GRANGE and GRANGE

[2019] FCWA 163

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GRANGE and GRANGE [2019] FCWA 163

CORAM: SUTHERLAND CJ

HEARD: 4 & 5 JULY 2019

DELIVERED : 18 JULY 2019

FILE NO/S: PTW 5041 of 2017

BETWEEN: MS GRANGE

Applicant

AND

MR GRANGE

Respondent

Catchwords:

CHILDREN - Best interests of a child - Whether mother should be permitted to relocate with child from Perth to City A, State A - Case turns on its own facts

PROPERTY - Contributions agreed to be equal - Assessment of future needs - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Representation:

Counsel:

Applicant	:	Mr Hedges SC
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Clement & Co.
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

AMS v AIF (1999) 199 CLR 160

Godfrey & Sanders (2007) 208 FLR 287

Goode & Goode (2006) FLC 93-286

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Moose & Moose (2008) FLC 93-375

MRR v GR (2010) 240 CLR 461

Sayer & Radcliffe (2012) 48 Fam LR 298

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED

INTRODUCTION:

1[Ms Grange] ("the mother") and [Mr Grange] ("the father") were unable to reach a final agreement either about parenting issues concerning their young son [B], or about financial issues arising from the end of their marriage. The parenting proceedings were complicated by the mother’s long standing desire to relocate with B to [City A, State A]: her “home town” and where the majority of the mother’s close knit family still reside. The father was adamantly opposed to such a move. The financial proceedings were complicated by the drop in value of the parties’ real estate portfolio over time and the practical difficulties faced by the parties in having to either refinance and/or sell the properties at a loss.

2In relation to parenting issues, in summary the mother sought orders as follows:[1]

a) The parties have equal shared parental responsibility for B.

b) B live with the mother and she be permitted to relocate with B to State A. The mother sought to be permitted to relocate immediately. Her “fall back” positions, in order of priority, were that she be permitted to relocate at the end of the Term 3, 2019 school term or after the Christmas festive period in late December 2019.

c) The father spend time with B, subject to his FIFO roster, in State A (as and when the father was able to travel to State A) and in Perth (primarily during school holidays). The mother had a number of specific alternate proposals for B to spend time with the father from judgment until the end of 2019, dependent upon the date she was permitted to relocate with B. She also sought a number of orders to facilitate the father’s time with B, both in State A and in Perth, including in relation to travel and accommodation arrangements.

d) Other orders in relation to communications, exchange of relevant educational and medical information concerning B, interstate travel arrangements, non-denigration injunctions and injunctions restraining the parties from discussing the court proceedings with the child.

e) In the event that the mother was unsuccessful in her application to relocate with B to State A, then her position was that B continue to live with her and spend time with the father, largely in accordance with the existing arrangements: that is, each alternate weekend (coinciding with the father’s FIFO work roster) from Fridays after school until Sunday afternoons, with the time extending somewhat during school holidays.

[1] Refer to the mother’s Minute filed on 28 August 2018, together with the three alternate Minutes handed up to the Court on 5 July 2019, and as further amended by the mother’s counsel orally during his closing submissions.

3In relation to financial issues, in summary the mother sought that she receive a 75 per cent division of the parties’ net assets and superannuation entitlements, on the basis that:

a) The mother transfer to the father the camper trailer, the father transfer to the mother the [Vehicle A] motor vehicle in her possession and each party other retain their respective savings, motor vehicles, furniture[2] and contents, and their superannuation entitlements, save for the superannuation splitting order referred to below.

b) In relation to the parties’ real estate, the properties [in] [Suburb X] and [Suburb Y] be sold. If the father wished to retain the [Suburb Z] property and was able to refinance the property so as to fully release and indemnify the mother from the current mortgage, then on that basis the father retain the Suburb Z property. If the father was unable to refinance the Suburb Z property, or elected not to retain the Suburb Z property, then it also be sold. The net proceeds of all three properties be disbursed between the parties, preferably on the basis that the mother received a somewhat larger cash component than the father.

c) The mother receive such superannuation splitting payment from the father’s superannuation entitlements as would enable her to receive the balance of her property settlement entitlements.

[2] The mother’s position was that if she was permitted to relocate to State A with B, then she did not seek to retain the furniture in her possession and was content that the father receive it all, effectively on the basis that it had only nominal or no value.

4The trial was complicated by the father’s “head in the sand” approach to various matters, including his failure to specify with any precision, the final parenting and financial orders sought by him. This was notwithstanding a number of attempts by the Court, prior to and during the trial, to have the father set out with some precision the orders sought by him. At the end of the day, the father simply did not provide any response to many of the parenting orders sought by the mother. However, the father was clear about a number of matters as follows:

a) The father agreed that the parties have equal shared parental responsibility for B.

b) The father was adamantly opposed to the mother’s proposed relocation to State A with B.

c) The father sought that B live in Perth in an equal shared living arrangement between the parties, with B to live with the father during his rostered times in Perth in accordance with his FIFO roster.

d) In the event that the mother was permitted to relocate to State A with B, then the move should not occur until some unspecified time after 2019. Once B was living in State A, then the father would try to spend time with B in State A “as often” as he could; and that his time with B should alternate between Perth and State A on the basis that the mother accompany B to Perth on each occasion.

5In relation to financial matters, the father was able to provide a little more clarity around his position over the course of the trial. He sought that there be a 50/50 division of the parties’ net assets and superannuation entitlements, and on the basis that:

a) He was in agreement with the mother’s proposals in relation to the disposition of the three properties, including that he did seek the opportunity to retain the Suburb Z property. However, he did not agree that the mother should receive a greater share of the available cash from the net proceeds of sale and instead proposed that the net proceeds be divided 50/50 between them.

b) He proposed that the mother receive the camper trailer, but was otherwise in agreement with and/or or did not oppose the mother’s proposals about their respective savings, motor vehicles, furniture and contents and superannuation entitlements, including that the mother receive a superannuation splitting payment from his superannuation entitlements to enable her to receive her full property settlement entitlements.

THE EVIDENCE:

6The mother was represented by solicitors throughout the proceedings, including by senior counsel, Mr Hedges, at trial. The father was represented by solicitors at the commencement of the proceedings, but has been a self-represented litigant since January 2018. The mother relied on her trial affidavit filed on 28 August 2018, together with the affidavit of her mother, [Mrs T] filed on 30 June 2019. The father relied upon his affidavit filed on 17 June 2019, together with the affidavits of his mother [N] and his step-mother [T], which were both filed on 6 August 2018. Each party also filed an up-to-date financial statement for the purposes of the trial.

7The father cross-examined the mother very briefly, primarily in relation to some text message communications between them. However, the vast majority of the mother’s evidence was unchallenged by the father. From the little opportunity I had to observe the mother, I considered that she was open, honest and balanced in giving her evidence and I had no hesitation in accepting her evidence. The father elected not to cross-examine Mrs T. Accordingly, I accept Mrs T’s evidence as being unchallenged.

8Mr Hedges cross-examined the father at some length. I am satisfied that for the most part, the father attempted to give his evidence honestly and as he saw it. However, at times, I formed the impression that the father was not always prepared to be entirely open about some issues, for example, attempting to avoid answering the question by going off on a tangent or referring to matters that seemed to have little relevance to the question asked. I also considered that the father consistently struggled to give his evidence in a balanced manner (particularly in relation to the parenting issues), including at times, not being prepared to make appropriate concessions against his interests. In my view, the father’s creditability was significantly adversely impacted by: (1) his negative and blaming attitude towards the mother; and (2) his refusal or inability to distinguish between his “wants and needs” on the one hand and B’s best interests on the other hand.

9The mother elected not to cross-examine the father’s mother and step-mother. Accordingly, I also accept their evidence as being unchallenged.

BRIEF FACTUAL BACKGROUND:

10The father was born in 1974. He is currently employed on a full time basis as [a] [mechanic]. He works on a FIFO basis on an 8/6, 7/7 roster. The mother was born in June 1976. She is currently employed on a part time / casual basis as a [nurse] and is otherwise dependent upon Centrelink entitlements.

11The parties commenced cohabitation in or about January 2008 and were married [in] 2010. B was born [in] 2012. After B’s birth, the mother was the primary carer, assisted by the father when he was not at work or otherwise engaged in his recreational activities.

12The parties separated on a final basis [in] 2017. The mother remained in the former matrimonial home [in] Suburb X and the father moved out. It appears that after separation, the father quickly entered into a new relationship with another woman. The father stayed with various people when he was back in Perth on his rostered time off, including at his mother’s home, his father’s home and his girlfriend’s home.

13After separation, B continued to live with the mother. I am satisfied that the father spent time with B on an irregular basis, largely when the father requested to do so. I am also satisfied that the mother made considerable efforts after separation to communicate with the father in a very sensible and child focussed manner about their ongoing and future arrangements for B. This included the mother regularly attempting to liaise with the father and reach agreements:

a) For him to spend time with B on a regular and consistent basis, including seeking that the father provide her with timely notice of any proposed changes so that she did not unnecessarily incur additional out of school day care costs;

b) About the appropriate care arrangements for B when he was in the father’s care, including the father providing her with some information about where B would be staying and not leaving B in the care of strangers whilst the father was engaged in his recreational activities; and

c) About school holiday arrangements to enable B to spend time with the father, as well as to enable B to spend time with the mother and their extended maternal family.

14I am satisfied that the father regularly ignored the mother’s communications entirely or if he did respond, would often not offer a constructive or sensible response.

15I am satisfied that since separation, young B has struggled at various times to deal with the parties’ separation, including being confused and upset that his parents no longer live together. I am also satisfied that at times, B did not cope well with the irregular and inconsistent nature of his time with the father and/or from being separated from his mother and primary carer for extended periods of time.

16The mother commenced these proceedings in August 2017. At the first return date on 28 September 2017 the court made various procedural orders, including for the father to file his responding documents within 14 days. The father did not do so, but eventually filed his responding documents in early January 2018. On 20 February 2018, the court made orders for the parties to attend a conciliation conference in relation to financial matters, and otherwise made directions to enable the matter to proceed to trial, including listing a readiness hearing in August 2018. At the readiness hearing the court made further standard orders to enable the matter to proceed to trial. The trial commenced before me on 4 July 2019.

17As at the time of the trial, B continued to live with the mother and spent time with the father during his rostered time off. Generally the father spent time with B each alternate fortnight from Fridays after school until Sunday afternoons. On occasions, particularly during school holidays, B has spent an additional night with the father each fortnight.

PARENTING PROCEEDINGS – APPLICABLE LAW:

18These proceedings are determined under Part VII of the Family Law Act1975 (Cth) (“the Act”). In reaching my decision I will be guided by the objects of that Part and the principles underlining those objects. Section 60B sets out the objects and the principles underlying them. The Full Court in Goode & Goode made clear that when a parenting order is sought, whether it be final or interim, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility, subject to the qualifications set out in the relevant section.[3]

[3] Goode & Goode (2006) FLC 93-286.

19In this case, both parties agreed and I am satisfied that it is in B's best interests to make an order for equal shared parental responsibility. Accordingly, I must also consider the obligations placed upon me by s 65DAA of the Act which requires me to then consider whether B should spend equal time or substantial and significant time with each parent. In MRR v GR, the High Court of Australia considered the meaning of "reasonably practicable" in s 65DAA (1) and confirmed that the section "is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent…[The section] requires a practical assessment of whether equal time parenting is feasible."[4]

[4] MRR v GR (2010) 240 CLR 461.

20In determining the outcome of parenting matters, I must, pursuant to s 60CA of the Act, consider the best interests of B as the paramount consideration. In determining what is in B’s best interests I must consider the matters set out in s 60CC of the Act.

21This case concerns a proposed relocation from Perth to State A. It is well established that while some special requirements apply to relocation cases, they are guided by the same legislative pathways as other parenting cases and the proposed relocation is not to be treated as a discrete issue in the making of a parenting order.[5] The case law establishes the following core principles that are applicable in relocation cases:

a) the child's best interests remain the paramount consideration, but they are not the sole consideration;

b) a parent wishing to relocate does not need to demonstrate "compelling" reasons;

c) the court is not bound by the competing proposals of the parties and may be required to formulate alternative proposals in the child's best interests, but any such alternative proposal must not be put in place without giving the parties reasonable notice of the proposal and an opportunity to be heard;

d) the child's best interests must be weighed and balanced with the proposed relocating parent's legitimate interest and desires and right to freedom of movement, but this right can be outweighed if there is a need to put in place an arrangement that is inconsistent with that right, but is nevertheless in the best interests of the child; and

e) in an appropriate case, the court should inquire as to whether the party who opposes the proposed relocation could not, himself or herself, move to a place close to where the child will be living if the relocation is allowed.[6]

[5] Sayer & Radcliffe (2012) 48 Fam LR 298.

[6] AMS v AIF (1999) 199 CLR 160.

22I now turn to a consideration of the relevant factors as required by the legislation. Where I do not refer to a factor, it is because I consider that it is not relevant in this case.

PRIMARY CONSIDERATIONS:

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

23The Full Court in McCall & Clark approved of the decision of Brown J in Mazorski & Albright, wherein she concluded that "a meaningful relationship…is one which is important, significant and valuable to the child.[7] It is a qualitative adjective, not a strictly quantitive one". However, what the legislation aspires to promote is a meaningful relationship, not an optimal one.[8]

[7] McCall & Clark (2009) FLC 93-405; Mazorski & Albright (2007) 37 Fam LR 518.

[8] Godfrey & Sanders (2007) 208 FLR 287; Moose & Moose (2008) FLC 93-375.

24I am satisfied that B has a close and loving relationship with each of his parents. Given that the mother has been B’s primary carer throughout his lifetime, whereas the father has worked on a FIFO basis since B’s birth (and accordingly has spent significant periods of time away from B), I am satisfied that it is highly likely that B is primarily attached to the mother.

25The parties agreed and I am satisfied that there is a positive benefit to B in having and maintaining a meaningful relationship with each of the parties. The father effectively contended he would be unable to maintain a meaningful relationship with B if the child moved to State A. However, I am not satisfied on the available evidence that this is the case. The father has a close and loving relationship with B, notwithstanding that they were frequently physically separated when the father worked away. I accept that blocks of holiday time and electronic communications in between are no substitute for regular and frequent direct physical contact. However, I am satisfied on the available evidence that B and the father have a close relationship that could be maintained by blocks of school holiday time each year, the father travelling to State A for shorter visits during the school term and by regular and frequent electronic communications in between visits. Although not the optimal arrangement, I am satisfied that such an arrangement would enable B to maintain a meaningful relationship with the father in the event that B lived in State A.

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

26I accept the mother’s evidence that there was no family violence during the marriage, save for one isolated incident when the father became frustrated and angry with the mother whilst they were in the car and punched the roof of the car. I also accept the mother’s evidence that in the months after separation, there were further limited incidents of family violence when the father became frustrated or angry, including the father punching at the mother through the screen door of her home; and on another occasion, yelling at the mother and telling her that he wanted to punch her in the face. I accept the mother’s evidence that these two incidents occurred in B’s presence.

27There was little or no evidence to suggest that there have been any further significant incidents of family violence since approximately mid-2017. However, I accept the mother’s evidence that at times, B has made comments to her after spending time with the father that were strongly suggestive of the father speaking in a derogatory manner about the mother, either directly to B or in his presence or hearing. It was also abundantly clear from the father’s written communications to the mother since separation and from his demeanour during the trial, that he has little respect for the mother.

28I am satisfied that B is not at risk of harm in the care of the mother. I am satisfied that there is some limited ongoing risk of B being exposed to: (1) the father’s aggressive behaviour to the mother, for example, if the father becomes angry or frustrated with the mother at handovers; and (2) the father making further derogatory comments about the mother in the child’s presence or hearing.

ADDITIONAL CONSIDERATIONS:

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 child’s views.

29There was no cogent evidence that B had expressed a considered view about his future living arrangements. In any event, B is currently six years old, [soon] turning seven. I accept the mother’s submission that B is simply not developmentally old enough to express a mature view about his future living arrangements.

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).

30I have already considered this factor insofar as the parents are concerned in my assessment of the primary considerations. I am satisfied that B has good relationships with his extended paternal and maternal family. There was no evidence, and I am unable to make any findings about B’s relationship with the father’s girlfriend and her child or children.

31After his birth, B was able to have regular face-to-face contact with the father’s extended family, including B’s paternal grandparents and step grandparents who live in Perth. Since separation, it appears that the paternal family members have continued to see B, including during the father’s time with B, around the family’s various work and other commitments. Since his birth, B has also been able to enjoy ongoing face-to-face contact with the majority of his maternal family members who live in State A. This has occurred when the mother and B have travelled to State A and when family members (particularly the maternal grandmother) have travelled to Perth. Whether B continues to live in Perth or moves to State A, I am satisfied that he will be able to continue to maintain good relationships with his extended paternal and maternal families.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child.

32I am satisfied that the mother has taken every opportunity to participate in making decisions about B, spend time with B and communicate with him. Although I have no doubt the father loves B very much and enjoys spending time with him, some of the father’s decisions since separation (including refusing to respond to the mother’s communications about B) are puzzling and do not reflect well on the father.

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

33I am satisfied that the mother has fulfilled her obligations to financially maintain B. I accept that since separation the mother has struggled to financially support herself and B and has been dependent upon her parents’ financial support and access to her credit cards in order to make ends meet. I am also satisfied that the father has fulfilled his obligations to financially maintain B, as he has paid child support in accordance with administrative assessments issued by the Child Support Agency from time to time.[9] In reality these payments have been applied towards the mortgage payments for the former matrimonial home.

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 he or she has been living.

[9] The current child support assessment is based upon the CSA accepting the father’s estimate that his income is approximately $95,000, rather than on the basis of the applicable income tax return. I considered there was some doubt as to the accuracy of the father’s income estimate to the CSA, given that he deposed in his financial statement to receiving a greater income.

34I am satisfied that the order proposed by the father, for B to live in an equal shared arrangement with both parties in Perth, amounts to a very substantial change in B’s living arrangements. Given that the mother has been B’s primary carer throughout B’s life, she is highly likely to be B’s primary attachment figure and B’s history of struggling at times to cope with the arrangements since separation, I consider that the father’s proposal is very likely to have a significant detrimental impact on B’s emotional wellbeing. In addition, given the father’s negative and blaming attitude towards the mother and his regular failure to communicate with the mother sensibly, if at all, about parenting issues concerning B, I have no confidence that the father will be able to co-operatively co-parent B with the mother, thereby potentially placing further stress on B. On the other hand, if the mother is not permitted to relocate with B to State A, but orders are then made as sought by the mother, then there would be no significant changes in the child’s circumstances: B will continue to live primarily with his mother and spend regular time with his father.

35If B relocates with the mother to State A, then I am satisfied that the current care arrangements will continue in the sense that B will continue to live with his primary carer. In the event that the father was able to also relocate to State A, then B would be able to continue to spend time with the father on a regular basis. However, the father made it very clear that he would not contemplate moving to State A if the mother was given permission to relocate with B, notwithstanding that he had previously lived in State A for a number of years.

36On the basis that the father continues to live in Perth, then B’s ability to spend time with his father will be more restricted and would present a change from the current arrangements. However, historically B has spent times apart from his father, particularly when the father was working away on site, and B was still able to develop and maintain a close relationship with his father. I am satisfied that the arrangements proposed by the mother for the father to spend regular blocks of time with B in State A and in Perth would enable B to maintain a meaningful relationship with the father.

The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

37In the event that the mother is permitted to move with B to State A, then both parties will incur significant travel costs to enable B to spend time with the father in State A and in Perth. Both parties appear to agree that B is currently too young to fly on an unaccompanied basis. Accordingly, there will be additional costs for the parties to arrange for B to be accompanied on his flights in the short to medium term.

38In the event that the mother is not permitted to relocate with B, then there are no significant practical difficulties or expenses in the father spending time with B. However, the mother and/or her extended family will inevitably incur significant costs to enable B to maintain regular contact with his extended maternal family in State A.

The capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs.

39There are a number of issues under this consideration.

40I am satisfied that the mother has been B’s primary carer since his birth, is highly likely to be his primary attachment figure and has capably provided for his needs, including his emotional and intellectual needs. Save for B’s emotional needs, I am satisfied that the father is able to provide for B’s needs when he is spending time with B. I am not satisfied that the father is always able to meet B’s emotional needs, particularly having regard to: (1) the father’s seeming inability to separate out his own wants and needs from that of B’s best interests; and (2) the likelihood that the father has denigrated the mother in B’s presence.

41In the event that the mother is not permitted to relocate with B to State A, then she would live in rental accommodation in the Perth area.[10] The mother would continue to work casually in Perth and [and the Southwest] until such time as she is able to find more convenient and regular employment. She will continue to be dependent on day care to care for B outside of school hours to a greater or lesser extent. However, in the event that the mother is permitted to relocate with B to State A, then she intends to live with her parents until such time as she is able to afford her own separate accommodation. The mother is very familiar with her parents’ home and local environs, as it has been their home for many years. B is also familiar with the home from previous visits with the family. The mother intends to seek work in State A, and has already made enquiries in relation to employment opportunities. Although the father maintained that the mother could obtain appropriate gainful employment in Perth, he appeared to concede in his Papers for the Judge that the mother has limited job prospects as a nurse in Perth.

[10] This is because the parties agree that the former matrimonial home will be sold.

42I am satisfied that if the mother lived in State A with B, then she would have significant ongoing support and assistance in caring for B, especially from her parents. The father conceded that the mother has struggled since the beginning of their marriage to regard Perth as her home and has wanted to relocate with B to State A ever since his birth. I am satisfied that the mother would be much happier and more settled if she and B were able to relocate to State A to be closer to her family. On the other hand, if the mother is not permitted to relocate with B, then I am satisfied that she will continue to miss her family in State A and feel unsupported in Perth. Although I accept that the father and his extended family members are very genuine in their desire to support and assist in caring for B, the reality is that the father works on a FIFO basis and the ability of the extended paternal family members to provide ongoing support and assistance has also been limited from time to time by their own commitments.

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

43I am satisfied that the mother has a very positive, child focussed attitude to B and to her responsibilities of parenthood. On the other hand, although I have no doubt that the father loves B very much, I consider that the father’s ability to maintain a positive, child focussed attitude to B has been detrimentally impacted by his negative and blaming attitude towards the mother and his inability to distinguish his own wants and needs from B’s best interests.

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

44I have already dealt with this consideration in my assessment of the primary considerations.

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.

45B is still a young child. It is difficult to anticipate what further issues, if any, may arise between the parties as B grows older, or whether such issues will inevitably lead to the institution of further proceedings. I am satisfied that it is in B’s best interests to make final orders now.

Any other fact or circumstance the court thinks is relevant.

46There are no other matters that I consider relevant.

CONCLUSIONS IN RELATION TO PARENTING ISSUES:

47The parties agree and I am satisfied that I should make an order that the parties have equal shared parental responsibility for the child.

48The father sought an order that B live equally with both parents. In short, I am not satisfied that it is in B’s best interests to live equally with both parents. I consider that such an arrangement is likely to have a significant detrimental impact on B, having regard to: (1) B’s young age and likely stage of development; (2) the fact that the mother has been B’s primary carer throughout B’s life and she is highly likely to be B’s primary attachment figure; (3) B has a history of struggling at times to cope with the time he spends with the father and from being separated from the mother; and (4) given the father’s negative and blaming attitude towards the mother and his regular failure to communicate with the mother sensibly about parenting issues concerning B, I have no confidence that the father will be able to co-operatively co-parent B with the mother.

49On the other hand, the mother sought orders that B live primarily with her in State A and that the father spend time with B in State A and in Perth, albeit not necessarily substantial and significant time (unless the father was prepared to travel to State A during his rostered times off on a regular basis during the school terms). The mother need not show compelling reasons for the proposed relocation. I am satisfied of the mother’s bona fides in seeking to relocate to State A. Firstly, the mother has maintained a long standing desire to return to State A with B, where she will enjoy the ongoing close support and assistance of her parents and other extended family members. The father accepted that the mother has struggled over a long period of time to settle in Perth or regard Perth as her home. I am satisfied that the mother’s general sense of wellbeing is likely to significantly improve by living close to her family in State A (and accordingly her ongoing capacity to parent B is also likely to be enhanced). Secondly, the mother’s financial circumstances are more likely to improve in State A than in Perth, particularly as she and B will be able to live with her parents in their home and receive significant practical and other support from them on a daily basis.

50There are also down sides to the proposed relocation. In particular, the distances and travel costs involved may mean that B will not spend as much regular time with his father and that their relationship may be impacted as a result. Nevertheless, I am satisfied that the mother will promote an ongoing relationship between B and the father.

51After weighing the various considerations, I am satisfied that it is in B’s best interests and reasonably practicable that the mother be permitted to relocate to State A with B. The mother sought that she be permitted to immediately relocate to State A, rather than wait until the end of the school term or the school year. I am satisfied that such an order is appropriate.

52The mother proposed that the father should have the opportunity to spend time with B: (1) during the school terms, during the father’s rostered weeks off, as frequently as the father wished to travel to State A; and (2) during school holidays, in Perth and in State A. Unhelpfully, a number of the mother’s proposals were somewhat contradictory, and were seemingly formulated on the run. Added to this was the father’s inability to also formulate any specific proposals for him to spend time with B in the event that his primary application was unsuccessful. However, he did indicate that he would attempt to spend time with B in State A during the school terms “as often as he could”. Given that the father works an 8/6, 7/7 FIFO roster, this means that at least in theory, the father could travel to State A as much as every alternate weekend to spend time with B.

53I am satisfied that during the school terms, the father should have the opportunity to spend time with B in State A each alternate weekend in accordance with his rostered time off. Subject to the parties having liberty to make further submissions I am satisfied that: for the first five occasions, B should spend time with the father for blocks of three nights: from after school Friday (or 9am if it is not a school day) until the commencement of school Monday (or 5pm if not a school day). For the next five occasions, B’s time with the father should extend to blocks of four nights: from after school Thursday (or 9am if it is not a school day) until the commencement of school Monday (or 5pm if not a school day). Thereafter, B’s time with the father should extend to blocks of five nights: from after school Thursday (or 9am if it is not a school day) until the commencement of school Tuesday (or 5pm if not a school day). I consider that the gradual increase in blocks of time are appropriate, given B’s young age and likely stage of development, and will give B time to adjust to being separated from his mother and primary carer for increasingly long periods of time.

54I am also satisfied that the handovers in State A during the school terms should take place at B’s school: (1) to limit the necessity for the parties to come into direct contact with each other; (2) to enable B to enjoy having his father take part in his normal school routine; and (3) to enable the father to also participate in B’s normal school routine, including having the opportunity to interact with B’s teachers, other parents and B’s classmates. Given that the father may not be able to commit to travelling to State A on a fortnightly basis, or for as much as four or five nights at a time, I am satisfied that he should be required to give the mother not less than seven days’ prior written notice of his intention to travel to State A to spend time with B during the school terms, failing which the mother be at liberty to make other arrangements for B. I am not satisfied that the father’s proposal that the venue for contact alternate between Perth and State A is practicable during the school terms, given the disruption that the travel to Perth is likely to cause to B’s school routine and to any extra-curricular activities that B engages in on the weekends.

55During the school holidays, the mother proposed that B spend a minimum block of five nights with the father in Perth during the Term 3, 2019 school holidays. I considered that the mother’s proposal in this regard was appropriate. However, she also proposed that generally, B spend blocks of up to nine nights during the school term holidays and for no less than three weeks during the Christmas school holidays. In my view, her proposals for school holidays generally were not appropriate in the short term, but were more likely to be appropriate as B becomes older. Mr Hedges conceded as such in his closing submissions, indicating that such extended school holiday time frames would be more appropriate when B was nine or 10 years old. Given B’s young age and current likely stage of development, I was not satisfied on the available evidence that B would be able to cope with being separated from the mother, his primary carer and primary attachment figure, for such long periods. Again, I consider that the approach of having graduated blocks of increased time with the father is more developmentally appropriate for B. Subject to the parties having liberty to make further submissions, I am satisfied that: until such time as B turns eight years of age, the father should spend time with B during the term school holidays for blocks of five nights, increasing to blocks of seven nights when he turns nine years of age and then to blocks of nine nights when he turns 10 years of age. I am also satisfied that the graduated blocks of time should also apply in relation to the Christmas school holidays, but on the basis that: (1) until B is 10 years old, the blocks of time occur on an alternating weekly basis in accordance with the father’s FIFO roster; and (2) as from when B turns 10 years old, he should then spend time with the father for one continuous period of three weeks.

56Except as I set out below, I am not satisfied that the father should be required to spend the school holidays with B in State A until such time as B turns eight. B should have the opportunity to travel to Perth during the school holidays, so that he also has the opportunity to spend time with his extended paternal family in their “home town”. However, subject to the parties having liberty to make further submissions specifically in relation to the Christmas school holidays until such time as B turns 10, I am not satisfied that it is in B’s best interests to effectively require him to make three return trips to and from Perth during the Christmas school holidays. I consider that B’s travel to Perth during the Christmas school holidays should be limited to one return trip (and on the basis that the two other blocks of time occur in State A). Once B turns 10, the issue becomes moot, as B will then be spending one continuous block of three weeks in his father’s care.

57In relation to facilitating the travel arrangements, the mother proposed that the parties pool their frequent flyer points to fly the father to State A as often as he wished to do so. I am not satisfied that such an arrangement is feasible and may well lead the parties into further dispute: for example, if they independently chose to use their points for other purposes. The mother also proposed effectively that she pay for the return flights for B to travel to Perth, either directly or indirectly by the father paying for the flights and being at liberty to deduct the costs from his child support payments. The mother also proposed that if the father travelled to State A to spend time with B, then she would effectively provide for the father to be accommodated at a holiday-let apartment owned by a family member and/or friend. The father was very cynical of the bona fides of the mother’s offer in this regard. Whilst I was satisfied that the mother was genuine in her offer, I considered that there were considerable practical problems with her proposal which are very likely to lead the parties into ongoing disputes. This would particularly occur in the in the event that the father either chose not to communicate with the mother in a timely manner about his proposed travel plans to give her sufficient time to book the accommodation, or cancelled his travel plans at the last moment, possibly causing the mother to incur cancellation fees. Subject to the parties having liberty to make further submissions, in my view, the most appropriate arrangement is for the mother to meet the costs of the four annual return flights for B to travel to Perth to spend time with the father during each of the school holidays (including her own costs or that of any other adult maternal family member who accompanies B on the flights), on the basis that the father meets his own costs of travelling to State A to spend time with B, including his airline and accommodation costs.

58The mother proposed the Christmas holiday time should effectively only occur when the father was off site and/or on annual leave. She also sought that if time occurred in Perth, then the father must ensure that he is B’s primary carer and that B is not left in others care for extended periods of time. I am not persuaded that such conditions are necessarily in B’s best interests or warranted, as for example, it would arguably prevent B from being able to spend extended periods of time, such as sleepovers with his extended paternal family members. I am also not satisfied it is necessary to specify a timeframe for when B will be able to fly to and from Perth, unaccompanied. I am satisfied that the mother is best placed to make this decision.

59Finally, the mother sought a number of orders: (1) for the parties to each have sole responsibility for the day to day care of B when he was in their respective care; (2) for the parties to have reasonable telephone communications with B when he was not in their respective care; (3) to facilitate B celebrating special occasions such as the Christmas festive period, Easter, Mother’s Day, Father’s Day and birthdays; (4) to facilitate the parties exchanging relevant educational and medical information concerning B; (5) to facilitate the parties making travel arrangements concerning B; and (6) for the parties to be restrained by injunction from changing B’s principal place of residence or removing B from [his state of residence] or the Commonwealth of Australia without the others consent or a court order, denigrating the other party / their partner to or discussing the court proceedings with B. The father was largely silent about such issues. I considered that the orders proposed by the mother were appropriate in the circumstances.

LEGAL PRINCIPLES – PROPERTY PROCEEDINGS:

60These proceedings are determined pursuant to Part VIII of the Act. I must firstly determine whether it is just and equitable to make an order,[11] having regard to the parties’ rights and interests in their existing property.[12] If I so determine, then I must consider the factors set out in the legislation.[13] In this case both parties maintained and I am satisfied that having regard to their property interests, it was just and equitable to make an order by way of alteration of property interests. The parties separated on a final basis in 2017 and both sought to sever their financial relationship with each other.

EXISTING INTERESTS IN PROPERTY:

[11] Refer to section 79(2) of the Act.

[12] Stanford v Stanford (2012) FLC 93‑518.

[13] Refer to section 79(4) of the Act.

61I am satisfied that the property interests of the parties is as set out in the following schedule:

Item #	Assets	Estimated Value[14]
1	[Suburb Y] property	$300,000
2	[Suburb Z] property	$300,000
3	[Suburb X] property	$400,000
4	Mother’s [Vehicle A] motor vehicle	$25,000

[14] For the purposes of the trial, both parties relied upon schedules of asset and liabilities that provided estimated values only. Although the parties provided specific values for a limited number of items, for example, the current balance of the [Suburb X] mortgage, I was satisfied that for the purposes of these reasons, I should generally adopt estimated figures. This was particularly in light of the parties’ agreement that the [Suburb Y], [Suburb X] and potentially the [Suburb Z] properties should all be sold and the liabilities relating thereto be paid out.

5	[Vehicle B] motor vehicle proceeds of sale	$4,500
6	Father’s bank accounts	$2,000
7	Mother’s bank accounts	$1,600
8	Mother’s furniture and contents	$0
9	Father’s furniture and contents	$0
10	Camper trailer	$3,000
11	Father’s [Vehicle C] motor vehicle	$4,000
Total assets	$1,040,100
Liabilities
12	[Suburb Y] mortgage	-$230,000
13	[Suburb Z] mortgage	-$460,000
14	[Suburb X] mortgage	-$186,000
15	Wife’s loan from parents	-$16,000
16	Wife’s credit cards	-$4,000
Total liabilities	-$896,000
TOTAL NET ASSETS	$144,100
Superannuation
17	Wife’s superannuation entitlements	$118,000
18	Husband’s superannuation entitlements	$229,000
TOTAL NET ASSETS & SUPERANNUATION	$491,100

62Save for the following items, the parties either agreed or did not dispute the schedule:

a) Item 5: The mother maintained that the Vehicle B motor vehicle retained by the father was valued at $5,000. However, I accept the father’s evidence that he sold the Vehicle B motor vehicle for $4,500 and retained the proceeds. The father did not dispute and I am satisfied that the net proceeds should be included in the schedule.

b) Items 6 and 7: In their respective Papers for the Judge and/or at trial, each party provided different estimates of their own and the other party’s bank accounts. Neither the father nor the mother chose to explore the issue in cross‑examination. Accordingly, I propose to proceed on the basis of accepting each party’s evidence as to their own bank account balances as admissions against interests.

c) Items 9, 10 and 11: The parties agreed that the estimated value of the mother’s furniture and contents was $2,500. However, the mother’s position was that if she was permitted to relocate to State A with B, then it was not commercially viable to transport her furniture and contents to State A. Instead, she proposed to leave the items in the Suburb X property to assist with its sale and otherwise allow the father to keep and/or dispose of the items as he saw fit, and on the basis that they had no value. Given the findings I have earlier made in relation to the parenting issues, I propose to treat the items as having no value. The parties did not agree as to the value of the father’s furniture and contents: the mother maintaining their estimated value was $3,000 whilst the father maintained the value was $0. The parties also did not agree the value of the father’s Vehicle C motor vehicle: the mother maintaining its estimated value was $5,000, whereas the father maintained it was $4,000. Again, neither the mother nor the father chose to explore the issues in cross-examination at all. Accordingly, I propose to accept the father’s admissions against interests.

d) In her Papers for the Judge, the mother maintained that the parties’ respective liabilities in relation to unpaid legal fees should be included in the schedule. The mother’s liability was significantly greater than that of the father’s. However, Mr Hedges appropriately conceded that it was open to the Court to exclude these liabilities. I am satisfied that I should not include these liabilities, as to do so, would in effect, require the father to subsidize the mother’s legal costs.

e) The father did tangentially refer to the fact that capital gains tax may arise from the sale of the Suburb Y property. It appeared not to be in dispute that such considerations do not arise in relation to the other two properties. Both parties agree that the Suburb Y property should be sold. I am satisfied that if any capital gains tax arises from the sale, then the liability should be taken into account and be paid from the net proceeds of sale thereof.

SECTION 79(4) (a), (b) (c) FACTORS:

63At the commencement of the parties’ cohabitation, both worked on a full time basis. The major property of the father comprised interests in three properties in [City B, State B], [Suburb Y] and [Suburb W], subject to mortgages, together with some superannuation entitlements, a motor vehicle and furniture and contents. The major property of the mother comprised her interest in a property in [Suburb T], subject to mortgage, together with some superannuation entitlements, a car and furniture and contents. The mother had previously acquired the Suburb T property with financial assistance from her father, who contributed $27,000 towards the purchase price.

64During the relationship, the father was the primary income earner. He continued to work full time throughout the relationship on a FIFO basis.[15] The mother ceased work just prior to B’s birth. The mother was thereafter the primary homemaker and parent. The mother returned to work in or about April 2013 on a part time basis. In or about November 2014 the parties agreed that the mother should resign her employment, to enable her to care for B and to retrain as [a] nurse.

[15] Albeit the father may have had short breaks between FIFO contracts.

65During the relationship, the father largely rented out the Suburb Y property. He sold the property in City B, State B and applied the net proceeds in reduction of the mortgages relating to the Suburb Y and Suburb W properties. The father subsequently sold the Suburb W property at a loss. The mother rented out her property in Suburb T until 2012 when it was sold. The mother paid the net proceeds of approximately $50,000 into the parties’ joint account. The funds were gradually expended in meeting the family’s ongoing living expenses.

66During the relationship, the parties jointly purchased two properties: in Suburb Z and Suburb X, obtaining mortgages to complete the purchases. The parties lived in both properties at various times. At the time of separation, the parties were living in the Suburb X property. The Suburb Y, Suburb Z and Suburb X properties all collaterally secure the mortgages over the other properties.

67After the parties’ separation in January 2017, the mother continued to live in the Suburb X property and had the full time care of B. She continued her studies to become qualified as a nurse. The mother eventually graduated as a nurse and now works on a casual basis at [Hospital A]: generally for two days a week; and otherwise obtains casual work at various [hospitals] in the Suburb X locality.

68After separation, the father continued to work full time on a FIFO basis. He paid child support to the mother by way of continuing to pay the mortgage over the Suburb X property. The father has also been primarily responsible for servicing the mortgages on the Suburb Y and Suburb Z properties. The father has continued to receive rental income from the Suburb Y property. The father has been slowly undertaking various improvements and renovations to the Suburb Z property. The father acknowledged that the remaining work needed to be done to complete the renovations will only take a matter of weeks.

69The parties agreed and I am satisfied that contributions should be assessed as to 50 per cent to the father and as to 50 per cent to the mother.

SECTION 79(4)(e) / SECTION 75(2) FACTORS:

70I will now consider the relevant factors as required by the legislation. If I do not refer to a factor, it is because I consider the matter is not relevant in this case.

71Both parties are in their early to mid-forties and are in good health. I am satisfied that the father has an ongoing capacity for appropriate full time gainful employment, which he is fully exercising. The father works on a FIFO basis as [a] mechanic. There was some confusion in the father’s evidence about his current income. Although the father insisted in cross-examination that his income was only $95,000 per annum, I was not satisfied that he was being entirely frank about the matter and observe that the father deposed to a somewhat higher income in his financial statements. Information from the Child Support Agency did not shed light on the issue, as it appeared that the Agency’s most recent assessment was based on an income estimate only, and not the father’s income tax return. I am satisfied that the mother has an ongoing capacity for appropriate full time gainful employment. The mother has qualifications as a nurse and in the resources industry as [an administration] officer. She has been unable to obtain full time employment and currently earns approximately $800 per fortnight from her casual employment. She is otherwise dependent upon Centrelink entitlements and child support. Assuming that the mother is able to obtain full time employment as a nurse in State A then based on the job advertisements the mother identified as suitable, she could expect to earn a full time income of between $65,000 per annum to $100,000 per annum, dependent upon her level of experience. Whilst I am satisfied that in the short to medium term, the father is likely to continue to have a greater income earning capacity than that of the mother, I am satisfied that over time, the mother’s income is likely to increase to the point where her income is comparable to that of the father’s.

72The mother will have the ongoing responsibility to care for B. Nevertheless, the mother proposes to work full time and will have considerable support and assistance from her family, including in assisting with B’s care. The father will have an ongoing obligation to pay child support for B into the future.

73The father raised a number of matters as follows:

a) Firstly, that the court should have regard to the fact that during the marriage, he incurred a $25,000 loss on the sale of his Suburb W property. The father did not elucidate on why this matter may be relevant under s 75(2)(o) and I am not persuaded that it has any relevance.

b) Secondly, that the court should have regard to the fact that given he proposed to take the Suburb Z property as part of his property settlement entitlements, subject to the existing mortgage, he would be taking a property which had negative equity and accordingly he should be given some additional “credit” for doing so. I am not persuaded by the father’s logic, particularly as: (1) the values of the property and the mortgage have been fully accounted for in the property schedule; and (2) it is the father’s decision to take on the commercial risk, in the hope that as the real estate market improves, the net equity in the property will move into positive territory; and (3) there is no certainty that the father will be able to refinance the mortgage so as to retain the property in any event.

74Weighing the various factors identified by me I am satisfied that there should be a modest adjustment in favour of the mother, particularly to take into account the father’s greater income earning capacity in the short to medium term. I consider that an adjustment of five per cent is appropriate.

SECTION 79(4)(d),(f) & (g) FACTORS:

75The orders proposed by the parties have no significant impact on the earning capacity of either party. I have already dealt with the remaining factors, in so far as they are relevant.

PROPERTY PROCEEDINGS –DISCUSSION AND CONCLUSIONS:

76I intend to order that the property interests of the parties be divided as to 55 per cent to the mother and as to 45 per cent to the father. The parties agreed that the Suburb Y and Suburb X properties will be sold. In the event that the father is unable and/or decides not to retain the Suburb Z property, then it will also be sold. Neither party wished to retain the camper trailer. In the circumstances, I am satisfied that it should also be sold. The parties otherwise agreed the disposition of their remaining assets and liabilities.

77Given the difficulties in being able to calculate at this point in time what will be each party’s precise entitlements following the sales of the properties, I am satisfied that the most appropriate way to deal with the matter is to make specific orders for the “hard” net assets to be divided on a 55/45 basis between the parties once their values have been crystalized and separately make specific orders for the parties’ superannuation entitlements to effectively be divided on a 55/45 basis.[16] In the circumstances, I am satisfied that the proposed financial division is just and equitable and otherwise proper.

[16] Given that the parties total superannuation entitlements are $347,000, this means that the mother will receive a superannuation splitting payment of $72,850 in order for her to receive 55% of the parties total superannuation entitlements.

78The mother set out specific orders to effect property settlement. The father was largely silent in relation to these issues. I am satisfied that, save for the following matters, the orders sought by the mother are appropriate:

a) The mother proposed that in the event that the parties were unable to agree on the listing price for the properties, then it should be fixed on the basis of the parties obtaining one or more licensed valuations. I consider that such orders put the parties to unnecessary expense. Subject to both parties having liberty to make further submissions, I propose to make orders that in the event the parties are unable to agree the listing price from time to time, then it be in accordance with the written recommendation of the relevant listing agent.

b) I considered that the mother’s orders in relation to the disbursement of the net proceeds of sale of the properties failed to take into account the other assets and liabilities to be retained by each party. I accordingly intend to re‑draft the orders so as to enable these items to also be taken into account.

ORDERS:

79I propose to issue these reasons from chambers in order to give the parties an opportunity to consider them and my proposed orders, to redraft the superannuation splitting orders as necessary, and to give notice to the superannuation Trustee. I propose to make the following orders:

Parenting orders

1. All previous parenting orders in relation to the child, [B], born [in] 2012, be discharged.

2. [MS GRANGE] (“the mother”) and [MR GRANGE] (“the father”) have equal shared parental responsibility for the child.

3. The mother and the father each have sole parental responsibility for the day to day care of the child when the child is in their respective care.

4. The child live with the mother and the mother forthwith be permitted to relocate with the child to [State A].

5. The father spend time with the child as follows:

a)Subject to the father giving the mother not less than seven days’ prior written notice of his intention to travel to [State A] to spend time with the child, during the school terms in [State A] each alternate weekend in accordance with the father’s rostered time off as follows:

i)For the first five occasions, for blocks of three nights from after school Friday (or 9:00am if it is not a school day) until the commencement of school Monday (or 5:00pm if not a school day);

ii)Thereafter, on the next five occasions, for blocks of four nights from after school Thursday (or 9:00am if it is not a school day) until the commencement of school Monday (or 5:00pm if not a school day); and

iii)Thereafter, for blocks of five nights: from after school Thursday (or 9:00am if it is not a school day) until the commencement of school Tuesday (or 5:00pm if not a school day);

And on the basis that

iv)Unless otherwise agreed in writing between the parties, handovers take place at the child’s school;

v)The father meet all his travel and accommodation costs.

b)During each of the end of Term 1, 2 and 3 school holidays each year in accordance with the father’s rostered time off as follows:

i)Until such time as the child turns eight years of age, for blocks of five nights, increasing to blocks of seven nights when the child turns nine years of age and to blocks of nine nights when the child turns 10 years of age;

And on the basis that:

ii)Unless otherwise agreed in writing between the parties, handovers take place at Perth Airport;

iii)The mother meets the costs of the child’s return airline travel, together with her own / her agent’s costs of accompanying the child, if applicable.

c)During the summer school holidays each year in accordance with the father’s rostered time off site as follows:

i)Until such time as the child turns eight years of age, for three non-continuous blocks of five nights and on the basis that, unless otherwise agreed in writing between the parties, the father travel to [State A] to spend time with the child for two of the blocks of five nights;

ii)Thereafter, until such time as the child turns nine years of age, for three non-continuous blocks of seven nights; and on the basis that, unless otherwise agreed in writing between the parties, the father travel to [State A] to spend time with the child for two of the blocks of seven nights; and

iii)Thereafter, as and when the child turns 10 years of age, for a continuous block of three weeks;

And on the basis that:

iv)Handovers when the father travels to [State A] to spend time with the child take place at such locations as the parties agree in writing from time to time;

v)Handovers otherwise take place at Perth Airport;

vi)When the father travels to [State A] to spend time with the child, the father meet all his travel and accommodation costs; and

vii)When the child travels to Perth to spend time with the father, the mother meet the costs of the child’s return airline travel, together with her own / her agent’s costs of accompanying the child, if applicable.

6. The father spend time with the child as agreed with the mother subject to his FIFO roster:

a)In the event the Christmas festive period (“Christmas”) cannot be agreed then the father have Christmas in odd years and the mother have Christmas in even years; and

b)In the event Easter time cannot be agreed then the mother will have Easter in odd years and the father have Easter in even years.

7. In the event the child is spending time with the father on the weekend in which Mother’s Day falls, then the child shall spend time with the mother from 8:00am until 5:00pm on Mother’s Day in the event the father is in [State A].

8. In the event the child is spending time with the mother on the weekend in which Father’s Day falls and the father is in [State A], then the child shall spend time with the father for the weekend as a minimum.

9. In the event the child is spending time with the father on the day in which the child’s birthday falls, then the child shall spend time with the mother from 8:00am until 1:00pm on the day of his birthday and then return to the father for the conclusion of the father’s time with the child.

10. In the event the child is spending time with the father on the mother’s birthday, then the child shall spend time with the mother from 8:00am until 5:00pm and vice versa on the father’s birthday (in the event the father is in [State A]).

11. The mother authorise and instruct each educational institution (including after school care) attended by the child to release to the father such information regarding the progress of the child in their education including school reports, newsletters, notices of significant events at the school and notices of sporting events as may be reasonably requested from time to time.

12. The mother authorise and instruct each medical institution attended by the child to release to the father and the mother such information regarding the child’s medical and dental health as may be requested from time to time.

13. The mother and the father inform the other as soon as practicable of any hospitalisation, significant injury or health problems suffered by and treatment received by the child whilst they are in the care of the mother or father.

14. In the event the mother or the father wish to take the child outside the State they reside during the time the child is with them, then the departing parent do notify the other parent at least 14 days beforehand in respect of any proposed period of travel.

15. The departing parent to provide details to the other parent of:

a)The period of proposed absence;

b)A copy of the proposed itinerary; and

c)The address and telephone number of where the child will be during any such period.

16. Save and except as provided in the preceding paragraph, the mother and the father both be restrained and an injunction granted restraining the mother and the father from:

a)Removing or attempting to remove the child from the State of New South Wales or the Commonwealth of Australia without obtaining written consent of the other parent or an order of the Court; and

b)Changing the child’s principal place of residence without the prior written consent of the other parent or an order of the Court.

17. The mother and the father both be restrained and an injunction granted restraining each of them from discussing the Court proceedings with the child.

18. The mother and the father both be restrained and an injunction granted restraining each of them from denigrating the other parent or the other parent’s partner in the presence of or within the child’s hearing.

Financial orders

19. The mother and the father shall forthwith do all acts and things and sign all deeds to effect the sale of the property [Suburb Y] and for that purpose the following specific provisions apply:

a)The listing price for the property be not less than $300,000 or such other figure as is agreed between the parties from time to time;

b)The [Suburb Y] property be listed for sale with such real estate agent as the father and mother agreed and if no agreement then with the real estate agent to be nominated by the President of the Real Estate Institute of Western Australia (“the listing agent”);

c)The listing price of the [Suburb Y] property shall be the price agreed upon by the parties, and failing agreement, such value is to be fixed in accordance with the written recommendation of the listing agent from time to time; and

d)There be liberty to both parties to apply in relation to the sale of the [Suburb Y] property.

20. Pending the settlement of the sale of the [Suburb Y] property the father be solely responsible for and pay as and when they each fall due the following outgoings in relation to the [Suburb Y] property: namely the instalments of principal and interest pursuant to the mortgage, the rates, taxes and other outgoings (including but not limited to the current insurance policies) in relation to the property.

21. Upon the settlement of the sale of the [Suburb Y] property the proceeds of sale be applied as follows:

a)In payment of agent’s fees, commissions and costs of sale;

b)In adjustment of the rates and taxes;

c)In discharge of the mortgage secured against the title to the property;

d)In payment of any capital gains tax arising from the disposal of the property; and

e)The balance be distributed so as to effect an overall settlement between the parties as to 55% to the mother and 45% to the father, having regard to the assets and liabilities to be retained by each pursuant to paragraphs 20 to 30 inclusive of these orders.

22. The mother and the father shall forthwith do all acts and things and sign all deeds to effect the sale of the [Suburb X] property and for that purpose the following specific provisions apply:

a)The listing price for the property be not less than $400,000 or such other figure as is agreed between the parties from time to time;

b)The [Suburb X] property be listed for sale with such real estate agent as the father and mother agreed and if no agreement then with the real estate agent to be nominated by the President of the Real Estate Institute of Western Australia (“the listing agent”);

c)The listing price of the [Suburb X] property shall be the price agreed upon by the parties, and failing agreement, such value is to be fixed in accordance with the written recommendation of the listing agent from time to time; and

d)There be liberty to both parties to apply in relation to the sale of the [Suburb X] property.

23. Pending the settlement of the sale of the [Suburb X] property the father be solely responsible for and pay as and when they each fall due the following outgoings in relation to the [Suburb X] property: namely the instalments of principal and interest pursuant to the mortgage, the rates, taxes and other outgoings (including but not limited to the current insurance policies) in relation to the property.

24. Upon the settlement of the sale of the [Suburb X] property the proceeds of sale be applied as follows:

a)In payment of agent’s fees, commissions and costs of sale;

b)In adjustment of the rates and taxes;

c)In discharge of the mortgage secured against the title to the property; and

d)The balance be distributed so as to effect an overall settlement between the parties as to 55% to the mother and 45% to the father, having regard to the assets and liabilities to be retained by each pursuant to paragraphs 20 to 30 inclusive of these orders.

25. By no later than 12 noon on Monday 5 August 2019 the father do provide written confirmation from his bank that he is able to fully refinance the existing mortgage over the [Suburb Z] property so as to fully release and discharge the mother from all liability in relation thereto; and in such event:

a)Within 42 days, the mother do all acts and things and sign all deeds and documents necessary to transfer all of her right, title, and interest in and to the [Suburb Z] property (at the cost of the father) (an valued at $300,000 for the purposes of these orders) to the father absolutely;

b)Contemporaneously with the transfer, the father do all acts and things and sign all deeds and documents necessary to refinance the mortgage secured over the [Suburb Z] property (at the cost of the father) so as to release and discharge the mother from all liability in relation thereto; and

c)Contemporaneously with the transfer, the father do indemnify and forever keep the mother indemnified in relation to all liabilities, rates, taxes and other outgoings in relation to the [Suburb Z] property.

26. In the event that the father is unable to refinance the [Suburb Z] property as set out in paragraph 25 hereof within the nominated time frame, or the father notifies the mother in writing that he does not intend to retain the [Suburb Z] property as part of his property settlement entitlements, whichever is the earlier, then the immediately preceding paragraph be discharged and in lieu thereof the following do apply:

a)Within a further 30 days thereafter, the father do all necessary acts and things to complete the works on the [Suburb Z] property in order to present it for sale;

b)The father and the mother shall forthwith do all acts and things and sign all deeds and documents necessary to effect the sale of the [Suburb Z] property and for that purpose the following specific provisions apply:

i)The listing price for the [Suburb Z] property shall be not less than $300,000 or such other figure as agreed between the parties from time to time;

ii)The [Suburb Z] property be listed for sale with such real estate agent as the father and mother agree and if no agreement then with the real estate agent to be nominated by the President of the Real Estate Institute of Western Australia (“the listing agent”);

iii)The listing price of the [Suburb Z] property shall be the price agreed upon by the parties, and failing agreement, such value is to be fixed in accordance with the written recommendation of the listing agent from time to time; and

iv)There be liberty to both parties to apply in relation to the sale of the [Suburb Z] property.

c)Pending the settlement of the sale of the [Suburb Z] property the father be solely responsible for and pay as and when they each fall due the following outgoings in relation to the [Suburb Z] property: namely the instalments of principal and interest pursuant to the mortgage, the rates, taxes and other outgoings (including but not limited to the current insurance policies) in relation to the property.

d)Upon the settlement of the sale of the [Suburb Z] property the proceeds of sale be applied as follows:

i)In payment of agent’s fees, commissions and costs of sale;

ii)In adjustment of the rates and taxes;

iii)In discharge of the mortgage secured against the title to the property;

iv)In reimbursement to the father of his reasonable costs of the works required to ready the property for sale pursuant to paragraph 26(a) hereof; and

v)The balance be distributed so as to effect an overall settlement between the parties as to 55% to the mother and 45% to the father, having regard to the assets and liabilities to be retained by each pursuant to paragraphs 20 to 30 inclusive of these orders.

27. Within 28 days the father do all acts and things and sign all deeds and documents necessary to transfer and assign to the mother all his right, title, estate, and interest in and to the following items:

a)The [Vehicle A] motor vehicle in the possession of the mother (valued at $25,000 for the purposes of these orders); and

b)The mother’s funds deposited in her bank accounts (valued at $1600 for the purposes of these orders).

28. Within 28 days the mother do all acts and things and sign all deeds and documents necessary to transfer and assign to the father all her right, title, estate, and interest in and to the following items:

a)The proceeds of sale of the [Vehicle B] motor vehicle (valued at $4500 for the purposes of these orders;

b)The [Vehicle C] motor vehicle in the possession of the father (valued at $4000 for the purposes of these orders);

c)The father’s funds deposited in his bank accounts (valued at $2000 for the purposes of these orders);

d)The furniture and contents in the possession of the father (valued at $Nil for the purposes of these orders); and

e)The furniture and contents located at the [Suburb X] property (valued at $Nil for the purposes of these orders).

29. The father indemnify and keep indemnified the mother from all liability associated with any credit card liability, loans or debts in the joint names of the father and the mother or in the father’s sole name (valued at $Nil for the purposes of these orders).

30. The mother indemnify and keep the father indemnified from all liability associated with any credit card liability, loans or debts in the mother’s sole name (valued at -$20,000 for the purposes of these orders).

31. The father and the mother forthwith do all acts and things and sign all deeds and documents necessary to effect the sale of the campervan, with an initial listing price of $3000 or such other figure as is agreed between the parties from time to time; and on the basis that the net proceeds of sale are divided as to 55% to the mother and 45% to the father.

32. Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the father’s interest in the [XYZ] Superannuation Fund, the mother shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount at the date of these orders of $72,850 and there be a corresponding reduction in the entitlement that the father would have had in the [XYZ] Superannuation Fund but for this order.

33. That having been accorded procedural fairness these orders bind the trustees of the Fund to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations2001.

34. The operative time for these orders is 5 working days from the time the extracted orders are received by the parties from the Family Court.

35. The trustee of the [XYZ] Superannuation Fund in accordance with the obligations set out in the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlements of, and make payment to, the mother in accordance with these orders.

36. In the event the superannuation split to the mother pursuant to these orders can be rolled over into a separate account to the mother, each of the parties hereto shall each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.

37. Save and except for the above-mentioned superannuation splitting orders, each party do otherwise retain their respective superannuation entitlements to the exclusion of the other party.

38. The matter be removed from the Judge’s Defended List.

39. All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

40. In relation to material tendered as an exhibit into evidence in these proceedings:

a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Chief Judge Sutherland, at least 28 days, and no later than 42 days, from today’s date;

b)all parties must contact the Chambers of Honourable Chief Judge Sutherland to arrange the collection of their exhibits;

c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

41. In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 39 and 40 above do not apply.

42. All outstanding proceedings be and are hereby dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV
Associate

18 JULY 2019