BOWEN & WILLIAMS
[2016] FamCA 725
•29 August 2016
FAMILY COURT OF AUSTRALIA
| BOWEN & WILLIAMS | [2016] FamCA 725 |
| FAMILY LAW – CHILDREN – Relocation – Where the mother is restrained from changing the residence of the child from the greater Brisbane Area – where no evidence was led as to whether the father could live in New Zealand – where employment opportunities for the father are scant – where it is not reasonably practical for the father to move to New Zealand – where the effect of relocation would not allow substantial and significant time – where the parents have equal shared parental responsibility – where child live and spend time with the parties as agreed between them –where parents have liberty to travel to a Hague Convention Country – where the mother attend upon her treating therapeutic psychiatrist and any other professional. FAMILY LAW – PRACTICE AND PROCEDURE – Whether some part of the Court’s function has been discharged in an irrevocable way – where application to re-open unperfected judgement – where parties put on more evidence to determine if living in New Zealand would effect substantial and significant time – where substantial and significant time was the focus of the previous reasons, not relocation – where previous reasons did not determine or decide the issue of relocatiaon. FAMILY LAW – PROPERTY – where review of the Family Law Act 1975 (Cth) section 90SM(4) factors was incomplete because of uncertainty in relation to parenting orders – where the father has a greater earning capacity than the mother – where there is an adjustment of 10 per cent for section 90SM(4) factors in favour of the mother – where father pays mother cash sum to reflect her entitlement in the former matrimonial home - where father indemnify the mother in relation to extant liabilities to Westpac and his New Zealand child support. |
| Family Law Act 1975 (Cth) ss 65DAA, 68B, 90SM(4) |
| Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Bowen |
| RESPONDENT: | Ms Williams |
| FILE NUMBER: | BRC | 7647 | of | 2013 |
| DATE DELIVERED: | 29 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 29 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Brasch QC |
| SOLICITORS FOR THE APPLICANT: | Ryan Kruger Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITORS FOR THE RESPONDENT: | Barry Nilsson Lawyers |
Orders
PARENTING
Prior orders
All previous parenting orders are discharged.
Parental responsibility
The parties have equal shared parental responsibility of the child C born … 2011 (“the child”).
The parties jointly make all relevant decisions regarding the major long-term issues in relation to the child except in the case of emergency, and the parties shall consult each other in relation to decisions to be made about major long-term issue and make a genuine effort to come to a joint decision about that issue.
For the purposes of these orders, a major long-term issue includes but is not limited to issues such as:
(a)Education;
(b)Religion;
(c)Health;
(d)Extra-curricular activities; and
(e)Any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with either party.
The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other party about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
In the event that the parties, after consulting with each other, are unable to make a joint decision about a major long-term issue of the child, the parties shall attend with a qualified Family Dispute Resolution Practitioner as agreed between the parties to discuss the matter in dispute in an attempt to reach a common agreement and the parties shall equally meet any costs.
The parties shall each have responsibility for decisions that are not major long-term issues during the time that the child is in their care.
Restraint on relocation
Pursuant to s 68B of the Family Law Act 1975 the mother be restrained from changing the residence of the child from the greater Brisbane area, defined as being a distance of no greater than 25 kilometres from the father’s residence unless with the written consent of the father or order of this Honourable Court.
Parenting arrangements
The child shall live, spend time and communicate with the parties as agreed between them in writing, but failing agreement in accordance with these orders.
Arrangements in circumstances where both parties are living in Brisbane
In the circumstances where both of the parents are living in Brisbane, orders 11 to 27 shall apply.
As and from the date of this order for a period of three months, the child spend time with the father:
(a)In week 1 of a two week cycle:
(i) from 12:00 pm (or after school) Wednesday to 12:00 pm (or before school) Thursday;
(b)In week 2 of a two week cycle:
(i) from 12:00 pm (or after school) Friday to 12:00 pm (or before school) Monday.
After the expiry of the six months referred to in order 11 above, the child spend time with the father:
(a)In week 1 of a two week cycle:
(i) from 12:00 pm (or after school) Wednesday to 12:00 pm (or before school) Thursday;
(b)In week 2 of a two week cycle:
(i) from 12:00 pm (or after school) Thursday until 12:00 pm (or before school) on Monday.
School holidays
Once the child commences attending school, the time that the child spends with each parent during the school term in accordance with the preceding orders be suspended during all school holiday periods.
Except at otherwise provided for in these orders, during each Easter, June/July and September/October school holiday period, the child shall spend one half of each school holiday period with each parent as follows:
(a)In even numbered years, with the mother for the first half of each school holiday period and with the father for the second half of each school holiday period; and
(b)In odd numbered years, with the father for the first half of each school holiday period and with the mother for the second half of each school holiday period.
During the Christmas school holiday period, except as otherwise provided for in these orders, that the child spend on half of this school holiday period with each parent, week about, with the changeovers occurring at 4:00 pm on Sunday, and that the child spend the first week (7 days) with the father and each alternate week thereafter.
For the purposes of organising the care arrangements for the child for the school holiday periods as provided for in these orders, the parties agree that:
(a)School holiday periods are calculated as commencing from the day after the last day of the term, being Saturday morning at 8:00 am concluding at 4:00 pm the day before the next school term commences;
(b)The number of nights in each school holiday period and if there is an uneven number of nights, the father will have the care of the child for the one additional night;
(c)The times that the changeovers are to occur during the school holiday periods apart from the Christmas school holiday period, are as follows:
(i) in a school holiday period where there is an even number of nights at 4:00 pm; and
(ii) in a school holiday period where there is an uneven number of nights at 8:00am on the day following the first half of the school holiday period.
Subject to orders 14 to 16 and 37 to 46, in the event that either parent wishes to travel with the child during the holiday periods, (including the Christmas period) that they are permitted to do so for up to two weeks of the school holidays subject to notice being provided to the other party in writing at least 60 days in advance. The other parent agrees that they shall not unreasonably withhold their consent to any proposal made by the travelling parent.
For the purposes of this order if one parent elects to travel with the child pursuant to order 17 and the period of travel exceeds the time that the child is to spend with that parent in accordance with these orders, then the non-travelling parent shall spend additional or make-up time with the child in either the same and/or the next school holiday period to equalise the excess time spent with the travelling parent.
Special occasions
Notwithstanding any order to the contrary, the child shall spend time with each parent during the Christmas public period, unless otherwise agreed between the parents, as follows:
(a)In odd numbered years, with the father from 12 noon on Christmas Eve until 12 noon on Boxing Day and with the mother from 12 noon on Boxing day until 12 noon on 28 December; and
(b)In even numbered years, with the mother from 12 noon on Christmas Eve until 12 noon on Boxing Day and with the father from 12 noon on Boxing Day until 12 noon on 28 December.
In the event that Father’s Day occurs on a Sunday when the child would otherwise be living with the mother, the child shall return to the father’s care at 8:00 am on Father’s Day and remain in the father’s care until 8:00 am or before school on the following day.
In the event that Father’s Day occurs on a Sunday when the child is already living with the father, the child shall remain in the father’s care until 8:00 am or before school the following day.
In the event that Mother’s Day occurs on a Sunday when the child would otherwise be living with the father, the child shall return to the mother’s care at 8:00 am on Mother’s Day and remain in the mother’s care until 8:00 am or before school on the following day.
In the event that Mother’s Day occurs on a Sunday when the child is already living with the mother, the child shall remain in the mother’s care until 8:00 am or before school on the following day.
Notwithstanding any order to the contrary, the child shall spend time with his parents for his birthday each year as follows:
(a)In even numbered years, with the father from 5:00 pm on the day before the birthday until 9:00 am on the day after the birthday;
(b)In odd numbered years, with the mother from 5:00 pm on the day before the birthday until 9:00 am on the day after the birthday.
In the event that the child is not in the care of a parent on the parent’s birthday, then notwithstanding any order to the contrary, the parent shall have the care of the child on the parent’s birthday:
(a)If it is a school day, from 3:45 pm or after school until 9:00 am or before school the following day or if the following day is not a school day, then until 6:00 pm on the following day; or
(b)If it is not a school day, from 9:00 am until 9:00 am or before school the following day or if the following day is not a school day, then until 6:00 pm on the following day.
Changeovers
Changeovers take place to and from the school or day care in which the child is enrolled at from time to time with the parent who is concluding the time with the child to deliver the child to school or day care and the parent who is commencing the time with the child to collect the child from school or day care.
If the changeover is to occur on a day on which the child is not attending school or day care, unless otherwise provided for in these orders:
(a)Changeover shall occur at the S Shopping Centre at the commencement of the father’s time with the child; and
(b)Changeover shall occur at the L Shopping Centre at the commencement of the mother’s time with the child.
Telephone calls
The mother shall facilitate the child making telephone calls, Skype calls or sending emails to the father at any reasonable time and the father is at liberty to telephone, Skype or email the child at any reasonable time during the period the child is living with the mother.
The father shall facilitate the child making telephone calls, Skype calls or sending emails to the mother at any reasonable time and the mother is at liberty to telephone, Skype or email the child at any reasonable time during the period the child is living with the father.
Both parents encourage the child to communicate with the other parent and provide privacy for the child’s communication.
Specific issues
This order is authority for the day care centre or school that the child attends, to give each parent information about the child’s progress at school and other school related activities and supply to them copies of school reports, photographs, certificates and awards obtained by the child at the requesting parent’s cost and both parties are at liberty to attend any school event such as parent teacher interviews, sports carnivals and productions.
The parties notify each other of any activities that are scheduled for the child or that the child is invited to attend in the time the child will be in the other parent’s care.
This order hereby authorises the General Medical Practitioner or any other health care professional providing services to the child to communicate with each parent and provide them with all such information and documents they may request from time to time regarding the child’s attendance with that professional, including any diagnosis, proposed treatment or prognosis for the child.
The parties shall inform the other immediately of any serious illness, accident or emergency involving the child that occurs whilst the child is in the parties’ respective care and provide the details of the medical practitioner who has treated the child.
In the event of an emergency requiring an urgent decision regarding the child by the parent wit care of the child, should the other parent be uncontactable after all reasonable efforts have been made, the parent with the care of the child shall make the decision and the other parent will be informed as soon as practicably possible.
Each parent inform the other of their residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to the same within 48 hours of any such change.
Overseas travel
The child’s passport shall be held:
(a)By the father if the child is residing in the same country as the father; or
(b)Otherwise by the mother.
Within 10 days of the travelling parent providing the information provided for in paragraph 46 of these orders to the parent who holds the passport, that parent shall release the passport to the travelling parent for the purpose of the international travel.
Within 10 days of the travelling parent returning with the child from the overseas holiday, the travelling parent shall forthwith return the child’s passport to the parent who holds the passport in accordance with order 37.
The parents be at liberty to travel to a Hague Convention Country with the child for the purpose of a holiday when the child is in their care in accordance with these orders.
The parent who desires to travel with the child overseas will provide written notice to the other parent at least 45 days prior to the proposed departure date for travel, subject to paragraph 42 of these orders.
Should a member of either parent’s immediate family become terminally ill or pass away, that parent may travel with the child overseas on an emergency basis notwithstanding that the notice requirements stipulated in order 41 are not complied with, the travelling parent shall immediately advise and consult with the other parent and provide that parent with all of the relevant information set out in these orders with respect to the emergency travel. Consent of the non-travelling parent shall not be unreasonable withheld.
Unless otherwise agreed, if one parent elects to travel to New Zealand during the Christmas school holiday period and the other parent will also be in New Zealand during that period, the Christmas school holiday arrangement as provided for in order 15 of these orders shall apply in New Zealand.
The travel to any overseas destination is subject to the Australian Department of Foreign Affairs and Trade trave advice, and if the travel advice to the particular destination is “advised not to travel” or “reconsider your need to travel” then the parent is not to travel with the child to that particular destination.
The travelling parent undertakes to return the child to the other parent at the conclusion of the overseas travel.
The mother and father each be permitted to travel overseas with the child, subject to orders 38 to 45 and provided that the parent seeking to travel with the child provides to the other parent, no less than 30 days prior to the date of the departure:
(a)An itinerary setting out the travel arrangements for the party and the child, to include details of the intended destination, departure and return date;
(b)A copy of the tickets or other evidence of pre-paid return ticket and return dates; and
(c)Telephone contact details for the child for the entire period that the child will be overseas.
Mother’s treating psychiatrist
The mother physically attend upon her treating therapeutic psychiatrist, Dr O at all appointments scheduled by Dr O.
The mother attend upon any other professional as directed by Dr O from time to time.
The mother authorise her psychiatrist, and any other professional recommended by Dr O, to confirm with the father that she is attending appointments and the frequency of the appointments.
Parenting program
The mother shall forthwith enrol, if she has not already done so, in Parenting Orders Program (“POP”) and attend physically to complete that program as soon as possible in accordance with the directions of the program provider.
PROPERTY
Within 30 days from the date of these orders, the de facto parties shall do all acts and things and execute all documents necessary to transfer to the father at the expense of the father, the whole of the mother’s right, title and interest in the property at Suburb L more particularly known as Lot … on RP …, County of …, Parish of …, Title Reference … (“the L property”).
Contemporaneously with the transfer referred to in the preceding order, the father shall do all acts and things and execute all documents necessary to procure the release and discharge of the Westpac Bank mortgage secured over the L property and that the applicant shall refinance into his sole name all amounts presently outstanding in respect of such mortgage and indemnify the mother against repayment of the mortgage in respect of the L property.
Contemporaneously with the transfer of the L property in order 51 the father shall make a cash payment to the mother in the sum of $117,483.59 such that it results in the mother retaining assets, liabilities and financial resources to the value of 60 per cent of the net property pool.
The father is declared to be the sole legal and beneficial owner of the following:
(a)The RAV4 motor vehicle;
(b)The sale proceeds from the Honda … motor vehicle;
(c)All funds held in bank accounts in his sole name;
(d)All funds standing to the parties’ joint credit in the Westpac Choice account;
(e)Furniture, furnishings and effects in his possession;
(f)Personal effects and jewellery;
(g)Superannuation entitlements with X Superannuation;
(h)All shares, securities and investments in his name.
The mother is declared to be the sole legal and beneficial owner of the following:
(a)The Kia … motor vehicle;
(b)All funds held in bank accounts in her sole name;
(c)Furniture, furnishings and effects in her possession;
(d)Personal effects and jewellery;
(e)Superannuation entitlements with various funds;
(f)All monies retained by her at separation.
Each party shall retain all liabilities in their sole name, including credit card liabilities, as well as expenses, outgoing and liabilities encumbering or related to those items of property to which they are entitled pursuant to these orders and shall indemnify the other party with respect to those liabilities.
Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Williams has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC7647/2013
| Mr Bowen |
Applicant
And
| Ms Williams |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The 16 July 2015 reasons
Consequent upon a three day trial conducted in May 2015, 0n 16 July 2015 I published reasons (“First Reasons”)[1] in these parenting and property proceedings, but deferred making orders pending the receipt of further evidence. That was because, although on the material then before me, I was satisfied that it was in the best interests of the child C, born in 2011 and hence presently five years of age (“the child”) to spend substantial and significant time with Mr Bowen (“the father”) whether or not that was reasonably practicable was not able to be determined on the evidence.[2] Further, in any event, that material did not permit the terms of any orders for substantial and significant time to be formulated with the necessary specificity.[3]
[1]Bowen & Williams [2015] FamCA 546.
[2]At [178], [179].
[3]At [181].
The reason for that was, although my reasons contemplated that Ms Williams (“the mother”) and the father would both relocate to the Town N region in New Zealand, neither party had conducted their cases with any real focus on what would ensue if that occurred. For her part, although the mother sought to relocate to Town D[4] with the child, she led no evidence as to whether it was reasonably practicable for the father to also move to that region, for instance, as to his prospects of obtaining appropriate employment or affordable accommodation. On the other hand, the father primarily proposed that relocation should not be permitted, although in evidence he conceded that if it were permitted, he too would likely relocate, but gave no evidence as to where he would live or work if he did so. Indeed, although disavowed as a “proposal,” by submissions filed 15 May 2015 (pursuant to direction made at the end of the trial) the orders which the father sought in the event that relocation were permitted assumed he would do so too, as they saw a gradual increase in the father’s time with the child, culminating in equal shared care; importantly he sought no orders in the alternative if he did not relocate.
[4]A small town about 20km from Town N.
However beyond the father’s concession, and the equal time orders articulated by him in his 15 May submissions, the evidence from which workable orders effecting substantial and significant time could be formulated was scant. I had no evidence as to whether the father would live in Town D (with a population of approximately 2000-2500 people, which was therefore unlikely to afford many opportunities for appropriate employment for the father) or further afield, nor as to his likely days and hours of employment, wherever he worked. Plainly such matters would determine the content of any orders; for instance overnight time during the week after the child commenced school would only be feasible if the father lived in sufficient proximity to his school to pick him up and drop him off.
Perhaps by necessary implication, the father’s equal time orders contemplated him living close to the child’s school, but in the event that did not occur, then such orders as I might have made, would have been unworkable in reality.
Because of that, it seemed sensible to therefore give “the parties an opportunity to put on material and make further submissions as to the precise terms of orders that should be made consistent with” the First Reasons, perhaps once the necessary clarity of the father’s circumstances in New Zealand could be obtained.[5]
[5]First reasons at [185].
Therefore I directed that the parties liaise with my Associate to arrange for the further mention of the matter, so that any necessary timetable for further material and submissions could be ordered.
Further material leading to resumption of trial
After 16 July 2015, a period of silence – at least from the court’s perspective – then ensued. Indeed it was not until 14 September 2015 that the mother’s solicitors sought to, by correspondence of that date, have the matter further mentioned, which took place on 7 October 2015. On that occasion a timetable was ordered providing for the father to file any further material, a minute of proposed orders, and submissions, and for the mother to do likewise.
Somewhat surprisingly the proposed orders filed by the father pursuant to that timetable did not in fact contemplate him spending substantial and significant time with the child in New Zealand, and the affidavit he filed asserted that it was now impossible for him to relocate to the Town N area. He said his previous concession that he would likely relocate “was not based on detailed research of the practical ability for me to move”[6] and that his subsequent research had made him “very concerned” that he would not be able to obtain employment,[7] that he could not afford accommodation in Town D[8] or Town N.[9] Correctly he identified that if he were to move to City I, that would preclude substantial and significant time being able to be enjoyed.
[6]Paragraph 24 of the father’s affidavit filed 6 November 2015.
[7]Ibid paragraph 41.
[8]Ibid paragraph 49.
[9]Ibid paragraph 52.
The submissions which he thereafter filed on 20 November 2015 were more in the nature of appellate arguments, than directed towards the matters contemplated by the First Reasons. In consequence, a further mention of the matter was conducted on 11 December 2015. In advance of that, the court circulated a list of issues, to which the father provided a written response addressing issues 1, 2 and 3 as follows:
1. Should the father’s submissions be construed as an application to re-open the unperfected judgment given on 16 July 2015, or if not, what is the purpose of, for instance, paragraphs 5-16 and 20? (As to re-opening unperfected judgments, see: Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300 and subsequent authorities).
·The father’s submissions are not intended to be an application to re-open the unperfected judgment given on 16 July 2015;
·In the matter of Autodesk Inc, His Honour Chief Justice Mason found at paragraph 4:
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts of the law. As this court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
·It is the applicant’s submission that His Honour does not suggest in any way throughout his Judgment that he has misapprehended the facts or the law.
·The applicant’s submission is that His Honour has pre-judged the matter and then sought for evidence to be produced by the parties after the evidence was closed, to justify his Honour’s decision.
·To re-open the evidence in any fashion, in circumstances where written reasons and a judgment exposing a final decision have been delivered, would be an improper exercise of jurisdiction for the purpose of re-agitating arguments already considered by the court whist inform that already-made decision.
2.How does the father’s new evidence that he cannot relocate to New Zealand, to be construed in the light of his earlier evidence at trial that he likely would do so. Is it the father’s case that his earlier evidence should now be disregarded?
·The father has provided the further evidence in accordance with the court’s orders, not for the purpose of seeking to re-open the trial.
·The father seeks that His Honour make orders based upon the evidence that has been presented and tested during the course of the trial, and assessed by his Honour at length in the reasons for judgment.
·The father seeks that His Honour make the orders, upon which time the father will consider his options.
3.As adverted to by paragraphs 53-63 of the father’s submissions filed 20 November 2015, how is the court to resolve the conflict between the parties’ fresh evidence, except by further cross-examination? If that course is required, how long with the further hearing take, and what is the availability of counsel?
·The father seeks that His Honour make orders based upon the evidence that has been presented.
·It is the father’s submission that the evidence is closed.
·The father does not seek for either party to be cross-examined on the new material.
Notwithstanding the allegation of pre-judgment, at the mention of 11 December 2015, the solicitor for the father did not make any application that I disqualify myself from further hearing the matter. However in consequence of an exchange between the bench and the father’s solicitor on that occasion, the matter was adjourned to 14 December 2015, in order that the father could reconsider his submissions, which in relation to issue 1 were changed to read:
1.Should the father’s submissions be construed as an application to re-open the unperfected judgment given on 16 July, 2015, or if not, what is the purpose of, for instance, paragraphs 5-16 and 20? (As to re-opening unperfected judgments, see: Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300 and subsequent authorities).
·The father’s submissions are not intended to be an application to re-open the unperfected judgment given on 16 July 2015.
·The applicant’s submission is that the applicant has misapprehended the reasons for judgment and His Honour has confirmed that paragraph 180 of the Reasons is to be read subject to the reservation in paragraph 179 in relation to the father’s proposed residence in New Zealand.
On 14 December 2015 I raised with the parties the difficulty – probably impossibility – that the parties’ positions placed the court in, namely that they were asking the court to act upon conflicting affidavits, yet not proposing any means for resolving that conflict, for example, cross-examination. The matter was therefore further adjourned to 1 February 2016, at which time directions were made for the resumption of the trial on 29 April 2016, in order that further cross-examination of the parties could then occur.
On 29 April I again reserved my decision. This is that decision and the reasons for it.
THE ISSUES
The mother contends that the issue of whether or not she should be permitted to relocate has been determined in her favour by the First Reasons. Particularly in that regard she relies upon paragraph 166 of those reasons. Alternatively, she contends that I should permit relocation because it remains likely that the father will also relocate to live nearby her, and hence substantial and significant time is reasonably practicable.
For his part, the father says that the issue of relocation is still undetermined, because the First Reasons contemplated that it was dependent upon the father being able to spend substantial and significant time with the child in New Zealand. He further says two additional things. The first is that it is not reasonably practical for him to relocate to anywhere in New Zealand which would enable substantial and significant time if the child lived in Town D; the second is that he says that the mother’s conduct subsequent to the May trial justifies revisiting the question of whether she would be able to adequately cope emotionally and psychologically if she were to remain in Australia, and further fuels the concerns which I expressed in the First Reasons to the effect that the mother may not engage with appropriate mental health supports in Town D.
WHAT DID THE FIRST REASONS EFFECT
No orders were made
No orders were made on 16 July 2015; the First Reasons merely directed the parties to liaise with my Associate at a time of their choosing. However plainly some findings of fact were made, and some conclusions were reached and expressed, for example, that equal time was not in the best interests of the child. The issue is then whether or not some relevant part of the court’s function has been discharged in a now irrevocable way, or by a means which precludes the court revisiting the issue, subject to any appeal. This is, of course, all against the background of the father’s express disavowal of any attempt to re-open the unperfected judgment of 15 July 2015.
The law
The relevant part of the decision of Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 to 303, has already been recited at paragraph [9] of these reasons.
It is plain that in Autodesk the court had in mind a judgment which, although not entered by way of perfected orders, nonetheless purported to be final. However to the extent that a judgment, which does not purport to be final, or which is susceptible to perfection by entry of orders, contains findings expressed in a final way, then plainly the reasoning in Autodesk is of application.
Has relocation been permitted
At paragraph [173] of the First Reasons, I determined that if it was reasonably practicable for the father to relocate to a place in New Zealand in sufficient proximity to the child to maintain a regime of shared care, then that was “overwhelmingly the outcome that is in the best interests of this child.”
Without first resolving the issue of reasonable practicability, I then found that equal shared care was not in the child’s best interests: at [177].
Next, but again without determining whether it was reasonably practicable for the father to relocate and live close to the child, I considered a regime of substantial and significant time. I determined that it was both in the child’s best interests and subject to an express reservation, reasonably practicable: at [178]. The reservation was as to where the father would live in New Zealand: at [179].
I then concluded that “plainly the father must believe it feasible but not desirable to relocate” (at [179]), however made no finding as to whether it was reasonably practicable.
Given the father’s concession, the First Reasons plainly anticipated that the father would put on evidence as to where he would live in New Zealand, so that I could fashion workable orders effecting substantial and significant time, but of course his material went in a very different direction.
The mother says I have determined to allow her to relocate. She specifically relies on paragraph [166] which provides:
There is also the question of whether or not relocation, at some later stage, might be in the child’s best interests. The main reason for deferring relocation is to permit the father/child relationship to strengthen to a point where it is likely to be more resilient to the impact of relocation. It would also enable the father some time to marshal his affairs so that he could relocate to New Zealand if that is what he ultimately chose to do.
The mother says that paragraph contemplates the possibility of the father choosing not to relocate to New Zealand, and indeed it does. However the paragraph is in the context of a discussion of deferral of relocation “to permit the father/child relationship to strengthen to a point where it is likely to be more resilient to the impact of relocation.” Although later at [180] I dealt with a slight deferral of relocation, it was not of the magnitude being addressed in paragraph [166]. Rather the orders which I then anticipated making were not for a substantial deferral of relocation. Paragraph [166] therefore is not determinative of the issue of relocation, but was only in the context of canvassing options.
At paragraph [180] I said:
Further, I am persuaded that deferring the relocation until January 2016 would be in the best interests of the child. Particularly:
·It will give the present consent orders – which see the child’s time with the father shortly increase to three nights per fortnight – time to work, and give the child an opportunity to experience that increased time before relocation;
·It will give the father time to find suitable accommodation and employment in New Zealand;
·It will minimise the risk of adverse reaction by the mother, given a clear indication that relocation will be permitted;
·It will give the mother the further opportunity to arrange suitable therapeutic supports.
However that paragraph must be read in light of the preceding paragraphs, which contain the express reservation as to whether the father would relocate to a place permitting a regime of substantial and significant time to operate. True it be that I then anticipated he would put on such material, and relocation would be permitted. However my reasons favoured a regime of substantial and significant time. That is their focus. I did not find that if substantial and significant time could not work, that relocation should nonetheless occur. Plainly substantial and significant time orders were anticipated, if reasonably practicable. I do not accept that the reasons determined or decided the issue of relocation.
Was the reasonable practicability of the father relocating to New Zealand determined
Initially at the May 2015 trial, the father’s evidence was that he would himself likely relocate if relocation of the mother and child was permitted, but he suggested no regime of orders to cover that eventuality; in fairness to him, neither did the mother.
However Dr Brasch QC, who appeared for the father, emphasised that his concession was not a “proposal” by the father; rather she described it as a “fall-back position.” Whatever its proper characterisation, I required – because it was sensible – that the father tell me what he orders he proposed if relocation were permitted, and he did so in accordance with those directions. Interestingly in the submissions which contained those suggested orders, the father said:
The father’s position remains that if His Honour determines that the Mother should be permitted to relocate with the child to New Zealand, the father shall have no option but to also relocate to New Zealand, in order to ensure that the child has the benefit of a meaningful relationship with both parents.
In those submissions he then went on to articulate orders which did not cover the eventuality that he did not also relocate, and culminating in an equal shared time regime. I am therefore satisfied that by the time of the 16 July 2015 judgment, the father’s position had firmed from being “likely” to relocate, to definitely relocating. Particularly, but not only, in the father’s submissions of 20 November 2015, criticism was made that I elevated the father’s evidence of “likely relocate” to “will relocate.” Indeed the father’s submissions and alternate orders compelled such an elevation, although I accept that it was a concession by his authorised agent, rather than his evidence.
However the absence of any specific evidence as to what his likely circumstances would be on the ground if he relocated made any finding of reasonable practicability difficult. There was only the father’s general evidence and his submissions.
There is no finding in the First Reasons that relocation to an area which would permit substantial and significant time was reasonably practicable, although I did anticipate that the father would put on such material. The criticism made in the father’s November submissions that I was requiring him to “back-fill” a prejudged position is incorrect. I was simply taking him at his word, and giving him an opportunity to provide detail sufficient to fashion workable orders; I still required persuasion that a substantial and significant time regime was reasonably practicable. That issue remained unresolved, as did the feasibility of the father’s relocation.
Can the father now change his evidence?
The mother did not object to the father’s new and changed evidence as to his alleged current intentions and inability to relocate. Rather she said that I should remain satisfied that he in fact would relocate. She further argued that his evidence in relation to job opportunities and the cost of accommodation in New Zealand was, effectively, a shallow pretence, and urged findings that he could likely obtain employment and afford housing if he were to relocate. I shall consider those in due course.
Particularly in children’s matters, the court’s discretion in making appropriate orders should be exercised on as current material as possible. I would therefore be reluctant to rely upon some technicality to hold that evidence germane to the reasonable practicability of substantial and significant time should be ossified as at 7 May 2015 – over twelve months ago at the date of orders finally being pronounced – and I am not satisfied that I am obliged to. That is particularly so because it was evidence demonstrating reasonable practicability which was expressly sought by the reasons of 16 July 2015.
Whilst the father therefore may change his evidence on this point, the fact that he does so in the circumstances, will of course be pertinent in considering whether to accept that evidence.
IS SUBSTANTIAL AND SIGNIFICANT TIME REASONABLY PRACTICABLE
Introduction
In the First Reasons I determined that orders establishing a regime of substantial and significant time should be made, if it was reasonably practicable. The father contends that it is reasonably practicable only if the mother is not permitted to relocate. Leaving aside for one moment that the mother contends that the question of relocation has already been determined (which I have rejected) the orders which she sought in her submissions filed 21 September 2015 contemplated that if the father lives within 100km of her residence, then he should spend four nights per fortnight with the child, but if he lived outside of 100km of the mother’s residence, that he should spend block holiday time with the child, and some time on special occasions. Plainly that alternative would not comprise substantial and significant time, although arguably the former would. Therefore the mother’s position was, at least in relation to the less than 100km alternative, that it was reasonably practicable for the time she contemplated to be achieved.
Is it reasonably feasible for the father to relocate to the Town N area?
In the course of preparing his second Family Report, Mr R interviewed the father on 9 April 2014. Paragraph 29 of the ensuing report said in relation to the father’s conversation with him:
29. He said that if relocation is ordered, he will have no choice but to move back to New Zealand, “I don’t believe I have a choice if I want to be [the child’s] father.” It is likely to take him some time to arrange such a move, to dispose of the house and to find some sort of employment…
30. He told me that if it ended upon being too prohibitive for him to relocate to [Town D] in New Zealand, he has little faith that the mother will adhere to orders for [the child] to communicate and spend time with him from a distance, “then I’m fucked.”..
In the course of his cross-examination by counsel for the mother at the May 2015 trial, the father was asked whether he would follow to New Zealand if the mother were permitted to relocate there. His answer was “if I can, yes.”
The matter was not further explored with the father in cross-examination, and that remained the state of the evidence until the father’s submissions of 15 May 2015, which reiterated “the father shall have no option but to also relocate to New Zealand” and only proposed orders if relocation were permitted which saw the father spending equal time with the child in New Zealand, rather than travelling there to spend intermittent holiday or weekend time.
That remained the position of the father as at the delivery of the 16 July reasons and indeed remained his position – at least as communicated to the court – until he swore and filed his affidavit on 6 November 2015.
In his 6 November 2015 affidavit, the father recited his recollection of his evidence at trial[10] and continued at paragraphs 24 to 59 to explain why it was that he was then of the view that he could not relocate, notwithstanding his earlier evidence. Particularly he says that he does not enjoy reasonable prospects of employment suited to his qualifications[11] in Town D or Town N, and if he were to live there, his income would not be sufficient to meet his likely costs of living, particularly given what he says are the expensive accommodation costs in Town N.
[10]Paragraph 17.
[11]The father is an IT professional in Brisbane, presently on an income of $155,000.00 per annum.
For her part, in her affidavit filed 21 September 2015, at paragraphs 38 to 44 the mother recited the results of her enquiries as to employment options for the father not only in the Town N area, but also further afield, including City I and Christchurch. She says that she found eight listings for jobs available in the Town N area which she contended the father’s qualifications would suit him for, but admitted “I am unaware of the remuneration packages for these positions.” She was able to also identify suitable employment in City I, and the likely salaries in Christchurch for an equivalent position to that presently occupied by the father in Brisbane. She was able to identify 22 allegedly suitable jobs in Christchurch.
However at paragraph 88 of his November 2015 affidavit the father disputed that he was qualified for the positions identified by the mother in the Town N area and asserted that if he were to live outside of that region, he would not be able to spend substantial and significant time with the child. At paragraph 96 he concluded “there are very little, if any, employment prospects for me in the [Town N] – [and surrounding] district in New Zealand in my field of expertise.”
It is interesting that in her response to that affidavit, the mother did not dispute the father’s suggestion that he was not technically qualified for the positions which would enable substantial and significant time. Rather she emphasised that the father has connections in City I.[12] Although in the same region, City I is at a distance from Town N that would not permit substantial and significant time, in that it is over 250km away.
[12]Paragraph 37.
In cross-examination, the father was challenged in relation to paragraph 31 of his 6 November 2015 affidavit, in which he recited the result of an inquiry made in August 2015 for jobs in the Town N area, namely that he was advised that there may be one or two jobs in the IT area available per year. However he was not challenged in relation to his assertion that those jobs were not suitable to his skills or experience. Indeed in cross-examination no job in Town N was suggested to him which in fact matched his qualifications and experience. Rather it was generally suggested that the father had a history of obtaining employment after he had moved to a new city, for instance when he moved to Sydney in 2001 and in Brisbane in 2006. However the father correctly pointed out that the opportunity for employment in his line of work was far greater in larger cities such as Sydney and Brisbane than in Town N, much less Town D.
In the First Reasons I remarked that it was unusual that the mother had put on no evidence from, for instance, an employment consultant. It remains unusual. In the father’s affidavit of 6 November 2015 he referred to Ms V of U Recruitment. No report was put into evidence by the mother from that person or someone with similar knowledge. Again, no explanation for the failure to do so was proffered.
Plainly a major focus of the Town N region is tourism. No doubt there are industries which grow up around that focus, which are not themselves tourism related, but there is nothing on the evidence which would persuade me that Town N or Town D represent anything but a remote prospect of the father being able to obtain employment which matches his qualifications.
The father therefore sought to persuade me that the appropriate figure that I should assess as his likely income was the median personal income of people living in that district according to the 2013 New Zealand census data. In Australian dollars that was $31,500.00. The mother criticised the father for selecting this figure, but absent being able to find a job to which he was suited, it is difficult to know what other figure would be appropriate. Whilst I do not make a finding that that would be his earning capacity in Town N, I do accept it is the median for that district. In all probability the father could earn more than that, but how much more is an imponderable which is not able to be quantified.
The father then addressed the likely costs of accommodation in the Town N district. At paragraph 46 of his affidavit, he noted that according to published data, the average price for property in the Town N district was $734,000.00. As shall be seen in due course, under the orders which I propose to make for the division of the parties’ property, the father will be obliged to pay the mother a sum slightly in excess of $117,000.00, in consequence of which he will be left with property to a value a little under $165,000.00. Even if he were to liquidate that entirely, and devoted it towards an average priced property in the Town N district, there is no reason to think he would be able to service a loan of $569,000.00 for the purchase of a home, even if he were earning substantially more than the median personal income for the Town N district.
In her affidavit filed 13 November 2015, the mother produced 39 real estate sales listings under $500,000.00 in the Town N area. To my observation, many of them appear to be holiday style apartments, although some plainly are not – for instance there is a three bedroom, two bathroom house listed for $449,000.00 and a house for $495,000.00.
Whilst it is difficult, absent evidence, to know what lending ratios banks would impose for purchases of property in the Town N area, it seems likely that if the father were able to come up with a substantial deposit arising from his liquidation of his Australian assets, houses at the lower end of the market could perhaps be purchased by him, however the difficulty is whether he would be able to service loan repayments from the income that he was earning. Again there is no evidence as to the term of mortgages which are commercially available to residential housing in that district, but if the father were to have a deposit of $150,000.00, and purchase a house for $450,000.00, he would be left servicing borrowings of $300,000.00. If he were to be earning something in the order of the median wage for the district, plainly serviceability of the loan would be a substantial issue.
Both parties also addressed the prospect of the father renting in the Town N district. The father said that at the time of his searches, there were 18 properties available for lease in Town D itself, the cheapest of which was $600.00 per week, with only four being under $1,000.00 per week. Plainly unless he was earning substantially in excess of the median income for the Town N district, those are unaffordable. I accept his evidence that he simply could not afford to live in the Town D area. The mother did not seriously contend to the contrary.
As to Town N, the father identified that the range of rentals was between $450.00 per week and $700.00 per week. Even at the cheapest of those, unless he were earning substantially more than the median personal income discussed above, the father correctly concluded at paragraph 52 of his affidavit that rent would still comprise a significant portion of his income if he is unable to obtain employment remunerated substantially in excess of the median for the district. He also noted that if he was unable to obtain employment at all, he would have no capacity to pay for the accommodation.
Again, the mother did not directly challenge the rental range identified by the father, but rather sought to answer the father’s contentions in this regard by saying that he would most likely earn a sufficient income in Town N to enable those rents to be paid.
As she did in relation to potential jobs for the father, again the mother directed attention to properties in locations outside of a range which would see substantial and significant time possible. For instance she points to the much lower costs of housing in City I, and she was not challenged as to this.
I am comfortably satisfied that the father could not afford to purchase nor rent in Town D. Although less comfortably, I am nonetheless satisfied that the father could not afford to purchase or rent suitable permanent housing in Town N either, unless he were able to secure employment in the district remunerated significantly in excess of the median income for that region. As has been seen, I am not satisfied as to that latter matter although I concede it is possible. It follows that I am not satisfied that the father can afford suitable accommodation in an area that would enable substantial and significant time.
The evidence only enables me to conclude that, if the father were to relocate to New Zealand, in order to be close enough to Town D to achieve a substantial and significant time regime for the child, he would be obliged to take employment which is likely to see him earn substantially less than he presently does, in consequence of which he would not be able to afford to live there. It is therefore not reasonably practicable for the father to relocate to an area in New Zealand that would support substantial and significant time. I am however satisfied that it would be reasonably practicable for him to relocate to an area of New Zealand outside of a geographic area that would enable him substantial and significant time.
Effects on mother if she does not relocate and stays in Australia
Conclusions in the First Reasons
In paragraphs 63 and 64 of the First Reasons I concluded as follows:
63. I am not satisfied that it is more likely than not that the mother will attempt suicide or otherwise act precipitously in the event that she were required to stay in Brisbane. On the other hand I am satisfied that such an outcome would, for a period of probably no longer than two years, substantially negatively impact upon her psychological health, and may do so in a way as to diminish her parenting capacity. That said, it is also quite possible, as evidenced by her “epiphany” in February 2015 as explained to Dr [O], that the mother could deal with the final reality of things in a far more positive way. Nonetheless there is a substantial risk – and I accept that it is in the order of 40% - that the mother may suffer a substantial and long lived adverse outcome to such an outcome. That is likely to diminish her parenting capacity to some degree, although I am unable to determine to what extent.
64. I am satisfied that in the event that the mother were to suffer suicidal ideation in consequence of being required to stay within Brisbane, the therapeutic regime available for her here – which is now of some longevity – would be a significant support for her. However that only goes some way to ameliorating my concerns that a 40% risk of non-recovery is a significant risk.
In the resumed hearing, no party sought to challenge those conclusions directly, or to cross-examine Dr O again, but the father argued that the mother’s subsequent conduct was relevant to assessing, at the current time, the likely consequences of the mother not being permitted to relocate.
The new evidence
On the last day of trial in May 2015, the parties presented me with interim consent orders including the following:
The mother, [Ms Williams] attend upon her treating therapeutic psychiatrist Dr [O] at the first available appointment with Dr [O] and subsequently at all appointments scheduled by Dr [O].
The mother, [Ms Williams] attend upon any other professional as directed by Dr [O] from time to time.
It appears as though the particular orders were first foreshadowed to the mother’s solicitors on 6 May 2015 by correspondence bearing that date, which in the solicitor’s file copy which was tendered as an exhibit, is recorded as having been emailed at 4:51pm. The transcript for the proceedings of 7 May 2015 suggest that the interim consent orders were handed up at 10:49am, when the court first resumed sitting on that day.
However at 4:48am on the following morning, the mother emailed her solicitor as follows:
Dear Geoff
I urgently wish to withdraw my consent order which was set before Justice Tree this morning.
I was made to sign this under a situation of extreme duress. I was in no fit mental state to have that put before me. It was at the end of a three day trial and I was pushed into it by both … and ….
All my focus was on finding agreeable times I have just realised I was tricked into a therapy agreement.
I urgently wish to contest this as I do not agree and, while ordered by contract will not attend or partake in any therapy sessions.
Also at 4:48am on Friday 8 May 2015 the mother forwarded that email to Dr O.
The mother’s counsel contends that I should infer that the mother’s refusal to attend Dr O was an emotional one, made very early on the morning after the end of a trial. That may well be so, but it appears plain that in fact the mother did not attend upon Dr O again until 5 November 2014.[13]
[13]See exhibit F20.
This proved to be a fertile ground for cross-examination in the resumed trial. That is because in paragraph 20 of the mother’s 13 November 2015 affidavit she said “I have continued to see Dr [O], psychiatrist and Dr [Q], GP and [Mr P], psychologist since orders were made on 7 May 2015…” Also in her earlier affidavit of 21 September 2015 at paragraph 15 she had said “at my last appointment with my psychiatrist, Dr [O], she indicated that she is happy for me to continue to be treated by Dr [Q] and Mr [P].”
Of course, in fact as at 21 September 2015, the mother’s last attendance upon Dr O was prior to the trial, and she had plainly not continued to see Dr O since the orders of 7 May 2015, and as at 13 November 2015, had only seen her some eight days earlier.
I do not overlook that as part of exhibit M3, there is a consultation record of Dr O upon the mother of 19 May 2015 which reads:
[The mother] phoned to say that she had not been sleeping and did not wish to drive to the appointment. Asked whether she could do the appointment over the phone. I explained that this was not possible both for therapeutic reasons and for Medicare billing purposes. [The mother] guaranteed that she is currently safe. [The mother] has an appointment with her GP on Thursday and will phone reception staff to reschedule.
This might suggest that the mother, contrary to her 8 May email, had in fact made an appointment, but it does not appear to be the case that she in fact attended any appointment if she did schedule one, as there is no record in the treatment notes of Dr O of any consultation prior to 4 November 2015. In any event as Dr Brasch QC emphasised, even if there was an appointment made sometime shortly after 19 May 2015, there was then a considerable gap, of at least it would seem, about five months until 5 November 2015.
Two points were drawn out of this by the father. The first was that the mother obviously did not perceive that she needed Dr O’s help in that time; the second was that I should have no confidence that she would in fact engage with therapists in New Zealand, if she was not engaging with her therapists in Australia. Both of those points are valid.
The father also relied upon some of Dr O’s notes of consultations after November 2015. Most significantly in the notes for 4 February 2016 there is recorded:
Not thinking about suicide – actively guarding against thinking of suicide.
No thoughts of kidnapping [the child], no thoughts of murder suicide. Definite about this.
[The child] is the only thing that is that’s ok.
… No thoughts that things will magically get better.
.. Depression related to court.
.. Emailing old friends.
2 friends she has played dates with sees them once/week. ..
Patches of her recovering.
Getting her own opinion back – heated discussion with father the other day.
Able to process more of what was happening legally.
Really trusts one of her friends in Australia.
No social anxiety with friends.
However there are concerning matters in the notes as well. For instance in the 4 November 2015 notes it is recorded “not planning to kill herself, thinks about suicide all the time. When driving – thinks about letting go of wheel… Utterly exhausted.”
Conclusion
There is nothing in this new material which causes me to re-evaluate in any substantial way the conclusions I made at paragraphs 63 and 64 of the first reasons. Particularly there is nothing in it which causes me to revise the May 2015 risk assessment by Dr O that there is a 40 per cent chance that if required to stay in Brisbane, the mother may suffer a substantial and long lived adverse outcome, which is likely to diminish her parenting capacity to some degree which I am unable to further determine.
Evaluation and conclusion
By reference to the obligatory s 65DAA(5) considerations I conclude as follows:
·The parties presently live close enough to each other to physically make substantial and significant time feasible, but I am not persuaded that could be the case in New Zealand;
·The parents have adequate current and future capacity to implement an arrangement for substantial and significant time;
·The parties do have sufficient current and future capacity to communicate with each other to resolve difficulties that substantial and significant time arrangement might give rise to;
·That subject to the mother’s adverse psychological response, the impact of a substantial and significant time arrangement on the child would be one of positive benefit.
Section 65DAA(5)(e) mandates that the court must have regard to “such other matters as the court considers relevant.” On one view the mother’s adverse psychological reaction is not informative as to the reasonable practicality of substantial and significant time orders, but rather informs best interests. As to that, it plainly cannot be in the child’s best interests to have the primary care provider suffering from diminished parenting capacity; but by the same token it cannot be in the child’s interests to have a markedly diminished relationship with his father. In my view it is appropriate to undertake that balancing act not in considerations of reasonable practicality, but in relation to the consideration as to whether relocation should be permitted.
I am not persuaded that substantial and significant time is reasonably practicable in New Zealand. It does remain reasonably practicable in Brisbane, but it carries with it the risk that the mother will suffer a substantial and protracted adverse psychological outcome.
RELOCATION
It is not reasonably practicable for the father to live in sufficient proximity to the child if the child were to relocate to Town D, so as to effect a substantial and significant time regime. Therefore relocation to Town D inevitably would mean that the child will not be able to experience substantial and significant time with his father. Irrespective of whether the father lives in New Zealand or remains living in Australia, the bulk of the time which the child will spend with him will be holiday time. The only difference would be that there would likely be more weekend time spent with the child if the father was living in City I or Christchurch, bearing in mind that would require the father to commute at least three and a half hours (unless he flew), and that such time would likely be experienced not in the father’s home, but in some holiday accommodation in the region.
I remain satisfied, as I was in July 2015, that the mother’s proposal of the child spending five days a month with the father would see the father become a “holiday dad” and the child would not obtain an optimum benefit of the relationship with the father. That said, as I noted in my earlier reasons[14] nonetheless the child would maintain a meaningful relationship with the father, albeit that it would be of a different quality and kind to that which would otherwise ensue.
[14]At [93].
Likewise I remain of the view expressed at paragraph [124] of the 16 July 2015 reasons, that the mother will neither place real significance upon fostering the father/son relationship, nor be motivated to facilitate it. At best one can hope for some begrudging facilitation.
Against this however, must be balanced the risk of the mother’s adverse reaction to being required to stay in Australia. I have earlier observed that my opinion in that regard has not substantially changed since my the First Reasons.
Since those reasons, the Full Court has said the following in Zahawi & Rayne [2016] FamCAFC 90 (footnotes omitted):
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
Here indeed this relocation case comes down to a stark and unpleasant balancing exercise. On one side of the scales is the diminished quality of the relationship between the father and the child if the child relocates, and the likelihood that the mother would at best only begrudgingly facilitate that relationship and not actively encourage it. On the other side of the scales is the risk that if she is not permitted to relocate, the mother will react adversely, which may see her parenting capacity diminished over a protracted period.
Either scenario presents risks to the child. Neither alternative is optimal, or indeed even attractive. However upon balance I am persuaded that relocation is not in the child’s best interests and should not be permitted. In reaching that conclusion, I place particular weight upon the following:
·Relocation would likely substantially impair the child’s relationship with the father, who would become a “holiday dad”;
·Whilst there is a significant risk of the mother having a prolonged adverse reaction, it is not more probable than not, at least according to Dr O’s opinion, and moreover there are extensive extant psychological and psychiatric supports for the mother in Brisbane;
THE CONTENT OF SUBSTANTIAL AND SIGNIFICANT TIME ORDERS
The most recent articulation of orders sought by the father was made 11 December 2015, and persisted with the advancement of an equal time regime. Therefore neither party have in fact addressed the content of substantial and significant time orders in the event that the parties remain living in Australia. Mr R did not in his initial or subsequent Family Report provide any real detail as to the sort of orders which would be appropriate.
Under the consent interim orders made at the conclusion of the May 2015 trial, the child is presently spending three nights per fortnight with the father. If relocation to New Zealand was permitted, and the father lived within 100km of the child, then the mother said he should have the child in his care for four nights per fortnight. Ultimately there is no patently correct answer to the division of time, however upon balance I am satisfied that during school terms, a regime of five nights a fortnight in the father’s care is appropriate, as it would see a significant opportunity for the father to engage in all aspects of the child’s life. That time should be such that the child spends in week 1 of a 2 week cycle, Wednesday night with the father, and in week 2, from after school on Thursday until before school on Monday. There should be a staged progression to that time. Holiday periods should however, for simplicity be equally divided, with changeovers to occur on weekends.
PROPERTY MATTERS
In the First Reasons I adjudged that the parties’ contributions to the property pool were equal. However the review of s 90SM(4) factors was incomplete because of the uncertainty in relation to the parenting orders. By reference to the matters which have either now changed or have clarified I note further as follows.
The father remains earning something in the order of $155,000.00 per year. That will now continue. The mother was last employed in 2011 where she earned $105,000.00 per annum. She concedes that she will need to return to work in the near future. Her most recent indication was that she was contemplating teaching in New Zealand. I do not know what she would do in Australia. Plainly the father is likely to enjoy a far greater earning capacity than the mother for the foreseeable future.
The father will have the care of the child for five nights per fortnight with the mother otherwise caring for the child.
I adopt the parties’ most recent financial statements as to the amounts they require to support themselves and the child in Australia.
It is plain that the s 90SM(4) factors weigh in the mother’s favour. The father has a greater earning capacity than she does, and she has the primary care of the child.
The parties’ net pool of assets excluding superannuation is $255,162.00, and there is superannuation interest of $177,133.99, making the total pool of $432,295.99.
I am satisfied that an adjustment of 10 per cent for s 90SM(4) factors in favour of the mother should be made, being $43,229.50. Whilst I acknowledge that this sum is less than 30 per cent of the father’s current gross annual wage, it is nonetheless a significant capital sum and the mother’s likely future income is unclear.
The father will retain superannuation of the value of $90,320.99, and the mother’s superannuation to a value of $86,813.00.
The father proposes that there should be an order that the mother transfer the former matrimonial home to him, and that he pay her a cash sum to reflect her entitlement. The most recent evidence is that the parties’ equity in the former matrimonial home is a little less than $179,000.00.
The parties propose that each retain the chattels presently in their possession, which on my calculation sees the value of assets retained by the parties as follows:
FATHER
Assets L Property 420,000.000
Chattels (etc) 26,295.70
446,295.70
Liabilities Mortgages x 2 238,313.94
NZ child support 7,900.00
246,213.94
Superannuation 90,320.99
Net 290,402.75
MOTHER
Assets Chattels (etc) 20,132.00
Addbacks Monies taken from WPAC 34,947.00
Liabilities Mastercard 2.00 cr
55,081.00
Superannuation (various) 86,813.00
Net 141,894.00
Sixty per cent of the net pool of $432,295.99 is $259,377.59. A division on that basis would therefore require a cash payment by the father to the mother in the sum of $117,483.59. Standing back and reviewing that outcome, I am satisfied that it is a just and equitable in the circumstances of this case. There will be further orders that the father indemnify the mother in relation to the extant liabilities to Westpac and his New Zealand child support liability. Otherwise there will be orders in relation to property as sought by the father.
CONCLUSION
For these reasons, in conjunction with the First Reasons save where they have been overtaken by these reasons, I will pronounce orders as set out at the commencement of this judgment.
I certify that the preceding ninety five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 August 2016.
Associate:
Date: 29 August 2016
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