for why she seeks to relocate with the children to Country B. From [26] - [29] of the Family Report, Ms Q summarises that the mother believes the benefits of the children residing in Country B would “surpass” any benefits of them remaining in Australia, including connection to friends and family. The mother notes that the children and herself will experience a greater sense of community and belongingness. She notes that the father does not have a good relationship with his parents, and the children do not regularly spend time with his extended family.
The mother continues to explain that having a supportive community would assist her own mental wellbeing, as well as providing financial and practical support for the children. The mother refers to the long time when the children were in Country B, saying that they “thrived”. Further, she speaks about how she worked to make sure the father was kept well informed about, and connected to the children. She says that should she be permitted to relocate, she would continue to share information, phone and video calls with the father, and encourage and allow the children to speak regularly with him.
At [29] of the Report, Ms Q notes:
[Ms Baumann] recognised the impact of her application on the father, and on the children’s ability to spend regular time with him. She said she did not blame him for feeling angry at her, and that she empathised with his desire for the children to remain in Australia. She wants him to remain in their lives as much as possible, although hoped he would understand her need to move home. She believed she would continue to struggle to navigate life as a single mother without the practical supports of family in Australia.
Ms Q’s observations (at [32] of the Family Report) regarding the father’s style when he was asked questions and presenting information accorded with the court’s view of the manner in which he gave evidence. In that paragraph Ms Q states:
[The Father] presented as a friendly and intellectually minded man. He was verbose and tangential at times during interview and frequently veered off topic, needing to be redirected back to questions being asked. It was generally difficult to gain a concise appraisal of information from the Father until the assessor was provided with an affidavit after interview. During interview, he lacked detail in his account, preferring to offer factual retorts that were at times off subject. He presented with very black and white thinking, at times coming across as rigid in thinking.
At [27], Ms Q noted:
[Ms Baumann] believed her mental well-being and parenting support needs would be significantly assisted from the locating to her home country
The Family Report Writer was called to give evidence on the issue of relocation, and filed a report on 29 August 2022. Under cross examination, the Family Report Writer gave evidence that the mother’s proposal to relocate and maintain a relationship between the father and children is appropriate and considerate of the children’s best wishes. She gave evidence that she believed the mother’s proposal to relocate was not focused on escaping, but rather for providing a better life for herself and her children. She says limiting the father’s time with the children is not the focus, but rather, an unfortunate outcome.
The Family Report Writer gave evidence both in cross examination and in her Report at [89] and [94]-[95] that young children under the age of 5 have difficulty holding long-term memories. She says that a young child like Z would have difficulty forming and maintaining a relationship with her father whilst living in Country B because the lack of development of long-term memory affects the creation of a foundational relationship. She gave evidence that the chances of creating and maintaining a long term relationship with the father increase the older the children get, and the chances of a successful paternal long distance relationship increases significantly in the next 12-24 months, as the relationship “solidifies through age”. In her Report at [94] she stated that if relocation is not deemed acceptable at present, it could be re‑considered at a future time, such as when the youngest reaches the age of 8. Under cross examination, she was asked to elaborate and gave evidence that children under 5 struggle to communicate via phone/video, and in circumstances where this will be the primary form of communication with the father, it would be better if relocation were delayed until the youngest child reaches the age of 5. She gave evidence that the ideal age in terms of formation of relationships is around 8 years old as children are old enough to speak on the phone and their development is more cemented, but she said she believes close to the age of 5 would be appropriate in this case, and “there is nothing magical about the age of 8”.
Under cross examination, the Family Report Writer was asked if she would support the mother’s proposal made in open court to relocate to Country B in two years when Z reaches schooling age, and the Report Writer gave evidence she would support this arrangement, but noted it would be possible for the father to harbour resentment over those two years and the co-parenting relationship would suffer which may impact the children. In response to questions from the court as to her view of the a delay in relocating of five months to a year as opposed to a more lengthy delay, Ms Q expressed the view that a year would be better than nothing, and that length of time would allow planning. She stated that she was not sure that it was feasible to say that you can move in four years’ time as dynamics will change and one cannot predict that far in advance. She said that a year would allow planning and the youngest child would be closer to 5 which would be a more appropriate age.
Ms Q gave evidence that she thought that if the mother and children relocated in 2 years’ time when the youngest child was closer to 6 years of age would be more beneficial to the children, although there was a concern about the attitudes of the parents through that interim period towards any decision to relocate which may impact on their capacity to co-parent effectively in any interim period.
Ms Q raised the impact on the mother if she was required to go through a further court process and the consequential impact on the children. She gave evidence that further proceedings would impact on the mother where she does not have support and resources in Australia. She said that the mother was resilient and a strong role model and will be able to forge a positive parenting relationship in Australia, but if she was struggling, that would have a significant impact on the mother and her capacity to parent.
The Family Report Writer was asked if the relocation being detrimental to the father’s mental health would negatively impact the children. She gave evidence that it would depend on the father’s ability to regulate himself around the children, and it would only have a detrimental impact on the children if the father is visibly not coping, such as calling the children while crying. She stated it would be in the children’s best interests for the parents to work to shelter them from any mental health issues the parents are dealing with, and it is their responsibility to seek any relevant assistance with this.
The Family Report Writer in her Report did not provide a recommendation as to whether the mother should be permitted to relocate to Country B, and recommended the appointment of an Independent Children’s Lawyer to assist. This did not occur. In the event relocation was not permitted now or in the near future, she recommended at paragraph [98] that the children would benefit from regular travel and holidays to Country B where possible.
The Country B Legal System
Ms R, a practicing Country B Legal Practitioner with significant expertise in family law gave evidence on behalf of the mother via affidavit filed 16 August 2022 and under cross examination in relation to obtaining mirroring orders in Country B, the Country B legal system and parenting proceedings. No objection was raised to Ms R giving evidence on the basis that she lacked experience to express opinions about the operation of the Country B legal system as it relates to family law proceedings.
She gave evidence via her affidavit filed 16 August 2022 that a mirror order could be registered in Country B by an ex parte application to the High Court, so the mother could do this without the father needing to incur costs or otherwise be inconvenienced. These orders would be enforceable as soon as the children enter Country B. She estimated at paragraph [5] of her affidavit her fees to obtain a mirror order, which included “lodgement, attending to the necessary affidavit, inspection of the court file, and required court appearances”. These fees are the equivalent of approximately $795 AUD at the time of trial.
As far as the process of obtaining mirror orders, Ms R gave evidence in [5] of her affidavit that they could be obtained by an ex parte application to the High Court of Country B.
She was asked about recovery orders in Country B, and gave evidence that they were dealt with under the relevant local legislation. She gave evidence that once orders are registered in Country B, Country B assumes jurisdiction and the orders become enforceable in Country B.
Ms R gave evidence that the court has the power to investigate in the event one of the parties attempt to set aside or vary the orders, or if allegations are made involving protective issues. She said if serious allegations were made, the court may suspend time in order to investigate, however, she gave evidence that the courts will only grant a suspension order in the event of very serious allegations such as sexual molestation or grave bodily injury.
Ms R was asked about the court’s powers of investigation, and she gave evidence that the Ministry of Child Welfare and Social Services get involved, but it is also common practice for private social workers to be involved.
The court asked Ms R about how Country B would handle a scenario where the children were holidaying in Country B and the mother decided not to return home, and how the father could enforce an order to return them to Australia. She gave evidence that children’s matters are inherently urgent and will be in front of a judge within a few days, and costs will vary but she gave an estimate of an approximate AUD equivalent of $100 per hour for a solicitor, and that barristers are often not required for children’s matters, and she estimated it would take one to one and a half days in court. Her experience is matters can be brought on quickly and dealt with efficiently without significant cost to the parties. She said the courts deal with issues of parental alienation strictly, and if the mother is found to have engaged in alienation of the children from the father, that finding will endanger her custody over the children.
Ms R was asked to give advice about the father’s potential to immigrate to Country B. She stated he could apply for a Country B citizenship if he had a domicile, or without a domicile based on a work permit, which he may be able to obtain based on Australian qualifications and work history.
Ms R’s evidence (both written and oral) was given clearly and there was no challenge to the views that she expressed about the operation of the Country B legal system.
She also gave evidence of the quality of life in the cities in Country B, specifying that she had lived in Country B for 22 years and found it to be one of the safest countries on the continent. She stated the political climate was stable, and their health care and schooling are of an international standard. She stated a lot of people want to relocate to Country B to take advantage of its education and health care. She acknowledged that crime occurred, but stated it was no more dangerous than any other major city.
The Father’s Alcohol Use
A substantial portion of the trial was dedicated to exploring the father’s past of alleged alcohol use. Notably, the mother does not argue that there is any current issue with the father drinking, and proposes the father spends substantial blocks of time with the children. Nonetheless, substantial time during the cross examination of both parties was dedicated to exploring issues relating to the circumstances of the father’s termination from his employment in 2019, and the subsequent investigation.
The father’s letter of termination was tendered into evidence, stating the father was fired for poor performance in line with his contract, and he was provided a payment in lieu of three months wages.
The father initially lodged an unfair dismissal claim, but dropped this claim when he learned of the allegations lodged against him with his professional organisation.
The father has consistently stated that these complaints and allegations were vexatious, and notes that he had raised previous complaints about one of the people who made complaints against the father. In the preliminary investigation report in late 2019, the decision was made to immediately place restrictions on the father’s work status in the form of the father being required to submit to alcohol breathalyser testing as a condition of work. These restrictions were then lifted following conclusion of the investigation. None of the allegations by the organisation were substantiated and his accreditation was reinstated. The organisation report dated mid-2020 has been tendered into evidence.
According to the report of Dr JJ dated late 2019 completed for the organisation, concerns were raised in relation to the father’s alcohol use whilst at work, including allegations that he attended work smelling strongly of alcohol, slurred his speech, and appeared confused. This report concluded that the father did not meet the standard required for alcohol use disorder. The father gave evidence that he is currently not drinking, and has provided multiple Carbohydrate Deficient Transferrin (CDT) tests done across 2021 and 2022, which did not indicate any significant alcohol consumption. The father also provided negative breathalyser tests at the mother’s request on three dates in late 2021, and in early 2022. The mother is not currently requesting the father provide her with the results of breathalyser tests, and has not done so since early 2021.
The father gave evidence that the mother wrote a letter in support of the father to his professional organisation dated late 2019 indicating that she believed the allegations were false and she had not seen her husband intoxicated. This letter was tendered before the court. Notably, several of the things said in the letter relating to the father’s drinking and circumstances directly contradict the evidence the mother gave both via affidavit and under cross examination. The mother gave evidence that she wrote this note in circumstances of having three young children and the father being the primary breadwinner, where they could not afford for him to be out of work. She spoke of the significant pressure she was under to support her husband, despite whether she believed what she wrote was true. In her affidavit, she gives evidence that she had a number of arguments with the father during this period over his drinking, and repeatedly found empty liquor bottles.
The maternal grandmother gave evidence both in her affidavit and under cross examination of her witnessing the father’s drinking in Country B in mid-2017 and at Y in early 2018, at which time they “locked away all bottles of alcohol” to allegedly deter the father from drinking, and at which point the mother’s mother says he drank too much and acted “inappropriately”. The grandmother also gave evidence that the father had on one occasion admitted that he was drunk (grandmother’s affidavit at [25]).
The mother makes no allegations in relation to the father currently having issues with alcohol use. The Family Report concluded there was no present evidence of risk to the children relating to the father’s alcohol use. The children have spent regular time with the father since the mother’s return from Country B, which has increased since mid-2021 as set out in the mother’s trial affidavit at [348] – [354].
The Father’s Health
The father gave evidence that he has been diagnosed with a medical condition in 2021, which involves a deficiency of hormones, and his condition is thought to be related to stress. He described several different symptoms. He also suffers from a mental health issue, which causes poor concentration and insomnia.
The father reports that he is seeking help for his physical and mental health from a number of specialists. He reported that he sees a mental health social worker fortnightly, in addition to seeing his treating GP monthly, and a psychiatrist.
The Family Report Writer noted at [83] that further evidence about the father’s health and capacity was needed prior to the consideration of increasing paternal time with the children, including progress treatment reports:
However, given his remitting experience of stress, anxiety and the presence of panic attacks and his ongoing inability to work, the assessor believes that further information is required surrounding the relevance or prevalence of a persistent [mental health issue], or whether there are other underlying conditions, such as the existence of an acute stress disorder, depression, personality vulnerability, or other related mental health conditions.
The Psychiatric Report of Dr O
Following receipt of the Family Report, a psychiatric report of the father was obtained dated 8 November 2022.
Dr O completed a forensic psychiatric report for the father, in which he agrees at [75] with a 2021 diagnosis by two separate psychologists that the father suffers from a mental health issue with anxiety and depressed mood. Dr O states in [76] – [77] that he does not believe the father meets the criteria for a more severe mental illness, and his current treatment is appropriate.
Notably, in his psychiatric report, Dr O states that he does not believe the father suffers from an alcohol use disorder.
Dr O states at [82] that he does not believe the father’s health concerns impact upon his capacity to parent. He described his symptoms as mild, and does believe he will recover from these illnesses:
In my opinion, [Mr Tanev] has mild ongoing symptoms, but nowhere near to the extent that would impair his capacity to parent the children. I note [Ms Q’s] positive observations of his time with the children.
Dr O was asked in cross examination how he reconciles the father’s inability to work with his illnesses not impacting his parenting capacity. He said it was difficult for him to reconcile, but he does not believe based on his assessment that the father is unable to work based on his symptoms. He agreed that there was a disconnect between the father being assessed as permanently and totally disabled, and his diagnosis of a mild mental health issue.
An independent medical report of Dr LL dated 5 August 2022 was tendered into evidence, which provides no comment on future vocational possibility, but gives evidence that the father’s medical condition is known to improve over time with weight loss treatments, and treatment of underlying mental health disorders. He states that while he cannot comment on what work restrictions are appropriate in the father’s case, his medical condition does not affect work capacity, and states his injury is not related to his incapacity.
A second independent medical report of Dr MM, psychiatrist, dated 11 July 2022 was tendered into evidence, which assessed the father was suffering from a mental health issue with anxiety and depressed mood. Dr MM also expressed the view that if the father’s medical condition was successfully treated and the Family Court issues are resolved to his satisfaction, he would be able to return to work.
Dr MM describes the effect of his illness as “he has lost interest in socialising. He still drives a car. He does not drink alcohol”, and that his medical condition and the current Family Law proceedings are barriers that need to be addressed before he can return to work, but noted that whether the medical condition is related to employment needs to be assessed by a specialist. The report notes he is incapacitated from his pre-injury duties and hours, but his capacity will need to be reassessed in six months.
The father is receiving income insurance payments currently as set below at [238]. The assessment of his claim was based on the reports of Dr MM and Dr LL as discussed above, and his claim relating to both his mental health issue and medical condition were accepted. The documents setting out his entitlements have been tendered into evidence, and they state that he will receive 95% of his pre-injury average income for the first 13 weeks, 80% for the 13 weeks following. In order to continue to receive these payments, he must provide a certificate of capacity every 28 days while unable to work. As stated above at [91], Dr O expressed the opinion that the father was currently fit for work.
The mother gave evidence that she felt the father was not being upfront about his medical issues, and he initially told her he had a “confidential medical condition” which meant he would never be able to work again. She gave evidence that upon receiving more information from the father and various reports, she still does not understand the extent of his issues and believes the diagnosis is inconsistent with the information the father is providing, including his capacity to work and parent.
The father maintained during cross examination that he is totally and permanently disabled as a result of medical conditions.
Involvement of Child Protection
The court received into evidence two s69ZW reports from DHHF dated 23 October 2022 and 7 November 2022, which revealed five reports received by child protection, none of which progressed beyond the investigation stage.
The reports made are as follows:
(a)In late 2018, a report was received raising an incident at the father’s workplace, where the mother insisted the father bring X back from his workplace, and upon his refusal, she attended his workplace and grabbed X, who was screaming. The report was concerned not with current risk, but that it may escalate. There was no previous incidents of family violence and the case was closed at intake. The DFFH reports note that this report was made by a work colleague of the father, Mr NN who reported the mother for child abuse. Nothing came of this report.
(b)In late 2021 the father dropped X and Y at school and kindergarten at 8am when their classes did not start until 8:45am. A police check was conducted and because of a previous existing report involving alleged alcoholism and verbal abuse, child protection made the decision to investigate, and the parties were interviewed, and the mother spoke about two incidents with the father and the children that she found “peculiar”. Nothing came of the interviews, and the report was closed 10 days later without substantiation of any harm.
(c)In early 2022, child protection received a report concerning bruising to X’s upper right arm, and a disclosure that she was grabbed forcefully by the mother. This was referred to SOCIT, who indicated no action would be taken. The report was closed at intake.
(d)In early 2022, X was taken to her GP and it was reported that the father was not permitting X to shower by herself and was physically disciplining her, including smacking her on her bottom. Victoria Police was contacted, and indicated no recent family violence reports and minimal history regarding the father. OO Services was contacted, who indicated the mother had self-referred for support due to concerns about bruising on X. Child Protection proceeded with an investigation and interviewed the parents. The investigation was closed without substantiating harm.
(e)In early 2022, child protection received a report that X had sustained a burn on her feet whilst under the father’s care, and concerns were raised regarding X showering with and sleeping in the same bed as the father. The matter was referred to SOCIT who indicated they would not take any action. Two days later, a secondary report was received with similar concerns, including the mother indicating the father was stalking the family. The report was closed without investigation.
The mother's relocation to Country B will have an effect on the children because they will not see the father as often and he will be removed from the day-to-day interactions with the children which would have otherwise occurred in his time with them if they were to remain in Australia. The spend time arrangements and the capacity to engage in electronic communications will mitigate the effect of these changes. I have little doubt that the mother and her family will work to ensure that the father has access to the children in accordance with these orders and they will be able to maintain a meaningful relationship with the father.
The mother, by her outline of case, proposed orders that in the event of relocation, the children travel from Country B to Australia three times per year to spend time with the father in a block of 14 days in December/January and then time in the first term school holidays and either the term two or term three holidays. The orders proposed also provide for the father to spend five nights per fortnight during school term times in Country B should he choose to visit the children there.
Orders requiring the children travel to Australia for extended periods three times per year will be unnecessarily disruptive and unsettling for the children. A regime of that kind will mean that children will enjoy only one school holiday period in Country B and this is likely to lead to problems in the future which will more than likely lead to further disputation between the parents.
I assume that the children will wish to spend time with school friends and family in Country B for some of the school holidays, enjoying those times as an ordinary function of residing in a place. The father has the financial capacity to travel to Country B and enjoy spending time with the children. Alternatively the orders provide that he can holiday with the children in some alternative location such as Country N, where the mother’s family have connections and access to accommodation.
The times that the children spend in Australia should be no less than three weeks per year (as recommended by Ms Q at [5] of her recommendations).
Information from the Country B country guide maintained on the Internet sets out the school holidays and provides for holidays on the 2023/2024 as follows:
•8 December 2022-10 January 2023
•20 March 2023-24 March 2023 (mid-term break)
•1 May 2023 – 5 May 2023 (school break)
•16 June 2023 – 17 July 2023
•11 September 2023 – 15 September 2023
•8 December 2023 – 14 January 2024
The father makes no submissions in relation to spend time arrangements should the mother be permitted to relocate with the children to Country B. The orders I make are in line with the recommendation of the Family Report Writer, the proposal of the mother with modification and are made for the purposes of seek to avoid further ongoing litigation.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Both parties have the means to give effect to the orders that are set out. The distance between Country B and Australia does present practical difficulties and air travel is expensive. However the parties are in a position to meet those expenses.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These orders are least likely to lead to the institution of further proceedings in relation to the children for the reasons outlined above.
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
The allegation that the father was an alcoholic loomed large in this proceeding and took up considerable time. The allegations are significant as the father lost his employment because the allegations had been made and accepted to be true by his employer.
The father has suffered significant stress to the extent that he has drawn on income protection insurance and it has been accepted by the insurer that he is presently unable to work as a health professional.
Both the mother and the maternal grandmother gave detailed evidence which would tend to suggest that for a period, the father experienced significant issues with the abuse of alcohol. For the reasons that follow, I do not regarded as necessary or in the interest of the parties that all these matters are set out in detail.
The father asserts that he has never had an issue with alcoholism or alcohol abuse. He points to a letter that was written by the mother in support of him to his employer in late 2019, which was tendered into evidence. In that letter, the mother denies that the father had any issue with alcohol and that any issue he did have had been brought on by the excessive demands imposed by his role.
The mother says that the letter was written at the strong urging of the father and on terms largely dictated by him in circumstances where the father was in danger of losing his employment and his capacity to hold accreditation. She says that she was vulnerable and fearful for herself and her children given she lacked support and was reliant upon the father's income.
I accept the mother's evidence in that regard and note that this is not the first occasion where I have seen credible evidence of women presenting a false narrative to employers or authorities to protect their husband or partner.
The mother was described during closing submissions by the father as "a liar". I do not find this to be the case and I accept her explanation for submitting what she says was a false account of the father's condition.
Given that the father has now given evidence, which I accept, that he is abstaining from consuming alcohol and has done so for some time, and the mother has not asserted that he presents a risk to the children because of alcoholism, I do not have to make further findings in relation to this matter. The independent medical evidence is to the effect that he has abstained from alcohol and that he does not have an alcohol use disorder. Furthermore, I do not make any finding about whether the father was an alcoholic or affected by alcohol use disorder as such finding is not necessary.
Fixing a Bond
I will make an order for the mother to post a bond in the sum of $15,000 in an internal banking account with a solicitor with such sum to be held for a period of 4 years from the date of these orders on terms that they are to be released to the father in the event that the mother does not return to Australia pursuant to the terms of these orders (save without reasonable excuse). I am confident that the mother will comply with these orders. The quantum of the bond is fixed a level which takes into account the cost of enforcing these orders in Country B. The period of the bond is to allow the operation of the orders to become settled.
PROPERTY
Asset Pool based on Final Submissions
Asset Ownership Value C Street, Suburb D, VIC Wife $910,000 G Street, H Town, VIC and land north of the road Husband; T Family Trust $1,150,000 Land south of the road Husband; T Family Trust $590,000 J Street, K Town VIC Husband $260,000 Motor Vehicle 2 Wife $65,000 Motor Vehicle 1 Husband $24,000 Motor Vehicle 3 Husband $95,000 Joint Bank accounts Joint NIL Wife’s bank accounts Wife $45,000 Husband’s bank accounts Husband $28,035[6] Total Non-Superannuation Assets $3,167,035 Liabilities Owner Value CBA Home Loan Joint $447,000 Husband’s credit cards Husband $7,443.12 M Pty Ltd Loan Wife $9,000 Tax Liability Husband $63,474 Total Liabilities $526,917.12 Superannuation Owner Value (Husband) Superannuation Fund 1 Wife $14,000 Superannuation Fund 2 Husband $588,000 Total Superannuation $602,000 Total Assets including Superannuation $3,769,035 Total Assets less liabilities $3,242,117.88 [6] In final submissions handed up by the father, he noted this amount included $26,777 in account ending …83, and $1,258.41 in account ending …89.
The father, through final submissions made on his behalf, seeks orders reflecting a 61:39 split of non-superannuation assets in his favour. The father seeks to retain his rural and rental properties, and for the mother to retain the former matrimonial home, unencumbered, with a value of $1,020,000 and $214,000 in superannuation. He is no longer seeking an add-back for the payment of legal costs or the $190,000 in proceeds of the CC Town property retained by the mother.
The father seeks to retain 64.5% of the superannuation assets, which he submits is just and equitable in circumstances where his initial superannuation contributions were superior, and the mother is in a position to continue working and accumulating superannuation, where the father no longer expects to be able to work.
The mother seeks a 60:40 division in her favour.
EVIDENCE IN RELATION TO PROPERTY
Assets
The asset pool is largely agreed. Valuations were obtained in relation to the C Street property, the J Street property and the G Street properties.
The mother seeks to add back two lots of $53,000 for the father’s legal costs under Trevi & Trevi [2018] FamCAFC 173, as she submits they were joint funds applied solely to the father’s legal costs.
The father initially sought to add back $190,000 being the proceeds of sale the mother obtained from the sale of the CC Town property, and an amount unspecified for his legal fees. In written submissions handed to the court on 30 November 2022, the father says he no longer seeks any add backs in relation to either legal fees or the CC Town property.
The father has income insurance payments of $204,305.25 net annually. The mother seeks to include these as a financial resource in the father’s favour.
Contributions
Initial Contributions
It is undisputed that due to the age differences of the parties, the father commenced the relationship with significantly more assets than the mother.
The father’s trial affidavit sets out the evidence of his acquisition of property since 2003. In summary he:
(a)Purchased a property at J Street in early 2003, with the T Family Trust financial reports showing that the property was purchased for $48,000, with no loan outstanding at the time of cohabitation;
(b)Purchased a property known as the W Property in H Town together with two adjacent blocks in 2004 for $266,000, with no loan outstanding at the time of cohabitation; and
(c)Acquired two further blocks of land opposite the W Property at the end of 2005. There is no evidence of the cost of those blocks however the T Family Trust financial reports for the F/Y 2012 show that there was equity of $314,000 in the land.
The father states at [44] of his trial affidavit that his brother and father assisted in the purchase of the two further blocks opposite the W Property at the end of 2005 and the company T Pty Ltd was incorporated in order to do this with he and his brother appointed directors of that company. The father’s financial statement shows the W Property as being owned by the father to the extent of 90.23% and T Pty Ltd to the extent of 9.77%. The blocks opposite are said to be owned by T Pty Ltd and no share of any value is attributed to the father. The father’s outline of case has the value of those properties at $590,000. I will treat those properties as a financial resource of the father in circumstances where he is a director of T Pty Ltd and no evidence has been produced by the father of the extent of his brother’s interest in the property. Those properties have been included in the father’s summary of assets in his outline of case as assets to be considered when making orders. He has not sought to have those assets excluded from the property pool available to be subject to orders.
The father gave evidence that the property was already an operational business at this time, which is disputed by the mother. He exhibited his tax returns from 2013 which showed the business running at a loss of $35,500.
He also had approximately $180,000 in superannuation, and two motor vehicles.
The father gives evidence that his father provided financial contributions including a gift of $80,000, and contributing to the purchase of the property along with his other sons. In summary, the father had contributed about $648,000 in property, two cars and superannuation of $180,000.
At the commencement of cohabitation, the mother had savings of approximately $50,000.
During Cohabitation
It is undisputed that the father was the primary income earner throughout the relationship, whilst the mother was the primary homemaker and carer. It is undisputed that the parties had a nanny at times to assist with the children. The mother states in her affidavit that her career was largely tempered to allow her to support the father and his career, and to look after the children. The mother worked part time on a few occasions, including eight weeks after X was born, for three hours a week. During these times, X would be cared for by either the father, or a babysitter, then eventually as the mother’s hours increased to 2.5 days per week, X went into day-care.
The mother assisted in duties while the father maintained his career in K Town. She lists her duties at [34]-[35] of her trial affidavit.
Volunteer backpackers also assisted in the running of the property in exchange for room and board.
The father submitted that the property was a primary producer and created income. The mother denied this and stated that it was always a net drain on their financial resources. As set out above, the evidence before the court is the father’s exhibited tax statement from 2013 which shows the business running at a loss.
The property was affected by natural events in 2013. The mother’s mother gives evidence by her affidavit filed 15 August 2022 that she and her husband came to Australia for three weeks in mid-2014 to assist in the clean-up. She states that she did the majority of the clean-up. The father gives evidence that his own father helped by trying to save the property during the event at significant risk to his own health and developed a chronic condition and sustained a significant injury. The father gives evidence that the event ruined his production business and there was no livestock remaining.
The mother gives evidence that the father purchased a mobile home for his father in 2013 which she estimates cost $85,000, which was permanently damaged in 2018 and was not covered by insurance.
The parties travelled to Country B on six occasions during the marriage, all but one of which were paid for by the mother’s parents, including flights, accommodation and events during the holidays.
The father is a director of a family trust. The mother was made a joint director in 2017, and had full access to all trust accounts until mid-2021 after separation.
In 2017 the parties acquired the W Property in the mother’s sole name, and the CC Town property as an investment property, also in the mother’s sole name.
In 2019 the W Property was sold. The mother states this was a joint decision following the father’s termination, and the proceeds were applied against the C Street mortgage when the property was purchased in 2019 in the mother’s sole name. The father states that the W Property was sold without his consent, and he submits the mother sold it for below market value.
The father was responsible for repayments on the C Street mortgage until early 2022.
Post Separation
The father claims that the mother unilaterally sold the CC Town property without his consent in 2021. The mother disputes this. She gives evidence that she and the father were discussing selling it, and he knew she was making efforts to sell the property. It is undisputed that the property was in her sole name. The father gives evidence in his trial affidavit that he and the mother did indeed have discussions to sell the property, and he knew of her efforts to attempt to sell. He says they agreed to not sell for less than $220,000, and he was not aware of and did not consent to the offer of sale for $195,000.
The mother gives evidence that the father was aware and encouraged the mother to make efforts to sell the property, given the market was strong at the time. She gives evidence that she discussed any enquiries into selling the property with the father. She states they also discussed selling the K Town property, but this sale did not occur.
The mother submits that upon returning to Australia in mid-2021, the father revealed to her that he had a “confidential illness” and was unable to work or support the children, and he wanted his time with the children reduced to a few hours per fortnight. She submits that she felt financial pressure given the father had told her he could not financially support the family due to his illness. She transferred the proceeds into her sole account once the property sold. She submits she did this because of the father’s financial control and his unilateral withdrawals from their joint account.
Both parties give evidence that the other unilaterally withdrew funds from their joint account. It is undisputed that the mother withdrew $40,000 in mid-2020 prior to travelling to Country B. She gave evidence she has spent this amount since returning on general living expenses.
The mother gives evidence that the father withdrew $106,000 in mid-2021, $53,000 of which was transferred into his sole account and she submits was used to pay legal fees, and $53,000 into the joint home loan account. The mother also gave evidence that the father made several large payments from the joint account without her consent, including spending $12,479 at a retailer.
Since separation, the mother gave evidence that the father’s removal of $106,000 from the mortgage account without her consent in late 2021 increased the mortgage repayments on the former matrimonial home, which put significant financial pressure on her. The mother also gave evidence that she has been predominately supporting the three young children alone. She applied for a child support assessment in October 2021, and the father refused to pay as assessed until March 2022. He gave evidence that this was due to his disability and inconsistent income.
Whilst the mother was in Country B, she was supported by both the father and her parents. The mother had access to the joint credit card for groceries, and the father sent her money on a regular basis, and her parents assisted with daily expenses, school fees and accommodation.
The mother gives evidence that after her return from Country B, the father became financially controlling, including changing the password for their banking, and not giving her the replacement card to their joint account upon the expiration of the old one. The mother gives evidence that the father paid household expenses for the mother from mid-2021, but the father insisted she sent the bills to him, and she was not allowed to pay them directly.
The father argues that consequently contributions should be assessed 70:30 in his favour. The mother argues they should be assessed 55:45 in the father’s favour.
Section 75(2) Factors
The father seeks there be no adjustment to either party in terms of future needs. The mother seeks a 15% adjustment in her favour.
The mother gives evidence that she currently works 80% of a full time role, and earns $72,000 per annum. If she is required to stay in Australia, her income earning capacity will not increase without significantly impacting her ability to care for the children.
The father submits that he is permanently unable to work due to health issues set out above. In the past, he worked as a health professional, earning as much as $480,000 per annum.
He sets out a number of payments he has received under this insurance policy at [98] of his trial affidavit, being:
(1)$7,780.50 (gross, no tax paid) on 8 September 2021;
(2)$25,935 (gross, no tax paid) on 13 October 2021;
(3)$77,805 (gross, no tax paid) on 21 December 2021;
(4)$25,935 (gross, no tax paid) on 1 March 2022;
(5)$25,935 (gross, no tax paid) on 17 March 2022;
(6)$25,935 (gross, no tax paid) on 29 April 2022; and
(7)$21,790.34 (net payment) on 24 June 2022.
He gives evidence that he submitted a WorkSafe worker’s injury claim to an insurer, and his claim for a mental health issue was accepted.
There is limited evidence about the father’s prospects of returning to work. In his oral evidence before the court, Dr O, a psychiatrist who prepared a report in this matter, gave clear and unequivocal evidence that he believed that the father was currently fit to work as a health professional. This is set out above.
LEGAL APPROACH TO PROPERTY
Section 79 of the Act provides that:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the court is required to take into account the matters set out in s 79(4) of the Act, as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The court is required to consider:
(1)Whether the parties have separated;
(2)The assets and liabilities of each party;
(3)The contributions of each party;
(4)The future needs of each party taking into account the matters set out in subsection 75 (2) so far as they are relevant;
(5)Bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
(6)What orders, if any, are just and equitable in all the circumstances of the case (Stanford & Stanford (2012) 247 CLR 108).
CONSIDERATION OF PROPERTY
The Balance Sheet
The asset pool in this matter is set out at [200] above. There are minor discrepancies between the asset pools contended for. I accept the total asset pool is $3,317,519. I accept the submissions of the mother, that add backs for legal fees should not be made
Contributions
The court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J); Jabour & Jabour [2019] FamCAFC 78, [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan [2021] FamCA 306, [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
It is apparent that because of the disparity of ages and the father’s longer involvement in the workforce, he made the greater initial contribution to the marital assets. Given the length of the marriage and the importance of the mother’s contributions in assisting the father on the property and as a homemaker, primary carer of the children, and her own contributions through her income, those initial contributions of the father assume less prominence. The evidence in relation to the father’s initial financial contribution is set out at [207] above. There are no retrospective valuations of the properties that he owned as at late 2012 save that the T Family Trust financial reports show that there was equity in the property of $314,000 as at 2012. Whilst there is no precise value, it is apparent that the father’s financial contribution at the commencement of the relationship exceeded by a considerable extent the mother’s initial contribution of $52,000. [7] However, the mother’s contributions as a mother and homemaker and support the father in his role as a health professional have been significant. Her contributions since separation through part time employment have also been significant.
[7] Exhibit A7
In my view, I assess the contributions to the family assets (as assessed at the time of trial) as 55:45 in favour of the father.
Relevant s 75(2) factors
Turning to the issue of relevant matters set out in s 75(2) of the Act pursuant to s79(4)(e):
·Section 75(2)(a) – age and health
The mother is aged 34 and there is no evidence of any health issues presently affecting her.
The father is 49 and his health issues are outlined above. It is apparent from the medical evidence of Dr O that the father’s health issues are stress related, with much of that stress arising from the issues giving rise to these proceedings, and his involvement in the legal proceeding. Dr O expresses the opinion that the father was currently fit to work as a health professional. Given his still relatively young age and his previous commitment to his career as a health professional, he is more likely than not to resume in that role, particularly when proceedings have stopped. The investigation into his fitness has been resolved in his favour, which will have removed the substantive stressor. The partial resolution of these proceedings will also remove a stressor to some extent. I also assume that his commitment to attaining a high level of achievement in his life as recorded in his trial affidavit at [23] – [50] will continue once the stressors are removed, particularly when as his children grow older and will rely on his financial support in order to achieve their full potential.
·Section 75(2)(b) – income, property and financial resources
The mother’s capacity to earn substantial income is affected by the fact that she is the primary carer of three young children without substantial supports in Suburb D. Her modest income derived from part time work is likely to continue for some time.
The father is currently in receipt of the benefits of income protection insurance. The details of which are set out at [232] of his trial affidavit, and further documents tendered at trial.
The father is a health professional. The father has the capacity to earn a substantial income, as set out at [238]. Given the unequivocal evidence of Dr O, I think it more likely than not that the father will resume employment as a health professional once these proceedings are concluded.
·Section 75(2)(c)(d)(e)(g)(l) – care of children and necessary support
·Section 75(2)(f) – pensions allowances or benefits
·Section 75(2)(h) – effect on earnings
·Section 75(2)(j)(k) – impact of relationship on earning capacity
·Section 75(2)(k) – duration of marriage
This is a marriage of over 7 years in duration.
It is clear that the mother assumed the role of homemaker and primary carer within the marriage, which significantly impacted her earning capacity. She gave evidence that she was reliant on the father’s income in order to support herself and the children, as she was limited to part time work due to her care of the children.
She gave evidence that she is currently working part time and earns $72,000 per annum. She does not expect her capacity to work to increase whilst she remains in Australia with primary care of three children, given she does not have family around to assist in caring duties.
It is also clear that during the marriage, the father was able to work long hours and earn a substantial salary, which would not have been possible without the mother providing support as homemaker and primary carer. Whilst the father’s evidence is he is currently unable to work and is earning approximately $270,000 after tax per annum through income protection payments, as set out above, it is unlikely that his earning capacity will not increase given the medical evidence and his relatively young age.
·Section 75(2)(m) – financial circumstances relating to current cohabitation
·Section 75(2)(n) – terms of any property settlement
·Section 75(2)(na) – child support
The father did not pay child support until March 2022, despite the mother applying for an assessment in October 2021. As of March 2022, he has been paying $2,600 per month to the mother. There was no relevant evidence or submissions made in relation to s 75(2)(m), (n) or (na).
·Section 75(2)(o) – any other fact or circumstance
No other matters are relevant.
Evaluation of s75(2) factors
The mother is the primary carer of the children and by reason of these orders will remain as such. The father has a greater income (or sources of funds) at present and this is likely to continue.
For the reason set out above, the father is likely to be in a position to resume employment as a health professional and will enjoy a substantially higher income than the mother for a considerable period.
The mother will have the ongoing care of the children and the expenses associated with that whilst the children are still young. The father may have an ongoing obligation to pay child support. However, I note that the $2,600 per month which he is ordered to pay for the support of the three children to a reasonable standard is unlikely to go far.
For these reasons there should be an allowance in the mother's favour of 10% to allow for her on going needs and having regard to the factors referred to in section 75(2) of the Act.
Conclusion
Having regard to these findings, I will make orders that the non-superannuation assets be distributed 56.5:43.5 in favour of the mother.
I will make orders that the superannuation assets be distributed 64.5:35.5 in favour of the father. I make those orders having regard to the father’s contributions to superannuation over a longer period of time.
Spousal Maintenance
By way of orders sought by the mother provided to the court on the final day or hearing, the mother seeks pursuant to s 77A of the Act for an order that there be an allowance of 2.5% of the net non-superannuation assets as provision in her favour of spousal maintenance. Alternatively, the mother seeks that the father pay her $1,650 per week for 12 months as spousal maintenance. No claim was made in the further amended initiating application, but orders of Judge Glass made on 14 November 2022 noted that the issue of spousal maintenance would be determined at trial. The mother’s case outline sought that a s 77A provision be included in final orders noting that 2.5% of the final property orders were attributable to provision of spousal maintenance.
From the disparity in incomes and the cost of maintaining the children and a household, it is appropriate that the father make a contribution of $1,500 per week for 12 months of spousal maintenance. The mother has the need for such by reason of her primary care of the children and the impact that has on her capacity to earn and the father has the capacity to meet that expense. I make that order as a lump sum payment based on an adjustment of the non-superannuation assets so as to avoid ongoing administrative arrangements around weekly payments.
Other Matters
The mother, by her proposed orders filed on the final day of hearing, prior to closing submissions, sought orders for the return of various chattels, and the court requested the parties file additional submissions relating to these items following the conclusion of the trial. The chattels that are sought to be returned to the mother are as follows:
(1)Wedding ring;
(2)Engagement ring;
(3)Business equipment and notes; and
(4)Sporting equipment and recreational vehicle.
In regard to the wedding and engagement rings, the father states that the mother lost her original wedding ring and the father bought a replacement ring as an anniversary gift, which she has in her possession. He submits that the mother has been in possession of the wedding and engagement rings and he consents to her retaining these items. The mother states that she left her wedding and engagement rings in the safe at the former matrimonial home when she left for Country B in late 2020. Upon her return in mid-2021, she found that the rings had been removed from the safe during her absence. She has requested their return from the father, who has not provided them.
In relation to the business equipment and notes, the mother believes there is equipment remaining at the property that belongs to her, while the father asserts that all equipment has been returned and is currently in the mother’s possession.
Both parties seek to retain the sporting equipment. It is undisputed that they are currently in the possession of the father. The mother submits that she and her mother purchased the sporting equipment, and submits that they were purchased for the enjoyment of the children, and since she seeks primary care, she seeks to retain the sporting equipment for the children’s benefit. The father submits that one of the items was purchased by the mother as a gift for him. He agrees that they were purchased primarily for the children, but submits that he has a strong sentimental attachment to the sporting equipment and seeks to retain them for use on his property.
If the wedding and the engagement rings are in the possession of the father then they should be delivered up to the mother.
Given that the father will continue to spend time with the children prior to and following any relocation to Country B (including when they return to Australia each year in accordance with these orders) it seems sensible that he retains possession of the sporting equipment and recreational vehicle so that they can be used when the children visit his home. I presume that the father will cooperate with the mother in the event that she wishes to use the sporting equipment with the children.
The delivery of these reasons was delayed until after the time for the mother and children to return from Country B provided for in interim orders made 5 December 2023 had passed. The court did not want the implementation of these orders to interfere with the mother’s time with the children in Country B, and to ensure that the interim orders were complied with.
For these reasons, I make orders as set out above.
I certify that the preceding two hundred and seventy-six (276) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 3 May 2023
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