Hall & Neuman (No 2)
[2024] FedCFamC2F 1324
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hall & Neuman (No 2) [2024] FedCFamC2F 1324
File number(s): MLC 2341 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 September 2024 Catchwords: FAMILY LAW – parenting and property – final orders – determination of whether one parent reneged on agreement for the family to move and live overseas – whether one parent coercive and controlling – whether the child should live with her mother or her father – father lives in Melbourne and mother lives in Country B – question of which parent will best support the child’s relationship with the other parent – whether child settled where currently living – choice between child lives with one of two good parents – property division proceedings – determination of extent of one parents inheritance and weight to be given to that inheritance – determination of disputed items in pool of property including treatment of paid legal fees and proceeds of sale of shares – consideration of contribution – whether equal as alleged by father or 60/40 as alleged by mother – contribution determined to be 57/43 – consideration of section 75(2) factors – whether should be nil or 10% - determination section 75(2) factors should be 7% - consideration of dollar amount of adjustments as well as percentage – overall division of assets 64/36 – agreed equality of superannuation split – proposed orders in default of payment need clarification – final orders made with direction for parties to bring in agreed default provision Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 75(2), 79(4) and 80
Family Law Amendment Act 2023 (Cth)
Cases cited: Adamson & Adamson (2014) FLC 93-622
AJO & GRO [2005] FamCA 195; (2005) FLC 93-218
AMS v AIF (1999) 199 CLR 160
Britt & Britt (2017) FLC 93-764
Clauson & Clauson (1995) FLC 92-595
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith (2015) FLC 93-638
Fox v Percy (2003) 214 CLR 118
Franklyn & Franklyn (2019) FamCAFC 256
Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143
Hobson v Hobson (2020) 61 Fam LR 557
Hoffman & Hoffman (2014) FLC 93-591
Hurst & Hurst (2018) FLC 93-851
Keskin & Keskin and Anor (2019) FLC 93-932
Lovine & Connor and Anor (2012) FLC 93-515
Malcolm & Munro (2011) FLC 93-460
McCall & Clark (2009) FLC 93-405
Morden & Coad [2019] FamCAFC 233
Phipson & Phipson [2009] FamCAFC 28
Rosati v Rosati (1998) FLC 92-804
Sayer & Radcliffe [2012] FamCAFC 209
Townsend & Townsend [1994] FamCA 144; (1995) FLC 92-569
Trevi& Trevi (2018) FLC 93-858
Varnham & Moses (2021) FLC 94-007
Wallis & Manning (2017) FLC 93-759
Wayne & Wayne [2010] FamCAFC 33
Whisprun Pty Ltd v Dixon: (2003) 234 CLR 492
Division: Division 2 Family Law Number of paragraphs: 342 Date of last submission/s: 7 February 2024 Date of hearing: 29 January 2024 – 7 February 2024 Place: Melbourne Counsel for the Applicant: Ms Mallet KC and Mr Dunlop Solicitor for the Applicant: Nicholes Family Lawyers Counsel for the Respondent: Ms Wheeler Solicitor for the Respondent: Leanne Cain & Associates ORDERS
MLC 2341 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HALL
Applicant
AND: MR NEUMAN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Mr Neuman, (‘the Father’) and Ms Neuman (‘the Mother’), have equal shared parental responsibility for long term decisions in relation to the child X born in 2014 (hereinafter referred to as "[X]").
Residence
2.X live with the Father.
If both parents live in Australia: week about equal shared care
3.In the event the Mother permanently relocates to live in Australia and lives, or arranges to live, within a distance from the school X is attending where it would be practical for X to attend when living with the Mother, on or before 31 December 2024, then X live with her parents, the Mother and the Father, on an equal shared basis and;
(a)during school term, on a week about routine, with changeover after school on Friday and if a non school day at 3.30pm; and
(b)during school holidays for one half of each school holidays as agreed; and
(i)in default of agreement in writing by text message or email, with the Mother for the first half of school holidays and with the Father for the second half in odd years; and
(ii)in default of agreement in writing by text message or email, with the Father for the first half of school holidays and with the Mother for the second half in even years; and
(c)On special occasions as agreed in writing by text message or email; and
(d)As otherwise agreed between the parties in writing by text message or email.
If the parents live in different countries: X lives with the Father
4.That in the event that the Mother does not live in the same city as X, then X live with the Father and spend time with the Mother as follows:
In Australia:
(a)During school term for 14 consecutive days at a time or such longer period agreed between the Father and the Mother, upon the Mother providing 21 days notice in writing to the Father (or such shorter notice agreed in writing) commencing on the day after the Mother's arrival in Australia and concluding at 3.30pm on the 15th day;
(b)For 8 consecutive days each school term holiday;
(c)Such further and other times agreed by the Father and Mother in writing;
In Country B (or such other Convention country in which the Mother may reside)
(d)For 2 weeks during each Victorian school term 2 holiday period each year (“the mid-year contact period)
(e)For 4 weeks during each Victorian school long summer holiday (“the end of year contact period”) as follows;
(i)From 23 December 2024 to 20 January 2025 and each alternate year thereafter;
(ii)From 29 December 2025 to 25 January 2026 and each alternate year thereafter;
(iii)Such further and other times agreed by the Father and Mother in writing
5.To facilitate the child's travel to and from Country B for the mid-year contact period the Father travel with X to Country B International Airport ("the mid-year changeover destination") and provide to the Mother 72 hours prior to departure from Australia:
(a)A copy of the Father's and the child's itinerary;
(b)Copies of all tickets to facilitate the Father's and the child's travel; and
(c)A copy of the travel insurance policy for the Father and the child; and
the Mother travel to the mid-year changeover destination to collect the child.
6.The Father or the Mother, as the case may be pursuant to these orders, accompany X at all times during the child's travel when she is in their care pursuant to these Orders.
7.The Mother notify the Father 72 hours prior to the Father and X depart from Australia:
(a)A copy of the Mother's and X’s itinerary;
(b)Copies of the tickets that facilitate the Mother's and X’s travel whilst the child is in her care;
(c)Addresses at which X will be staying (together with relevant dates) whilst X is in her care; and
(d)A copy of the travel insurance policy for the Mother and X.
8.The Father deliver the child to the Mother at the mid-year contact destination at the commencement of the mid-year contact period and the Mother return the child to the Father at the mid-year contact destination at the conclusion of the mid-year contact period.
9.At the conclusion of the mid-year contact period the Mother will hand to the Father, (solely for safe keeping and not to be released to any other person unless agreed in writing by text message or email), X’s Australian and Country D passports.
10.To facilitate X’s travel to spend time with the Mother during the end of year contact period the following shall apply:
(a)The Father will travel with the child to Country U, Country V, or such other destination, the parties having agreed previously in writing, and in default of agreement inwriting by text message or email reached by 4.00pm AEST 30 September in each year, Country B International Airport (“the agreed end of year changeover destination’) and provide to the Mother 72 hours prior to departure from Australia:
(i)A copy of the itinerary of the Father and X; and
(ii)Copies of the tickets that facilitate the travel of the Father and X.
(iii)A copy of the travel insurance policy for the Father and X.
(b)The Mother travel to the agreed end of year changeover destination and collect the child;
(c)The Father and the Mother, as the case maybe pursuant to these orders, accompany X at all times during the child's travel when she is in his or her care pursuant to these Orders;
(d)The Mother notify the Father 72 hours prior to the Father and X’s departure from Australia:
(i)A copy of the Mother's and X’s itinerary;
(ii)Copies of tickets that facilitate the Mother's and X’s travel whilst the child is in her care;
(iii)Addresses at which the child will be staying (together with relevant dates) whilst the child is in her care; and
(iv)A copy of the travel insurance policy for the Mother and X.
11.The Father deliver the child to the Mother at the agreed end of year changeover destination at the commencement of the end of year contact period and the Mother return the child to the Father at the agreed end of year changeover destination at the conclusion of the end of year contact period.
12.At the conclusion of the end of year contact period the Mother will hand to the Father, for his safe keeping and not to be released to any other person unless agreed in writing by email or text message, X’s Australian and Country D passports.
Passports
13.The Father and the Mother do all things and sign all documents as may be necessary from time to time to renew Australian and Country D passports for the child and all other relevant travel documents which may be required and share equally all costs associated with same.
14.The Father and the Mother respectively be permitted to take the child overseas for holidays to countries that are signatories to the Hague Convention on Civil Aspects of International Child Abduction ("Convention Countries") during the period they are in each parent's respective care provided always that they provide 21 days notice in writing of their intention to travel with the child together with the child's itinerary, contact details, flights and addresses at which the child and parent will be residing.
15.In the event the Mother continues to reside in Country B or any other country she wishes to reside in;
(a)all travel undertaken by the child to and from the mid-year and agreed end of year changeover destinations will be at the expense of the Father; and
(b)all travel undertaken by the child from and to the mid-year and agreed end of year changeover destinations, within the Country B and Convention Countries, will be at the expense of the Mother.
School
16.X remain enrolled in W School (“the child’s school”) and each parent is hereby restrained from enrolling the child in any other school without the prior written consent of the other parent.
17.In relation to the child's school and education the Father and the Mother do all acts and things to cause and ensure that each parent be authorised and permitted:
(a)To access all information pertaining to the child's school via the school's online portal including but not limited to newsletters, reports, school activities, school trips;
(b)To attend parent/teacher interviews and/or discuss the child's progress with her teachers and/or principal; and
(c)To attend any and all school functions and events relating to the child; and the parents otherwise keep each other informed of all matters relating to the child's school and education which are not otherwise available through the school portal known as Compass.
Child’s phone/video contact with the parents
18.During the time the child is in the care of the Father and Mother respectively the child be permitted to have telephone and/or video contact with the other parent at 7am local time for the child on each second day or such other time agreed by the Father and Mother in writing.
19.The child be permitted by each parent to make contact with the other parent by telephone and/or video and or email contact at all reasonable times.
Specific Issues
20.The Father and the Mother each notify the other immediately by text message of any accident, serious injury or illness suffered by the child whilst in their care.
21.The Father and the Mother each provide to the other their current:
(a)residential address;
(b)any landline phone number;
(c)mobile telephone number; and
(d)private email address.
Injunctions
22.The Father and the Mother respectively be and are hereby restrained from denigrating the other parent and/or their family members or friends to or within the hearing of X.
FINAL PROPERTY ORDERS
23.The Applicant within 90 days (“the settlement date”) transfer to the Respondent at his expense of all her right, title and interest in G Street, Suburb H, Victoria ("the Suburb H home") (Certificate of Title Volume … Folio …) ("the Transfer").
24.That contemporaneously with the Transfer the respondent pay to the applicant $632,972 (‘the payment’).
25.Contemporaneously with the transfer the Respondent discharge and refinance the mortgage registered number … and pay, indemnify and keep indemnified the Applicant in respect of all outgoings and liability in respect of the Suburb H home.
26.Liberty to apply on an urgent basis for a 106A Order and costs in the event that either party fails or refuses to sign documents to give effect to these Orders.
27.That otherwise the applicant retain all of her right title and interest in the estate of Mr AA Deceased in 2019 including any right title and interest as trustee to the interest of the child X in same.
28.The parties otherwise retain all other property and financial resources in their respective possession, or to which they are entitled, and indemnify the other in regard to any liability relating to any property he or she retains.
Pending the transfer of the property or the completion of the default sale
29.Pending the completion of the sale of the Suburb H property, the husband shall pay all outgoings in relation to the Suburb H property including all mortgage instalments, rates, insurances and taxes as and when they fall due.
30.The Husband is restrained from further encumbering the Suburb H Property without the consent in writing of the wife.
31.The parties hold their respective interests in the Suburb H Property upon trust pursuant to these Orders.
Default of sale
32.The parties be and are directed to bring in agreed minutes of orders that deal with a default sale of the Suburb H home in the event the payment is not made 90 days from this day within 14 days and in default of agreement each party file the proposed default order as pressed by him or her together with a short written submission not exceeding one (1) page.
Superannuation
33.The parties in their capacity as directors of Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund must do all acts and things and must sign all documents necessary, including instructing Z Group or such other person agreed between the parties, to cause the Neuman Hall Super Fund to be compliant with the Superannuation Industry (Supervision) Regulations 1994, at the fund's expense.
34.In the event that the Australian Taxation Office imposes penalties for non-compliance of the Neuman Hall Super Fund, the parties must do all acts and things necessary to cause this fund to forthwith pay the penalties imposed by the ATO.
35.The husband and the wife in their capacity as directors of Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund, hereby acknowledge that the Neuman Hall Super Fund has been accorded procedural fairness in relation to the making of these orders.
36.Paragraphs 14 and 15 below have effect from the operative time, being four days after service of these orders on Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund, whilst noting that service must occur after the Neuman Hall Super Fund is made compliant with the Superannuation Industry (Supervision) Regulations 1994, pursuant to paragraph 10 above.
37.In accordance with section 90XT of the Family Law Act 1975:
(a)Whenever a splitable payment becomes payable out of the husband's interest in the Neuman Hall Super Fund, the wife must be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation Regulations) 2001, using the base amount specified in the following calculation; and
(b)The husband's entitlement in the Neuman Hall Super Fund be correspondingly reduced.
The base amount is calculated as follows:
Base amount = (A + B) x 50% - B, where -
A = the husband's member benefit balance at the operative time; and
B = the wife's member benefit balance at the operative time,
And acknowledging that the purpose of these orders is to equalise the parties' entitlements in the Neuman Hall Super Fund.
38.The parties in their capacity as directors of Neuman & Hall Super Pty Ltd as trustee of the Neuman Hall Super Fund must do all such acts and things and must sign all such documents as may be necessary to calculate, in accordance with the requirements of the Family Law Act 1975, the entitlements created by paragraph 14 of these orders.
39.Following the superannuation split pursuant to the preceding orders, the parties forthwith must do all things necessary to rollover or transfer the wife’s interest in the Neuman Hall Super Fund to a superannuation fund of her choice, in accordance with Regulation 7A, 12 of the Superannuation Industry (Supervision) Regulations 1994.
40.Forthwith following the transfer of the parties' superannuation entitlements in the Neuman Hall Super Fund, the parties must do all acts and things and must sign all such documents, at the parties' equal shared expense, to -
(a)Dissolve the Neuman Hall Super Fund; and
(b)Wind up Neuman & Hall Super Pty Ltd.
41.The parties must sign all documents and must do all things necessary to give effect to the terms of these Orders.
42.That within thirty (30) days from the date of these orders, the wife shall do all acts and things and sign all such documents as may be required to resign as director and shareholder of Neuman & Hall Pty Ltd.
43.In the event that the husband does not elect in writing within 14 days to retain Neuman & Hall Pty Ltd, then:
(a)That within thirty (30) days from the date of these Orders, the parties in their respective capacities as directors of the bare trust shall do all acts and things necessary, including signing all necessary documents to:
(i)Realise assets in order to wind up and dissolve Neuman & Hall Pty Ltd; and
(ii)Sign all necessary documents to cause the deregistration of Neuman & Hall Pty Ltd at the parties’ equal expense.
Indemnity (mutual)
44.That unless otherwise specified in these Orders and/or agreed in writing between the parties and save for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date. The contents of the Suburb H home are deemed to be in the possession of the Father;
(b)monies standing to the credit of the parties in any joint bank account are to be paid to the husband and the account forthwith closed;
(c)all insurance policies remain the sole property of the beneficiary named hereunder;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)any joint tenancy is hereby expressly severed.
General
45.Save as to the issue of the provisions of a default sale of the Suburb H property in the event the payment is not made within the specified time, all extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Having separated after a marriage of 14 years, the applicant mother, Ms Hall and the respondent Father, Mr Neuman, being unable to work out their child’s living arrangements or a just and equitable property division, require the determination of the Court.
The parties have one child, X born in 2014 who was aged nine (9) years at the time of final hearing and is now ten (10) years. Neuman has two adult children from his previous marriage who were deponents in the proceedings supporting his case.
The first question I must decide in this case is whether X should live with Ms Hall who lives in Country B or with Mr Neuman, who lives in Melbourne, Australia.
PARENTING ORDERS DECISION
For the reasons that follow I have determined that X should live with her father, Mr Neuman, and spend time with her mother, Ms Hall, as frequently as is reasonably practical with her parents living on opposite sides of the world.
I have determined, for the reasons that follow, in the event Ms Hall moves back to Melbourne, within a practical traveling distance from X’s school, (as she asserts she will in November of 2024), it is in X best interests that she live with her parents on a week about basis during school term and for part of the school holidays.
BACKGROUND
Ms Hall has lived in Country B since late 2022, pursuant to what she says was a long planned and agreed or understood joint position, where after a few more months of X living with Mr Neuman in Melbourne, Mr Neuman and X would move to Country B to live there with Ms Hall. Ms Hall moved to Country B in 2022 (she was then living in Country D) and has taken up career defining employment and advancement there.
X had commenced school in Melbourne in 2020 at W School which was a local school to where the former matrimonial home was located. X has had different education throughout her early schooling due to where she resided at that time. For the first half of 2022 Ms Hall and X travelled to, and lived in, Country D where Ms Hall had been born and raised and maintained family connections. Ms Hall worked there, and X attended a local school, but a Country B Language speaking school. Mr Neuman visited for a holiday.
In mid-2022, while still in Country D, Ms Hall obtained the possibility of living and working in Country B. The parties agreed X would return to Melbourne to resume school at the same school as she had previously attended. Whether this agreement was an indefinite one, or only for term 3 and term 4, (that is the second half of 2022) is disputed.
In mid-2022 Ms Hall accepted a permanent position in Country B. In late 2022 the parties met in Country U for a short holiday. Ms Hall then returned to Country D and Mr Neuman, with X, as agreed, returned to Australia and X resumed at the same school.
In late 2022[1], Ms Hall says for the first time, Mr Neuman told her he did not agree, and had not agreed, to X moving to Country B and “unilaterally withheld” X in Australia, contrary to that agreement. X has lived in Australia with Mr Neuman since then.
[1] Mother’s trial affidavit filed 13 December 2023 at [34-35].
In October 2022, via electronic communication, the parties separated and ended their marriage relationship. Since then, X has remained living with her father in Melbourne, Australia and her mother has frequently travelled to Australia to spend time with X and X has travelled overseas to spend time with her mother as well.
Mr Neuman says that living and working in Country B, with X and with him following her, had been a long-term dream of Ms Hall’s. Ms Hall asserts that the parties had an agreement to move overseas, and that the Father reneged on that agreement.
Ms Hall’s characterisation of those events is as she told the Family Report Writer when interviewed on 4 July 2023:
14.[Ms Hall] stressed that a return to Australia from [Country D] in 2022 was determined to be the most appropriate setting while [Ms Hall] pursued prospective work roles in [Country B]. Once appointed to her current role [Ms Hall] relocated on the understanding that [Mr Neuman] and [X] would follow shortly after. [Ms Hall] refers to emails and other documents in support of her claim that [Mr Neuman] was committed to the move. [Ms Hall] expressed feelings of disappointment and anger that after a holiday in [Country U] together [Mr Neuman] returned to Australia with [X] and reneged on their agreement to relocate as a family. [Ms Hall] experienced this as a fundamental breach of trust in the relationship that set the tone for their ongoing dispute. She reflected, "I meticulously planned every step of this move and to do this to us ..... .I now see him as full of lies, and what he is doing is about punishing me."
The Family Law Amendment Act 2023 (Cth) (‘the Amendment Act’) has made significant changes to the Family Law Act 1975 (Cth) that now affect the users of the Family Law system. These changes include amendments to the framework for parenting orders. Most changes commence on 6 May 2024 and apply to all new and existing matters, except where a final hearing had already commenced by that date. Given this matter was heard by final hearing prior to the 6 May 2024 day, the legislative framework must be followed as it was at that time.
Hence I look at the competing parenting applications and proposals by the application of Part VII of the Family Law Act1975 (Cth) (‘the Act’) as it was prior to 6 May 2024. In any event, although I do not make any finding about this, it is not apparent to me how the outcome would have been any different.
BACKGROUND
Mr Neuman was born in Australia in 1969 and is aged 56. He is employed as a professional.
Ms Hall was born in Country D in 1976 and is aged 48. She works as a professional.
The parties commenced cohabitation in Australia in early 2005. They married in Australia in 2009 and separated in October 2022. As at the final hearing, the parties had not yet divorced.
Where the parties and X lived in 2022 is clear enough. Where the parties intended and/or agreed X would live in 2022 and thereafter is bitterly disputed.
THE PROCEEDINGS
Interim proceedings
Ms Hall commenced proceedings in this court on 8 March 2023, shortly after separation and after her move to Country B. However intense communications between the parties’ lawyers about where X would live marked the end of 2022 and each knew the other parent did not agree where X should live from soon after the Mother’s move to Country B from Country D. Interim disputes came before me on 17 August 2023. There were a raft of disputes alive but the parties told me that many of their disputes, including when Ms Hall’s time with X would occur in school holidays, were influenced by uncertainty as to when a final hearing would occur. The parties counsel asked for an indication of when the matter was likely to be fixed for final hearing before me and in that context, I fixed the matter for hearing the following January at the end of the otherwise almost agreed school holiday time for X when Ms Hall would return her to Australia. The matters that were then in dispute were, although important, of relatively small compass and I ruled on those issues.
Hence the Interim Orders in place at the time of the final hearing (made on 17 August 2023) included:
THE COURTS ORDERS BY CONSENT THAT, UNTIL FURTHER ORDER:
1.The Mother and Father have equal shared parental responsibility for the child [X] born [in] 2014 (“[X]”).
2.Pending the determination of the parties’ respective applications for final parenting Orders, or unless otherwise ordered prior, [X] live with the Father and spend time with the Mother as follows:
(a) In Australia:
(i) From 9am 22 September 2023 until 3pm 15 October 2023;
(ii)During school terms in 2023, if the Mother travels to Australia provided that she gives the Father 14 days’ notice, as agreed but failing agreement for up to 14 consecutive nights commencing at 4pm on the date that the Mother arrives in Australia and concluding at 4pm 15 days later;
AND THE COURTS ORDERS THAT, UNTIL FURTHER ORDER:
(iii)During school term by video each school day for a period of up to 30 minutes and for a period of up to 60 minutes each Sunday and each alternate Saturday.
THE COURTS ORDERS BY CONSENT THAT, UNTIL FURTHER ORDER:
(iv) At all other times as agreed between the parties in writing.
AND THE COURTS ORDERS THAT, UNTIL FURTHER ORDER:
(b) In [Country B]:
(i)From 17 December 2023 (departure [in] December 2023) until 18 January 2024;
…
(iv) At all other times as agreed between the parties in writing.
3. For the purposes of Order 2 hereof:
(detailed orders to facilitate [X] travel to [Country B] between […] December 2023 and […] January 2024)
THE COURTS ORDERS BY CONSENT THAT, UNTIL FURTHER ORDER:
(d)The Applicant is at liberty to travel within [Country B] and [Country J] (to Hague Convention Countries only) with the child during this period of time.
Specific Issues
…
7. The father and the mother respectively be and are hereby restrained from:
(a)Denigrating the other parent and/or their family members or friends to [X] or within the presence and/or hearing of [X];
(b) Showing [X] any communication between the parents; and
(c)Showing [X] any court documents, copies of reports, subpoenaed material or any other matter or material in these proceedings and from discussing the subject matter of the proceedings in the presence or hearing of [X].
AND THE COURTS ORDERS THAT, UNTIL FURTHER ORDER:
8.The Mother and Father sign all documents, provide authority and do such acts required to:
(a)Appoint [Ms K] of [L Psychology], [M Street, Suburb N] to undertake non-reportable counselling for [X]; and
(b)Obtain an educational assessment for [X] with [Ms O] of [P Psychology], [Q Street, Suburb R];
and the cost of same be shared equally by the Father and the Mother.
…
The Final Hearing
The matter had been fixed for trial on the representations of counsel then brief that this was a hearing of about 4 days. In December 2023 the Court was advised one side[2], with different counsel, opined that the trial would take 8-10 days. The other side, also with different counsel, disagreed and estimated it would take 5 days. The Final Hearing commenced on 29 January 2024 and ran for eight (8) days. I reserved reasons on 7 February 2024.
[2] Exhibit F1 6 December 2023.
The Mother was represented by senior and junior counsel for the final hearing and the Father was represented by counsel. At the start of the trial I asked senior counsel for a list of what were regarded as the key or determinative factual issues I was asked to determine. This request was declined and it was said for good reason. I acquiesced in that position but by the end of the trial the key factual disputes were clear enough.
There were ten (10) witnesses cross examined during the hearing. They were:
·Ms Hall;
·Mr Neuman;
·Ms Hall’s friend, Ms CC;
·Ms Hall’s de facto Sister-in-Law;
·Mr Neuman’s friend, Ms DD;
·Mr Neuman’s neighbour, Mr EE;
·Mr Neuman’s sister, Ms FF;
·Mr Neuman’s friend, Ms GG;
·The single expert witness, Ms O; and
·The Family Report Writer, Ms T.
The delivery of this judgment is outside the three-month guideline for delivery of judgments of this Court. I apologise to the parties and their lawyers for the delay. I have, assisted by affidavits of evidence in chief, exhibits tendered in the running and transcript of the proceedings, a clear recollection of the demeanour of the witnesses, the evidence, the issues and the rhythm of the trial.
At the conclusion of the trial, Ms Hall returned to Country B and X continued to reside in Melbourne with Mr Neuman. Ms Hall had always made it clear that returning to her life and work in Country B was her intention. By her counsel, Ms Hall informed the Court that in the event she was not successful in her application she would return to Australia to live in late 2024.
Of considerable assistance to me was the aid memoire of documents (annexures or exhibits to affidavits and exhibits tendered at trial) in chronological order, prepared with great diligence by the solicitor for Ms Hall that became exhibit M11.
Documents relied upon and exhibits tendered
The parties relied upon the documents set out in their respective Outlines of Case documents
Prior to the trial, the Father sought to rely upon the affidavits of his two adult daughters from his previous marriage. During the final hearing counsel agreed that the highly contentious allegations of each of those deponents relating to the events during Ms Hall’s first visit after separation (in January 2023) to the parties’ former matrimonial home would be struck out and when that was done neither of those witnesses were required for cross examination and neither came any oral evidence.
The parties proceeded on the basis that the annexures to affidavits had been admitted into evidence and I accepted that position and those annexures bore the identification attributed to them in the affidavits. Apart from those documents a further 29 exhibits were tendered during the final hearing.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. I apply section 140 of the Evidence Act 1995 (Cth) (‘Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Reliability of the evidence
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of some witnesses and the unreliability of others, that the collision occurred on the Horses’ side of the road, that is the wrong side of the road for the Kombi Van. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld that courts conclusion.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
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[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I acknowledge the wisdom of those observations.
One aspect of the evidence was the significant extent to which the evidence of Mr Neuman and Ms Hall was evidence of his or her opinion or conclusion about significant events and controversies rather than evidence of the acts, facts, circumstances or things that lead to that opinion. I acknowledge the observations of the Full Court[3] in the matter of Britt & Britt (2017) FLC 93-764 as to the inevitability of some opinion and conclusion evidence being admitted in parenting cases dealing with relationships over many years. But, more or less, the same procedures that apply in other courts to determine an accident or an assault or a contractual dispute, are applied to attempt to determine factual disputes over some decades as to what was agreed or not. In this case over the period from 2004 until final hearing in 2024.
[3] The Full Court of the Family Court of Australia
The parties’ lawyers were faced with the considerable challenge of preparing the evidence and conducting the litigation about 20 years of disputed events within the same time as usually taken in litigation about an accident, or an assault, or a contractual dispute. Because of the skill and discipline of the respective solicitors in the preparation of the parties’ affidavits of evidence in chief, I am satisfied the parties cases were robustly pursued and what was in dispute and not, on the issues that mattered to the parties, was clearly marked out. I am grateful for that skill and diligence.
To some extent the evidence of the parties was influenced by what each perceived as advancing his or her case as well as influenced by the adversarial nature of the proceedings, the grief of the breakdown of their marriage and the thwarting of long held ambitions. This is not a case where I can determine factual disputes by generally preferring the evidence of one party over the others. Given the many years that dispute about agreement arranges, it may have been inevitable that much of the controversial events were presented as competing, and strongly held, opinions about what occurred. This did not assist my acceptance of aspects of Ms Hall’s evidence. Nor did it promote the reliability of either parties’ evidence of their competing opinions.
By reason of section 69ZT(1)(c) of the Act, evidence of opinion that may otherwise be inadmissible pursuant to the Evidence Act is not excluded in a parenting case. That evidence is admissible does not necessarily mean it carries substantial weight. That an opinion is strongly held, does not of itself, prove the conclusion within the opinion. So it is in this case.
I am unable to, and will not, determine every factual dispute between the parties. However the state of the evidence is such that I am able to determine those matters that inform the decision as to X’s best interests and a just and equitable property settlement orders.
Family Law Act provisions
In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CC the Act. I must consider the matters described in the act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act as it was including the section 4 definition of major long-term issues, section 4AB (definition of family violence), sections 60CA, 60CC, 60CF, 60CG, 61DA and take into account the obligations of section 65DAC. Those provisions are follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
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4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
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60CA Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
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60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
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60CF Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
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61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Consent orders
(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
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65DACEffect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Legal principles
I now turn towards the relevant legal principles that I must consider when making my decision. The parties counsel were careful not to characterise this case as an inquiry into which country the applicant, Ms Hall and X would be “permitted” to live in. Rather they addressed the dispute as one about whether X should live with her mother, who intended to, and would, live in Country B or whether X should live with her father Mr Neuman, who intended to, and would, live in Melbourne.
The generally accepted principles of the many authorities or guiding, but not binding on me, precedent cases include:
(a)the child’s best interests remain the paramount, but not sole consideration;
(b)a parent wishing to move, or live in a distant place, does not need to demonstrate “compelling” reasons;
(c)the Court must consider the advantages and disadvantages of each of the parent’s proposals and may be required to formulate proposals in the child’s best interests.
(d)the child’s best interests must be weighed and balanced with the “rights” of the proposed relocating parent’s freedom of movement including the ability to live and work wherever they desire;
(e)the legislative provisions of Part VII of the Act that apply to any parenting orders dispute apply to all parenting cases including those where a parent wishes to move with the child/ren to a distant place.
The Full Court in Franklyn & Franklyn (2019) FamCAFC 256 at [27] to [28] said the following in relation to that balance:
[27]There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[28]While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
In Sayer & Radcliffe [2012] FamCAFC 209 the Full Court held as follows:
[47] It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles [2007] FamCA 1230; (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
[48]A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.[4]
[4] This passage is recited with approval and applied by the Full Court at [28] of Tanev & Baumann [2023] FedCFamC1A 182.
[49]The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker [2007] Fam CA 1236; (2007) 37 Fam LR 461, Morgan and Miles (supra), Adams & Randall [2011] FamCAFC 204; (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:
•Section 60B – Objects of Part and principles underlying it
•Section 60CA – Child’s best interests paramount consideration in making a parenting order
•Section 60CC – How a court determines what is in a child’s best interests
•Considerations relevant to relocation include:
•Primary considerations: meaningful relationship with both parents
•Additional considerations:
·nature of child’s relationship with parents and other persons
·extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate
·likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living
·practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis
·capacity of each parent and any other person to provide for the needs of the child
•Section 61DA – Presumption of equal shared parental responsibility when making parenting orders
•Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)
• Subsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:
(a) How far apart parents live
(b) Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
(c) Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements
(d) Impact arrangements would have on the child
(e) Such other matters the Court considers relevant.
[50]The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
[51]The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461, an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (Country B Language CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability….
In Morden & Coad [2019] FamCAFC 233 at [17] the Full Court put it most succinctly as follows:
[17]It is well settled that a trial judge must consider the competing proposals of the parties in accordance with the legislative pathway (Sayer v Radcliffe [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [48] (“Sayer”)). At [49] of Sayer, the Full Court summarises that legislative pathway which must, naturally, include a consideration of s 65DAA(5) of the Act.
In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paragraph 79 to 81, where her Honour’s observations included:
80.It follows from my exposition of the legislation, that earlier core principles:
•that the child’s best interests remain the paramount but not sole consideration;
•that a parent wishing to move does not need to demonstrate “compelling” reasons;
•that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
•the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.
81. What the legislation now requires is:
•consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
•if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
•but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Ms Hall’s case and evidence
Ms Hall asserts that from the start of this relationship and marriage her desire to live and work in Country B was known and that it was always agreed between the parties that when family and work circumstances permitted the family of Ms Hall, Mr Neuman and X would move to Country B to facilitate her career and provide the benefits of a multicultural and multi lingual education and lifestyle to X. To Ms Hall, those benefits for X were not only a common understanding and/or agreement between her and Mr Neuman, but self-evident when compared to X living in suburban Melbourne.
Ms Hall asserts that she worked and parented in Australia, year after year after year, with that common understanding of the move overseas. She asserts that in 2018 and 2019 the parties had an actual agreement that the family would, as soon as feasible in all the circumstances, move to Country B.
In opening, Ms Hall’s senior counsel submitted that the case was not put on a contract basis or that the alleged agreement was enforceable but that did not render the agreement irrelevant. It was put to the Court that the evidence would show that the parties had planned for this move over many years and that X had been prepared and was equipped to live in Country B, and that X had an understanding and LL Company with Country B notwithstanding this was a place where she had not lived.
It was submitted (in opening) that Mr Neuman had shared Ms Hall’s vision, at least until the covid pandemic, but now regards Ms Hall in derogatory terms of Ms Hall’s vision, that is:
·she can’t sit still and that she puts her wishes ahead of X’s interest; and
·that Ms Hall’s plan is selfish and detrimental to X.
It was said the attitude and the flavour of Mr Neuman’s affidavits was such that Mr Neuman now regarded Ms Hall as having given X up for selfish career aims and had, or would likely, communicate this attitude to X.
It was put that the evidence would demonstrate that Ms Hall had, since her teenage years, a clear wish to live in Country B and that she had given Mr Neuman time in Australia to raise his daughters and that there had always been an understanding between the parties that compromises would have to be made by the parents. Ms Hall believes that she compromised her career and where she wanted to live and it was now Mr Neuman’s turn to compromise. This had meant he and X were to live in Country B with her.
It was said when Mr Neuman reneged on the clear long term agreement, and it was inferred this had pervaded their entire relationship, that Ms Hall was devastated and this had, and would, impact X.
It was common ground that as a citizen of Country D, Ms Hall had the advantage of the right to live and work in Country B as she pleased and that X had the same right. It was common ground Mr Neuman did have that right to live and work in Country B. The ease with which he would be able to live and work in Country B was disputed.
Ms Hall asserts that in late 2021, as part of that long agreed plan and as the start of a pathway for the family to live and work in Country B, she and X lived in City HH, in Country D where X went to a Country B Language speaking school and Ms Hall worked in the public service. At this time, Mr Neuman remained in living and working in Melbourne. It is common ground he visited Ms Hall and X twice in the first half of 2022. It is common ground that X travelled back to Melbourne in mid-2022 to attend school in Melbourne while Ms Hall remained living and working in Country D. Ms Hall asserts this time in 2022 of living in Country D was part of an agreed, or at least common understanding, path to Ms Hall living and working in Country B and X and Mr Neuman moving to live there permanently. Ms Hall asserts, that in about mid-2022, and in particular late 2022, consistent with the parties long held understanding, there was an actual agreement between the parents that X and Mr Neuman would follow Ms Hall to live in Country B where Ms Hall had obtained a new, and career defining, position, as she had long hoped for.
It is Ms Hall’s case that Mr Neuman, reneged on that long held agreement, and hence “unilaterally” withheld X from her lifelong primary care giver, her mother. Then he announced the end of their marriage. That he did so, when X was living in Melbourne with him and after Ms Hall had accepted her long sought position, demonstrated to Ms Hall that Mr Neuman was of such a duplicitous character that he was not a suitable long term parent for X to live with and that she could never trust him again. I am satisfied that Ms Hall said, and still believes, that X should live with her mother, her primary caregiver
Further it was said that there were serious deficiencies in how Mr Neuman had parented X while Ms Hall lived in Country B after X returned to Melbourne in mid-2022. Those deficiencies, that were profound disadvantages to X living with Neuman, were said to include:
·his inadequate attention to the medical care of X; and
·his inadequate communication with Ms Hall about X medical treatments; and
·the diet he provided X resulted in her becoming overweight in the care of Mr Neuman; and
·his aggressive and violent behaviour that was part of his personality; and
·his attitude to supervision of X that meant she was not safe living with Mr Neuman; and
·his attitude to Ms Hall as a parent meant that he did not promote and facilitate X’s communication and relationship with her mother and primary caregiver, Ms Hall.
I do not accept those criticisms of the fathers care of X, either since she has been in his sole care, or in the future.
It was also her case that his actions in reneging on the agreement and withholding X from her mother and primary caregiver was part of his coercive and controlling behaviour that should profoundly impact on the assessment of whether it was in X’s interests to live with Mr Neuman.
It was asserted that his deficient attitude to, or bias against, the fundamental importance of women being able to pursue their career, demonstrated by his reneging on the long term agreement, boded poorly for X growing into the successful, strong and independent woman she had the potential to be. This attitude or bias, compared to her mother’s example of personal independence and pursuit of an important career in a meaningful field, compelled the finding that X long term best interests were best served by living with Ms Hall, her mother and caregiver, and visiting her father, Mr Neuman, and half-sisters in Melbourne, Australia when school term holidays permitted.
If Ms Hall was successful in her case that X live with her, she proposed that X would stay with Mr Neuman until the middle of this year[5], when to coincide with the start of the next Country B school year, X would move to Country B to live with her as and from mid-2024[6]. In response to my pressing what Ms Hall proposed if I did not determine X should live with her, Ms Hall’s counsel told me that Ms Hall would move back to Melbourne in late 2024, when X should move to live with her and spend alternate weekends and half school holidays with Mr Neuman.
[5] Exhibit M13, 7 February 2024, Ms Hall’s minute of orders sought in final address, at [2].
[6] As above.
Ms Hall said that she had carefully researched and thought through all of the likely contingencies that would arise for X when she lived with her in Country B. Ms Hall pressed the consequences for X of her mother being profoundly disappointed if X did not live with her and was not able to pursue her life and career where she wanted it to be.
Ms Hall relied on affidavit evidence of the following:
·Ms CC, who was Ms Hall’s longtime friend; and
·Ms C, who was Ms Hall’s de facto sister-in-law.
These witnesses were cross-examined.
Taking into account the evidence in chief, submissions and statements to the Family report writer, Ms T, it is clear enough that Ms Hall asserts that the advantages of X living with Ms Hall include the above matters and:
·The enjoyment and intellectual expansion of the multilingual culture and education that her mother would provide in Country B (the opposite of X’s life having “shrunk” living with her father in Melbourne since the start of term 3 in 2022); and
·Reunification with her primary caregiver and all the benefits that would necessarily include; and
·The avoidance of X living with a parent without the multiple deficiencies of Mr Neuman the avoidance of the psychological impact on X; and
·The avoidance of the inevitable effect on X of her primary caregiver being profoundly saddened and affected by cancelling her chosen career so as to move to Melbourne to have X live with her. That disappointment would be such as to require Ms Hall to engage in therapy; and
·The circumstance that unlike Mr Neuman, X would live with a parent, Ms Hall who was and should be her primary caregiver, who recognises and supports X’s relationship with the other parent; and
·X would enjoy the time and contact with her relatives who live short travel times away from Country B; and
·X life so far, including her multilingual education and extensive international travel and living for a short time in Country D, all equip her for life and education in Country B; and
·X would live with her primary carer from birth who is more informed, careful and proactive about attending to X’s physical and mental health; and
·That X living with her Ms Hall, and in Country B, would impart the values to X that she should live where she wants to and that a commitment in an (adult) relationship is something that should be honoured.
Mr Neuman’s case
Mr Neuman’s case was that Ms Hall was not only unsettled living in Australia during the covid‑19 era but was peripatetic by nature, and would continue to be so, and hence would not provide X with the stability of home and school that she needed. He asserted that he had provided X with the stability of continuing her life in Melbourne, at the school she was accustomed to, with regular contact with family on both sides and established friendships. He asserted he had, and would continue to, promote X connection to and communication with her mother. He said that he and Ms Hall had been equally involved in raising X and asserted that her parents were equally important to her and to her future. He denied each and every allegation of deficiency of parenting and personality alleged by Ms Hall.
Mr Neuman said he was always a kind and sensitive parent to his older two children and X.
Mr Neuman said he understood and acknowledged Ms Hall’s long held ambition for the family to live in Country B and for her to work there. But he denied there ever was an agreement that, no matter what, he and X would move to Country B to live. He pointed to X’s, less than appropriate level, proficiency in English reading and writing and said she struggled in the Country B Language school in City HH. He said that X needed the stability of her life and education in Melbourne, and that consisted with living with him.
He said he had kept up X connections with those of her mother’s family in Melbourne since Ms Hall had lived in Country B.
Mr Neuman said he had made it clear that he had not agreed that X should change school again and live in Country B. He said that Ms Hall was likely to move again and this would necessitate more changes of school and friendship groups for X if she live with Ms Hall.
Mr Neuman said he had never agreed to move to Country B to live and said that he had always been concerned at the impracticalities of such a move. He said that it was most uncertain that he would have suitable work and the substantial income to support the family in the manner they were accustomed to, as he always had done. He said that the strength of Ms Hall’s ambition or long held dream of living and working in Country B meant that she did not properly consider what he said were the significant impracticalities of the three of them living and working in Country B. He said he didn’t want to live in Country B. He said X’s best interests were best served by X continuing to live with him in Melbourne.
Mr Neuman, in his counsel’s final address asserted that Ms Hall prioritised putting her owns interest ahead of X and at times acted contrary to agreements. It was asserted that on an occasion of Ms Hall travelling back to Australia in 2023 that the parties had agreed to share the imminent school term holidays but that Ms Hall had reneged on the agreement so that she could keep X with her in the lead up to the Family Report interviews. Mr Neuman asserted that such was Ms Hall’s antipathy to him that Ms Hall did not and would not support his relationship with X.
Mr Neuman contemplated, by orders pressed in the alternative, that if X was not to move to Country B to live with Ms Hall as Ms Hall sought, that Ms Hall would move back to Melbourne and in that case Mr Neuman sought that X live in an equal shared week about regime between her parents.
Mr Neuman relied upon the affidavit evidence of:
·Ms DD, a family friend of Mr Neuman;
·Mr EE, the neighbour of Mr Neuman’s Suburb H property;
·Ms FF, Mr Neuman’s sister;
·Ms GG, another family friend of Mr Neuman; and
·Mr Neuman’s two adult children.
In the end, I prefer Mr Dunlop’s approach, that is, as set out within final address within lines 14, 16 & 17 of M15 as collectively being at a point in time $242,098 in legal fees, plus $150,000 at that tie held on trust plus at that time the remaining $150,000 to his credit in his bank account total $392,098
I am also satisfied that this approach is just and equitable because it is about the same as but a tad less than the net of tax share proceeds received in 2023. Hence I find I am not assisted by further analysis of exactly which part of the share proceeds and Mr Neuman’s net of tax income remain, were applied to living expenses or were applied to legal fees.
Is there the expected bonus an asset
28 Bonus payable for 2023 calendar year $64,000
In out the Outline of Case, Ms Hall asserted that the expected bonus and expected to be about $64,000 per annum, should be treated as asset. This is a gross figure without taking account of taxation. As discussed with Mr Dunlop, I am not satisfied that it is not appropriate or just and equitable to trat this sum, expected but still not received and not certain, as an asset. I am satisfied that the expected bonus should properly be regarded as part of Mr Neuman’s income and I will not treat that as an asset.
Conclusion as to the “pool”
Hence, re-ordered into assets to divided and the Husband’s ‘keep’ and the Wife’s ‘keep’, the assets and liabilities of the parties are as follows: I am satisfied that where there is a minor difference on the figures on the agreed assets, it is appropriate I take Ms Hall’s approach.
HALL & NEUMAN – PROPERTY INTERESTS AND LIABILITIES # Asset/liability Finding Jointly held property and liabilities 1 Suburb H property $1,675,00 2 Loan secured by mortgage – AF Bank ($802,000) 3 AF Bank offset acct suffix #...45 $11,835 4 NAB Account suffix #...64 $272 5 NAB Account suffix #...29 $34 Sub total $885,141 Wife’s assets and liabilities 6 ANZ account suffix #...64 $4,400 7 AG Bank account suffix #...05 $10,171 8 Y Bank account suffix #...74 $3,317 10 AJ Bank account suffix #...39 $110 11 Jewellery $7310 12 BB Shares (57 shares $30.91) $1,652 13 Estate of Mr AA $668,250[46] 14 Part property – redrawn from mortgage and applied to legal fees $15,000 Sub total $710,210 Husband’s assets and liabilities 15 Proceeds of sales and Legal fees paid and monies held on trust $392,098 16 AH Bank account #...32 $912 17 Net proceeds of share holding Included above 18 Lump sum bonus Not included 19 Motor Vehicle 1 $29,000 20 Motor Vehicle 2 $68,000 21 Jewellery $3,260 22 BB Shares (25 shares $30.91) $725 23 Estate of Mr AA $26,812 24 CGT payable on sale of shareholdings ($17,436) 25 Bonus payable for 2023 calendar year Not included as it is income Sub total $503,371 Superannuation 26 Wife’s interest in SMSF Neuman Hall Super FUnd $114,920 27 Husband’s interest in SMSF Neuman Hall Super Fund $305,598 28 Wife’s interest in Country B pension $11,584 Sub total $432,102 Totals Total excluding superannuation $2,098,722 Total including superannuation $2,530,824 [46] I accept Ms Hall’s admission.
I do not find that any party has any hidden or undisclosed an asset, bank account or source of income.
Step two: section 79(4)(a), (b) & (c) contributions
The thrust of the authorities of the Full Court, which I endeavour to apply, is that all direct and indirect contributions, financial and non-financial, made long ago or made recently must be considered and had regard to in a holistic manner. I am assisted by statements of the Full Court, including in Hoffman & Hoffman (2014) FLC 93-591 at [52], where the Full Court observed:
[52]In each case, we consider that the point being made is that there is no principle or guideline (or, indeed, anything else emerging from s 79), that renders the direct contribution of income or capital more important – or “special” – when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family.
I also follow the observations of the Full Court in Fields & Smith (2015) FLC 93-638 where at [43], they observed:
[42]If it is necessary to make the point again, and to highlight it for the purpose of this appeal, we add our endorsement to what has been made clear in the authorities referred and to the Full Court’s comments in [52] of Hoffman, that the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important that another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.
In assessing section 79(4) contributions, I apply Dickons & Dickons [2012] FamCAFC 154 (‘Dickons’) at [24], Hurst & Hurst (2018) FLC 93-851 (‘Hurst’) at [23], Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 (‘Lovine & Connor’) at [40] to [42], and those passages are as follows.
Dickons
[24]There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
…
Hurst
[23]The direct financial contribution of the Suburb C property by the husband some 14 years before trial is, of course, a significant direct financial contribution weighing in his favour (s 79(4)(a)) and her Honour correctly so found. But, as the authorities earlier cited make clear, a separate question within the assessment of contributions is, relevantly, the contributions made by both parties indirectly other than financially (s 79(4)(b)) and contributions to the welfare of the family including in the capacity of homemaker and parent (s 79(4)(c)).
…
Lovine & Connor
[40]Contribution, either direct or indirect and financial or non-financial, to any of acquisition and/or conservation and/or improvement to property (whether or not such property has ceased to be held) or to the welfare of the family or children, falls for consideration. No order of priority is attached to individual elements. The evaluation occurs often, as in this case, with respect to such disparate kinds of contribution made over a substantial period. Such evaluation, having regard to its subject matter, inevitably involves value judgments and matters of impression.
[41]It follows that the assessment involves matters of estimation and is not, and cannot be, a mathematical exercise. No amount of devotion to mathematics is capable of transforming a discretionary exercise involving many component parts, each mostly unamenable to precise computation, into one of aggregating separately finely calculated components to reach an overall outcome.
[42]As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.
I am mindful of the Full Court’s observations in Dickons as recently restated in Benson & Drury [2020] FamCAFC 303, and although a case dealing with a “Kennon” claim, the observations of the Court are apposite. Those observations include the following:
[35]… all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one again the remainder.
[36]That principle has a counterpart in the application factors prescribed in section 75(2) or section 90SM(3) of the Act. Any adjustment to the parties’ contribution-based- entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustment in respect of each relevant factor.
[Citations omitted]
Hence I must avoid, “the error of segmentation and the comparative of analysis of one feature of the evidence against all others”.
It is clear that the terms of section 79(4) require that I take into account all contributions within the terms of section 79(4)(a),(b) and (c) whenever they were made, and that it is an error to give greater or lesser weight to any particular type of contribution. However, a contribution is not to be disregarded merely because it was made long ago. Further, as stated in Wallis & Manning (2017) FLC 93-759 (‘Wallis & Manning’) at [105]:
The length of the marriage can be seen to be of considerable importance in the assessment of contributions.
The significant aspect of Mr Neuman’s case on this point is that his initial contribution of what he brought into the relationship. He asserts he brought $325,000 from his prior relationship settlement, superannuation entitlements in the order of $100,000, his employment share scheme and along with all other contributions during the relationship and post separation was said to be roughly equal to Ms Hall’s contribution as bringing in little initial contribution, but contributing significantly as homemaker and parent and income earned during the relationship, and then toward the end bringing in the substantial inheritance of $668,250.
The efficient cross-examination of Mr Neuman by Mr Dunlop demonstrated that the proceeds of the employee share scheme should not be regarded as an initial or extrinsic contribution by Mr Neuman. The employee share scheme that resulted in substantial funds being made available to the family arose from the opportunity to acquire shares in Mr Neuman’s employers or employing company. This was related to his employment and his skill within that employment, but centred on the capacity to borrow effectively from the employer 100% of share purchase price scheme and then the ability to at least notionally apply dividends form the shares towards repayment of debt. But it is not correct to regard to proceeds of the shares applies to family purposes in 2014 and then 2023 sale of the shares applied to largely legal fees as having been brought in extrinsically or being a sole contribution by Mr Neuman. The joint efforts of the parties during the relationship enabled Mr Neuman to pursue his employment to both acquire the shares and the loans supporting the purchase and repay those loans, hold the shares and then benefit from the increase of value on the sale.
Ms Hall’s contributions of receiving her substantial inheritance late in the relationship is in a different category. Mr Neuman has not made no direct financial contribution and no indirect financial contribution to that asset. However, his contributions over the whole of the relationship must be taken into account in relation to the whole of the pool.
I am not satisfied that I can comfortably find that Mr Neuman brought in $325,000 in equity in his property settlement from his prior relationship, rather than the $250,000 conceded by Ms Hall. This was a substantial sum of money at the time and applied to family purposes that assisted substantially in the acquisition of assets.
The tracing of which property was proposed and sold when does not inform the balancing exercise of identifying and weighing all contributions of the parties. I am satisfied that Mr Neuman brought in substantial funds from his property settlement and at least $250,000 which was a substantial sum in the early days of the parties relationship. However, after allowing for the time value of money, and dollar in 2005 was substantially more valuable than a dollar in 2019 when Ms Hall became entitled to her inheritance (although not received then). I do not accept the figure of $325,000 as asserted by Mr Neuman as I do not have a comfortable satisfaction that it was that sum notwithstanding that I accept that Mr Neuman was doing his best to recollect the sum he received, and apparently without access to source documents. It was put to him that he had not provided that he had no provided any family law act court orders relating to the transaction with his first wife but this does not assist me to determine the actual sum he brought in. But it was substantial and at least $250,000 and less than $325,000.
I take into account that Mr Neuman has since the end of the marriage in 2022 has the financial responsibility of raising X and has done so very well without direct financial contribution from Ms Hall. I note that the inheritance he received from Ms Hall’s father’s estate can be regarded as his contribution in the ownership of the beneficence sense of “Gosper”.
Conclusion as to sec 79(4) contribution
The recent inheritance of Ms Hall forms a substantial part of the pool as I have defined it. Balancing all of the contributions, I am satisfied that with the inclusion of the estate funds in the pool of assets, Ms Hall overall should be assessed as making a greater contribution than Mr Neuman.
However, to assert a 60/40 position on contribution is to assert that overall that Ms Hall should be regarded as making 1.5 times the contribution that Mr Neuman has made is neither correct or just and equitable. The assertion of equality of contribution overall is neither correct or just and equitable. Balancing all of that I am satisfied that Ms Hall should be regarded a significantly larger contribution, but in the proportions of 1 and a third more than Mr Neuman, that is a roughly 56/44 assessment of contribution in her favour at this point.
The company employment scheme shares were in two different schemes and ultimately sold in two or three different tranches. The first proceeds were received in early 2014 and I am satisfied applied to the purposes of the relationship. The next two tranches were received in 2023 on the dates referred to.
Painting with broad brush required in the section 70(4)(a-c) analysis, but taking into account many years of disparate contributions, I am satisfied of the facts justify Ms Hall’s contributions as being greater to Mr Neuman’s during the relationship.
In regards to initial contributions, I bear in mind the wise warnings against compartmentalisation, and consider the length of the relationship and the overwhelming contribution of each parent during their relationship and since, over 16 years, in different roles. I am satisfied I should assess section 79(4) contribution overall as roughly equal or 57/43. I am satisfied that overall, Ms Hall’s contribution should be regarded as almost one and a third times Mr Neuman’s contribution and should be assessed in the proportions of 57% to Ms Hall and 43% to Mr Neuman.
In regards to contributions during the relationship and since separation, I am satisfied that both of these parents worked long and hard in different roles in the relationship and since separation. That is so not withstanding that, in different ways, each now regards the relationship as unhappy for significant periods. In those circumstances, contribution should be assessed as roughly equal during the relationship and after.
Step three: section 75(2) factors
I refer to and repeat the shopping list of section 75(2) factors or provisions recited earlier.
I refer to the observations of the Full Court on section 75(2) adjustments in Hobson v Hobson (2020) 61 Fam LR 557, [2020] FamCAFC 251 (‘Hobson’). In that matter, the trial judge made an adjustment of 4% on account of section 75(2) factors. The Full Court found that adjustment to be inadequate and upheld the Wife’s appeal and remitted the matter for another hearing. I am assisted by the general principles of Hobson but the underlying facts, both extent of income disparity and the size of the asset pool, are very different and not comparable and so that case does not provide guidance as to the particular percentage adjustment in this case.
The observations of the Full Court in Clauson & Clauson (1995) FLC 92-595 (‘Clauson’) have guided judges and practitioners since 1995. In Clauson the Full Court did not interfere with a contribution assessment of 75/25 in the husband’s favour. But on a re-exercise of discretion, the Full Court made a section 75(2) adjustment of 25% and included the observation (at 81,911) about consideration of section 75(2) factors that:
…in any event it is the real impact in money terms which is ultimately the critical issue.
In Rosati v Rosati (1998) FLC 92-804 (‘Rosati’) the Full Court had reason to re-exercise the discretion in the division of the parties’ assets in a $1,500,000 pool of assets back in 1998. After finding that section 79(4) contribution should be regarded as 60/40 in the husband’s favour the Full Court found a 10% adjustment on account of section 75(2) factors was appropriate. But it is significant how the Full Court addressed the income disparity on account of section 75(2), way back in 1998, and it was addressed as follows at 85,046:
On our adjusted figure for the value of the parties net assets ($1,503,863), adjustment of 10% in the wife’s favour results in an increase in her entitlement of $150,386, and a corresponding reduction in the husband’s entitlement, producing a differential movement between them of $300,772 …
Decisions where the Full Court finds error and re-exercises the discretion or decision are of particular assistance to Judges and practitioners where the facts are similar enough to be roughly comparable. The principles of law stated on appeal would ordinarily be binding on the Trial Judge and the re-exercise of discretion on the facts a helpful example, although not binding.
In Wayne & Wayne [2010] FamCAFC 33 (‘Wayne’), the Full Court dealt with an appeal where the total asset pool was $937,000 (in 2010 dollars), the parties had 4 children aged 18, 16, 10 and 8. The 18 year old could be regarded as independent and the 16 year old, having left school, and was soon enough to be working or looking for work. The 10 and 8 year old children lived in a 5/9 nights per fortnight in school term and shared holiday arrangement, with the Husband for the 9 nights. The 16 year old also lived with the Husband. The Husband was found to have a full time earning capacity of $45,000 to $50,000 and the Wife worked 35 hours per week and had slightly less earning capacity[47]. Contribution was found to be 48/52 in the Wife’s favour and that was not interfered with on appeal.
[47] See at [58] and despite complaint the Full Court did not interfere with those findings.
In Wayne, in those circumstances, the Learned Trial Judge made a section 75(2) or third step adjustment of 10%. The Full Court found the extent of that adjustment to be an error of law and decided the adjustment should be only 4% in the circumstances. The rational of that decision can be easily discerned from the following paragraphs of the appeal decision:
[107]It is also important to recall what was said in Phipson & Phipson [2009] FamCAFC 28 when the Full Court was dealing with another appeal from the trial Judge in the present proceedings:
[39]It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in “money terms”, that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey (1998) FLC 92-795 at 84,928.
[108]The 10% adjustment his Honour made on account of s 75(2) factors has led to a disparity in favour of the wife equivalent in value to 20% of the assets. In money terms this represents $187,733 out of a total asset pool of $938,665. Apart from the issues associated with the care, accommodation and maintenance of the children, the s 75(2) factors largely balanced out (save that as a result of the assessment of contributions the wife would have more capital than the husband). The husband was going to have whatever responsibility remained for the care, accommodation and maintenance of J. Both parties would have significant responsibility for the two younger children. It is true the wife will have the children with her about 20% more of the time than the husband, but this amounts to only a little more than 70 additional days a year.
[109]In our view an assessment leading to a disparity of $187,733 in the capital/superannuation to be received by each party was outside the reasonable ambit of the trial Judge’s broad discretion, even taking into account the matters found by his Honour relating to the non-payment of child support in the period after the husband gave up his employment. Our conclusion is sufficient to enliven appellate intervention (House v The King (1936) 55 CLR 499 and Norbis v Norbis (1986) 161 CLR 513). The appeal will therefore be allowed.
…
[112]In our view, given that the children will be with him around 40% of the time, the husband’s accommodation needs for the children would not be significantly different to those of the wife. However, in light of the agreement in relation to child support, we accept that the wife will bear the greater proportion of the burden of maintaining the two younger children (at least for the time being). The husband, on the other hand, will have whatever responsibility remains for accommodating and maintaining J. The other s 75(2) factors, in our view, are evenly balanced, save for the fact that as a result of the assessment of contributions the wife will have 4% (or $37,546) more of the assets/superannuation than the husband.
[113]Taking these matters into account, and the failure of the husband to pay child support after giving up his employment, we consider there should be a 4% adjustment for s 75(2) factors, creating a disparity of 8% between the parties – or in money terms an amount of $75,093.
In Lovine & Connor another Full Court approved the observations in Wayne and demonstrated that the percentage, the actual dollar amount of the adjustment and the disparity the adjustment creates should be taken into account when considering a section 75(2) adjustment.
The disparity that a 15% adjustment made between the parties in Lovine & Connor contributed to that Full Court finding that such an adjustment was wrong in that case. However, the facts of that case are very different to this one and so that case does not assist with what would be an appropriate adjustment in dollar or percentage terms, but the cited principle remains applicable. In Wallis & Manning, the Full Court, after a discussion of the section 75(2) factors applicable to that case, concluded:
[169]In our view, s 79(4)(e) requires those matters to be taken into account in arriving at orders that are just and equitable as between the parties. In arriving at an appropriate assessment for those factors, a dollar value of it should be uppermost in our minds [79] and, of course, the ultimate disparity in entitlements which it might produce. That dollar value is, in turn, dependent upon the value of the interests in property of the parties.
In Varnham & Moses (2021) FLC 94-007 the Full Court again approved the “real money” approach of Wayne, and of Phipson & Phipson [2009] FamCAFC 28 (cited in Wayne), and of Lovine & Connor.
Application of the law relating to section 75(2) to the facts
It is unnecessary that I separately deal with every matter referred to in Section 75(2) of the Act. I refer to and engage with the substance of the parties’ positions as to what is and is not relevant in regard to section 75(2).
There can thus be no doubt that settled law requires, when considering all relevant section 75(2) factors that the “real money” as well as the “percentage” must be considered, as well as the disparity between the parties, that any adjustment creates.
The Wife through her counsel sought a 10% adjustment under this factor and the Husband sought that there be no adjustment.
In this analysis I take into account that at the conclusion of the 79(4) (contribution analysis) and the 75(2) adjustment, Ms Hall has the sum of $293,821 more than Mr Neuman, that is 57% of the asset pool as opposed to his 43%.
The principle and major matters that bare on me is the disparity in earning capacity with Mr Neuman having a significantly great earning capacity than Ms Hall, and the circumstance that Ms Hall is likely to end her career advancement overseas as a result of these orders relating to where X lives and to recommence work in Australia at some point after late 2024.
I take into account Mr Neuman’s income, which is in the order of about $9,396 per week, or, $332,000 per annum or after net of tax approximately $215,000 per annum or approximately $4,134 per week with the additional bonus payments from time to time in the order of approximately $60,000.
I am satisfied there should be a 7% disparity of 75(2) adjustments which is an adjustment of $146,910. This adjustment creates an overall disparity between the parties of $293,821 on account of section 75(2) factors.
Treat superannuation differently
I am satisfied that it is appropriate to treat super differently to the non-superannuation assets because the parties circumstances between when now and when they retire will be many years and many events can occur and I have taken into account on the s 75(2) and the non‑superannuation assets that Mr Neuman will have a greater income and likely make greater contributions to super). I acknowledge Ms Wheeler’s concession that there should be an equality of superannuation self-managed superannuation fund was an overall position, not merely in regard to s 79(4)(a),(b) and (c). I am satisfied that there should not be further adjustment to super on account of s 75(2).
Although I was not addressed on it, an examination of the orders each of the parties seek in regards to the super fund, demonstrates that neither party wishes to retain the corporate structure of the parties self-managed super fund and the trustee. I am not satisfied that it is just and equitable to make, order or insist the party retain a structure they not longer want. Hence, the super splitting orders will be a combination of the super orders sought by Mr Neuman and those sought by Ms Hall. The effect is that the self-managed super fund will be wound up and the equal balances after adjustment of the parties will be rolled out to the super funds that they each have nominated.
I take into account that Ms Hall has a modest Country B pension that is not the subject of a superannuation splitting order as something that will be available to her one day
Conclusion as to section 75(2) adjustment
After a long relationship with 1 child, both parties will have substantial care for the child. Both parties need capital to house themselves and the children.
However, in all of the circumstances compel still compel a section 75(2) adjustment on the jointly contributed pool. That adjustment will be 7% of that pool or $2,098,722, creating a disparity on account of section 75(2) factors of $146,910 in the Wife’s favour.
That is an overall conclusion of 64/36 in favour of Ms Hall. The end result of the disparity between the parties is in the sum of $587,642 or 28% of the overall asset pool.
Step four: just and equitable and conclusion
Standing back and looking at the overall effect of what are just and equitable property orders, I am satisfied that orders to give effect to a 64/36 division of the party’s non-superannuation assets together with a superannuation split of equality the parties self-managed superannuation fund, is just and equitable. I will adopt the form of the superannuation splitting order proposed by Ms Hall’s lawyers and I am satisfied that the parties having the control of the trustee of the super fund that the fund has had notice and procedural fairness of the effect of the proposed superannuation splitting orders.
Default provisions
I was not address on the reasons on the competing default provisions. Ms Hall presses for the usual default provisions save that she seeks for an equal division of the proceeds of sale, and I am not satisfied that would provide a just and equitable outcome. Mr Neuman seeks that there be liberty apply in the event of default. I am satisfied that a default provision, if I am to make them, should provide that upon a default sale, the net proceeds of sale together with the assets to be retained by the wife and the assets to be retained by the husband are divided in the overall proportions of 64/36.
Mr Neuman’s default provision was in the context of him asserting that he should raise the sum of $437,000 but I have orders he should pay the sum $632,972. I have not been addressed as to what the provisions of a default order should be in the event that the payment was to be roughly one and a half times what Mr Neuman sought. He may or may not wish to retain the property.
Hence, the parties need to consider and further address me if they cannot agree as to what the default provisions should be.
I am conscious of the direction of the Full Court[48] of the FCFCOA that my function is quill dispute sand make final orders. I accept that principle is binding on me. I acknowledge that the full court has disapproved as the practice in other courts of the parties being directed to bring in orders to give effect of the reason of a judge.
[48] Of the Federal Circuit and Family Curt of Australia
I am not satisfied that it is just and equitable to leave the question of default to a matter of an application to the Court. That nettle needs to be grasped at this time.
Hence I am driven to the circumstance that to make just and equitable orders with default provisions that the parties need the opportunity to consider what those provisions should be given that the payment is to be in the sum of X to be made within 90 days and I am not satisfied that the net proceeds of sale of the remaining major asset of the parties should be divided equally in the proceeds of sale. The default provisions of the Minutes of orders sought by Ms Hall, exhibit M12, would in the event of default not necessarily give effect to my determinations of what are just and equitable property division orders.
Hence it is in these orders that I will order that within 14 days the parties bring in agreed minutes of orders as to default provisions, and if they are unable to do so then they are at liberty to make short written submissions within a further 7 days and to provide the provisions of the default provisions pressed and I will determine that in Chambers.
An issue that needs to be considered is whether a default provision should fix the sum to be paid or whether it should represent a portion of the proceeds of sale, so that the loss or benefit of change in market value should be shared between the parties in the same portions or not
CONCLUSIONS AS TO PROPERTY MATTERS
The effect of the order the Father is required to pay the sum of the effect of $632,972 within 90 days of these orders and otherwise the default provisions are engaged.
I certify that the preceding three hundred and forty-two (342) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 24 September 2024
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