BLIZZARD & CAMOES
[2015] FamCA 1090
•8 December 2015
FAMILY COURT OF AUSTRALIA
| BLIZZARD & CAMOES | [2015] FamCA 1090 |
| FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Where the mother seeks to relocate the children to Country I – Where the father and the Independent Children’s Lawyer oppose the application – Consideration of section 60CC – Where there is dispute as to whether the parties intended to permanently reside in Australia – Where the children were born in Australia and have never been overseas – Where the mother suffers from reactional depression – Where the Court finds orders for the children to remain in Australia to be in their best interest – Where the Court finds the presumption of equal shared parental responsibility is to apply – Where the Court finds equal time is not Reasonably practicable – Orders made as sought by the Independent Children’s Lawyer. |
FAMILY LAW – PROPERTY – Where the parties have assets in Europe and Australia – Where it is agreed orders are to be made dividing the Australian pool of assets and superannuation – Where the Court finds it just and equitable for there to be orders for the alteration of property interests pursuant to section 90SM – Where the primary Australian asset is the former family home and both parties seek to liquidate it – Whether money advanced by the de facto wife’s parents is a loan – Where the Court finds no loan exists but the funds are a direct financial contribution – Where the Court finds an overall equality of contribution by the parties – Consideration of section 90SF(3) factors – Where the de facto wife has greater responsibility to care for the children – Where the Court finds an adjustment is to be made in favour of the de facto wife – Orders made for the former family home to be sold with the net proceeds of sale to be divided 69 per cent to the de facto wife and 31 per cent to the de facto husband – Superannuation splitting order made.
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 90SF, 90SM |
| MRR v GR (2010) 240 CLR 461 Taylor & Barker (2008) 37 FamLR 461 |
| APPLICANT: | Ms Blizzard |
| RESPONDENT: | Mr Camoes |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lonergan |
| FILE NUMBER: | MLC | 8891 | of | 2013 |
| DATE DELIVERED: | 8 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 31 August, 1-4 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Puckey |
| SOLICITOR FOR THE APPLICANT: | Berger Kordos Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hall |
| SOLICITOR FOR THE RESPONDENT: | Robinson Gill |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidleson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
Parenting
All existing orders in relation to the children:
·B born on … 2008 (“B”); and
·C born on … 2011 (“C”)
(collectively “the children”) are discharged.
The parties will have equal shared parental responsibility for the children.
The children will live with the mother.
The children will spend time with the father as follows:
(a) Until C attains the age of five years:
(i)Each alternate weekend from the conclusion of school/childcare on Friday until the commencement of school/childcare on Monday;
(ii)Each alternate Wednesday from the commencement of school/childcare on Thursday; and
(iii)On special occasions as defined in Order (5).
(b) From C’s fifth birthday:
(i)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on Tuesday;
(ii)For one week in each Victorian school holiday period as agreed from time to time or to be the first week in default of agreement; and
(iii)For one half of the Christmas school holidays commencing in 2016/2017 as agreed from time to time or to be the first half in default of agreement.
On special occasions the children will spend time with each parent as follows:
(a) with the father from 10.00 am to 5.00 pm on Father’s Day;
(b) with the mother from 10.00 am to 5.00 pm on Mother’s Day;
(c)with the father and mother respectively from 10.00 am until 5.00 pm on the birthday of that parent;
(d)for a period of four hours on each child’s birthday as agreed or from 3.30 pm until 7.30 pm with the parent who is not caring for the children pursuant to these Orders;
(e)with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2015 and each alternate year thereafter;
(f)with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2016 and each alternate year thereafter; and
(g)with the father from 3.00 pm on New Year’s Eve until 3.00 pm on New Year’s Day in 2015/2016 and each alternate year thereafter.
The parties will execute changeovers for the purpose of implementation of these Orders at the children’s school/childcare centre if possible; or otherwise by the father collecting the children from the mother’s residence at the commencement of time and the mother collecting them at the father’s residence at the conclusion of time.
Each of the parties is at liberty to travel with the children to his and her country of origin, or such other international destinations as may be agreed from time to time, on one occasion per year.
Each party is at liberty to communicate with the children by telephone and electronic means at all Reasonable times.
Each party will notify the other as soon as is practicable of any serious illness or injury suffered by either child while in his or her care.
Each party will keep the other informed at all times of his and her residential and email address and contact telephone number.
Alteration of property interests
That both parties do all things and execute all documents necessary to effect the sale, for the best price Reasonably obtainable, of the property situate at and known as D Street, Suburb E in the State of Victoria and to distribute the proceeds of such sale as follows:
(a)in payment of agent’s commission and expenses incidental to the sale;
(b)in payment of legal costs and expenses incidental to the sale;
(c)in payment to Citibank of all moneys necessary to discharge the mortgage registered on the title to the property;
(d)in payment of an amount equal to 69 per cent of the balance then remaining to the de facto wife; and
(e) in payment of the balance to the de facto husband.
That Orders (13) to (16) of these Orders are binding on Colonial First State Investments Limited as trustee of Colonial First State FirstChoice Personal Super account (“the fund”).
That the base amount allocated to the de facto wife in these proceedings out of the interest of the de facto husband (member number 0100 1983 0064) in these proceedings in the fund is $23,651 (“the base amount”).
That pursuant to section 90MT(1) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the de facto husband in the fund the applicant 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 and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
That Order (13) has effect from the operative time.
The operative time for the purposes of Order (13) is four (4) business days after the date of service of a certified court sealed copy of these orders upon the trustee of the fund.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blizzard & Camoes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: MLC8891 of 2013
| Ms Blizzard |
Applicant
And
| Mr Camoes |
Respondent
And
| Independent Children’s Lawyer |
Victoria Legal Aid
REASONS FOR JUDGMENT
The proceedings
The applicant mother, Ms Blizzard, and the respondent father, Mr Camoes are the parents of two children:
·B born in 2008 (“B”); and
·C born in 2011 (“C”).
B and C are aged seven and four years respectively.
The proceedings concern parenting arrangements and settlement of the property of the de facto spouses. The mother sought orders to the effect that the children relocate with her to Country I, a proposal which was strongly resisted by the father. She proposed that, in the event that the father also relocates to Europe, the children spend time with him each alternate weekend from Friday afternoon until Monday morning and every Wednesday night until the commencement of the second school term in 2017. From that point, time would increase to five nights per fortnight from Wednesday afternoon until Monday morning in each alternate week. Until 2017 the children would spend time with the father during the short school holidays for three days in the first week and four days in the second week. In the long summer holidays, the children would spend time with the father in a two-week cycle for three days in the first week and four days in the second week. From 2017 the children would spend half of all school holidays with each parent.
In the event that the mother and the children relocate to Country I and the father remains in Australia, her proposal was that they spend time with him in this country for three weeks in the Country I summer school holidays in 2016 and 2017. This time would increase to four weeks from 2018. The mother proposed further that the children spend time with the father in Country I during the short school holidays, conditionally upon his providing three months’ notice of proposed dates. The mother suggested that the children communicate with the father by Skype and telephone on a weekly basis and on special occasions.
In the event that the children continue to live in Australia, the mother proposed that they spend time with the father each alternate weekend from Friday afternoon until Monday morning and every Wednesday night until term 2 in 2017. From that point, time would increase to five nights per fortnight from Wednesday afternoon and until Monday morning in each alternate week. The mother proposed further that the children spend time with the father for half of all short school holidays and two weeks during the Christmas vacation.
The father proposed that the children continue to live with the mother in Australia and spend time with him on a graduated basis, leading to an equal time arrangement to commence in term 1 of 2017. The father proposed further that the children spend time with him for half of all school holidays and on special occasions.
In the event that both parents and the children live in Reasonable proximity in Country I the father proposed that they spend time with him for four nights per fortnight for two school terms. From that point the children would spend five nights per fortnight with the father for two school terms. At the end of that period, the children would begin to live with each parent on a week-about basis.
If the mother and the children relocate to Country I and the father remains in Australia, he proposed that they spend time with him for half of the Country I summer vacation and for one week in each of the two-week school holiday periods. This time would occur in Australia on two occasions per year.
In the event that the mother and children relocate to Country I and the father lives in another European country, he proposed that they spend time with him for three out of four weekends and half of all school holidays. If the mother lives outside Australia and the children and the father remain in this country, he proposed that they spend time with her for two Victorian school holidays and half the summer vacation.
As to property settlement, each of the parties sought orders for the sale of the former family home at D Street, Suburb E. The mother sought a division of the net sale proceeds as to 80 per cent in her favour and the balance to the father. For his part, the father sought a division of the net proceeds of sale in the ratio of 60 per cent and 40 per cent to himself and the mother respectively.
Background
The mother was born in 1970 in Country I and is currently 45 years of age. The father was born in 1973 in Africa and is presently aged 42 years. The mother is a citizen of both Country I and Australia. The father holds dual citizenship in Country I and Australia.
The parties met in their workplace in Europe and began a relationship in May 2007. At this time the mother lived in City F and the father in City G. The father was involved in a long-term relationship with another Country J lady, but, apparently, they were approaching a separation.
In July 2007 the mother discovered that she was pregnant to the father. The parties decided to move to Australia, as the father had been offered employment with H Pty Ltd (“H”) in Melbourne.
At the commencement of the parties’ cohabitation the father owned an apartment in Country J jointly with his then partner Ms K. This property was subject to a mortgage and had a negative equity. The father’s annual salary was approximately €52,000.
The mother maintained that she owned shares, cash and a motor vehicle to a total value of about €100,000 at the commencement of cohabitation. She contended that she transferred a total of approximately $104,500 from Country I to Australian bank accounts in the name of the father during the relationship. Bank statements tendered in evidence (Exhibit 14) established that she did so. The mother owned an apartment in Country I, which had been gifted to her by her parents. During the relationship, this property generated rental income which was paid into the mother’s Country I bank accounts.
When the mother came to Australia she took maternity leave from her employment in Country I. She maintained private health insurance, gym membership, bank accounts and superannuation policies in Country I throughout the parties’ residence in Australia.
The parties moved into rented premises at Suburb L in April 2008. In February 2010 they signed a twelve month lease for a house in Suburb M. When the parties’ son B was born in 2008, the maternal grandmother and the mother’s sister travelled to Australia. The mother’s sister stayed for ten days and the maternal grandmother assisted the mother with the care of B for three months.
The father maintained full-time employment after the birth of B and the mother assumed the role of primary carer and homemaker. From 30 June 2009 B attended child care for one day per week. This arrangement increased to two days per week on 1 November 2010 and to three days from 7 February 2011.
On 31 January 2010 the father was made redundant from his employment with H. On 5 February 2010 he secured a new position with N Ltd (“N”). .
On 24 February 2010 the father was involved in an accident while riding his motor scooter. He sustained injuries to the left side of his body, in particular to his wrist. These injuries necessitated surgery on four occasions between the date of the accident and 11 December 2012.
The injury and surgeries limited the father’s capacity to work on a full-time basis on occasions during 2011. He continued to receive income by way of sick leave or payments from the Transport Accident Commission.
In October 2010 another position at N became vacant and the parties decided that the mother should apply for this job. According to the mother, she made this decision because the father’s income had reduced by some $23,000 per annum and the parties were expecting their second child.
The mother maintained that she wished to work for only two days per week but agreed to accept the position on the basis of a three-day week due to financial pressure. She commenced employment in February 2011 and took maternity leave between March and June 2011. Upon C’s birth in 2011, the mother became eligible for an additional three years maternity leave with her Country I employer. C began to attend child care for three days per week on 11 July 2011, at the age of three months.
The father claimed that the parties made a decision to live permanently in Australia between C’s birth and July 2011. The mother maintained that she believed and expected that the family would relocate to Country I after they obtained permanent resident status in Australia. On 28 December 2011 the parties applied for permanent residency, which was granted on 4 June 2012. On 17 August 2013 the mother applied for Australian citizenship for herself and the children, which was granted on 1 October 2013. The father obtained Australian citizenship in December 2013.
In 2013 the father received a total of $232,810 as compensation for the injuries which he suffered in the motor scooter accident. These funds were applied to the purchase of the former family home at D Street, Suburb E in April 2013. The purchase price was $661,000, which the mother alleged came from the following sources:
·Citibank mortgage: $360,000
·mother’s savings: $50,131
·joint savings: $55,511
·father’s compensation: Balance of purchase money.
The father gave no evidence to the contrary.
The parties separated on 22 July 2013, when the father left the family home and moved into rented accommodation. The circumstances of the separation, and the relevance of this evidence, are considered below in these Reasons.
On 25 September 2013 the mother was made redundant from her employment with N. She received a payment of approximately $15,000, which she deposited into a Citibank account. An offset facility in relation to the mortgage on the Suburb E property was attached to this account.
Prior to the separation, the salaries of both parties were deposited into the Citibank mortgage offset account. Thereafter the mother continued to deposit her salary into this account. The father lodged his salary into a Commonwealth Bank account in his sole name.
On 25 September 2013 the husband’s solicitors wrote to Citibank and stated, inter alia: “Our client does not consent to any funds being unilaterally redrawn/withdrawn by either party from any of the accounts. Joint consent in writing must be obtained prior to any redraw/withdrawal from the accounts.”
Because of this letter the mother was unable to access any funds in the Citibank account, including her redundancy payment. For a time, the mother was obliged to borrow money from acquaintances in Australia and her sister in Country I. Understandably, the mother was extremely distressed at being deprived of access to these funds.
On 24 October 2013 the father was assessed to pay Child Support in the sum of $1,251 per month. There was no suggestion that he fails to honour his obligation to provide financial support for the children.
In November 2013 and on 18 December 2013 the parties attended mediation but could agree only that the father see the children on Wednesdays from 4.00 pm until 7.00 pm. Until the time of the trial in September 2015, the mother declined to allow the children to spend more than two consecutive nights with the father. In cross-examination by counsel for the Independent Children’s Lawyer (“the ICL”), however, the mother offered her consent to an immediate increase in the children’s time with the father.
The evidence and witnesses
The applicant mother relied upon the following affidavits:
1.Ms Blizzard (the mother) affirmed 10 August 2015;
2.Ms O Blizzard (the mother’s sister) affirmed on 10 August 2015;
3.Mr P Blizzard (the mother’s father) sworn on 7 August 2015;
4.Dr Q (the mother’s General Practitioner) sworn on 6 August 2015;
5.Ms S (psychologist) sworn on 6 August 2015; and
6.Financial Statement affirmed 10 August 2015.
Dr Q and Ms S were not required for cross-examination. The mother, Ms O Blizzard and Mr P Blizzard all gave oral evidence, by way of telephone from Country I in the case of the latter.
The respondent father relied on the following affidavits:
1.Mr Camoes (the father) sworn on 17 August 2015;
2.Mr T (acquaintance of the parties) affirmed on 17 August 2015; and
3.Financial Statement sworn on 17 August 2015.
Mr T was not required for cross-examination.
I had the assistance of a report dated 28 April 2014 from Dr U, a psychologist who interviewed and observed the parties and the children on 15 April 2014 (Exhibit 2). Dr U gave no oral evidence. I also had the benefit of a Family Report dated 3 June 2015 prepared by Family Consultant
Ms V (Exhibit 1). Ms V gave oral evidence by way of
cross-examination by counsel for the mother, the father and the ICL.
Approach to these proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and several “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are Reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and Reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and Reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “Reasonable practicability” are defined in sections 65DAA(3), (4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is Reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents
(para (b)). In such a circumstance the Court is obliged to:(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is Reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9]Each of subss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is Reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is Reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
[13]Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is Reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is Reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and Reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
[15]Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in
s 61DA(1) is not determinative of the questions arising under
s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …In Taylor & Barker (2008) 37 FamLR 461 the Full Court (per Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:
(i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:
U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224 applied.
(ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the Reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, such a proposal now also needs to be considered in the context of s 65DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
….
(v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “Reasonable practicability” of such an arrangement, some assistance would have been gained from s 65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “Reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.
(vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and Hl consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
Goode & Goode (2006) FLC 93-286 applied.
Section 60CC Considerations
Primary Considerations
The primary considerations can be addressed succinctly. Nothing in the evidence suggested any need to protect the children from physical or psychological harm due to being exposed or subjected to abuse, neglect or family violence. Each of the parties acknowledged the admirable qualities and parenting skills of the other and their positive contributions to the lives of the children.
On 28 April 2014, Dr U reported as follows:
I noted that [Mr Camoes] was keen to praise [Ms Blizzard’s] parenting of the children and he said that she is a “good mum [and] she loves her children and she is caring. I know that my kids are in good hands” but complained that he felt [Ms Blizzard] was misguided in allegedly trying to keep the children from him since their separation …
Dr U reported further:
[Ms Blizzard] emphasise (sic) that the children’s relationship with their father is very good. She said that she knew the children love their father and that [Mr Camoes] loves them. She also thought that
[Mr Camoes] has particular talents and interests that he shares with the children outside of her relationship with them. She gave as an example that [Mr Camoes] takes the children to “amazing” things, events and activities that they enjoy (“great fun for the children”).It is true that the mother has been restrictive in terms of the children’s time with the father but it was my impression that, by the end of the trial, she had adopted a much more accommodating approach. As noted, she agreed with the ICL’s proposal that the children immediately begin to spend time with the father each alternate weekend from Friday afternoon until Monday morning and every other Wednesday night. The mother agreed further that the children’s time with the father should increase to five nights per fortnight from C’s fifth birthday.
Accordingly I am comfortably satisfied that there is no need to protect the children from abuse, neglect or family violence. It is well evident that the children currently enjoy and benefit from a meaningful relationship with each of their parents.
Additional Considerations
As the children are aged seven and four, their views as to prospective living arrangements would carry no significant weight. Obviously a seven year old, and to an even lesser extent a four year old, could not comprehend the complexities and implications for them of the mother’s proposed international relocation.
The Family Consultant utilised “bear cards” to “portray [B’s] responses in him or his respective parents to current parenting arrangements”. She reported:
39.[B] was a little less vigilant when choosing bear cards to portray responses in him or his respective parents to the current parenting arrangements. He picked a very contented, smiling bear to represent him playing with his father at the park. He picked a distressed and anxious bear for his mother at changeover. He commented that he would like an increase of overnight time with his father. This was the only time in the interview where he dropped his guard and smiled. However, he added quickly “but we only ever have two days”.
40.[B] had announced that he needed to go to the toilet which was possibly his way of extricating himself from the pressure he was feeling in having to identify his feelings or more precisely the predicament for loyalty binds. The interview session was terminated in keeping with his wish.
The Family Consultant utilised the same technique in relation to C and reported:
41.She picked a relieved smiling bear with its hands in a prayer gesture to represent herself being united with her father for spend time. Like [B], she picked a teary bear to represent her mother farewelling her to spend time, commenting that her mother becomes sad and lonely in the children’s absence. But for her father farewelling him to his mother’s care, she picked a calm, smiling bear.
Dr U identified that the children have close and positive relationships with each parent. She reported inter alia:
Throughout the assessment [Ms Blizzard] was very responsive to the children. The children greeted her joyously on reunification with them and they separated easily from her. Their behaviour across the assessment showed a very confident style that suggested supreme confidence in their carers and an experience of consistently responsive parenting
…
The children ranged alone and also came together to play with one another and their mother. [Ms Blizzard] showed skill in managing them and provided gentle reprimands and imposed boundaries as required.
…
On seeing their father, the children quickly brought him into their play and showed him things they had been playing with
…
[Mr Camoes] was lively, loving and eager to play. The children showed enthusiasm for their father’s attention and exhibited confidence that he would understand, interpret and meet their needs.
Both children competed to keep [Mr Camoes’] attention and he moved between them and managed them kindly.
Like [Ms Blizzard], [Mr Camoes] easily imposed boundaries and encouraged the children about their manners and prosocial behaviour.
…
The children parted from their father by hugging him and parting slowly from him. They showed reluctance to leave and [Mr Camoes] encouraged them gently by reminding that he would see them soon.
The children’s reunification with their mother was relaxed and pleasant.
In terms of the proposed relocation, I accept entirely that the mother and her family would make proper arrangements to meet the children’s day-to-day needs. The mother and children could live in the home of the maternal grandparents, until she is able to arrange independent accommodation. The mother and her parents have made enquiries concerning schools for the children. I have no concerns in relation to the physical environment which would be offered to the children in Country I.
The proposed relocation to Country I, however, would impose very significant changes to the children’s lives and require major adjustments on their part. They have lived in Australia for the whole of their lives and know of no other lifestyle. They have never so much as had a holiday in Country I or any other European country. In fact, they have never travelled outside Australia.
The father gave this uncontradicted evidence:
116.The children enjoy typical Australian foods and having Australian experiences, such as enjoying Vegemite on toast or directly from the jar; eating meat pies at the MCG whilst watching [football] matches; and being at a sausage-sizzle which occurred every Saturday after their swimming lessons which happened prior to separation.
117.The children have strong Australian accents despite their [Country I] and [Country J] influences.
The father maintained that he would experience real difficulties if he were to attempt to relocate to Country I. I accept that he does not speak Country I, has a basic command of French and is fluent in English, Spanish and Country J.
The father maintained that he would have substantial difficulty in obtaining employment in Country I. The mother produced a large number of advertisements for jobs in the information technology field in Europe (Exhibit 3) which she alleged would be suitable for the father. When these advertisements were shown to the father he commented: “None of the jobs advertised, very few, match my work experience.” Later in his oral evidence, however, he conceded that he may be qualified for some of these positions.
The father indicated that he would probably live with or near his family in Lisbon if he were to relocate to Europe. He said: “If I go back to Europe I will need to stay with my family to sustain myself.” The father explained that he would be most reluctant to return to Europe without the security of employment. He said: “I am not prepared to go to Europe without employment. I need to pay rent, sustain myself, pay child support.”
The mother and her parents offered the father accommodation in a cabin owned by friends of their family. The father said that he has never met these people, who gave no evidence in the case for the mother. Assuming that this offer was bona fide, I consider the father’s reluctance to take up this option understandable in the circumstances. The father explained: “It seems a bit daunting to go to a place I might not be able to pay for, a feeling that I am being constantly controlled.”
The mother has not lived in her home town of W Town since 1992. For the past 23 years she has lived elsewhere in Country I or, since 2007, in Australia.
Considerable emphasis was placed by the mother on the difficulties which she alleged she would encounter if she is unable to move to Country I with the children. The mother relied upon evidence from her general practitioner, Dr Q, and a psychologist, Ms S.
Dr Q referred the mother to a psychologist on 14 August 2013. He noted that she presented as “significantly distressed” after she discovered the father’s alleged infidelity. On 2 May 2014, Dr Q assessed that the mother’s “mental deterioration was becoming more pronounced, with a worsening K10 psychological distress symptoms score”. He prescribed antidepressant medication for the mother on 2 May 2014.
On 27 June 2014, Dr Q assessed that the mother “does appear to be coping a lot better … and this is probably largely due to the medication”. On 17 October 2014, Dr Q referred with approval to Ms S’s opinion that the mother was suffering from “reactional depression due to her current situation”. He referred with approval also to Ms S’s opinion as follows:
In summary, [Ms S] has told me that with [Ms Blizzard’s] typically [“Country I”] personality and needing certainty, she is having great difficulty dealing with the total uncertainty, particularly with our legal system with delayed issues and litigation regarding property ownership with her separation.
The same goes with the custody battle over her children with her
ex-partner [Mr Camoes]. She is still having symptoms of depression with tiredness, and difficulty doing things, although she is certainly better on the medication sertraline, than when she is not taking it.
On 6 August 2015 Dr Q opined as follows:
My prognosis is guarded. As far as I know from the past history she has not had depression or mental health issues prior to this episode. From a timing point of view, her mental distress had never been apparent prior to this when I first saw her in August 2013 for this problem. It appears that all of her current mental health issues are associated with the breakup of a relationship with her ex-partner, and custody issues over her children, and the fact that she cannot go back to [Country I] with the children. This cannot be done at least until there is some sort of legal settlement regarding this.
Given that, I feel that her prognosis is almost totally dependent on some sort of resolution of the issue that started this in the first place, which is the separation from her ex-partner, and custody issues regarding her children.
Ms S consulted with the mother on eleven occasions between May 2014 and July 2015. She opined that the mother “is experiencing symptoms of depression and anxiety” and identified as the main stressor “living away from her home in Country I”.
Ms S recommended steps which the mother might usefully take, in the event that she is unable to return to Country I with the children. She suggested:
If [Ms Blizzard] is unable to return to her home in [Country I] with her children, my recommendations for future support would be: continued personal psychological support; family therapy; employment/vocational support; financial support; and support to help [Ms Blizzard] establish a supportive environment in Australia. This support may or may not be beneficial to [Ms Blizzard] and will depend on what she deems necessary.
The father expressed a desire to improve communication and cooperation between the parties. He said: “I will do whatever I can to assist [Ms Blizzard]. I would like to improve our communication.” It may be that, with a resolution of the parenting and property issues, the parties will be able to achieve that aim and the father will be able to offer support to the mother.
The mother was asked in cross-examination about her reaction to orders that the children remain in Australia. She said inter alia:
On my personal level it will be a shock if I am condemned to remain in Australia. Yes, I would accept it, yes …
At the moment I am not strong enough, I am not the person I was …
If a decision is made for the children to stay in Australia, I will never abandon them …
I would have to go back to medication to care for my children but I would do that.
The Family Consultant offered these opinions as to the mother’s likely response to orders which require the children to remain in Australia:
53.It is currently unknown how [Ms Blizzard] would respond if the court provided to the children to remain in Australia. What is known is that her dedication to the children is indisputable and there is no question of her returning alone to [Country I]. Although at interview she was barely able to conceive of let alone discuss such an outcome, it is likely that she could, with practical support (and the option of counselling), rise to the occasion. If she continued to prioritise the children’s psychological wellbeing, she could potentially overcome the enormous hurdle that such Orders would represent. Judging from her personal and professional
background, it appears that prior to the profound stressors
pre- and post-separation, she was highly functioning and relatively well adapted; and indeed according to [Mr Camoes], she had not lived in her hometown of [W Town] since she was in her early 30s. With ongoing support from both her maternal family in [Country I] (including ongoing regular visits from the aunt), she may well discover that living in Melbourne with her children is not only beneficial for them but ultimately a workable outcome for her.In her oral evidence the Family Consultant said:
I don’t really concur that it is now probable, not possible, that she may not make a full recovery from her current state of poor mental health. The father is also under great stress. She has previously been a person of strong mental health.
The Family Consultant said also: she “has been resourceful and every person who goes through a divorce has to dig themselves out of a hole”.
The Family Consultant expressed concern as to the likely impact on the father if he is required to move to Europe to maintain his relationship with the children. She said words to the effect that she harboured concerns for his mental health in these circumstances.
The Family Consultant also had concerns as to the likely impact on the children if they move to Country I with the mother and there is a delay in the father relocating to Europe. She said:
If the relocation is permitted but the father does not follow for some months, two to three months, it would depend on where the father planned to move to. The children would not be able to imagine how their relationship could continue with him in another city or country. It would be all too abstract, if they knew he would join them in three months they could see an end to it.
If the mother and the children live in Country I and the father remains in Australia, there would be obvious difficulties in the children spending time and communicating with him. In my view the father is likely to follow the children to Europe but I am satisfied, on the balance of probabilities, that he would not live in Country I. That being so, there would still be practical difficulties in the children spending time and communicating with him.
In the case for the mother, considerable emphasis was placed on the father’s alleged infidelity. The mother maintained that she came to Australia in the belief that she and the father were in a committed relationship and that he breached her trust. She agreed with counsel for the ICL that: “Yes part of my case is that I came to Australia for a short time and it would be grossly unfair to force me to stay.”
I do not consider it necessary that I make findings as to whether the father engaged in affairs. Ultimately, the task is to craft an outcome to these proceedings which is in the best interests of the children. I confine my remarks in this regard to an observation that it is most regrettable that the father’s actions have damaged the mother’s capacity to place trust in him.
The Family Consultant opined that the proposed relocation would be
“a significant disruption for the children.” She said: “Leaving aside the mother’s reaction, it is certainly beneficial to maintain the status quo.” The Family Consultant said also: “Everything that is familiar and grounding for [B] and his sister would be turned on its head.”
Dr U also had concerns as to likely impact on the children of the proposed relocation. She opined:
While [Ms Blizzard] seems well intentioned, I have some concerns that, due to her own preferences, she may underestimate the extent to which relocating the children away from their father to [Country I] will likely affect their development and diminish their relationship with their father.
The presumption of equal shared parental responsibility
It was common ground that the mother and father should have equal shared parental responsibility for the children. As noted above, there was no suggestion that the children have been subjected to abuse or that either of the parties has engaged in family violence. Nothing in the evidence indicated that the presumption has been rebutted for the purposes of section 61DA(4).
Independently of these implied concessions by the parties and the ICL, I consider that the mother and father should have equal shared parental responsibility for the children. These children are fortunate that they have two very capable parents who are highly committed to providing the best in life for them.
It follows that I am required to consider whether it is in the children’s best interests, and Reasonably practicable, that they spend equal or substantial and significant time with each parent.
Consideration and conclusion as to parenting issues
With respect to the mother, it appears to me that she has transferred to the children her own unhappiness with life in Australia and her wish to take up residence in Country I. I cannot accept that the children perceive that they “live in a bubble” in Australia, to adopt the words of the mother. They have known no other way of life and have not so much as had a holiday in Country I.
I accept that the mother would be happier in Country I, at least in the short term, but I share the concerns of the Family Consultant as to the likely impact upon the father and the children of the proposed relocation. The children have an established lifestyle in Australia, from which they will be entirely uprooted on the mother’s proposal. That outcome would most likely place the children and the father in a very unsettled state, with only the mother having a sense of an improved lifestyle. I accept that the mother will be likely to experience difficulties, at least in the short term, in coming to terms with an outcome whereby the children remain in Australia. I have no doubt that she will remain in this country with the children, for whom she wishes to retain primary care.
I agree with the submission of the ICL to the effect that the mother is likely to cope with a decision which requires the children to remain in Australia. As counsel for the ICL said, the mother’s diagnosis is “reactionary depression” which is based to some extent on the uncertainty of her situation. The mother has accessed appropriate professional assistance in the past and could act upon the recommendations of Ms S, to which I have referred above in these Reasons.
I anticipate that the mother will focus on the children’s interests and make genuine attempts to create the best possible life for them in Australia. I do not accept that she lives an isolated life in Melbourne, having regard to her evidence that she borrowed money from people when she could not access the Citibank account. Further, the mother referred to a particular person as “a former mum’s group friend” in that context.
The mother has held paid employment in Australia and it is open to her to pursue that option in the future. The children are now older and more independent than was the case when she was employed by N between 2010 and 2013. Involvement in a workplace may well provide the mother with an opportunity to develop social contacts.
For these Reasons I conclude that parenting orders which will allow the children to continue to live in Australia are in their best interests. The father sought orders to the effect that they spend equal time with each parent but I perceive that there would be difficulties with such an arrangement. It is common ground that the former family home must be sold, hence the future accommodation of each of the parties is unknown at this stage. It is thus impossible to determine, in the abstract, whether equal time would be in the children’s best interests and/or Reasonably practicable. The same considerations apply in respect of substantial and significant time.
A further factor which, in my view, militates against an equal time regime is the father’s employment commitments. He gave no indication of how he proposes to manage the practicalities of such an arrangement.
As noted above, the Family Consultant identified a clear wish on the part of B to spend more time with the father. I consider that the mother has been unnecessarily restrictive in that regard in the past but I accept that she acted upon advice, which she seems to have interpreted in a somewhat rigid manner. It seems to me, overall, that the scheme of the orders proposed by the ICL will meet the children’s best interests.
Specific issue: change of the children’s name
By a Further Amended Initiating Application filed on 11 August 2015 the mother sought an order that: “The children’s family names be changed to [Blizzard Camoes]”. She offered no evidence in support of this proposal and the likely impact upon the children of a change of name was not considered by either of the two expert report writers. In these circumstances, I am not prepared to make such an order.
Alteration of property interests
Counsel for the de facto wife (for convenience I will refer to Ms Blizzard as “the wife”) contended that “neither party made any contribution to the other party’s European assets”. He suggested that: “The only assets that are relevant for the purposes of division are those in Australia. The parties’ interests in assets in European are relevant only for the purposes of section 90SF(3).”
Counsel for the de facto husband (similarly I will refer to Mr Camoes as “the husband”) conceded that: “The husband can point to no contribution to the wife’s [Country I] assets but does not seek to deduct anything for his [Country J] assets”. It thus seemed to be agreed that I make orders for the division only of the Australian pool of assets and superannuation.
I am satisfied that it is just and equitable that there be orders for alteration of property interests pursuant to section 90SM of the Act. The parties have lived separate lives since July 2013 and have not intermingled their finances, nor made any joint use of their property, for approximately two and a half years. Their principal asset is the former family home at D Street, Suburb E. This property is registered in the sole name of the wife but subject to a joint mortgage. Both parties wish to liquidate that asset and effect a division of the net proceeds of sale.
Assets, superannuation, liabilities and financial resources
The parties agreed as to the value of all of their Australian assets with the exception of the wife’s motor vehicle 1. I will attribute a value of $1,200 to that asset, on the basis of the wife’s admission against interest in her Financial Statement of 10 August 2015. Counsel for the husband indicated that he was “unconcerned” whether a value of $1,200 or $8,000 was assigned to the car.
As to liabilities, I accept the submission of counsel for the husband that the parties’ respective credit card debts were incurred after the separation and should not be included in the balance sheet. There was no evidence in relation to these debts, aside from their bare existence.
The wife sought to include as liabilities certain monies advanced by her sister and parents to assist her with living expenses. She sought also to include as a liability money provided by her parents to meet the husband’s university fees and certain costs associated with his Country J mortgage.
It appears, however, that a portion of the funds attributable to the living expenses of the wife in fact consisted of monies spent by the paternal grandmother during her visits to Australia and by both of the maternal grandparents in the course of their trip to this country between February and April 2009. This money was thus used for their own benefit as well as for the assistance of the parties and the children.
Mr P Blizzard gave evidence that he intended the money advanced to the parties to be treated as loans. He conceded, however, that there was
no written agreement and that there has never been a demand for repayment
of any of these monies. While acknowledging the generosity of
Mr and Mrs Blizzard, I am unable to find that there exists any loan to the wife and/or the parties jointly. I will take into account as a direct financial contribution on behalf of the wife, however, monies which they advanced for the purposes of the husband’s university fees of $17,634 and in respect of his Country J mortgage in the amount of $24,843.
There was no suggestion that either party holds a financial resource. The balance sheet will thus consist of assets, superannuation and liabilities.
I find the parties’ assets, superannuation and liabilities to be as follows:
Australia
Assets ($) 1 D Street, Suburb E (W) 800,000 2 Motor vehicle 1 (W) 1,200 3 Motor vehicle 2 (H) 18,000 4 Bank account (W) 8,660 5 Bank account (H) 1,425 Total
$829,285
Superannuation 6 Super Lifestyle Diversified (W) 20,537 7 Colonial First State (H) 67,840 Total
$88,377
Liabilities 8 Citibank mortgage (J) 350,362 9 Macquarie leasing (H) 23,000 Total
$373,362
Europe
Assets ($) 11 Accounts and shares (W) 728 12 Life Insurance Policy (W) 15,155 13 50 per cent interest in apartment in Country J (H) 44,573 Superannuation 14 Debeka (W) 29,600 15 Generali (H) 25,626 Liabilities 16 50 per cent of mortgage on apartment in Country J (H)
60,830In the above table the letters “H”, “W” and “J” indicate ownership of assets and superannuation and liability for debts by the husband, the wife and the parties jointly.
Contributions
At the commencement of cohabitation the wife owned shares, cash and a motor vehicle in Country I, together with an apartment which had been gifted to her by her parents. I accept her evidence that she placed a sum of approximately $105,400 in bank accounts in Australia when the parties moved to this country in 2007. Exhibit 14 consisted of three advices of direct deposits from the wife to the husband dated 19 February 2008, 3 November 2008 and 12 June 2013. The deposit of $50,131 on 12 June 2013 would appear to coincide with the parties’ purchase of the Suburb E property.
At the commencement of cohabitation the husband owned an apartment in Country J with a negative equity. As noted, the wife’s parents provided funds to service the mortgage in relation to this property during the parties’ relationship.
Approximately half of the purchase money in relation to the Suburb E property came from a Citibank mortgage in the sum of $360,000. The balance was approximately $301,000, without any allowance for acquisition costs. I accept that the wife contributed a sum of $50,131 and that joint funds of the parties of about $55,000 were applied to the purchase. The balance of approximately $196,000 can only have come from the husband’s accident compensation payment.
During the parties’ relationship the husband was the major income earner and the wife adopted the role of primary carer for the children and homemaker. As noted the wife engaged in employment between 2011 and 2013, in circumstances which must have been difficult for her due to the very young age of the children at that time.
Counsel for the husband properly conceded that the funds in the wife’s Citibank account consisted of a post-separation advance to her by her sister. In these circumstances, the husband did not assert that he made any contribution to this asset.
Following the parties’ separation, the wife paid the mortgage in respect of the Suburb E property. On the other hand, she retained the benefit of this accommodation and the husband was obliged to pay rent.
Section 90SF(3) factors
The wife is aged 45 and suffers from mental health problems, to which I have referred above in these Reasons. I there indicated that I consider it likely that she will address these issues in a constructive manner, once the outcome of these proceedings is known to her.
The husband is aged 42 and suffers from the residual effects of his scooter accident. He is able to engage in full-time employment, however, and earned a gross weekly salary of $1,438 at the time of the trial.
Pursuant to the parenting orders which I will make, the wife will retain greater responsibility for the care of the children. Her opportunity to engage in paid employment must necessarily be inferior to that of the husband for that reason.
The husband is likely to continue to engage in full-time employment. He will have the opportunity to augment his superannuation benefits in the future.
The husband pays Child Support in a total amount of $1,241 per month. He also pays for health insurance which covers the wife and the children as well as himself.
Conclusion as to alteration of property interests
It was agreed that there be a splitting order in respect of the husband’s Colonial First State Superannuation benefit in an amount of $23,651 in favour of the wife. The effect would be to divide equally between the parties the totality of their Australian Superannuation entitlements. It appeared to be the case that this agreement is to operate independently of my determination otherwise of the outcome of the proceedings for alteration of property interests.
It is true, as contended on behalf of the husband, that his compensation payment was a significant direct financial contribution on his part. On the other hand, the wife contributed approximately $104,500 from her
pre-cohabitation savings. Her parents provided sums totalling about $42,500 for the husband’s university fees and costs associated with his Country J mortgage. The whole of the sum of $8,660 in the wife’s Citibank account was provided by her sister.
The husband was the major income earner for the family and the wife the principal homemaker and primary carer for the children. As noted, the wife assumed the additional role of income earner in trying circumstances between 2011 and 2013.
In my assessment, these considerations when balanced and weighed against each other lead to a finding of equality of contribution. I turn now to consider the relevant section 90SF(3) factors.
In my view, the most significant section 90SF(3) factor is the wife’s greater responsibility to care for the children. I am not of the view that this factor prevents her from engaging in paid employment, particularly once C commences her formal education. I consider that the husband’s opportunity to generate income is greater than that of the wife because of her responsibilities in this regard. This factor is one element of the inequality in the respective financial strengths of the parties.
In practical terms, the parties’ assets and superannuation in Europe are of little present benefit to them. In my view, these assets and benefits are of no real relevance for present purposes.
In my view, it is clear that an adjustment in favour of the wife is warranted on account of section 90SF(3) factors. In a situation where the value of the net pool of assets is $455,923, a relatively large percentage adjustment is required if the wife is to receive any practical benefit. I assess that the wife should receive an adjustment of 20 per cent of the value of the net pool of assets.
Accordingly, I find that the net pool of assets should be divided as to 70 per cent to the wife and 30 per cent to the husband. There was no evidence of the likely sale costs in relation to the Suburb E property, which will be deducted before there is any distribution of the net proceeds between the parties.
I will make orders which cause a division of the net proceeds of sale of the Suburb E property in percentage terms. Independently of the Suburb E property, the wife will retain net assets to the value of $9,860. The husband will retain his motor vehicle, which has a negative equity of $3,575. 70 per cent and 30 per cent of the value of the net pool of assets equate to $319,146 and $136,777 respectively. In approximate terms, the wife requires some $309,286 to constitute her entitlement of 70 per cent and the husband $140,352 his share of 30 per cent.
The agreed value of the Suburb E property is $800,000, which leaves a net equity of about $449,638 after deduction of the mortgage of $350,362. The wife’s entitlement of some $309,286 amounts to about 69 per cent of that figure. The husband’s entitlement of $140,352 equates to approximately 31 per cent of the net sale proceeds. I will make orders which cause a division of the net sale proceeds of the Suburb E property in the ratio of 69 per cent thereof to the wife and 31 per cent to the husband.
I certify that the preceding one-hundred and seventeen (117) paragraphs are a true copy of the Reasons for judgment of the Honourable Justice Stevenson delivered on 8 December 2015.
Associate:
Date: 8 December 2015
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