Hamady & Mansour
[2021] FCCA 79
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Hamady & Mansour [2021] FCCA 79
File number(s): PAC 3308 of 2019 Judgment of: JUDGE DUNKLEY Date of judgment: 27 January 2021 Catchwords: FAMILY LAW - parenting and property Legislation: Family Law Act 1975 (Cth) Cases cited: A v A: Relocation Approach (2000) FLC ¶93-035
U v U (2002) FLC ¶93‑112
McCall & Clark (2009) FLC ¶93‑405
Hepburn v Noble (2010) FLC ¶93-438,
MRR v GR (2010) FLC ¶93-424
Number of paragraphs: 123 Date of hearing: 19 to 21 October 2020 Place: Parramatta Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: O’Sullivan Legal Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
PAC 3308 of 2019 BETWEEN: MR HAMADY
Applicant
AND: MS MANSOUR
Respondent
ORDER MADE BY:
JUDGE DUNKLEY
DATE OF ORDER:
27 JANUARY 2021
THE COURT ORDERS THAT:
1.The husband shall pay to the wife on or before 120 days of the date hereof, by way of property settlement, the sum of $145,133.
2.It is ordered that subject to the preceding the husband and wife are to have the sole right, title and interest in:
(a)Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;
(b)Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.
3.Until payment is made pursuant to order 1, the husband shall comply with order 4 made on 10 January 2020, whereupon compliance with that order is discharged.
4.All prior parenting orders are discharged.
5.The parents shall have equal shared parental responsibility for X born in 2019.
6.X shall live with her mother.
7.X shall spend time with her father as follows:
(a)Until 30 June 2022
(i)Each Tuesday from 7am to 4pm.
(ii)Each Thursday from 7am to 4pm.
(iii)Each Saturday from 7am to 4pm.
(iv)At such other times as the parents agree.
(b)From 1 July 2022
(i)Each alternate weekend during Victorian school term time from 10am Saturday to 5pm Sunday.
(ii)For a 3 night period from 10am Saturday to 5pm Tuesday during the first week of each Victorian school holidays.
(iii)On Orthodox Christmas Day and Orthodox Easter Day from 10am to 5pm in years ending in an odd number.
(iv)At such other times as the parents agree.
8.The mother is permitted to relocate X’s residence to Melbourne on a date she nominates in writing after 30 June 2022. At the time of nomination she is to also provide written notice of the address at which X will live.
9.Unless the parents otherwise agree:
(a)The father shall collect X at the beginning of each period of time from the mother’s home and return X at the end of each period of time to the mother’s home.
(b)Once X has relocated to Melbourne, the mother shall deliver X to the father at Tullamarine Airport at the beginning of each period and the father shall return X at the end of each period to the mother at Tullamarine Airport.
10.Until 30 June 2022, the mother may elect to suspend X’s time with her father pursuant to order 7(a) for two (2) 14 days periods, being one period in July 2021 and one period in January 2022 on the giving of not less than 14 days’ notice in writing. The mother is permitted to travel with X to Melbourne to stay in the home of the maternal grandmother during each of those nominated periods.
11.Upon X’s relocation to Melbourne, the father may communicate with X once each week by FaceTime, Zoom or equivalent for not less than 15 minutes on a day and time as agreed and failing agreement, each Thursday at 5pm.
12.Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of X nor permit X to remain in the presence or hearing of any person who engages in such denigrative behaviour.
13.Each parent shall keep the other advised of their residential address, mobile telephone number and email address.
14.That the parents keep each other informed of any major medical issues involving X, particularly of any medical attention or treatment received by X, any medication requirements or medical appointments and provided that this notification shall be as immediate as practicable in the event of a medical emergency.
15.The parents are each entitled to attend any school, sport, extra-curricular or other public event involving either or both of them.
16.Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
17.All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Hamady & Mansour is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Mr Hamady (the husband/father) and Ms Mansour (the wife/mother) are the parents of X, aged 2, who was born in 2019.
BACKGROUND
The parents had a short, and on their evidence, acrimonious marriage from 2018 to 1 June 2019.
The father commenced proceedings on 12 July 2019.
The mother as a consequence of an interim hearing and judgment dated 10 January 2020 was not permitted to relocate with X to Melbourne as she had sought and was ordered to return to live with X in Region B Sydney.
The husband pays the rent and utilities on the home unit occupied by the mother and X.
The parents are in dispute as to both final parenting and property settlement orders.
In the parenting case, it is agreed X will live with her mother.
The mother wants to relocate and live in Melbourne with X.
The father wants to restrict, by order, the mother moving X's home to a place more than 30kms from Suburb C.
Both agree X should spend time with her father but disagree as to the quantum and frequency of time.
IS IT JUST & EQUITABLE TO MAKE PROPERTY ORDERS?
The parents cannot agree a final property settlement.
Both seek property settlement orders.
I am satisfied given the marriage, the parents' final separation and the method of ownership of assets that it is just and equitable pursuant to s79(2) to make property settlement orders.
ORDERS SOUGHT
Alternate Orders
The parents during the final hearing, in consultation with their respective legal representation, each produced an alternate minute of parenting orders. The mother's alternate minute sets out the parenting orders she seeks if she is not permitted to relocate X's place of residence to Melbourne. The father's minute sets out the order he seeks if X is permitted to reside with her mother in Melbourne.
Each of the alternate minutes has been attached to each parent's case outline.
Primary Orders Sought
Father
Parenting:
1.That the Mother and Father have equal shared parental responsibility for the care, welfare and development of the child X (“the Child”) born in 2019.
2.That the Child live with the Mother, in Sydney;
3.That the Child spend time with the Father as follows:
(a)From the date of these Orders until the Child reaches 3 years of age as follows:
(i)Every Wednesday to Friday from 7am until 4pm Friday;
(ii)Every alternate weekend from 7am Saturday until 4pm.
(iii)Every other weekend from 7am Sunday until 4pm
(iv)During the Orthodox Easter as follows:
(a)On Even years:
i.7am Good Friday until 4pm
ii.7am Easter Sunday until 4pm.
(b)On Odd years:
i.From 7am Easter Saturday until 4pm
ii.From 7am Easter Monday until 4pm.
(v)During the Orthodox Christmas as follows:
(a)On Even years, from 4pm on the 6th of January until 2pm the 7th of January;
(b)On Odd years, from 2pm from the 7th of January until 2pm on the 8th of January;
(b)From when the Child reaches 3 years of age until prior to the commencement of Kindergarten as follows:
(i)Every Wednesday to Friday from 7am until 4pm Friday
(ii)Every alternate weekend from 7am Saturday until 4pm Sunday
(iii)Every other weekend from 7am Sunday until 4pm Sunday
(iv)During the Orthodox Easter as follows:
(a)On Even years, from 7am Good Friday until 3pm Easter Saturday.
(b)On Odd years, from 3pm Easter Saturday until 4pm Easter Sunday.
(v)During the Orthodox Christmas as follows:
(a)On Even years, from 4pm on the 6th of January until 2pm the 7th of January;
(b)On Odd years, from 2pm from the 7th of January until 2pm on the 8th of January.
(c)From when the child commences School as follows:
(i)Every second Friday from the conclusion of school, (or 3pm if not a school day) to 4pm Sunday afternoon
(ii)Every Wednesday to Friday from the conclusion of school, (or 3pm if not a school day) to 6pm Friday afternoon
(iii)During mid-term school holidays as follows:
(a)On Even years, the first half of the school holidays commencing from the conclusion of school on Friday, until 6pm of the following Saturday.
(b)On Odd years, the second half of the school holidays commencing from 6pm on the second Saturday of the School holidays. Until 6pm of the following Saturday prior to the commencement of school.
(iv)During the end of the year summer holidays as follows:
(a)On Even years, the first half of the school holidays commencing from the conclusion of school on Friday, until 6pm of the following 3rd Saturday.
(b)On Odd years, the second half of the school holidays commencing from 6pm on the third Saturday of the School holidays. Until 6pm of the Saturday prior to the commencement of the new school year.
(v)During the Orthodox Easter as follows:
(a)On Even years, from 7am Good Friday until 3pm Easter Saturday.
(b)On Odd years, from 3pm Easter Saturday until 4pm Easter Sunday.
(vi)During the Orthodox Christmas as follows:
(a)On Even years, from 4pm on the 6th of January until 2pm the 7th of January;
(b)On Odd years, from 2pm from the 7th of January until 2pm on the 8th of January;
(d)Every other time as agreed between the parties
4.That the Child shall spend time with the parties on special days as follows:
(a)On Father’s day, with the Father from 10:00am to 5:00pm;
(b)On the Father’s Birthday, with the Father from 10:00am to 5:00pm if not a school day, and from 3:00 to 6:00pm if on a school day;
(c)On Mother’s Day, with the Mother from 10:00am to 5:00pm;
(d)On the Mother’s Birthday, with the Mother from 10:00am to 5:00pm if not a school day, and from 3:00 to 6:00pm if on a school day;
(e)If the Child’s birthday falls on a weekday, from after school (or 3:00pm) until 5:30pm with the non-resident party;
(f)On all other public holidays (Christmas, Easter, Boxing day, Australia day) with the Father from 9:00am to 12:00pm
Change over:
5.That for the purposes of Change over, the Father shall collect the Child from the Child’s school at the commencement of time, or from the Mother’s residence if not a school day, the Mother shall collect the Child from the Father’s residence at the conclusion of time.
Telephone communication:
6.The child shall have telephone communication with the Father on Mondays and Wednesdays when he does not have the care of the child between 7pm to 7:30pm. The Father shall contact the Mother for this purpose.
Travel to Victoria:
7.That provided it is safe to do so and the Covid-19 restrictions on travel are eased, the Mother be able to travel with the Child to the state of Victoria every 12 weeks for a period of no longer than 7 days from the date of departure from Sydney, until return back to Sydney. The mode of transport shall be by plane and not by car to prevent exhaustion and risk.
8.That the Mother shall provide the Father with make-up time with the Child for the days missed as a result of the Mother’s travel to Victoria.
Restraint:
9.That the Mother be restrained from moving the Child outside a 20km radius of her current residence and no more than 30km radius from the Father’s residence.
Consultation:
10.That the parties do all things necessary to consult with each other in relation to major long term issues relating to the Child.
Property:
4.That there be an order for division of property pursuant to section 79 of the Family Law Act 1975 (Cth) between the Husband and Wife;
5.That to give effect to Order 4 and provided that the Wife is to remain in Sydney, from the date of these Orders for a period of 6 months, the Husband pays to the wife her weekly rent, equivalent to an amount of $450 per week.
Superannuation:
6.Paragraph 6 – 10 of these orders are binding on the trustees of the Husband’s superannuation fund (the fund).
7.The base amount allocated to the Wife out of the interest of the Husband in the fund is $50,000 (the base amount).
8.Pursuant to s 90XT(1)(a) Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the Husband in the fund, the Wife is entitled to be paid an amount calculated in accordance with Part 6 Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in the entitlement of the Husband.
9.That this order has effect from the operative time and the operative time is the beginning of the day upon which this order is made.
10.Within 14 days of becoming entitled to receive a superannuation benefit from the fund, the Husband will give the trustees of the fund:
(a)All such forms as necessary to enable it to determine the nature and quantum of the Husband’s superannuation entitlement; and
(b)Any other related information it may reasonably require.
11.Until such time as the superannuation split to the Wife pursuant to these orders can be rolled over into a separate account to the Husband:
(a)The Husband will give to the Wife written notice not less than 28 days before such time as they elect to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part their entitlement in the fund;
(b)The Husband will direct and authorise the trustee of the fund to communicate with the Wife and/or any person authorised by them in writing:
(i)To answer any reasonable inquires as may be made by them or on their behalf from time to time regarding their entitlement in the fund; and
(ii)To give to the Wife and/or their authorised representative a copy of any notice of any application or request by the Husband which seeks release of entitlements in the fund in so far as that release may affect the Wife’s entitlement in the fund pursuant to these orders; and
(c)The Husband, their servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the Wife, their heirs, executors, administrators or nominees from receiving the benefits in the fund to which they are entitled pursuant to these orders.
12.In the event that the superannuation split to the Wife pursuant to these orders can be rolled over into a separate account to the Husband each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
13.There be liberty to each party and the trustee of the fund to apply regarding the implementation of these orders affecting the interests of the husband and the wife in the fund.
Mother
Parental Responsibility
1.That the Mother have sole parental responsibility for the child X, born in 2019 (‘the child’).
Live with Spend Time with
2.That the child live with the mother.
3.That the mother be permitted to relocate the residence of the child to Melbourne.
4.That the father shall spend time with the child as follows:
Until the child turns 3 years of age
4.1.For a period of 9 hours from 7.00am to 4.00pm on Monday and Tuesday.
4.2.For the purpose of the above the father will travel to Melbourne to spend time with the child in week 1 and in alternate weeks thereafter, and the mother shall travel to Sydney to facilitate the father’s time with the child in week 2 and each alternate week thereafter.
Upon the child turning 3 years of age
4.3.Each alternate weekend from Friday 9.00am to Saturday 5.00pm.
4.4.For the purpose of the above the father will travel to Melbourne to spend time with the child in week 1 and in alternate weeks thereafter, and the mother shall travel to Sydney to facilitate the father’s time with the child in week 2 and each alternate week thereafter.
If Court Orders Mother to remain in Sydney
5.The child shall live with the Mother.
6.The chid shall spend time with the father pursuant to Order 4.1 above.
7.The child shall be permitted to relocate to Melbourne upon turning 3 years of age at which time Order 4.3 and 4.4 shall apply.
Upon the child commencing school
During school term
7.1.From 5.00pm Friday until 5.00pm Sunday each alternate weekend.
7.2.For the purpose of the above, the mother shall deliver the child to Melbourne Domestic Airport in line with the requirements to travel for an unaccompanied minor for her scheduled flight to Melbourne and the father shall deliver the child to Sydney Domestic Airport in line with the same requirements for the child’s scheduled flight back to Melbourne.
During School Holiday
7.3.For a block period of 7 days to be exercised for the first week in even numbered years and the second week in odd numbered years in Melbourne or Sydney.
8.For the purpose of the above spend time Orders, the following shall apply:
8.1.The father shall have the child in his care at all times when the child is spending time with him; and
8.2.That any overnight time the child spends with the father shall be in the father’s own residence and not at the father’s family’s residence.
9.That the parties do all things to ensure that any reasonable request for telephone communication be facilitated with the child and the non-residing parent.
10.That either parent each notify the other if either child is seriously ill or is to be admitted into hospital at such times as the children are living with that parent.
11.Each parent is to keep the other parent advised in writing of any change of address or telephone contact number no later than 14 days before any proposed change including the details of their new residential address or new telephone contact number, such notice to be in writing (including by email or text message).
12.The parents are each restrained by injunction from denigrating the other parent or members of the other parent's family to the child or in the presence of the child or at all; and each parent is to remove the child from the presence of any third party denigrating the other parent or members of the other parent’s family. The parents are each to use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent's family to the children or in the presence of the children.
13.The parents are each restrained by injunction from discussing these proceedings with or in the presence of the child or showing to the children any document connected with these proceedings.
14.The parties are each entitled to attend any school, sport, extra-curricular or other public event involving either or both of them.
Travel
15.That within 14 days the parties do all acts and things to sign a passport application for the child and thereafter, each party do all acts and things and sign all documents necessary to ensure that the child’s Australian passports are renewed before they expire.
16.Upon the child turning 10, in any period of holidays, the child will be at liberty to travel with a party in a period of that party’s care outside the Commonwealth of Australia provided the party wishing to travel provides the other party with:
16.1.Notice in writing not less than 45 days prior to departure advising of the intention to travel; and
16.2.Not less than 14 days prior to the proposed departure:
16.2.1.A copy of return airline tickets;
16.2.2.A copy of the itinerary, including;
16.2.3.Accommodation details when away; and
16.2.4.Contact details when away.
17.Agreed times when the travelling party will make the children available to communicate with the other party by telephone/skype. For the purpose of Order 16 and 17 above, for the duration of the child’s absence from Australia the non-travelling parent be entitled to communicate by telephone/skype with the child each third day following their departure from Australia and do so by calling the landline number provided by the travelling parent at 9.00 am (child’s time) and to be able to speak for up to 10 minutes and the travelling parent be and is hereby responsible for ensuring that the child is available to speak to the non-travelling parent and that the telephone line is kept free for that purpose.
18.The Court notes the parties will not refuse any unreasonable proposed travel arrangements for the child made by either party.
19.The Mother shall hold the child’s passport at all times.
20.Upon the conditions being met for travel in the preceding Orders, the mother shall provide the father with the child’s passport 7 days before departure and the father shall return the passport to the mother 7 days upon his arrival to Australia.
Final Property Orders
1.That within 21 days of these Orders, the husband make a cash payment to the wife of the sum equivalent to 20% of the net asset pool.
In the alternative,
a)That within 21 days of these Orders, the husband make a cash payment to the wife of the sum equivalent to 10% of the pool.
b)Until the child commences school, the Husband shall pay the wife periodic spousal maintenance in the amount of $1,373 per week commencing on the first Monday after the date of these Orders.
2.That maintenance under this Order shall be paid by being deposited into the Wife’s nominated bank account or as directed by the Wife. Except as specifically provided for by any Order to the contrary, as against the Husband, the Wife is the sole owner of, and the Husband has no interest in, all personal property (including choses in action) or other property of whatsoever nature and kind in the possession or name of the Wife at the date of the making of this Order.
3.Except as specifically provided for by any Order to the contrary, as against the Wife, the Husband is the sole owner of, and the Wife has no interest in, all personal property (including choses in action) or other property of whatsoever nature and kind in the possession or name of the Husband at the date of the making of this Order.
4.Except as specifically provided for by any Order to the contrary:
a.The Husband shall indemnify the Wife from and in respect of all actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband; and
b.The Wife shall indemnify the Husband from and in respect of all actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife.
5.Each party retains their respective superannuation.
6.The Husband pay the Wife’s costs of and incidental to this application.
Independent Children’s Lawyer
At the commencement of submissions the Independent Children’s Lawyer provides a minute of order in which the following orders are sought.
1.The father and mother have equal shared parental responsibility for the care, welfare, and development of X ('X) born in 2019.
2.That X live with the mother.
3.The mother be restrained and injuncted from relocating with X outside of the Greater Sydney Metropolitan area.
4.That X spend time with the father until she reaches the age of 3 as follows:
(a)Each week from 7:00am to 4:00pm on Tuesdays, Thursdays, and Saturdays;
5.From aged 3 until X commences Kindergarten that she spend time with her father as follows:
(a)7:00am to 4:00pm on Tuesdays and Thursdays each week;
(b)Every second weekend from Saturday 10:00am to Sunday 5:00pm.
6.Thereafter X spend time with her father as follows:
(a)In Week 1 of a 2 Week cycle from Thursday at the conclusion of school or 3pm if not on a school day to 7:00pm;
(b)In Week 2 of a 2 Week cycle on Friday from the conclusion of school or 3:00pm if not a school day to 4:00pm Sunday afternoon;
(c)During mid-term school holidays as follows:
(i)On Even years, the first half of the school holidays commencing from the conclusion of school on Friday, until 6:00pm of the following Saturday;
(ii)On Odd years, the second half of the school holidays commencing from 6:00pm on the second Saturday of the school holidays until 6:00pm of the following Saturday prior to the commencement of school;
(d)The second and fourth week of the school Christmas holidays from 9:00am to 5:00pm Sunday until X is in year one, then the following will apply:
(i)On Even years, the first half of the school holidays commencing from the conclusion of school on Friday or 3pm if not on a school day, until 6:00pm of the following 3rd Saturday;
(ii)On Odd years, the second half of the school holidays commencing from 6:00pm on the third Saturday of the school holidays until 6:00pm of the Saturday prior to the commencement of the new school year.
7.That notwithstanding any other Order that X spends time her father on the following special occasions as follows:
(a)On Father's Day, from 10:00am to 5:00pm;
(b)During Orthodox Easter as follows:
(i)On Even years, from 7:00am Good Friday until 3:00pm Easter Saturday;
(ii)On Odd years, from 3:00pm Easter Saturday until 4:00pm Easter Sunday.
(c)On the father's birthday, with the father from 10:00am to 5:00pm if not a school day, and from 3:00pm to 6:00pm if on a school day
8.That notwithstanding any other Order that the father's time is suspended:
(a)from 10am to 5pm on Mother's Day.
(b)During Orthodox Easter as follows:
(i)On Odd years, from 7:00am Good Friday until 3:00pm Easter Saturday;
(ii)On Even years, from 3:00pm Easter Saturday until 4:00pm Easter Sunday.
(c)On the Mother's birthday, with the mother from 10am to 5:00pm if not a school day, and from 3:00pm to 6:00pm if on a school day.
9.That for the purposes of changeover that does not occur at X's school, the father shall collect and deliver X to and from the mother's residential address at the commencement and conclusion of time.
10.X shall have telephone communication with the father on Mondays and Wednesdays when he does not have the care of X between 7:00pm to 7:30pm. The father shall contact the mother for this purpose.
11.That provided it is safe to do so and the COVID-19 restrictions on travel are eased, the mother be able to travel with X to the state of Victoria every 12 weeks for a period of no longer than 7 days from the date of departure from Sydney, until return back to Sydney.
12.That neither parent denigrate the other parent in the presence or hearing of X or allow X to be exposed to others denigrating the other parent.
13.The parents are each restrained by injunction from discussing these proceedings with or in the presence of X or showing to X any document connected with these proceedings.
14.That the parents shall provide to each other and keep each other informed of a current mobile phone number and/or residential landline number and residential address.
15.That the parents keep each other informed of any major medical issues involving X, particularly of any medical attention or treatment received by X, any medication requirements or medical appointments and provided that this notification shall be as immediate as practicable in the event of a medical emergency.
16.The parents are each entitled to attend any school, sport, extra-curricular or other public event involving either or both of them.
DOCUMENTS
·Further Amended Initiating Application sealed 26 August 2020
·Affidavit of Mr Hamady sworn 24 September 2020
·Financial Statement of Mr Hamady sworn 13 November 2020
·Case outline including minutes of orders sought
·Further Amended Response sealed 14 September 2020
·Affidavit of Ms Mansour sworn 11 September 2020
·Financial Statement by Ms Mansour sealed 14 September 2020
·Affidavit by Ms D sworn 10 September 2020
·Case outline, including minutes of orders sought
·Exhibits
CHRONOLOGY
From the case outlines, the affidavits and the evidence the following is relevant and uncontentious.
1982 Father born 1987 Mother born in Country E 1990 Mother with her parents migrated to Australia 2017 Mother moved to Sydney from Melbourne for work reasons 2017 Mother and father meet 2017 Parents become engaged 2018 Parents married 2019 X born 2019 Mother and X travel to Melbourne to prepare for X’s christening 2019 Father travelled to Melbourne to prepare for X’s christening 2019 Father returns to Sydney after X’s christening 1 June 2019 Mother sends text to father to effect separation – final separation 12 July 2019 Father files Initiating Application 29 July 2019 Interim parenting orders 10 January 2020 Judgment consequent upon interim hearing – mother to return to Sydney to live with X 19-21 October 2020 Final hearing
Judgment reservedEVIDENCE
The father is self‑employed.
He is undertaking some building developments in Sydney jointly with his brother.
He is establishing a business franchise in Brisbane.
He lives in Suburb F.
The mother is now not working.
She is parenting X.
She has university degrees in health care.
She has prior to X’s birth worked as a health care professional in private practice in both Melbourne and Sydney.
She lives with X in Suburb C.
The parents were married in Sydney and lived in Sydney for the duration of their marriage in Suburb C.
The mother’s family lives in a suburb of Melbourne.
The father’s family lives in a suburb of Sydney.
After X’s birth the mother breastfed X and was her primary carer.
The father assisted with X’s care when not at work.
After the interim hearing the mother complied with the orders and returned to live in Suburb C with X.
The father began to spend time with X, for up to several hours on Mondays, Wednesdays and Fridays.
The father did not spend time with X on each period available to him pursuant to the interim orders and sometimes for less time than the orders permitted.
The parents have a style of communication that is at times argumentative.
The father says he cannot live in Melbourne due to his business commitments.
The mother says she is lonely, unhappy and feels unsupported living in Sydney.
The mother desperately wants to move with X to Melbourne to live in her parents’ home, and by X’s 5th birthday find part time work in her field of qualification.
At the date of marriage the father owned in his own name 3 pieces of real estate being:
·A home at G Street, Suburb H purchased in 2007 for $224,000, in which he had at a 5% equity
The property is rented and the rent pays the mortgage.
It has a current value of $440,000.
·A home at J Street, Suburb K purchased in 2011 for $465,000 subject to a mortgage of $473,000.
The property is rented.
It is now worth $950,000.
·A home at L Street, Suburb M purchased in 2013 for $555,000 with a mortgage of $510,000.
The property is rented.
It is now worth $925,000.
At the date of marriage the husband owned jointly with his brother 2 properties.
·Land at N Street, Suburb O which was purchased in 2017 for $675,000 subject to a mortgage of $663,000.
A duplex is to be erected.
The husband’s share is worth $360,000
·Land at P Street, Suburb F which was purchased in 2017 for $565,000 and is subject to a mortgage.
The husband’s share is worth $255,000.
There is no expert evidence as to the values of the above properties and mortgage balances as at the date of the husband and wife’s marriage.
The husband also holds shares in a company on trust.
The underlying business of the shareholding is a business in Brisbane that has just began to operate.
The business is not yet profitable.
The mother owned no assets of significant value at the date of marriage apart from superannuation with a balance of approximately $21,000.
The mother contributed her income when working to the family finances.
She has been the primary parent of X since X’s birth.
She was also the principal “home maker” throughout the marriage.
The maternal grandmother confirmed she is “able and willing” to offer her daughter and granddaughter accommodation in her home at Suburb Q. It is a 5 bedroom home, with a large backyard.
It is about a 90 minute flight from Sydney to Melbourne, with a drive time from home to airport of about 60 minutes in each of Sydney and Melbourne.
The father says his current income is quite variable but down from the $143,000 he earned in 2019. The mother receives a Centrelink parenting payment.
COVID-19 border restrictions were in place as at the time of hearing.[1]
[1] These restrictions have by judicial notice eased since hearing but still involve some short duration post COVID test quarantine requirements in Melbourne but seem to be easing
ASSETS & LIABILITES
At hearing the parents agreed a balance sheet which became exhibit A.
The only dispute was whether the wife owed $44,000 to the maternal grandmother.
The evidence does not permit that finding. Although I am satisfied that some monies had been advanced to the mother there is no real expectation for repayment. Those monies I find for that reason to be a perfected gift.
FAMILY REPORT
A family report was ordered pursuant to s62G(2).
The report was written by a family consultant Ms R and is dated 13 July 2020. The report became exhibit C.
Due to COVID 19 restrictions no observations of X with either parent were possible.
In forming her opinions the consultant was entirely dependent on reports from each parent and she concluded within those limitations:
•X was meeting her developmental milestones
•X had established a relationship with each of her parents, but her primary relationship was with her mother
•continuing to live with her mother would likely enable X’s health and secure relationships and support her development
•X has spent consistent time with her father since the interim orders were made in July 2019 and this will if maintained assist X in maintaining a meaningful relationship with her father
She was clear when cross examined that for X to be able to continue to maintain a relationship with her father depends on the time she can spend with him.
Ms R recommended:
•X live with her mother
•X spend at least 2 days per week with her father
•That the mother have sole parental responsibility
DETERMINATION
The assets and liabilities of the parents as at the date of hearing are:
BALANCE SHEET
Ownership
H = husband
W = wife
O = otherDescription Value ASSETS 1. H G Street, Suburb H NSW $440,000 2. H J Street, Suburb K NSW $950,000 3. H L Street, Suburb M NSW $925,000 4. H/o N Street, Suburb O NSW (50% share) $360,000 5. H/o P Street, Suburb F NSW (50% share) $255,000 6. H Shares in S Company held by Husband as trustee of Hamady Family Trust Nominal 7. H/o T Pty Ltd (50% Share) Nominal 8. H NAB classic banking #...52 $6,207 9. H NAB offset account #... 28 (J Street, Suburb K) $212,029 10. H NAB offset account #...77 (L Street, Suburb M) $228 11. H Westpac offset account #...77 $11,209 12. H/o Westpac choice #...85 $91,737 13. H Motor Vehicle 1 (reg to T Pty Ltd) NIL 14. W Westpac Savings Account #...00 as at 9 October 2020 $984 15. W Westpac Bank Account #...95 Nominal 16. W Motor Vehicle 2 $4,000 17. W Household Contents $1,000 18. H Household Contents $7,609 Total $3,265,003 LIABILITIES 19. H NAB Mortgage #...75 (L Street, Suburb M) $510,000 20. H NAB mortgage #...00 (J Street, Suburb K) $473,000 21. H Westpac mortgage# ...61 (G Street, Suburb H) $258,681 22. H/o Westpac mortgage #...25 husband’s share $350,909 23. H/o Westpac mortgage #...87 husband’s share $269,560 24. H/o U Finance mortgage #...81 $76,990 25. H/o U Finance line of credit ...1 NIL 26. H NAB Credit Card #...78 NIL 27. H NAB credit card #...83 $2,007 28. W Westpac 55 Day Visa Account #...58 $961 29. W Help debt as at 9 October 2020 $62,026 Total $2,004,134 SUPERANNUATION Member Name of Fund Type of Interest Value 30. H Super Fund V Accumulation $150,642 31. W Super Fund W Accumulation $21,873 Total $172,515 NETT TOTAL ASSETS & SUPERANNUATION $1,433,384
Apart from the wife’s superannuation and a portion of the husband’s superannuation and the household contents, all assets were owned by the husband prior to their marriage. The debts at marriage were also all the husband’s apart from the wife’s Help debt.
It was a short marriage.
The mother’s contribution has for the most part been limited to homemaking for the short period of their marriage and parenting X, which she has done and continues to do with minimal assistance from the father. Prior to X’s birth she contributed her income. After X’s birth the mother’s income has been minimal.
By virtue of the interim orders, the father meets the mother and X’s housing costs.
To the date of hearing, the husband’s contribution has been 98% and the wife’s 2%.
The father is 5 years older than the mother.
His capacity to earn income significant exceeds the mother.
The mother wishes to parent full time until X is aged 5 that is, for another 3 years.
The mother will as a result of the parenting orders have the care and control of one child under 18 years for significantly longer periods than the father during each fortnight.
Neither parent has re‑partnered.
The husband has significant assets and financial resources at his disposal.
The mother has none.
Both are in good health.
A 10% adjustment for s75(2) factors is, having taken the above into consideration, a proper outcome.
Overall then the husband is to receive 88% of the nett assets and the wife 12%.
12% of $1,433,384 is $172,006.08.
As the wife already has superannuation of $21,873, a car worth $4,000 and contents worth $1,000. A cash payment to her of $145,133 will be necessary.
An asset or assets might have to be sold by the husband or he might increase his borrowings.
No evidence was lead as to Capital Gains Tax as the husband proposed an ongoing payment of $450 per week plus a superannuation split.
It is for that reason not possible to calculate that tax and incorporate it into the overall outcome. If he borrows the money, no capital gains tax is incurred.
Time to pay of 120 days will be allowed.
The husband is to continue to need to meet the wife’s housing costs as he now does until the payment is made, that obligation will then cease and the applicable order will then from that date be discharged.
Overall I am satisfied this outcome is just and equitable.
It was never an issue that X would remain living with her primary carer, her mother.
The primary issue was to how to enable and maintain as meaningful as possible a relationship between X and her father. Both parties believe a meaningful relationship between X and each of her parents benefit her.
X has unsurprisingly expressed no views.
X’s primary and most important relationship is with her mother.
X is developing a relationship with her father. Continued time together will be needed to further develop this relationship. If they do not spend time together, X due to her age, would quickly forget her father.
Not living with her mother would be a change in circumstance contrary to X’s best interest. Neither parent supports such outcome.
X benefits from and will continue to benefit from time with her father.
It is submitted the mother’s parenting of X would be enhanced by her moving to Melbourne and being “a happier parent”.
I accept the mother would be happier in Melbourne, there is little evidence, other than the mother’s own self‑assessment about the impact of this upon her parenting. What is clear is she would have significantly more family support in Melbourne in parenting X than is available to her in Sydney, given her “jaundiced” view of the extended paternal family and her estrangement as a consequence from them. This support together with the mother’s “happiness” will significantly benefit the parenting of X and this will cause better development opportunities for X. It will enable the mother to obtain employment and have family carers for X before and after school.
The father’s assertions he can’t himself relocate in parallel “ring hollow” except for COVID‑19 reasons. He runs his business in Brisbane from Sydney.
He could just as easily run all his businesses’ from Melbourne. The last 12 months have shown the viability of video conferencing/meetings for work places and businesses.
Travel from Melbourne to Sydney and return would likely be onerous for X given her age and she will for years need parental companionship on flights. If X remains living in Sydney this would not be an issue and there would be little expense incurred in spending time with her father.
COVID restrictions currently make regular travel interstate between Melbourne and Sydney difficult and impracticable. That will likely change in the near future, when is the unknown factor.
Less time with her father will reduce X’s capacity to develop a relationship with her father.
There is no question that the mother is a now capable and child focussed parent. Her capacities will increase when she moves to Melbourne.
The father has much less capability as a parent than the mother and at times lacks child focus.
He is dependent to an extent on his mother for support, and it is ironic he seeks to deny a similar opportunity for the mother.
X is very young.
The next 1-2 years are critical developmental years for her from a relationship perspective. On balance a delay in relocation will benefit X.
No fault can be direct to the mother’s attitude to the responsibilities of parenthood.
The father is not at the mother’s level in this regard.
The parents are poor communicators.
Most parenting decisions to date have been made by the mother. The only adverse decision she made was to remain in Melbourne with X at final separation without real engagement with the father prior to that decision.
They are not so poor communicators for there to be a need for an order other than equal shared parental responsibility even if they live in separate States.
On balance the mother will be permitted to relocate X’s home to Melbourne but not prior to June 2022 so as to enable more regular time between X and her father in the next 18 months than would be possible if relocation immediately permitted. This more regular time will facilitate relationship development so that within 18 months the father/daughter relationship will have developed so as to permit less regular but longer periods.
That near 18 month period will permit a further consolidation of X’s relationship with her father so that she will be able to spend less frequent but longer duration periods with him whether or not he chooses to move to Melbourne.
It will also hopefully enable sufficient passage of time for all COVID restrictions regarding travel to be lifted.
X by age 3½ should be old enough to sustain a single night away from her mother on a fortnightly basis depending on whether the father elected to himself relocate to Melbourne.
It is too early in X’s development, given her age and limited relationship, to know whether or even when an equal time order would be in her best interest. Such order would necessitate the father moving to Melbourne given X will be living in Melbourne, something he says he will not do.
For the same reasons, significant and substantial time will not be ordered, as it is too early to determine whether such order would be in X’s best interest.
The mother’s parenting capabilities are sufficient to meet X’s needs in the next 18 months. Two block “respite periods” a year will be permitted to enable the mother and X to spend 14 days in each period in Melbourne.
By 2022 X’s relationship with her father should be robust enough to be sustained an overnight period a fortnight and from her 4th birthday additional 3 night holiday periods 4 times a year.
Trying to project X’s needs beyond that is not possible at this time given her age and stage of development.
The father given his superior financial position can meet X’s travel costs.
I am for the above reasons satisfied those parenting arrangements are both in X’s best interest and are also reasonably practicable.
This case has been decided having regard to the jurisprudence that can be found in cases such as McCall & Clark (2009) FLC ¶93‑405, Hepburn v Noble (2010) FLC ¶93-438, U v U (2002) FLC ¶93‑112, A v A: Relocation Approach (2000) FLC ¶93-035 and MRR v GR (2010) FLC ¶93-424.
CONCLUSION
Relocation cases are parenting cases and are to be decided by determining the case with the paramount consideration to be X’s best interest.
For the above reasons, I find a delayed relocation coupled with time with orders will overall benefit X and is in her best interest.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dunkley. Associate:
Dated: 27 January 2021
Key Legal Topics
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Family Law
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