GOODE & SHAND

[2019] FamCA 645

FAMILY COURT OF AUSTRALIA

GOODE & SHAND [2019] FamCA 645

FAMILY LAW – RELOCATION – Where both parents are from the United Kingdom – Where the parents relocated to Australia in 2009 for the father’s employment – Where the move was intended to be temporary – Where the parties separated in 2016 – Where the parties continued to plan a return to the United Kingdom as a separated family – Where the father revoked his consent to relocate in December 2017 – Where the mother seeks to relocate to the United Kingdom – Where the mother is the undisputed primary carer, and would remain so if parties were to remain in Australia – Where the mother has no family or support networks in Australia – Where the parents have a good co-parenting relationship – Where a return to the United Kingdom would be in the best interests of the children – Where the children could maintain a meaningful relationship with the father from the United Kingdom – Orders made allowing relocation after May 2020 – Orders made for interim parenting arrangements.

FAMILY LAW – PROPERTY – Where the parties have property in Australia and the United Kingdom – Where the father has a significant pension entitlement in the United Kingdom – Where the father made substantial initial contributions – Where contributions after co-habitation are assessed as equal – Where contributions are assessed as 57.5 per cent to the father, and 42.5 per cent to the mother – Where an adjustment of 25 per cent is made to the mother under s90SF of the Family Law Act1975 (Cth) – Order for the mother to receive 67.5 per cent.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 90SM, 90ST, 90SF

AMS v AIF [1999] 199 CLR 160

Chorn & Hopkins (2004) FLC 93-204

McCall & Clarke [2009] FamCAFC 92

U & U [2002] 211 CLR 238

APPLICANT: Ms Goode

RESPONDENT: Mr Shand

FILE NUMBER: SYC 439 of 2018

DATE DELIVERED: 11 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 7, 8 & 9 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie SC

SOLICITOR FOR THE APPLICANT: Fox & Staniland Lawyers

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Slat Family Lawyers

Orders

IT IS ORDERED

PARENTING

1. That the parents have equal shared parental responsibility for the children X born … 2008; Y born … 2010; and Z born … 2014.

2. That the mother be permitted to remove the children from Australia after 1 May 2020 and to live with them in the United Kingdom.

3. That while the children remain living in Australia, they live with the father as follows:

   (a)      Each Wednesday afternoon from 2.30pm until Thursday morning.

   (b)Each alternate weekend from after school on Friday until Monday morning.

   (c)For half of the September/October school holidays and, in the absence of agreement, the first half commencing on the day after the last day of school and ending at 5pm on the day which is the half way point between the first day of the holiday and the last day of the holiday.

   (d)For half of the Christmas school holidays at the end on 2019 and, in the absence of agreement, in block periods of one week commencing on the day after the last day of school in Term 4, such that the children are with the father in the week which includes Christmas Day and that they spend time with the mother from noon on Christmas Day until 7pm on 26 December.

   (e)For half of the April school holidays and, in the absence of agreement, the first half commencing on the day after the last day of school and ending at 5pm on the day which is the half way point between the first day of the holiday and the last day of the holiday.

4. That the children have FaceTime or Skype communication with the non-resident parent on alternate days.

5. That when the children live in the United Kingdom, they spend time with the father as agreed between the parents and, in the absence of agreement:

   (a)       For four weeks in the children’s long school holidays.

   (b)For the entirety of either the April or October short school holidays with such dates to be nominated by the father to take place at a destination agreed by the mother provided the father provides 90 days written notice.

   (c)In alternate years for one week during the Christmas school holidays, to include Christmas Day, that time to be spent in the United Kingdom.

   (d)By FaceTime or Skype at any reasonable time but not less than on alternate days.

6. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

PROPERTY

1. That within three months of the date of these Orders the respondent pay to the applicant the sum of $1,245,740.

2. That upon receipt of the sum referred to in Order 7, the applicant shall do all things required to transfer to the respondent her interest in the property at B Street, Suburb C and the respondent shall indemnify the applicant in relation to any encumbrances and outgoing relevant to the said property.

3. That the respondent forthwith do all things necessary to transfer to the applicant his interest in the property at D Street, Town E in the United Kingdom and that the applicant indemnify the respondent in relation to any encumbrances and outgoings relevant to the said property.

4. That the respondent forthwith do all things necessary to transfer to the applicant his interest in the joint bank accounts being the Commonwealth Bank of Australia account #...50 and the RR Bank savings account.

5. That in the event that the respondent has not paid to the applicant the whole of the amount in Order 7 by the due date, the parties shall do all things required to sell the property at B Street, Suburb C and to pay to the wife the sum referred to in Order 7 together with interest calculated in accordance with the Family Law Rules from the due date until the date of payment.

6. That other than as provided in these Orders, each party is solely entitled to the property in her or his possession at the date of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 439 of 2018

Ms Goode

Applicant

And

Mr Shand

Respondent

REASONS FOR JUDGMENT

1. Ms Goode (“the mother”) and Mr Shand (“the father”) are the parents of three children, X born in 2008 and now aged 11 years; Y born in 2010 and now aged nine years and Z born in 2014 and now aged five  years.

2. The proceedings before the Court relate both to the parenting of the children (and the mother’s application to return with the children to the United Kingdom) and to the division of their property.

3. Both of the parents were born in the United Kingdom.

4. In June 1998 the father purchased a property in County A for £72,000 ($130,000) with the assistance of a mortgage.

5. The parties commenced their co-habitation in the United Kingdom in either 2000 as asserted by the mother or 2001 as asserted by the father. The state of the evidence does not allow a determination of that issue. They have both, on occasions, adopted both dates as the commencement of their co-habitation.

6. At the commencement of the co-habitation, the mother asserts she had savings of £10,000, pension entitlements of £1,000, a car and furniture.

7. The father had significant assets. He relies on a historical valuation of the County A property in valuing his net assets at $450,593. He also had a car and an interest in a pension fund.

8. Both parties took a break from employment to travel together for a year from August 2005.

9. They then returned to the United Kingdom and resumed their careers.

10. In September 2006 the mother purchased, with her sister, a property in Town F for £214,000 with a mortgage of £179,884. The parties lived in the Town F property with the mother’s sister who paid half of the outgoings.

11. In February 2007, the parties purchased a holiday home in Town E for £207,000 or £209,000 with a mortgage of £169,000.

12. In May 2008 the mother commenced maternity leave and later in 2008 was born. The mother did not recommence paid full time employment after X’s birth.

13. In June 2008, the mother’s sister sold her interest in the Town F property to the parties for £14,000.

14. In March 2009, the father relocated to Sydney to commence work with his current employer, Company H. The parent company of Company H is Company J, a company which is registered in European City K and operates, inter alia, a business in the United Kingdom similar to the business operated in Australia by Company H. 

15. The mother asserts that when the parties agreed to move to Australia, they also agreed that the move was not to be permanent. They also agreed that they would remain in Australia for the term of the father’s four year contract. Whilst the father does not contradict the evidence of the mother in that respect, it seemed from his evidence that he was less committed than was the mother to an eventual return to the United Kingdom.

16. The mother remained in Town F and arranged for the house to be rented. She and X travelled to Sydney in mid-2009. In Sydney the parties have lived in various rented houses.

17. Y was born in 2010.

18. In September 2011, until 16 November, the mother and the children holidayed with family in the United Kingdom.

19. In January 2012, the mother returned to work on a part-time basis.

20. In July 2012, the mother and the children holidayed with family in the United  Kingdom until 20 August.

21. In 2013, the father purchased 2,860 shares in the Company J 2013 Executive Share Plan.

22. The mother and the children returned again to the United Kingdom in December 2013 for about four weeks.

23. In February 2014, when the mother was pregnant with Z, her close friend Ms L who lives in City CC in the United Kingdom, came to Australia and lived with the family until September, helping with the care of X and Y before and after Z was born in 2014. Ms L moved to her own accommodation in September 2014 but remained close to the family until she returned to live in City CC in July 2017.

24. The father was promoted to a higher position at Company H and purchased further shares in the Company J Executive Share Plan in 2014.

25. Also in May 2014, the parties purchased a property at Suburb C for $1,230,000. The Town F property was sold and the proceeds used for the purchase. The parties paid a deposit of $246,000 from savings and the proceeds of the sale of Town F. They borrowed $984,000.

26. The mother returned to part-time employment in April 2015.

27. In early 2016 the mother began talking to the father about returning to the United  Kingdom.

28. The parties separated in March 2016. The mother and the children remained in the Suburb C home and the father came to see the children on Saturdays.

29. The parties agreed that the mother and the children would return to the United  Kingdom at the end of 2017. There is no doubt that the father told the mother that they would return and live as a separated family in the United Kingdom.

30. The father moved in to live in a home owned by his current partner, and then close friend, Ms M. He did not tell the mother he was living with Ms M. He told her, falsely, that he was living in a shared house in Suburb N. He had no suitable accommodation in which to have the children overnight. He did not tell Ms M that he had agreed with the mother to return to the United  Kingdom.

31. The father travelled to the United Kingdom alone in May 2016 and September  2016.

32. In September 2016, the father moved to rented accommodation in Suburb O. Immediately, he commenced having the older two children overnight for one night each fortnight and having Z for day time periods away from the mother.

33. In October 2016, the father refused to allow the mother to take the children to the United Kingdom to visit her uncle who was ill. She did not go.

34. In early 2017 they attended mediation to discuss the mechanics of the relocation. The mother began to make arrangements in relation to the children’s schooling in the United Kingdom.

35. In May 2017 the father travelled to the United Kingdom.

36. In June 2017, he told the mother that he would not be prepared to return to the United Kingdom until the end of April 2019.

37. On 9 August 2017, the father confirmed by email his agreement that the mother and the children could return, subject to their reaching agreement about the parenting arrangements.

38. In August 2017, Z was referred to a speech pathologist for therapy in relation to a stutter and delayed speech. He commenced a program of therapy known as the … Program. The mother worked with Z under the supervision of his therapist to remediate the stutter.  

39. The mother and the children, and the father separately, holidayed in the United Kingdom over the Christmas period at the end of 2017. They spent time with the paternal grandparents.

40. In December 2017, the father told the mother that he did not agree to the relocation at all.

41. The mother filed an application in the Family Court in relation to parenting, including relocation, on 28 January 2018. The father, in his response, sought orders for time with the children on Tuesday nights and alternate weekends commencing on Friday after school, Thursday night in the intervening week, and for less than half of the school holidays. The orders he sought were modified at trial.

42. In February 2018, the father travelled to the United Kingdom.

43. In 2018, the wife’s uncle died and the wife was left about £60,000 of which she has received £20,000 which she estimates to be $35,031.

44. In July 2018, the mother asked to father to allow her to take the children to City P on a work trip, which would allow her and the children to see extended family in the United Kingdom. He refused.

45. In January 2019, the mother asked the father to allow her and the children to travel to the United Kingdom in July 2019. He refused. She asked again in February 2019. He refused. In March 2019 she asked again, confirming that the trip would be confined to the school holiday period. The father did not respond. The mother abandoned her plan.

46. At the time of the hearing, the children were spending time with the father on alternate weekends and on Wednesday overnight in the intervening week.

ISSUES

1. From the narrative above and in the course of the trial, the following issues emerged:

   ·What was the understanding of each of the parties about return to the United Kingdom?

   ·Has the father unreasonably restricted the mother’s ability to travel to the United Kingdom with the children?

   ·What will be the effect on the mother if she is not permitted to relocate?

   ·What reasons are given by the father for his decision to remain in Australia?

   ·What has been the effect on the mother’s prospects of furthering her career?

   ·How should the father’s pension entitlements in the United Kingdom be treated?

   ·How should the father’s interest in the Company J Management Reward Plan (“the Company J Plan”) be treated?

PARENTING

1. The parents agree that they should have equal shared parental responsibility for the children.

2. The mother seeks orders permitting her to relocate with the children to the United  Kingdom after 1 May 2020.

3. The father has deposed that he will remain in Australia if the mother and the children return to the United Kingdom.

4. The mother proposes a regime of time with the father in the United Kingdom which mirrors that proposed by him in the event of their return. The children would spend an extended period of four weeks with the father during their summer holidays, two shorter periods during other school holidays and time at Christmas. The mother proposes that the shorter periods should occur in the United Kingdom but the four week period could occur elsewhere.

5. The father seeks orders requiring the children to remain in Australia and for them to spend time with him in Australia, during school terms, on alternate weekends from Friday after school until Tuesday morning and in the intervening week on Monday night until Tuesday morning. He proposes that they spend half of the school holiday periods with him.

The mother’s proposals in the United Kingdom

1. There was no challenge to the reasonableness or the practicability of the mother’s proposed arrangements.

2. She intends to live in City G where she said housing was affordable. She wants to buy a four bedroomed house in reasonable proximity to her sister Ms Q, her brother-in-law and two of the children’s cousins aged ten and six.

3. In City G, the two younger children would attend the same school as their cousins and X would attend the junior school or the local high school depending on the timing of their arrival. The mother would have assistance from her sister in school drop offs and collections.

4. The mother’s aunt and adult cousins live within 20 kilometres of City G.

5. The maternal grandparents live in City CC which is a short distance from City G.

6. The wife’s sister Ms AA lives in Suburb BB.

7. Ms L, the wife’s close friend, who came to Australia and lived with the family when Z was born lives in City CC.

8. The paternal family, consisting of the paternal grandparents, the children’s aunt and uncle and two cousins live in County A about 270 kilometres away from City G.

9. The mother’s current employer may have work opportunities for her in City G. If not, she proposes to find similar work in City G or the City CC area.

10. Although the father gave no evidence about what living arrangements he might make in the United Kingdom, the mother’s suggestions about how he might organise his life were not challenged.

11. She gave evidence about companies located in City G and Town R. The commuting time from London to City G by train is 95 minutes. City CC airport gives access to travel in Europe.

12. The mother deposed:

    [The father’s] company have relocated the Operations Director from [his company] to [a company in the United Kingdom] and the parent company [Company J] are headquartered in the UK. [The father] is a strong leader and has been very successful for Company J. He knows the Executive team and the leaders of the businesses in both mainland Europe and the UK.

13. That evidence was not challenged except that the father said that Company J’s headquarters had been moved to City K. The father, in answer to questions, said that the business run by Company J in the United Kingdom was a similar business to that in which he is employed in Australia.

What reasons are given by the father for his decision to remain in Australia?

1. Significantly, the father does not propose to return to the United Kingdom if the wife and the children are permitted to relocate.

2. In U & U [2002] 211 CLR 238 Gaudron J said, in relation to an application to relocate to India:

   Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.

1. Hayne J said:

   When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.

   It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.

   (footnotes omitted)

2. The father deposed:

   As I established myself separately, commenced living a life on my own terms with the children when I had access I began to consider more than my guilt and trying to limit the pain that [the mother] felt in separation. I discussed the options with my parents in the UK and thought about the future’s ahead. I became clear that the opportunities available for the children in Australia were better and that I would not relocate. In addition, my experience with [the mother] and her inflexibility convinced me that in the UK this would be even more challenging...

3. I am unable to find in the father’s affidavit any other expression of his reasons for refusing to consider moving to the United Kingdom.

4. The father gave no evidence which would allow any understanding of what opportunities were available for the children in Australia that were not available in the United Kingdom.

5. Dr S asked the father about the father’s decision not to return to the United  Kingdom. He reported:

   He said that he and [the mother] had never been completely aligned on the decision to return to the UK. If I understood him correctly, he had always felt there was an option to stay in Australia, where he felt there was greater opportunity. However [the mother] had always been definite that their stay in Australia was temporary.

6. Dr S was asked about his discussions with the father about his intention to remain in Australia. Dr S said the father had “countervailing factors”. When asked whether the father told him what those factors were, he said:

   Not in detail, no.  No.  I mean, it seemed to me that the one of the factors was his career and the – and his relationship seemed to be a sort of a spectral thing.  Yes, I wasn’t quite sure.  It was difficult to find out exactly where you saw that going.  But he certainly didn’t tell me that that relationship was going to be – that he would sacrifice that relationship for going to the UK with the children. 

7. Dr S agreed with the proposition that the factors influencing the father were career and his new relationship.

8. In answer to the proposition that career and relationship were more important to the father than living in proximity to his children, Dr S said:

   Yes.  If it came to that choice, that’s the way – you know, that seemed to be that – what he was presenting to me.

9. In relation to employment that might be available to him in the United Kingdom, the father has made no enquiries. Despite telling the mother he would do so, he has not raised with Company J the possibility of moving into a role in one of the Company J companies.

10. He does not raise any practical difficulties associated with moving to the United  Kingdom.  

What was the understanding of each of the parties about return to the United Kingdom?

1. The mother’s position is clear. She never regarded Australia as her permanent home. The father in cross-examination agreed that was her position, even after they bought a house in Australia.

2. The father’s position is less clear.

3. The mother deposed, in relation to the offer of employment in Sydney and the proposal to move to Australia:

   ...this was a good opportunity. [The father] and I discussed relocating our family to Australia as ‘expats’. X was still a baby and I was currently on maternity leave. After much deliberation between us [the father] and I agreed to relocate to Australia for a period of 2 to 4 years.

4. She deposed:

   I was devastated to be leaving my family and home but [the father’s] job offer was a wonderful opportunity and I thought we would only be in Australia for 2 to 4 years.

5. The parties rented out their three properties in the United Kingdom and left their investments, in shares, pensions and bank accounts, in place in the United  Kingdom.

6. The father’s employment package included annual return flights to the United  Kingdom for the family. In cross-examination, he referred to “expat” terms of employment.

7. They shipped some of their belongings to Australia and left the remainder in the property in Town E.

8. Various emails between the mother and friends and family at the time corroborate her evidence about her distress on leaving the United Kingdom and her belief that the period in Australia was temporary.

9. Dr S stated:

   ...[the father] was offered a senior position with Company H in 2008 and [he] took up the position here in early 2009. [The mother] and X arrived several months later. [The father] was employed on expatriate terms, and I understand the intention was that they would return to the UK at the end of his contract.

10. Later in his report, Dr S stated:

    The parents agree that the plan had been that the family would return to the UK once [the father] had completed his employment contract, and that this agreement had continued after the separation in March 2016. However [the mother] alleges that [the father] unilaterally changed his view, initially delaying his departure till January 2019, and now intending to remain living in Australia on a permanent basis.

11. There is no challenge to the wife’s evidence that she always intended to return to the United Kingdom and has never considered herself settled in Australia.

12. A number of emails to friends attest to her state of mind. In August 2012 she emailed a friend referring to the need to rent Town F “until we get back”. In April 2014, she emailed a friend referring to the purchase of Suburb C stating “I was worried about buying as I didn’t want to feel forced to stay in Oz”.

13. The mother gave evidence that the motivation for applying for permanent residence and then for Australian citizenship was to ensure that all the members of the family had the same rights of residence and citizenship. Z having been born in Australia while his parents were permanent residents, had Australian citizenship and the other children did not.

14. Both of the parents envisaged that, in the event of their deaths, the children would be cared for by the mother’s sister Ms Q in the United Kingdom and they included provisions in their respective wills to that effect.

15. Shortly after separation, the mother raised with the father her wish to return with the children to the United Kingdom. The mother deposed to a conversation where they discussed the proposal. The father conceded that he told the mother that he agreed the family would move back to the United Kingdom and live separately but that it might take him some time to find suitable employment. The mother suggested that he ask his employer to transfer him to one of the businesses in the United Kingdom as had been done for another employee. He agreed to discuss the proposition with his employer. The father agreed in cross-examination that the mother said “OK, but do you promise we can go home in 2017 at the latest?” and he replied “Yes I promise.”

16. On 14 December 2016, the mother, in an email conversation with the father’s sister-in-law, Ms T, wrote, “He’s agreed that we can move back to the Uk [sic] at the end of 2017 but I’m just desperate to come back earlier – having family around is so much better for all of us.”

17. In December 2016, the mother commenced to make arrangements in relation to the children’s schooling in the United Kingdom for 2017. She asked Ms T for assistance. On 17 December, Ms T wrote to the mother suggesting that she needed to investigate school enrolment deadlines for the 2017 school year. The mother also spoke to her sister Ms Q about enrolling the children at U School where Ms Q’s children attend.

18. Throughout 2017, the father held out to the mother that they would all be returning to the United Kingdom.

19. In mid-2017, he told the mother that he was prepared to relocate but not until January 2019.

20. On 9 August 2017, in an email to the mother, he wrote:

    My position is the same as the last time we discussed. I am prepared to relocate but until we work out an agreement on our basic shared parenting responsibility including Z staying overnight I cannot progress to this agreement.

21. In about December 2017, the father told the mother that he no longer agreed to the relocation.

22. From the time of separation in March 2016 until December 2017, the father continually held out to the mother that they would return to the United Kingdom as a separated family. It is reasonable to conclude that he agreed to the return because he accepted that the children’s best interests would be promoted. The only other conclusion is that his promises to the mother were simply mendacious.

23. When that proposition was put to the father in cross-examination, he said “I was unsure, but the words I said were to words you said”.

24. Dr S was cross-examined by senior counsel for the mother about his understanding of the father’s position. The passage is set out below:

    Senior counsel:         Did you just assume he must have thought that it was advantageous to his children?

    Dr S: Well, I think that – I’m not so sure I would – from what he said I would assume that.  I think I would assume from what he told me that he saw a mechanism for quite frequent contact between the children and both sets of grandparents, if they – in Australia because that had been the situation up until then.  I mean, perhaps that’s not what he thought.  But I – my understanding from what he said was that that was what he thought.

    Senior counsel:         Well, it couldn’t have been thought when he was planning to move back?

    Dr S: Mmm?

    Senior counsel:         It couldn’t have been thought at the time he was planning to move back, could it?

    Dr S: Well, presumably not. 

    Senior counsel:         Does that say anything about his commitment to those children;  that he’s not prepared to move if they do?

    Dr S: Yes.  Yes.  It say that he has got countervailing factors.  Where – how – and ‑ ‑ ‑

    Senior counsel:         Did he tell you what they were?

    Dr S: Not in detail, no.  No.  I mean, it seemed to me that one of the factors was his career and the – and his relationship seemed to be a sort of a spectral thing.  Yes, I wasn’t quite sure.  It was difficult to find out exactly where you saw that going.  But he certainly didn’t tell me that that relationship was going to be – that he would sacrifice that relationship for going to the UK with the children. 

    Senior counsel:         Right.  So career and maybe relationship

    Dr S: Yes.

    Senior counsel          Right.  And so – but what does that – you said it says, “Well, he has countervailing considerations”.  But what does it say about him as a parent?

    Dr S: Well, the plan that he outlined to me of seeing the children and keeping in electronic communication with them, and that sort of thing, I think he understood that that was going to curtail his relationship with the children somewhat.  But it’s a more comprehensive plan than other parents have told me under the same circumstances.  So, you know, it’s less – it – how could I say – I mean, I think he quite clearly understood that his relationship with the children was going to be affected, otherwise he wouldn’t have challenged his wife’s – or his ex-wife’s – or ex-partner, at least, intention to do it.  Yes.  So all I can say is I think that was the – that he recognised that it was going to affect his relationship with the children and that he was putting in place as much as he thought he could do, which was, as I say, more than what parents would, or had the capacity to do to maintain a relationship with them...

25. In cross-examination, the father, asked if he accepted that there were advantages to the mother in living close to her family, replied “In that moment I’m not sure I considered it that deeply”.

26. He denied that they had a plan to move back to the United Kingdom. In cross-examination, he said “A plan… I don’t think we had a plan. We had a conversation about doing something in the future but I don’t think we had a plan”.

27. He denied that, at the time he refused the mother consent to take the children to her uncle’s funeral, he was planning to withdraw his agreement to return.

28. In cross-examination, the father said that he had not, between separation and December 2017, discussed with his employer the possibility of moving to the United Kingdom operation and he had not applied for any position in the United  Kingdom. In cross-examination, he conceded that, during that period, the mother had every reason to believe that he was looking for a job in the United Kingdom.

29. After he moved to live in Ms M’s home in March 2016, until he moved into his own rented premises in September 2016, he did not tell Ms M that he had promised the mother that they were all moving to the United Kingdom.

30. Even after they commenced an intimate relationship, the father did not tell Ms  M that he was returning to the United Kingdom.

31. When the father determined that he would not return with the family to the United Kingdom is not clear from his evidence.

32. Dr S recorded:

    I asked him about his decision to not return to the UK. He said that he and [the mother] had never been completely aligned on the decision to return to the UK. If I understood him correctly, he had always felt there was an option to stay in Australia, where he felt there was greater opportunity. However [the mother] had always been definite that their stay in Australia was temporary.

33. The reasons for that decision, if they were more than his career and his new relationship, are also unclear.

Has the father unreasonably restricted the mother’s ability to travel to the United Kingdom with the children?

1. Although the parties and the children, and the mother and the children, travelled with some regularity to the United Kingdom when they were together, that position did not continue after separation.

2. Both the parents and the children travelled to the United Kingdom over the Christmas period in 2017.

3. The father has not permitted the mother to travel with the children since that time.

4. The parties separated in March 2016. The father was in the United Kingdom from 10 to 22 May 2016. The children remained in the care of the mother.

5. The father travelled to the United Kingdom in August 2016 and again in September of 2016. The children remained in the care of the mother.

6. In early October 2016, the mother’s uncle was very ill and the mother asked the father to agree to her travelling to the United Kingdom with the children to see her uncle.

7. The father responded to her request, telling her that she could take Z but not the older two children. In early October 2016, the older children had not begun to spend overnight time with the father. They had never spent an extended period in his care in the absence of their mother.  The mother did not go. Her uncle died.

8. After her uncle died, the mother asked the father to allow her to take the children to the United Kingdom for his funeral. By this time, X and Y had spent one night in the care of the father. The father again responded that he would allow the mother to take Z but that X and Y must remain in his care. He did not ask the mother how long she proposed to be away.

9. In cross-examination, he agreed that he wanted to keep X and Y as security for the mother’s return.

10. In May 2017 the father travelled to the United Kingdom for his grandmother’s funeral. The mother cared for the children in Australia.

11. The mother had the opportunity, in August 2018, to travel as part of her employment to City P to attend a four day conference. Her employer agreed that she could take the children with her and then spend some time with family in the United Kingdom after the conference. The mother’s friend, Ms L, planned to travel to City P and care for the children while the mother was engaged at the conference. The children have a very close relationship with Ms L who lived with them in Australia after Z was born. The mother also contacted the father’s sister-in-law to discuss the children’s being in the United Kingdom for their paternal grandfather’s birthday.

12. On 24 June 2018, the mother sent an email to the father saying:

    I have a work requirement to be in City P, Country TT the week of 27th August. As my flight and accommodation will be paid for by work and the trip would include a stop in the UK, it is an amazing opportunity for me to attend and for the children to come with me to see their extended family. I have looked at timings to make as minimal impact as possible to your time with them. We would be able to leave for the UK Sunday 26th August (time tbc) and we would return to Australia Tuesday 11th  September. This would enable the children to be in the UK for their maternal grandparents birthdays and enable time to be spent with their Aunts and Uncles etc plus Ms V in City P/UK. The trip would mean X and Y would need to take approx 2 week’s off of school (I will liaise with the teachers to ensure they catch up on any work missed). I will be able to forward you a full itinerary or their trip and they will keep in contact with you during their time away (depending on your parents/brothers availability in the Uk I would also hope we could see them as well at some point during this time).

    (as per the original)

13. The father responded:

    This is quite unusual, the concept of taking three young children on a business trip for an extended period is of some concern. Even if we separate the challenges of missing school and disruption. The ability to suitably care for three young children whilst meeting the obligations of an international business trip seem very challenging. I don’t have sight of the itinerary but typically with the large investment to travel overseas from Australia the work and afterwork requirements are quite intensive in both work content and relationship building and making the most of the significant investment. It’s very hard to understand how you could meet the needs of the work environment and care for the children at the same time.

    In addition to the point of care whilst working, I am particularly concerned about the impact on the children including the extended absence from school and the impact of jet lag for X and Y on their return to school. What you are proposing is effectively 3 weeks of impact, in a 9 week term, you are away for 12 school days plus what will be 3-4 days recovery (from prior experience)...

    Under these conditions, I don’t think it is right for the children to be away during next term. It is only a 9 week term and losing 2.5wks plus the impact of jet lag will be significant for them...

    (as per the original)

1. In cross-examination, the father conceded that no school term at the children’s school is as short as nine weeks.

2. The father offered to “rearrange my work commitments to allow you to be away and meet your needs”.

3. The mother responded, pointing out that Ms L was to look after the children in City P, and that no night time activities were planned in conjunction with the conference, but saying that she could not be away from Z for that period and that, disappointingly, she would not attend the conference.

4. In January 2019, the mother sent an email to the father saying that she was keen to take the children to the United Kingdom for three weeks including the July school holidays. This would have involved the children missing a week of school.

5. The father responded saying, inter alia, “...let’s wait until after the court dates are given on the 18^th February so we will have a clearer idea of how the year will play out”.  At that time, the proceedings were listed for call-over on 18 February.

6. Dr S’s report was released on 29 January 2019.

7. On 30 January 2019, there was a further email exchange where the mother asked the father to confirm that he would not agree to her taking the children to the United Kingdom for a holiday until trial dates had been set. He confirmed that was his position.

8. The matter was not set down for hearing at the call-over because the father’s affidavits had not been filed.

9. On 24 February 2019 the mother again asked the father to agree to the trip in the July holidays.

10. He replied:

    ...the process has moved on since out last discussion. After consideration and taking in account the recommendations of Dr S I took time to write all aspects of our pre final court date parenting plan, including holidays for each of the breaks this year, into the consent orders… can you review these orders as they contain all the details for this year…

11. On 26 February 2019 the mother again emailed the father asking whether he would consider a trip for her and the children to see family in the United Kingdom. He responded on 5 March 2019, declining to allow the trip.

12. The mother instructed her lawyer to write to the father’s lawyer asking for permission to take the trip.

13. The father’s lawyer responded, stating that the father would care for the children so that the older children would not miss the half week of school which the mother’s proposal involved.

14. On 26 March 2019 the mother’s lawyers wrote again asking if the father would agree to the trip if the children did not miss any school days. She offered make up time for the father in the next holidays.

15. No reply was received from the father’s lawyers and the mother and the children did not go to the United Kingdom.

16. The father did not suggest that the mother could take the children only for the period of the school holidays. Neither did he suggest that she could take Z but not the older children. When asked why Z could not have gone he answered “I suppose he could have”.

17. On 16 April 2019 hearing dates were allocated.

18. On 25 April 2019 the father confirmed that his position was unchanged and he would not agree to the trip.

19. In cross-examination, the father said that he had not allowed the trip because it was contrary to Dr S’s recommendation that the children spend as much time with him as was feasible and he would have missed the whole of their July holidays.

20. Dr S, in cross-examination, said that nothing in his report was intended to suggest that the mother should not have holidays with the children to spend time with family. He said that he was surprised at the father’s refusal and that the refusal was unwarranted.

21. Dr S in his written report stated that, if relocation were not permitted:

    Of course it would be important that she is able to travel to the UK on a regular basis at a frequency and duration which does not substantially interfere with the father’s relationship with the children.

22. The mother has not been permitted to travel with the children to the United  Kingdom since returning in late January 2018.

23. The father has now refused four requests to travel. At the same time, he has travelled freely, leaving the children in the care of the mother.

24. He conceded in cross-examination that, if the mother remained in Australia, it would be important that she be able to travel regularly and frequently to the United Kingdom.

25. When asked in cross-examination how he would respond if the mother made a request to travel with the children he replied that his response would depend upon what orders were made and how recently the children had been to the United  Kingdom, whether he thought they needed to go and whether it was appropriate.

26. The mother could have no confidence, in the future, that any request she makes to travel to the United Kingdom would be approved as it may interfere with the father’s scheduled time with the children or he may not consider the trip appropriate or necessary.

27. The father conceded in cross-examination that he is able to perform a demanding job, and travel both internationally and domestically, because the mother cares for the children. Although he has attempted where possible to schedule his travel around his time with the children, there have been times when he has not been able to do so and, on those occasions, the mother has cared for them.

28. When the father is absent from Australia, or not in Sydney, the mother has no family support at all in the event of any problem arising with the children or personally for her.

29. The orders sought by the father provide no guarantees for the mother that she will be able to travel to the United Kingdom with the children either as often as she would want or to stay as long as she would want.

30. He seeks orders that the children live with him for half of all school holiday periods. His time would be suspended  “at times as agreed between the parties” to allow the mother to take the children to the United Kingdom provided that she gives him six months’ written notice and that his time with the children is made up.

31. Although the father in his affidavit conceded that, in order to make it tenable for the mother to stay in Australia, the provisions for her to return to the United  Kingdom with the children need to be frequent and generous, that concession does not find its way into the orders he proposes.

What will be the effect on the mother if she is not permitted to relocate?

1. The father accepted that the mother’s desire to return to the United Kingdom is genuine and deeply held.

2. In his oral evidence he said that family had always been of greater significance and importance to the mother than it was to him.

3. In her affidavit, the mother deposed:

   I have given up everything for [the father] – my job, my career, my family, my friends and my home in the UK to support [the father] with his career in Australia. He then decided to leave me and trap me here.

   Being trapped in a country where not a single adult loves me is phenomenally hard. Knowing that my sisters, my parents, my long-term friends are desperate to be there for me leaves me living with sadness and pain. I’m scared of what will happen to the children if I’m in an accident or fall sick and [the father] is abroad travelling. I find myself worrying and panicking as in these instances it is just me here, there’s no other family...

   I have no sense of belonging in Australia. I feel it will never be home here. I was brought here under the expectation that it was a temporary experience, that as a family unit we would move here and explore a new culture, enjoy the benefits of an affluent lifestyle but that we would always return home to the UK.

   I have worked hard with my psychologist to try to focus on the here and now and not the future, to try not to compare what should have been to what is right now and to find a way to let the feelings of immense sadness and loneliness wash over me and not take over.

   I follow my psychologist’s advice and try not to look too far ahead. Imagining my devastation, we aren’t allowed to return to the UK is not something I can contemplate.

4. The parties saw a Family Consultant in April 2018 for the purpose of the preparation of a Child Responsive Program Report. The Family Consultant reported:

   [The mother] said that [the father’s] change of mind to allow her and the children to relocate to the UK had greatly impacted on her emotional wellbeing. [The mother] reported having no maternal or paternal family support in Australia and she spoke about the sadness and isolation she feels because of [the father’s] decision. She was often tearful in her interview about her and the children’s circumstances if they are not permitted to relocate to the UK.

5. The Family Consultant was aware of the mother’s continuing involvement with her psychologist.

6. The Family Consultant stated:

   [The mother] appears distraught about [the father’s] withdrawal of support to allow her and the children to relocate to the UK, as was reportedly previously agreed between the parents.

7. The Family Consultant recommended that the matter be expedited, stating:

   As [the mother] is the primary carer of the children, concerns would be raised if [her] emotional state deteriorates to the degree in which it compromises her parenting capacity and psychological wellbeing, or exposed the children to parental conflict.

8. Ms W, the mother’s treating psychologist swore an affidavit and was not required for cross-examination.

9. In her report, Ms W stated:

   [The mother] came to see me as she was experiencing feelings of significant sadness, loneliness and anxiety. During our regular sessions she has recalled her trauma relating to the breakdown of relationship with her ex-partner...and the manner in which [he] had agreed to relocating and a significant time later rescinded the agreement. This trauma has been augmented by the ongoing lack of available family support in Australia.

10. Ms W recorded:

    [The mother] has regularly expressed her feelings of despair and sadness at being misled by [the father]. She references feeling emotionally drained and exhausted by the changes in his position regarding the relocation and the amount of time that has progressed whilst waiting to relocate.

11. Ms W recorded that, when the mother returned from the United Kingdom in 2018 she expressed feelings of intense sadness at being back in Australia. She described the mother’s sadness and gloom as “acute”.

12. Ms W reported:

    [The mother] has expressed anxious feelings relating to the stability of her job and feeling alone and worried with no family as a safety net and no family to help her recover from her relationship ending or to help emotionally and  practically with the children.

13. Ms W reported that the mother expressed sadness and despair at being trapped and that she felt the father exercised an unreasonable amount of control over her and the children. The mother felt that the father displayed no compassion towards her situation.

14. However, Ms W said that the mother “[took] on board” strategies to improve her mental health.  

15. Dr S had access to both the report of the Family Consultant and to Ms W’s evidence. He stated in his report:

    It is clear that [the mother] has been extremely distressed by the separation, then [the father’s] rather protracted decision to not return to the UK. I note that since being advised of that, she has started to see a psychologist on a regular basis. Although her psychologist Ms W describes [the mother] as continuing to be quite distressed by the predicament in which she finds herself, she also notes that [the mother] has constructively utilised the techniques which have been recommended to her and that she remains child focussed and a capable parent. In other words, although [the mother] was clearly quite expressive about her distress, Ms W was also of the view that [the mother’s] parenting has not been compromised to a significant degree and that she is a resilient, resourceful person who has been able to use a range of recommended coping strategies.

    This was in accord with my impression. [The mother] finds herself in a situation which she certainly does not want, however she has been able to marshal significant personal resources to cope. It did not appear from my assessment that her capacity to care for the children has been substantially impaired, and indeed I think under the circumstances she has managed to quarantine the children from both her concerns as well as the specifics of the situation in which she finds herself, and she has set aside her feelings about [the father’s] decisions sufficiently that the children perceive their parents’ relationship as quite good.

    It is my view that should the Court not permit relocation, that she would continue to cope with the situation and that her parenting would not be significantly compromised. Indeed to whatever extent it is at the moment, the situation would probably improve gradually. Of course it would be important that she is able to travel to the UK on a regular basis at a frequency and duration which does not substantially interfere with the father’s relationship with the children.

16. In cross-examination by senior counsel for the mother, Dr S said that the mother had continued to be distressed and emotional when he saw her and that he accepted that her distress continues. He said that the mother’s experiences of wanting to travel to the United Kingdom to see family and having her requests refused by the father would enhance her sense of entrapment, that she would be upset and feel controlled by the father.

17. Asked about the reaction of the mother if she were not permitted to return to the United Kingdom, Dr S said:

    ...I don’t think she had given up hope on it, by any means, but that she – she had been given realistic legal advice some time ago, and she has lived with that for a long time.  So while I think that it would be, you know, a blow and something she would need to come to grips with, I – I – I think she’s probably part way down that track already.  And, I mean, obviously I’ve only seen her once, but from what her counsellor said – her psychologist, who referred to her being resilient and that sort of thing, I mean, I think she had formed the view after 20 or 30 sessions, that despite knowing that this was going to be tough fight, and that she might lose, she was still – the psychologist was still in the position to refer to her resiliency and her parenting capacity, in positive terms.  So – so I – I think she will cope with it better than – than a number of parents than I’ve seen.

18. Asked whether the mother will be able to cope when all hope is gone, Dr S said that the situation would be challenging for the mother and he could not be certain but that he could be reasonably sure she would cope, but not 100 per cent sure.

19. Whist I accept that the mother will “cope” if she is not permitted to return to the United Kingdom, I also accept that she will be distressed and distraught and will have to continue to rely on the assistance she is currently receiving from her psychologist.

20. In AMS v AIF [1999] 199 CLR 160 Kirby J said:

    Behind the constitutional and other legal arguments of the parties lies a difficult problem.  It is one which arises in every jurisdiction where relocation cases have been considered.  The problem stems from important values which the law upholds and which sometimes come into conflict.  On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent whilst it is growing up.  On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child. 

    (footnotes omitted)

21. His Honour set out the principles to be applied in relocation cases in the following terms:

    First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression.  Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different.  Necessarily, the facts of each case are unique.  Those facts call forth a "careful and delicate analysis", which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach

    Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides.  It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations.  Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration.  It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers.  However, the "paramount" consideration is not the same as the "sole" or "only" consideration.  The relevance of enumerated statutory principles will depend upon the circumstances of the particular case.  Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.

    Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child's welfare and rights.  However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.  If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child.  There is no such universal rule.

    Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live.  That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court.  Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child.  This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.  To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected

    (footnotes omitted)

CONSIDERATION

1. The primary considerations in determining the appropriate parenting arrangements for the children are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. Having regard to my earlier acceptance of the father’s evidence that he used $40,000 from the return on the 2015 Plan to pay legal fees, I accept that he did not have $51,800 left over to pay for the 2018 Plan.

2. There is no valuation of the 2018 Plan and I accept that no valuation is possible. The investment may make no return or it may make a return. The husband expects to make some return but cannot say what that might be. The parent company has been restructured since the husband entered into the 2018 Plan and the number of his non-voting preference shares has been reduced. He received an interim dividend of €6,446 in December 2018.

3. Because it is not possible to value the husband’s interest in the 2018 Company J Plan, I propose to remove it from the balance sheet and treat it as an investment that will receive a return, although the return cannot be quantified.

4. I therefore find that the assets and liabilities of the parties are:

   Assets  $3,604,840

   Add back mother’s paid legal fees            $     23,328

   Add back father’s paid legal fees              $     40,000

   Total  $3,668,168

   Less liabilities  $    726,558              

5. The net assets of the parties are $2,941,610.

6. Of that pool the mother wishes to retain the property in Town E. The father agrees. He proposes that any bank accounts in joint names be transferred to the mother.

7. Including the property in Town E, her paid legal fees and the joint accounts, the assets in the control of the mother total $765,281. She will have liabilities of $25,434, leaving her with net assets of $739,847.

8. In addition to their divisible property, the father has an interest in an Australian superannuation accumulation fund currently worth $364,514. He also has his interest in the UK Super Fund 2 in the United Kingdom which has been discussed earlier in these reasons and a further interest in the UK Super Fund 1 in the United Kingdom which is agreed to be worth $70,730.

9. The father will retain his interest in the Company J Plan.

10. The mother also has interests in two Australian accumulation funds worth a total of $52,528. She has a UK Super Fund 1 in the United Kingdom agreed to be worth $74,477.

CONTRIBUTIONS

1. The father, at the commencement of the co-habitation had assets of $450,593.

2. The mother had savings of about $28,000.

3. Both parties continued to work after the commencement of co-habitation. The mother stopped working when she was pregnant with X.

4. After they moved to Australia, the father worked and the mother stayed at home caring for the children until she returned to work in 2012, working five days per fortnight.

5. In April 2014 the mother took a year of maternity leave and she returned to work in April 2015.

6. In May 2017 the mother changed employment and worked two days each week. Her working hours have been constrained by her responsibilities to care for the children.

7. The father, since coming to Australia, has received promotions and has earned significantly more than the mother. However, as he conceded, he has been able to do that because she assumed the role of primary carer for the children.

8. Neither party suggests that their joint efforts were directed to any enterprise other than that of their family.

9. The mother received an inheritance of about $90,000 ($35,031 and $55,578 not yet received) and the full amount of that inheritance has been included in the asset pool, despite its being received after separation and despite that fact that she has not yet received the full amount.

10. I consider that the contributions of parenting and home making and of income received after co-habitation are equal.

11. There must be a further adjustment in favour of the father to take into account his initial contribution of $450,593 compared with the mother’s initial contribution of $28,000 and her very recent contribution of her $90,000 inheritance. An adjustment of 7.5 per cent produces a differential of 15 per cent of the net assets and results in the father receiving $441,392 more than the mother in recognition of his greater contribution.

12. Contributions are assessed as 42.5 per cent by the mother and 57.5 per cent by the father.

SECTION 90SF(3)

1. The mother is 43 years old. The father is 45 years old.

2. The mother is employed in Australia, although on a part time basis. The mother’s earning capacity has never been as great as the father’s. He deposed to their disparity in income.  In his Financial Statement he deposed that he earns, or receives benefits from his employment, of $529,308. In cross examination, the father agreed that he earned $600,000 in the financial year ended 30 June 2019. The mother earns from her employment $92,248. The historical disparity has been of a similar nature.

3. His earning capacity greatly exceeds hers and there is no suggestion that her earning capacity will ever be equal to his, although she may be able to increase her income by working more hours when all of the children are at school.

4. I note, however, that the father in cross-examination said that he could not work full time and care for the children and the wife expressed serious doubt that she could do so either.

5. The orders that will be made in respect of relocation and parenting will have a number of consequences.

6. The mother will be required to provide housing for the three children. The father will not. His time with them will be spent in the United Kingdom except for one holiday period each year.

7. The father, having deposed that he will not live in the United Kingdom, will only spend time with the children during holiday periods. The consequence is that the mother will have the sole parenting responsibilities for them during term time and for part of the school holidays.

8. The father’s entitlement to superannuation and pensions vastly outweighs that of the mother and there is no suggestion that she can ever make up that disparity.

9. The father conceded that, by staying out of the full time work force and caring for the children, the mother had contributed to his ability to earn his substantial income.

10. The mother’s earning capacity was sacrificed to that of the father.

11. She was on maternity leave from her employment after X’s birth when the decision was made to move to Australia and she did not return to her employment in the United Kingdom. The only reason for the move was the furtherance of the father’s career. When she returned to the paid work force in Australia, the most she has worked is two days each week.

12. In submissions, senior counsel for the mother sought an adjustment in her favour of 20 per cent, primarily to take into account the disparity in earnings and superannuation. However the assessment of 20 per cent was predicated upon the division in specie of the father’s pension entitlement in the United Kingdom when it came into payment and the anticipated sharing of return on his investment in the Company J Plan.

13. I have already determined that the father will retain both of those assets.

14. The cumulative effect of all of those matters justifies an adjustment in favour of the mother of 25 per cent.

CONCLUSION

1. The mother will receive 67.5 per cent of the net assets or $1,985,587. She will retain the Town E property. She will have net assets of $739,847 in her possession and the father must pay her a further $1,245,740.

2. The father will retain the Suburb C property.

I certify that the preceding three hundred and forty-six (346) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 September 2019.

Associate:

Date: 11 September 2019