FAMILY COURT OF AUSTRALIA HUNT & PLANEY

FAMILY COURT OF AUSTRALIA

HUNT & PLANEY

[2013] FamCA 442

FAMILY LAW – CHILDREN – Parenting orders – International relocation – Where husband is Australian – Where wife is from the USA and has lived in Australia for five years – Where wife seeks to return to the USA and relocate the child – Where husband opposed relocation of child and sought orders that the child live with the wife in Australia and spend time with the husband – Where wife suffering co-morbid disorder of major depression and anxiety – Where single expert opined that if the wife were unable to relocate back to the USA and remain living in Australia her mental state would remain compromised – Where husband accepts child’s best interests met by living principally with wife – Where it is considered best interests of child are met by allowing relocation.

FAMILY LAW – PROPERTY – Application for property settlement orders – Whether just and equitable to alter property interests and rights – Stanford v Stanford [2012] HCA 52 considered – Whether payments made to the wife after separation should be characterised as spouse maintenance or interim property settlement – Where it was determined that approximately half of the payments to the wife after separation should be characterised as spouse maintenance and the other half characterised as partial property settlement – Where husband made significant initial contributions – Where contribution of wife as a homemaker and parent accepted as exceeding the husband’s – Consideration of factors under s 79 and s 75(2) of the Family Law Act 1975 (Cth) – Where the outcome of the assessment of overall contributions and other factors has resulted in the husband receiving 90 percent of the assets compared to the wife’s 10 percent – Where an adjustment, pursuant to s 75(2), of 10 percent in the wife’s favour is appropriate.

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 72; s 75(2); s 79

Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693
Cowley v Mendoza (2010) 43 Fam LR 436
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531
Stanford v Stanford (2012) FLC 93-518

APPLICANT:

Mr Hunt

RESPONDENT:

Ms Planey

FILE NUMBER:

SYC

4416

2010

DATE DELIVERED:

13 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

3, 4 & 5 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom

SOLICITOR FOR THE APPLICANT:

Goldrick Farrell Mullan

COUNSEL FOR THE RESPONDENT:

Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT:

Newnhams Solicitors

Orders

PARENTING

The following parenting orders are made in relation to the child L born on … March 2009, (“the child”).

Previous orders

That all previous parenting orders be discharged.

Parental responsibility

That the parents have equal shared parental responsibility for the child.

Live with

That the child shall live with the wife.

Relocation

That not sooner than 1 October 2013 the wife be permitted to relocate the child’s residence to the United States of America (“the US”).

Spend time

That until the child leaves Australia for the US she will spend time with the husband each alternate weekend from 2:30 pm Thursday to 9:00 am Saturday commencing on 20 June 2013 and in the intervening week from 5:30 pm Friday to 5:30 pm the following Sunday.
That for the purpose of the above order the husband shall collect the child from the wife’s residence at the commencement of each period and the wife shall collect the child from the husband’s residence at the conclusion of each period.
That upon the child commencing to live in the US she will spend time with her father as follows:
(a)During 2013 for up to two periods of 14 days in the US, the first two days (and nights) out of each three days with her father repeating through the 14 day period until expiration of the period;
(b)During 2014 for up to three periods of 14 days each in the US, the first three days (and nights) out of each four days with her father repeating through the 14 day period until expiration;
(c)During 2015 for up to three periods of 14 days each in the US, the first seven days (and nights) with her father then one day and night with her mother and the remaining six days and nights with her father;
(d)From 2016 for up to three periods of 14 consecutive days (and nights) with her father and two of the 14 day visits would involve the child travelling to Australia and spending the period with her father, if he so desired, the travel costs to be paid as follow:
(i)The wife shall pay for the child’s return airfares;
(ii)The husband shall collect the child from the US and pay his airfares;
(iii)The wife shall collect the child from Australia and pay her airfares;
(iv)The husband shall pay his travel costs for time spent with the child in the US.
(e)At other times as agreed.
That the husband shall give the wife not less than 28 days written notice of such intended travel and shall provide her with a copy of his international and domestic travel itinerary, contact telephone details including details relating to the accommodation of himself and the child.
That both parties are to keep the other informed of their current residential address and, telephone and email details.
That the wife shall encourage the child to communicate with her father in writing or other like form.
That the husband be permitted to contact the child by telephone and/or Skype or similar facility at any reasonable time
That the wife is to promptly inform the husband in writing of all the child’s major scholastic events, matters relating to the child’s health issues and shall ensure that she emails the husband updates on the child such as photos or video recordings of her general activities and relevant issues in the child’s life.
That in the event of a serious medical emergency the wife is to inform the husband as soon as practicable.

PROPERTY

That within 60 days the husband pay to the wife by way of property settlement the sum of $205 143.
That pending the above payment the husband shall continue to pay the wife $500 per week spouse maintenance.
That the husband and wife otherwise be declared the sole owners of all other property and superannuation in their possession and/or control respectively.
That the husband indemnify the wife in relation to all liabilities in his name and of his company C Pty Limited.
That both parties have leave to relist these proceedings on 14 days notice in relation to the implementation of these orders.
That all exhibits be released.
That the application for a child support order be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunt & Planey 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 4416 of 2010

Mr Hunt

Applicant

And

Ms Planey

Respondent

REASONS FOR JUDGMENT

These are final parenting and property proceedings.
The parties are Mr Hunt and Ms Planey. For convenience I shall refer to them as “the husband” and “the wife”.
They have been unable to agree on the parenting arrangements for their daughter L born in March 2009 (“the child”). At the heart of the parenting dispute is the wife’s very keen desire to be permitted to relocate the child’s residence to the United States of America (“the US”) which is the country of the wife’s birth. Such a course is strongly resisted by the husband.
Nor have the parties been able to agree to a property settlement. They have asked the Court to determine these matters.

PARENTING

Applications

The orders sought by the husband in the parenting proceedings are to the following effect:
·That the parties have equal shared parental responsibility for the child;
·That the child live with her mother at times when she is not living with or spending time with her father;
·That the wife’s application to permit relocation of the child’s residence to the US be dismissed;
·That the child live in the Sydney Metropolitan Area;
·That the child live with and spend time with her father:
(a)Until she commences school in 2014 each alternate weekend from 2:30 pm Thursday to 9:00 am Saturday and in the intervening week from 5:30 pm Friday to 5:30 pm the following Sunday;
(b)One half of the New South Wales school holidays;
(c)Specified special days.
·That from the commencement of school in 2014 the child live with and spend time with her father on a week about basis;
·That the wife be permitted to take the child to the US for two periods each year to visit family or friends, the husband to pay the economy airfare for the child;
·That the wife be restrained from causing the child to undergo any invasive medical tests without her father’s written consent;
·That in the event that the wife is permitted to relocate the child’s residence to the US, the child spend time with her father:
(a)During 2013 for up to three periods of 14 days in the US, the first two days (and nights) out of each three days with her father repeating through the 14 day period until expiration of the period;
(b)During 2014 for up to three periods of 14 days each in the US, the first seven days (and nights) with her father then one day and night with her mother and the remaining seven days and nights with her father;
(c)From 2015 for up to three periods of 14 consecutive days (and nights) with her father and two of the 14 day visits would involve the child travelling to Australia and spending the period with her father, if he so desired the travel costs to be paid as specified in the application.
·Orders about telephone and/or Skype communication.
On the other hand the wife seeks parenting orders to the following effect:
·That the parents have equal shared parental responsibility for the child;
·That the child live with the wife;
·That the wife be permitted to relocate the child’s residence to the US
·That pending that relocation the husband spend time with the child as follows:
(a)Each Thursday from 12:00 noon until 5:00 pm;
(b)Three overnights per month from 2:00 pm Saturday to 5:00 pm Sunday;
(c)Each alternate week from 9:00 am to 5:00 pm Friday and 12:00 noon to 5:00 pm Sunday;
·That the wife’s departure to the US not take place sooner than four months and not later than six months from the date of the orders;
·That after the wife’s said departure the husband spend time with the child as follows:
(a)During 2013 and 2014 up to four times per year in the US each period not exceeding two weeks as follows:
(i)Four days each week for periods of not less than six hours but not exceeding eight hours;
(ii)If the husband elects four consecutive days, the following two days are to be spent with the wife;
(iii)Overnight one evening per week; and
(iv)Such other times as agreed between the parties.
(c)During 2015 the husband shall spend time with the child in the US up to four times not exceeding a period of two weeks on the following basis:
(i)Four days each week for periods not less than six hours but not exceeding eight hours;
(ii)If the husband elects to spend four consecutive days the following two days shall be spent by the child with the wife;
(iii)For five overnight occasions during the 14 day period; and
(iv)Such other times as agreed.
(d)During 2016 the husband shall spend time with the child in the US up to four times not exceeding a period of two weeks on the following basis:
(i)Four days each week for periods not less than six hours but not exceeding eight hours;
(ii)If the husband elects to spend four consecutive days the following two days shall be spent by the child with the wife;
(iii)For six overnight occasions during the 14 day period; and
(iv)Such other times as agreed.
(e)During 2017 on the same basis as for 2016 above but for one period the child shall spend time in Australia with her father for ten days (school term permitting) the child to be accompanied by her mother for travel to and from Australia;
(f)From 2018 the child to spend time with her father as agreed between the parties.
·That the husband give the wife not less than 28 days written notice of intended travel and related machinery matters;
·Skype and telephone communication;
·Various orders in relation to school and medical emergencies; and
·That the husband pay all travel costs to spend time with the child in the US for the first twelve months and thereafter the parties equally share the reasonable costs of economy travel for the child and her father to spend time, not including accommodation costs, with any business class travel to be paid by the husband.

Background

The husband, 45 years, and the wife, 44 years, were born respectively in Australia and the US. They first met in 1995 as students studying post graduate qualifications in business in the US. In December 2007 the parties became reacquainted and commenced a relationship. They commenced cohabitation in June 2008, married in California in October 2008 and separated in Australia on 5 July 2010.
There is one child of the relationship, L, who was born in March 2009. She is currently aged 4 years and 2 months. The child is a citizen of both Australia and the US.
The wife had come to Australia in June 2008 on a tourist visa.
A few weeks after their wedding in California, the parties returned to Australia resuming residence in the husband’s rented apartment at Suburb A for a short period before taking up residence in a rented home at Suburb B.
In June 2009 the husband began to see a psychologist, Ms D, for assistance with depression.
Between July and August 2009 the wife travelled to the US for three weeks to visit family and friends and to introduce the child to them.
On 13 December 2009 the wife fractured her foot which required her to use crutches. The child was nine months old at the time. This was a difficult time for the parents. The husband was endeavouring to undertake the major parenting role. Then his father assisted for a few days. After this, a temporary nanny was engaged for some weeks.
In February 2010 the wife’s orthopaedic surgeon advised her that she had re-fractured her foot.
The wife was depressed. Her general medical practitioner referred her to a clinical psychologist, Ms E, for treatment. The wife asserted that she was chronically sleep deprived.
In April 2010 the wife took the child to Dr F a Paediatrician who specialised in allergies and food intolerances. I shall refer to this matter again below.
In May 2010 the wife travelled to the US with the child and visited friends in San Francisco for a month. The wife was depressed and concerned about the state of the marriage. She and the child returned to Australia on 16 June 2010.
In June 2010 Dr F opined that the child had a mild speech delay.
As indicated above, in early July 2010 the parties separated. This was under the same roof. The wife made it clear to the husband that she wanted to return to the US to live and to take the child with her.
On 13 July 2010 the husband commenced these proceedings in the Federal Magistrates Court, as it then was. Amongst the orders sought were orders to prevent the wife from removing the child from Australia without the husband’s consent, including entering the child’s details on the airport watch list.
In August 2010 the wife moved into a rented apartment in Suburb G where she continues to reside with the child.
On 25 August 2010 orders were made by consent in the Federal Magistrates Court for the child’s details to be placed on the airport watch list, the appointment of a single expert and other procedural orders. The proceedings were then transferred to this Court.
On 1 November 2010 consent orders were made which included that the husband spend time with the child three times per week for three hours, increasing to two visits for three hours and one for eight and a half hours, with the arrangements flexible to suit the husband’s then work commitments in Darwin.
In March 2011 the child began spending time with her father in accordance with the orders.
In June 2011 the parties attended Dr H, psychiatrist, the appointed single expert, for interviews to enable preparation of her report.
In June 2011 the wife attended a clinical psychologist, Ms I, who considered the wife to have an adjustment disorder with depression and traumatic stress.
On 28 July 2011 Dr H’s first report was released. On the following day the parties entered into further consent orders for the child to spend time with her father each week as had been recommended by Dr H. The periods included 3 hours each Tuesday and Thursday, alternate Sundays from 9.00 am to 5.30 pm, one overnight occasion each month as well as three hours on Christmas Day.
In September 2011 the wife conferred with Dr J whom she consulted about her concern that the child might have gluten intolerance. I shall refer to this again below.
In December 2011, at the suggestion of Dr H, the wife saw psychiatrist Dr K, who subsequently prepared a report. I shall also refer to this matter again below.
In August 2012 the parties and the child attended for further interviews by Dr H to enable her to prepare an updated report.
On 31 October 2012 Dr H issued her updated report.

Credit

The husband

The husband is an impressive person. I found him to be forthcoming and cooperative. He answered questions in a responsive manner. He is very articulate and focused.
Except for one matter in issue in the property proceedings, I regard his evidence as being reliable.
In my view, clearly the husband has a great deal to offer his daughter.

The wife

The wife was highly anxious. On numerous occasions she was quite unresponsive to the questions. At times she lost her composure.
The wife was unable to resist numerous opportunities to include in her answers various criticisms of the husband.
On each of the several occasions that this matter has now come before me I have had the distinct impression that the wife is desperate to return to the US.
Notwithstanding these observations, I regard the wife as a truthful witness.

Mr Hunt Snr

Mr Hunt Snr is the husband’s father. He is retired. Mr Hunt Snr was responsive in his answers to questions and I regard him as being a truthful witness.

Mr P

Mr P is a business associate of the husband. I have some reservations about the reliability of much of his evidence.

Mr S

Mr S is the wife’s father. He gave his evidence by telephone from his home in Ohio, US. Mr S gave his evidence in a responsive and cooperative manner. I regard him as being a witness of the truth.

Submissions

The wife

The submissions on behalf of the wife were to the following effect.
The Court could make the following findings:
·The wife has been, and continues to be, the child’s primary carer for the foreseeable future;
·Each parent seeks orders that until the child commences school, the preponderance of her time would be spent with the wife;
·The wife in her current state would be unlikely to obtain employment, even part time;
·The wife’s current condition of major depression is likely to continue unless a solution is found;
·Her prognosis is very poor whilst the current circumstances, lack of adequate finances, social isolation, lack of support and being unable to return to the US with the child continue;
·Her best chance of recovery is to be able to return to the US with the child;
·The wife’s condition of major depression of a non-melancholic type is solely attributable to her current situation which is directly attributable to the breakdown of her marriage and living in Australia;
·There are indications identified by Dr H (in her updated report) that the anxiety and depression experienced by the wife is now being identified in the child;
·The child has a positive and normal attachment to her father and he and the child share a clearly loving relationship;
·Despite the wife’s sometimes critical approach to the husband’s parenting style, even in her depressed and anxious condition, she acknowledges the importance of the child’s relationship with him continuing and the necessity for physical contact to take place on a regular basis;
·The husband is motivated genuinely by the advancement of the child and to this end he is prepared to travel to the US three or four times yearly recognising the need for a graduated increase of time between himself and the child whether in the US or Australia.

Relocation of the child’s residence from Australia to the US might not be ideal for the child but on the facts of this case it is warranted on the basis that it presents as the least toxic outcome for the child. It is supported by both Dr H and Dr K. Dr K was unchallenged in relation to his report. Dr H was cross-examined extensively by learned counsel for the husband exploring all relevant matters. Dr H remained reasonably firm in her final opinion for the reasons set out in her report.
Dr K expressed the view that if the wife is required to remain in Australia it is likely that her condition will deteriorate in the future. He said that it is likely that she will continue to feel increasingly hopeless which could reach the extent of her becoming suicidal and requiring hospitalisation.
The Court would note that the husband does not seek that the child live primarily with him and that it is to his credit that he has taken the position that the child should be cared for primarily by her mother.
If the Court found favour with these submissions, there was little need for further submission because there was no avenue available than permitting the wife to relocate the child’s residence to the US except to decline such order and require her to continue to live with the child in Australia.
The wife acknowledged that communication between the child and her father through Skype and the telephone was not a substitute for their physical contact. It was submitted, however, that the wife proposed a program of time between the husband and the child which would increase over time consistent with the requirements of the child’s development.
The wife did not propose specific orders further into the future than year 2018 on the basis that this was too far into the future to sensibly make provision for the child’s needs.
Finally, in the event that the Court declined to permit the wife to relocate the child’s residence to the US the wife would propose a gradual increase in the time between the husband and the child particularly overnight to the point where in time the child would spend significant and substantial time with her father including half of each school holiday period.

The husband

The submissions on behalf of the husband were to the following effect.
The relevant law does not require the wife to establish some compelling reason for returning to the US. The Court is to be guided by the objects in s 60B(1) of the Act which ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the interests of the child and to know and be cared for by both of the parents.
In determining what is in the child’s best interests the Court must take account of the primary considerations which include the benefit to the child of having a meaningful relationship not only with her mother but also with her father. In relation to this matter, the husband’s case is that the child is a very young child, that over the last couple of years the husband has developed a warm and loving relationship with the child and he finds it almost inconceivable that the relationship would be permitted to be torn asunder in circumstances where the wife has flatly refused to attempt to make a life for herself in Australia. The husband has noted the warnings of Dr H about the wife’s mental condition. The Court would note that the father and child relationship would be significantly affected by the child’s move to the US in circumstances where it cannot be said whether such a move would be likely to improve the wife’s care of the child.
There was some conflict between the opinions of Dr K and Dr H about precisely what the wife’s underlying conditions are. On the one hand Dr H said that there is a co-morbidity, this being that she suffers from depression as well as anxiety, whereas on the other hand Dr K diagnosed depression only. Dr H said that even if the anxiety relating to the stressor of living here is removed the depression might still remain. In any event, what experts say is not holy writ. The doctors’ opinions, although important and valid, are just their opinions. On the one hand we have a child losing a significant relationship with her father if she moves to the US and on the other hand, if the wife is forced to stay in Australia, possibly some difficulty, a difficulty which she has chosen not to address herself. On the other hand if she moved to the US there might well still be some difficulties.
The wife is looking at her proposed move to the US through rose-coloured glasses. She would hope to be able to pay a significant portion of the debt she owes to her father from her property settlement. She hopes to be able to live with a friend initially, endeavour to find accommodation, would not have a job, would endeavour to apply for part time work until the child is able to commence school, possibly retrain, possibly work for no remuneration for a period in an endeavour to develop experience, possibly not have much assistance from her parents and she would not expect any financial support from her friends. The husband’s greatest concern if the child was to move, is that the wife and child would be out of his sight, as it were. If problems were to arise, he would not be aware of this. The husband would not be in the US to ascertain on a week to week basis how the child was coping with the changes. The wife’s parents are a five hour flight away from San Francisco and the wife would be alone, perhaps having some friends. The proposed block periods of time, together with Skype and telephone calls, would not be an effective way for the husband to communicate with the child as conceded by the wife who complained to Dr H that she had found such means to be insufficient to communicate with her family and friends.
Even if the child was an older child, these measures would be a poor substitute for direct regular time with her father. When one stands back, even from some aspects of the experts’ evidence, the arrangement of the wife and child moving to the US is just not workable. It might be workable if the wife was now operating emotionally at a much higher level. But even Dr H conceded that if the wife was to move, she would not get better immediately. This is the husband’s greatest fear and on the evidence he must be correct about this.
When one looks to the future, the child would grow up without a close relationship with her father, one parent would have been excluded from the necessity of making parenting decisions because of the practical barriers to this and it might be that even with commitment by each of the parents the husband might not be able to spend time during all the available periods. For the child it would be most disadvantageous for her not to be able to have the benefit of her father on a frequent basis.
In relation to the additional considerations in s 60CC(3) of the Act, so far as the child’s relationship with her mother was concerned at this time the child has an anxious attachment to her mother and has a developing relationship with her father.
Dr H indicated that if the wife was to stay in Australia, anti-depressant medication could assist her. The program which the wife is undertaking with psychologist Ms I was not the therapy which Dr H indicated would best enable the wife to recover, such being cognitive behaviour therapy.
Late in Dr H’s oral evidence she did say that there might be some merit in holding back a move to the US for a period of time to enable the child to cope with more successive nights with her father.
If there was any substance to Parliament’s intention, for orders to be framed in the child’s best interests, the balancing exercise ought to be directed to the child maintaining a meaningful relationship with both parents and parents should, if at all possible, be expected to fit within that requirement unless it was shown that they simply could not.
Finally, experts approach these matters from their own discipline and training, from a particular perspective, not worlds apart from what the Act requires, but the Act has a particular emphasis in directing the Court towards the best interests of the child.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that 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.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child member of the parent’s family, or family violence.
Sub-section 61DA(4) of the Act provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
In relation to “relocation cases” of which the present case is one, Murphy J said in Cowley v Mendoza (2010) 43 Fam LR 436 at p 443 as follows:
A “relocation case” is not a specific subcategory of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
With respect, I agree.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for her parents to have equal shared parental responsibility for her.
But there is no issue that the child’s parents have equal shared parental responsibility for the child. Each of them has sought an order to this effect. I shall refer to this matter again below.

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss them.

Additional Considerations

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

This is not a relevant matter given that the child is only four years of age.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The child has a close, loving relationship with each of her parents.
Dr H said that the child is attached to both parents, possibly anxiously so to her mother, who reports that the child has been asking her about leaving her and about her dying. Dr H said that the wife, as the child’s primary caregiver, would be on top of the child’s attachment hierarchy and that the child would be very threatened by any perceptions she had to the effect that she could lose her mother. Dr H thought that the likely explanation for this was because of the mother’s distressed mental state throughout the child’s life in which loss is an abiding, painful issue for the wife.
Dr H also said that the attachment which the child has to her mother has deteriorated since she previously saw the family in mid 2011, at which time she thought that the child had a secure attachment to her mother.
Dr H said that the child has a close and positive relationship with her father and that she has obtained security and comfort from him and his family. Dr H said that she observed the child in the street riding on her father’s shoulders and chatting with her paternal grandparents and uncle. She said that the child is obviously attached to him.
The child also appears to have an established relationship with each of her paternal grandparents and with the husband’s brother Mr N. Dr H said that the child is also attached to them. The child’s paternal grandfather, Mr Hunt Snr, said that he has often spent time with the child when the husband has had her on Thursdays and Fridays. The grandfather said that when collected by her father the child always has a smile on her face. He said that the father and daughter were always talking, playing and interacting. The paternal grandmother and the husband’s brother often spent time with the child on the Sundays.

Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In my view the wife has supported the child in having a relationship with her father although with some difficulty, particularly initially. The wife has agreed to increases in the time spent between the child and her father in accordance with Dr H’s recommendations including for overnight time.
Dr H said that she had no doubt that the wife was thinking about how to maintain a long distance relationship between the child and her father in the event that she was to relocate and that she would endeavour to do so. The wife said that if she was permitted to relocate the child’s residence to the United States she would be committed to ensure that the child and her father continued to have a close and loving relationship. She suggested that the husband and his parents could communicate with the child using Skype, email and telephone and that she would assist the child in respect of this.
The wife also said that she would support the husband in having a gradual increase in his time with the child as would be age appropriate. This would involve the husband visiting the United States several times per year and the wife bringing the child to see the husband in Australia during the US holiday period. The wife also said that she would be prepared to deliver the child to the husband at a place midway between Australia and California such as Hawaii. The wife also said that once she was employed full time she would be prepared to contribute to the costs of the husband’s airfares to the US.
In the event that the wife and child would live in Australia, the wife proposed that the child would continue to spend time with her father in accordance with the current orders. The wife said that when the child attained six years of age she would agree to her spending alternate weekends Friday to Sunday as well as during the intervening week, from after school Thursday until before school Friday with her father.
The husband said that at changeovers the wife often encouraged the child to be excited to be seeing him and that he similarly encouraged the child to return to her mother’s care at the conclusion of his time with her.
Although the parties have a poor relationship and rather poor communication, they have been able to comply with the requirements of the court orders and to manage changeovers in almost every instance without causing distress to the child.
The wife set out in her affidavit a detailed list of practical things which she would do to support the child’s relationship with her father if the child and she were living in the US.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

Dr H said that if the child’s residence was to be relocated to the US, it would be problematic for the child to leave her beloved father behind and she would experience loss and grief. Dr H also said that with the relocation, the child’s meaningful relationship with her father would be diluted and her security of attachment to him, which depends on regular interactions, would be weakened. Dr H went on to say that if the husband remained in contact appropriately, the child would probably not be as distressed as she would be if she “lost” her mother because she would still have her most significant attachment figure attending to her.

On the other hand Dr H said that if the child was not living primarily with her mother it would place her sense of security at risk, that is, she would have an experience of loss and abandonment at a very vulnerable age. Egocentric, she might believe that her mother did not love or want her and become anxious that her father would take similar action, leading to an expectation that others were not to be trusted to stay available to her. Dr H said that there could be ramifications for the child’s sense of self in that she might worry that she was “so bad/unlovable” that her mother does not want to parent her.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

This is a highly relevant consideration. Obviously the geographical distance between the parents would be immense if the husband remained in Australia and the wife relocated the child’s residence to the US. The husband is a busy professional person who must face considerable limits on the amount of time that he would be able to allocate to travelling to the US to spend time with the child. Realistically, the distance, available time and the considerable expense involved must limit his visits to only a few occasions each year. The wife said that she would be able to bring the child to Australia to spend time with her father during US summer school holidays in mid-year.
The other connections between husband and child would be by way of frequent Skype, email and telephone communications. Clearly, such would be no substitute for face to face time.
On the other hand, if the wife and child were to remain living in Australia, the child would be able to continue to spend regular face to face time with her father in a similar manner to that which she has been able to enjoy since her parents separated.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

The husband works as a consultant in his business C Pty Limited. He has flexibility in his working hours and could tailor them to enable him to care for the child.
In the early period after the parties separated, the wife was concerned about the husband’s capability to care for their then young child. For example, she said that when the child was approximately 9 months of age and the wife fractured her foot, he had to assume much of the care of the child but would fall asleep. The wife also said that he left a pair of scissors within reach of the child. The husband said that during this period he was primarily responsible for changing the child’s nappies, bathing her, preparing her meals, feeding her, changing her and putting her to sleep at night. He also had to get up to her in the mornings. He also said that during the periods when he had to work, he engaged various nannies to care for the child.
The wife appears to have been less critical of the husband’s ability to parent the child as time progressed.
In June 2009 the husband started to see a psychologist Ms D to assist him to manage depression. Dr H noted that the husband remained on the anti-depressant Efexor which had been prescribed by his general practitioner doctor. She said that the husband reported that he is currently not depressed, that he is able to work and that he enjoys the child. He has been advised to remain on the medication until these proceedings have been completed.
Dr H said that during the session at her rooms between the husband and the child, the husband had appeared to be attentive, polite and patient with the child. She said that he has continued to provide good care to the child “provided [the child] does not have a food intolerance”. Dr H also said that the husband has a good commitment to the child whom he clearly wants to spend more time with. Dr H said that supported by his family the husband appeared to have an adequate parenting capacity to be the child’s main care giver if required.
On the other hand, Dr H described the wife as remaining anxious and depressed by self report. She said that the wife’s distress was evident during her assessment.
As indicated above, in early 2010 the wife commenced seeing clinical psychologist Ms E for depression management. The wife indicated to Dr H that during the marriage she had lost her self-esteem. In tears, the wife described herself to Dr H as “not a whole mother” but a “shallow mother … ghost of a mother”, who only looks like one. Dr H said that the wife said that the child has a non-functioning mother but that if they were in the US the child would have a functioning mother but less time with a functioning father.
In July 2012 Dr K, consultant psychiatrist, diagnosed the wife as having major depression of a non-melancholic type. He said that this was solely attributable to her current situation following the marriage breakdown and social isolation. Dr K said that the wife’s prognosis was very poor while lack of adequate finances, social isolation, lack of support and being unable to return to the US with the child continued. Dr K said that the wife’s best chance of recovery would be to return to the US where she would have access to friends, the potential for employment and which is culturally familiar to her. He said that if there was no recovery, her current state of mental health would continue in the future. He said that it might deteriorate with the passage of time because she might feel more hopeless and overwhelmed if her situation did not improve. He said that it could reach the extent of her becoming suicidal and requiring hospitalisation.
The husband took issue with Dr K’s report and said that Dr K was repeating what the wife had told him and based his opinion on this. He said that the wife did have friends in Sydney but that she endeavoured to present “the worst case”.
There was a suggestion on behalf of the husband during the course of Dr H’s cross-examination, that the wife had not taken opportunity to improve her mental health. This was on the basis that Dr H had suggested in her first report that the wife could benefit from long term, exploratory psychotherapy. In fact, Dr H had recommended that the wife continue to seek appropriate treatment for her mood disorder including consideration of long term, psychodynamic psychotherapy.
Since that report the wife had been seeing Ms I, psychologist. But this involved supportive therapy not the exploratory therapy Dr H had recommended. Dr H explained that psychotherapy is a very slow process. She said that unfortunately, there would be no guarantee that psychotherapy and anti-depressant medication would be able to assist the wife quickly enough, and sufficiently, to enable the wife to recover quickly enough to assist the child in the sense of being a happy parent who is functioning well enough in the adult world.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

Dr H described the child as a talkative, assertive 3 year old with age appropriate to advanced development. She said that the child enjoyed the attention of both of her parents and clearly had a mind of her own. Dr H said that the child had excellent language skills because she talked almost non-stop.
Dr H asked the wife about the child’s adaptability. She said that the wife believed that the child was very adaptable to changes in her routine provided that her mother was present. She said that the wife described the child as a “flexible, reasonable, not stubborn” child.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not relevant.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Dr H said that the child is fortunate in being well loved by her parents and unfortunate in where they find themselves. She said that this was because of the parents’ different parenting styles, their different orientation to well-being and illness and their reluctance or inability to live in the country of the other parent.
The husband is concerned that the wife has been highly anxious and obsessional. He said that she appears to be convinced that the child suffers from allergies or intolerances.
The wife has a belief that the child has a gluten intolerance. The wife said that she suffers from this condition. She took the child to a paediatrician, Dr F, who undertook a blood test which showed that there was no genetic basis for the child to be gluten intolerant. The wife said that Dr F advised that the test was not conclusive and that the child could undergo a gluten elimination challenge diet to confirm whether she had gluten intolerance because the wife said that the child continued to have gastro problems.
The husband subsequently met with Dr F and informed him that the tests showed that the child had no allergies. Dr F further stated that if there was food to which the child had an intolerance she would not go into an anaphylactic shock and that the worst outcome might be a behaviour change or a rash.
The wife subsequently attended a Dr J whom the wife said was a specialist in gluten intolerance.
Dr J referred the child to Dr O, a paediatric gastroenterologist and hepatologist. Dr O opined that the child “has had negative HLA markers … which make coeliac disease quite unlikely although not impossible.”. Dr O also referred to certain other investigative procedures which might be relevant.
Dr J said that the child had “non-coeliac gluten intolerance”. Dr J said that when the child was on gluten she had obvious gut distension and loose motions. Dr J said that it was imperative for her gut health that the child be maintained on a gluten free diet.
The husband was concerned about this change of doctor and that apparently Dr J was relying on tests performed by the EnteroLab laboratory in the US which he said were not based on any peer-reviewed science. The husband subsequently expressed his concern to Dr J and said that she conceded that there was no peer-reviewed science behind her testing of the child. The husband asked why Dr F did not order the test and said that Dr J replied that Dr F did not believe in non-coeliac gluten intolerance. The husband said that he was concerned that the wife was denying the child gluten on the basis of little or no evidence that she was gluten intolerant.
The husband raised a similar concern about the wife apparently having formed a view that the child might be salycilate sensitive. Apparently this is a sensitivity to a substance which is found in many fruits and vegetables. Dr F also informed the husband that he had not seen any symptoms nor had any test results which would indicate that the child has a salycilate insensitivity. The husband also said that Dr F said that the only evidence of such an insensitivity was the wife’s claim of changes in the child’s behaviour. The husband said that he was concerned that the wife was denying the child most fruits on the basis of an insensitivity that has not been diagnosed.
The husband also said that he was concerned that the wife appeared to have formed a view that he had traits of Asperger’s Syndrome. So concerned was the wife about this, and apparently its potential to affect the husband’s capacity to care for the child, that she knocked on the doors of a number of other apartments in his apartment block and suggested to these neighbours of the husband that the husband had traits of Asperger’s Syndrome and that they should be vigilant to ensure that the child was safe when in his care.
In these circumstances the husband undertook an assessment for Asperger’s Syndrome by Dr Q who concluded that he did not meet the diagnostic criteria for the Syndrome.
On the other hand the husband has not always demonstrated restraint and sensitivity in parenting matters. In the face of the wife’s strong objection, the husband went ahead and completed an application for enrolment of the child at R School, Suburb G. Dr H raised this with the husband and asked him whether he knew his actions would be provocative to the wife. Dr H said that he replied that he did understand this after the event and conceded that he could have managed it better.
The husband also made an offer to the wife that he would like to take the child to see her maternal grandparents in the US in circumstances where the wife had made it clear that she did not propose to do so because she wanted to concentrate on seeing her friends in the US. On an earlier occasion the wife had informed the husband that seeing her family was too stressful at the time. It is not clear to me whether the husband was being provocative, or on the other hand, perhaps lacking in insight, about the effect that this would be likely to have on the wife.
The wife said that communication between the parties was poor. She said that at changeovers the husband rarely spoke to her.
Dr H said that when she asked the husband about this he said that he was “half right” about this. He said that while he does greet the wife with an “automatic hi” and looks at her, he is “not garrulous … whatever I say, I’ll be wrong”.
In his affidavit the husband said that except for an incident on 30 August 2011 when the wife became agitated and shouted at him in the child’s presence, their discussions have been cordial.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

This consideration is not relevant.

Sub-section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;

This consideration is not relevant.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The husband and wife appear to be polarised about what they each believe would be in the best interests of the child. Neither has been able to accommodate the preference of the other, at least so far as in which country the child should reside is concerned.
In these circumstances, whichever order is made will make one or other of the parents extremely disappointed. Accordingly, one could not discount the possibility of further litigation, although this would not be in the child’s interests.

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

The wife believes that if she was to return to the US, she would be the happy and resilient person that she once was and a better parent to the child. She feels that she would be able to recover her motivation, confidence, resilience and patience. She said that she would be able to resume employment in marketing using her postgraduate qualification in her field. She said that she proposed to work part time until the child settled into school and then she would work full time.
The wife said that she would propose to live near San Francisco which she said would offer more readily affordable accommodation than Sydney. She said that she has many good friends in the area and that some friends have offered her accommodation for a few months until she could find her own accommodation.
In relation to possible employment by the husband in the US, I note that, like the wife, the husband has a postgraduate qualification in business from the US. The husband had worked on contract for Company T in the US in 1996/1997 having been sponsored by that corporation. I understand that in order to work in the US it would be a requirement that the husband be sponsored by an appropriate employer there.
The husband informed Dr H that he would not be able to live in the US because he would not be able to work there. I accept this evidence.

Discussion and Conclusion

As indicated above, each of the child’s parents has sought an order that the parents have equal shared parental responsibility for the child. Because I propose making such an order, s 65DAA(1) of the Act requires consideration to be given to the matters therein.
The operation of s 65DAA(1) was considered in MRR v GR (above). At page 535 (2010) 42 Fam LR the High Court said as follows:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as subs (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. [Footnote omitted.]
Accordingly, consideration must first be given to whether it is in the best interests of the child to spend equal time with each of her parents. Neither of the child’s parents has sought an order for this, although the husband has sought such an order from the time that the child commences school in 2014.
The husband is unable to live and work in the US. So the only possible equal time arrangement could be in Australia.
But in my view, it is not in the child’s best interests for her to remain living in Australia because, for the reasons set out below, it is in the child’s best interests that her mother be permitted to relocate the child’s residence to the US.
And, in my view, it is not practicable that the child spend equal time with each of her parents for the same reason, that is, her father cannot live in the US and it is in the child’s best interests to be living in the US with her mother.
I must now consider whether the child spending substantial and significant time with each of her parents would be in her best interests, and be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·The time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

As indicated above, if the child’s residence was to be relocated to the US the husband sought orders to the effect that he spend time with her in the US, in general terms, for up to three periods of 14 days each on the basis that there would be breaks in the 14 day periods to enable the child to return to her mother. Even if one was to add to these periods a visit by the child to Australia, in my view, one could not regard such an arrangement as satisfying the requirements under the legislation (s 65DAA(2) and (3)) for substantial and significant time between the child and her father. Yet, in a practical sense, this is all that the husband would be able to commit himself to, given the vast geographical distance between Australia and the US, the husband’s work commitments and, no doubt, his capacity to fund the travel involved.
And the wife’s capacity to be able to travel with the child to spend time with her father in Australia is also limited by the child’s age and capacity to withstand the rigours of long distance aircraft flight, the fact that soon she will be attending school, as well as the wife’s capacity to be able to travel and to pay the costs involved.
In my view, while it would be in the child’s best interests to be able to spend more time with her father, both in the US and in Australia, the extent to which there can be opportunity for this is limited, particularly while the child is so young.
In my view, the reality for the child is that if her mother is not permitted to relocate her residence to the US, the child will be living in Sydney in the primary care of a mother who is suffering from a very serious mental health condition, namely the co-morbid disorder of major depression and anxiety in an aroused state.
It is clear that the child’s mother has been unable to accept that her life is with the child in Australia. She has not committed herself to this, in fact she is desperate not to have to continue her life in Australia. She has not committed herself to putting down roots here by developing a network of friends and preparing herself emotionally and psychologically for employment in Australia within her field of expertise. The consequences have been to the child’s significant disadvantage. The child is living in the primary care of a parent who is unable to function fully as a parent.
Dr H has described the child as having a positive attachment to her father and his family. It is troubling, however, that Dr H described a deterioration in the attachment which the child has with her mother, from Dr H’s more recent observation compared with her previous observation in June 2011. Whereas previously Dr H thought the child had a secure attachment to her mother, now she thinks the child has a possibly anxious attachment to her mother. As indicated above, Dr H also described the child as now having some identification with her mother’s anxiety noting that the child was needing reassurance that her mother was not going away and was not going to die. This must be unhealthy for the child and a worsening in her development.
A positive aspect of the current arrangements is that the child has been able to continue to develop her relationship with her father by increased time being spent by her with him to the point where Dr H described their relationship as loving, close, positive and meaningful.
The most troubling of all concerns is that Dr H has expressed the opinion that unless the major stressor in the wife’s life is removed, her serious depression and anxiety will not improve and could worsen. The major stressor of course is the fact that the wife is desperate not to live in Australia but to return with the child to reside in the US where she believes life for her and the child will be infinitely better than in Australia.
Dr H’s view is supported by that of Dr K. As indicated above, Dr K said that the wife’s prognosis was very poor whilst the current circumstances, lack of adequate finances, social isolation, lack of support and being unable to return to the US with the child continues. Dr K said that if the wife’s current circumstances continue under which she is required to remain in Australia, it is likely that her condition will deteriorate in the future, that she will continue to feel increasingly hopeless to the extent that she could become suicidal and require hospitalisation.
Dr H said that the child’s well being and prospects for development are compromised in the present circumstances by her mother’s compromised parenting. If the wife’s health deteriorated as described by both Doctors H and K, this could leave the child with her primary parent no longer being available as a parent for her. Although the child has a close and developing relationship with her father it would be difficult to imagine that their relationship could be sufficient to substitute for the huge loss of her relationship with her mother.
Dr H said that if the wife was required to remain living in Australia her mental state would remain compromised, that is, Dr H would expect the wife to remain depressed, anxious and unsettled. Her mental state would not be as robust as it would be if the wife’s idealised life in the US came to pass. Dr H expected that the child would become increasingly aware of her mother’s compromised mental state as she started to become aware of the mental state of others and she might start to parent her mother. Dr H said that the child, in these circumstances, might have some reprieve from the situation when she spent time with her father but there would be a risk that, even at such times, the child might be so consumed by worry about her mother that she would not be able to settle with her father.
On the other hand if the wife was permitted to relocate the child’s residence to the US, there is no question that this would seriously limit the opportunity for the child to develop her relationship with her father.
Dr H said that in such circumstances, clearly the child’s relationship with her father would be compromised. She said that it would not have the same level of robustness nor the intimacy which would be achieved if the child was seeing her father on a weekly basis. Dr H said that this was why she described her recommendation for the wife to be permitted to relocate the child’s residence to the US as “the less noxious alternative” rather than the best circumstances for the child to grow in.
It was submitted on behalf of the husband that a move to the US might not necessarily cause the wife’s mental health to improve. As indicated above, learned counsel for the husband pointed to some evidence by Dr H to the effect that merely removing the source of the wife’s anxiety might not necessarily improve her state of depression.
It was submitted on behalf of the husband that if the wife’s health was not to improve significantly in the US then such a move would simply visit upon the child a limited relationship with her father and a continuing limited situation so far as her mother’s functioning as the child’s primary parent was concerned.
In my view, with respect, this is a somewhat confined view of the relevant evidence. Both Doctors H and K said that the major source of the wife’s depression was the fact that she is required to live with the child in Australia against her very strong wish not to do so. Dr K described her depression as “solely attributable to [her] current situation which is directly attributable to the breakdown of her marriage and living in Australia … where she feels socially isolated and has been unable to form friendships or social networks.”
Dr H pondered whether the wife’s mental health and functioning would be better in the US. She said that there was no evidence to indicate that the wife’s own report of her stability and high functioning in the US should be doubted and could not be achieved again. Dr H noted that there was no guarantee of a return by the wife to stability and high achievement. She said that the wife might have a somewhat idealistic view of her circumstances in the US which might not be achieved, leaving her anxious and lonely.
But Dr H also said that she thought that there had been a number of stressors which had caused the wife’s depression. She said that these would have included the wife’s loss of the relationship which she imagined she had with the husband, her unexpected pregnancy causing loss of control of her life, her loss of work, then loss of country and loss of support of her husband as baby the child came along. Dr H said that she thought that the wife had worked through the losses associated with her relationship and the divorce, and (inferentially) the wife’s sense of loss of country, work and control of life could be expected to change with a move to the US.
I accept the opinion of the experts that the wife’s mental health is likely to improve by moving to the US, and that it is unlikely to improve, and that there is a risk that it will deteriorate, if she is required to remain in Australia.
In determining whether the proposed move would be in the best interests of the child, the Court must also take account of its likely effect on the child’s relationship with her father and other significant adults. There can be no question that the child would have a much more intimate relationship with her father if she was to remain resident in Australia and that he would more readily be able to make a significant contribution to her life if she was resident here. Their relationship would be more meaningful if it continued in Australia. In my view, however, the likely cost of this in terms of the child’s developmental prospects, is too high when one weighs against this the greater likelihood of having a mother in good health in the US with all the implications of that in terms of the child’s upbringing and development.
So in weighing the primary considerations in s 60CC(2)(a) and (b), on the one hand it is very important for the child to have a meaningful relationship with her father but on the other hand, on the basis of the expert evidence, this would be very likely to only be available at the very high risk to the child of psychological harm occasioned by the child having a limited-functioning mother.
And Dr H did say that to have a functioning primary parent is very important at this stage of the child’s life. She said that this was because the child has already been raised by a parent whose mental health has been compromised, so that the child’s development has already been compromised. Dr H went on to say that the child needs a mother who can settle quickly enough for the child to have a period in young childhood of being parented by a happy, motivated and energised parent who is functioning well enough in the adult world so that the child is not exposed to ongoing compromised parenting.
This is not to say that the child would not be able to continue to develop her relationship with her father by involvement with him after she had moved to the US. The wife has indicated that she is committed to, and understands the importance of, the child having a relationship with her father. It is true that there have been some difficulties in the past with the wife having an overprotective attitude to the child spending time with her father. But the wife has recognised that the child loves her father and that it is important for her to have as full a relationship as possible with him.
In addition, in my view, this Court can have some optimism that appropriate opportunity for development of the child’s relationship with her father will be likely to continue in the US particularly because the husband has formed a supportive relationship with the maternal grandparents. I had the benefit of hearing evidence from the paternal grandfather, Mr S, and my impression from him is that there is a cooperative and respectful relationship between him and his wife on the one hand and the husband on the other hand. There have been very positive interchanges between the husband and the maternal grandparents involving the child in the past. On all present indications that situation is likely to continue.
In all the circumstances, in my view, the best interests of the child require that her mother be permitted to relocate her residence to the US on the basis that appropriate orders will be drawn to facilitate the child’s relationship with her father in those circumstances.

Spending Time

The arrangements I propose for the child to spend time with her father take into account the views and recommendations of Dr H, particularly about how much overnight time between the child and her father would be appropriate. Dr H said that ideally, it would be helpful to the child to delay the relocation until she was spending say three or four nights away from her mother so that time with her father in the US could be quickly built up to a week. Dr H thought that once the child was 5 years of age, having a week’s holiday with her father should not be an ordeal. I had the sense from Dr H’s evidence that the current arrangement for the child to be spending two overnight occasions per month with her father was well short of what would be appropriate.
Taking all of this into account I have decided to delay the relocation for a few months to provide the child with appropriate opportunity to spend more overnight time with her father particularly taking account of the orders he has sought.

Injunction

As indicated above the husband also sought an order to the effect that the wife be restrained from causing the child to undergo any invasive medical tests without his written consent.
This matter was not the subject of specific submission and there was no discussion about how, in the event that the wife was permitted to relocate the child’s residence to the US, such an injunction would operate. In all the circumstances I do not propose to put such an injunction in place.
But it is the case that both parents will have equal parental responsibility for the child. This will require that in the event that the wife considers it appropriate to present the child to a medical specialist, unless this was to occur in the context of an emergency, she would be obliged to consult the husband and any such decision would have to be made by the parties jointly. As a matter of law, the wife is not free simply to make a unilateral decision about a matter of such seriousness concerning the child’s medical treatment.

PROPERTY

Applications

The orders sought by the husband in the property proceedings are to the following effect:
·That within 21 days the husband do all things and sign all documents necessary to transfer to the wife his interest in the Subaru motor vehicle registered number … and that the wife indemnify him in respect of actions or proceedings that might arise from the husband’s interest in that vehicle;
·That the parties be declared the owners respectively of all other property and superannuation in their possession and/or control and be solely responsible for any liabilities in their name;
On the other hand the wife seeks orders to the following effect
·That the husband pay to the wife by way of property settlement the sum of $250 000;
·That pending the above payment the husband continue to pay the wife $500 per week spousal maintenance;
·That the sum of $126 000 paid to the wife be characterised as spousal maintenance;
·That the husband continue to pay child support in the sum of $334 each week or in accordance with the child support assessment from time to time;
·That otherwise each party be declared sole owner of all other property in their possession and/or control respectively; and
·That the husband indemnify the wife in relation to all liabilities in his name and of his company C Pty Limited.

Additional Background in Relation to Property

At the time the parties commenced cohabiting, the husband’s property consisted of his interest in his company, C Pty Limited, a farm, two motor vehicles, a quad bike, a boat, shares, superannuation, monies in accounts, furniture and personal effects. This had a value of approximately $822 056.
The husband had credit card liabilities of almost $12 000. He asserts that he had a liability of $575 904 to a company U Pty Limited. This is in issue and I shall refer to it again below.
The husband was the sole owner of C Pty Limited. This was the vehicle through which he had been operating his consulting business for 10 years. Its assets comprised shares and investments, monies in accounts and some computer equipment. These assets had a value of approximately $505 789.
At the time the parties commenced cohabiting the wife’s property consisted of shares, superannuation, savings and jewellery with a value of approximately $188 824. She had a liability for a university loan of $7543.
As indicated above, within a couple of months of the wife coming to Australia the parties moved into a rented home at Suburb B.
The wife has not undertaken paid work in Australia. The husband continued to work in his business as a consultant.
Shortly after the parties separated in July 2010, the husband cancelled the credit cards he had been making available to the wife. The wife asked the husband for some financial support and he deposited $1000 into her bank account.
The wife commenced to use money from her retirement funds to support herself and the child. She and the child moved into a rented apartment at Suburb G in August 2010, as I have said. The wife paid the costs of this.
In August 2010 the husband commenced to pay the wife voluntary child support of $250 per week.
At this time the husband also provided the wife with $5000 being the first of three payments totalling $25 000. The other two payments were $10 000 each in September 2010. It was agreed that the parties would ask the Court to determine the character of these payments.
In October 2010 the wife applied for child support. The husband’s liability was assessed at $160.98 per week. The wife applied for Centrelink benefits but was informed that, because of her visa status, she was not eligible until she had used all of her retirement funds in the US. The wife’s advice turned out to be wrong and she was eligible, ultimately, to re-apply for Centrelink benefits which she did.
The wife sought a child support review. In December 2010 the Child Support Registrar issued a new assessment which required the husband to pay child support at the annual rate of $17 951 for the period from 19 October 2010 to 31 December 2011. This was a weekly amount of approximately $345.
In November 2010 consent orders were made under which the husband was to provide to the wife $100 000 with the trial judge to determine the character of this payment.
The husband paid these funds to the wife by five payments of $20 000 each during November 2010. The husband borrowed this money from his father.
In December 2011 the wife filed an application in this Court for an order that the husband pay to her the sum of $1450 per week by way of spouse maintenance.
In late December 2011 the wife commenced to receive benefits from Centrelink backdated to 29 November 2011. The current weekly amount received by the wife from these benefits is $434.
In early February 2012 the wife borrowed $10 000 from her father.
On 8 February 2012 this Court ordered that the husband pay to the wife $500 per week by way of spouse maintenance.
In July 2012 the wife borrowed a further $20 000 from her father.

The Applicable Law

Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

Sub-section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).
The operation of s 79 was the subject of consideration by the High Court in the recent case of Stanford v Stanford (2012) FLC 93-518.
In Stanford the majority said (at page 86,640) in referring to ss 79(2) and 79(4) as follows:
35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
The High Court went on to say that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second of the propositions is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.
And the High Court went on to say (at page 86,642) as follows:
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

There were two significant issues in relation to the determination of the parties’ legal and equitable interests in property.
The first was what finding the Court should make about the advancement of $126 000 by the husband to the wife. The second was whether the Court can accept an assertion by the husband that he has a $551 551 liability to his friend Mr P.
In relation to the $126 000 advancement, as indicated above, shortly after the parties separated, the husband deposited $1000 into the wife’s bank account. He subsequently made the three payments to the wife which came to the total of $25 000 referred to above. Then in November 2010, he paid the wife the five payments which came to the total of $100 000. It was common ground that these monies were made available to the wife on the basis that the parties would leave it to the Court to determine how such payments should be characterised. I understand this to mean that the Court would determine whether the advances were paid as spouse maintenance or by way of interim property settlement.
At the time the parties separated, the husband was working in his business and the wife was not occupied in income-producing work. This had been the situation since she arrived in Australia following the parties’ marriage. The wife was pregnant and she became the primary parent of the parties’ child L. Prior to the parties’ separation the husband had been suggesting to the wife that she should seek employment, notwithstanding the very young age of the child. In any event, the wife chose not to seek employment because she wanted to care for the child full time.
After separation, the wife found herself in the situation where she no longer had the facility of the credit cards which the husband had previously provided, yet she needed to pay her rent and the household costs of herself and the child. The husband initially paid the $250 per week child support as indicated above, but this would have left the wife a long way short of what was required to pay her expenses. So the wife started to use her retirement savings and then sought assistance from family and other sources.
Should the $126 000 payments be characterised as spouse maintenance?
Section 72 of the Act provides to the effect that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support himself or herself for one of the reasons specified in the section. Amongst the reasons specified are by reason of having the care and control of a child of the marriage and because of physical or mental incapacity for appropriate gainful employment. In my view, clearly the wife has satisfied this threshold requirement. She was the primary parent of the parties’ very young daughter. And she has been manifesting a serious mental health disorder as referred to earlier in these reasons.
In my view, the question therefore becomes, was the husband reasonably able to pay support. I am not sure what the husband’s income was, precisely, during the relevant period. In his affidavit he said that his income for the 2010 financial year was $86 469 and that he anticipated earning a similar amount in the 2011 financial year.
In his financial statement sworn on 21 November 2012 the husband estimated his weekly income as having been $1300 which would be an annual income of $67 600.
In my view, income at these levels would have been far from sufficient to have been able to fund two separate households adequately. The husband had his own significant costs including for rent and household expenses. No doubt this was why the husband had to borrow funds from his father. And also why the wife had to start using her retirement funds of which she has spent in excess of $54 000, although the major part of this has been spent on her legal costs.
The wife’s level of expenditure has been quite high. She estimated that she spent approximately $228 038 from the date of separation (July 2010) to late November 2011. Of this amount, $112 364 was spent on legal fees. If I removed from this expenditure the legal fees and the costs of the furniture and household items to set up the Suburb G apartment, because the wife would be expected to retain the latter, this would leave the wife’s expenditure for the period as having been $104 189. This appears to me to be a rather high level of expenditure bearing in mind the parties’ means. But I note that it includes $9387 spent by the wife on medical, dental, psychological, chiropractic and optical costs for herself and the child. This seems to be quite high.
As I have said, neither party had the income to fund expenditure at this level. I have come to the view that it would be unfair to the husband to attribute the whole of the $126 000 as being for spouse maintenance. But I also think it would be unfair to the wife to regard the whole amount as being an interim property settlement.
The relevant matters under the provisions of s 75(2) of the Act, so far as they relate to the maintenance aspect of this during the relevant period, are the fact that the wife was caring for the child, her health was poor, the husband’s property and financial resources were considerably stronger than those of the wife, the wife had contributed to the husband’s income and earning capacity by caring for the child and the fact that the marriage had affected the wife’s earning capacity because she had left her employment in the US to settle in Australia with the husband.
Having regard to these matters, and the matters referred to above, in my view, only part of the $126 000 should be attributed as having been for spouse maintenance. Doing the best I can in these difficult circumstances, I propose to regard one half of this amount ($63 000) as being by way of interim property settlement. This shall be added back to the property but also be regarded as having been received by the wife.
I now turn to consider the husband’s assertion that he has a liability to his friend Mr P of $551 551.
The husband said that when he and the wife commenced their relationship his company C Pty Limited owed a debt of $551 551 to his friend Mr P who traded through a company U Pty Limited. Mr P’s company was a provider of business services. The husband said that he (the husband) was the head contractor with V Limited and that U Pty Limited was his sub-contractor. The husband also said that he collected the money for work performed by Mr P from V Limited and, rather than paying the money to Mr P, invested it for him in accordance with his instructions.
The husband said that in approximately 2004 he and Mr P had a conversation in which Mr P asked him to invest the money due to him from V Limited and Company W because the husband knew more about investments than did Mr P. The husband said that he agreed to do this.
The husband also said that in mid-2008 his accountant advised him to reduce his trade creditors account because it was too large. He said that he then informed Mr P that the accountant advised him to cause the company to assign the debt to the husband personally and he asked Mr P whether he would agree with this. The husband said that Mr P agreed and that he subsequently assigned the debt from C Pty Limited to himself. He said that this was evidenced by a document signed by him dated 1 July 2008 headed “Deed of Assignment”, a copy of which was Annexure L to the husband’s affidavit.
The husband said that several months later the stock market crashed and Mr P informed the husband that he could repay Mr P once the markets recovered, with which course he agreed. The husband also annexed to his affidavit copies of what he said were tax invoices from C Pty Limited to V Limited and Company W for work said to have been performed by Mr P as consultant with respect to the period from 23 January 2004 to 18 July 2008.
Mr P said that he has known the husband for 20 years and that they have worked together on many occasions. He said that V Limited and Company W were the clients of two companies owned solely by him, both called U Pty Limited. He said that to his knowledge the husband has never undertaken any work for V Limited or Company W.
Mr P said that he and the husband thought it would be good for the husband’s company to become known to the U Pty Limited clients so that they “could eventually up-sell from [business services] consulting work into management consulting work”. He said that therefore he and the husband entered into an agreement for C Pty Limited to issue invoices and collect payments from the U Pty Limited clients on its behalf for the services rendered by Mr P.
Mr P also confirmed the husband’s assertion that in 2004 he asked the husband to invest the monies earned by Mr P’s company from V Limited and Company W because the husband knew more about investing than he did.
Mr P annexed to his affidavit copies of St George Bank statements for the account of the husband’s company C Pty Limited which included details of various deposits from V Limited and Company W. These came to a total of $557 051. Mr P said that on two occasions a Mr X assisted him with the V Limited project and that he understood that C Pty Limited paid Mr X $5500 directly. He said that the remaining billings of $551 551 ($557 051 - $5500 = $551 551) were for business services provided by his companies.
Mr P also said that C Pty Limited invested these monies on his behalf on the stock market either directly or through its Vanguard investment fund.
Mr P confirmed the husband’s assertion that they had a conversation in 2008 during which the husband said that his accountant had advised him to assign C Pty Limited’s debt to the husband personally and that Mr P had agreed to this.
Mr P said that both his U Pty Limited corporations had been deregistered, one in June 2007 and the other in November 2009. He said that prior to deregistration of each, he transferred to himself the asset represented by the loan between U Pty Limited and C Pty Limited.
Mr P also confirmed the husband’s assertion that they had a conversation in November or December 2008 about the stockmarket having crashed and agreed that they would wait until it recovered before the husband would pay Mr P the money allegedly owing to him.
In my view, the husband bears the onus of establishing, on the balance of probabilities, that it is more probable than not that he owes Mr P the sum of $551 551.
The matters which tend to support the husband’s assertions in this regard are as follows. Both the husband and Mr P assert that this money is owed by the husband to Mr P. The invoices and bank statements referred to above lend support to the assertions that monies were paid by V Limited and Company W to C Pty Limited. In addition, the balance sheet for C Pty Limited for the financial year ending 30 June 2007 showed a current liability to U Pty Limited for $522 376. The balance sheet for the following year did not include any such liability. This appears to be consistent with the husband saying that C Pty Limited assigned the liability to the husband as a personal liability.
As against these matters, C Pty Limited has never paid tax on these funds. Neither of the U Pty Limited corporations ever raised an invoice to C Pty Limited. When Mr P was asked during cross-examination for an explanation for this, he said that he never got around to it. He said that initially the money was being invested, then there was a downturn in the stockmarket and he subsequently had an accident “that took [him] out for years.”
Mr P said that he had no idea how much of his money remained with C Pty Limited nor how much of the money invested on his behalf declined during the Global Financial Crisis. He was unable also to say whether dividends had been received by C Pty Limited in his investments. Mr P also said that he had never received any form of report from C Pty Limited about the investments said to have been made on his behalf.
Somewhat surprising in my view, against such a long background of not taking any interest in his money, approximately the week before the commencement of this hearing Mr P gave the husband an invoice for $551 000.
As indicated above, having observed Mr P during cross-examination about these matters, I have reservations about the reliability of his evidence.
Clearly, the sum of $551 551 is a substantial amount. On the account of the husband and Mr P, Mr P appears to have taken a rather relaxed, even cavalier attitude towards money which he asserts is his. There has been no explanation given to the Court about the financial circumstances of Mr P and particularly, how he could afford to undertake the work the subject of the tax invoices without actually receiving in hand any benefit therefor.
I suspect there is probably more relevant information about this matter and the financial relationship between the husband and Mr P than the Court has been favoured with.
I cannot rule out the possibility that the husband’s assertions about the liability to Mr P are correct. But as I have said, the husband bears the onus of proof about this and he has not persuaded me that this Court should take into account in these proceedings, any such liability.
In all these circumstances the parties’ interests in property and superannuation consist of the following:-

$

1.         Husband’s property at … Y Street, Town Z

375,000

2.         Husband’s St George Bank account (…18)

10,331

3.         Husband’s ANZ Bank account

633

4.         Husband’s shares in ASX companies

96,388

5.         Husband’s Toyota motor vehicle

4,750

6.         Husband’s company C Pty Limited

453,351

7.         Husband’s household contents

3,467

8.         Husband’s quad bike

2,500

9.         Husband’s loan to Mr P

34,240

10.      Wife’s Bank of America account (…64)

630

11.      Wife’s Bank of America account (…90)

2,320

12.      Wife’s ING Direct bank account

5

13.      Wife’s Westpac Bank account (…41)

21

14.      Wife’s Westpac Bank account (…87)

2,821

15.      Wife’s Westpac Bank account (…33)

2,435

16.      Wife’s Charles Schwab & Co (…88)

29

17.      Wife’s Subaru motor vehicle

15,825

18.      Wife’s home contents

1,500

19.      Add back – wife’s partial property payment

63,000

^{_____________}

$1,069,246

The liabilities are as follows:-

$

1.         Husband’s HSBC Visa credit card

3,290

2.         Husband’s U Pty Limited / Mr P

0

3.         Husband’s loan owed to Mr Hunt Snr

293,371

4.         Husband’s loan owed to Mr N

80,163

5.         Wife’s loan owed to Mr S

178,000

6.         Wife’s outstanding legal fees owed to former solicitors Blanchfield Nicholls

31,957

^{_____________}

$586,781

  Net property

$482,465

The parties also have the following interests in superannuation:

$

1.         Husband’s PLUM Superannuation

215,454

2.         Wife’s Charles Schwab & Co ROTH IRA

41,730

3.         Wife’s Charles Schwab & Co Traditional IRA

28,035

^{_____________}

$285,219

  Net property plus superannuation

$767,684

Contributions

It was submitted on behalf of the husband that this is not a significant contributions case particularly because the period of the parties’ cohabitation was so short. It was submitted on behalf of the husband that in all the circumstances the Court would not assess the wife’s contributions overall as having been higher than 10 percent.
On the other hand it was submitted on behalf of the wife that it would be artificial for the Court to find specific contributions. I infer from this that this would be because the parties’ cohabitation was so short and it was submitted on behalf of the wife that her case is more based on there being a significant adjustment pursuant to the relevant s 75(2) matters rather than significant contributions by her.
I have referred to the property and superannuation of each of the parties at the time that they commenced cohabitation. There is no issue that there was a significant disparity between their respective property and superannuation holdings at that time. Clearly the husband had much more substantial property and superannuation than did the wife. That remains the case.
There is no issue that the overwhelming financial contributions have been made by the husband. After all, he was the only income earner, the wife having given up her employment in the United States to come to Australia to establish her life with the husband in this country.
The husband undertook household tasks including washing up, ironing, lawn mowing and sweeping. Initially he did the gardening but when working in Darwin he engaged a gardener.
The wife paid for most of the wedding costs and for much of the costs of moving to Australia.

On the other hand, there is no issue that the wife made the overwhelming contribution to the family unit comprising herself, the husband and the parties’ daughter L. This was the manner in which the parties arranged their various duties and responsibilities for the benefit of their family. But this is not to say that the husband did not make contributions as homemaker and parent, because clearly he did. Although the wife was somewhat critical of his care of the child, particularly when she was very young, I accept that he did what he could given his primary focus was on earning income for the family. Each of the parties attended to household tasks although I accept that the wife did the majority of the work involved in this regard.
After the parties separated, as indicated above, the wife established her own home in the rented apartment at Suburb G. I have referred to the relevant financial matters during this period above.
I accept the general thrust of the submissions by each learned counsel as referred to above. Each of them gave me the impression that it would be appropriate for the Court to assess the contributions as falling heavily in favour of the husband. As I indicated above learned counsel for the husband submitted that the Court’s finding overall should be no higher than 10 percent contributions by the wife. I accept this submission.
In my view the contributions overall have been 90 percent by the husband and 10 percent by the wife.

s 75(2) matters

The husband is 45 years of age and in reasonable health, although he has suffered from some depression. This appears to have been managed well by medication. He works in his consulting business. As indicated above, he estimated his current income as being $1300 per week. This appears to me to be somewhat lower than he had been earning previously. In any event, on present indications one would be confident that he will be able to continue to earn income at this or higher level for the foreseeable future.
I have referred to the property of the parties.
Under the parenting orders I propose the husband will have the burden and expense of having to travel to the US on several occasions each year in order to further develop his relationship with the parties’ daughter L. This is a significant matter.
On the other hand the wife is 44 years of age and currently in poor health suffering the mental health disorder referred to above. As also indicated above, the expert medical evidence is that on the basis that she would be permitted to relocate her residence and that of the parties’ child to the US, the Court could have considerable confidence that her health would improve. On the basis of the evidence by the experts, together with the wife’s evidence, I would expect that the wife will be able to manage her medical condition in the US and be able to re-establish herself in appropriate employment. As indicated above, the wife has a postgraduate qualification in business. Prior to moving to Australia she was employed as a manager in the finance industry in San Francisco. Shortly before moving to Australia she was endeavouring to negotiate employment for a position with Company AA based near San Francisco for a salary of US$150 000 per annum plus bonuses and benefits.
Under the orders that I propose, the wife will be the primary parent of the child. This will involve her in providing for the entirety of the child’s care apart from the periods each year when the husband will be able to travel to the US in order to parent the child.
As indicated above the period of the parties’ cohabitation was short, being approximately two years, but it has affected the wife’s earning capacity. Whereas the husband has continued earning income in his business as a consultant, the wife interrupted her career in order to come to Australia to make a life with the husband in Australia. So she has a gap in her employment history which she will need to bridge by finding the confidence to apply for suitable positions of employment. She might well need to upgrade her skills and update her knowledge in her area of expertise.
It is not clear to me what child support will be available to the wife. But the husband has continued to pay child support and there is no reason to think that he will not continue to do this at an appropriate level, particularly given his obvious commitment to the child.
In my view the s 75(2) matters which favour the wife are the fact that she does not have as high a capacity for earning income as does the husband, the fact that she will be providing the major care for the child, the fact that the marriage has affected her earning capacity and the fact that, based on contributions, the husband will be enjoying a much higher amount of the available property than she will be.
As against these matters, the court must weigh the fact that the husband will have significant costs of travel, accommodation and living costs in relation to his periods of travel to the US to spend time with, and care for, the child.
I note that the Full Court of this Court said in the case of Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 at FLC page 81,911 as follows:
There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.
In all these circumstances, in my view, to achieve an appropriate order there should be a set off of 10 percent of the available property and superannuation in favour of the wife.
A 10 percent adjustment of the available property and superannuation in this case would be a differential of $153 537 in a pool of assets with the value of $767 684. In my view this would be an appropriate adjustment bearing in mind also the fact that the husband will have to bear significant cost in travelling to the US to spend time with the child.

Sub-Section 79(2)

In Stanford the High Court majority also said the following (at page 86,642):
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order.
In my view, this is the situation in the present case.
I am satisfied that it is just and equitable to make an order which will alter the interests of the parties in their property because not to do so would leave the wife in a most unfair position. This is particularly because she left well-paid employment in the US for the common purpose of living with the husband in Australia, she has been unable to earn income here with the consequence that not only has she had to pay living costs from her retirement funds, but she has also had to borrow significant money from her father. She has also sustained substantial legal costs in these proceedings.

Conclusion

The husband is to have 80 percent of the property and superannuation available for division between the parties. This is property and superannuation with a value of $614 147 (80 percent of $767 684 = $614 147).
The husband has the following property and superannuation:

$

1.         Property at … Y Street, Town Z

375,000

2.         St George Bank account (…18)

10,331

3.         ANZ Bank account

633

4.         Shares in ASX companies

96,388

5.         Toyota motor vehicle

4,750

6.         Company C Pty Limited

453,351

7.         Household contents

3,467

8.         Quad bike

2,500

9.         Loan to Mr P

34,240

10.      Plum superannuation

215,454

^{_____________}

$1,196,114

But he also has the following liabilities:

$

1.         HSBC Visa credit card

3,290

2.         Loan from Mr Hunt Snr

293,371

3.         Loan from Mr N

80,163

^___________

$376,824

  Net property and superannuation

$819,290

For the husband to have property and superannuation with a value of $614 147 he would have to pay the wife the sum of $205 143 ($819 290 - $614 147 = $205 143).
On the other hand, the wife is to have 20 percent of the assets which is property and superannuation with a value of $153 537 (20 percent of $767 684 = $153 537).
The wife has the following property and superannuation:

$

1.         Bank of America account (…64)

630

2.         Bank of America account (…90)

2,320

3.         ING Direct bank account

5

4.         Westpac Bank account (…41)

21

5.         Westpac Bank account (…87)

2,821

6.         Westpac Bank account (…33)

2,435

7.         Charles Schwab & Co (…88)

29

8.         Subaru motor vehicle

15,825

9.         Home contents

1,500

10.      Partial property payment (add back)

63,000

11.      Charles Schwab & Co ROTH IRA

41,730

12.      Charles Schwab & Co Traditional IRA

28,035

^{_____________}

$158,351

But the wife has the following liabilities:

$

1. Loan from Mr S

178,000

2. Outstanding legal fees to former solicitors

31,957

^{_____________}

$209,957

Accordingly, the wife has a deficiency of $51 606 ($158 351 - $209 957 =

-$51 606).
To achieve property and superannuation with a value of $153 537, the wife will require further property with a value of $205 143 ($153 537 + $51 606 = $205 143). This amount will be payable to her by the husband.
The wife, upon payment of this amount by the husband, will be able to clear most of her liabilities to her former solicitors and to her father. It will be necessary for her to obtain employment upon her return to the US as a matter of priority in order to provide for herself and the child.
On the other hand, the husband will have to sell assets or borrow money in order to be in a position to make the required payment to the wife. It might be necessary for him to sell his farm. But he should be able to retain his business assets and his superannuation.
Unfortunately, each of the parties will be in the position of having less assets than at the time they commenced cohabiting. This is a consequence of them having taken on the responsibility of parenthood with its considerable financial consequences and, unfortunately, the substantial legal costs in these proceedings.
In all the circumstances, in my view, the orders I propose will be just and equitable within the meaning of the legislation.

Child Support

As indicated above, the wife also sought the following order:
That the husband continue to pay child support in the sum of $334 each week or at the assessed amount issued by the Child Support Agency from time to time.
In my view, there is no basis for any such order. The Court was not addressed on this. The evidence is that the husband has been paying child support in accordance with the assessments.

I certify that the preceding two hundred and eighty-five (285) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 June 2013.

Associate:

Date: 13 June 2013

[2013] FamCA 442

13 June 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Costs

Statutory Construction

$
1. Husband’s property at … Y Street, Town Z	375,000
2. Husband’s St George Bank account (…18)	10,331
3. Husband’s ANZ Bank account	633
4. Husband’s shares in ASX companies	96,388
5. Husband’s Toyota motor vehicle	4,750
6. Husband’s company C Pty Limited	453,351
7. Husband’s household contents	3,467
8. Husband’s quad bike	2,500
9. Husband’s loan to Mr P	34,240
10. Wife’s Bank of America account (…64)	630
11. Wife’s Bank of America account (…90)	2,320
12. Wife’s ING Direct bank account	5
13. Wife’s Westpac Bank account (…41)	21
14. Wife’s Westpac Bank account (…87)	2,821
15. Wife’s Westpac Bank account (…33)	2,435
16. Wife’s Charles Schwab & Co (…88)	29
17. Wife’s Subaru motor vehicle	15,825
18. Wife’s home contents	1,500
19. Add back – wife’s partial property payment	63,000
^{_____________}
$1,069,246

$
1. Husband’s HSBC Visa credit card	3,290
2. Husband’s U Pty Limited / Mr P	0
3. Husband’s loan owed to Mr Hunt Snr	293,371
4. Husband’s loan owed to Mr N	80,163
5. Wife’s loan owed to Mr S	178,000
6. Wife’s outstanding legal fees owed to former solicitors Blanchfield Nicholls	31,957
^{_____________}
$586,781
Net property	$482,465

$
1. Husband’s PLUM Superannuation	215,454
2. Wife’s Charles Schwab & Co ROTH IRA	41,730
3. Wife’s Charles Schwab & Co Traditional IRA	28,035
^{_____________}
$285,219
Net property plus superannuation	$767,684

$
1. Property at … Y Street, Town Z	375,000
2. St George Bank account (…18)	10,331
3. ANZ Bank account	633
4. Shares in ASX companies	96,388
5. Toyota motor vehicle	4,750
6. Company C Pty Limited	453,351
7. Household contents	3,467
8. Quad bike	2,500
9. Loan to Mr P	34,240
10. Plum superannuation	215,454
^{_____________}
$1,196,114

$
1. HSBC Visa credit card	3,290
2. Loan from Mr Hunt Snr	293,371
3. Loan from Mr N	80,163
^___________
$376,824
Net property and superannuation	$819,290

$
1. Bank of America account (…64)	630
2. Bank of America account (…90)	2,320
3. ING Direct bank account	5
4. Westpac Bank account (…41)	21
5. Westpac Bank account (…87)	2,821
6. Westpac Bank account (…33)	2,435
7. Charles Schwab & Co (…88)	29
8. Subaru motor vehicle	15,825
9. Home contents	1,500
10. Partial property payment (add back)	63,000
11. Charles Schwab & Co ROTH IRA	41,730
12. Charles Schwab & Co Traditional IRA	28,035
^{_____________}
$158,351

$
1. Loan from Mr S	178,000
2. Outstanding legal fees to former solicitors	31,957
^{_____________}
$209,957