DIONETT & REYNES

FAMILY COURT OF AUSTRALIA

DIONETT & REYNES

[2014] FamCA 1246

FAMILY LAW – CHILDREN – International relocation – Where the parties have a long-standing conflictual relationship – Where there are allegations of family violence – Whether there is a risk of harm - Where the mother alleges the father has sexually abused the child – Where the father has a relationship with the child – Whether there is a benefit to the child having a meaningful relationship with both parents – Where the child is to live with the mother – Where the presumption of equal shared parental responsibility is rebutted by family violence – Whether it is in the child’s best interests to permit the child to relocate to the United Kingdom with the mother – Whether relocation will allow for the child to spend substantial and significant time with the father – What time the child should spend with the father

FAMILY LAW – PROPERTY SETTLEMENT– Where the husband’s financial contributions are significantly greater than the wife’s –Where the wife made substantial non-financial contributions as a carer for the child –Where the wife will be left in a lesser financial position than the husband –Where the wife seeks an order for spousal maintenance

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 72, 75, 79

Family Law (Superannuation) Regulations2001 (Cth) pt 6

APPLICANT:

Ms Dionett

RESPONDENT:

Mr Reynes

FILE NUMBER:

SYC

1686

2012

DATE DELIVERED:

11 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

10-13 June 2014

REPRESENTATION

FOR THE APPLICANT:

Applicant in Person

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

Parenting

That the mother’s application for the child C (“the child”), born on … 2008, to relocate to Country Q be refused.
That the parties have equal shared parental responsibility for the child.
That each party has sole parental responsibility for day to day decisions relating to the child when she is in their sole care pursuant to these Orders.
That the child shall live with the mother.
That the child shall spend time with the father as follows:
(a) During the school term as follows:
(i)Commencing in week 1 where the father had the child for the last weekend of the holidays; each alternate Thursday from after school until before school the following Friday.
(ii)Commencing in week 2 where the father had the last weekend of the holidays; each alternate weekend from after school Friday until before school the following Monday.
(iii)Commencing in week 1 where the mother had the child for the last weekend of the holidays; each alternate weekend from after school Friday until before school the following Monday.
(iv)Commencing in week 2 where the mother had the child for the last week of the holidays; each alternate Thursday from after school until before school the following Friday.
(b)For the 2014 school year, in the short school holiday at the conclusion of Term 3, for five (5) consecutive days from the Friday the father would otherwise have had under Order 5 (a)(ii) until 5.00 pm the following Wednesday.
(c)Commencing 2015 in the short school holidays at the conclusion of Terms 1, 2 and 3 for one half of the holidays, being the first half in odd numbered years and the second half in even numbered years.
(d) At the conclusion of Term 4, 2014 for the long school holiday:
(i)For two periods of five (5) consecutive days in the school holiday period by agreement and failing agreement, from 9.00 am on the first and fifth Saturday of the holiday period until 9.00 am on the following Thursday.
(ii)For one seven (7) day period by agreement and failing agreement, from 9.00 am on 10 January 2015 until 5.00 pm on 17 January 2015.
(e)During the long school holiday periods thereafter for one half being the first half in even numbered years and the second half in odd numbered years.
(f)On the weekend of Father’s Day, the child’s birthday, if a school day, from after school until 7.00 pm and if a non-school day from 12 noon until 6.00 pm.
(g)Subject to other orders, each alternate year from 3.00 pm 24 December until 3.00 pm 26 December commencing 2014 and each alternate year thereafter.
For the purpose of these Orders school holidays shall commence on the day after the last day of term that the child attended school and end on the day before she re-attends school for the commencement of the new term.
That the father’s time with the child be suspended on the following occasions:
(a)On the weekend of Mother’s Day each year from 5.00pm on the Saturday prior to Mother’s Day until before school on Monday following Mother’s Day.
(b)Each alternate year for four (4) weeks in the long school holiday period to provide for the mother to take the child to the United Kingdom provided that:
(i)The mother provides not less than three (3) months’ notice of such travel together with, copies of return tickets for the mother and the child, itineraries and contact details; and
(ii)That a security deposit of $25,000 be deposited with the Family Court of Australia fourteen (14) days prior to travel and such security will be released to the mother upon her return. In the event the mother fails to return the child to the Commonwealth of Australia, the security deposit will be released to the father in full without further notice to the mother.
That unless otherwise agreed, both parties be permitted to travel interstate with the child during school holiday periods when the child is in their care, provided that the travelling party provides reasonable notice of such travel arrangements including dates, times and travel, an itinerary and a contact telephone number for the child.
That the father shall be permitted to remove the child from the Commonwealth of Australia for the purpose of visiting family in New Zealand (Aotearoa) for the week of his time in January 2015, provided that within six (6) weeks of travel, he provides to the mother details of the trip including copies of return tickets, itineraries, and contact details for the child.
That changeovers, where they do not occur at school, shall take place at the E Cafe, or in the area of where E Cafe was, at Suburb B.
That the mother is restrained from being present when the father collects the child from or returns her to school.
That the child shall communicate with the father by telephone each Tuesday or Wednesday (whichever is the night the child is not attending dance class) between 6.00 pm and 6.30 pm. The father is to contact the mother’s landline phone number at the time specified. To facilitate this the mother shall ensure the child is available to receive the telephone call and that she is given privacy to speak to her father.
That the parties shall each keep the other advised, at all times, of their current address, email address, landline and mobile contact telephone numbers.
That each of the parties shall notify the other as soon as practicable and, within twenty-four (24) hours, of any medical treatment the child has received whilst in their care. Further the parties shall advise the details of the treating doctor/hospital and, give all consents and authorities necessary for the treating doctor/hospital, to speak with and provide information to the other party in respect of the child.
That each of the parties shall be entitled to obtain directly from any health or welfare professional or any other professional attended by the child, copies of any report, notices or the relevant verbal or written advice effecting the health or welfare of the child and for this purpose each of the parties shall notify the other of the names and contact details of any relevant health or welfare professional.
That each of the parties shall notify the other immediately of any emergency involving the child and shall give all consents and authorities necessary for the other parent to seek any additional medical information about the child.
That neither party is to denigrate the other, or as is possible allow any third person to do so, in the presence of or the hearing of the child.
That neither party is permitted to discuss these proceedings with the child or show the child any documents pertaining to these proceedings.
That each party is restrained from removing the child from the Commonwealth of Australia without the prior written consent of the other party pursuant to these Orders.

Property

That in regard to the sale of the parties’ property situate at and known as F Street, G Town, Country H (“G Town property”):
(a)The father shall provide to the mother a list of three (3) proposed real estate agents within seven (7) days of the date of these Orders, to effect the sale of the G Town property.
(b)Within seven (7) days of receiving the list outlined in Order 16 (a), the mother shall select one (1) real estate agent from that list to act on the sale of the G Town property.
(c)In the event the mother fails to elect a real estate agent within the time period, the father shall elect and instruct one of the agents within a further twenty-four (24) hours.
(d)Upon appointment of the real estate agent, the parties shall forthwith take all necessary steps and execute all necessary documents to cause the G Town property to be listed for sale by private treaty.
(e)That upon the sale of the G Town property, the proceeds of sale shall be paid in the following order and priority:
(i)In payment of the reasonable costs of sale including any necessary legal costs;
(ii)In payment to the Nationwide Building Society Mortgage to discharge the mortgage held as security over the property; and
(iii)In payment of the balance then remaining to be divided 63.5 per cent to the mother and 36.5 per cent to the father.
That upon the mother’s compliance with Order 20(d), the father shall execute all necessary documents to transfer to the mother his right, title and interest in the Japanese motor vehicle currently held in the mother’s possession.
That the father shall pay to the mother a sum of $870 per week until the settlement of the sale of the G Town property and thereafter, until the third anniversary of the making of these Orders, a sum of $370 per week by way of spousal maintenance. Such sum shall be paid by direct deposit into an account nominated by the mother.
That the mother shall forthwith transfer all the household utilities including, but not limited to, electricity, internet and telephone into her sole name.
That from the date of these Orders, the mother shall be responsible for the payment of her rent and utilities.
That, after the payments of the mortgage and other essential expenditures, the mother shall be permitted to use the balance of funds held in the joint Lloyds Bank Account into which rental payments for the G Town property are made.
That upon settlement of the sale of the G Town property, the parties shall divide equally the proceeds of any bank account held jointly in both their names and shall close the accounts.
The mother is to return any personal property belonging to the father that is currently in her possession within seven (7) days of the making of these Orders.
That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a spilt-able payment becomes payable in respect to the father’s interest in his Employer Super Personal Superannuation Fund (“IOOF Fund”), the trustee of the IOOF Fund shall do all acts and things so as to:
(a)Pay the mother an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $45,441.
(b)Reduce the entitlement in the IOOF Fund interest that the father would have had in the IOOF Fund but for this Order, in an amount which corresponds with the payment to the mother.
(c) That this Order shall have effect from the operative time.
(d)That the operative time for this Order is four (4) business days after the date on which a sealed copy of the orders is served on the trustee of the IOOF Fund.
(e)That there be liberty to apply to each party and the trustee in relation to the implementation of the Orders effecting the superannuation interest.
(f)That the above Orders bind the trustee of the IOOF Fund to do all such things and sign all documents as may be necessary so that the trustee, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001(Cth), can calculate the payment of, and make payment to the mother in accordance with Order 28 (a).
That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a split-able payment becomes payable in respect to the father’s interest in Uni Super the trustee of the Fund shall do all acts and things so as to:
(a)Pay the mother an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $6,000.
(b)Reduce the entitlement in the superannuation interest that the father would have had in the Uni Super fund but for this Order, in an amount that corresponds with the payment to the mother.
(c) That this Order shall have effect from the operative time.
(d)That the operative time for this order is four (4) days after the date on which a sealed copy of these Orders is served on the trustee of the fund.
(e)That there is liberty to apply to each party and the trustee in relation to the implementation of the Orders affecting the superannuation interest.
(f)That the above orders bind the trustees of Uni Super to do all such things and sign all documents as may be necessary so that the trustee, in accordance with the obligations set out under the Family Law Act1975 (Cth) and the Family Law (Superannuation) Regulations2001 (Cth), can calculate the payment of, and make payment to the mother in accordance with Order 29 (a).
That other than as set out in this agreement, the parties have the sole right, title and interest in any other property which is in their name, possession or control at the date of these Orders.
That the parties do all acts and things necessary and give all consents and execute all documents in writing to give effect to these Orders in the time periods prescribed.
That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dionett & Reynes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1686 of 2012

Ms Dionett

Applicant

And

Mr Reynes

Respondent

REASONS FOR JUDGMENT

Ms Dionett (“the mother”) seeks an order that she be permitted to return to Country Q with her daughter, B, who is currently 5½ years old. The child’s father, Mr Reynes (“the father”), opposes the proposed relocation.
In addition to the parenting issues, the parties also brought before the court an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”). The mother also brought an application seeking orders for the payment of spousal maintenance.

Parenting

The parenting orders sought by the mother were contained in an Application in a Case signed on 3 June 2014. The orders sought are:
1.That the child live with the mother.
2.That the mother be permitted to remove the child, [C] from Australia and relocate to the United Kingdom.
3.That the child be removed from the Airport watch list at all international points of arrival and departure in the Commonwealth of Australia.
4.That the father contact the child via Skype every week at a time to be agreed.
5.That the father be permitted to send letters, cards or gifts to the child as he wishes.
6.That the father spend time with the child as the parties shall agree.
As the hearing developed it became clear that the mother also sought an order that she have sole parental responsibility for the child.
The mother proposed, should there be a relocation, that the father be able to spend time with the child, if he chose, for all of the school holidays – that is, up to 12 weeks per year.
The father proposed the following parenting orders of significance, together with a number of other ancillary orders:
1.The parties have equal shared parental responsibility for the child.
2.[C] live with the mother.
3.[C] spend time with the father:
during school term in one week from Thursday after school until before school Friday and in the alternate week from after school Friday until before school Monday.
for five consecutive days for each of the school holidays in 2014 and thereafter half of the short school holidays.
for the next long school holidays two periods of five consecutive days and one period of seven consecutive days, and thereafter half the long school holidays.
4.Each alternate year the mother be permitted to take the child to the United Kingdom for four weeks subject to certain conditions including the provision of a bond.
5.That the father be permitted to remove the child from Australia for the purpose of visiting his family in January 2015.
The mother agreed, in the event she not be permitted to relocate the child to Country Q, that the parenting orders proposed by the father were appropriate to be made.
The father was born in the United Kingdom in 1963. As his mother is a citizen of New Zealand, he is entitled to a passport from that country. Accordingly he is entitled to live in Australia for as long as he chooses.
The mother was born in the United Kingdom in 1970 and is a British citizen. As a spouse of a person entitled to live in Australia without restriction she too may stay here permanently but must renew her visa every five years. This status does not entitle the mother to receive Centrelink benefits.
The parties began a relationship in the United Kingdom in 1989 and commenced living together in 1990.
At some stage in 2000, they purchased a property at F Street, G Town (“the G Town property”) in the United Kingdom for £45,000 using a small deposit from joint savings and borrowing the balance.
In 2002, the parties left the United Kingdom for an extended period of travel, renting out the G Town property.
In 2004, the parties moved to Sydney and commenced residing in a unit at Suburb I. Both parties obtained employment in their respective fields.
In early 2005, the parties separated for a period of about three months but reconciled.
On 3 December 2008, the child was born. From that time the mother adopted the role of fulltime mother and the father that of fulltime financial support.
The parties returned to the United Kingdom in 2009 and 2010. On the second trip the father returned to Australia one month before the mother. Whilst in the United Kingdom the mother obtained a British passport for the child.
Upon the mother and the child returning to Australia the parties commenced attending regular marriage counselling.
In January 2011, the parties separated, although the counselling continued until October 2011. Until October 2011, the child was spending time with the father at least twice per week.

In May 2011, the mother became unwell. She said that she suffered from viral laryngitis. She did not recover and chronic fatigue syndrome was diagnosed.
After October 2011, the child spent less time with her father.
In January 2012, the father’s mother visited from the United Kingdom. The paternal grandmother saw the child on one visit only. The mother did not permit the father to be present for that visit.
In March 2012, the mother commenced proceedings in the Federal Circuit Court.
On 2 May 2012, at an interim hearing, Federal Magistrate Walker (as her Honour then was) ordered day only visits between the father and the child.
On 6 May 2012, the father saw the child for the first time in five months.
In June 2012, the father met Ms D. A relationship developed.
On 24 December 2012, the father assaulted the mother. The incident is important, of some controversy and will be discussed in detail shortly.
On 8 February 2013, by consent, Orders were made for the child to spend increased time with her father including overnight time.
On 18 December 2013, Interim Orders were made for Christmas contact and increasing the time the child spent with her father to two overnights a week and one afternoon a week.

The mother’s present circumstances

The mother continues to reside in the unit at Suburb I with the child.
The mother does not work and, she says, is prevented from working due to her chronic fatigue syndrome.
As a consequence, the mother is entirely supported by payments made by the father for her and the child’s support and from funds she can draw from the joint account holding the proceeds of the rent from the G Town property.
Although the mother has friends, many of whom are mothers of the child’s friends, she feels isolated and cut off from her family in Country Q. She describes herself as being held hostage in Australia by the father. She feels acutely homesick. As a result of her poor financial situation she has not been able to return to the United Kingdom for significant family events, including her nephew’s 21^st birthday, her mother’s 70^th birthday and her sister’s wedding in 2014.

The mother’s likely circumstances upon a return to Country Q

The mother proposes to live in J Town, initially with her father, until she finds her own accommodation.
I know nothing about the maternal grandfather’s premises save that it consists of two floor accommodation with a large garden and is owned by a sister of the mother. Apparently there is another relative living there at the moment but who may be about to leave.
The maternal grandfather is 73 years old. He has had heart bypass surgery.
In May 2013, the mother told the Family Consultant that her father “is extremely unwell with long term heart problems”.
The mother said he was unable to come to Australia due to his health and financial limitations.
The mother was not able to see her father from the age of 14 because her stepmother would not let her do so. She told the Family Consultant in May 2013 that since the child was born she and her father have been getting to know each other and that he is desperate to have her and the child live with him in Country Q.
On the last trip to Country Q the child and the mother stayed with the maternal grandfather for a month.
In June 2014, the mother told the Family Consultant that her parents “are pensioners and have various health and psychological difficulties”.
In her oral evidence, the mother said that her father had had some intestinal difficulties but had improved after an operation and was now in relatively good health. She did not adduce any evidence from her father.
J Town is approximately 30 minutes drive away from City K. The mother regarded City K as a possible source of employment for her should her health improve.
The maternal grandmother lives in L Town, some 50 minutes drive from J Town. The maternal grandmother is described as being an alcoholic who does not drive beyond a 10 mile radius from her home. She is 70 years of age.
In her oral evidence, the mother referred to the maternal grandmother receiving treatment for alcoholism from an alcohol counsellor and claimed that the maternal grandmother is improving.
The mother described a number of relatives with whom she would be able to have regular contact. Of these, a stepbrother and niece live in J Town. The other family members live between 50 minutes and an hour’s drive away.
In oral evidence, the mother referred particularly to her sister, Ms N who lives in Chepstow, some 55 minutes drive away. Unfortunately, Ms N’s husband has been diagnosed with an aggressive brain tumour and Ms N has given up her job to care for him full time. They are presently residing in M Town, some two hours drive away from J Town.
The mother referred to Ms O, who is the child’s cousin with whom it is said, the child converses on Skype. It emerged that this has occurred twice this year. Ms O is 26 years old and lives in City P, an hour’s drive away.
The mother said she has friends within 20 to 60 minutes of J Town and also a number of friends further afield.
Whilst, of course, if the mother was living in J Town she would be very much closer to her friends and family than she now is, many of them would not be immediately to hand.
The maternal grandmother, maternal grandfather, and maternal aunt, with whom the mother seems closest, each have their own particular difficulties and problems.
The mother has not lived in Country Q for 25 years. Since she was 18 she has lived in other parts of the United Kingdom, then travelling and then lived in Australia. She has regularly returned to the United Kingdom for visits.
The mother says that on return to Country Q she will be entitled to Government benefits, unlike the present position in Australia. She will therefore have a means of support other than the father. She did not adduce any evidence to suggest what government support might be available to her and how much she might receive each week. Some indication of the level of likely support could have been given even though the precise amount of assistance the mother might receive could be dependent upon the nature of the property orders to be made in these proceedings.
The mother said that if she were permitted to relocate to the United Kingdom she would not expect the father to pay spousal maintenance.
The benefit the mother saw from a return to Country Q was that she would be free from the controlling ways of the father and thus be a happier person. As her chronic fatigue syndrome is linked to depression, she says, she will have a better chance of recovering from that syndrome in the United Kingdom. Obviously, it would be in the child’s interests if her mother were healthier.
The mother views any return to Country Q with great optimism. This is not surprising given that she regards her present circumstances as very poor indeed.
The above recitation of the circumstances awaiting the mother in Country Q does not present such a glowing picture as she envisages. It may well be that the thought of return is more attractive than the circumstances that actually await upon her return. This is particularly so having regard to the health of her parents and the nature of the relationship with her father. Nevertheless, the mother is entitled to her view that life would be much better for her in Country Q.
It is, of course, the child’s interests that must be taken into account. There would be a clear benefit to her if the mother’s health, both mental and physical, were to improve. I am, however, not satisfied that the prospects of that improvement are as high as the mother hopes and, accordingly I am not satisfied that the benefit to the child of any improvement in her mother’s health by reason of a return to Country Q is likely to be as high as the mother hopes.

Family violence

The mother makes a number of allegations of domestic violence. It is important to deal with those in chronological order.
On 17 October 2012, the mother attended upon a Family Consultant for the preparation of a Child Responsive Program Memorandum. In that memorandum dated 31 October 2012, the Family Consultant recorded:
There is no AVO. However the mother alleges a history of family violence and control and said that, recently, she has felt threatened by the father and his girlfriend...
The Family Consultant also recorded the mother as saying:
[Ms Dionett] said that the father became increasingly angry and erratic over little things on four or five occasions in late 2011 and 2012 and that this had occurred on an occasional basis during the relationship. She said that the child was present during these incidents. [Ms Dionett] believes the father was not coping emotionally at that time in 2011…
In the Family Report dated 22 May 2013, after referring to the incident of 24 December 2012, the Family Consultant recorded, at [4]:
[Ms Dionett] alleged that [Mr Reynes] had been controlling during their relationship and that there had been physical violence on a few occasions during the relationship and twice after separation. [Mr Reynes] alleges that [Ms Dionett] would often become very angry at him. He said that, early in their relationship, [Ms Dionett] had thrown a cup at him which hit the wall behind him and that she had punched him in the side of the head when in their car resulting in him sustaining a whiplash injury.
In the same report the Family Consultant said, at [17]:
[Ms Dionett] said that [Mr Reynes] first assaulted her when they had been together for one year after he had been drinking alcohol. She said that, during the relationship she and [Mr Reynes] both shouted at each other and that this became worse after separation…
The Family Consultant then referred to the Child Responsive Program Memorandum and continued:
…She later said that the family violence and their arguments after separation had been about her wishes to return to the UK and about [Mr Reynes] wanting to spend time with the child. She said that the family violence consisted more of intimidation than physical violence.
In the Family Report of 6 June 2014, the Family Consultant recorded the following:
…
14.… [Ms Dionett] is concerned that [Mr Reynes] is likely to be angry and “abusive” towards the child because of his alleged “20 year history of abuse to me”.
…
17.… She said that her sessions every three weeks at The Deli are helping her with what she said is a history of family violence. She added that she still does not feel comfortable being in the same area as [Mr Reynes] and feels anxious when the child is not with her but with [Mr Reynes]. [Ms Dionett] believes that the child would have safety concerns of her own because of what she has seen of the family violence…
18.…[Ms Dionett] identified [Mr Reynes] as being “obstructive and controlling” about her being there on his days…
…
On 2 June 2014, the mother swore an affidavit which set out, in detail, a number of allegations of violence.
The mother alleged that after only going out for three months the father sexually forced himself on her, she being a virgin until that time. She alleged that throughout the relationship the father exerted duress in order to engage in sexual intercourse with her. She says that in 1991 the father choked her by grabbing her by the throat and pushing her backwards. This and incidents of a similar kind then occurred on a number of occasions throughout the relationship.
These complaints are more extensive than those made to the Family Consultant.
On 24 December 2012, the father returned the child to the mother after she spent time with him. The mother says that he hit her in the face at the changeover.
Although the father denies anything untoward occurred he was charged and convicted of assault.
The charge came on for hearing before the Local Court at Suburb R on 4 April 2013. The Local Court Magistrate found that the father struck the mother once above the eye. In the course of giving judgment, her Honour said:
It should be noted of course that there is no suggestion at all that [the child] was in any danger on this occasion, save for the danger that any child is in when they see their parents physically aggressive to each other.
…
I have to say that in relation to these types of matters, to suggest that one has to have a positive motive or that one has to find motive for an assault on the spur of the moment, in the heat of the argument is one where lack of motive or having a lack of motive has little weight. It is quite clear that on this particular day both parties were very frustrated with each other, both parties were very antagonistic towards each other. I have no doubt that [Ms Dionett] was indeed angry and upset with [Mr Reynes]. I have no doubt that she in fact did taunt him with respect to the visa. Equally I have no doubt that on the spur of the moment [Mr Reynes] did indeed strike her once on this occasion…
In her affidavit of 2 June 2014, the mother described two particular incidents when she said that the father behaved badly to her and to the child.
In describing an incident on September 2011 the mother said, at [56]:
One evening in September 2011 [the child] had just got into the shower when [Mr Reynes] arrived. [Mr Reynes] said words to the effect “she has to get out of the shower because she has to spend time with me”. I told him she had only just got in. [Mr Reynes] walking into the bathroom and tried to pull her out of the shower but she started crying and resisted. [Mr Reynes] started shouting at her words to the effect “get out of the shower now”. [Mr Reynes] turned off the water and left her crying hysterically in the shower. [Mr Reynes] closed the bathroom door and turned out the light. It was winter and it was dark and cold and I tried to get into the bathroom but [Mr Reynes] pushed me against the wall and stood in front of the door and shouted at me words to the effect “she has to learn that she has to do what I tell her to do”. I told him “you can’t come around here if you are going to behave like this”. [Mr Reynes] said ‘you should back me up, you always try and go against my orders’ and I told him “I won’t put up with you hurting her, you can’t come round any more if all you are going to do is abuse us’ I asked him to leave. When I went into the bathroom [the child] was sitting on the shower floor and she had been so distraught she has been scratching at herself and made herself bleed.
In an affidavit filed with the court on 29 June 2012, at [25] and [26], the mother described the incident thus:
On 30/10/11 [Mr Reynes] let himself into the apartment at about 5.45pm when [the child] was in the shower. He insisted that she get out of the shower even though I told him that she had only just got in. He told her to get out of the shower but she refused and this annoyed him so he switched off the water and left her screaming on the floor of the shower. Initially he refused to allow me go into the bathroom but I pushed past him to help her. By that stage the child was so distraught that she had been scratching at herself and making her legs bleed. [Mr Reynes] started shouting at me saying “You should back me up. You always try and go against my orders”.
I said to him “I won’t put up with you hurting her. You can’t come around anymore if all you are going to do is abuse us.” He then left the apartment.
The difference between the two versions is that in the earlier version there is no allegation that the father pushed the mother against the wall and shouted “She has to learn that she has to do what I tell her to do”.
In that same affidavit the mother described an incident in October 2011 when she says that the father started to pull the child off the toilet because she had been there too long. She said of that incident that “[Mr Reynes] pushed me out of the bathroom” and that when the mother tried to go to the assistance of the child “[Mr Reynes] pushed me over and shouted at me ‘she needs to learn what I tell her to do’”.
In an affidavit filed on 23 March 2012, in describing the same incident, the mother did not refer to the father pushing her or shouting at her.
In that same affidavit she said, at [10]:
Throughout our relationship [Mr Reynes] was physically and emotionally abusive to me. He punched me and tried to choke me on several occasions. During 2011 this continued and he also became financially abusive.
It is a fair summary of the father’s evidence that, even leaving aside the incident on 24 December 2012, the relationship of the parties was marked by volatility and that there was some family violence between them which consisted largely of pushing and shoving.
Both parties gave entirely different versions of an event said to have occurred in 2009 when the father alleges that he was head butted, during his sleep, by the mother and then lashed out in response grabbing the mother. The mother says he did so as a result of being drunk. Although this incident attracted the attention of the parties during the hearing, given its rather bizarre nature and the differing versions of it, it is impossible to make anything of it.
In answer to questions from the mother, the Family Consultant described the nature of the family violence as being primarily situational conflict based on separation induced violence and which did not necessarily involve one person controlling another over a long period (which was the mother’s case). This remained the Family Consultant’s view. It is consistent with what the mother told the Family Consultant. It is also consistent with finding of the Local Court Magistrate referred to earlier.
The following things may be drawn from the above.
1.     The relationship was marked by periods of volatility on the part of both parties and occasional family violence committed by the father.
2.     The allegations of family violence made by the mother have escalated in both nature and frequency when compared to her initial complaints of physical violence. The mother’s most recent allegations include a number of occasions of choking and sexual assault.
3.     The father was convicted of a serious assault and, notwithstanding his denials, the court must take into account the findings of the Local Court Magistrate.
The mother asserts that, since she has been receiving counselling for domestic violence at The Deli, she has re-evaluated events that occurred during the relationship and now sees that some constituted family violence. She also realised that the manner in which she had to seek money for her support from the father after their separation and, his responses, could also constitute family violence by him in that he unreasonably withheld financial support on which she was dependant.
The father, for his part, accepted that the mother genuinely felt she had been the victim of the family violence that she described but that it was a view she had come to more recently. He submitted that, by colouring events (accepting that any such colouring was genuine and not mendacious), the mother presented the family violence as being greater than it in fact was. This is a submission that has much force.
The allegations of sexual abuse and the increased number of occasions of choking are allegations that one would expect to have been made earlier. This is so regardless of whether they were then seen as family violence.
It is therefore instructive to turn now to the most recent allegation of the mother.
In her Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 3 June 2014 the mother alleged that from October 2011 to May 2014 the child had a recurrent vaginal irritation following time with the father. The mother, in her affidavit sworn 2 June 2014, described the incidents thus:
66.C has a recurrent vaginal irritation which occurs only during visits with [Mr Reynes]. the child’s vagina appears red and inflamed when she returns from some of her visits. It clears up within 1 to 2 days of coming home. I have taken the child to our local GP on the following occasions: 6^th October 2011, swab taken by GP but results negative for bacteria. June 25 2012, swab taken by GP but results negative for bacteria. October 10 2013, the child diagnosed with a urinary tract infection and treated with antibiotics. December 30 2013, swab taken by GP.
67.Friday 3^rd January 2014: Results back from test taken on 30^th December, negative for bacteria. GP asks me words to the effect of “is there a risk of sexual abuse?”. She said she would consult with my other GP regarding notifying DOCS. She told me to return on Tuesday 7^th January after she has spoken to the other GP.
68.After the GP raised the question of sexual interference I was very distressed and rang 1800 RESPECT telephone counselling line. They notified DOCS. I returned to the GP on Tuesday 7^th January and the GP notified DOCS.
69.[C] returned from her overnight visits with [Mr Reynes] with the vaginal irritation on the following dates since: 12 January 2014, Sunday 23 February 2014, Sunday 6 April 2014: When I picked the child up she was complaining that her “front bum hurt”, area very red. At bedtime she got very upset saying it really hurt and she started crying and writhing around. She seemed in a lot of distress. I applied some cream to it and put a hot water bottle on it and comforted her. She calmed down after a while and fell asleep. Vaginal irritation present, red around the vagina.
70.Monday 28 April 2014: I attended an appointment at Unifam regarding my legal issues. They notified DOCS.
71.Sunday 4 May 2014: I took the child to the [S Hospital]. They diagnosed with vaginal irritation but they could not confirm the source of the irritation.

The mother adduced no medical evidence in support of this allegation.
The mother and the child attended the Suburb I Family Medical Centre. The doctor’s notes for 1 May 2014 state:
Sought legal advice from Legal Aid yesterday
Was advised to raise your concerns with court re [the childs] safety
Requested all [the child’s] medical noted
Mum concerned re possible interference by dad
[C] atm has nil s/s
Last time approx 3 weeks ago returned from a weekend with Dad with some redness around vaginal area settles within a few days using hydrozole (as original)
Notwithstanding the notes, the mother asserts that it was the doctor and not her who raised the issue of possible interference by the father.
The mother says that the child has not suffered such an irritation whilst in her care.
The mother said that the vaginal irritation was due to either neglect by the father or sexual assault by the father.
The mother says the matter has been raised with Family and Community Services (FACS) who have taken no action due to no disclosure by the child. She said she has not raised the issue with the child because she is concerned for her welfare and that she wishes to find out what has happened without the child being stigmatised. The mother said that she was advised to file a Notice of Abuse by Unifam.
In submissions, the mother said that she did not know how to deal with the issue of the vaginal irritation.
As has been seen, the mother is proposing orders that would have the father spending up to six weeks at a time with the child in the United Kingdom and a total of up to 12 weeks a year. If she is not allowed to relocate to the United Kingdom she consents to orders being made that would enable the child to spend substantial and significant time with the father, including half the school holidays from 2015.
These proposed orders are inconsistent with there being a genuine concern that the child is likely to suffer neglect or be sexually abused when with the father.
When this apparent inconsistency was raised with the mother her response was that she always complies with court orders. The alleged neglect or abuse was, however, raised by the mother in proceedings to determine what the parenting orders in the future should be. There were not proceedings to enforce existing orders. In that context the mother was free to seek such orders as she thought appropriate. She could have, consistently with her view as to the neglect or abuse of the child, for example, suggested supervised time. Even taking into account that the mother was acting for herself, I consider that the parenting orders proposed by the mother, insofar as they propose the child spending up to 12 weeks a year with her father, are inconsistent with her recent claims of neglect or abuse. It is no answer, as the mother answered, that she complies with court orders. Complying with existing orders is one thing, proposing orders that you see as being in your child’s best interests is an entirely different thing.
The Family Consultant described the allegation made in the Notice of Abuse about the vaginal irritation as a very serious development. The allegation was made only recently notwithstanding that the irritation is said to have existed from October 2011 (when the father first starting spending time with the child again) and that she was, according to the mother, taken to the doctor for this purpose in January 2014.
The father said that the child had complained to him of vaginal irritation and itchiness. He said that he had recorded this complaint in the communication book used by the parties. That suggestion was not opposed and the communication book, which is in the possession of the mother, was not tendered to suggest that the father’s evidence was wrong.
In June 2014 the child said to the Family Consultant: “Daddy never hurts me”.
The mother did not ask the father or Ms D, who now lives with the father, any questions at all about the vaginal irritation.
On more than one occasion the mother was reminded that she should direct cross-examination to important issues and particularly important issues where her evidence and the father’s evidence differed. The mother was capable, for example, of directing a series of questions to more than one witness on the issue of who was responsible for the father’s best friend not attending a wedding in 2006. There was not one question directed to the alleged neglect or abuse of the child. Making all the allowances one can for a self-represented litigant this remains a factor that must be taken into account. The father’s denials remain untested.
In all these circumstances, a finding cannot be made that there is an unacceptable risk of harm to the child if she is left alone with the father. Indeed, the allegations are, more likely than not, an instance of the mother’s feelings about the father and her desire to return to the United Kingdom colouring her views of the facts. This finding casts a shadow over the escalating nature of the complaints against the father.

Principles to be adopted

I must apply the relevant principles of the Act having regard to the objects of the part dealing with children as set out in s 60B. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. I am obliged to consider the matters set out in s 60CC of the Act.

The benefit to the child of having a meaningful relationship with both of the child’s parents

A “meaningful relationship” for these purposes is one which is important, significant and valuable to the child.
It is to be recognised that the Act requires the benefit of a meaningful relationship with both parents to be considered in determining the best interests of the child. The Act does not require the Court to ensure that the child maintains a meaningful relationship with both parents.
C and her mother have a close and loving relationship. That relationship will remain unaffected by any of the proposed orders.
The mother submitted “that a meaningful relationship between the child and the father is in place to some degree”. However, if an order was not made permitting the relocation to the United Kingdom the mother said “there is an unacceptable risk to the child of continued exposure to psychological abuse and risk of ongoing physical and psychological abuse of the mother at the hands of the father”.
The mother’s evidence is that on a number of occasions the child has said she is scared sleeping on her own at her father’s house, that she wants to sleep at home and that she was sad when she was with daddy. The mother claims that the child asks why she has to spend so long from home.
As an example, the mother said that on 13 February 2014 the child said “I don’t understand why I have to spend so much time with daddy. Can you send him a message and tell him I don’t want to see him?”. When the mother told her that she could not do that the child cried hysterically.
On 25 February 2014, the mother said that the child started crying at bedtime saying “I miss you when you’re not with me. I want to spend more than 2 days with you. I want to spend a trillion billion million and 3 hundred days with you and none with daddy, especially no night time. If I have to go to daddy I will go and say hello then goodbye then come home again”.
This is an appropriate juncture to mention that the mother has, since the birth of the child, adopted a practice of co-sleeping. This effectively means that the child sleeps in the same bed as the parents. It seems that the adoption of this practice was one of the matters that led to the breakdown of the marriage as it caused the father to remove himself from the mother’s bed.
At the time of the hearing, the child still sleeps with the mother. Indeed, because, according to the mother, the child is so upset about having to stay with her father she now has such difficulty with sleeping that the mother and the child go to bed at the child’s normal bedtime and once she is asleep the mother gets up again.
When she is at her father’s the child sleeps in a bed in a room on her own. Both the father and his partner, Ms D, described the child as initially having some difficulties adapting to her new sleeping arrangements, calling out and the like, but that she now seems quite settled sleeping there.
Interestingly and paradoxically, given the allegations discussed above, the mother was critical of the father for changing the sleeping routine of the child apparently asserting that the father should co-sleep with her when she spends time with him, so as not to disrupt her routine. Given the allegations the mother makes about the father this is a remarkable suggestion.
The mother says that in the ordinary course of a co-sleeping arrangement, a child will migrate to their own bed somewhere between the age of six and seven. This, of course, means that the child must have their own bed to which to migrate.
Whilst the father has, at the mother’s request, purchased a bed for the child the mother has not erected it because she asserts the father has not provided a side rail to prevent the child falling out and has provided only one set of sheets. The father asserts the bed does have a side rail. I cannot determine who is correct.
In any event, the child manages to sleep in her mother’s bed without a side rail.
The father asserts that he has a good relationship with the child. Ms D and the father’s sister say that the child and her father enjoy each other’s company.
In her report, in May 2013, the Family Consultant said, at [51]:
[C] appears to be a confident, imaginative and articulate child who is developing well according to childhood norms. Both her parents are able to engage with [the child] warmly and are responsive to her in meeting her needs. Both parents appeared sensitive and thoughtful about providing guidance and some structure for [the child], albeit with different parenting styles. [The child] appears to have a close relationship with both of her parents.
In her report of June 2014, the Family Consultant described the child as being relaxed and comfortable when with her father and Ms D. Once again she was described as having warm relationships with each parent and able to maintain that relationship and transition well between them.
The weight of the evidence is that the child is comfortable being with her father, comfortable staying with him and Ms D and gets on well with him. It follows that if the child says the things about her father which the mother reports her as saying, which she may do, I do not accept that they are an accurate description of the relationship between the child and her father. They may well be things that the child says to please her mother. There was a period when the child, understandably, had difficulty in adjusting to a new sleeping arrangement because of her close sleeping arrangement with her mother. She is likely to have been upset and reported that to her mother. I accept that this is no longer a significant issue for the child.
There is no difficulty in concluding that the child presently has a meaningful relationship with her father which is of value to her. If the orders are made as proposed by the father that relationship will continue.
It is the mother’s case that if she is allowed to relocate to the United Kingdom with the child that relationship will be maintained by the means of weekly Skype sessions and by the father spending up to 12 weeks a year with the child.
As to the first, the Family Consultant opined that Skype is a poor way of attempting to maintain a meaningful relationship between a parent and their child. I accept that opinion.
The Family Consultant said that due to the mother’s anger towards the father and what she described as the “apparently reluctant facilitation” of the child spending time with the father, it is likely that her relationship with her father will not be able to be sustained should she relocate to the United Kingdom. It would be difficult, she said, for the child to maintain the relationship with the father by spending several weeks at a time with him after large gaps. She said that it would not be desirable for there to be such large blocks of no contact followed by significant periods of time solely in the father’s care.
The second issue is whether or not such time is likely to occur.
The Family Consultant said:
…[Ms Dionett] struggles currently with anxiety with the child spending two nights away from her and it is likely that she would not be able to manage the child spending four to six weeks away from her. (Family Report dated 6 June 2014 at [71])
That paragraph was written before the Consultant was aware of the allegations of unacceptable risk now made by the mother. Given that anxiety, the mother’s views about the father and the mother’s new allegations, I cannot accept that it is likely that the mother would make the child available for the proposed 12 weeks of time with the father a year should she be allowed to relocate. Of course, if the child is not made available it will be impossible for a meaningful relationship to be sustained.
A further complicating factor is the cost and expense of travel. Under the orders proposed by the mother the father would need to travel to the United Kingdom three times a year for the school holidays. For him to spend a full two weeks with the child he would need to allow between 16 to 18 days for the journey. There is no evidence to suggest that he would be able to obtain leave from his work for that period of time.
The mother proposes that she will return to Australia each year for the long school holidays so that the father could spend time with the child. Given that both the father and his new partner work fulltime, it is difficult to know how that would involve the child spending significant time with the father. If he had taken up the opportunity to visit her in the United Kingdom for the short holidays, he would be working for most of the day as would his partner. Thus, the child would, presumably, be spending most of that time with her mother.
For these reasons, I am not satisfied that it is at all probable that should the mother be allowed to relocate to the United Kingdom with the child that the father would spend anything like the proposed time with her. It is more likely than not that there would be no time. This is because it is unlikely that the mother will make the child available to spend time with the father and, because the expense of travel is such, that it is unlikely that the parties would be able to afford it.
The likely effect of a relocation to the United Kingdom, at this time, is that the meaningful relationship presently existing between the child and her father will cease.
The Family Consultant opined that if a relocation took place, it should occur only when the child has obtained the age of 10 or 12, once she had matured and had a capacity independently to remember her relationship with her father. That evidence, which is accepted, supports the view that a prior return is likely to cause the relationship between the father and the child to cease.
As the child presently has a meaningful relationship with her father, which is of benefit to her, the possible loss of that relationship must be weighed against the benefits to the child of a relocation. I find that the possible benefits being, predominantly, the improvement in the mother’s well-being, and hence the child’s, and the improved relationship between the child and her maternal relatives, do not outweigh the benefits to the child of her relationship with her father. This factor strongly supports refusing the relocation order.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

It is clear that the child has been exposed to family violence. She was present during the assault on 24 December 2012. She has been present, more than likely, at the occasions when the incidents of family violence described earlier took place. That violence is not as extreme or as frequent as asserted by the mother.
That violence has, however, been directed towards the mother and not the child. There is no suggestion, other than for the rather brisk incidents relating to the shower and toilet incidents in September and October 2011, that there has been any violence directed towards the child.
I accept the Family Consultant’s evidence that the violence is situational arising out of the conflict between the parties. That conflict can be minimised by making orders that will reduce or eliminate the personal contact between the parents. Thus, any exposure to any future further family violence should be able to be minimised by limiting the contact between the parents.
I have already found that the child is not going to be at unacceptable risk being cared for by her father.
This consideration does not compel a return to the United Kingdom. Indeed both sets of orders would seem to be aimed at preventing, as best they can, any further instances of family violence.

The views expressed by the child

I have already recorded the mother’s recitation of [the child’s] views. Those views, according to that evidence, are that she wishes to spend some limited time with her father but not overnight time.
In the 22 May 2013 report, the Family Consultant said, at [54]:
[C] views her father positively and wants to spend more time with him including overnight time and a graduated plan increasing her time with him is indicated.
In her report of June 2014, the Family Consultant said:
46.[C] began the assessment saying “I want more time with Mummy than with Daddy”. the child later said that “Mummy talked with me about coming here (the Court) today and said something about wanting to spend more time with her”. She thought that this conversation had occurred the previous night.
…
50.[C] said that her three wishes are to spend more time with her mother, to spend a little time with her father and to go back to the UK to see all her cousins.
51.While [the child] appeared to state some reluctance about her father, this was in direct contrast to her responsiveness to him during observations…
The Family Consultant then went on to describe the child having a lovely time with the father smiling, laughing and chatting with him. In response to questioning by the mother in the Family Consultant’s opinion as just set out, the Family Consultant said words to the effect:
[C] appeared to have a strong impression of what you wanted and announced it right away and was clearly uncomfortable.
The Family Consultant said it was not surprising that the child would be aware of her mother’s feelings and anxiety and is likely to pick up on that.
C is relatively young. Her views, accordingly, should not be given much weight. However, the views, even as expressed to her mother, indicate that she wishes to spend some time with her father.

The nature of the relationship with each of the child’s parents and other persons

C’s main relationships are presently with her parents. She clearly has friends, including friends at her dance class.
It is difficult to say that she has a relationship with any of her relatives, maternal or paternal, who live in the United Kingdom. This is because of the distance and infrequent contact.
C appears to be developing a warm relationship with Ms D, Mr Reynes’ new partner, and Mr Reynes’ sister who lives in Sydney.
One of the major purposes identified by the mother to support the relocation is the desirability of the child establishing and maintaining relationships with her relatives in the United Kingdom. I have already found that that will not be as easy as the mother envisages due to the personal difficulties of those relatives and the distance involved. Also importantly, that relationship with those relatives will come at the expense of her relationship with the father.

Whilst it would be desirable for the child to have a relationship with her maternal grandparents, and indeed all her relatives in the United Kingdom, that is not, of itself, a determinative consideration.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decision making, spend time with the child, communicate with the child

Whilst the parents have had difficulties in communicating they have managed to settle on a school for the child which seems to be working very well. They spend time with the child and communicate with her when they can.

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child

Since separation the father has supported the mother and the child. He pays the rent of the Suburb I flat which the mother and the child reside, outgoings of the flat and provides money for food, support and clothing.
He does so in the absence of any orders or child support assessments requiring him to do so.
Although the mother describes some instances where money was withheld and it has been difficult to extract from the father, by and large, since separation he has substantially supported the child and the mother.

The likely effect of any changes in the child’s circumstances

The proposed relocation is, as I have found, likely to cause the presently existing warm and meaningful relationship between the child and her father to cease. Whether or not that would be replaced by a warm and loving relationship with any of her relatives is difficult to predict. Such a relationship could not, however, replace the relationship with her father. The loss of her relationship with the father will be a significant loss, particularly as it is not likely to be facilitated should there be a relocation.
The evidence did not explore how the child might cope with a move to Country Q. It is likely that there would need to be a period of adjustment. The precise circumstances of any new life for her in Country Q are scanty. There is a school nearby the maternal grandfather’s house. I am not satisfied that the child’s happy and settled state would necessarily continue if she were to live in Country Q. The Family Consultant opined that if there was to be such a move it would be better for the child if that occurred at the end of primary school. I accept that opinion.
This consideration does not support a relocation order not being made.

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

I have already found that it is not likely, although there is no direct evidence on the subject, that the father would be able to take time off to enable him to spend 12 weeks a year as envisaged with the child, even if six weeks of that time did take place in Australia. The expense of such regular trips to the United Kingdom is likely to become prohibitive within a shorter rather than a longer period of time. This suggests that if there is a relocation the child will spend nowhere near the amount of time with her father as is proposed by the mother.

The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs

The father described the mother as a good mother although she may be seen to be at times as hyper-protective and anxious about the child spending time with the father. Despite the mother’s suggestion that the father does not play with the child when she is with him, the evidence of the Family Consultant suggests that the child and her father get on well together and play easily.
There is no reason to think that the child’s parents and Ms D lack any capacity to provide for her needs.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

This issue has largely been canvassed in what has already been said. This consideration does not assist in determining which set of orders ought to be made.

Any family violence involving the child or a member of the child’s family

I have already dealt with family violence involving the child.
I do not propose to go beyond the earlier consideration of this issue. I find, as I must, because of the decision of the Local Court Magistrate, and the concessions of the father, that the mother has been the victim of family violence at the hands of the father.
There have clearly been instances of family violence throughout the marriage, although they are likely to have involved both parties. As the mother said originally to the Family Consultant, this, more likely than not, involved intimidation on the part of the father rather than physical violence.
Accepting, as I have, the Family Consultant’s view that this violence arises out of the personal interaction between the parents and the conflict between them, family violence is likely to be reduced, and hopefully, alleviated if personal contact between them can be avoided.
Notwithstanding the mother’s fears of the father, she still voluntarily attends events where he is present.
On Wednesdays the father collects the child from school and takes her to dancing classes. After class he returns her to the mother. Notwithstanding that this is the time that the child spends with her father, the mother attends the dance class. She says this is because the child wishes her to do so, because her friends wish her to do so and because she wants to watch the child dance.
Two things flow from this.
First, albeit that the mother is surrounded by friends, she is prepared to be in close proximity with the father.
Secondly, as the Family Consultant opined, even if the child asked the mother to be at dancing, the mother’s attendance could be interpreted by the child as there being a need for the mother to be there when, in fact, there was no need.
Similarly, the mother attends the school assembly on days that the father picks the child up from school. She does so because she wishes to attend assembly. However, she does not leave after assembly but waits until the child has been collected by her father. Again, there are other people around but, despite claims of intimidation at changeover, the mother is still prepared to put herself in that position.
These matters indicate that the threat of family violence is not as great as the mother asserts.
As a result of the incident of December 2012, the mother obtained an Apprehended Domestic Violence Order. There are proceedings on foot shortly as to whether that Order should be extended or not.
The likelihood of future family violence will be reduced by a relocation to the United Kingdom because such a move will necessarily reduce the contact between the parents.
These same matters, however, support the finding already made, that, should there be a relocation, the mother is unlikely to facilitate contact between the child and her father.
In the event there is no relocation it will be appropriate to order that the mother not be present at the times the father collects the child from or returns her to school to alleviate the concern raised by the Family Consultant.

Parental responsibility

Section 61DA(1) provides:
When making a parenting order in relation to a child, 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.
That presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
I am not satisfied there is such abuse of the child but the matters discussed above compel a finding that the father has engaged in family violence.
Accordingly, the presumption provided by s 61DA(1) does not apply.
The mother seeks an order that she have sole parental responsibility because “the father has no insight into how his behaviour is actually violent conduct that has caused the mother and child injury, is threatening behaviour, has and continues to intimidate the mother and the child and places them at risk of ongoing abuse”.
That over-states the position.
The Family Consultant said in her June 2014 report:
67.…It would be to [the child’s] long term benefit if both her parents were able to make joint long term decisions about her needs, health and education. The parents are both happy with [Ms Dionett’s] choice of school for [the child] and it appears to have been a positive decision for her.
The conflict between the parents is palpable. It will be minimised if they do not have physical contact. Each of the proposed sets of orders seeks to achieve this.
The orders proposed by both sides would see the child spending very significant periods of time with both parents. It is important that she feel that both parents have an important role in her life.
The orders that will be made will see the child spending significant and substantial time with each parent in Australia. I do not, then, need to consider whether joint parental responsibility would be appropriate if the child was to be living in Country Q. The parties do not need to have face to face meetings to deal with important issues in the child’s life. Although email communication has proved difficult at times in the past, it is available as a means of communication.
Further, as a result of these proceedings the financial issues between them will be resolved, at least to some extent. That may reduce the pressure.
Accordingly, I am satisfied that the appropriate order, in the child’s best interests, is that there be an order for equal shared parental responsibility.
Pursuant to s 65DAA(1) where the parents are to have equal shared responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether the child spending equal time with each of the parents is reasonably practicable. If so, the Court is to consider making such an order.
In the present case, neither party seeks an order for equal time. the child is very closely attached to her mother. While she enjoys spending time with the father, she remains primarily attached to her mother. Her mother has been her primary carer since she was born. An order for equal time is not supported by the evidence and would not be in the child’s best interests.
Further, even if it were, the father and his partner are not in the position to be able to care for the child on an equal time basis because of their work commitments.
If the Court does not make an order that the child spend equal time with each of the parents then pursuant to s 65DAA(2) the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child.
A child will spend significant and substantial time with a parent if the time the child spends with the parent includes weekends and holidays, weekdays and the time allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child or special significance to the parent.
The orders proposed by the father meet that definition and accordingly if they are made the child will be spending substantial and significant time with each of her parents. If the orders proposed by the mother are made the child will not be spending substantial and significant time with her father within the meaning of s 65DAA.
Thus, the decision needs to be made whether the orders proposed by the father should be made or the orders proposed by the mother should be made.
The s 60CC considerations, on balance, strongly support the refusal of the mother’s application and the making of the father’s orders. The advantages perceived by the mother in a relocation will come at the expense of the child’s relationship with her father.
C is a happy child and doing well under the present regime of living with the mother and spending time with her father. She seems well settled with friends and developing a relationship with the father’s new partner and his relatives in Sydney.
No doubt the child would also benefit from developing a relationship with her maternal relatives.
I consider that the experience of the child returning to the United Kingdom is likely to be much less rosy than envisaged by the mother.
It is to be recalled that I must act in the child’s best interests and not her mother’s or her father’s. It is her relocation to Country Q, and not the mother’s, that is the subject of consideration.
It is true that if the mother is happier and less anxious that will be of benefit to the child. I accept that the mother feels desperately unhappy here. I am not satisfied, however, that a return to the United Kingdom will, in fact, make the mother a happier and more settled person. No doubt she genuinely believes that to be so but I do not. Of course, as far as she is concerned, the mother may do as she determines.
Taking all matters into consideration, the disadvantages of the relocation of the child outweigh the advantages. Such a move is not in the child’s best interests. Accordingly, the mother’s application to relocate the child to the United Kingdom will be refused.
In those circumstances, there is no objection by her to the making of the orders proposed by the father. They are, in the circumstances, and subject to some minor changes, appropriate orders.

Property

Applicable principles

According to guidelines established through a series of leading decisions, the court is required to determine the following matters:
·The assets, liabilities and financial resources of the parties to the marriage.
·Having regard to the breakdown of the marriage, if any, is it just and equitable to consider whether the alteration of the parties’ interests in their property is just and equitable?
·All relevant contributions of each of the parties within the meaning of paragraphs (a) to (c) of s 79(4) must be identified and weighed against each other.
·The matters in paragraphs (d) to (g) of s 79(4), particularly paragraph (e) which takes up by reference the provisions of s 75(2), must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of contribution.
·An order under s 79 must not be made unless the court is satisfied that in all the circumstances, it is appropriate that it is just and equitable to make the order.
As identified earlier, the parties own a property at F Street, G Town in the United Kingdom. They were not able to agree on its value and neither party called any evidence as to its value.
There is a mortgage over the G Town property in the sum of approximately $36,000.
In 2009, the father received an inheritance from his godfather. The mother said it was £25,000. The father said it was approximately £20,000. Whichever it was, the father still has it. The current balance of the account holding that received the inheritance is AUD$37,000. The mother has made no contribution to that asset.
The father owns a Japanese motor vehicle which he purchased recently. It is valued by him at $16,000 but is burdened with a loan in the sum of $30,000. The father’s evidence, which I accept as being the only reasonable explanation, is that he had the opportunity to purchase this car at a significant undervalue, which he did. He did so because he could then borrow the full value of the car, which he did. He then used the difference between the purchase price of the car and what he had borrowed to pay for his legal fees for these proceedings.
Thus, the father has a motor vehicle he values at $16,000. It would seem to follow, however, that it is, in fact, valued, at least, for the amount he borrowed using it as security, namely $30,000. In that event, it is burdened with a loan of the same value.
He also owns another motor vehicle used by the mother. He proposes to transfer it to her.
The father has access to an amount in an Insurance Fund account in the United Kingdom in the sum of $11,580. This sum was held prior to separation.
The father has a visa card debt of $6,000. There is no evidence to suggest whether that sum consists of pre or post separation expenses.
The father asserted that he had outstanding unpaid legal costs in the sum of $88,000.
The father had the sum of about $4,000 in various bank accounts and each of the parties had their contents of the place where they reside. It was not suggested that this bank account contained pre-separation funds.
The father has superannuation in a number of accounts to a total value of $155,227 and the mother has superannuation entitlements in three accounts in the sum of $26,172.
I am satisfied that it is just and equitable to make the orders altering the interests of the parties to the marriage to the property held by them. They are no longer living in a marital relationship. The basis on which the ownership of their property and the use of it by reason of them being in a married relationship and living together has ended and it is appropriate that their property interests are altered so as to meet their new needs and circumstances. The parties join in seeking such an order.
It was submitted by the father that the appropriate approach to the property settlement was to adopt two pools, one for the superannuation and one consisting of the property in the United Kingdom. The mother seemed to support that approach, submitting that the appropriate order was that she receive the entirety of the property at G Town and that there be a 50/50 division of the superannuation. The father proposed that the proceeds of the G Town property be divided so that the mother received 60 per cent of the proceeds and the superannuation be divided equally.
There is merit in there being two pools. The only two significant sets of assets to be divided between the parties are the G Town property and the parties’ superannuation entitlements.
It was submitted by the father that the appropriate way to deal with the inheritance and the legal costs was to exclude both from the property division. This is because the mother made no contribution to the inheritance and, I infer, because a large part of the legal costs undoubtedly relate to the parenting proceedings. The legal costs are unpaid, in any event, and thus would not normally be added back.
The car and the debt on the car balance each other out.
That leaves then the few bank accounts (more likely than not containing funds earned post separation), the household contents and the AUD$11,580 in the Insurance Fund.
Given that the G Town property will have to be sold, as there is no agreed value or evidence of its value, the father’s proposal is a sensible course to take. Each party can otherwise retain the property in their possession. Each has household contents which they each will retain and they effectively balance each other out. An allowance for the bank accounts being retained by the father, other than for the bank account included in the inheritance, will be taken into account as any other matter under s 75(2)(o).
Accordingly, I propose to deal with the property of the parties to be divided in two pools. One consists of the property at G Town and the personalty and liabilities to be retained by the father and the mother and one the superannuation entitlements. The G Town property will be sold and the proceeds divided. The parties will retain the property which they have in their possession. The father will thus retain his inheritance and the bank accounts but be liable for all of his legal fees and the credit card debt. He will retain the car and be responsible for the debt over it. Thus, there is effectively no value in the assets being retained by the father, save for the inheritance and the bank accounts. The mother made no contribution to this fund and the father retains his liability for legal costs. These factors are recognised by the father retaining the inheritance and the liability for all his legal costs.

This course is supported by there being no basis upon which the Court could ascribe a value to the G Town property for the purpose of arriving at a total value of the net assets of the parties which could then be apportioned between them.
It is appropriate to deal with the superannuation separately because some $79,830 of the superannuation consists of the superannuation attributable to the father’s current employment. His share of superannuation is very much higher than the mother’s share.
The parties started with minimal assets. The property at G Town was acquired by the use of a mortgage primarily and has been predominantly paid off by rent.
The parties both worked until the child was born. Since that time, by arrangement, the mother occupied the realm of fulltime carer of the child and the father worked.
After separation, the same position ensued, the father provided the entire financial support for the family and the mother continued to be the primary carer of the child.
In those circumstances, having regard to the parties’ respective contributions up to the time of hearing, they should be regarded as equal.
I do not see that the effect of any order that I can make will have an effect upon the earning capacity of either party to the marriage.
The s 75(2) factors justify an adjustment in favour of the mother.
Although she is younger than the father the mother is not working and her health is poor. Notwithstanding that she called no medical evidence in support of her claim, it was not disputed that she suffers from chronic fatigue syndrome. The highest any evidence of capacity for work went was the mother’s general practitioner telling the Family Consultant that it would be in the interests of the mother, in overcoming the chronic fatigue syndrome, to attempt to do some work.
The mother prepared lengthy and detailed affidavits in these matters and managed, accepting the submission of counsel for the father, “doggedly” cross-examined the father and his witnesses. She engages in sailing on Sundays.
Nonetheless her health remains poor and whilst she may have some capacity for gainful employment it must presently be regarded as low. The father on the other hand, has a well paid job.
The mother will retain the primary care of the child although she will spend significant time with the father. The father will have the child for four days out of 14 in weekdays and for half the holidays from the commencement of next year.
The parties will have the obligations to support the child although the mother has no means by which to do so. She is not entitled to a pension under any law of the Commonwealth.
Given that the parties now are supporting two households from the one income, the standard of living of both of them has diminished. The father presently has a higher standard of living than the mother.
The father is cohabiting with Ms D who pays some $250 per week towards their combined expenses. All of these matters require a substantial adjustment in favour of the mother.
Such an adjustment cannot be arrived at by looking at the overall asset position because it is unknown. There will have to be separate adjustments in relation to the G Town property proceeds and the superannuation. Again, this seemed to be the common approach of the parties.
Taking these matters into account, in relation to the first pool, the appropriate adjustment is 12 per cent of the value of the G Town property.
It is difficult to work out what this means in monetary terms given there is no value for that property before the court. In the respective balance sheets the mother attributed the value of $344,000 to the G Town property and the father $512,000. Thus, 12 per cent of that property is, using these figures as a guide only, somewhere between $41,280 and $61,440. In the context of the value of the G Town property that is a substantial sum. The mother will receive nearly twice that of the father from the property. It is warranted by the factors which I have taken into account.
The father is to retain the bank account in the sum of $11,580. Using the above figures, that represents 3.4 per cent to 2.3 per cent, respectively, of the G Town property. A further adjustment, then, of 1.5 per cent in favour of the mother will take into account the father retaining the bank account and give her a sum equal to approximately two thirds of the funds in that account.
This also takes into account the inheritance received by the father but recognises that the mother made no contribution towards that asset.
The total adjustment in favour of the mother, in relation to the G Town property, is therefore 13.5 percent so that she receives 63.5 per cent of the proceeds and the father 36.5 per cent.
Both parties proposed that the superannuation pool be divided as to 50 per cent to each of the parties and that a splitting order be made. It is true that the mother’s proposal was in the context of her receiving the whole of the value of the G Town property. Nonetheless a 50 per cent distribution of the superannuation entitlements represents a considerable adjustment in her favour. It reflects the fact that the father paid a greater contribution to the superannuation fund than the mother but that the s 75(2) factors nonetheless require such an adjustment.
Accordingly, there will be orders for the G Town property to be sold and the net proceeds to be divided as to 63.5 per cent to the mother and 36.5 per cent to the father, that there be a splitting order in relation to the superannuation fund and that it be divided equally between the parties and that otherwise the parties receive and are responsible for the assets and liabilities in their possession.
I am satisfied that, taking into account all the above circumstances, that these orders are appropriate, that is to say just and equitable, and should be made.

Spousal maintenance

The mother sought an order for spousal maintenance in the sum of $1,359.88 per week indefinitely.
The evidence of the father is that he is presently paying $780 each week for the benefit of the mother and the child, consisting of rent, food, electricity, internet, telephone, swimming and payments for school.
Section 72 of the Act provides:
(1) 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 herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
The first step is to determine whether or not the mother is unable to support herself adequately. In doing so I bear in mind that she will receive a considerable sum from the sale of the G Town property. Whether that sum will be sufficient or not for her to be able to purchase accommodation in Sydney is unknown.
The mother identifies her personal expenditure as currently $1,198.80 per week. She says that she needs another $155 per week for things such as car insurance, car registration, yoga class, holidays and trips, social activities, supplements and vitamins, cosmetics and toiletries and babysitting and an extra sum of $155, thus leading to her claim for $1,359.80.
According to her financial statement, her weekly expenses under Part N include some $265.75 for the child which must be excluded as this is an application for spousal maintenance and not child support. This makes what she says are her weekly maintenance needs to be $1,094.05. These expenses are not unreasonable.
Her only source of income is what she describes as $86 a week being the net rent from G Town. Her net needs are therefore $1,008.05 per week.
Therefore, save for any interest she might earn on the proceeds of the G Town property or the reduction in rent she might obtain from using those funds to purchase a property, the mother is unable to support herself adequately.
The next issue is whether the father is able to make payments of spousal maintenance.
He earns approximately $3,008 per week from which he pays $829 income tax, $668 superannuation contributions and rent in the sum of $650. He says his personal expenditure is thus $3,363 per week. The mother suggested and was not contradicted that he is paying a contribution of 5 per cent of his salary greater than is required. The father accepts that he pays an additional 3 per cent contribution above that required to be made.
Notwithstanding that apparent shortfall, the father manages to pay the mother $780 per week. The payment towards household expenses of Ms D of $250 per week was not included in the father’s financial statement.
The father says in his affidavit sworn on 2 July 2014 that after superannuation and tax he receives $1,924 per week and his weekly expenses are $890. However, that passage refers to only rent, food and bills and is at odds with his financial statement. These discrepancies were not explored in any great detail in the evidence.
Given that the father has been paying the sum of $780 per week for some time, I am satisfied that he has the ability to make spousal maintenance payments in at least that sum. He can also reduce his superannuation contribution by 3 per cent, or some $90 per week.
It is appropriate that there be an order for spousal maintenance from the date of these orders because the mother will not have any access to funds until the G Town property is sold. Upon its sale she will hopefully have sufficient funds to buy premises or to invest to obtain some funds. Either way, her needs should reduce. She said her rent was presently $500 per week.
An order will be made for the payment of spousal maintenance in the sum of $870 per week commencing seven days after the making of these orders until such time as the G Town property is sold. This is not quite all of the expenses of the mother but it is a sum the father is able to pay.
After its sale it will be appropriate to reduce the amount of spousal maintenance as the mother will then have the benefit of funds to invest or to apply to the purchase of a residence, if there are sufficient funds realised to enable her to do so.
Although there is no prognosis available as to when the mother might recover from the chronic fatigue syndrome, it is not appropriate to make an open ended spousal maintenance order. Similarly, there is no prognosis as to when the mother’s chronic fatigue syndrome might enable her to commence employment, it is not possible to say that it never will. It is appropriate, therefore, to make a limited order for spousal maintenance beyond the sale of the G Town property with the hope that after the determination of these proceedings the stress will reduce and thus alleviate the chronic fatigue syndrome.
Counsel for the father accepted that it would be appropriate to make an order for spousal maintenance for 12 months but the amount should reduce upon the sale of the G Town property.
Accordingly, it will be appropriate to order that upon the sale of the G Town property the father pay to the mother spousal maintenance in the sum of $370 per week up until three years from the making of these orders. The period is longer than that proposed by the father but takes into account the mother’s health and employment difficulties. The amount takes into account the rent, or other accommodation costs, being paid by the mother which she will have to bear after the sale of the G Town property.

I certify that the preceding two hundred and sixty six (266) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 11 August 2014.

Associate:

Date: 11 August 2014

[2014] FamCA 1246

11 August 2014

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