Bowen & WILLIAMS (No 2)
[2015] FamCA 546
•16 July 2015
FAMILY COURT OF AUSTRALIA
| BOWEN & WILLIAMS (NO 2) | [2015] FamCA 546 |
| FAMILY LAW – CHILDREN – international relocation – best interests – where father would also relocate overseas if child permitted to leave Australia with the mother - further submissions invited FAMILY LAW – PROPERTY – overseas child support debt – add backs – equal contributions |
| Family Law Act 1975 (Cth) Part VII s 60B s 60CA s 60CC s 60DA s 60 DAA s 60DAC s 90SM |
| Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 S v Australian Crime Commission (2005) 144 FCR 431 Malcolm & Munro (2011) FLC 93-460 Morgan & Miles (2007) FLC 93-343 U & U [2002] 211 CLR 239 Sigley & Evor (2011) 44 FamLR 439 T & N [2001] FMCA fam 222 |
| APPLICANT: | Mr Bowen |
| RESPONDENT: | Ms Williams |
| FILE NUMBER: | BRC | 7647 | of | 2013 |
| DATE DELIVERED: | 16 July 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 5, 6 and 7 May 2015 |
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 |
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Williams (No 2) 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
By his Amended Initiating Application filed 2 October 2014, Mr Bowen (“the father”) seeks orders that the parties have equal shared parental responsibility for C (“the child”) born in 2011 and hence presently 4 years of age. He further seeks orders that the child spend progressively increasing amounts of time with him, to the point where by January 2016, the child would spend equal time with both parents.
By her Further Amended Response to Initiating Application filed 13 October 2014, Ms Williams (“the mother”) seeks orders that the parties have equal shared parental responsibility for the child, and that the child live with her. She also seeks an order that she and the child be allowed to forthwith permanently relocate from Brisbane to New Zealand, after which the father would spend 12 occasions per year in New Zealand with the child, and subject to a graduated introduction, culminating in each of the 12 occasions being for 5 consecutive overnights. She also proposes that on a further two occasions each year, she would travel with the child to Australia, when the father would again spend a period of not more than five consecutive days, including overnights, with the child.
In the event that the mother was not permitted to relocate to New Zealand, she proposed a regime of orders which would provide for equal shared parental responsibility, and for the child to live with the mother and spend four nights per fortnight in the father’s care, comprising Thursday night in the first week of the fortnight, and Thursday, Friday and Saturday nights in the second week. She also proposed that initially the child would spend one block of five consecutive nights with the father during school holidays except Christmas, where there would be three non-consecutive blocks of five consecutive nights, save that from 2017 the time would extend from five nights to one week. She also proposed certain arrangements in relation to Christmas Day, Father’s Day and Mother’s Day.
On the other hand, in the event that the mother were permitted to relocate to New Zealand, the father proposed an alternative regime of orders which had as its basis that the father would also relocate to New Zealand. In that event he sought orders for equal shared parental responsibility, and for the first three months, for the child to live with the mother but spend Wednesday night with the father in the first week of a fortnight, and Tuesday morning and Wednesday and Friday, Saturday and Sunday nights in the second week. In the second three month period that would increase in the first week to encompass both Wednesday and Thursday nights. After that six month period has expired, he proposed that the parties would embark upon an equal time arrangement. He further proposed that the child would spend equal time with the parents during school holidays. His orders also made provision for special days.
The trial of the proceedings before me also included property matters. The issues in dispute are relatively minor. I will deal with property matters in due course after I have determined the children’s matter.
BACKGROUND FACTS
The father
The father was born in 1970 in F Town, New Zealand, and accordingly is presently 45 years of age. He grew up in G Town and did well at school. Later he attended university in New Zealand completing a Bachelor of Science, followed by a Master of Science. At the conclusion of that study, he worked in a hospital for about 12 months.
When he was in his early 20’s, he had a relationship with a woman which resulted in an unplanned pregnancy. In due course the child, a girl named MsH, was born in about 1994. It appears as though she has always resided with her mother, although the father did establish and maintain a relationship with her.
After the father’s job in the hospital ceased, he travelled overseas working for companies in the UK for about 12 months. He then returned to New Zealand for about 18 months. It was during that time in November 1998 in City I that he first met the mother. He was then 28 years of age. They commenced a relationship which continued, even though in May 1999 the father again moved to the UK, before returning to City I in about March 2000 when the parties commenced living together.
The mother
The mother was born in 1969 in J Town in New Zealand. She is therefore presently 46 years of age. She grew up on a farm in an apparently fairly remote area in Southland, New Zealand. For some period of time she attended boarding school, however she was asked to leave that school, and ultimately completed her schooling at the local high school near her parents’ farm.
Thereafter she attended the K University and commenced a Bachelor of Arts degree with some introductory law subjects. She only completed two terms of that degree, as she did not enjoy her studies. During that time she attempted to self-harm or suicide, although no serious injury was sustained. She thereafter moved to the UK where she variously studied and lived for about three years. She then returned to New Zealand and completed a number of courses before finally returning to K University to complete a Bachelor of Science degree.
She has a varied work history. In the United Kingdom she has worked as a nanny, in stables, as a security guard, in theatre and in retail and bar settings. In New Zealand she has worked in various organisations. After her science degree, she worked in the media and it is apparently whilst in this employment that she met the father when she was 29 years of age, and thereafter commenced the relationship.
The relationship
The parties commenced living together in March 2000 in City I, and continued to so cohabit until the mother moved, by herself, to Australia in April 2001 to attempt a career in media. It is unclear whether the parties formally maintained their relationship in that time; the father says they did so, the mother says she commenced another relationship. Whatever be the truth, the father moved to Australia in October or November 2001 and the parties then either continued or resumed their relationship. The mother says she only did so because she was fearful that, if the relationship did not resume, the father might harm himself.
The parties lived in Sydney for four years. In May 2005 they moved to Brisbane. In November of that year they purchased the former matrimonial home in the Brisbane suburb of L, in which home the father still resides.
Until the birth of the child in 2011, it appears as though both parties were in regular employment in Brisbane. The father has at all relevant times been a consultant, whereas the mother was employed in professional roles.
After the birth of the child, the mother ceased employment and became the primary care giver to the child. The mother says that the father was “barely involved in” the child’s early life. The father says that the mother effectively precluded him from having any significant involvement in the child’s life, either because she refused to let him undertake any care giving, or because she was highly critical of the quality of care which he afforded the child.
It seems plain that the advent of the child into the parties’ lives caused considerable tension and conflict. The parties began to regularly “fight and argue almost every night.” Both parties appear to agree that it would often deteriorate into a loud “yelling match”.
The mother began to contemplate separating from the father. On 18 September 2012 she sent him an email advising him that she and the child were moving to M Town, New South Wales. In that email she identified that she had good employment prospects there, and inferentially suggested that the father may be able to also move there, and obtain employment. Although she did not specify precisely when she was going to move, she did say “it will be within the next couple of months.”
In fact the parties did not separate on that occasion.
On 12 November 2012 the mother emailed the father again. The prospect of imminent separation was again discussed in the email, however it commenced “don’t worry, even if we separated I would never take [the child] back to NZ. He needs both of us in his life.”
In the email she went on to propose that the parties undertake counselling.
In fact the mother separated from the father by relocating herself and the then just two year old child to New Zealand on 26 March 2013. However earlier in the day, before that became apparent to the father, there was a text message exchange between them. In those text messages the father advised the mother that he had that day paid off $20,000.00 from her student loan arising from her university studies in New Zealand. In the course of that text message exchange the mother addressed the father as “gorgeous”. In fact, either by then, or later that day, she had organised for removalists to attend to the packing of the relevant furniture and possessions, for shipping to New Zealand. She also redrew from the parties’ mortgage account the sum of $81,900.00. That was the maximum amount that could be redrawn from the account at that point in time.
At 4:30pm on 26 March 2013 she advised the father by text message that she was taking the child for a walk. Less than an hour later the father arrived home to find that the mother, the child and much of the furniture in the home had gone. The mother had left behind a hand written note for the father explaining that she had left. In that note she said “I do want you and [the child] to have the best relationship you can given the circumstances and hope we can do that civilly and keep his best interests at heart. I am happy to Skype regularly, send photos and anecdotes and updates and all of that if you play fair.”
Although she did not disclose where she and the child had gone, she did say that she would be in contact with the father later when she had established herself in her new location.
In fact the mother had gone back to New Zealand to live with her parents at a place called D Town, which is a little distance from N Town on the South Island. After about 48 hours, she contacted the father and advised him of her whereabouts.
Post-separation
Initially the mother facilitated one Skype session per week between the father and the child, and two telephone calls per week. It appears as though the latter were ultimately replaced by increased Skype sessions, although the parties are not agreed as to how many there were. Nothing turns upon that. Early in the piece, the father uploaded videos on the internet for the child to watch, including videos of him reading stories to the child. The child apparently particularly enjoyed those reading videos.
By 16 April 2013 the mother had become aware that her removal of the child from Australia may have comprised child abduction under the relevant Hague Convention. On that day she wrote to the father seeking his consent for her to be in New Zealand with the child. She clearly knew that if the father did not give consent, it was likely that the matter would end up in court. The father responded by refusing consent, but expressing a desire to reconcile and reunite the family.
On 4 May 2013 the father travelled to New Zealand to see the child. He spent some time every day with the child during that visit. However on 7 May 2013 the parties had a “very prolonged, loud and particularly acrimonious argument” in front of the child. It is plain that the prospect of what ultimately proved to be these court proceedings, was a major factor in that argument, and particularly the father’s refusal to consent to the mother being in New Zealand. Ultimately the parties agreed to mediation, but that went nowhere.
Hague Convention proceedings were commenced. Following the receipt of advice, the mother voluntarily returned with the child to Brisbane in September 2013, where they have remained thereafter. She has not obtained employment.
The father commenced these proceedings by Initiating Application filed 9 September 2013. Earlier, on 6 September, no doubt having been forewarned of the imminent litigation, the mother emailed the father urging him not to commence them. She said “it will completely destroy everything and for no real gain.” She continued later in the email “you will have to fight me for every smidgen of access along the way and you still won’t get what you want.”
Shortly after the mother returned to Australia, the father commenced seeing the child under consent orders made 19 September 2013. Initially it was day time only on Tuesdays, Thursdays and Saturdays. However the parties renegotiated further consent orders which were made on 3 February 2014, which saw overnight time commence on 5 April 2014. Whilst the father’s experience of overnight time with the child has apparently been generally satisfactory, the mother’s experience of the child after he returned from overnight time has been less so. In her trial affidavit of 20 November 2014 at paragraphs 80 to 108 the mother detailed her concerns that had commenced in about May 2014, and continued as at the date of that affidavit, about the child’s behaviours upon returning from spending overnight time with the father. She further says that during that period the child was quite resistant to going in to the father’s overnight care and although that eventually abated, once the overnight time extended to two nights, it increased again.
It is unnecessary to detail this further, as during her cross-examination, the mother conceded that all of those matters had now stopped, and there was no longer any troubling behaviour exhibited by the child after spending overnight time with the father.
As at the time of trial, the father was spending two overnights with the child per fortnight, together with some day time periods as well. However during the course of the trial, the parties agreed to further interim consent orders which would operate pending my decision in this matter. Those orders saw a progressive increase in the father’s time with the child to three nights each fortnight, commencing four months from the date of the conclusion of the trial.
I will deal with other factual matters as they arise in considering the relevant issues and considerations in this case.
THE ISSUES
With the assistance of the parties, during the course of the trial the following were identified as the issues the resolution of which were likely to substantially determine the outcome of these proceedings:
·What effect would staying in Australia have upon the mother’s parenting capacity?
·What effect would relocating with the child to D Town have upon the mother’s parenting capacity?
·What benefits does/would the child derive from a meaningful relationship with the father, and how may those benefits be best obtained?
·What effect would staying in Australia have upon the child’s relationship with the father?
·What effect would relocation to New Zealand have upon the child’s relationship with the father?
·If relocation is permitted, would the mother facilitate the child’s relationship with the father?
·Could the parents communication abilities support equal shared parental responsibility?
·Could the parents facilitate equal time?
I will address those in that order in due course, after I have considered the relevant statutory provisions and legal principles, but before undertaking a general traverse of the s 60CC considerations. Once I have considered all of those matters, I will then turn to the questions of parental responsibility, living arrangements, communication and relocation.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable, the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents. If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents. In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s.60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Relocation
The application of these provisions in the context of relocation cases has been discussed by many authorities. In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81, where her Honour said as follows:
79. In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
EFFECT OF STAYING IN AUSTRALIA ON THE MOTHER’S PARENTING CAPACITY
Overview
In substance, the mother says that if she is required to remain living in Brisbane, her mental health will suffer to the point where I should be positively satisfied either that her parenting capacity would be substantially impaired, or alternatively that the risk of it being so impaired is so great as to make it unacceptable. It is therefore necessary to consider firstly, the mother’s current and historical mental health issues, and then secondly, review the evidence as to the likely effect on those of continued residence in Brisbane.
Mother’s current mental health
There is no dispute that the mother is mentally unwell. Indeed there is an abundant amount of material to support that conclusion. For instance, the parties agreed that each would be psychiatrically assessed by a single expert, Dr E. In his report of 9 March 2015 he concluded that the mother “has had a significant major depressive episode.” He continued “this has improved with treatment and she seems to have steadily improving function. In my opinion this episode has occurred as a result of her underlying rather detail oriented anxious personality and then stress and uncertainty, likely dating back from the birth of the child onwards and then further exacerbated by the relationship separation, move back to New Zealand, subsequent court action and return to Australia.”
He explained that the mother’s inability to control her circumstances caused her to suffer “overwhelming anxiety”, which “metamorphosed into a major depressive episode.”
Dr E first saw the mother on 19 November 2014. On that occasion he was so concerned about her then suicidal ideation that he arranged, via her general medical practitioner, for her urgent referral to a consultant psychiatrist for private treatment. That psychiatrist was Dr O. She gave evidence before me both by way of affidavit and oral cross-examination. She did so as a therapist rather than an independent expert. By the time of trial she had seen the mother on four occasions. Her report was structured by reference to those four consultations. The last such appointment was on 25 March 2015.
It does not appear as though the mother has consistently presented during those four consultations. In her initial consultation on 5 November 2014, amongst other things, the mother reported as “feeling overwhelmed by sadness” and “had determined that she would commit suicide in the event that she was not granted permission to return to New Zealand” and as “having suicidal thoughts daily.” Not dissimilar reports were made during her appointments on 17 December 2014 and 4 February 2015. However, in a phone call with Dr O on 6 February 2015 the mother described that she had an “epiphany” and that “she was feeling the best she had felt in Australia for some time.” She articulated that “if I really had to, I could survive here [in Brisbane] somehow.”
But by the time of her appointment on 25 March 2015, Dr O recorded that the mother “had talked herself into believing “it’s going to happen,”” by which she meant that she would be able to return to New Zealand with the child. She explained this on the basis that “she was sure that [the father] was going to give up his claim and allow [the child] to return.” Ultimately when pressed, she identified that she had no evidence to that effect, but was “just certain that it would happen.” Dr O appeared to press her further, and after having identified that she believed that somehow or other she thought that God would favour her “if I believe hard enough,” ultimately said that “[she] was not sure whether she would become suicidal if the court case were not to proceed or not go her way.”
Dr O’s primary diagnosis was, like that of Dr E, of a major depressive disorder of moderate severity with anxious distress. Although she noted that there had been no recent suicide attempts, she did say that the mother had maintained serious future suicidal ideation for some months and may remain vulnerable to attempting to suicide, particularly if she were to feel overwhelmed with difficult news.
Also in evidence was a report from the mother’s treating psychologist, Ms P, dated 18 September 2014. She indicated that her testing showed that the mother was experiencing moderate symptoms of “depression and stress” in consequence of which she undertook cognitive behavioural therapy with the mother. Those sessions had then most recently been focussed on “strengthening the coping strategies developed in sessions,” and assisting the mother in building a support network in Australia.
Finally the mother’s general medical practitioner, Dr Q prepared a report dated 30 April 2015 in relation to the mother. In answer to a question about the mother’s current state of mental health and wellbeing, she opined that the mother “is currently suffering from a major depressive episode with significant associated anxiety symptoms.”
I accept all of these witnesses’ evidence.
Predictions as to the future
The several experts and therapists were all asked to report as to the likely effect of the mother staying in Australia. No one seemed to think that the mother would do anything other than have some form of adverse reaction to such an outcome, which would impact upon her mental health. However, the extent and duration of that adverse effect was variously predicted. In an addendum report dated 31 March 2015, Dr E said:
On the information I have available, it is likely that mother would suffer some deterioration in her mental health at the time of being informed of such an order. It is most likely that this deterioration could then respond to treatment and on balance it would seem most likely that in the longer term she should be able to adjust to the situation and still have a good prognosis.
I would be concerned about her suicide risk at the time of such an order being made, given her rather rigid adherence to the view that there is no way of her reaching an accommodation with living in Australia near the father.
It is possible and even probable that her parenting capacity would decline (most likely temporarily) in the period after making such an order, depending on the degree of deterioration or otherwise in her mental health.
Dr E was also asked to comment upon an alternative scenario, namely that the mother’s relocation to New Zealand was allowed, but deferred for between six to twelve months. In that event he opined:
In this scenario it is most likely that the mother would not suffer the deterioration associated with an order preventing her permanent relocation with the child. It is most likely that she would, with appropriate treatment, continue to have steady improvement in her clinical condition as she seemed to be doing when I reviewed her on a number of occasions and communicated with her treating psychiatrist.
There is some possibility that the ongoing distress associated with living in Australia might have the opposite effect and there might be a gradual decline in her clinical condition. This has not been what has occurred on the information I have available, but the limitations of this information have already been discussed previously in this opinion.
It is most likely in this scenario that her parenting capacity would continue to improve as she receive treatment and made psychological adjustment to her situation.
Dr E was cross-examined about the mother’s likely reaction to remaining in Australia. He identified that the mother was very invested in this case, and going to New Zealand was very important to her. As between the options that, in such an event, the mother might either respond to treatment, or ruminate and worsen, his view “on balance” was that the mother would likely respond to treatment. He identified that she had responded to treatment in the past, and that within six months to two years time, it was likely that any adverse reaction would substantially resolve.
He was pressed as to what he meant by “on balance” and explained that he had given the matter a great deal of thought, and assessed that it was 60 per cent likely that she would respond to treatment after any such adverse outcome; necessarily it follows he has assessed it was 40 per cent possible that she would not. He explained that the six months to two year period was derived from the average population, and was the time frame in which he said most people resolve issues arising from adverse events.
Dr O was also asked to advise in relation to the likely effect on the mother’s mental health (but not parenting capacity) in the event that she were prevented from permanently relocating to New Zealand. (She was not asked to comment on the alternative scenario of relocation being allowed but deferred).
In answer to the question posed of her, she said as follows:
The long term impact on [the mother’s] mental health is difficult to determine. [The mother] is very fearful of this outcome and she may have a catastrophic reaction if this were to eventuate. [The mother] has, in general, been unwilling to consider a permanent move to Australia as a possibility. She has therefore made somewhat limited attempts to integrate herself into the Brisbane community with the exception of Church playgroups. [The mother] had been able to live away from New Zealand for fifteen years and generally functioned well.
If [the mother] was ordered to remain living in Brisbane, it is possible that she may ruminate on the idea that she has been unfairly treated and make few attempts at establishing a new life. In these circumstances, the prognosis for her depressive illness and anxiety disorder would be poor. Due to a combination of [the mother’s] personality structure and depressive illness, I do not believe that taking a negative attitude towards staying in Australia would be a conscious choice.
[The mother] has demonstrated the capacity to have dramatic shifts in attitude. If she were to feel more hopeful about living in Brisbane and make steps to establish a life for herself, then her prognosis from the point of view of depression and anxiety may be reasonable. Another potential future stressor which is currently unpredictable is the level of tension which would be present in the co-parenting relationship between [the father] and [the mother] if she were to remain in Brisbane. [The mother] finds conflict difficult and this would likely have a negative impact on her mental health.
Dr O was also cross-examined about this issue. She described the mother’s behaviour this year as involving a “dramatic and unpredictable jump” and indicated that it is quite possible that she could do such again. As regards “loss” in these proceedings (i.e. being required to stay in Brisbane) she opined that the mother had not really faced up to that. In the event that there was suicidal ideation, she anticipated she would remain engaged as a therapist for the mother, although she said that it did not need to be her. Nonetheless she was adamant that there would need to be reasonable therapeutic engagement on the part of the mother with which ever therapist was engaged. She also thought that the mother had a reasonable therapeutic alliance with her psychologist, Ms P, such as she would be able to assist the mother through any traumatic period.
Dr Q was also asked to comment on the effect on the mother’s mental health if she was ordered to remain living in Brisbane. (Again no question was asked in relation to a deferral of relocation). Although in her report she did venture an opinion, that opinion was not ultimately read into evidence by the mother, as it went beyond the matters which a therapeutic report can permissibly extend to, given the single expert report of Dr E. However to the extent that an answer to that question remained in evidence it was:
Over the last 18 or so months she has remained in Brisbane, [the mother’s] mental health has continued to slowly deteriorate. [The mother] has no friends or family support in Brisbane.
Ms P did not venture any opinion on this issue.
Evaluation
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 per cent - 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.
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 per cent risk of non-recovery is a significant risk.
EFFECT OF RELOCATION UPON MOTHER’S PARENTING CAPACITY
Overview
The mother’s case is that living in D Town would substantially improve her capacity to parent the child. Really she relies upon two matters in support of that argument; the first is that she would be free of the negativity that surrounds her being required to stay in Brisbane; the second is that on the occasions that she has holidayed in New Zealand, and on the occasion that she left the relationship to live in New Zealand, her emotional and psychological health has improved. On the other hand the father says that the mother is a good enough parent already, and that any improvement in her psychological functioning in New Zealand would not necessarily translate into an improved parenting capacity.
The mother’s and grandparents’ beliefs
The mother has long expressed strong views to the effect that relocation to New Zealand would substantially psychologically and emotionally assist her, including in her parenting capacity. Essentially this relates not so much to the geography, but because, as she explained in paragraph 149 of her affidavit filed 20 November 2014:
In [D Town] I feel relaxed, safe, supported, at home and very happy. Living with my parents, I am surrounded by friends and family who are all within easy walking distance.
Later at paragraph 151 she explained that in D Town she has “a great support network in terms of child care and emotional support if I need it.” She went on to relate that she has three close friends there, all with children of the child’s age. She explained that she would be closer to her Maori heritage, although it appears as though this not a matter of relevant practise in her everyday life.
The mother briefly explained some primary school options available in D Town (paragraphs 167 and 168), and said that she has been offered a part-time position of marketing manager for her sister’s retail group, which position would be flexible in terms of location and hours.
The mother was not seriously challenged in cross-examination as to the genuineness of her beliefs in this regard; on the other hand some challenge was made to whether her perceptions may not entirely reflect the reality of the situation once she were to return to D Town. Nonetheless I accept that the mother’s belief, of itself and without more, is an important factor.
The maternal grandmother in her affidavit filed 26 March 2015 said at paragraph 20-21 as follows:
20. Whilst she was in [D Town] in 2013 [the mother] was happy and cheerful. She had friends dropping in to see her and [the child] all of the time and she started to talk and make plans for a future. She and [the child] were always out walking or attending classes and [the mother] attended to all of her housework and grocery shopping. I had no worries at all over her mental health or her ability to care for herself.
21. During her time in [D Town], [the mother] had started writing again (which is her hobby) and started to reach out and make contact with old friends with whom she had lost touch over the years she was with [the father]. She was also about to start a self-assertion course with Jigsaw (an organisation that helps survivors of domestic abuse). She really seemed to be happy and making constructive plans to get on with her life.
This was in marked contradistinction to her observations when she visited the mother in Brisbane from time to time, which was to the effect that over the last 18 months the mother had become “more and more depressed.”
In paragraph 15 of the maternal grandfather’s affidavit also filed 26 March 2015, he indicated that he had read his wife’s affidavit and agreed with it.
The professional opinions
Dr E was specifically asked about the effect on the mother’s mental health and parenting capacity if she was able to permanently relocate. To that he said as follows:
In my professional opinion there would likely be some further improvement in the mental state of the mother if she were to be permitted to relocate back to New Zealand. This would partly be based on the mother’s perception of distress at being in Australia and away from family support and also her perception of being controlled by the father with regard to having to be in Australia.
The first caveat to this view is that it is based only on the self report of the mother and second hand information about the view of the mother’s parent regarding the mother’s apparently high level of function while she returned to New Zealand. Both these individuals clearly have a vested interest in advancing the view that a return to New Zealand will resolve all issues and that there were no mental health issues in the mother while in New Zealand.
The other caveat to this opinion is that it is most likely that the mother has had significant mental health symptoms since relatively soon after the birth of the child and I am not entirely convinced that these remitted completely while she was in New Zealand, although I do not have objective data to say one way or the other regarding her mental state during this period.
It is most likely that the mother’s parenting capacity would improve somewhat in this scenario with the above caveats.
To a like question, Dr O opined in her report of 27 April 2015:
[The mother] and her mother both report that she does not feel depressed when she is with family in New Zealand. [The mother] prefers the climate, feels more socially connected and has a sense of belonging. It is likely that a move to New Zealand would be helpful for [the mother’s] mental health. I believe that ongoing monitoring of her mental state and psychotherapy would still be required.
In cross-examination Dr O conceded that perhaps the mother was viewing the assistance she may have obtained from a return to New Zealand through “rose coloured glasses.” That said, she discounted to an extent the prospect that the maternal grandmother was lying to her about her own observations of the mother’s improvement of functioning in New Zealand because, although one might expect the grandmother to support the mother, logically one would expect her to also be concerned about any prospect of suicidal ideation as well.
That said, Dr O conceded that the mother was being somewhat idealistic in relation to the improvements which relocation would effect, and in general terms would not expect the degree of improvement which the mother appears to think would follow from it. In answer to questions from me, Dr O conceded that there was probably a degree of wishful thinking in the mother’s beliefs, because in her view, the mother’s underlying problems related to self-esteem, conflict with the father and stress associated with the court proceedings. Although with the conclusion of these proceedings the latter would abate, the self-esteem and conflict problems would not be cured merely by a geographical change. Both of those are more deep seated. Whilst the self-esteem issue might be ameliorated by some change to New Zealand, equally it may not substantially improve.
To like effect was the oral evidence of Dr E. Although generally conceding, as a matter of logic, that a change of geography would not cure the mother’s unhappiness within herself, he did nonetheless say that a potent feeling pertaining to the mother is that she feels trapped and coerced. His evidence was that if she perceived that the move would free her, then it may well indeed achieve that effect. However he conceded that the mother’s issues with self-esteem and conflict with the father will follow her, which is why he was adamant if the mother were permitted to relocate, she should nonetheless continue with psychotherapy and psychiatric assistance.
Later in cross-examination he conceded that the mother’s perception of New Zealand was more of an escape than a destination per se. In part this informed his view that a move to New Zealand was, although perceived as “unidimensional” by the mother, nonetheless not necessarily a panacea to her problems.
Dr Q’s evidence on this point (again accepting that a part of her report was not read into evidence as being inadmissible) was that:
By [the mother’s] report, she has a good support network of family and friends in New Zealand particularly in [D Town]. She reports being happy, relaxed and comfortable in her life prior to returning to Brisbane. It is my experience that when treating a major depressive illness, it is highly advantageous for the patient to have a good support system of family and friends available in their local vicinity. When combined with appropriate medical care, this gives the best chance of resolution of the illness.
Ms P did not venture any opinion in relation to this matter.
Evaluation
I am satisfied that there is a degree of wishful thinking in relation to the mother’s desire to relocate to New Zealand, and that she does, in all probability, optimistically overstate the benefits to her of such a move. However that said, I am satisfied that firstly, if the mother were to continue engaged with the same level of psychotherapy and psychiatric assistance which she has in Australia, the move to New Zealand would likely optimise the successful outcome of such interventions, and further, that the move itself might well give her a perception of freedom which she would not otherwise have.
It is of course, highly difficult to predict how relocation, and any consequent improvement in her emotional and psychological health, might impact upon her parenting capacity. Whilst one might generally conjecture that a more mentally healthy parent is a better parent, it is plain that the mother has nonetheless, and notwithstanding her considerable mental health issues in Australia, been a good parent to the child thus far. I am not persuaded that there would be some dramatic improvement in her parenting capacity with a move to New Zealand, even with the current level of psychological and psychiatric supports.
However there is a further issue, and that is the extent to which the mother either would have such supports available to her in D Town, or even if they were available, the extent to which she would use them.
Dr Brasch QC, who appeared for the father, correctly identified that the mother does have a history of less than perfect engagement with relevant specialists or therapists from time to time. However more worrying is that there was no evidence put before me at all as to what sort of mental health facilities or therapists were available either in D Town, or the surrounding region more generally. Indeed the mother’s affidavit was extremely light on as to detail of D Town at all. The most I know is that it is a relatively small town with a population of about 2000 – 2500 people, and contains a primary school and a preschool. The mother’s affidavit details that the town is 20 kilometres from N Town and “is a tourist hot spot.”
In his evidence, Dr E explained that in New Zealand mental health services are publicly funded, and appeared to think that perhaps the only local centre with any real concentration of appropriate therapists would be Christchurch.
At an early stage in the trial I attempted to raise with the mother’s legal representatives that there seemed to be little relevant evidence about D Town or surrounding areas. Notwithstanding those concerns being raised, no attempt to meet them by additional evidence was made.
All the relevant therapists and experts who gave evidence identified a need for the mother to continue to engage with relevant professionals, even if she were to relocate to D Town. Not only do I not have evidence as to their availability in that region – even on a circuit basis – but there are serious concerns in relation to the mother’s willingness to avail herself of such assistance as may be available there. As I remarked during the course of addresses, the fact that there is no evidence from the mother as to such facilities only serves to reinforce her likely disinterest in them, and similarly reinforces the prospect that she may not avail herself of such facilities – even scant ones – as may exist there.
The mother appears to have a relatively naïve belief that relocation per se will cure her. That is, as I say, naïve. It substantially reduces the likely benefit of relocation because she incorrectly perceives that it, and nothing more, is what is required to “heal” her, and hence apparently has made no plans to continue to receive appropriate support and therapy if she relocated. The evidence does not support such a rose coloured view.
BENEFITS OF MEANINGFUL RELATIONSHIP WITH FATHER
It was not in dispute that the father deeply loves the child and is determined to be a good parent to him. In fact perhaps the high watermark of the father’s determination in this regard was his candid concession, both in the course of the Family Report interviews and in evidence before me, that in the event that I permitted the mother to relocate with the child in New Zealand on a permanent basis, he would likely follow. I will consider the effect of such a concession in due course, however for present purposes it reflects the certainty that this child is fortunate indeed to have a father who is determined to be deeply involved in his life, even if there be significant personal cost to him in doing so.
The converse was also not in dispute. The child will clearly benefit from a meaningful relationship with his father. In fairness, the mother has not ever contended to the contrary.
The only real question then is how the child may best obtain the benefits of such a meaningful relationship, accepting that it is a meaningful, rather than optimal, relationship to which the primary consideration in s 60CC(2)(a) is directed: Sigley & Evor (2011) 44 FamLR 439 at [135].
In this regard the Family Report writer, Mr R, gave some poignant evidence. It was evidence which caused the father to become distressed and leave the court room. In substance he agreed with the proposition that at four years of age, the child was still cementing his relationship with the father. He agreed that Skype (or like) communication was no replacement for tactile, face-to-face contact between the father and child. In answer to questions from me, he explained that tactility was important because a child’s perception of touch is vital to their experience of people, and the world generally. He emphasised that Skype was not a substitute for a parent physically waking up a child, making them breakfast, hugging them, or tucking them into bed. He said that those sorts of interactions are central to the quality of the relationship between the parent and child, and the lack of opportunity for that sort of interaction is a loss to the child.
He explained that, in the long term, the absence of those sorts of regular engagements would cause the child to have a different view of the father than he otherwise would have. He said that in those circumstances, a child would not grow up to have an understanding of the father as a consistent care giver. He explained that that is not to say that the father would not be a person of significance, but that the relationship between father and child would take a different shape to that which it might otherwise have. That said, he did not agree that the relationship would necessarily therefore be of a lesser quality, but rather one that was simply different. He used the phrase “holiday dad” to describe it.
I should observe that it was around this point in the evidence that the father became distressed and left the courtroom. It may be that up until that point the father had not really drilled down to the effect on the child of his regular absence from his every day routine, or perhaps the opposite, namely the effect on him of not sharing those everyday experiences with the child.
Earlier in his evidence Mr R had explained that the longer the father/child relationship continues at a fairly intense level, the more robust it would become, and the better able to withstand any significant periods of absence. He said that attachment theorists believe that attachment strengthens between the years of four to five years of age to eleven years of age. It was those matters which, in part, informed Mr R’s recommendation that if relocation be permitted, it nonetheless be deferred until the end of 2015 or early 2016. He explained that young children have difficulty in conceptualising lengthy periods of time. He said that was important, because in order to maintain the relationship between father and child, the child would need to be able to conceptualise when he would next see the father again.
Although plainly he was of the view that the best way of maximising the benefits of the meaningful relationship between father and son would be by regular face-to-face time both on weekends, school days and holidays, he explained that in the event that relocation were permitted, the father’s role in the child’s life could be maximised by: firstly, Skype; secondly, the capacity for the father to deal independently with the child’s service providers; thirdly, good communication between the father and mother in relation to the child’s routine, so that the father is not getting that information from the child, and hence can speak to the child about his daily routine without interrogation and in a seamless way; and fourthly, that there be good indirect communication by the mother. He said examples of that would be the mother encouraging the child to include the father in day to day life, such as her responding to the child’s statement about some significant event with “that’s great, let’s ring Dad” or the mother having the child purposely make things for the father, and involving the child in sending them to him.
However plainly those sorts of matters would involve the mother in something more than dogged adherence to orders of the court, and would require her to be motivated to facilitate the relationship between the father and child, and more, to act upon that desire.
In this regard the mother’s capacity to facilitate such a relationship is an important matter. I shall specifically consider that in greater detail later in these reasons.
Ultimately, in my view whilst the best means of obtaining the benefits which the child might derive from the relationship with the father would be by way of the father being engaged regularly in all aspects of his life on a face-to-face basis, I accept that once that relationship is sufficiently robust, thereafter it might be adequately maintained, albeit perhaps at a sub-optimal level, by the sorts of mechanisms which Mr R gave evidence about, and which I have recited above.
EFFECT ON CHILD’S RELATIONSHIP WITH FATHER IF STAYS IN AUSTRALIA
No one seriously argued against the proposition that the optimum experience of the relationship between the father and child would be if they were living close by, in circumstances that would enable the father to spend if not equal time, then substantial and significant time with the child. According to the parties’ primary proposals (as distinct from the evidence and the father’s alternative proposal) the only means by which that ideal could be achieved is if the mother remains living in Brisbane. That said, the father’s evidence – plainly against interest at least insofar as his primary proposed orders were concerned – was that he would also relocate to be as close to the child as possible in the event that the mother were permitted to permanently relocate. Ultimately that was also articulated in his alternative proposal.
EFFECT OF RELOCATION UPON CHILD’S RELATIONSHIP WITH FATHER
As I have earlier observed, at trial nobody seriously contended other than that the best means of achieving a relationship between the father and child would be to have them living close by.
Turning though to the parties’ cases, the mother proposes that the father would spend 12 periods of five days with the child in New Zealand each year, and a further two periods of five days with the child in Australia each year. Dealing with that proposal (as distinct from the evidence), it was not suggested that the father would have permanent accommodation in D Town or such other region as the mother may relocate to, and hence the reality is that the father’s time with the child is likely to be highly artificial. On the mother’s proposal, in New Zealand the father would likely to be motel or hotel based. Perhaps he could obtain some more homely accommodation. Presumably for some or most of the five day periods the child will be at school. It would be an odd routine for the child to be coming back from school to some form of holiday accommodation or similar. Even on weekends or holidays, it is unlikely to be an easy environment for the child.
One could not really conclude that five days a month is going to see the father as a regular and ingrained part of the child’s everyday existence. I think it is no exaggeration to say that the father would indeed become a “holiday dad”. The fact that some school days may fall within the time that the father spends with the child in New Zealand, would not really reduce the validity of that description.
Moreover when the child visits the father in Australia, inevitably that is likely to be during school holidays. Precisely why a maximum of five days was prescribed by the mother was not explained to me. It seems meagre, at best. Indeed the entire proposal by the mother appears to be somewhat parsimonious.
The father proposed alternative orders in the event that the mother were permitted to relocate to New Zealand. I have set those out at the commencement of these reasons. Specifically he does not seek any regime of order for him to spend time with the child in Australia; he accepts that he would relocate to New Zealand. It therefore follows that the father must propose that he will live within a close enough proximity of the mother, such that he will be able to continue to have the sort of relationship that he presently does with the child.
This case therefore has something of an oddity. Whilst not conceding that the mother should be given permission to relocate, the father concedes that if she does, he will also relocate. Relocation therefore will not in fact impact upon the child’s relationship with the father.
WOULD THE MOTHER FACILITATE THE CHILD’S RELATIONSHIP WITH THE FATHER IF RELOCATION PERMITTED?
Overview
To my mind, this is a critical matter in considering the mother’s proposal for relocation. It was a matter which I seriously explored with counsel for the mother during the course of his submissions. It may fairly be said that this is one of the weakest parts of the mother’s case.
Mother’s history of facilitation
The father says that from the birth of the child the mother has been disinclined to allow him to be actively engaged in the child’s care or day to day life. The mother says that the father was not interested. The truth is likely to lie somewhere between those polar positions. The material does not in any event really enable me to resolve that dispute.
On the other hand, from shortly before separation until the trial, there is a relatively long history from which the mother’s past inclination to facilitate a relationship between the father and child may be gleaned.
The first such matter is the mother’s email to the father of 18 September 2012. Unilaterally she had decided that she and the child were moving to M Town. That email spoke of employment opportunities and other advantages of the locale. It did not appear to even consider the impact which such a move would have on the father/child relationship. The closest she came to discussing that was to advert to the prospect of the father also obtaining employment in M Town “should you decide to be closer to your son.”
That said, in her 12 November 2012 email, the mother did identify that the child “needs both of us in his life.” However against that background, her unilateral move in March 2013, not merely out of the former matrimonial home, but out of the country, to a relatively remote location in New Zealand, can only be construed as demonstrating that the mother was comfortable to substantially impair the relationship between father and son. It is difficult to see it in any other light. True it is she says she was doing so because the distance was an attempt on her part to ensure that separation between her and the father could permanently occur (she being of the view that she might otherwise relent and recommence the relationship if they were living close by) but precisely how she was intending on thereafter facilitating a meaningful – as distinct from superficial – relationship between the father and child thereafter is quite unclear on the evidence. She cannot have been intending that the father relocated to New Zealand. She must therefore have been in some way intending there to be a long term, long distance international relationship between the father and child.
I do not ignore that after she relocated to New Zealand, the mother did make the child available to spend time with the father and paternal grandmother when the father visited New Zealand. However to properly understand her motives in doing so, one needs to be mindful of the fact that she was then attempting to have the father consent to her relocating to New Zealand with the child, in a move to defeat any proceedings pursuant to the Hague Convention. Moreover, the father’s time with the child was closely monitored by her because of her apprehension that he would take the child back to Australia. Of course, as counsel for the father pointed out, that is precisely what she had done to the father.
The next relevant event which shows some indication of the mother’s willingness to facilitate a relationship between the child and the father is her email of 6 September 2013, in which she foreshadowed that, if the father brought proceedings in Australia, and if an attempt to force her to return via Hague proceedings was made “you will have to fight me for every smidgeon of access along the way and you still won’t get what you want.”
The next relevant event germane to this consideration is the agreement that was reached between the mother and father to the effect that, irrespective of what the recommendations in the first Family Report were, they would follow them. As it transpired, those recommendations were not substantially favourable to the mother, and after the report was published, the mother declined to honour the agreement.
There is a curious post-script to this. In the course of the interviews for the second Family Report, the mother in fact told Mr R “I was happy to follow the recommendations of the [first family] report. I wasn’t going to rush into it. At that stage I wasn’t ready to volunteer that [extra time] without him asking.”
In cross-examination the mother was asked why she wasn’t prepared to volunteer it, but would agree to it if the father asked for it. Her answer was not at all clear; in reality she had no cogent explanation. More significantly, in fact after the first Family Report the father did seek an increase in time in accordance with the recommendations, however the mother’s solicitors did not directly respond to that proposal, but merely confirmed that the mother intended to proceed with her application to relocate. Moreover, after the father read the second Family Report, his solicitors again attempted to negotiate a further increase in the time that the child spent with the father. However although the time which the father has thereafter spent with the child has incrementally increased, it has not, as at the time of trial, been to the level recommended even in the first Family Report.
Interestingly, part of the mother’s argument in favour of relocation is that if she is permitted so to do, she will provide the father with far more information about the child than she presently does. As Queen’s Counsel for the father pointed out, that incentive is a tacit concession that, at the moment, she does not provide the father with the sort of information, or at least the level of detail and regularity she now proposes. Further, there is a long history of the father seeking information about the child to which the mother does not respond, and his requests for increases – even ad hoc – in the time which the child spends with him, have almost invariably been refused.
Allied to this is a relatively long history of the father being flexible in renegotiating arrangements in relation to the child (for instance the location of changeovers) but the mother not demonstrating such flexibility.
I have already adverted to the mother’s evidence-in chief in her trial affidavit, to the effect that the child was demonstrating reluctance to spend time with the father, and thereafter behavioural issues associated with having spent such time. Although the mother said in her trial affidavit that those matters were continuing, by the time of her cross-examination she conceded that they were no longer a feature of the child’s behaviour. However as counsel for the father pointed out, she had been apparently prepared to not only tolerate that behaviour, with no real encouragement being offered to the child to spend time with the father, but more, had during that time held a referral of the child to a counsellor to help with those behaviours, which she never acted upon. One is left with the suspicion that the mother was happy to have that behaviour a continuing feature of the child’s life so as to have such evidence available before the court to support her case.
From time to time the mother has also entertained beliefs, or perhaps only suspicions, that the father has been acting inappropriately towards the child. On occasions these concerns have led her to either personally notify DoCS, or alternatively to take the child to a mandatory notifier, no doubt with the knowledge that a notification would ensue. For instance in May 2014 the mother became concerned about perianal bruising of the child, and that the father had been sedating the child whilst in his care. She took the child to a medical practitioner in relation to those matters, and the medical practitioner notified the Department. Further on 22 May 2014 the mother took the child to hospital where she reported that she was suspicious that the child had been harmed by the father. Other instances include the mother reporting to DoCS that she had observed the father with an erection whilst the child was sitting on his lap, and later, that the child developed a cold sore on his bottom lip, which she identified to the Department was some way connected to a cold sore which the father had on his penis during the course of the relationship.
I do note that on 27 May 2014 the mother contacted the Department, seemingly of her volition, and told them that the previously reported perianal bruising “was [now] believed to be related to constipation and defecation.” However that said, also in that conversation the mother relayed her concerns in relation to the father sedating the child.
Both to the Family Report writer, and in her evidence-in-chief and oral testimony, the mother declared that she believes that the child and father have a good relationship, and that such a relationship is important to the child. However when comparing those statements with the mother’s past conduct, there is not a perfect alignment. The mother has on occasion been quite prepared to act in a way which would not facilitate an ongoing relationship of any significance between the father and child, in the ways that I have discussed above, and appears to have some reservations about the father, as demonstrated by her notifications to DoCS and others from time to time.
It occurs to me that the mother has perhaps been in something of a bind in relation to the father and child having a good relationship. Such a relationship may have been perceived by her to be an impediment to her relocation to New Zealand: the better the relationship between the father and child, the greater the adverse impact of relocation on that relationship might be. However the mother did not identify that that had been her concern, and one is therefore left simply with the mother’s past conduct as the best guide as to how she might behave in the future.
I am satisfied that the mother is unlikely to place any real significance upon the father/son relationship, at least where it is inconsistent with her own priorities or plans, and will continue to act in a way that sees her own desires and needs prioritised over the child’s need to have a relationship with the father. To that extent I am not persuaded that the mother will be motivated to facilitate the relationship between the father and son, or at least not make it one of her priorities. That is not to say that she will act to alienate the child; rather that to the extent that she does facilitate the relationship, it is likely to be begrudging, rather than generous.
CAN THE PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY
Both parties seek orders for equal shared parental responsibility. However Mr R at paragraph 81 of the second Family Report noted that the parties have had, and appear to continue to have, fairly strong mistrust of one another. That said, he observed that “their communication about their child appears to be fairly adequate at this stage.”
Indeed the parties do have a fairly good recent history of communication in relation to the child. Their text and email communications appear to be respectful and child focussed, and their telephone conversations business like. There is no real reason to think that their communication at the moment would not support joint decision making in relation to long term issues pertaining to the child.
I am satisfied that the parties can maintain equal shared parental responsibility.
COULD THE PARTIES FACILITATE EQUAL TIME
Mr R has in the past had, and maintains, strong concerns about this issue. He says that such an arrangement “is likely to add pressure to [the parties’ communication] and in turn, place the child at risk of exposure to intense, overt parental conflict and mistrust.” At paragraph 79 of the second Family Report he said “I remain guarded about the sustainability of an equal shared living arrangement in this matter. It is difficult to assess how it might be practically managed, given that a final decision on the issue of relocation is likely to have a negative bearing on the social circumstances for at least one parent.”
At paragraph 80 he continued “I also remain concerned about the interpersonal relationship of the parent being equipped enough to sustain and equal shared living arrangement in the longer term.”
I accept that evidence, and share those concerns.
In cross-examination Mr R was more direct. He expressly said that he does not support equal shared care for the reasons outlined above.
I am not satisfied that these parties could presently effect an equal care regime.
SECTION 60CC CONSIDERATIONS
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
No party contended that the child would not benefit from having a meaningful relationship with both of his parents. I am satisfied that indeed he would. However the difficulty in this case is how the child may maintain a meaningful relationship with the father.
Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Neither party asserted that the other represents a risk of physical or psychological harm to the child, whether from him being subjected to or exposed to abuse, neglect or family violence, or otherwise.
I am mindful that the mother asserts that the father assaulted her by kicking her many years ago, and says that on later occasions he has sought to intimidate her during the course of their relationship by his physical bulk, and pressing her into a corner. However both parties accepted that this is not a case in which domestic violence is a determining factor, even if it did occur. It is therefore unnecessary for me to make any finding in that respect.
Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
This child is too young to express any views.
Section60CC(3)(b): The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
The child has a good relationship with both parents. The relationship with the father is developing, in the sense that the child is becoming used to spending overnight time with him, and separating from the mother.
Section 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
No criticism is made of either parent in relation to this consideration. The father has been as keen as circumstances permitted to be involved in every aspect of this child’s life, and has sought constantly to increase the time which he spends with him.
Section 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The father has regularly paid child support in relation to the child. The only issue (which is of little significance in any event) pertains to the father apparently not having paid child support for the child whilst he was with the mother in New Zealand. There is an alleged child support debt outstanding to the New Zealand authorities. (Interestingly it appears as though in New Zealand child support as assessed is paid to the receiving parent irrespective of whether the liable parent in fact pays).
The father says that this debt should not be in existence, and has in the past sought administrative review of his obligations. I am not in a position to determine the legitimacy or legality of this debt, although I note that it also arises in the property proceedings.
Section 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I have, in part, addressed this consideration already. The child has a developing relationship with his father, and relocation to New Zealand, in the event that the father did not also relocate, would disrupt it. At the moment the father has regular time with the child each fortnight, and the parties proposed under the new consent interim orders that such time will further increase.
The effect of relocation (if the father does not also move to live within close proximity to the mother) is that the regularity of the child’s time with the father will decrease, and the opportunities for the father to be involved in the child’s everyday life will diminish. Whilst that does not necessarily speak to a negative outcome for the child, it is, as Mr R identified, inevitably going to lead to the father/son relationship being of a different kind (but not necessarily quality) to that which would otherwise ensue.
Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The father led considerable evidence as to the costs of him travelling to New Zealand as contemplated by the mother’s orders. All of that, of course, was on the assumption that he did not relocate himself. The cost to him was of two kinds. Firstly because he is a contractor, he would lose work that he would otherwise have been able to undertake in those periods. That would therefore lead to a drop in income. Additionally there would be the costs of travel and accommodation. Moreover, it appears as though, except in the height of the ski season, there are no direct flights between Brisbane and N Town, but rather there would need to be a flight to Christchurch initially, followed by a Christchurch-N Town leg thereafter.
The father says that he cannot afford the costs associated with the travel which the mother’s order would necessitate. I accept that evidence. He was not seriously challenged in relation to it.
However the father’s evidence – and alternative proposal – is that if the mother is permitted to relocate with the child, he will move to New Zealand as well. The difficulty with that is that D Town is a small town of about 2000 to 2500 people, and the father is a contract consultant. There is no evidence of any employment opportunities for him in the D Town area, or in the district generally. Indeed the mother put on no evidence whatsoever about the father’s capacity to obtain employment anywhere in New Zealand. Presumably contract consultants are more likely to be employed in large cities rather than small towns. That is likely to therefore occasion some practical difficulty in the father spending regular time with the child, even if he were to relocate to New Zealand.
Section 60CC(3)(f): The capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
No criticism is made of the father in his relation to his capacity to provide for the child’s needs. The only criticism that is made of the mother is that she may not facilitate the child’s relationship with the father to a desirable extent. I have discussed that sufficiently already.
Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The mother is of Maori descent. She identifies with that culture and desires to raise the child with the knowledge of it. The father is not of Maori descent but there is nothing on the material that would persuade me that the father does not support the child enjoying that heritage.
This is not a consideration of any moment in this case.
Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This consideration is not engaged.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I have sufficiently discussed the mother’s facilitation of the relationship between the father and the child elsewhere in these reasons. There is no other criticism made of either parent in this respect.
Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family
The mother alleges family violence: the father denies it. Both parties accept that this is not a case which stands to be determined by any issue of family violence. That is particularly so because both parties seek equal shared parental responsibility, and no party asserts that the presumption does not apply because of family violence.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
No family violence order has ever applied.
Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This matter was initially engaged during the course of the proceedings, in that the father asserted that the mother, in the event that she were permitted to relocate, had not agreed to register my orders in New Zealand. That would likely have led her to either seek to re-litigate in New Zealand or to require the father to re-litigate there.
Ultimately the mother via her counsel proffered an undertaking to register any orders that I made in New Zealand, in the event that she were permitted to relocate.
I am therefore satisfied that this consideration is not engaged.
Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
The mother has a right of freedom of movement and travel. Subject to domestic law, she has the right to live where she chooses.
I cannot identify any other additional fact or circumstance beyond those that I have discussed already.
PARENTAL RESPONSIBILITY
Both parties seek an order for equal shared responsibility in relation to decision concerning the long term care and welfare and development of the child. I am satisfied that such an order is in the child’s best interests.
WITH WHOM AND WHERE SHOULD THE CHILD LIVE
The mother seeks orders that the child primarily live with her; the father seeks orders ultimately graduating to equal shared care. Mr R did not support the father’s position and although not abandoned by the father in the course of submissions, his counsel recognised the difficulties which the father’s proposal met in consequence of the Family Report writer’s opposition.
Fundamentally the difficulty is that the underlying hostility and mistrust of the parents of each other is likely to see the child embroiled in their conflict. Necessarily the father mistrusts the mother because she has, in his view, abducted the child to New Zealand without any regard to the father’s continuing role in the child’s life. The mother plainly mistrusts the father as is demonstrated by her having taken the child for investigations in relation to sexual abuse, sedation and other misconduct by the father. That necessarily further fuels the father’s mistrust of the mother.
The mother argues that her parenting capacity will improve if she is permitted to relocate, and will deteriorate if she is not permitted to do so. She says that it is not in the child’s best interests to have the parenting capacity of the primary resident parent decline, but rather that it is in the child’s best interests to have it optimised. However – at least on her proposal – the cost for that optimisation is likely to be the diminution of the relationship between the father and the child. The child is only four years of age, and hence that relationship is necessarily vulnerable to change. Mr R was plain that a child of that age cannot conceive of seeing their father again in a month’s time. A month is simply too long a time period for them to contemplate and understand. Moreover, the ways in which he suggested that such a relationship might be maintained notwithstanding the distance (regular Skype, reporting of the child’s everyday activities by the mother to the father, and the mother actively involving the father in the child’s life) have not been regular features to date.
It is here that the mother’s capacity and desire to facilitate a relationship between the father and the son becomes important. Had there been a long history of such facilitation, both when the mother was in New Zealand and after she had returned to Australia, the adverse consequences on the child of permitting her to relocate with him to New Zealand might have been able to be sufficiently ameliorated. However she does not have a history of anything other than, in effect, begrudgingly accepting the need for a relationship between the father and child whilst in New Zealand, and she has been inflexible and unaccommodating to such facilitation, and the arrangements surrounding it, since she returned to Australia.
Of course the mother has a right of freedom of movement, and not permitting her to relocate would impede the exercise of that freedom.
I am satisfied that refusing relocation would likely cause the mother some deterioration in her mental health, although I accept Dr E’s evidence that is likely – but only to the extent of 60 per cent – to resolve within six months to two years. She does have excellent supports in the form of Dr O, Dr Q and Ms P in Australia, and relocation to New Zealand is not likely to affect some magical cure of her depression. I accept Dr E’s evidence that it is likely that the mother had underlying self-esteem and conflict issues, which will not necessarily abate or cease merely with a change of environment. In that regard, the evidence that I have already dealt with in relation to the lack of such psychological and psychiatric supports as she has in Australia in D Town is unfortunate. Further the mother’s past history of not engaging as enthusiastically as might be therapeutically ideal with appropriate supports cannot be overlooked.
Further, I should advert to the absence of any evidence of the general facilities available in D Town. The most I know it has a primary school. It is likely to have a high school, but there is no evidence of that. There is no evidence as to whether there might be private schooling available in that locale, or whether there is a tradition of students commuting to N Town for high school. The absence of this sort of rudimentary evidence was not explained in the mother’s case. I also note that in the past the mother has had to abandon attempts to drive from N Town to D Town because of snow and poor weather.
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.
Therefore it can be seen that the following points are in the favour of the mother’s proposal (uninfluenced by the father’s alternative orders) and against the father’s primary position:
·The mother’s mental health would likely improve, and her parenting capacity may also improve;
·It overcomes the risk to the mother’s mental health and parenting capacity if she were not permitted to relocate.
The following matters are against the mother’s proposal, and in favour of the father’s primary position:
·The mother has a history of poor facilitation of the father/child relationship;
·The mother likely overstates the benefits to her of relocation, and in any event, absent continued therapeutic assistance, may not ameliorate her underlying problems;
·I know little about the facilities, particularly schooling, in D Town;
·The father’s relationship with the child would likely become one of a holiday Dad.
However the reality of the situation is clouded by the fact – both in the father’s evidence and in his alternative proposals – that if the mother relocates with the child, then he will do so too, and in that event seeks orders culminating in an equal time arrangement.
Dr Brasch QC argued by reference to the judgments Gaudron and Kirby JJ in U & U (2002) 211 CLR 239, that a concession by one party that they will also relocate if the other parent is permitted to relocate with the child does not absolve the court from separately evaluating each competing proposal. I accept that if so, and I have done so in the foregoing analysis.
However as has been seen in that discussion, there are significant disadvantages to each party’s primary proposal, to the point that each stands to substantially and adversely affect the child. On the mother’s proposal, there is the nigh certainty that the child’s relationship with the father will suffer, with no guarantee of commensurate benefit in the other areas; on the father’s proposal, there is a substantial – 40 per cent – chance that the mother may not recover from her highly likely adverse reaction to not being able to return to New Zealand.
In those circumstances, inevitably the court looks to practical alternatives, which might be more in the child’s best interest. Ordinarily, one such alternative is deferring relocation; in this case, there is also the father’s alternative proposal if relocation be permitted. There is also the prospect of a combination of those two alternatives.
In my view, if reasonably practicable, the father’s alternative proposal, insofar it would see him also relocate, and live in sufficient proximity as the child to maintain shared care, is overwhelmingly the outcome that is in the best interests of this child. Particularly:
·It enables the mother to maximise her chances for increased mental health and parenting capacity;
·It enables the child to maintain a meaningful relationship with the father and more, to have an optimal relationship with him.
That then raises the question of whether there should be orders for equal time, or if not, substantial and significant time. I have earlier in these reasons discussed Mr R’s evidence that equal time would expose the child to parental conflict at an unacceptable level. I accept that evidence.
In T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] listed the following factors that the court “should particularly examining in cases where a party seeks orders that they share a time equally”:
The factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
Accepting that the legislative framework has changed since that decision, there is nonetheless no reason to think that as a practical matter those considerations do not remain live in determining whether or not equal shared care is likely to work. Plainly many of them are not met in this case.
Whilst there is some prospect that the mother living in New Zealand might improve the parties’ communication, it really is a matter of conjecture. Moreover as Mr R observed, the father’s social circumstances will likely be negatively impacted if he relocates. Upon balance, I do not assess that the child’s best interests lie in an equal time arrangement. Moreover, the parties’ poor communication, which would impede their capacity to implement any equal time arrangement, speaks against such a regime being reasonably practicable in any event, even if they were living in reasonable proximity to each other.
However, subject to one reservation, I am satisfied that a regime of substantial and significant time would be in the child’s best interests and reasonably practicable. It would be in the child’s best interests because he will have a meaningful – indeed optimal – relationship with both parents, but the risk of him becoming entrenched in their conflict will be reduced to an acceptable level. It would be reasonably practicable in that, notwithstanding their ongoing communication and conflict, it is not of a level or intensity that would preclude the child spending substantial time with the father, as indeed the parties themselves have recognised in their latest consent orders.
The reservation I have relates to the father’s place of residence in New Zealand. In order for a regime of substantial and significant time to be reasonably practicable, the parties will need to live in reasonable proximity to each other. At the moment I have no evidence of the father’s intended place of residence. Presumably it would be influenced by his employment. Unsurprisingly the father put on no evidence as to the availability of alternative employment or accommodation in D Town or N Town. Less explicably, neither did the mother. However plainly the father must believe it feasible – but not desirable – to relocate, as one would not envisage him putting forward an unworkable proposal, even in the alternative. Perhaps he would envisage working in N Town, or perhaps working remotely. I do not know.
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 the father will need to obtain accommodation close enough to D Town to make the orders workable. Further, I am mindful that the specific content of orders for substantial and significant time might depend upon matters presently unknown, for instance where the father will work, and any travel arrangements surrounding his employment.
Moreover, I am inclined to think that the mother ought be ordered to engage with appropriate mental health supports in D Town or in that region. If possible, those orders should be prescriptive and specific.
The mother has not formulated any proposal to cover the eventuality of her being permitted to relocate, and the father doing likewise. Further, the father did not articulate any alternative proposal other than equal time.
I have considered whether I should, conditional upon the father obtaining accommodation within a certain distance of D Town, impose a regime of substantial and significant time of my own devising upon the parties, however not only did I not articulate such a proposal for the parties’ comment during trial, but equally significantly, what I ordered might be unworkable as the situation unfolds.
What I have in mind is giving 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 these reasons. I could envisage that a period of time might need to elapse between these reasons being published, and further submissions being made, so as some clarity of the father’s circumstances in New Zealand might be obtained. I will direct that the parties to liaise with my Associate to arrange the further mention of this case at which time those matters, and any necessary timetable, may be further canvassed.
PROPERTY
Relevant statutory provisions and legal principles
Section 90SM of the Family Law Act deals with the division of property of parties to a de facto relationship which has broken down. It has long been established that the preferred approach to be adopted to determining property disputes under the identical provisions which apply to married parties (s 79) is a four step one which involves:
·The identification of the property of the parties including their assets, financial resources and liabilities;
·The evaluation of the “contributions” or s 79(4)(a), (b) and (c) issues;
·The evaluation of the matters referred to in s 79(4)(d), (e), (f) and (g) including, by reference to s 79(4)(e) the matters set out in s 75(2); and
·A determination as to whether the result is just and equitable by reference to s 79(2) of the Act.
After the High Court’s decision in Stanford v Stanford[1] it may be taken as commonly accepted that the first step requires the identification of the parties existing legal and equitable interests in property, and thereafter, it is incumbent upon the court at the outset to determine whether or not it is just and equitable to make an order altering the interests of the parties in that property. However as the High Court itself indicated in Stanford, in many cases that step will be uncontroversial: for instance, if there is jointly owned property which is impracticable for the parties to jointly enjoy consequent upon separation, such as the former matrimonial home.
[1](2012) 247 CLR 108.
Just and equitable to adjust at all
Both parties are agreed that there needs to be an adjustment of the parties’ interest in property. That is because the father is presently the sole occupant of the jointly owned former matrimonial home. I accept that submission. However the matters in dispute between them are slender in the extreme.
The pool
Overview
The parties are agreed as to the identity and value of their assets to a total sum of $466,427.70. They are also agreed as to their liabilities, save for one matter being whether the father’s New Zealand child support debt should be included, or if it is, what value it should have attributed to it. They also disagree as to one so-called “add-back”.
Father’s New Zealand child support debt
The father’s alleged debt to the New Zealand Child Support authority is in the sum of $7,900.00. Ordinarily in Australia one would expect such a liability, if paid by the father, to flow onto the mother. However that is not the way the New Zealand child support system apparently operates. Child support is paid by the authority irrespective of whether the liable parent in fact pays. Therefore the mother has already received the $7,900.00 in child support.
This debt is subject to a currently unresolved challenge and the father has enjoyed some success in relation to disputing the New Zealand child support debt in the past (although exactly how is a little unclear). Therefore the argument on the part of the mother is firstly, that the debt is one exclusively of the father’s and should not be taken into account in assessing the parties’ net assets, and secondly, that in any event the father intends to challenge it.
There can be no doubt that had the father paid the $7,900.00 to the relevant New Zealand authority, the net property pool of the parties would have been commensurately reduced by that sum. One would not have expected that the mother would seek to add back into the pool sums which had been paid for child support. It remains a live liability for the father. The prospect of its recovery is likely to be far greater if, as he says he will, he moves to New Zealand. I am satisfied that the liability should be included in the pool in the full sum of $7,900.00.
Add back – part of Westpac redraw
The father contends that there should be added back into the pool of assets the sum of $33,000.00 being part of the monies which the mother withdrew from the parties’ Westpac mortgage account at the time of separation. The $33,000.00 was spent on a motor vehicle, which only some months later the mother then sold to her parents for $20,000.00. She says that she then spent the $20,000.00 on living expenses in New Zealand before returning to Australia. As I understand it, the father’s argument went that the mother should never have travelled to New Zealand with the child without court order first obtained, and therefore the entirety of the $33,000.00 should never have been spent by her. However I am satisfied that the mother indeed did spend the $20,000.00 on living expenses and that sum should not be included as an add back.
The argument then focusses on the fact that the mother concedes that she should never have incurred the costs of relocation to New Zealand in the sum of $9,947.00, and she should not have incurred $12,000.00 in legal fees in defending Hague Convention proceedings. The father says that the $13,000.00 lost when the car was sold to the mother’s parents is indistinguishable from both of those two conceded add-backs. I agree. There will therefore be added back into the pool of assets the sum of $13,000.00 attributable to the loss on re-sale of the motor vehicle.
Conclusion
As noted, the parties are agreed that the value of their assets is $466,427.70. The parties are agreed that to that sum should be added back $21,947.00. I have further added back into that pool the sum of $13,000.00. The total pool of assets is therefore $501,374.70. I have determined the liabilities of the parties should include the father’s New Zealand child support debt, and therefore that the liabilities of the parties are in the sum of $246,211.94. It follows that the parties’ property pool has a net value of $255,162.00. There is also superannuation in the sum of $177,133.99. (Both parties propose that each retains their respective superannuation entitlements).
Contribution
Generally speaking the parties agreed that their contributions to property were equal. The only matter in dispute between the parties as articulated before me was a claim by the mother that she should have a 5 per cent adjustment on her contribution based entitlement to reflect payments to the parties by her parents over about 13 to 14 years of the relationship in a total of about $50,000.00.
In the context of net assets of just over $430,000.00, that is a substantial sum. However the mother says that although this $50,000.00 reflects 12 per cent of the pool, she only seeks a 5 per cent contribution based entitlement in her favour by virtue of this alleged disparity. For his part the father says that much of the money was spent on flying the parties to and from New Zealand, and there is no evidence that, but for the wife’s parents meeting those expenses, the parties would have expended their own funds, such that the parents’ expenditure effected savings for them. I accept that argument. It is only contribution to the acquisition, conservation or improvement of property which is germane, and the relevant evidentiary nexus between that concept and the $50,000.00 is missing. It follows that I am of the view that the parties’ contributions should be adjudged as equal.
S 90SM(4) factors
Overview
There is dispute between the parties as to what is the appropriate adjustment based upon s 90SM(4) factors. The wife contends for an adjustment in her favour of her in the order of 10 to 15 per cent, largely based upon the father’s asserted greater earning capacity and the fact that she has the primary care of the child. The father says that the proper weighing of those factors should see no further adjustment.
Age and health of parties
The father is presently 45 years of age and in good health. The mother is presently 46 years of age and suffering from depression.
Income property and financial resources and capacity for employment
The father presently has an income of $155,000.00 per annum, whereas the mother is not in employment. Neither party has financial resources beyond their superannuation entitlements upon retirement.
As to the father’s earning capacity, although he presently earns $155,000.00 per year, whether that is likely to continue after a move to New Zealand is unclear. The mother has not worked for some time, but previously had a long history of employment. When she was last in employment in 2011 she earned $105,000.00 per annum. The mother concedes that she needs to return to work in the near future. I am satisfied that she can reasonably obtain employment either in Australia or New Zealand (but perhaps not D Town) in some capacity. The amount which she will be able to earn in that employment was not canvassed in evidence.
Care or control of the child
The orders which I will ultimately make will provide for the father to have substantial and significant time with the child, but for the primary care to remain with the mother. The precise split of time between the mother and father is yet to be determined.
Commitments for necessary support
At the moment the parties’ commitments for support of themselves and the child are set out in their financial statements; however with the move to New Zealand those figures are likely to rapidly become out of date. It is likely that the mother will have no, or low, rental commitments if she lives downstairs from her parents, but the father will either have to rent or purchase new housing.
Responsibility to support any other person
There is no evidence that this is engaged in this case.
Pension allowances or benefits
As I understand it the mother’s present income is an income tested Centrelink benefit. Neither party is presently entitled to any pension allowance or other benefit relevant to this section.
Reasonable standard of living
Little evidence was put on as to the likely cost of living in New Zealand. As I have observed, the parties’ financial statements relate to their circumstances in Australia.
Other section 90SM factors
I can identify no other s 90SM factor which is relevant to this case.
Conclusion
A proper evaluation of the relevant s 90SM factors is presently difficult given the likely change of circumstances for both parties in the near future when they return to New Zealand. Particularly:
·The father’s earning capacity in the D Town region is unclear, as indeed is the mother’s earning capacity;
·The likely costs of living of each of the parties is not in evidence before me;
·The extent to which the father has the care of the child is yet to be finally determined, save that it will be substantial and significant time.
There is a further difficulty. In his application the husband seeks orders that the wife transfer the Suburb L property to him, and in her response the wife also seeks that order. However on a practical level, any refinancing of the mortgage that such a transfer would entail may be problematic for the husband if his financial circumstances are to shortly change with relocation to New Zealand, and in any event he may wish instead to have the property placed on the market for sale.
Given that, it seems appropriate that I should give the parties the opportunity, should they so wish, to put on any further evidence and make any further submissions in relation to the property proceedings consequent upon the resolution of the parenting matters. If neither party wishes to avail themselves of that opportunity, then I will need to determine the matter on the present state of material, and make orders in the form which the parties have sought.
CONCLUSION
For these reasons I defer making any orders, and will only direct the parties to liaise with my Associate in relation to a suitable date for the mention of this matter to enable directions for the receipt of any further evidence and submissions to be made.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 16 July 2015.
Associate:
Date: 16 July 2015
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