Hawken & Hawken (No 2) - [2023] FedCFamC1F 298

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hawken & Hawken (No 2) [2023] FedCFamC1F 298

File number(s): SYC 235 of 2022

Judgment of: SCHONELL J

Date of judgment: 20 April 2023

Catchwords:
FAMILY LAW – PARENTING – Relocation – Where the mother sought to permanently move to Country E with the children – Where the father opposed the relocation – Where the mother’s desire to relocate is bona fide – Consideration of primary and additional considerations – Where the Court found that the father was the perpetrator of family violence – Where the Court is satisfied that the mother’s proposal ensures that the children are able to maintain a meaningful relationship with the father and that she is supportive of the children’s relationship with their father – Orders made permitting the mother to relocate to Country E with the children – Where the Independent Children’s Lawyer sought a costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Costs application dismissed.

FAMILY LAW – PROPERTY – Where both parties sought an order by way of financial adjustment – Where both parties sought a separate percentage division of the non-superannuation assets and superannuation assets – Where the mother contended that her contributions had been made more onerous or arduous than they otherwise might have been because of the father’s conduct – Where the Court is not satisfied that this has been established – Where the mother is and will be the primary carer of the children and receives no child support from the father – Where an adjustment in favour of the mother is appropriate – Where a just and equitable outcome is 55 per cent to the mother and 45 per cent to the father on the non-superannuation assets, and 45 per cent to the mother and 55 per cent to the father on the superannuation assets.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60CB, 60CA, 60CC, 61DA, 65DAA, 75, 79, 90XT, 106A, 117

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 11

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Convention on the Civil Aspects of International Child Abduction

Cases cited:
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Bant & Clayton (Costs) (2016) 56 FamLR 31; [2016] FamCAFC 35

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Franklyn & Franklyn [2019] FamCAFC 256

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395

Horrigan & Horrigan [2020] FamCAFC 25

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46

Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230

Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76

Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold and Penfold (1980) 144 CLR 311

Sayer v Radcliffe& Another (2012) 48 Fam LR 298; [2012] FamCAFC 209;

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Singerson & Joans [2014] FamCAFC 238

S & S [2003] FamCA 905

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

U v U (2002) 211 CLR 238; [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 242

Date of hearing: 11 – 13 April 2023

Place: Sydney

Counsel for the Applicant: Mr Kenny

Solicitor for the Applicant: CopperTree Family Law

Counsel for the Respondent: Mr Anderson

Solicitor for the Respondent: Rafton Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Hayward

Solicitor for the Independent Children's Lawyer: Legal Aid New South Wales
ORDERS

SYC 235 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HAWKEN

Applicant

AND:
MR HAWKEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

20 April 2023

THE COURT ORDERS THAT:
1.The applicant mother (“the mother”) have sole parental responsibility for the children X born 2012 and Y born 2014 (collectively “the children”) and for the purposes of this order, in exercising her sole parental responsibility, the mother shall:
(a)Inform the respondent father (“the father”) in writing of any decision (concerning a major long term issue) to be made in relation to the children and the mother’s position regarding the proposed decision;
(b)Provide the father with seven (7) days or as much notice as is practicable, having regard to the time required for such decision to be made, within which to consider the decision to be made and provide in writing input and feedback into the decision to be made;
(c)Consider the father’s response; and
(d)Inform the father of the ultimate decision made by the mother.

2.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) and the order for sole parental responsibility, the mother is entitled to apply for a passport/travel document for the children without the requirement that the father give his consent or that he sign any requisite documents.
3.The children live with the mother.
4.The mother is permitted to relocate the children’s residence outside the Commonwealth of Australia to Country E.
5.Within seven (7) days after receipt or as soon as practicable, whichever is earlier, of any school reports or any information regarding an issue in respect to the children’s education and health, the mother shall:
(a)provide to the father a copy of such document or detail of any information regarding an issue in respect to the child’s education and health; and
(b)provide a short summary of the document or information in writing in English.

6.Pending compliance with Orders 15, 16 and 17, and pending relocation of the children’s residence to Country E, the father spend supervised time with the children as follows:
(a)Each Wednesday from completion of school or 3.00 pm if not a school day to 8.00 pm;
(b)Each Sunday from 9.00 am to 5.00 pm; and
(c)Such other times as agreed between the parties.

7.Following compliance with Orders 15, 16 and 17, and pending relocation of the children’s residence to Country E, the father spend time with the children as follows:
(a)Each Wednesday from completion of school or 3.00 pm if not a school day to 8.00 pm;
(b)Each Sunday from 9.00 am to 5.00 pm; and
(c)Such other times as agreed between the parties.

8.Upon relocation of the children’s residence to Country E and following compliance with Orders 15, 16 and 17, the father shall spend time and communicate with the children as follows:
(a)Skype, telephone and/or facetime communication each Monday, Wednesday and Saturday, and at such other times as requested by the children.
(b)In the event that the father has travelled to Country E during school time, each weekend from completion of school Friday to 3.00 pm Sunday, or a time otherwise agreed by the parents, for a period up to four weeks.
(c)In the event that the father has travelled to Country E during the spring or autumn Country E school holiday period for the whole of that holiday period.
(d)In the event that the father has travelled to Country E for the summer or winter Country E school holiday period for one half of that period being the first half in even numbered years and the second half in odd numbered years.
(e)Such other times as agreed between the parties.

9.For the purposes of Order 8 the father shall give the mother twenty eight (28) days written notice of his intention to exercise time in accordance with Order 8.
10.During times the father is spending time with the children pursuant to Order 8, the father shall provide the mother with:
(a)The particulars of the location he will be residing at with the children;
(b)Contact information including a telephone number the mother can reach the children on; and
(c)In the event of any travel, copies of the confirmed return airline tickets and details of flights and accommodation for all travelling parties.

11.Upon the mother having been given notice pursuant to Order 9, the mother shall, on the first occasion in each calendar year that the father makes such request, advance to the father the sum of $4,000.00 as a contribution to the father’s airfare and accommodation.
12.The mother shall not less than once in every 18 month period commencing on the date of these orders, arrange for the children to travel to Australia to spend time with the father for a period of not less than two weeks and the children shall spend time with the father for the duration of that holiday period and the cost of the children’s airfares to Australia shall be met by the mother.
13.The time referred to in Order 12 in each alternate 18 month period shall include the Christmas/New Year period.
14.The father is permitted to attend any school event, assembly or parent/teacher meeting or interaction which parents in the normal course are invited to attend at the children’s school during his time in Country E or in Australia prior to the children’s relocation.
15.The father shall continue to attend upon his treating psychologist Ms C and general practitioner Dr D for the purpose of ongoing treatment of his alleged alcohol consumption and monitoring of his mental health and shall accept and implement all recommendations made by those health practitioners.
16.Within fourteen (14) days from the date of these orders, the father shall enrol in the ‘Circle of Security’ course and complete the earliest course available to him.
17.Leave is granted for the Independent Children’s Lawyer (“the ICL”) to provide to the father’s treating psychologist Ms C and general practitioner Dr D a copy of the Family Report dated 30 March 2023, final orders and reasons for judgment.
18.Within twenty-eight (28) days of the mother relocating to Country E with the children, the mother shall provide the father a postal address for the father to send to the children any gifts, cards, photos and letters that he may wish to do so from time to time.
19.Insofar as it is possible, each party shall notify the other party within seven (7) days or otherwise as soon as practicable, whichever is earlier, prior to any change to their telephone number, mobile telephone number and/or email address.
20.The parties be restrained by injunction from:
(a)Swearing or using profanities in the presence or hearing of the children and each parent shall ensure the children are removed from the vicinity of anyone using such language;
(b)Denigrating the other party or a member of their family to the children or in the presence of or within the hearing of the children, and shall use their best endeavours to ensure that no third person denigrates the other party or a member of their family to or in the presence of or within the hearing of the children; and
(c)Discussing these proceedings with or in the presence of the children, and must not allow other people to discuss these proceedings with or in the presence of the children.

21.The father be restrained from entering the mother’s property without her consent.
22.The mother is restrained from causing X to attend upon any therapy that is ‘trauma-informed’ therapy on the basis that X is a victim of family violence.
23.The ICL’s application for costs is dismissed.
24.Within 28 days from the date of these orders, the parties must do all acts and things necessary to list for sale and sell the property situated at and known as O Street, Suburb U being the whole of the land contained in Certificate of Title Folio Identifier … (“the property”) by private treaty for the best possible price and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties, and failing agreement within twenty one days of the default date, the mother shall provide to the father, the names of three (3) local real estate agents for the area (“the list”) and within seven (7) days of the receipt of the list from the mother, the father shall nominate one real estate agent from the list and for the purposes of these orders they shall be appointed as the selling agent. In the event that the father does not nominate a real estate agent from the list provided by the mother in compliance with this order, then the mother shall select an a real estate agent to be appointed to conduct the sale;
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement the list price will be as nominated by the selling agent and any offer to buy the property that is at least 95 per cent of the list price shall be accepted by the parties as the sale price;
(c)The mother and father shall instruct a solicitor or conveyancer operating in the area as agreed between them to prepare contracts for the sale of the property and thereafter act on the conveyance of the property, and failing agreement within fourteen (14) days of the default date, the mother shall provide a list of three solicitors operating in the area (“the second list”) to the father and the father shall within seven (7) days of being given the second list nominate one of the solicitors or conveyancers on the second list to act on the sale of the property. In the event that the father does not nominate a solicitor or conveyancer from the second list provided by the mother, then the mother shall nominate the solicitor or conveyancer to be appointed for the sale;
(d)The mother shall co-operate in every way with the selling agent in relation to the marketing of the property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the selling agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(e)Should the property fail to sell by way of unconditional exchange of contracts within twelve (12) weeks from the date the property was first offered for sale by private treaty, the mother and father will do all acts and things and sign all documents necessary to auction the property on the first Saturday sixteen (16) weeks after the property was offered for sale by private treaty and instruct the real estate agent nominated pursuant to these orders to conduct the auction.

25.The reserve price for the auction referred to in Order 24(e) above shall be as agreed and failing agreement five (5) per cent less than the price the property was last offered for sale by private treaty.
26.Should the property fail to sell at auction, the mother and father will re-auction the property every 4th Saturday thereafter until the property is sold and the reserve price for each subsequent auction shall be 2 per cent less than the reserve price for the preceding auction.
27.Upon completion of the sale of the property the proceeds be paid as follows:
(a)pay out the mortgage to C Bank;
(b)pay all rates and taxes owing on the property;
(c)pay all the selling agent’s commission costs and advertising expenses on the sale;
(d)pay the solicitor’s or conveyancer’s costs and disbursements of acting on the sale;
(e)Reimburse all reasonable costs incurred by either party to prepare the property for sale;
(f)pay the then remaining balance as follows:
(i)55 per cent to the mother; and
(ii)The balance to the father.

28.The orders below have effect from the operative time:
(a)In accordance with s 90XT (1)(a) of the Family Law Act 1975 (Cth) (“the Act”) whenever a splitable payment becomes payable to or on behalf of Mr Hawken born 1967 (“the father”), from his interest in the Superannuation Fund 1, Member Reference: … (“the Superannuation Fund”), Ms Hawken born 1978 (“the mother”) is entitled to be paid (by the trustee of Superannuation Fund 1) the amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”) using a base amount of $289,713.75 and there shall be a corresponding reduction in the entitlement of the person to whom a splitable payment would have received from the Superannuation Fund but for these orders;
(b)Having been accorded procedural fairness in relation to the making of this order, the trustee of the Superannuation Fund in accordance with the obligations set out under the Act and the Regulations shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payments to the mother in accordance with order 28(a) herein;
(c)The father shall do all such things and sign all such documents as may be necessary including but not limited to exercising his request pursuant to reg 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth) so that the trustee of the Superannuation Fund can roll over or transfer the transferable benefits out of the father’s interest in the Superannuation Fund to a fund of the mother’s choosing in accordance with reg 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 (Cth);
(d)The operative time for the preceding order shall be the beginning of the fourth business day after the day on which a copy of these orders are served on the trustee.
(e)This order binds the trustee of Superannuation Fund 1.
(f)Each party and the trustee has liberty to apply on not less than three (3) business days’ notice in respect to the implementation of the super splitting orders.

29.From the date of these orders and unless otherwise specified in these orders except for the purposes of enforcing payment of any money due under these or any subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these orders including any jewellery, furniture, furnishings, shares and motor vehicles;
(b)Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;
(c)Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance stand shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other unless otherwise provided herein; and
(d)The parties are each declared solely liable to the exclusion of each other for all debts and liabilities in their name solely or with a third party, and that each party is otherwise indemnified from liability for the debts and liabilities in the individual name of the other.

30.Each of the parties shall produce and execute all documents and instruments and do all other acts and things as may be reasonably necessary to give effect to these orders.

31.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders within 14 days of a written request to do so then, the registrar of the Court be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the registrar being provided with verification of such refusal or failure by way of affidavit.
32.The orders made 18 July 2022 are discharged.

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).
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 by this Court under the pseudonym Hawken & Hawken has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

The applicant mother (“the mother”) and the respondent father (“the father”) are the parents of X and Y (collectively “the children”). Both children are Australian and Country E citizens. The proceedings relate to what the appropriate arrangements for the children are in circumstances where the mother wishes to relocate the children’s residence to Country E whilst the father opposes the children’s relocation, and how the parties’ property should be divided.
At the commencement of the hearing each party made their position clear; the mother indicated that if orders were not made for the children’s relocation to Country E then she would remain living in Australia with the children while the father said if they went to Country E he would remain in Australia.
There was no issue, irrespective of where the children were to live, that they would be in the primary care of their mother. Other than the issue of relocation, the parties were apart in relation to the question of parental responsibility as well as what the spend time arrangements should be for the children if they lived in Australia.
Following the evidence of the single expert, the Independent Children’s Lawyer (“the ICL”) indicated that she was supportive of the children’s relocation to Country E. In light of the amended orders sought by the ICL, the mother said she accepted all of the ICL’s orders with the exception of the order for costs. The father remained opposed to the children’s relocation.
BACKGROUND AND PROCEDURAL HISTORY
The mother was born in Country E in 1978 and is currently 45 years of age. She is an Australian permanent resident.
The father was born in Australia in 1967 and is currently 56 years of age.
The parties are at issue as to when they commenced cohabitation, with the mother contending 2004 and the father contending 2006. The mother recorded in her Amended Initiating Application that the parties commenced cohabitation in 2004. The father’s Amended Response to the Initiating Application did not dispute that fact. In light of the mother’s more precise evidence overall and inconsistencies in the father’s material, I find they commenced cohabitation in 2004.
The parties married in 2010 and separated on 31 December 2021.
There are two children of the relationship: X born 2012, aged 10 years; and Y born 2014, aged 8 years.
The children have dual Australian and Country E citizenship.
It is not in dispute that both parties currently suffer from mental health problems. The mother’s are of more recent origin while the father’s are longstanding, dating back to at least 2005.
At the commencement of cohabitation, the mother had savings of approximately $20,000 and superannuation in Country E.
At the commencement of cohabitation, the father owned a property at DD Street, Suburb U (“the DD Street property”) subject to a mortgage, a motor vehicle and some superannuation.
The mother says her savings of $20,000 were applied to renovations on the DD Street property and in purchasing new furniture.
In 2014, the parties purchased a property at O Street, Suburb U (“the O Street property”) for $537,500, which became the former matrimonial home. The father says that the DD Street property was sold and the net sale proceeds of approximately $405,000 were applied to the purchase of the O Street property. He says that a loan of about $130,000 was obtained to fund the rest of the purchase. The mother says that a mortgage of $525,500 was obtained for the purchase. She says that the mortgage was reduced to approximately $138,000 in 2015 after about $387,500 of the sale proceeds from the sale of the DD Street property were applied.
In 2016, the father resigned from his longstanding job in local government. The mother contends that he did so unexpectedly and that his conduct towards the mother and the children progressively worsened. The mother subsequently became the primary income earner.
The father contends that in 2016 he was diagnosed with severe anxiety and depression.
The mother contends that in or about 2019 she noted a significant deterioration in the father’s behaviour towards her and the children. She says that the father was verbally abusive, that he was physically violent to the children and that he made threats to the children. In her affidavit, the mother deposes to several incidents of violence perpetrated by the father including hitting and punching the children and saying to the children “I’ll crack your skull” and “I will kill you” (at page 5). The father conceded that he had been verbally abusive but denied that he had ever physically abused the children.
By mid-2020, the mother says the father’s behaviour had worsened and she noted an increase in his aggression.
In mid-2021, the mother informed her employer of the father’s behaviour. She was subsequently granted domestic violence leave.
In late 2021, the mother and children travelled to Country E for a holiday with the father’s consent. It was intended that they would return some months later. Due to the intervention of COVID-19 and border closures, the return flight was cancelled. The parties subsequently agreed that the mother and children would return to Australia in early 2022. The father contends that during this time he spoke to the children approximately three times every week.
On 31 December 2021, the mother advised the father of their separation and that she would not return to Australia with the children.
Subsequently, the father voluntarily admitted himself to the Mental Health Unit at Z Hospital where he stayed for a number of days. He says that he experienced extreme distress upon hearing that the children were not returning to Australia.
On 17 January 2022, the mother commenced proceedings in this Court seeking orders on an interim and final basis that would permit her to remain in Country E with the children.
On 16 February 2022, the father made an application under reg 11(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to the Australian Central Authority for the children’s return to Australia pursuant to the Convention on the Civil Aspects of International Child Abduction, which entered into force between Australia and Country E in the 1990s.
On 10 June 2022, orders were made by consent providing for the mother to return to Australia with the children before 1 July 2022 and for the father to vacate the former matrimonial home.
The mother and children returned to Australia on or around mid-2022 and the Hague proceedings were consequently discontinued.
Upon their return to Australia, the father commenced spending supervised time with the children as agreed between the parties.
Since returning to Australia, the mother and children have had occupation of the former matrimonial home to the exclusion of the father. The mother contends that the former matrimonial home was left in a poor state upon her return to the home such that she had to have it professionally cleaned.
On 14 July 2022, the matter was listed before me for determination of the mother’s interim application that she be permitted to relocate to Country E with the children. On 18 July 2022, I delivered my reasons and made orders restraining the mother from relocating to Country E with the children and for the father to spend supervised time with the children.
There were a number of pre-conditions in the orders before time could move to unsupervised. With a few exceptions, the father did not comply with the pre-conditions.
On that same day, the matter was set down for hearing for four days commencing 11 April 2023.
In mid-2022, the mother says her general practitioner diagnosed her with an “acute stress reaction and adjustment disorder in context of familial domestic violence situation” and that “ongoing treatment and psychosocial support” was required (mother’s affidavit, paragraph 331). She says her general practitioner also certified that she was unfit for work from mid to late 2022.
Due to ongoing concerns about their behaviour and mental health, the mother arranged for the children to attend therapy. In early 2023, X’s psychologist recommended that X commence intensive trauma counselling under the Victim Services Support Scheme.
In early 2023, an incident at the father’s work occurred where it was alleged that he displayed inappropriate behaviour including raising his voice. The father was given a formal warning.
A short time after, the father was suspended from work after it was alleged he displayed inappropriate behaviour. An investigation resulted in an inconclusive outcome and no further action was taken.
The trial commenced on 11 April 2023 and finished on 13 April 2023. Judgment was reserved.
PROPOSALS OF THE PARTIES IN RELATION TO PARENTING MATTERS
The father’s application by the time of submissions was that an order should be made for equal shared parental responsibility and that the mother be restrained from relocating the residence of the children from either the coast or the Sydney metropolitan area.
The father proposed that the children live with the mother and spend time with him five nights each fortnight during school terms and half school holidays. The father proposed that the mother be permitted to take the children overseas during the school holidays in Term 2 in even numbered years and for four weeks in the Christmas school holidays in odd numbered years. Otherwise, the father sought orders in the alternative that if the children relocated to Country E for him to spend time with the children for four weeks in the Country E school holidays and up to a further two weeks each year as well as Skype/FaceTime each Sunday.
The father’s primary proposal, that the children remain in Australia, clearly had the advantage that both parties would be in the same area and, therefore, the children would be able to see both parties during school terms and school holidays. This proposal represented a continuation of what was the children’s settled arrangements.
During interviews for the Family Report, the father indicated to the single expert that he sought an equal time arrangement. The single expert said:
128.… However, I think that this parenting proposal is naive and not ultimately desirable for a number of factors. Firstly, I cannot see any evidence that the father’s current employment would allow for such an arrangement. Given, as explained above, that the father’s employment is a source of regular income, stability and a protective factor in his mental health, I do not see it wise for him to change this in the short term in order to be able to provide a shared care routine.
129. Additionally, an implementation of an equal shared care routine would be a significant change for the children and one that I am not sure that they would cope with very well. They likely view their mother as a reliable organiser of their daily lives and a sudden shift to living half of the time with [the father] would be unsettling and anxiety provoking particularly for [X].
Whilst the father’s time proposal was reduced from equal time (seven nights a fortnight) to five nights a fortnight, it was at best aspirational and short sighted. It was contrary to the recommendations of the single expert. There was no evidence that the father’s work arrangements could accommodate a five night per fortnight arrangement. It reflects poorly on the father’s capacity to prioritise the children’s needs, particularly with the full knowledge of the orders the mother proposed and the terms of the orders of 18 July 2022 that he has not been able to comply with relatively simple requests which would have seen him by now spending unsupervised time with the children.
The disadvantage to the father’s proposal is that it compels the mother to remain living in a location that is not of her choosing and was one that impacted considerably upon her income earning capacity. It also has the possibility of either exacerbating or prolonging the mother’s current mental health problems and is a living arrangement that is contrary to the wishes of X.
The mother’s proposal was that the father spend time with the children during school terms and school holidays in the event that he travelled to Country E. She also proposed that the children be brought back to Australia every 18 months to spend time with the father and she offered to provide a sum of money to the father to enable him to travel to Country E each year. The mother’s proposal had significant advantages in the sense of enabling her to pursue better financial opportunities in Country E as well as to be close to the children’s maternal family. It would also, she contended, alleviate her current mental health issues. The mother contended that the father would be able to work in Country E and in her affidavit set out detailed evidence of the various options available to the father should he wish to live and work in Country E.
It is clear from the extensive material in the mother’s affidavit that she has thought long and hard about her proposal and has presented detailed evidence supportive of her case to relocate to Country E. The clear disadvantage to the mother’s proposal is the separation of the children for large blocks of time from the father. A relocation to Country E is also contrary to the wishes of Y.
The single expert said of the mother’s proposal:
159.… Her continued plight to relocate the children does represent somewhat of a blind spot with regard to the potential lifelong impact that a separation from [the father] would have.
I hold a different view. In circumstances where the mother’s application to relocate to Country E is bona fide, where she was committed to ensuring that the children maintain a relationship with their father while she and the children were in Country E, and where she has put forward a practical, well considered and thought through plan, I do not regard it as a “blind spot”. At no time did the mother ever suggest that the children would be able to maintain the same relationship that they have with the father in the event that they were residing in Australia or that it would be the equal to or better.
The mother relied upon the following documents:
(1)Amended Initiating Application filed 13 January 2023;
(2)Affidavit of mother filed 20 January 2023;
(3)Affidavit of mother filed 11 April 2023;
(4)Affidavit of Mr F filed 20 January 2023;
(5)Affidavit of Mr EE filed 20 January 2023;
(6)Affidavit of Ms G filed 29 March 2023;
(7)Financial Statement filed 20 January 2023; and
(8)Case Outline document in relation to property matters filed 4 April 2023; and
(9)Case Outline document in relation to parenting matters filed 5 April 2023.
The father relied upon the following documents:
(1)Amended Response to Initiating Application filed 20 January 2023;
(2)Affidavit of father filed 20 January 2023;
(3)Affidavit of Ms C filed 7 July 2022;
(4)Financial Statement of father filed 20 January 2023; and
(5)Case Outline document in relation to property matters filed 4 April 2023; and
(6)Case Outline document in relation to parenting matters filed 5 April 2023.
Both parties relied upon the Child Impact Report dated 11 July 2022 (Exhibit 2). The author of that report, Ms FF, was not required for cross-examination.
Both parties relied on parts of the Family Report of Ms GG, single expert, dated 30 March 2023 (Exhibit 3).
Each of the parties were cross-examined as was the father’s psychologist, Ms C. The father did not require for cross-examination any of the mother’s witnesses.
The single expert was cross-examined at length by each of the parties and counsel for the ICL.
SUBMISSIONS OF THE ICL
Counsel for the ICL submitted that the children should be allowed to relocate with their mother to Country E, that the mother had a well thought out proposal for the maintenance of the children’s relationship with the father and that there was no evidence that the mother’s application was other than bona fide. She submitted that there was clear evidence of family violence occasioned to the children by the father who made appropriate concessions that the mother would have had realistic fears for the safety of the children.
Counsel for the ICL submitted that the evidence demonstrated that the mother had been able to maintain a relationship between the children and their father whilst she was in Country E, evidenced by their reaction to him upon their return. She contended that the mother’s insistence upon supervised time subsequent to the children’s return had been entirely appropriate. Counsel submitted that the children’s relationship would not be severed in the event that they relocated to Country E, that they would be able to maintain a meaningful relationship, and that there needed to be considered the risks to the mother’s mental health which on balance supported relocation. She submitted that the Court should make an order for sole parental responsibility in favour of the mother irrespective of whether the children reside in Australia or Country E.
SUBMISSIONS OF THE MOTHER
The mother adopted the ICL’s orders. Her counsel indicated that she did not propose to leave Australia until mid-2023 to enable the children to start the new school year in Country E.
Counsel for the mother identified the father’s longstanding difficulties with anxiety, depression and anger. He submitted at length about the risks to the children in the future in light of events that occurred at the father’s place of employment where, according to the submissions, the father had problems controlling his behaviour such that he was reprimanded by his employer.
Counsel for the mother opined that the observations and complaints in his employment records bear a striking resemblance to the evidence of the mother and one of her witnesses of how the father reacted to the children. The mother’s counsel submitted that the mother is vulnerable and that the single expert had not properly analysed the degree of her vulnerability. He referred to her general practitioner who said she was unfit for work between mid and late 2022, diagnosing her with an acute stress reaction and adjustment disorder in the context of a familial domestic violence situation. He submitted that the mother’s own evidence was that she felt isolated and depressed in Australia.
Counsel for the mother emphasised her right to live in a place of her choosing and that the single expert had conceded that the children would have a meaningful relationship with their father even if they lived overseas. Counsel further submitted that the Court should place significant weight on the children’s wishes, in particular those of X given her age and degree of maturity.
SUBMISSIONS OF THE FATHER

Counsel for the father submitted that the mother’s freedom of movement must ultimately give way if the children’s welfare would be adversely affected by the relocation, indicating that the children would be unable to maintain a close relationship with their father if they moved to Country E. Counsel for the father submitted that the mother had little positive to say of the father and that the father had undertaken a considerable change in his behaviour, including engaging with a psychologist.
The father’s counsel submitted that the father wants to be the best father that he can be, that he made significant improvements in his mental health and how he relates to the children, and that the opinion of the single expert is clear that the risk factors identified in his behaviour have been significantly ameliorated. The father’s counsel submitted that a relocation was contrary to the recommendations of the single expert.
THE SINGLE EXPERT’S EVIDENCE
The single expert produced a comprehensive Family Report following interviews with the parties and children. Her ultimate recommendation was that the children should remain living in Australia in the primary care of their mother. She opined as follows:
184.Their current relationship with their father is one that I think offers much potential of benefit to both children and therefore I cannot see evidence that an international relocation away from him and their life in Australia is in their best interest.
185.That being said, I think that [the mother] is in the best position to provide primary care to the children. Ultimately at some point the time between the children and the father will need to move to an unsupervised arrangement and then to overnight care. The mother made the suggestion of alternate weekends with the father under the provision that the children are safe physically and emotionally. I think that this is a realistic goal (ie. Alternate Friday – Mondays) with the addition of another overnight in alternate weeks if the following points are considered;
-Time gradually increased over an 18 month period
-The father has consistent engagement and compliance with his own mental health professional who has leave to have a copy of this report
-The father complete the ‘Circle of Security’ Parenting Course
-The parents engage with a Parenting Coordinator as well as all therapy recommendations mentioned above.
She contended that the children should be permitted to remain engaged with their Country E heritage and trips to Country E should be supported.
Various propositions were put to the single expert about the mother’s mental health and her commitment to ensuring that the children maintained a relationship with their father. Notwithstanding various matters put to her, she remained of the view that the children’s best interests were served by them remaining in Australia.
THE PARTIES’ EVIDENCE
I have had regard to the extensive affidavit material which the parties relied upon, the exhibits tendered, and the evidence contained in the Family Report. I have also had the benefit of observing the parties and the single expert give their evidence.
It was my impression that each of the parties attempted to give their evidence truthfully, albeit they each had a tendency to see things from their own perspective.
As a consequence of the positions of each party being reframed in the manner referred to above, it seems to me that the issues for determination include amongst others:
(1)A consideration of the mother’s legitimate desire to live in Country E;
(2)The mental health of each party and its impact on their parenting capacity;
(3)Whether the children are able to maintain a meaningful relationship with the father if they lived in Australia or Country E; and
(4)Whether it is, taking into consideration all of the evidence, in the children’s best interests to live in Country E or Australia.
In relation to the mother’s desire to live in Country E, the Court has an obligation to explore and consider her right to freedom of movement to live where she wishes, and to pursue her legitimate interests and desires. This consideration is even more sharply focused where a primary carer is required to undertake the role of primary care in a place not of his or her choosing. As Kirby J observed in AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”):
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modem family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
(Footnotes omitted)
In Oswald & Karrington (2016) FLC 93-726, their Honours in the Full Court observed in the following terms:
17.Consequently, as emphasised by the Full Court in D and SV and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
(Footnote omitted)
It was not submitted that the mother’s desire to reside in Country E was as a consequence of any attempt to exclude the children from the father’s life. It was not submitted that her desire to live in Country E was anything other than bona fide and entirely motivated by what she saw as being in the best interests of the children. Nor was it suggested that the mother would not support the children in maintaining a relationship with their father should they move to Country E.
It is clear that the parties and following the birth of the children, the family, had prior to separation, spent significant periods of time in Country E. The mother’s unchallenged evidence was that they lived in Country E for about a year in 2006. The evidence also reveals the parties travelled with the children to Country E in 2013, 2015, 2018 and 2019 before the trip in late 2021.
In Australia, the mother works as a professional and earns about $76,500 per annum. She receives approximately $123 per week in various government benefits.
In her affidavit, the mother set out the opportunities available to her in Country E which are not available in Australia. None of this was the subject of any challenge either in cross-examination or in submissions. She says the following:
645. Relocating to [Country E] would significantly improve mine and the children's financial position. There are many tax benefits for parents, including the possibility to claim expenses for health care insurances expenses, childcare/out of school care, education and single parent allowances. Currently I am unable to afford private health insurance for myself and the children. …
646. Parents are entitled to a variety of financial support payments. These include the child benefit (independent of family income), child allowances (for low-income earners) and child bonus payments (additional one-off payments). The child bonus is 219 EUR per first and second child and paid by the […] (federal employment agency- family paments branch) usually until the child terminates their education. …
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650. If we lived in [Country E] and as per above notice, we would be paid approximately $75,000 (EUR 47,304) in child benefit payments.
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652. In addition, the federal government has been paying one off child bonus payments for families in various years. In 2021, this amounted to EUR 150 per child. I received a payment of EUR 200 last year under this scheme.
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654. Rent and housing is cheaper in [Country E] compared to Australia and although prices have risen, groceries are also still more affordable. For example, there are currently 2-3 bedroom homes in my parent's village of [HH Town] and the neighbouring village of [JJ Town] on the market for around $344,000 (EUR 222,000), $412,000 (EUR 266,000) and around $456,000 (EUR 295,000). The latter is in the same estate where my parents live, and it is renovated and ready to move into. Land is also much cheaper than in Australia and there is a 404 square metre block available in [HH Town] for around $100,000 (64,000 EUR). …
655. Similar sized houses in [Suburb U] where the matrimonial home is located currently commence at $680,000 and with the median house price for a three-bedroom home being $812,500 and in more sought after suburbs […] well over $1,775,000. …
656. The children would like to return to live with my parents. My parents have done further renovations to the house and the children’s rooms to make things even nicer than before. My parents said, “We would love to have you all live here”.
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660. In [Country E], I would have the support network and have already been contacted in relation to various available roles. The current job market in [Country E] is favourable and the staff shortage includes the –sector [I work in].
661. I would be able to return to work as a [professional], as consultant/advisor for companies as well as many […] public service roles.
662. Pay varies depending on the type of role. For example, as a [professional] with my work experience the average pay is around $200,000. …
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667.I have been assisted in caring for the children by a helpful and loving support network of family and friends in my home village. To have friends visiting from time to time is very different compared to having regular help from your own family to look after the children and visits/family gatherings all the time. The children and I do not have the same support in Australia.
I accept the mother’s evidence. I find that in the event that she was not able to pursue her legitimate desires to live in Country E, then there would be a significant curtailment not only of her freedom of movement, but also her ability to engage with her extended family as well as her ability to pursue better paid employment and superior financial opportunities than are available in Australia.
The mother set out in her orders and her affidavit a detailed, well considered and practical proposal for time with the father in the event of a relocation to Country E. She provides time between the father and the children during school terms and holidays in Country E as well as offering to contribute up to $3,000 per trip for a maximum of 10 trips to enable the father to visit the children in Country E. She also proposes the children return to Australia every 18 months so they can spend time with the father in Australia. The proposal of the ICL as subsequently endorsed by the mother was even more generous both in relation to time with the children and the level of funding.
The mother sets out in detail in her affidavit the opportunities available to the father to move to Country E and that he is able to work there. The father says that he does not want to move to Country E. The single expert records:
59. The father stated emphatically that he would not consider moving to [Country E] himself as proposed by the mother. He reported that it “makes no sense” for him to be living isolated in a rural part of [Country E], with no employment opportunities or social connections. He also denied that he was fluent in the [Country E] language and stated that it would not be conducive to his own mental health to relocate overseas.
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131. The mother’s proposal is that she relocates to [Country E] with the children. She suggests that [the father] may follow and also relocate. I think that this is a simplistic and poor thought through proposal. For [the father], who has experienced well documented mental health difficulties in the past, a move to another country where he has no employment, no social connections, and will live separately to his children alone, would place him at a considerable risk for relapse. Of note, the mother raises no concerns that the father would be a risk to the children if they were to spend time together in [Country E], and makes no mention of the need for supervision of the relationship should a whole family relocation occur.
The father in cross-examination indicated that Country E held many bad memories for him but that nevertheless he would return to visit his children if that were the orders made by the Court.
I am satisfied that the father’s social connections and realistic employment prospects are based in Australia. Also, in light of his past mental health issues, the risk of relapse as identified by the single expert suggests that a move to Country E would not be in the interests of the father and consequently the children. I am not critical of the father in not proposing a move to Country E. I do not infer that it suggests by its rejection that he is any less devoted to the welfare of his children.
I also do not accept the criticism of the mother (if it be such) in the single expert’s Family Report. I read and infer from the mother’s proposal that she was simply setting out options that were available. I do not make a finding that her proposal was a “simplistic and poor thought through proposal” for the above reason. I am satisfied that it is anything but. This comments of the single expert are inconsistent with what I regard as the mother’s consistent child focus and demonstrated exemplary parenting.
Each of the parties have present vulnerabilities in relation to their mental health.
The single expert described the father as having a history of diagnosed depression and anxiety. The evidence reveals that the father’s depression and anxiety relate back as far as at least 2005. He has at various times engaged and then disengaged with various therapists and has tried, pursued and then disengaged from various forms of therapy.
That said, the current medical evidence in support of the father’s case from his psychologist, Ms C, records:
I have had opportunity to observe and interview [the father] over 25 hours of sessions since [early] last year. Initially, [the father] was highly distressed and agitated and clearly depressed over the situation of his children in [Country E]. Over time, many significant changes and improvements were noted in his mental health. After spending the last six years in a depressed state, unmotivated and immobilized, he has used this situation concerning his marriage and children as a motivator to take control of his life again. These are the changes in [the father] over the time of his therapy.
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As I noted above, [the father] has proven to me to be a[n] intelligent, insightful and determined individual who is now much more of his original self than in the past six years. The very difficult and stressful situation between himself and his estranged wife, and the future of his family, has caused [the father] many sleepless nights and regret about not taking action over his mental health issues earlier. He now has to accept the terms of custody and children’s location that the Court sets. Of course, a negative outcome where [the father’s] children live abroad, may adversely affect his progress, but there is little indication, with proper supports and treatment, that he would slide back into previous illness.
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[The father] has undergone major changes for the positive in his life since he was discharged from hospital in [early] 2022. The first positive is that he has stopped drinking alcohol entirely for since his discharge from [Z Hospital] (no alcohol for […] months, and currently very occasionally and limits of two standard drinks) He admits to only a rare beer on occasion now. This has given his medication an opportunity to work as it was designed to do, to treat his depression. It has then allowed him to work with energy and focus on other aspects of his recovery. He has found regular work [in the health care industry]. It appears he has a natural ability in this […] industry. He has addressed his mental health problems with ongoing psychological treatment. …
Care of Children
There are no objective clinical concerns around [the father’s] capacity for shared care of his two children. During COVID lockdowns, [the father] reports that he shared the children’s care, managed their at-home schooling and shared domestic chores with his wife, who was working from home. At this point in time, [the father] is certainly in a much improved mental state than when we first commenced therapy. To date however, I have only seen and interviewed [the father]. I have not had any contact with [the mother] or either child, so my observations of the family are limited to my therapeutic role with [the father]. That being said, it is my opinion that he is capable and properly motivated in his desire to see and care for his children and to put their needs first in a time that will prove quite stressful to them and the family in general.
(Emphasis added)
(Exhibit 7)
The single expert echoes the observations of the father’s psychologist. She records the following:
170.The father has a history of diagnosed depression and anxiety. He has a good understanding of these conditions and has regularly been open to seeking professional intervention. His current mental state is one of optimism and positivity when speaking about his life circumstances around work (something he feels that he is good at and appreciated for), social friendships and a reconnection to music. He displays sadness, irritability and frustration at the situation that he finds himself in with his children, with the added financial strain of supervision services.
171.… The report provides promising reassurance that [the father’s] health is a priority to him and that with continued supports in place his risk of mental health relapse is minimised.
172.The results from the PAI assessment confirmed these observations, indicating that [the father] remains vulnerable to experiencing depression and anxiety but that this risk may be magnified at the moment due to the uncertainty and stress brought about by the current family situation and ongoing litigation.

On the basis of the above evidence, I find that notwithstanding the father’s understandable distress and upset if the children moved to Country E, he would not as stated by his psychologist “slide back into his previous illness” (Exhibit 7).
The mother has been portrayed as stoic and strong and able to deal with the various obstacles that life has presented her. I am concerned that there has been insufficient focus on the mental health consequences for the mother if she were to remain in Australia as opposed to the benefits to her mental health if she were to move to Country E. The single expert said of the mother the following:
174.The mother presents with acute symptoms of anxiety and stress though this is likely to be situational in the context of the current Family Court litigation. This is displaying in the form of physiological symptoms and will likely ease with the resolution of the family situation. I think that otherwise she is a well-adjusted individual with no clinical mental health diagnosis. She would benefit from her own professional emotional support through this period in her life and particularly if she is to remain in Australia, which she will likely interpret as an impediment to her own happiness.
Those opinions are prefaced with the words “likely”. An exploration through cross-examination of the single expert on the impact on the mother of a denial of her legitimate expectation to live where she wanted revealed a somewhat greater degree of fragility than may have otherwise have been apparent from the above conclusion. Counsel for the mother explored with the single expert various aspects of her Family Report. In particular, he identified what the single expert reported at paragraph 111 where she records:
111.The elevations on the clinical scales shown by [the mother] indicate that she is likely to be at risk of mental health problems such as a Major Depressive Episode and Adjustment disorder, however the scores on the Paranoia scales may be a reaction to her situation rather than enduring personality traits.
I also note the unchallenged evidence of the mother in her affidavit as follows:
307.The last five years and our deteriorating domestic/family situation have had a significant impact on me. I was often exhausted from the burden of carrying most of our responsibilities, financial affairs, household and the welfare of the children with very little support from [the father].
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311.In [Country E], my stomach pains went away, and I had time and support to recharge and recover. After a few months, I no longer constantly tired and exhausted and even my back pain has changed from severe to occasional. I felt that the children and I were in a safe loving environment supported by family and friends.
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313.In [mid] 2022, and after my health significantly deteriorated following [the father’s] withdrawal from mediation in the Hague proceedings, I again experienced stress, anxiety, stomach cramps and sleep disturbance with depressed mood. I had feelings of panic arising from a realisation that we may need to return. I was worried that I would not be able to keep the children safe.
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326.Since returning to Australia, I have struggled mentally and emotionally. I feel disconnected, like I am just going through the motions of life. I feel isolated and stressed. I have disturbed sleep, intermittent low mood and little support.
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331.My GP in Australia, [Dr KK] certified me totally unfit for work from [mid] 2022 until [late] 2022. He diagnosed me with an “acute stress reaction and adjustment disorder in context of familial domestic violence situation” and that I “require ongoing treatment and psychosocial support”. [Dr KK] recommended that I obtain counselling support. …
332.I am still struggling to adjust to being back in Australia. I miss my family, I feel isolated and controlled by [the father]. The children’s mental health issues further impact me. I have sacrificed a lot over the past 16 years being away from my family. I feel like a hostage, a prisoner curfewed by the children to [the father] and open to his continuing abuse.
333.I remain on sick leave for part of my normal working hours and returned to work on reduced hours on two of my three days since [late] 2022.
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345.I feel alienated, isolated, upset and in severe financial distress. I wake up during most nights feeling stressed and anxious with stomach cramps and nervousness. I continue to be concerned about the children's wellbeing. Despite leaving [the father], the children and I are still exposed to abuse and control by [the father]. This is very hard to manage and endure.
The single expert in her cross-examination was asked the following:
[COUNSEL FOR THE MOTHER]: And I want to suggest to you that the welfare of these two children is absolutely intwined, connected with the welfare of [the mother], given Dad’s deficits?
[THE SINGLE EXPERT]: Yes.
(Transcript 13 April 2023 p.13 lines 1–2)
[COUNSEL FOR THE MOTHER]: All right. Thank you. The ..... is that these children have been through some abusive situations. They’ve been through a fair bit in their lives, their young lives. Wouldn’t you accept that a supportive extended family is a valuable thing for the children?
[THE SINGLE EXPERT]: Yes, yes.
(Transcript 13 April 2023 p.24 lines 11–14)
The mother is the children’s undisputed primary carer. I am satisfied that remaining in Australia carries the risk of continuing exposure to the symptoms that she is currently suffering. The risks identified in the Family Report by the single expert of “mental health problems such as a [m]ajor [d]epressive [e]pisode and [a]djustment disorder” (at paragraph 111), carries the possible risk of compromising her parenting capacity and, in circumstances where she is the undisputed primary carer, the risk of compromising the children’s welfare.
There is no issue that the children will be able to maintain a meaningful relationship with their father if they remain in Australia.
Notwithstanding the opinions of the single expert, I am satisfied that if the children relocated to Country E their welfare would not be adversely affected and that they would be able to maintain a meaningful relationship with their father. I accept it will be different but I reach that conclusion because of my finding that the mother recognises the importance of the father to the children’s welfare and that she is committed to ensuring that they maintain a relationship with him that is meaningful. Her past conduct while in Country E is supportive of that conclusion.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
While the best interests of children is the paramount consideration in the making of a parenting order, they are not the only consideration. Where one of the issues involves the relocation of a child’s residence, the legitimate desires and the right of a parent to live where they wish is an important consideration.
In a relocation case, a parent is not required to establish “compelling reasons” in support of the place of their chosen or proposed residence: AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”). However, where that legitimate desire of a parent to live where they want is in conflict with the child’s best interests such that the child’s welfare is adversely affected, then the right of a parent to choose where they want to live must give way to the paramount consideration: U v U at [89].
In Franklyn & Franklyn [2019] FamCAFC 256, the Full Court explained the applicable law in these terms:
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) 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) FLC 93–350; Zanda & Zanda (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 ).
A relocation case is to be determined in the same way as any other parenting case. Relocation cases are not a special category of cases: Morgan & Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe& Another (2012) 48 Fam LR 298 (“Sayer v Radcliff”) at [47]–[48].
The Full Court in Sayer v Radcliffe observed:
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 (No 2) at [76]; Morgan at [80]–[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.
However, the Court is not bound by those proposals in determining what is in the child’s best interests: U v U at [80].
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child’s parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as:
(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.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary considerations are:
60CC How a court determines what is in a child’s best interests
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(2) …
(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.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with each parent.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most like ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The courts obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
On the competing applications of each party, they both contend that the children should spend periods of time with the other party.
The single expert said:
117. Both of these children have an established relationship with each of their parents. It is likely that, as is the case for many families, they have a different relationship with their mother and their father – and that the experience of these relationships also differs significantly between [X] and [Y].
118. The right of children to have a relationship with both of their parents is fundamental to their sense of identity, and their right to access what each parent can provide to them. This of course needs to be balanced with the consideration of the safety of a child which will prioritise decision making. In an assumed context where children are safe physically and psychologically, having a meaningful relationship with both parents will afford children to benefit from the unique qualities that each have to offer them and open up connection to family and cultural lineage.
119. In this matter, [X] and [Y] will benefit from a meaningful relationship with both of their parents as a continuation of the precedent prior to family separation. Both of their parents acknowledge this need to involve the other in the children’s lives albeit their proposals for time spent with each other vary greatly.
120. However simply knowing who your parent is and spending time with them occasionally does not provide for a meaningful relationship. This would necessitate that a child has a relationship with a parent that is not only based on sharing fun recreational activities but also is built upon the sharing of meaningful events, the minutiae of daily life and the establishment of trust in the parent as a reliable caregiver. This meaningful relationship with both parents provides significant social, emotional and health benefits for children.
In her cross-examination she said:
[COUNSEL FOR THE MOTHER]: So what I’m putting to you is that we have all of these factors in place that would give you some optimism that whilst the relationship with the father might not be perfect, it might not be optimal, it can be meaningful as well, I put to you?
[THE SINGLE EXPERT]: Yes, that’s correct. I am confident the relationship will survive and be meaningful if they relocate, yes.
[COUNSEL FOR THE MOTHER]: Thank you. And a meaningful relationship can take many forms?
[THE SINGLE EXPERT]: Correct.
(Transcript 13 April 2023, p.4 line 44 to p.5 line 4)
It is clearly, therefore, to the children’s benefit to have a meaningful relationship with each of their parents. For the reasons given earlier, I am satisfied that can be achieved if the children live in Country E. In doing so, however, I am cognisant of the authorities I have referred to earlier that a meaningful relationship can be achieved on a particular proposal even if it’s not the optimal one.
I am satisfied that the orders proposed by the ICL and adopted by the mother are such that the children will be able to have a meaningful relationship with their father.
Section 60CC(2)(b) abuse and family violence

I have made a finding as to family violence. That is sufficient to displace the presumption. I am not satisfied that it would be in the best interests of the children for there to be an order for equal shared parental responsibility in circumstances where the parties will live so very far apart and where there already exists difficulties in making decisions in relation to them. In that respect, there are numerous examples in the mother’s evidence of the father just not responding to requests by the mother in relation to matters regarding to the children’s welfare.
In light of my findings, I am of the view that the children’s best interests are served by an order for sole parental responsibility in favour of the mother.
Having made such a finding, I am consequentially not required to consider s 65DAA.
The father’s counsel conceded that if relocation were permitted, then the proposals of the mother and the ICL were more generous than that sought by the father.
I have carefully considered the orders of the ICL and the mother and I am satisfied that they are in the best interests of the children.
I will make orders substantially in the terms as sought by the ICL and the mother.
FINANCIAL ADJUSTMENT PURSUANT TO SECTION 79
Whilst it assumed only a small part of the parties’ evidence and the cross-examination, each of the parties sought an order by way of financial adjustment.
Each of the parties approached the property division case in the same way, namely a percentage division of the non-superannuation assets and a percentage division of the superannuation assets expressed in dollar terms. The parties are to be congratulated for not only reaching agreement as to what constituted the pool of assets for division but also the form of order to give effect to the ultimate findings of the Court under s 79 of the Act.
The mother for her part submitted that the parties’ contributions, including not just in the period of the relationship but subsequently, should be found to favour her as to 55 per cent. In that respect, she contended that there should be as part of that finding a 5 per cent adjustment in her favour by virtue of what were described by her counsel as the mother’s contributions having been made more onerous as a consequence of the impact of family violence and the father’s conduct. The mother thereafter sought a 10 per cent adjustment in her favour in relation to the non-superannuation assets for the matters arising under s 75(2). She proposed that the superannuation entitlements of the parties should be divided equally.
In the event that the Court permitted relocation she sought a 55 per cent division of the parties’ non-superannuation assets and a 5 per cent adjustment under s 75(2) as well as an equal division of the superannuation assets.
The father for his part contended that the parties’ contributions to both the non-superannuation assets and the superannuation assets should be found as to 45 per cent to the mother and 55 per cent to the father with no adjustment for the matters under s 75(2).
APPROACH TO PROPERTY PROCEEDINGS
The approach to be adopted in a financial adjustment case under s 79 of the Act is to follow the well-recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s 79(4) of the Act and determines a contribution based entitlement. Thirdly, the Court identifies the relevant matters under s 75(2) and determines such adjustment as is necessary to the contribution based entitlement. Finally, the Court considers the effect of the findings and must then determine whether the order as proposed is in all the circumstances just and equitable.
Whilst no submission was made consistent with the ratio arising out of the High Court's determination in Stanford v Stanford (2012) 247 CLR 108, I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation and both parties sought that there be an adjustive order.
BALANCE SHEET
The parties’ assets and liabilities were captured in a document, which became an exhibit in the proceedings. By the time of submissions, it revealed the following:

Ownership Description Value

ASSETS

1 J O Street, Suburb U $928,333

2 J Furniture & shed contents $nominal

Total $928,333

LIABILITIES

3 J CC Bank Account (…80) $56,377

4 J CC Bank Account (…81) $37,991

Total $94,368

SUPERANNUATION

Member Name of fund Type of interest Value

5 W Superannuation Fund 2 (…) Accumulation E$136,316

6 W Superannuation Fund 3 (…) EUR29,399 Accumulation E$48,281

7 W Superannuation Fund 4 (…) EUR10,307 Accumulation E$16,925

8 H Superannuation Fund 1 (…) Defined Benefits x 2 E$886,294

9 H Superannuation Fund 5 Accumulation E$3,819

Total E$1,091,635

Net Total $1,925,000
ASSESSMENT OF CONTRIBUTIONS

I have read all of the evidence relied upon in the proceedings including the exhibits but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons v Dickons (2012) 50 Fam LR 244 makes plain:
24.… 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.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced that the proper approach to the assessment of contributions is:
35.… well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. …
I am also mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66] that for the purposes of s 79 of the Act, there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view, the authorities require evaluation of all contributions to the property of the parties, notwithstanding that the categories of property may be different. This view has been confirmed by subsequent Full Courts such as in Jabour & Jabour (2019) FLC 93-898, where their Honours observed that a primary judge should be cautious in emphasising the importance of an increase in value of a particular item of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (at [35]).
The consistent theme from the authorities is that the multifarious contributions over the relationship and subsequently of all types are to be assessed in a holistic way.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
FINDINGS AS TO CONTRIBUTIONS
At the commencement of cohabitation, the mother contended that she had savings of approximately $20,000 as well as some Country E superannuation. The mother did not provide any evidence as to the value of her Country E superannuation at the commencement of cohabitation.
The father for his part was the owner of the DD Street property on the coast. There was no evidence as to its value at the commencement of cohabitation nor any evidence as to the mortgage balance. I am unable to make any finding as to its equity.
In addition, the evidence reveals that the father had an interest in the Superannuation Fund 1 (“Superannuation Fund 1”); the balance of his investment as at 30 June 2005 was some $54,445. The fund in which the father has an interest is a defined benefit fund.
I have found that the parties commenced cohabitation in 2004. At the commencement of cohabitation, both parties were in employment but moved to Country E in or about 2006 for about twelve months, returning to Australia in 2007. Upon returning to Australia, the parties effected some renovations and lived in the father’s DD Street property until its sale in 2014 when they purchased the O Street property.
By the time the father received the net proceeds of sale of the DD Street property, the mortgage balance was reduced to either $130,000 or $138,000. The difference is of no consequence.
In or about late 2016, the father resigned from his employment to pursue what he regarded as more fulfilling career prospects. Unfortunately, the father’s aspirations for more fulfilling work do not appear to have borne significant financial benefit to the parties and it was not in issue that the mother was from that time the main income earner in the family and her income was applied to the benefit of the family’s expenses.
The father says that following his ceasing to work he undertook most of the domestic chores in the home. The father says in his affidavit as follows:
136. My tasks around the house also increased after 2016 although I had always primarily done the washing prior to that and [the mother] had primarily done the cooking. The cleaning was shared equally. I also did most of the heavy work outside including lawnmowing, tree lopping, pruning, painting, cleaning the gutters. [The mother] would look after the vegetable garden.
He also says that his parenting contributions increased significantly following his leaving work.
I do not accept that contention. I accept that the mother’s contributions in relation to the care of the children in the period post the father’s ceasing work remained substantial. In that respect, she gave detailed evidence of the extent of her contributions which was not the subject of challenge. The mother gives evidence that following the birth of each child she took twelve month’s maternity leave and thereafter worked no more than three days a week instead of five to be able to care for the children and attend to all organisational and household affairs. I find that throughout the lives of the children she has been their primary carer.
The mother contends that when the father left his work in 2016 she arranged an appointment with a Superannuation Fund 1 super financial adviser. She says:
621. When [the father] left his job in 2016, I again booked an appointment with the [Superannuation Fund 1] financial advisor. The advisor recommended for [the father] to defer his benefit when resigning. We got the paperwork organised and [the father] subsequently deferred the benefit, which resulted in significant annual increase in his super to approximately $830,000 in 2021.
Following the purchase of the O Street property, the parties effected some renovations to the property, with work being undertaken on the property by a friend of the mother from Country E and her cousin. The mother says she managed all trades, installations and improvements to the parties’ home as well as undertaking a fair amount of work. She also gives evidence that her mother undertook work on the property as did her father, and that there was little work undertaken on the property by the father. None of these matters were the subject of any challenge by the father.
The mother contends that her contributions have been made more onerous and arduous than they otherwise might have been as a consequence of both the family violence perpetrated by the father but also what was described by him as the unbearable living arrangements he created. The mother’s allegations are said by her counsel to attract the obiter comments of the Full Court in Kennon & Kennon (1997) FLC 92-757 (“Kennon”) to the following effect:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
Further at 84-294–84-295, their Honours said:
It is essential to bear in mind that the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct relating to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). …
In Keating & Keating (2019) FLC 93-894, their Honours in the Full Court observed, in regard to both the Full Court’s decision in Kennon as well as the Full Court’s decision in S & S [2003] FamCA 905, as follows:
39.… the Court in S & S was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see S & S at [42]). …
40.In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife’s albeit limited evidence as to the effect on her of the husband's violence taken in conjunction with her evidence of the severity of the violence...
The Full Court directs that the necessary nexus between the alleged conduct and the contributions being made significantly more arduous can be established either by direct evidence or by inference. As their Honours in the Full Court in Britt & Britt (2017) FLC 93‑764 observed:
74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
In Benson & Drury (2020) FLC 93-998 the Full Court reminds:
18.We pause to note that although sometimes, in the context of the Kennon argument, words such as “adverse impact”; “more arduous” or “more onerous” are used, the guideline requires the conduct of one party to have had a significant adverse effect on the contributions of the other or to have had made that party’s contributions significantly more arduous than they ought have been. The conduct has to have had a discernible impact upon the contributions of the other party (Kennon at 906).
…
50.… An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
I am not satisfied either by direct evidence or inference that the mother has established that the father’s conduct had a significant adverse effect on her contributions. I accept the father’s admissions as to family violence and that it would have been unbearable living with him. However, that is a long way short of establishing that her contributions were made more onerous or significantly more arduous as a consequence of it. I am not satisfied on the evidence that she has discharged the onus she carries on this part of the evidence.
The parties separated in the circumstances referred to earlier in these reasons. I accept that in the period post the parties’ separation, the mother’s contributions have been significant. In that respect, the father has not made any payment by way of child support and whilst the mother has had occupation of the former matrimonial home, she has met the mortgage payments in relation to it, albeit I accept the father has had to pay rent. In addition, the mother has had almost the entirety of the emotional and parenting responsibility for the children.
I am satisfied, having regard to the whole of the evidence and all of the contributions of the parties in a holistic way over the entirety of the relationship, that an adjustment as to 55 per cent in favour of the mother to the non-superannuation assets fails to have regard to the contributions of the father over the course of the relationship. I am satisfied that a proper assessment of the parties’ contributions over the course of the relationship is more properly reflected in an equal division of the parties’ non-superannuation assets.

Each of the parties have also made contributions to the superannuation entitlements of the parties. The parties have agreed that the parties’ superannuation should be totalled and then divided in a percentage way and that thereafter that percentage be reflected in an adjustment to the father’s defined benefit superannuation entitlement. Whilst the mother’s superannuation entitlements in Country E are properly characterised as financial resources rather than an asset to be divided as if it were property, the parties have chosen to conduct the case in such fashion.
For the purposes of the pool of assets, the parties’ total superannuation entitlements have a value of $1,091,635. However, a significant proportion of that is represented by the father’s defined benefit superannuation interest having a value of $886,294.
The father commenced contributing to that fund on or about late 1985. Thus, there were approximately 19 years of contributions to the fund before the parties’ even commenced cohabitation. It is important that this is recognised in the assessment of contribution to the superannuation assets.
Assessing the respective contributions of the parties over the course of the relationship to the superannuation and taking into account the number of years of contributions by the father to the defined benefit fund, I am satisfied that a proper assessment of the parties’ contributions to the superannuation assets is 45 per cent to the mother and 55 per cent to the father.
ADJUSTMENTS UNDER SECTION 75(2) OF THE ACT
The father contended that there should not be any adjustment for the matters under s 75(2) while the mother contended that in the event that she was permitted to relocate to Country E there should be a 5 per cent adjustment under s 75(2).
I recognise as a consequence of the orders that I propose to make in relation to parenting matters that the mother will relocate to Country E. The consequence of that will be that she will remain the primary carer of the children but will also be responsible for the majority of the children’s physical care with the exception of the periods of time when the father is with the children.
I also note the mother’s evidence that she would have the benefit of accommodation in her parents’ home and that she would also be able to work, receiving a significantly greater income. In that respect, her unchallenged evidence is that she would be able to obtain various payments paid by the government. Her evidence in relation to that is as follows:
650. If we lived in [Country E] and as per above notice, we would be paid approximately $75,000 (EUR 47,304) in child benefit payments.
…
652. In addition, the federal government has been paying one off child bonus payments for families in various years. In 2021, this amounted to EUR 150 per child. I received a payment of EUR 200 last year under this scheme.
She also gives evidence of significantly enhanced job prospects. In that respect, she said:
659. In [Country E], there are many jobs available with significantly better pay for me. After sacrificing my career in order to migrate to Australia and to be there for [the father] and the children, I have forgone job opportunities for manager roles and higher. [The father] was keen for me to apply for those but I did not, as I knew I was unable to manage everything with the little support I had from [the father].
660. In [Country E], I would have the support network and have already been contacted in relation to various available roles. The current job market in [Country E] is favourable and the staff shortage includes the […] sector [I work in].
661. I would be able to return to work as a [professional], as consultant/advisor for companies as well as many […] public service roles.
662. Pay varies depending on the type of role. For example, as a [professional] with my work experience the average pay is around $200,000. Annexed hereto and marked “AX” is a copy of some information I obtained from the internet. This is more compared to my current pay.
I also take note of the fact that the father has not paid child support and the level of his income is such that it is unlikely that the mother would ever receive financial support from the father.
The orders the mother proposes provide that she contribute to the costs of the father to travel to Country E.
In all the circumstances, I am satisfied that it is appropriate there be a 5 per cent adjustment under s 75(2).
The consequence of my findings, therefore, are that the non-superannuation assets of the parties would be divided as to 55 per cent to the mother and 45 per cent to the father, and that the superannuation assets of the parties would be divided as to 45 per cent to the mother and 55 per cent to the father.
Having regard to the effect of these findings, the mother will receive 55 per cent of the net proceeds of sale of the home after the costs of sale and commission and $491,235.75 in superannuation entitlements after the superannuation split from the father’s defined benefit fund.
I am satisfied that this represents a just and equitable division of the parties’ assets.
COSTS
The ICL sought an order for costs of $6,297 from each party. This was opposed by the mother.
An application for costs is governed by the provisions of s 117 the Act, which provides a general rule that each party to proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as ‘an exceptional case’, ‘special circumstances’ or ‘a clear case’ are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
However, in the circumstances of a costs order sought by the ICL, s 117(3) and (4) have some application. They provide as follows:
117 Costs
…
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
Dealing now with the relative subsections in s 117(2A).
(a) The financial circumstances of each party to the proceedings
Neither party could be described as wealthy. The cost of the litigation has impacted considerably on them. Each owes money to their lawyers and other persons.
(b) Whether the parties are in receipt of legal aid
Neither party are in receipt of a grant of legal aid.
(c) The conduct of the parties to the proceedings
What is relevant is conduct of a party, which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non-disclosure or a failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in relation to disclosure.
There is no matter of conduct that is a relevant consideration.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
The proceedings required a hearing and judgment. It could not therefore be said that the proceedings were necessitated by a failure to comply with a court order. They were necessitated by the parties’ failure to compromise and reach agreement.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The term “wholly unsuccessful” refers to a situation in which proceedings as a whole have been unsuccessful, rather than necessarily an application (see Bant & Clayton (Costs) (2016) 56 FamLR 31).
Neither party has been wholly unsuccessful.
(f) Whether any party has made an offer in writing
The terms of any offer of settlement have not been disclosed.
(g) Any other matter the Court considers relevant
There is no other matter that I consider relevant.
I am satisfied that to impose an order upon the father and the mother to pay the costs of the ICL would be such as to cause the father and the mother to suffer financial hardship. I do not propose to make such an order.
Accordingly, I will dismiss the ICL’s application for costs.

I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 20 April 2023

File number(s):	SYC 235 of 2022
Judgment of:	SCHONELL J
Date of judgment:	20 April 2023
Catchwords:	FAMILY LAW – PARENTING – Relocation – Where the mother sought to permanently move to Country E with the children – Where the father opposed the relocation – Where the mother’s desire to relocate is bona fide – Consideration of primary and additional considerations – Where the Court found that the father was the perpetrator of family violence – Where the Court is satisfied that the mother’s proposal ensures that the children are able to maintain a meaningful relationship with the father and that she is supportive of the children’s relationship with their father – Orders made permitting the mother to relocate to Country E with the children – Where the Independent Children’s Lawyer sought a costs order – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Costs application dismissed. FAMILY LAW – PROPERTY – Where both parties sought an order by way of financial adjustment – Where both parties sought a separate percentage division of the non-superannuation assets and superannuation assets – Where the mother contended that her contributions had been made more onerous or arduous than they otherwise might have been because of the father’s conduct – Where the Court is not satisfied that this has been established – Where the mother is and will be the primary carer of the children and receives no child support from the father – Where an adjustment in favour of the mother is appropriate – Where a just and equitable outcome is 55 per cent to the mother and 45 per cent to the father on the non-superannuation assets, and 45 per cent to the mother and 55 per cent to the father on the superannuation assets.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60CB, 60CA, 60CC, 61DA, 65DAA, 75, 79, 90XT, 106A, 117 Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 11 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Convention on the Civil Aspects of International Child Abduction
Cases cited:	AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bant & Clayton (Costs) (2016) 56 FamLR 31; [2016] FamCAFC 35 Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395 Horrigan & Horrigan [2020] FamCAFC 25 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46 Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold and Penfold (1980) 144 CLR 311 Sayer v Radcliffe& Another (2012) 48 Fam LR 298; [2012] FamCAFC 209; Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Singerson & Joans [2014] FamCAFC 238 S & S [2003] FamCA 905 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 U v U (2002) 211 CLR 238; [2002] HCA 36 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	242
Date of hearing:	11 – 13 April 2023
Place:	Sydney
Counsel for the Applicant:	Mr Kenny
Solicitor for the Applicant:	CopperTree Family Law
Counsel for the Respondent:	Mr Anderson
Solicitor for the Respondent:	Rafton Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Hayward
Solicitor for the Independent Children's Lawyer:	Legal Aid New South Wales

SYC 235 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HAWKEN Applicant
AND:	MR HAWKEN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	20 April 2023

Ownership		Description		Value
ASSETS
1	J	O Street, Suburb U		$928,333
2	J	Furniture & shed contents		$nominal
Total		$928,333
LIABILITIES
3	J	CC Bank Account (…80)		$56,377
4	J	CC Bank Account (…81)		$37,991
Total				$94,368
SUPERANNUATION
Member		Name of fund	Type of interest	Value
5	W	Superannuation Fund 2 (…)	Accumulation	E$136,316
6	W	Superannuation Fund 3 (…) EUR29,399	Accumulation	E$48,281
7	W	Superannuation Fund 4 (…) EUR10,307	Accumulation	E$16,925
8	H	Superannuation Fund 1 (…)	Defined Benefits x 2	E$886,294
9	H	Superannuation Fund 5	Accumulation	E$3,819
Total				E$1,091,635
Net Total				$1,925,000