Chan and Newberry

FAMILY COURT OF AUSTRALIA

CHAN & NEWBERRY

[2014] FamCA 197

FAMILY LAW – CHILDREN – Best interests – relocation – with whom the child shall live and spend time – mother proposes to move outside of Australia with or without the child – mother restrained from taking the child outside of Australia – mother able to relocate intrastate with the child – if the mother chooses to leave Australia then the child shall live with the father – if the mother remains in Australia the child shall live with the mother and spend substantial and significant time with the father – child has meaningful relationships with both parents and a primary attachment to the mother – child at a critical stage of development and attachment due to his young age – parties to have equal shared parental responsibility.

FAMILY LAW – SPOUSE MAINTENANCE – application by the mother – father has the capacity to provide for the mother – mother requires assistance due to her having primary care of the child – both parties worked for the same employer and the mother was made redundant following separation – father to pay the mother a weekly amount – if the mother chooses to leave Australia she will not be entitled to the payment.

Family Law Act 1975 (Cth) ss 60CC, 64B, 75
APPLICANT:	Ms Chan

RESPONDENT:

Mr Newberry

FILE NUMBER:

PAC

3555

2012

DATE DELIVERED:

27 March 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

30 & 31 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duane

SOLICITOR FOR THE APPLICANT:

Gianacas Argiris McDonald

RESPONDENT:

In person

Orders

That the mother and the father have equal shared parental responsibility for K born … 2011 (“the child”).
That the mother is restrained from taking the child to live outside Australia without the prior written consent of the father or further order of the Court.

Mother living overseas

In the event that the mother decides to live in the USA, the mother shall give to the father three months’ notice in writing of her proposed departure date, and after that notice is given:
(a)The mother is restrained from changing the child’s residence away from Newcastle.
(b)The child shall spend time with his father as follows:
(i)on two consecutive weekends from 4.00 pm Friday until 4.00 pm Sunday; then
(ii)on four consecutive weekends from 4.00 pm Friday until 8.00 am Monday; then
(iii)on four consecutive weekends from 4.00 pm Friday until 8.00 am Tuesday; then
(iv)on two consecutive weekends from 4.00 pm Friday until 8.00 am Wednesday; and
(v)thereafter, the child shall live with his father and spend time with his mother prior to her departure from Australia from 4.00 pm Friday until 4.00 pm Sunday each week.
In the event that the mother moves to live (for reasons of study or otherwise) in the United States of America then the child shall live with the father in Australia and in that event the father is restrained, until the child starts formal schooling in 2017, from:
(a)changing the residence of the child from Town A, New South Wales;
(b)changing the child care centre that the child attends from B Child Care Centre, Newcastle.
The child shall spend time with the mother for not less than four periods of two weeks each calendar year with the father to travel with the child to the USA on two occasions per year and the mother to travel to Australia to spend time with the child on two occasions of two weeks per year or as otherwise agreed between the parties.

Mother living in Australia

If after three months from the date of these Orders, no notice has been given by the mother to the father of an intention to live outside Australia OR notice has been given that the mother intends not to live outside Australia whichever occurs first THEN the mother may establish a residence for the child in Sydney and the child shall live with her and thereafter:
The child shall spend time with the father as follows:
(a) Until commencement of formal schooling in 2017:
(i)each alternate weekend from 12.00 noon Friday until 12.00 noon Monday extending to 12.00 noon Friday (one week in total) on four occasions in each calendar year with the father to give not less than 28 days’ notice of the proposed extended periods NOTING that the extended periods should not be less than four weeks apart and should exclude Christmas Day and Mother’s Day;
(ii)from 12.00 noon on 21 December until 12.00 noon on 28 December in 2015 and in 2017, and from 12.00 noon on 28 December until 12 noon on 4 January commencing in December 2014 and in 2016;
(b)After the commencement of formal education in 2017:
(i)each alternate weekend from after school Friday until 5.00 pm Sunday (extending to 4.00 pm Monday if it is a public holiday);
(ii)for one-half of each term holiday commencing 12.00 noon on the first Saturday after the conclusion of the term and concluding at 12.00 noon on the mid-point day of the period;
(c)for one-half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years commencing at 12.00 noon on the first Saturday after the conclusion of the final school term in odd numbered years and on the mid-point day of the holiday period in even numbered years NOTING that each parent may travel overseas with the child provided notice of departure date, flight details and itinerary is given not less than four weeks in advance.
(d)If Father’ Day does not fall on a scheduled Father’s Day weekend, then on Father’s Day from 12.00 noon Friday until 12.00 noon Monday in substitution for the weekend immediately following Father’s Day.
(e)If Mother’s Day falls on a scheduled weekend for the father, then time is suspended for the Mother’s Day weekend and shall be made up on the weekend immediately following Mother’s Day.

Travel arrangements

At any time that both parties are living in Newcastle the father shall collect the child from day care or from the mother’s residence (whichever is appropriate) at the commencement of the time the child spends with the father and the mother shall collect the child from day care or the father’s residence (whichever is appropriate) at the conclusion of each period of time the child spends with the father.
In the event the mother is living in Sydney with the child:
(a)Until the child starts school in 2017 the mother shall transport the child to the home of the father at the commencement of a weekend period and the father shall deliver the child to the home of the mother at the conclusion of the period.
(b)From the time the child starts school in 2017 the parties shall meet at a mid-point and failing agreement otherwise at Town C for the child to changeover between the parents for periods of time.

Communication

Wherever he is living the child shall communicate with the other parent not less than once per week by SKYPE or telephone at a time between 6.00 pm and 7.00 pm Australian Eastern Standard time and at other times and by other electronic means by agreement.
Each party shall keep the other advised of current residential address, contact telephone numbers and electronic addresses.

Parental responsibility

Each party is restrained from enrolling the child for formal schooling (commencing 2017) without the prior written consent of the other parent.
Each parent shall execute all necessary documents to permit the other parent to:
(a)attend all school functions to which parents are invited;
(b)receive all documents in relation to the progress and welfare of the child at school;
(c)purchase school photographs.
Each parent shall, as soon as practicable, advise the other of any serious illness, accident, hospitalisation or emergency involving the child whilst he is in the care of that parent.
Each parent is restrained from making critical or derogatory remarks about the other parent and members of that parent’s extended family in the presence or hearing of the child and shall make every effort to have third parties be similarly restrained.

Spouse Maintenance

In the event that the mother remains living in Australia, the father shall pay to the mother by way of spouse maintenance the sum of $540 per week for a period of three years or until the mother returns to paid employment whichever event occurs first.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chan & Newberry 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 NEWCASTLE

FILE NUMBER: PAC 3555 of 2012

Ms Chan

Applicant

And

Mr Newberry

Respondent

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders in relation to one child aged two years and eight months. There is also an application for spouse maintenance by the mother.
The applicant is the mother. She is 35 years of age, professionally qualified, not currently in paid employment. K, (“the child”) is her only child and he is living with her. The mother grew up in Sydney. Her parents live in Taiwan and her two sisters both live in the United States of America (USA). The mother is seeking to relocate herself and the child to the USA either to New York, or to California, for the purpose of post-graduate study and perhaps to work. In the event that the Court did not approve such a re-location, the mother seeks to live in Sydney with the child.
The father is the respondent. He is aged 44 years, is professionally qualified, presently working for Company D. He spends time with his son in accordance with orders made in December 2012. He has an older son Mr E, aged 21, from his previous marriage.
The father opposes any relocation by the mother of the child’s residence away from the Newcastle area. He lives in Town A just north of the city. The father did have a brief de facto relationship for a few months in 2013, but at the time of hearing neither party had a new partner.
The mother is also seeking financial support by way of spouse maintenance until she returns to work and the father is opposed to any such order being made.

Short history

The parties met at work in Newcastle early in 2009. The following year in March they began to live together in the father’s property at Town A.
In December 2010 the parties married.
In mid-2011 their only child K was born.
On 30 March 2012 when the child was nine months old, the parties separated, the mother leaving the former matrimonial home with the child and moving to rental accommodation in Town F. The father remained in the home.
On 16 August 2012 the mother filed her first application in the Federal Circuit Court seeking parenting orders and for spouse maintenance and property. There was no reference at that time to any proposed relocation.
On 9 October 2012 the father filed his Response. On that same day in Court, the mother filed an Amended Initiating Application varying orders sought in relation to parenting and spouse maintenance and property. Again there was no reference to relocation.
On 25 October 2012 the father filed his Amended Response.
On 12 December 2012 orders were made in the Federal Circuit Court and the matter was transferred to this Court.
On 15 March 2013 the mother filed a Further Amended Initiating Application varying parenting orders sought, such that they were in the alternative, depending on whether the mother was living in the Sydney Metropolitan area or continuing to live in the Newcastle area. The mother sought an order to relocate the child’s residence to “a suburb of Sydney”.
The father filed a Response proposing that the mother be permitted to relocate to the Sydney Metropolitan area with the child to live after the child turned five, that is, after June 2016. There were then proposals as to how the child would spend time with his father once he was living in Sydney.
On 4 July 2013 property orders were made by consent, which finalised the financial arrangements between the parties and continued an order for spouse maintenance with a period of suspension.
On 22 August 2013 directions were made for a final hearing in January 2014. The parties were directed to file any amended application or response no later than 13 December 2013.
On 17 December 2013 the mother filed a Second Further Amended Initiating Application. The parenting orders sought provided in the alternative for orders in the event that the mother remained living in Newcastle, for orders in the event that the mother was living in Sydney and for orders in the event the mother was living in the USA, with an inference to be drawn from those orders that the child would live with her in the USA.
On 13 January 2014 the father filed an Amended Response seeking orders that the mother be restrained from changing the child’s residence from Newcastle and that the child spend equal time with each of his parents after a short transition period. I infer from the Response that the father was opposed to the child being removed from Australia to live in the USA.
At the hearing commencing on 30 January 2014 the mother proposed further amended orders. She no longer put forward any proposal that involved continuing to live in the Newcastle area. Her orders were in the alternative, that is, should she be living in Sydney and in the alternative, if she was living in the USA, again with an inference that the child would be living with her. No specific order for relocation of the residence of the child was sought.
In explanation for the different orders sought, through the case outline, the following statement was made on behalf of the mother:
The mother does not propose to live in Newcastle and if accepted for study, does not propose to live in Sydney for the period of the study. The mother proposes to live in Sydney with [the child] unless or until accepted for study to complete a Masters [program] in the United States.
It quickly became clear to the Court and to the father that the mother’s previously expressed possibility of moving to the USA had crystallised. She had in fact made five separate applications for further study in various prestigious universities in the USA, both on the east and west coast. Through these applications and her oral evidence, I formed the very strong impression that the mother simply wanted to get away, not only from the Newcastle area and from the father, but from Australia. It was apparent that she has felt increasingly isolated and frustrated, especially since being made redundant from work.
The father’s response was to oppose the mother removing the child to the USA to live, but in the event she chose to go without him, that the child live with him in Australia, but in the event that the mother remained living in Australia, his proposal was first: that she be restrained from relocating away from the Newcastle area.
The particular difficulty of the case was the lack of evidence from the mother of her plans for life in the USA, or even for life in Sydney if she was permitted to live there with the child. Evidence was led on the first day of hearing which provided the Court and the father with the information that the mother would either be living on the west coast of the USA in California, attending either G University part-time, or H University fulltime, or on the east coast of the United States with her other sister attending I University part-time, or J or L Universities for fulltime courses.
There was no confirmation of the period of times involved or how the mother would support herself. She referred to a loan for study in the order of $160,000 with no information about how it would be repaid.
Likewise the mother gave evidence-in-chief that if she lived in Sydney she would live on the upper north shore of Sydney, somewhere between Suburb M and Suburb N, in accommodation comparable to that in which she lives now in Newcastle and that she would either work or study; if she studied it would be at O University.
My very strong impression was that since the period of separation, the mother has wished to leave Newcastle and that wish has over time developed into a plan to leave Australia, leaving open the possibility of not returning at all. The mother has a very strong wish to get away. I accept that she is genuine in wanting to change her career direction from her current field to obtaining a Masters and becoming more involved in management and policy, particularly policy.

The evidence

The applicant mother relied upon the following documents:
a)Second Further Amended Application filed 17/12/2013;
b)Amended Financial Statement of Ms Chan (mother) filed 17/12/2013;
c)Affidavit of Ms Chan (mother) filed 17/12/2013;
d)Affidavit of Ms Chan (mother) filed 10/02/2014;
The respondent father relied upon the following documents:
a)Affidavit of Mr Newberry (father) filed 13/01/2014;
b)Financial Statement of Mr Newberry (father) filed 13/01/2014;
c)Father’s Response to Second Further Amended Initiating Application filed 15/01/2014;
The Court relied on the Memorandum to Court by Family Consultant dated 14/03/2013.

Ms Chan, the applicant mother

The mother has applied to study at five different Universities in the USA. At the time of hearing she had not received responses although one was imminent. By arrangement that response came into evidence. The application had not been accepted but was wait listed.[1]
[1] Affidavit of Mother filed 10/02/2014, Annexure ‘A’
The mother presented as considered and articulate. Emotionally she appeared flat and distant. However, I do not consider that the mother is in any way indifferent to the welfare of the child. Indeed she holds passionate views about his welfare, in particular that he would benefit from time with extended maternal aunts and cousins in America. Equally if not more important is her belief that as a role model for the child she should be advancing herself; studying and working at the highest level she can achieve. The mother has clearly been a high achiever throughout her life and wants the same for her son.
The mother was dismissive of undertaking a Masters program in Australia and elucidated her reasons. She does not wish to simply acquire skills and qualification for management positions. Her desire is to enter the world of policy development at the most senior levels of government specifically in the USA. The courses applied for open that possibility. Logically her qualification would be for policy work in government in the USA.
Her ultimate application to the Court was in essence an application to establish a residence for the child in the United States of America whilst she lived and studied there. It was not expressed in that way, but that was what was intended. As an alternative position, the mother put forward two proposals:
(i)that if offered a place she would travel to the USA to study whether or not the child was permitted to go with her; or
(ii)if she was unsuccessful in being accepted in USA for study, she seeks to relocate with the child to live in Sydney.
The mother faltered and her voice broke on the topic of leaving the child with his father and travelling overseas: “I don’t know whether [the child] would cope with that and I don’t know if I would.” She recovered quickly but I have no doubt that this emotional moment was a glimpse of the inner conflict between love for her son and a sense of obligation to aim high.
The mother did not resile from this stance when given the opportunity to do so.
The mother may have been displaying to the Court her apparent willingness to go alone in an attempt to persuade the Court of the strength of her wish. I do not think so. I am satisfied that the mother considers her proposed course the right thing to do for herself and consequentially for the child.

I am equally satisfied that the mother has not considered the independent interests of her son; that his welfare is best promoted by retaining the close loving bond he has with both parents and maintaining those relationships. Either she has overlooked the relationship between the child and his father, or has looked and underestimated the significance of it for his healthy development.

Mr Newberry, respondent father

The father is presently living in Town A and working in Newcastle. He has his young adult old son Mr E living with him. The father was born and married his first wife in the United Kingdom. They separated when Mr E was three. The father spent regular time with him. At one stage Mr E lived with his father for about 10 or 11 months. The father has now made his permanent home in Australia. His evidence reflected great disappointment that a second marriage involving a very young child had broken down and a determination to ensure that the relationship with the child K would continue.
He has made inquiries with his employer about more flexible conditions and I accept his evidence that he could work at home to some extent and vary his starting and finishing hours to meet the child’s needs if he was living with him.
The parties met at work and my impression is that they are both hard working and ambitious professionals. The adjustment to the care of a child was a difficult one for the mother; less difficult for the father who had already had the experience of adjusting to the needs of a child although his pattern of work was unchanged. It is the mother who has most suffered from the inability to work to capacity. An aggravating factor is that the parties having met at work, the breakdown of their relationship created strain and problems in the work place, which ultimately led to the mother becoming redundant.
More recently the father’s hours have reduced, not by his choice and he has earned less, especially as bonuses have not been paid to the same extent. He was cross-examined extensively about his income, bonuses and capacity to pay spouse maintenance. I accept that the husband now earns less than he did and works for fewer hours.
Unfortunately in the unsettled period after separation, the evidence of the husband is that he did gamble some of his funds, usually in a hotel. However his gross income still exceeds $200,000 per annum and after tax, rent, loan payments on his car and child support, he does have funds sufficient to meet his needs for food, clothing and everyday expenses, as well as a contribution to those needs for the wife.
The father appropriately conceded that the mother was unhappy in Newcastle and that he had known that for some time. He also readily conceded that she was an intelligent, hard-working and independent person.
The concessions of the father about the mother’s difficulties of being out of the workforce and feeling isolated in Newcastle were reflected in my view, in his earlier Response documents where he conceded that the mother should be able to move to Sydney, although not until the child was ready to commence school. I consider that his present position of the child either living with him in the event that the mother moved to the USA, or that they spend equal time in the Newcastle area is a reaction to the mother’s overseas proposal.
Unsurprisingly, the father was shocked that the mother wished to take the child away with some limited holiday time in the USA and Australia for himself and the child. My impression is that the father considers the child will do well in the primary care of his mother, or if both parents care for him as they had planned to do when they were together, that is, they would both work and both care for the child. Indeed, they had anticipated having a second child cared for in that way.
Whilst it is undoubtedly the case that a child as young as the child K would do best if he could have regular contact with both his parents most days, I believe that the father does understand that given his commitment to his son regular weekly time would be adequate to meet the child’s needs to maintain a meaningful relationship with both his parents. Further that there would be a benefit to the child in relief for his mother from the sadness she feels at being restrained to the Newcastle area where she has been unable to find further suitable employment. Newcastle holds no social significance for the mother now.
The father expressed the view that he thought it was unlikely that the mother would go to the USA without the child, but that in the event that she did make that decision, he was fully prepared to take on the fulltime care of the child. I accept that the father has given thought to that subject, has spoken to his employer and has considered the emotional consequences for the child, which would need managing.
The proposition was put to the father that he could arrange to work in the USA also whilst the mother was studying there. He disagreed. That proposition might be a reasonable one if there was a short period of study, or even a well- defined proposal by the mother, which there is not. She could be studying part-time or fulltime on her own evidence. The number of years is undefined. She may wish to stay if suitable work arises after her studies. Her proposal for international relocation is vague and undefined.
Even if the father were able to satisfy immigration requirements to work in the USA, it is unrealistic in my view to expect that he would simply shadow the mother for whatever period of time she remained living away from Australia.

Mr P, Family Consultant

Mr P agreed readily with the proposition that for both parents their career was important to their personal values, that the mother had been the person to mainly meet the child’s needs to date and that she was his primary attachment whilst developing a strong and positive attachment to his father.
Mr P gave strong evidence. He said that the child is in the critical period of attachment which continues until age three/three and a half. That the period is critical because psychological milestones are reached during that period, particularly the development of confidence to explore the world while certain of the support of caring parents.
Mr P was told of the mother’s position of moving to the USA if she was offered a place at a university there, whether or not the child could go with her. He said that in the event there had to be a change of residence, if both parents actively encouraged the change and gave lots of opportunity for time with the former primary carer, and time with the secondary and tertiary people (in this case the father and his young adult son), then the child would make the transition quite successfully.
Mr P painted the picture of the alternative outcomes:
· that the child might retain his primary carer (his mother) in a new environment with the loss of his relationship with his father; OR
· the child might be with his secondary carer (his father) in a familiar environment; that is his house and pre-school, cared for by his father and to some extent by his older brother, whilst experiencing the loss of his relationship with his mother. His older brother Mr E, may or may not be a fulltime member of the father’s household in the years to come.
It is quite apparent that Mr P felt that neither of those possibilities would best promote the child’s interests. I agree. At this young age where the child is learning confidence and trust in the support of his parents, to disrupt either of those attachments is likely to lead to an adverse outcome for the child.
I note and accept the advice of Mr P that SKYPE and telephone and other electronic communication would likely be unsuccessful at the child’s young age, unsuccessful that is in maintaining the relationship.
Mr P explained that very young children can draw some benefit from electronic communication, particularly where they have older siblings, but less likely for an only child where there is poor communication between the parents as there is here. He said that the goal of the critical attachment period was for a child to have the best opportunity to form strong, psychological attachments with each parent so the child can cope with separations, that non face-to-face contact was an adjunct and not a replacement.
Mr P reflected on the starkness of the options, but was clear to say that the child would adjust to a change of carer if there was excellent communication, positivity and regular face-to-face time and that the stronger his attachments were prior to a change, the better he would cope with that change.
In reflecting on the evidence of Mr P, I note his expression of disappointment that there had been no increase of time between the child and his father since the orders were made and significantly since the release of his report recommending an increase.
My reading of the evidence is that the communication between the parents, whilst civil, has not been particularly good and that mutual resentment has interfered with the easy communication and flexibility that Mr P was discussing.
There are very real risks that the child would not make a good adjustment to the loss of his mother or his father. I infer from the evidence of Mr P that he has a strong view that the child is simply too young, especially in the absence of positive parental support, to be separated to any significant extent from either parent.

The law

The objects of the Act in relation to parenting Orders are to ensure that :
a)     Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests
b)     To protect children from physical and psychological harm
c)     To ensure that children receive adequate and proper parenting to help them achieve their full potential
d)     To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

The child does have a meaningful relationship with both his parents. He is most closely attached to his mother, but has a strongly developed relationship with his father.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence

Family violence and risk of harm were not issues raised by either party in regard to the future parenting of the child.

Section 60CC(3)(a) - any views expressed by the children

The child is a young boy of two years and eight months. He was observed to be relaxed and happy in the care of each of his parents and also to be relaxed and happy in the care of both parents together.[2] Such observations are a revelation of the feelings of such a young child, although they cannot be articulated. Clearly nobody matters more to the child than his mother and his father.
[2]Family Report dated 23/07/2013, par 19

Section 60CC(3)(b)- the nature of the relationship of the children with each of their parents

The child has his most important relationship with his parents, although teachers and friends at the child care centre will have become important to him. He has a developing and fun-filled relationship with his older brother Mr E, aged 21. He does not have access to any of his grandparents and it is important that each parent has the opportunity to arrange visits for the child with those grandparents in the UK and in Taiwan respectively.
Each of the parents has taken the opportunity to spend as much time with and to communicate with the child as they can.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

The mother’s proposal to go to live in the USA would have an enormous impact on the child, whether she went without him or with him. If he were to travel to the USA with his mother, he would likely be cared for by a combination of child care and in the household of a maternal aunt. The mother has a sister in Boston and a sister in California, each of whom would be willing to assist in this way. He would be cut off from his father on a face-to-face basis, other than for holiday periods to a maximum of four times a year.
The expert evidence suggests that the impact on the child would be adverse, especially as there is not an easy cooperative flexibility in relation to communication or arrangements between the parents.
In the event that the mother went to live in the USA and there was a change of primary carer for the child to his father, again the impact would be adverse. His mother has met all of his needs to date and he trusts her to be there. Accepting the evidence of Mr P, his willingness to confidently explore the world knowing that he could safely do so would be undermined by the loss of his mother. His development would probably be negatively affected.
In the event that the mother remained in Australia and moved with the child to Sydney, he would be able to maintain regular contact with his father at weekends and for holiday periods, increasing as he grew older. He would also see the benefit of his mother living and/or working or studying in an environment where she felt much less constrained and a good deal happier. This would be a positive benefit for the child.

Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent

If the child was living in a different country to one of his parents, the availability of electronic communication would in no way ameliorate his sense of loss. Speaking on the telephone, being present for SKYPE calls I accept would not adequately make up for the loss of face-to-face contact and regular physical expression of love and affection between the child and the missing parent.
There would also be extremely long and tiring travel for the child in the proposal for holiday time, up to four times a year. It seems likely that the parents would be able to afford that travel, but if their circumstances changed so that they could not, even that amount of face-to-face time would fall away. It is a risk not worth taking.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

Each of the parents is an intelligent, highly educated and thoughtful person, who has the capacity to meet the child’s needs including his emotional and intellectual needs.
At this time the mother does not have a focus on the child’s independent emotional needs. She appears to consider that if she is happier and strongly involved in work and study, the benefit to the child will outweigh the loss of his relationship with his father. This is a failure to consider his independent situation as a two and a half year old, still developing that most important relationship with a parent.
The child is a two and a half year old boy, he has the benefit of having parents from different backgrounds, he is learning to speak Mandarin and he has family in Taiwan, the UK, the USA and Australia. There is a possibility of education and travel for him as he grows older and a variety of different experience.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

Each parent has taken the responsibility of parenthood seriously. The mother’s life was totally changed, first by the birth of the child and then by circumstances which led to her no longer being in paid work which she has found very difficult to tolerate. She has been attentive to the child’s health and education. She has been reluctant to increase the amount of time he spends with his father, although it is likely that the present circumstances of these applications, has put an artificial restraint on an increase in time.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

It may be that the mother decides if she is in a position to do so, to take up the opportunity to do post-graduate study in the USA. She may do this and leave the child in the care of his father. That would be a considerable loss for the child, which could be lessened to some extent by a rapid graduated increase of time between the child and his father in the period before she leaves and as much face-to-face time and effective communication as possible. I am satisfied that the father would make every effort to maintain the relationship between the child and his mother.
In the event that the mother chooses not to go and takes up the opportunity to relocate to Sydney, the parents are well equipped to ensure that he has the regular time that he needs with both parents, with the least amount of travel that they can arrange. The mother committed herself to living on the upper north shore of Sydney in order to minimise the travel. It may be in time that the father chooses to move to Sydney.
These are committed parents who wish to provide for their child. In those circumstances, I have not provided for restriction on where in Sydney the mother lives. She may not be able to afford to live in her nominated area, or she may decide to study at an institution where it would be realistic for her to live close by.
For all of the reasons set out above, I have come to the conclusion that the mother should not be able to establish a residence for the child in the USA, but should be committed to establish such a residence in Metropolitan Sydney.
There will be a period of transition where the mother obtains accommodation and give thought to whether she will study and/or work in Sydney. She has a financial need for support during that transition period and the father has the capacity to meet that need. An order has been made for spouse maintenance accordingly, which will effectively cover accommodation costs until the mother becomes established or completes a course of study.
The mother’s evidence is that she wishes to work if she does not travel to the USA to study and her past history suggests that she will do so quite quickly and certainly by the time the child starts at school in 2017.

Parental responsibility

The parents have the capacity to share parental responsibility for the child and to talk about the long-term issues for him. They are committed to a private education for him and there seems to be no disagreement about how to manage his health difficulties, nor is there a dispute about religious instruction.
There may be a period of adjustment in the event the mother remains living in Australia, where she continues to feel unduly held back. However the opportunity to return to the city where she grew up and where the opportunity for work is broader and more varied, together with the opportunity to study if she chooses, is likely to have a positive benefit for her and accordingly the child.

An order has been made accordingly.

Spousal maintenance

In November 2012 the mother applied for urgent spouse maintenance. The mother asserts she had been compelled to resign. The father says she offered her resignation. The parties had the same employer and aspects of preparation for final hearing had created difficulties at their workplace.
On 12 December 2012 an order was made in the Federal Circuit Court :
7. The father pay the mother $450 per week by way of urgent spousal maintenance commencing 21 December 2012 until further order.
The matter was then transferred to this court.
The mother withdrew her resignation and returned to work. The father, whilst protesting, continued to pay pursuant to the Order. For about six months there was a supplementary income for the mother as a result of the Order.
On 27 June 2013 the mother was made redundant from her position.
On 4 July 2013 the parties reached agreement on alteration of interests in property and orders were made accordingly. An order was also made by consent and pending further order about spouse maintenance, namely:
That Order 7 (above) be suspended until 7 October 2013 and thereafter resume with the next payment made on or before 11 October 2013 by way of interim spousal maintenance.
On 22 August 2013 when the parenting proceedings were listed for hearing, the father asked the Court to note that he was contesting the payment of spousal maintenance and that he would apply to cease paying (more accurate would be to say that he wished not to resume payments in October) because “his income is going to decrease”.
The father concedes that he ceased paying spouse maintenance in December 2013. Accordingly, the father has not paid for about three months and to the extent that there was any remaining over-payment, that situation has been fully rectified by the father’s non-compliance.
It is in that context that I consider the application for weekly spouse maintenance of $540 per week by the mother and resistance to any further payment by the father.

The law

A party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so if and only if that other party is unable to support himself or herself adequately whether:
a)By reason of having the care and control of the child of the marriage who has not attained the age of 18years;
b)By reasons of age or physical or mental incapacity for appropriate gainful employment; or
c)For any other adequate reasons, having regard to any relevant matter referred to in sub-section 75(2).
The mother does have the physical and mental capacity for appropriate gainful employment. It is likely she will return to paid employment in the short term future. However she has the care and control of the parties’ child K, aged two and at this time, wishes to care for him.
It is a reasonable position to take that the mother has remained in Newcastle pursuant to an order and not through her own wish. Her first preference is to study and work overseas, or if not permitted to take the child with her to do that, probably to live in Sydney if she is able to do so, to work and study there. It would be unreasonable to expect that she would commit to employment in the Newcastle area, knowing that if she were permitted to do so she would leave.
I also take into account the concession by the father that it has been a benefit for the child to have his mother more available to him in the context of their separation.
The question then becomes whether the father is reasonably able to maintain the mother. I accept the evidence of the father[3] that he had expected to receive an annual company bonus in 2013, as he had done in past years, but had not received it. Further that there had been a reduction in the dividends he received from shares in his employing company, with such share dividends trending down, and finally that he has had an increase in liabilities. He refinanced shares in order to payout a sum of $45,000 to the mother by way of property settlement and accordingly, loan repayments increased from $450 to $780 per month. Unless he re-financed, those repayments have increased again, as the loan converts from interest only to principal and interest.
[3]Affidavit of Father filed 13/01/2014, pars 55-58
I have no reason not to accept the father’s evidence that the father incurred substantial legal fees. However his gross income is more than $200,000 per annum, with additional weekly income of the shared dividends referred to of about $300 per week. I note that the father’s adult son contributes financially to the household.
At Item 33 the father claims total expenditure of $4,830 per week[4]. His major outgoings are:
[4] Father’s Financial Statement filed 13/01/2014, Item 60
a)Tax        $1,404 per week;
b)Rent      $650 per week;
c)
Lease repayments on a

Jeep Grand Cherokee         $629 per week;
d)Child maintenance              $298 per week; plus
e)Spouse maintenance.
I note that the average weekly expenses were a combination for the father and his young adult son and also for the child when he is a member of the household.
I consider that the priority for the father is the support of the child’s mother whilst she does not have an independent income and I am obliged not to take into account any eligibility she has for Government support. Likewise, entertainment and holidays for the father are a lessor priority than the support of the child’s mother while she requires that support.
Accordingly, in relation to the father’s weekly expenses I take into account a total of $500, increasing to $580 when the child’s expenses are added, less holidays, entertainment and hobbies, equalling $450.[5] I note that it was the father’s decision to lease a new motor vehicle. It may be that there would be a net loss on selling the vehicle, but that is a matter for the father. He is renting a comfortable five bedroom house. That too, is personal choice.
I do consider it is appropriate for the father to pay spouse maintenance for a maximum of three years; that is until the child commences school in 2017, or the mother returns to paid employment. It is likely that if the mother remains in Australia, she will return to paid employment within the three year period, but in the event that she chooses not to, there is an acknowledged benefit to the child which continues to make it appropriate for her to be supported in this way.
A payment of $540 per week will cover some, if not all, of a rental property of comparable, although probably smaller accommodation in the Sydney area for the mother and the child. I am satisfied that the mother is presently unable to support herself and that the father does have the capacity to contribute to her support.
An order has been made accordingly.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 27 March 2014.

Associate:

Date: 27 March 2014

[2014] FamCA 197

27 March 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Costs