Holst & Holst - [2023] FedCFamC1F 694

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Holst & Holst [2023] FedCFamC1F 694

File number(s): MLC 11822 of 2019

Judgment of: JOHNS J

Date of judgment: 8 September 2023

Catchwords:
FAMILY LAW – CHILDREN – best interests – international relocation – where the applicant is the primary carer of the child – where the applicant is seeking that the child be permitted to relocate with her to Country B –– in the alternative the mother seeks to relocate with the child to Suburb C in the event relocation to Country B is refused – where the father opposes the mother’s application to relocate and seeks that the mother be restrained from relocating the child’s residence from the Region D.

FAMILY LAW – PROPERTY – final property settlement – where the respondent’s initial contributions were greater than the applicant’s – where both parties made contributions during marriage – where the respondent made substantial direct contributions to the asset pool – where the respondent brought in two farming properties into the asset pool – where the applicant is the primary carer for the child of the marriage – s 75(2) adjustment in favour of applicant

Legislation:
Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) Part VIII, ss 60B(1) & (2), 60CA, 60CC(2), (2A) & (3), 61DA, 64B, 65C, 65DAA, 75(2), 79(1), (2) & (4)

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545

Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592

Donnell & Dovey (2010) FLC 93-428

Horrigan & Horrigan [2020] FamCAFC 25

Jabour & Jabour [2019] FamCAFC 78

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

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

Mulvany & Lane (2009) FLC 93-404

Omacini & Omacini (2005) FLC 93-218

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Stanford & Stanford (2012) 247 CLR 108

U v U (2002) 211 CLR 238

Vass & Vass (2015) 53 Fam LR 373

Williams & Williams [2007] FamCA 313

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 339

Date of last submission/s: 26 August 2022

Date of hearing: 22-26 August 2022

Place: Melbourne

Counsel for the Applicant: Mr Walmsley KC

Solicitor for the Applicant: Melbourne Family Lawyers

Counsel for the Respondent: Mr Puckey KC

Solicitor for the Respondent: SMR Legal
ORDERS

MLC 11822 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HOLST

Applicant

AND:
MR HOLST

Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

8 SEPTEMBER 2023

THE COURT ORDERS THAT:
BY CONSENT:
1.The husband and the wife have equal shared parental responsibility for making decisions regarding the long term care, welfare and development of the child, X born 2016 (“the child”).
2.The husband and the wife ensure that at all times the child has a valid and current Australian passport and a valid and current Country B passport, and the wife shall retain the child’s passports.
3.The child live with the wife.

BY THE COURT:
4.The wife be permitted to relocate the residence of the child to Country B, but not before 1 January 2024.
5.Not less than one month prior to the date upon which the wife intends to relocate the residence of the child to Country B, the wife shall advise the husband in writing of the anticipated date of departure and the details of the flights that the wife has booked for the child, together with contact details for the child in Country B.
6.Upon landing and proceeding through customs in Country B the mother shall notify the father by SMS or text message of the safe arrival of the child in Country B.
7.Until such time as the child’s residence is relocated to Country B the child spend time and communicate with the husband as follows:-
(a)During school term:-
(i)Each alternate weekend from the conclusion of school on Thursday or from 3.15pm in the event of a non-school day, to the commencement of school on Monday or 3.15pm if a non-school day;
(ii)Each alternate Thursday from the conclusion of school or 3.15pm in the event of a non-school day, until the commencement of school Friday or 3.15pm if a non-school day;

(b)During the Term 3 2023 holiday period for seven consecutive nights at times to be agreed and failing agreement, from after school or 3.00pm if a non-school day on the Thursday the husband would ordinarily spend with the child pursuant to order 7(a) hereof until the immediately following Thursday at 3.00pm, the husband to collect the child from the wife’s home at the commencement of time if that Thursday is not a school day and the wife to collect the child from the husband’s home at the conclusion of time;
(c)During the 2023/2024 long summer holiday period until the child’s departure for Country B for a period of seven consecutive nights, at times to be agreed between the parties;
(d)As may be otherwise agreed between the parties.

8.Upon the child relocating to Country B the child spend time with the husband as follows:-
(a)In Australia for a period of four weeks during the northern hemisphere summer school holidays each year with the wife to do all such acts and things to cause the child to travel to Australia;
(b)In Australia for a period of two weeks from 20 December in each alternate year commencing December 2025 with the wife to do all such acts and things to cause the child to travel to Australia;
(c)In Country B for periods of up to two weeks, for no more than two such periods in any twelve month period subject to:-
(i)The husband providing 42 days’ notice in writing to the wife of his intention to spend such time with the child; and
(ii)The husband ensuring that the child attends school and all extracurricular activities in which she is enrolled during that time.

(d)At such other times as may be agreed between the parties from time to time.

9.The husband be at liberty to attend the child’s school and participate in any activities in which parents may participate or as agreed between the parties during periods when he is spending time with the child in Country B.
10.Within 14 days of the child’s commencement at school in Country B the wife email to the husband a copy of the child’s school calendar or the dates of the school holiday periods for that school year, and continue to do so within 14 days of the commencement of each new school year.

BY CONSENT
11.Upon the child relocating to Country B the husband and the wife shall arrange for Skype or FaceTime communication or other electronic communication to take place between the child and the husband:-
(a)Each Sunday at 9.00am Country B time with the wife to initiate the call (unless both the child and the wife are in Australia);
(b)On at least two other weekdays each week with the wife to initiate the call AND THE COURT NOTES it is agreed between the parties that they will need to fix the times of calls subject to each country’s time zones and the commitments of the parties and the child.
(c)On the child’s birthday;
(d)On Father’s Day and on the father’s birthday;
(e)Other special days or other times as agreed between the parties.

12.The husband be permitted to communicate with the child via email, SMS text message or any other form of electronic or written communication and the wife encourage the child to respond to the same.
13.When the child is spending time with the father, the father shall initiate calls to the mother to enable the child to speak with the mother once during the four-day period the child is with her father, and twice during the seven day period the child is with her father,
14.In the event that the child requests to communicate with the parent who does not have the care of the child at that time, the parent requested shall facilitate such communication.
15.The wife email to the husband a photograph of the child no less than once per calendar month.
16.The costs of travel for the child to spend time with the husband be shared between the parties as follows:-
(a)Each parent shall meet the costs of their own air fares and accommodation including any cost of quarantine should that be required during any trip;
(b)The costs of the child’s travel including any cost of quarantine should that be required are to be shared equally between the parties with each parent to pay one half of the economy airfare for the child;
(c)The wife shall book and pay for the costs of the child’s travel to and from Australia and shall provide to the husband a copy of the e-ticket and the invoice for the return flight and the husband shall deposit into the bank account nominated by the wife the total of one half of the invoiced costs including any taxes and charges incurred, not less than 60 days prior to the date upon which the child is scheduled to depart from Country B, and in the event that the husband does not make such deposit 60 days prior to the anticipated departure date the wife shall be entitled to take whatever steps are necessary to cancel the flights and to recover such of the money paid by her as she is able, and the child’s time with the husband in Australia is suspended until such time as the husband reimburses the mother for the total amount of the air fares for herself and the child less any amount which the mother is able to recover from the airline.

17.The wife do all acts necessary to authorise the husband to:-
(a)Communicate directly with the child’s school and to receive information regarding the child’s progress, school reports, newsletters, school photographs and all such information as is normally received by parents;
(b)Communicate with the child’s general practitioner or other treating medical professional in relation to any health issues concerning the child;
(c)Communicate with any counsellor or psychologist that the child may from time to time attend.

18.For the purposes of the implementation of paragraph 16 herein the wife shall advise the husband by email of the contact details of the child’s schools, doctors or health care professionals and any extra-curricular activities at which the child attends and to keep the husband advised of the same.
19.Prior to the relocation of the child to Country B, the husband be at liberty to provide the child with a photo album or memory book containing photos or memorabilia relevant to the husband and/or the child or both of them and may forward further photos or memorabilia to add to the album or memory book at any time.
20.Each of the parents shall keep the other advised by telephone of any emergency or non‑routine medical issue that arises in relation to the child including providing the particulars of the medical practitioners, hospitals and contact details as soon as practicable after the parent who has the child in their care becomes aware of such issue or emergency.
21.Each of the parents shall keep the other advised of their residential address, a land line telephone number and/or a mobile telephone number, email address, Skype address and those of the child if she has her own such addresses, such particulars to be provided within 48 hours of any change to such particulars.
22.The wife forthwith do all acts and things necessary to cause a copy of these orders to be registered with the relevant Family Court authority in Country B.
23.The wife is restrained from relocating the residence of the child to a country other than Country B save for returning to Australia without the prior consent of the husband in writing.
24.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY
BY THE COURT
25.The husband pay to the wife the sum of $1,693,662 (‘the payment’) within 90 days of these orders (‘the date’).
26.Contemporaneously with the payment:
(a)The wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, the water entitlements High Reliability water share ID … (‘the water entitlements’);
(b)The husband refinance the National Australia Bank loan #...32 (‘the loan’) so as to release the wife from all liability and indemnify the wife against all payments and liability pursuant to the loan.

27.In the event that the whole of the payment has not been made by the date such amount of the water entitlements registered in the name of the husband as required to make the payment together with interest be sold forthwith (‘the sale’) and the proceeds of sale be applied:
(a)First to pay all costs, commissions and expenses of the sale;
(b)Secondly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the Family Law Rules adjusted monthly from the date to the wife; and
(c)The balance to the husband.

28.The husband receive the benefit of any of the parties’ carryover water allocations made with respect to the water entitlements of the parties and remaining in the parties’ Allocation Bank Account …08 (‘ABA”) and the wife hereby assigns to the husband any such allocations and will sign any document as may be required by the husband to obtain the registration and the benefit of the allocation, or increase in allocation.
29.The partnership of Mr & Ms Holst be dissolved forthwith and the wife transfer to the husband any interest she has in the partnership and the husband indemnify the wife in respect of all taxation and other liabilities arising in connection with the partnership.
30.Paragraphs 31 to 34 of these Orders are binding on E Limited (“the Trustee”) of Superannuation Fund 1 (“the Superannuation Fund”).
31.Pursuant to Section 90XT(1)(a) of the Family Law Act1975 (“the Act”), a base amount of $41,300 (“the base amount”) be allocated to the applicant wife out of the interest of Mr Holst, the respondent husband whose date of birth is 1966, in the Superannuation Fund being membership number ….
32.Pursuant to section 90XT(1)(a) of the Act, whenever a splittable payment becomes payable from the superannuation interest held by the respondent husband in the Superannuation Fund, the Trustee of the Superannuation Fund shall pay the applicant wife an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2021 using the base amount and there be a corresponding reduction in the entitlement of the respondent husband to whom the splittable payment would have been otherwise made but for these orders.
33.Paragraphs 31 and 32 of these orders have effect from the operative time and the operative time for the purposes of these orders is four (4) business days after service of a sealed copy of these orders on the Trustee of the Superannuation Fund.
34.The applicant wife will do all things necessary including but not limited to making a request payment to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the roll over or transfer or payment of the transferable benefits out of the respondent husband’s interest in the Fund to a superannuation fund nominated by the applicant wife.
35.There be liberty to apply to each party and the Trustee in relation to the implementation of these orders affecting the superannuation interest.
36.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the husband, save for ‘[X’s] Account’ BSB …94 No. …58 which the parties agree to continue to hold jointly and upon trust for X;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner named thereon;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)Any joint tenancy of the parties in real or personal estate is hereby expressly severed.

37.All extant applicants be otherwise dismissed.

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 Holst & Holst has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The applicant wife, Ms Holst was born in Country B. She first travelled to Australia and met the respondent husband, Mr Holst in 2000. Thereafter, she continued to travel to Australia each year, working for periods whilst she completed her tertiary studies in Country B.
In 2006, the husband and wife commenced their relationship; they commenced living together in 2010 at the husband’s farm in the City F district of Victoria and married in 2013. In 2016 their only child, X, was born in Australia. They separated in September 2019.
The parties are dedicated parents to X. Although they have differing parenting styles, which has resulted in conflict from time to time, each is child-focussed, wanting only what is best for their child.
Since separation, X, who is aged seven years, has lived with the wife in Suburb G, whilst the husband has remained on the farm, which is situated approximately 35 minutes’ drive from the wife’s home. The husband spends time with X each alternate weekend from Friday to Sunday, and each alternate Thursday from after school to the commencement of school on Friday.
The challenge that confronts the parties and the issue for the Court to resolve is what is in X’s best interests in circumstances where the wife, in the aftermath of the breakdown of the parties’ relationship, seeks to return to Country B to live with X. In the alternative, the wife seeks that she be permitted to live with the child in Suburb C, a suburb of Melbourne.
That application is opposed by the husband, who seeks orders that the wife continue living with the child in the City F district of Victoria. He also seeks orders that his time with X increase to five nights per fortnight.
The parties have reached agreement with respect to a range of parenting issues, including spend time arrangements during X’s school holiday periods, electronic communication between X and the husband and the sharing of information between parents. By the conclusion of the trial the only parenting issues requiring determination were:-
·Whether the applicant ought be permitted to relocate with the child to Country B, or in the alternative, to Suburb C; and
·What spend time arrangements should be implemented, whether the child remains in the City F district or is permitted to relocate with the wife to either Country B or Suburb C.

In addition to those parenting issues, the parties’ are also in conflict as to the division of property.
The parties’ property is valued at in excess of $7 million. At the commencement of proceedings, there was a dispute between them as to liabilities to be taken into account when calculating the value of their interests.
It is common ground between the parties that each made significant contributions toward their farming enterprise. The wife has completed a relevant qualification in Australia and other relevant qualifications in Country B, although has never worked in that capacity in Australia due to her qualifications not being recognised here. Nonetheless, the wife applied those skills to the farming enterprise and assisted the husband in all aspects of the farm work.
It is also common ground that the farm, which is the parties’ principal asset and is the main source of the husband’s income, was in part held by him at the commencement of cohabitation, and in part acquired by him from his late father’s estate.
The wife’s position is that each of the parties contributed equally during the marriage working to the best of their abilities in their respective roles. The husband does not challenge that the wife made significant contributions toward the farming enterprise, or that she has been X’s primary carer since her birth, but maintains that his initial contributions as well as the assets received from his late father’s estate weigh heavily in the contribution assessment.
Taking into account the above, the wife seeks a division of the parties’ interests in the husband’s favour on a 65/35 basis in the event her application to relocate to Country B is permitted, and otherwise 60/40 in his favour.
The husband’s position is that due to his significantly greater direct financial contributions and the fact that his income earning capacity is heavily tied to the farming enterprise, there should be an 80/20 adjustment in his favour.
For the reasons that follow, I am satisfied that it is in X’s best interests that the wife be permitted to relocate to Country B with her as and from 1 January 2024.
In relation to property, I have determined that the asset pool be divided 73.5% in favour of the husband and 26.5% in favour of the wife.
The reasons for my determination follow.
THE PARTIES
The wife was born in Country B and is aged 42 years. She is currently unemployed. The wife is qualified as a professional in Country B; those qualifications are not recognised in Australia.
The husband was born in Australia and is aged 56. He runs his own farming operation in Region D of Victoria.
The child, X, is aged seven years. She lives with the wife and currently spends three nights per fortnight with the husband, pursuant to interim orders made by consent on 16 July 2021.
The parties commenced a relationship in 2006 while the wife was residing in Country B, completing her tertiary studies and spending holiday periods in Australia. The parties commenced cohabitation in 2010, when the wife relocated to Australia upon completion of those tertiary studies.
The parties were married in 2013 and separated on a final basis on 9 September 2019.
BACKGROUND
The wife first travelled to Australia in 2000, at which time she undertook a yearlong exchange program. The wife met the husband that year.
Throughout the years 2006 to 2010, the wife completed her tertiary studies in Country B and spent her holiday periods in Australia working on the husband’s family farm in Region D. Upon the completion of her studies in 2010, the parties commenced cohabitation on that farm.
The wife became a permanent resident of Australia in 2011.
The parties separated on a final basis on 9 September 2019. The wife and X moved to rental accommodation in Suburb G, Victoria and have remained there since that time.
In late 2019, the wife applied for and obtained an interim intervention order against the husband; that order was made in his absence. In early 2020, the husband entered into an Undertaking not to commit family violence for 12 months and the wife withdrew her application for an intervention order against him.
Proceedings were commenced by the wife in this Court in October 2019 upon the wife filing an Application for Final Orders seeking parenting orders. In that application, the wife sought that the parties have equal shared parental responsibility for X, that the child live with the wife and that she be permitted to relocate to Country B with the child.
The husband filed a Response to Final Orders in December 2019 in which he sought orders restraining the wife from relocating the child’s residence away from the City F/Town H area without his consent.
The matter was allocated to my docket in September 2020 and first came before me for a First Day Less Adversarial Hearing on 11 December 2020. That day, I made trial directions and listed the matter to commence on 23 August 2021.
On 15 July 2021, the matter was mentioned before me as the parties sought to adduce further material, including expert evidence. That day, the trial date was vacated and relisted to 21 February 2022.
Further interim parenting orders were made by consent on 16 July 2021 which discharged the previous orders and increased the husband’s time with X to three nights per fortnight.
On 10 December 2021, orders were made by consent granting leave to both parties to adduce further expert evidence. Orders were also made extending the time for compliance with the trial directions I made on 11 December 2020.
The matter came before me for mention on 17 February 2022. That day, the final hearing date was vacated again due to a lack of readiness and the matter relisted to commence on 22 August 2022.
The final hearing commenced on 22 August 2022 and proceeded over five days.
MATERIAL RELIED UPON
The wife relies upon the following documents:-
·Outline of Case document filed 18 August 2022;
·Amended Application for Final Orders filed 11 February 2022;
·Trial affidavit of the applicant filed 1 March 2021;
·Financial Statement filed 1 March 2021;
·Affidavit in Response of the applicant filed 5 May 2021;
·Affidavit of Ms J filed 5 May 2021;
·Affidavit of Ms K filed 29 July 2021;
·Affidavit of the applicant updating her trial affidavit filed 29 July 2021;
·Affidavit of the applicant updating her trial affidavit filed 11 February 2022;
·Affidavit of the applicant updating her trial affidavit filed 5 August 2022;
·Family Report of Ms L dated 17 April 2020;
·Family Report of Ms L dated 5 June 2021;
·Family Report of Ms L dated 28 July 2022;
·Valuation Report of M Street, Town N dated 11 March 2021;
·Valuation Report of P Street, Town Q dated 11 March 2021;
·Livestock Valuation Report dated 2 August 2022;
·Gross Realisable Valuation of Plant and Equipment dated 3 March 2022; and
·Exhibits A1-A15, being exhibits tendered during the course of proceedings.
The husband relies upon the following documents:-
·Outline of Case Document filed 19 August 2022;
·Amended Response to Application for Final Orders filed 20 November 2020;
·Trial Affidavit of the respondent filed 16 April 2021;
·Affidavit of Ms R filed 12 April 2021;
·Affidavit of Ms S filed 19 April 2021;
·Affidavit of the respondent filed 12 August 2021;
·Affidavit of the respondent filed 7 February 2022;
·Affidavit of the respondent filed 15 August 2022;
·Affidavit of Mr T filed 14 February 2022;
·Affidavit of Mr U filed 16 February 2022;
·Affidavit of Mr V filed 17 August 2022;
·Family Report of Ms L dated 17 April 2020;
·Family Report of Ms L dated 5 June 2021;
·Family Report of Ms L dated 28 July 2022;
·Valuation Report of M Street, Town N dated 11 March 2021;
·Valuation Report of P Street, Town Q dated 11 March 2021;
·Retrospective Valuation Report in relation to M Street, Town N and P Street, Town Q dated 4 June 2021; and
·Exhibits R1-R7, being exhibits tendered during the course of proceedings.
ORDERS SOUGHT
The wife seeks orders in the following terms, as specified in the minutes of proposed parenting and property orders tendered on her behalf (Exhibits A14 and A15):-
Proposed Minutes of the Applicant mother for parenting orders
Parental Responsibility:
1.The parents shall have equal shared parental responsibility for the Child, [X] born [in] 2016 (“the child”).
2.The parents shall ensure that at all times the child has a valid and current Australian passport and a valid and current [Country B] Passport, and the mother shall retain the child’s passports.
With Whom the Child Shall Live:
3.The child shall live with the Mother.
Relocation of the Residence of the Child:
4.The Mother be permitted to relocate the residence of the child to [Country B], but not before the 10^th July 2023.
5.Not less than one month prior to the date upon which the Mother intends to relocate the residence of the child to [Country B] the Mother shall advise the Father in writing of the anticipated date of departure and the details of the flights that the Mother has booked for the child together with contact details for the child in [Country B].
6.Upon landing and proceeding through customs in [Country B] the Mother shall notify the Father by SMS or text message of the safe arrival of the Child in [Country B].
Time with the Father:
7.Until the child relocates to [Country B] the child shall spend time and communicate with the father as follows:
Term time:
a.Each alternate Friday from after school until return to school on Monday morning, to be extended to Tuesday morning if the Monday is a public holiday or a curriculum day or otherwise not a school day.
b.If that Friday is a public holiday or a curriculum day or otherwise not a school day then the father shall collect the child at 3 p.m. from the mother’s home.
c.Every other Thursday from after school, until return to mother’s home at 7p.m. with the father to provide [X] with her evening meal.
Term holidays:
a.Term three holiday 2022, the father shall spend seven consecutive nights with the child, from the Friday he would normally have the child either after school or from 3 p.m. until the immediately following Friday at 3 p.m. and the father shall collect the child from the mother’s home at the commencement of time, if that Friday is not a school day, and the mother shall collect the child from the father’s home at the end of his time.
b.Summer holiday period 2022 to 2023 the mother may travel to [Country B] with the child between the 20^th December 2022 and the 19^th January 2023 and the father shall spend time with the child from 3 p.m. on the 21st January 2023 until 3 p.m. on the 28th January 2023 and the father shall collect the child from the mother’s home at the commencement of time and the mother shall collect the child from the father’s home at the end of his time.
c.Easter term 2023, the father shall spend seven consecutive nights with the child, from the Friday he would normally have the child either after school or from 4 p.m. until the immediately following Friday at 4 p.m. and the father shall collect the child from the mother’s home at the commencement of time, if that Friday is not a school day, and the mother shall collect the child from the father’s home at the end of his time.
d.Winter term holiday 2023, the father shall spend seven consecutive nights with the child, from the Friday he would normally have the child either after school or from 3 p.m. until the immediately following Friday at 3 p.m. and the father shall collect the child from the mother’s home at the commencement of time, if that Friday is not a school day, and the mother shall collect the child from the father’s home at the end of his time.
8.Upon the Child relocating to [Country B] the Child shall spend time with the father as follows:
a.Between the 20^th December 2023, save for between Christmas Eve at 11 a.m. and 11 a.m. Christmas Day, and the 20^th January 2024, to take place in [Country B] for a period of at least 20 days in total, with the father to spend four days and four overnights with the child, with the first night that the father is in [Country B] not to be an overnight, and the child to return to the mother for a minimum of 48 hours before spending further time with the father for seven days and seven overnights, with changeover to occur at the home of the mother unless otherwise agreed in writing.
b.In 2024 a period of up to 20 days between the 30^th June and the 30^th July with the mother to travel with the child to travel to Australia and the child to spend seven days and seven overnights with the Father, with the first night that the child is in Australia not to be an overnight, and the child to return to the Mother for a minimum of 48 hours stay with the mother before spending further time with the Father.
c.Between the 20^th December 2024 and the 10th January 2025, to take place in Australia, with the mother to cause the child to travel to Australia and the child to spend seven days and seven overnights with the father, with the first night that the child is in Australia not to be an overnight, and the child to return to the mother for a minimum of 48 hours before spending further time with the Father.
d.Between the 20^th December 2025, and the 20^th January save for between Christmas Eve at 11 a.m. and 11 a.m. 27^th December 2025, to take place in [Country B] for a period of at least 20 days in total, with the father to spend four days and four overnights with the child, with the first night that the father is in [Country B] not to be an overnight, and the child to return to the mother for a minimum of 48 hours before spending further time with the father for seven days and seven overnights, with changeover to occur at the home of the mother unless otherwise agreed in writing.
e.Between the 20^th December 2026, save for between Christmas Eve at 11 a.m. and 11 a.m. Christmas Day, and the 20^th January 2027, to take place in [Country B] for a period of at least 20 days in total, with the father to spend four days and four overnights with the child, with the first night that the father is in [Country B] not to be an overnight, and the child to return to the mother for a minimum of 48 hours before spending further time with the father for seven days and seven overnights, with changeover to occur at the home of the mother unless otherwise agreed in writing.
f.The father shall give notice in writing of his dates of travel to the mother not less than 8 weeks prior to his travel.
g.The above pattern shall continue such that the child will spend time in Australia every June/July, and every third Christmas; and two out of three Christmases in [Country B].
h.At other times, either in addition or in substitution, in Australia, in [Country B] or any third country, as maybe agreed between the parties in writing.
i.Once the child has relocated to [Country B] and commenced school the Mother shall email to the Father a copy of the child’s school calendar, or the dates of the school holiday periods as soon as those dates become available.
j.The Father shall ensure that should the child be required to attend school while the child is spending time with the Father in [Country B] during a school term that the child attends school or he will otherwise obtain written permission from the school for the child to be absent during the father’s time in [Country B], and the father shall advise the mother, provided that the total number of absences from school in any given period when the Father is in [Country B] does not exceed 3 days.
k.The father be at liberty to attend the child’s school and participate in any activities in which parents may participate, or as agreed between the parties.
Communication between the Child and the Parents:
9.Upon the child relocating to [Country B] the Mother and the Father shall arrange for Skype or Facetime communication, or other electronic communication, to take place between the child and the father: -
i.Each Sunday at 9 a.m. [Country B] time with the Mother to initiate the call (unless both the child and the Mother are in Australia);
ii.On at least two other weekdays with the mother to initiate the call. (It is noted that the parties will need to fix the times of calls depending on changes in each country with daylight saving and standard time and the parents’ and [X’s] other commitments)
iii.on the child’s birthday;
iv.on Father’s Day and on the Father’s birthday;
v.other special days, or other times as agreed between the parties.
10.The Father shall be permitted to communicate with the child via email, SMS text message or any other form of electronic or written communication and the Mother shall encourage the child to respond to the same.
11.When the child is spending time with the father, the father shall initiate calls to the mother to enable to child to speak with the mother once during the four‑day period the child is with her father, and twice during the seven day period the child is with her father.
12.In the event that the child requests to communicate with the parent who does not have the care of the child at that time that parent requested shall facilitate such communication.
Travel and Accommodation Costs:
13.The costs of travel for the child to spend time with the Father shall be shared between the parties as follows: -
a.each parent shall meet the costs of their own air fares and accommodation, including any cost of quarantine should that be required, during any trip;
b.the costs of the child’s travel including any cost of quarantine should that be required, are to be shared equally between the parties with each parent to pay one half of the economy airfare for the child;
c.the Mother shall book and pay for the costs of the child’s travel to and from Australia and shall provide to the Father a copy of the “e” ticket and the invoice for the return flight and the father shall deposit into the bank account nominated by the Mother the total of one half of the invoiced costs including any taxes and charges incurred, not less than 60 days prior to the date upon which the child is scheduled to depart from [Country B], and in the event that the Father does not make such deposit 60 days prior to the anticipated departure date the Mother shall be entitled to take whatever steps are necessary to cancel the flights and to recover such of the money paid by her as she is able and the child’s time with the Father in Australia is suspended until such time as the Father reimburses the Mother for the total amount of the air fares for herself and the child less any amount which the Mother is able to recover from the airline.
Provision of Information:
14.The Mother shall do all acts necessary to authorise the father to: -
a.communicate directly with the child’s school and to receive information regarding the child’s progress, school reports, newsletters, school photographs and all such information as is normally received by parents;
b.communicate with the child’s general practitioner or other treating medical professional in relation to any health issues concerning the child;
c.communicate with any counsellor or psychologist that the child may from time to time attend.
15.For the purposes of the implementation of paragraph 14 herein the Mother shall advise the Father by email of the contact details for the child’s schools, doctors or health care professionals and any extra-curricular activities at which the child attends to keep the Father advised of the same.
16.The Mother shall cause an emailed photograph of the child to be sent to the Father electronically each calendar month.
17.Prior to the relocation of the child to [Country B], the father be at liberty to provide [X] with a photo album or memory book containing photos or memorabilia relevant to the father and/or the child or both of them, and may forward further photos or memorabilia to add to the album or memory book, at any time
18.Each of the parents shall keep the other advised by telephone of any emergency or non-routine medical issue that arises in relation to the child including providing the particulars of the medical practitioners, hospitals and contact details as soon as practical after the parent who has the child in their care becomes aware of such issue or emergency.
19.Each of the parents shall keep the other advised of their residential address, a land line telephone number and/or a mobile telephone number, email address, Skype address and those of the child if she has her own such addresses, such particulars to be provided within 48 hours of any change to such particulars.
Registration of these Orders:
20.The Mother forthwith do all act and things necessary to cause a copy of these orders to be registered with the relevant Family Court authority in [Country B].
Restraint:
21.The Mother is restrained from relocating the residence of the child to a country other than [Country B] save for returning to Australia, without the consent of the Father given in writing.
PROPERTY:
In varation [sic] of, or addition to, proposed orders provided by the Respondent Husband:
1.As to paragraph 20 thereof, replace with “the husband pay to the wife the sum of $2,473,030 (‘the payment), as to $1,100,000 within 90 days of these orders, and as to the balance, on a timetable to be determined by the husband, but to be within one year and 90 days of these orders”
2.As to paragraph 24 thereof: add at the end “and the husband indemnify the wife against all of her obligations and liabilities arising therefrom”.
3.Add: the wife’s vehicle remain in her possession for her own use for as long as she remains resident in Australia, pursuant to court order.

In the event that the wife’s application to relocate to Country B is unsuccessful, she seeks orders in the terms of [21] to [25] of her Amended Application for Final Orders 11 February 2022 which provides as follows:-
21.That the mother be permitted to relocate with the child a distance of up to 250 kilometres from her current residence and to include Metropolitan Melbourne, and [City W] but within the State of Victoria.
22.That not less than one month prior to such relocation the other shall advise the father of her intended new address and details the [sic] local primary school that the child will be attending, subject to the father being first consulted and agreeing to the school the mother is intending to enrol the child in. If no agreement can be reached, then the child shall attend the state primary school within the mother’s local state school zone.
23. Time with the father following relocation within Victoria:
(a)Each alternate weekend from after school on Friday until return to school on Monday morning subject to order 24 herein;
(b)If the father is unable to return the child to school on a Monday morning, then the parties shall meet at a halfway point, or as close as is practicable to a halfway point, between their homes at 4pm on Sunday afternoon subject to order 24 herein;
(c)For five consecutive days and overnights each term holiday, commencing from the Friday the father would normally have the child and for three such periods in the summer holiday period, excluding between the 24^th December to the 26^th December, increasing to 7 consecutive days and overnights as from January 2024 subject to order 24 herein;
(d)On Father’s Day unless it otherwise falls on the father’s weekend from 10am to 4pm and if Mother’s Day falls on the father’s weekend, then the child is to be returned to the mother’s care at 10am for the balance of the day;
(e)From Christmas Eve at 11am until 11am on Christmas Day ever alternate year and from 11am on Christmas Day until 11am on Boxing Day every other year subject to Order 22 herein;
(j)[sic] That the father be at liberty to attend the child’s school and participate in any activities in which parents may participate; and
(g)[sic] At such other times, including special occasions, as the parties may agreed.
24.That the mother may travel with the child to [Country B] for a period or periods of up to 8 weeks every year, excluding any time which may be required for quarantine upon return to Australia, at the dates of her choosing, providing that such travel does not occur between the 24^th and 26^th December any more than once every third year. The mother will advise the father at least 8 weeks prior to the intended departure date and shall provide to the father copies of her e‑ticket details and itinerary at least 4 weeks prior to the intended departure date, save for if such travel is required pursuant to a family emergency.
25.The mother is not obliged to provide any make up time but shall provide for the father to contact the child by telephone or other electronic means at 11am ([Country B] time) every Sunday whilst the child is in [Country B] or at such other times as are agreed.
The husband seeks orders in the following terms, in accordance with the Minute of Proposed Orders tendered on the final day of the hearing (Exhibit R7):-
PARENTING:
1.The parents have equal shared parental responsibility for the child [X] born […] 2016 (“the child”).
2.The child live with the Mother.
3.The Mother have liberty to travel with the child to [Country B] for holidays as follows:
a.For a period of up to 4 weeks during each of the Victorian summer school holiday periods, inclusive of any periods of quarantine, and provided that such travel does not occur between 24 December and 26 December any more than once every third year, with the child to spend the balance of the summer school holiday period with the father;
b.For a period of up to 3 weeks coinciding with one of the Victorian school term holiday periods in each calendar year, inclusive of any periods of quarantine, with the child to spend the whole of one of the remaining two school term holiday periods with the father and half of the third school holiday period with each parent;
c.The Mother shall inform the Father in writing at least 8 weeks prior to the intended departure date and provide the Father with copies of ticketing details and itinerary at least 4 weeks prior to departure; and
d.The Mother do all things required to ensure that the Father is able to communicate with the child by telephone or video conference at 11.00am [Country B] time every third day while the child is in [Country B].
4.The child spend time with the Father as follows:
a.During school term:
i.Each alternate weekend from the conclusion of school on Thursday, or from 3.15 pm in the event that the child is not attending school that day, until the commencement of school on Monday, or 3.15 pm in the event that the child is not attending school that day and in the event that any such weekend is a long weekend arising from a public holiday or a non-school day for the child then the time shall be extended to include each additional day; and
ii.Each alternate Thursday from the conclusion of school, or from 3.15 pm in the event that the child is not attending school that day until the commencement of school on Friday or 3.15 pm in the event that the child is not attending school that day.
b.From 11.00am on Christmas Eve until 11.00 am on Christmas Day in 2022 and each alternate year thereafter and from 11.00 am on Christmas Day until 11.00 am on Boxing Day in 2023 and each alternate year thereafter
c.If Father’s Day falls on a weekend when the child is not already spending time with the Father, from the conclusion of school on Friday, or 3.00 pm in the event that the child is not attending school that day, until 4:00 pm on Father’s Day.
5.The time the child spends with the Father in accordance with paragraph 4a) hereof be suspended as follows:
a.On the Mother’s Day weekend;
b.From 11.00 am on Christmas Eve until 11.00 am on Boxing Day
6.The father collect the child from and return the child to school where changeover takes place on a day when the child is attending school and at all other times at Mother’s place of residence at the commencement if time spent and at the Father’s place of residence at the conclusion of time spent.
7.Each parent facilitate communication by telephone and/or video call (including FaceTime and Skype) between the child and the other parent whilst the child is in their care as requested by the child but no less frequently than once every three days.
8.The Mother and Father:
a.Keep the other advised at all times of their respective addresses and mobile telephone numbers;
b.Advise the other immediately in the event that the child suffers from any serious illness or injury;
c.Authorise any medical practitioner upon whom the child may attend, from time to time, to communicate with the other in respect of the child’s medical condition and/or requirements;
d.Authorise all school schools [sic] at which the children may attend, from time to time, to:
i.Provide the other, at the expense of the other, copies of all school notices and school photographs in relation to the child;
ii.Communicate with the other, by either telephone, in writing or by personal attendance, in respect to the child’s progress at their respective schools;
iii.Permit the other to attend all school functions to which parents are normally invited
Subject to any school policy in relation thereto.
9.The Mother is restrained by injunction from relocating the child’s residence more than 50km from her current residence, without the consent in writing of the Father.
Alternatively, in the event that the Court does allow the mother and the child to relocate to [Country B] the following orders apply:
10.Until the child relocates to [Country B] the child spend time in accordance with paragraphs 3 and 4 hereof.
11.Upon the child relocating to [Country B] the child spend time with the Father as follows:
a.In Australia for a period of four weeks during the northern hemisphere summer school holidays each year with the Mother to cause the child to travel to Australia;
b.In Australia for a period of two weeks from 20 December in each alternate year commencing in 2023 with the Mother to cause the child to travel to Australia;
c.In [Country B] for periods of up to two weeks, with no more than two such periods in any 12 month period, subject to:
i.The Father providing 28 days’ notice in writing to the Mother of his intention to spend such time with the child; and
ii.The Father ensuring that the child attends school and all normal extracurricular activities during such time.
12.Each parent facilitate communication by telephone and/or video call (including FaceTime and Skype) between the child and the other parent whilst the child is in their care as requested by the child but no less frequently than once every three days and such days to include the child’s birthday, the Father’s birthday, Father’s Day and other special occasions.
13.The Father be permitted to communicate with the child by email, SMS text message or any other form of electronic or written communication at all reasonable times and the Mother encourage the child to respond to the same.
14.In the event that the child requests to communicate with the parent who does not have the care of the child at that time the other parent facilitate such communication.
15.The Mother email to the Father a copy of the child’s school calendar including the dates of the school holiday periods as soon as those dates become available.
16.The Father be at liberty to attend the child’s school and participate in any activities in which parents may participate, or as agreed between the parties.
17.The Mother email a photograph of the child to the Father at least once each calendar month.
18.The Mother forthwith do all such acts and things necessary to cause a copy of these Orders to be registered with the relevant Family Court authority in [Country B].
19.The Mother is restrained from relocating the residence of the child to a country other than [Country B], save for returning to Australia, without the consent of the Father in writing.
PROPERTY
20.The Husband pay to the Wife the sum of $1,100,000 (‘the payment”) within 90 days of these Orders (“the date”)
21.Contemporaneously with the payment:
a.the wife do all such acts and things and sign all such documents as may be required to transfer to the husband, at the expense of the husband, the water entitlements High Reliability water share ID […] (“the water entitlements”);
b.the husband refinance the National Australia Bank loan [#...32] (“the loan”) so as to release the wife from all liability and indemnify the wife against all payments and liability pursuant to the loan;
22.In the event that the whole of the payment has not been made by the date such amount of the water entitlements registered in the name of the Husband as required to make the payment together with interest be sold forthwith)”the sale”) [sic] and the proceeds of sale be applied:
a.first to pay all costs, commissions and expenses of the sale;
b.secondly, so much of the payment as is then outstanding together with interest thereupon at the rate prescribed by the Family Law Rules adjusted monthly from the date to the Wife; and
c.the balance to the husband.
23.The Husband receive the benefit of any of the parties’ carryover water allocations made with respect to the water entitlements of the parties and remaining in the parties’ Allocation Bank Account […] (‘ABA’) and the Wife hereby assigns to the Husband any such allocations and will sign any document as may be required by the Husband to obtain the registration and the benefit of the allocation, or increase in allocation.
24.The partnership of [Mr & Ms Holst] be dissolved forthwith and the Wife transfer to the Husband any interest she has in the partnership and the Husband indemnify the Wife in respect of all taxation and other liabilities arising in connection with the partnership.
25.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
a.each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;
b.monies standing to the credit of the parties in any joint bank account are to become the property of the Husband, save for “[X’s] account” BSB […94] No. […58] which the parties agree to continue to hold jointly and upon trust for [X];
c.each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
d.insure policies remain the sole property of the owner named thereon;
e.each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
f.any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
26.The application of the Wife for spousal maintenance be dismissed.
THE HEARING
The hearing commenced before me on 22 August 2022 and concluded on 26 August 2022. Both parties were represented by Senior Counsel for the duration of the five day hearing.
On the first morning the parties settled and tendered a joint balance sheet (Exhibit R1).
The wife and the husband were both cross-examined. Neither the wife’s friend, Ms J nor her sister, Ms K were required for cross-examination.
The husband’s witnesses, Mr U, an industry consultant and Mr V, a systems expert were also cross-examined. Neither of the husband’s friends, Ms R nor Ms S were required for cross‑examination.
Ms L, Family Report Writer, gave evidence and was cross-examined by Senior Counsel for both parties.
On the final day of hearing, Senior Counsel tendered a final Minute of Proposed Order sought by their respective clients in relation to both parenting and property issues.
Helpfully, Senior Counsel engaged in discussions across the afternoon of the fourth day of hearing which gave rise to some agreement in respect of school holiday time and time which should occur between the conclusion of the hearing and, if ordered, relocation of the child to Country B.
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)The nature of the cause of action or defence; and
(b)The nature of the subject-matter of the proceeding; and
(c)The gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing.
In what follows, statements of fact constitute findings of fact. In determining the matter I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the husband, the wife and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
PARENTING
LEGAL PRINCIPLES
Section 60B(1) sets out the objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”), to ensure 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They 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).
The parties seek parenting orders as defined by s 64B of the Act. That is, they seek orders relating to with whom and where the child is to live and the time the child is to spend with the other parent.
Each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act, as the parents of the child.
In deciding what parenting orders are appropriate in a particular case, the Court must regard the best interests of the child as the paramount consideration.[1] Section 60CC(2) and (3) of the Act sets out the primary and additional considerations to which the Court must have regard in determining what is in the child's best interests. The Court must give greater weight to the necessity to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence.[2] Otherwise, there is no requirement for the primary and additional considerations to be examined in any particular order, or for any single consideration to be afforded greater weight than others. Ultimately, the weight to be afforded to each of the considerations is a matter dependent upon the unique circumstances of each case.
[1] Family Law Act 1975 (Cth) s 60CA.
[2] Ibid s 60CC(2A).
That this is so was confirmed by the Full Court of the Family Court of Australia (as it then was) in Donnell & Dovey (2010) FLC 93-428 at [103], where it described the section 60CC considerations as:-
…a series of signposts the legislature has determined are potentially important for thecourt to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another.…
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 as follows:-
[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. While the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance…
(Emphasis in Original)

There is a presumption that it is in a child's best interests for the parents to have equal shared parental responsibility.[3] The presumption relates to the allocation of parental responsibility; it does not relate to the time the child spends with each parent. If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the child's best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent.[4] There is no dispute between the parties, and I agree, that it is in X’s best interests for them to have equal shared parental responsibility. Thus, I must consider whether it would be in her best interests and reasonably practicable for her to spend equal time or substantial and significant time with each parent.
[3] Family Law Act 1975 (Cth) s 61DA.
[4] Ibid s 65DAA.
The above principles apply to applications for international relocation of a child just as they do in other parenting applications. In Zahawi & Rayne [2016] FamCAFC 90 the Full Court stated that:-
[48]“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
As with all parenting cases, the Court must weigh up the parties’ various competing proposals, while maintaining the best interests of the child as the paramount consideration. However, a determination of what is in the child’s best interests does not mean that the legitimate desires and interests of her parents are ignored; rather, where those interests conflict with the child’s best interests, the former must give way to the latter (AMS v AIF (1999) 199 CLR 160 at [207]‑[208]). Whilst a parent enjoys the right of freedom of movement to live wherever they so choose, that right must defer to the paramount consideration, being what is in the best interests of the child (U v U (2002) 211 CLR 238 at [89]).
ASSESSMENT OF THE EVIDENCE
There was little controversy between the parties as to the events that have occurred both during the relationship and since separation. There is little utility in detailing at length the evidence of each of the parties, as set out in their trial affidavits. Both the husband and the wife impressed as truthful witnesses who are committed to ensuring the child has every opportunity of achieving her full potential. Understandably, at times, each viewed issues and events from their own perspective and this coloured their evidence.
The wife’s case
Simply put, the wife’s application to relocate to Country B is motivated by her desire to return to her country of origin and to be nearer to her family. Further, a return to Country B will enable the wife to secure employment, utilising her qualifications, which are not recognised in Australia. The wife contends that living and working in Country B will ensure greater financial security for her (and therefore the child) than is otherwise available; it will also provide her with practical and emotional support (both from her network of family and friends and through her employment) that is not available to her in Australia.
In the alternative, the wife seeks the opportunity to relocate to Suburb C, a suburb over three hours’ travel from the husband’s farm. The wife identifies Suburb C as a region where she is able to pursue her qualifications in Australia. It is also an area which she identifies as affording her with greater employment opportunities than are otherwise available to her in the Region D area, particularly due to the university courses being based there.
The wife’s evidence is that she has a close connection to her Country B heritage and has strong bonds with her parents, sister, brother-in-law and nephews. The wife’s evidence is that she communicates with members of her family several times per week.
Since she relocated to Australia from Country B in 2010 the wife has travelled regularly to Country B to visit her family and they have travelled to Australia to visit her. The wife confirmed during her oral evidence that her sister, Ms K, has travelled to Australia on two occasions and her parents have travelled to Australia on four occasions since she commenced living here.
The wife confirmed that until the Global Pandemic, she travelled to Country B each year and in some years travelled to Country B on two occasions. The wife confirmed that the husband accompanied her to Country B on many occasions.
The wife’s capacity to travel to Country B with the child was interrupted as a result of the Global Pandemic. The wife’s evidence is that she was unable to spend time in Country B with her family for a period of almost three years. I have no doubt that the impact of the Global Pandemic heightened the wife’s sense of isolation from her family and culture.
The wife has actively nurtured the child’s connection to her culture and family in Country B. Since the child’s birth, the wife has communicated with her in the language of Country B. As a result, the child is bilingual. The wife’s evidence is that she has maintained Country B customs and traditions in her household. Accordingly, the wife contends that the child would transition easily into Country B life, were the relocation permitted.
The wife’s evidence is that she has few close friends or connections in Australia, which compounds her sense of isolation. The wife deposes that she feels isolated in Region D as most of her connections there are friendships established through the husband.
In contrast, the husband’s evidence is that the wife has lived and worked in the Region D community for a period of approximately 20 years since she first travelled there in 2000. It is his case that she has a network of established friendships and has housing and employment opportunities there. He does not accept the wife’s contention that she is isolated in that community.
The wife’s evidence in relation to her social connections in Australia was challenged by Senior Counsel for the husband. The wife conceded that she did have a close connection to Ms R’s family, who hosted her during her first trip to Australia. However, it is the wife’s evidence that that relationship has fractured since the parties’ separation and the involvement in these proceedings of the witness, Ms R, who supports the husband’s case.
I accept the wife’s evidence as to the impact of the parties’ separation and these proceedings on her relationships with Ms R’s family and other friends in Region D. I accept that proceedings such as these have a polarising effect on relationships; friends and relatives have loyalties and connections to one side or the other, with the potential for a damaging impact on their relationships with the party who perceives those people as being aligned with and supporting the other party.
During cross-examination, the wife conceded that she had friendships with people in her mother’s group and members of her gym. She identified a number of people whom she is able to enlist to assist her with the child’s care, including during the week of the trial. She also acknowledged her close friendship with Ms J who is of Country B origin and initially travelled with the wife to Australia, eventually settling in Victoria.
The wife conceded that she maintains friendships with Ms J (and others) but contends they are unable to provide much practical support to her due to the distance between their respective homes as well as their commitments to their own families. I accept that evidence.
My impression of the wife’s evidence with respect to her connections in Australia was that she sought to minimise the strength and significance of some of those connections. It was submitted on behalf of the husband, and I accept, that the wife has worked, holidayed and lived in Australia, and particularly in Region D since 2000. However, I also accept that in a small rural community where the husband has long-standing connections due to his family’s farming enterprise pre-dating the commencement of the parties’ relationship, that the wife perceives her relationships with members of that community to have diminished following the end of the parties’ relationship. I further accept that in those circumstances, the wife’s sense of isolation within that community has increased.
The wife’s evidence is that she believes she will have greater support from her family in Country B than is available to her in Australia. It is her evidence that due to his commitment to the operation of the farm, the husband is not in a position to share in the day-to-day responsibilities for the child’s care.
Further, in order to qualify in her profession in Australia, the wife’s evidence is that she would need to undertake both written and clinical examinations which are conducted in Queensland over a five-day period. It is her evidence that she would need to undertake significant study in order to prepare for the exams and further, there is a substantial cost in undertaking those exams.
The wife’s evidence is that in Country B she is appropriately qualified and able to undertake work teaching or working in multiple fields.
The wife proposes that she relocate to City Y, which is a large city in Country B where her parents and sister reside. The wife deposes that she has many friends from school and university in that city as well as a large extended family.
The wife further proposes that she will rent a house or townhouse in that city and that upon receipt of her property settlement she may be in a position to purchase a modest home there, ideally near to her sister.
As to her employment upon relocation, the wife’s evidence is that she intends to seek work in the public service. She hopes to secure either full-time or part-time work there. The wife proposes that she facilitate travel for the child to spend time with the husband in Australia on one occasion each year and further that the husband travel to Country B at least once per year to visit the child.
As to the wife’s proposals for travel to Country B, the husband conceded that he has a good working relationship with the wife’s family and that they have provided support and assistance to him during his previous visits to Country B. Nonetheless, the husband maintains that he would now feel ‘very uncomfortable’ were he to travel to Country B and stay with the wife’s family, given the breakdown of the parties’ relationship. I accept that evidence.
If not permitted to relocate to Country B, the wife proposes to relocate with the child to the Suburb C area of Melbourne. She deposes that the husband’s extended family live in Melbourne and that the husband regularly travels to Melbourne for family events. It is the wife’s evidence that she will have greater employment opportunities as well as the opportunity to undertake further studies if located in Melbourne, as opposed to her current situation in Region D, which she deposes provides her with limited employment opportunities.
If permitted to relocate to Suburb C the wife proposes that the husband spend time with the child every second weekend from Friday until Sunday during term-time as well as school holiday periods. The wife would seek the opportunity to travel with X to Country B on an annual basis to ensure she has the opportunity of spending time with members of the maternal family.
The wife was cross-examined by Senior Counsel for the husband as to the impact of the proposed relocation upon the child. The wife expressed concern that the child may lose her close relationship with her Country B family and culture if the relocation is refused. She noted that as X is now attending school, she has less opportunity to communicate with her family in Country B due to the challenges posed by the time difference between the two countries as well as the child’s activities. Generally, the child’s communication with family in Country B is limited to weekends.
The wife confirmed during her oral evidence that X has a close and strong bond with her cousins in Country B and that she has been able to facilitate and foster that relationship whilst living in Australia. She also confirmed that when X and she travelled to Country B in 2022 X was able to communicate fluently with family members in the language of Country B.
The wife was challenged in relation to concerns raised by her as to the husband’s attitude towards X’s travel to Country B in the aftermath of the Global Pandemic. There was a dispute between the parties as to when the child should be delivered to her care prior to travel to Country B. The wife’s evidence was that she preferred that the child be returned to her the night before travel given that she was about to embark on a trip of some 36 hours’ duration and she wished to prevent what may have been an emotional farewell on the day of travel.
The parties were also in dispute in relation to the wife’s proposed travel with the child in the December/January period of 2021/2022 prior to the child’s commencement at school. Ultimately, that trip did not occur as the parties could not agree upon arrangements for the husband’s make-up time. The husband also expressed concern as to the vaccination status of the wife’s family members and the position generally as to the impact of Covid-19 in Country B. The husband’s proposals for make-up time included that he travel with X to Country Z for a period of 10 nights. The wife opposed that proposal on the basis that X had never spent such an extended period of time with the husband before.
Ultimately, I am satisfied that the concerns raised by each party in relation to the above disputes were both understandable and reasonable. That the father would be concerned as to the vaccination status of the wife’s family members and the impact of Covid-19 upon the Country B community is understandable. Similarly, the wife’s reservations about the child travelling overseas for an extended period with the husband are also appropriate given her role as the child’s primary care-giver, and having regard to the limited time the husband had spent with the child at that stage.
The husband’s case
The husband seeks orders that the wife and the child remain in Region D. Orders in those terms will ensure that he can continue to have a meaningful relationship with the child. He seeks orders permitting him to spend time with the child for five nights per fortnight. Additionally, he proposes that there be orders permitting the mother and the child to travel to Country B for a period of up to four weeks during the long summer holiday period and for a further period of up to three weeks during one of the Victorian school term holidays each year.
The husband maintains that the child has close relationships with members of his extended family who reside in Melbourne and that a relocation to Country B will inhibit those relationships.
The husband has been critical of the wife’s resistance to permit the extension his time with the child. It is only after the release of reports prepared by the Family Report Writer, Ms L, that the wife has agreed to extensions of his time.
It is common ground between the parties that there was tension and conflict at the time of their separation. The wife’s evidence is that she hoped that the family could relocate to Country B together. When it became apparent that the husband would not relocate, the wife decided to leave the home and informed him of her decision on 9 September 2019. The husband concedes that he was distressed and upset by the wife’s decision and admits that he banged the kitchen table with his fist. Soon after, the wife obtained an interim intervention order against the husband, stating that she was fearful of his anger following the parties’ separation.
I have no doubt that the separation was distressing to both parties and that the husband was angry and frightened at the prospect of the wife returning to Country B with the child. I am satisfied that the husband’s behaviour during that period, which the wife perceived to be threatening, was as a result of the significant stressors experienced by both parties as a result of the breakdown of the relationship.
The parties ultimately resolved the intervention order proceedings on the basis of an Undertaking given by the husband. That Undertaking lapsed in late 2020. Since that time the parties have maintained largely respectful and child-focussed communication with each other, notwithstanding that on occasions there have been differences in the parties’ parenting style which has led to disagreement.
For example, the wife has been critical of the husband’s failure to adhere to the child’s daily routines, including instances where she has raised issue with the husband due to his failure to maintain bedtime routines for the child. The husband conceded during cross-examination that he had been advised by Ms L as to the importance of maintaining such routines and further that he did have difficulties in getting the child to bed in accordance with the wife’s established routines.
Whilst such differences between the parents have no doubt caused each of them frustration and may have disrupted X’s routines from time to time, I am satisfied that those disputes do not presently place the child at any risk of harm. Both parents impressed as being devoted to X’s care.
What is striking about this matter is that neither party sought to criticise the other or their parenting to any significant extent. My impression of the wife throughout her evidence was that she was child-focussed and insightful. She made appropriate concessions throughout her oral evidence and I found her to be a forthright and truthful witness. The husband too impressed as a frank and honest witness who made concessions when appropriate.
The wife’s witnesses
Ms K
Ms K is the wife’s sister and the maternal aunt of X. Ms K affirmed an affidavit in the proceedings which was filed on 29 July 2021.
At the time of affirming her affidavit, Ms K was aged 44. She lives in Suburb AA which is in City Y, Country B. She lives with her husband, Mr BB and their three children aged 15, 11 and 4 at the time of affirming the affidavit.
Ms K is a manager in Country B. Her husband Mr BB is employed as a manager.
Ms K deposes that she has a close and strong relationship with the wife and that her family, including her parents, have always been close to each other.
Ms K deposes that she observed the wife’s declining ‘emotional strength’ both before and after the child’s birth. She deposes that she became worried that the wife was alone and isolated and deposed that she observed the wife to become tearful during her trip to Country B in 2016.
Ms K also deposes as to the support available to the wife and child in Country B. She confirms that her parents help and support her in the care of her own children and expects they would do likewise for the wife. She also deposes that together with her parents, she owns a summer house nearby in which the wife and the child could live until they secure their own accommodation in Country B.
Ms K deposes as to the amenities available to the wife and child in Country B, including access to a nearby lake, forest, playgrounds and sports clubs. Ms K also deposes as to her experience of the local school in Suburb AA at which her children attend.
Ms K also deposes as to the close relationship between X and her own children, including her youngest son who is the same age as X. She deposes that the children talk together on Skype on weekends, communicating in Country B language.

The Act does not prescribe a particular order in which the matters contained within s 79(4) are to be considered. Instead, their consideration will be dependent upon the particular circumstances of the marriage, with the manner in which the parties have organised and lived within the marriage deemed to be factors which may be relevant in the exercise of the s 79(2) discretion.
BACKGROUND
From the commencement of cohabitation, the parties lived together on the husband’s family farm at Town N. The husband was working as a farmer and the wife assisted in the farming operation. In addition, the wife undertook studies to obtain recognition of her relevant qualifications in Australia; ultimately she was unsuccessful in that endeavour.
At the commencement of cohabitation, the husband held an interest in the land at Town EE, which he had purchased with his brother in about 1991. The wife had no assets of significance.
The husband’s father died in 2010. As from 2012, the husband and the wife assumed operation of the husband’s family farm in partnership. Pursuant to a Deed of Family Arrangement settled in 2015, the husband acquired the Town N family farm, stock, plant and equipment together with water entitlements. Those interests continue to be held by the parties and are their principal assets.
During the parties’ cohabitation, the husband and the wife worked together in the farming operation. Significant improvements were implemented by them on the farm during their relationship, including the introduction of agricultural techniques, the upgrade of the irrigation systems on the Town N property and Town EE and the upgrade of the facility.
In 2015 the parties borrowed approximately $800,000 to upgrade the facility at Town N and to acquire additional water rights.
The assets that comprise the bulk of the parties’ interests are those that the husband brought in to the relationship or were acquired from his family during the relationship. The principal assets of the parties, as reflected in their joint balance sheet, are the two farming properties at Town N and Town EE, the water rights, plant and equipment and livestock. In addition, both the husband and the wife have superannuation entitlements.
At the conclusion of the hearing, the parties submitted a Minute of Proposed Consent Order providing for a superannuation split from the husband’s superannuation interest to the wife. The effect of the proposed order is that the parties’ superannuation interests will be split on an approximate 60/40 basis in favour of the husband. I am satisfied that it is just and equitable that there be a split of the superannuation interests as agreed between the parties and I will make orders as sought by them with respect to their superannuation interests.
ISSUES
The issues that emerge from the parties’ competing applications for property division which require determination are:-
·The composition and value of the parties interests, particularly whether funds advanced to them from the partnership and applied by them towards legal costs ought be added back to the pool;
·What weight should attach to the husband’s initial contributions as well as those attributable to his inheritance from his father’s estate;
·The assessment of each party’s contributions;
·What adjustment, if any, should be made having regard to section 75(2) of the Act; and
·What amount is required to be paid by the husband to the wife in order to effect a just and equitable division of the parties’ interests?
THE ASSET POOL
The parties tendered a joint balance sheet on the first day of hearing (Exhibit R1). That joint balance sheet provides that the asset pool is as follows:-

Description

Ownership

Applicant’s Value

Respondent’s Value

ASSETS

1.   Partial settlements/Legal fees

Husband

Ignore[$310,000]

$310,000

2.   Partial settlements/Legal fees

Wife

Ignore[$335,000]

$441,000

3.   Livestock

Joint

Agreed

$706,400

4.   Real property at Town N over 250 acres

Husband

Agreed

$2,000,000

5.   Real property at Town EE over 600 acres

Husband

Agreed

$1,450,000

6.   Water shares - over 650ML of HR (over 90ML joint names and over 560ML Husband)

Husband/Joint

Agreed

$3,218,810

7.   Water shares - over 300ML of LR

Husband

Agreed

$205,920

8.   Water shares - over 25ML of HR

Husband

Agreed

$145,530

9.   Water shares - over 15ML of LR

Husband

Agreed

$10,620

10. Plant and equipment

Joint

Agreed

$372,155

11. Wife’s vehicle

Wife

Agreed

$30,000

Assets Subtotal

$8,139,435

$8,890,435

LIABILITIES

12. Money owned to Husband’s mother

Husband

Agreed

$494,651

13. NAB Loan #...68

Joint

Agreed

$577,000

14. NAB credit card #...48

Joint

Agreed

$1,982

15. Automated irrigation upgrade

Husband

Ignore

$268,889

Liabilities Subtotal

$1,073,633

$1,342,522

TOTAL (assets – liabilities)

$7,065,802

$7,547,913

SUPERANNUATION

Name of Fund

Member

Applicant’s Value

Respondent’s Value

Superannuation Fund 1 (at 9/8/2022)

Husband

Agreed

$267,529

Superannuation Fund 2 (at 7/8/2022)

Wife

Agreed

$109,505

Superannuation subtotal

$

$377,034

Analysis of the joint balance sheet discloses that the principal areas of dispute was first, the treatment of the partial settlements received by the parties and second, the husband’s contention that the anticipated upgrade of the irrigation system on the Town N property ought be treated as a liability of the parties.
Item 15 – Costs of irrigation upgrade
By the time of closing submissions, the husband had conceded that any future liability which might arise as a result of an upgrade to the irrigation system at Town N should not be included as a liability in the parties’ balance sheet. Instead, he submitted that such anticipated liability should be taken into account as a relevant factor pursuant to s 75(2). The husband maintains that this liability will be incurred in the future as it is necessary to ensure the ongoing viability of the farming operation. Having regard to the nature of that anticipated liability, the concession made by the husband was sensible. That is an item that will be excluded from the asset pool and otherwise addressed upon consideration of s 75(2) factors.
Items 1 and 2 - Legal Costs
Both the husband and the wife have received distributions of lump sums from the farming partnership which have been applied towards their respective legal costs. In the case of the husband, he has received $310,000 which he contends should be added back to the parties’ asset pool.
It is common ground between the parties that the wife has received a total of $549,000 from the partnership accounts. Of that amount, the husband concedes the sum of approximately $108,000 as having been applied to the wife’s and X’s living expenses. Deducting that sum from the total amount received by the wife leaves the sum of $441,000, which the husband contends should be added back to the pool.
The husband’s calculation of the wife’s living expenses has been undertaken having regard to Exhibit R6, which is the wife’s financial statement filed 4 December 2020. In that document the wife discloses weekly expenses of $979 per week and weekly income of $287 per week, leaving a shortfall of $692 per week. Over the three years of the parties’ separation, the husband calculates that that shortfall totals $108,000. It is that amount that he deducts from the monies received by the wife to calculate what he asserts should be added back to the pool.
During the course of submissions I raised with Senior Counsel for the husband the question of why I should rely upon the wife’s first Financial Statement filed in the proceedings rather than her second Financial Statement filed 1 March 2021, which discloses weekly expenditure of $1,253 and weekly income of $288, giving rise to a shortfall of $965. Were I to rely on that figure, the sum of approximately $150,000 would be deducted from the amounts received by the wife, resulting in an add-back of approximately $399,000, of which sum it is common ground that approximately $355,000 were expended by her on legal fees.
Senior Counsel for the wife submits that the only source of income available to the wife to meet her day-to-day living expenses and those of X is the partnership accounts. The monies expended by her beyond the amounts applied towards her legal fees have been used to meet her living expenses, including rent, utilities, food and the like. It was submitted that to add back those sums would visit unfairness upon the wife, particularly in circumstances where there has been no scrutiny of how the husband has applied the partnership account towards his own expenses during the same period.
Since separation, the husband has remained on the farm and had the advantage of many of his day-to-day living expenses being met from the farming operation. It was submitted that having regard to those circumstances, to adjust the pool and add back the amounts the wife has applied for hers and X’s living expenses would be unjust.
The Full Court considered the question of whether it may be appropriate to notionally add back property no longer in existence into the parties asset pool, thereafter adjusting the existing property interests having regard to those add backs, in Vass & Vass (2015) 53 Fam LR 373. At [138]-[139] the Full Court said as follows:-
There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan v Bevan (2013) 49 Fam LR; [2013] FamCAFC 116 – or, more particularly, the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; [2012] HCA 52 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.
(Emphasis in original)
There are three categories of cases in which the Court has considered it appropriate to add-back assets which no longer exist into the asset pool. In Omacini & Omacini (2005) FLC 93-218 (“Omacini”) they were identified at [30] and summarised as follows:-
(1)Where one or both of the parties have expended monies on legal fees that might otherwise have been available;
(2)Where there has been a premature distribution of matrimonial property; and
(3)Where one of the parties has embarked on a course of conduct designed to reduce or minimise the value of the property or has acted recklessly or negligently having the same effect (as was described by Baker J in Kowaliw and Kowaliw (1981) FLC 91‑092).
In circumstances where the wife has been responsible for meeting X’s day-to-day living expenses as well as her own, and where the two financial statements provided by her during the course of the proceedings indicate a shortfall of income over expenses, being the sum of approximately $965 per week as at March 2021, I am not persuaded that there should be any add back in relation to those monies.
As to the parties legal expenses there is a disparity of some $45,000 between them, the husband expending the sum of $310,000 as opposed to the wife expending $355,000. Given that disparity and in circumstances where it is common ground that payment of those fees has been met from the partnership accounts, I am satisfied that there should be an add back of the funds expended by the parties on those expenses.
THE ASSET POOL
Based on my findings, the parties’ legal and equitable interests for the purposes of the orders I am asked to make are as follows:-

ASSETS

OWNERSHIP

VALUE

Partial settlements/Legal fees

Husband

$310,000

Partial settlements /Legal fees

Wife

$355,000

Livestock

Joint

$706,400

Real Property at Town N over 250 acres

Husband

$2,000,000

Real property at Town EE over 600 acres

Husband

$1,450,000

Water shares – over 650ML of HR (over 90ML joint names and over 560ML Husband)

Husband/Joint

$3,218,810

Water shares – over 300ML of LR

Husband

$205,920

Water shares – over 25ML of HR

Husband

$145,530

Water shares – over 15ML of LR

Husband

$10,620

Plant and equipment

Joint

$372,155

Wife’s vehicle

Wife

$30,000

Assets subtotal

$8,804,435

LIABILITIES

Money owed to husband’s mother

Husband

$494,651

NAB Loan #...68

Joint

$577,000

NAB Credit card #...48

Joint

$1,982

Liabilities subtotal

$1,073,633

Total (assets – liabilities)

$7,730,802

SUPERANNUATION

Member

Value

Superannuation Fund 1 (at 9/8/2022)

Husband

$267,529

Superannuation Fund 2 (at 7/8/2022)

Wife

$109,505

Superannuation total

$377,034

$377,074

SECTION 79(2)

Both parties seek an adjustment of property. The parties have cohabited for a period of approximately nine years. Throughout that period they have worked together in the farming partnership, and in doing so have acquired and improved their property interests. In the aftermath of the breakdown of their relationship, it is common ground that the husband and the wife will no longer have the joint use and enjoyment of their property. Having regard to those matters, I am satisfied that it is just and equitable to make orders adjusting those interests.
CONTRIBUTIONS
As noted earlier, at the commencement of the parties’ relationship the husband held an interest with his brother in the property at Town EE. Upon the death of his father, the husband acquired the family farming property at Town N.
The wife had no assets of significance at the commencement of cohabitation.
The central issue in the property dispute is the weight to be attributed to the contributions made by the husband as a result of the property held by him at the commencement of the cohabitation, and received by him during the marriage upon the settlement of his father’s estate.
The husband commenced working in partnership on the farm with his parents and brother in about 1990. In 1991 the husband and his brother purchased the Town EE property and the water rights attached to it.
The parties engaged a single expert valuer, Mr FF to prepare valuation reports of the two farming properties. Those valuation reports included the current value and also retrospective valuations as at 2010 when the parties married, 2012 when the husband and the wife took over the operation of the farm and 2015 when the husband acquired the Town N property pursuant to a ‘Deed of Family Arrangement’.
At the commencement of the parties’ cohabitation the husband operated the farming partnership with his mother. From 2012 the husband’s mother ceased to have involvement in the farming partnership and thereafter it was operated by the husband and wife trading as Mr & Ms Holst.
In 2015 the husband entered into a Deed of Family Arrangement with his mother and siblings. Under that deed, the husband received the Town N property, water shares, livestock and plant and equipment; the husband also assumed responsibility for a loan from his mother in the sum of $494,651. Under the terms of that loan, interest is payable at 7 percent per annum, being a payment of $34,625 per annum.
As to the Town N property, Mr FF assesses its value as follows:-
·At commencement of cohabitation in 2010               $860,000;
·At commencement of partnership in 2012                $790,000;
·Deed of Family Arrangement in 2015  $1,150,000;
·Current value  $2,000,000.
In relation to the Town EE property, Mr FF assesses its value at those dates as follows:-
·2010   $880,000;
·2012   $960,000;
·2015   $1,090,000;
·Current value  $1,450,000.
There was no challenge to the evidence of Mr FF as to the current or retrospective values of those properties. Accordingly, I accept that evidence.
Having regard to the unchallenged evidence of Mr FF, at the commencement of the parties’ cohabitation in 2010, the husband’s one-half interest in the Town EE property had a value of approximately $440,000.
In addition, under the Deed of Family Arrangement entered into by the husband and his family members in 2015, he acquired the property at Town N, which then had a value of approximately $1,150,000, subject to the debt to his mother in the sum of approximately $494,651, giving him equity in that property of approximately $655,000. In addition, the husband retained the Town EE property, which then had a value of $1,090,000.
Accordingly, the assets brought into the marriage by the husband or acquired by him pursuant to the Deed of Arrangement were valued at approximately $1,745,000.00 as at 2015.
In the context of this case, where the parties’ interests are now valued at approximately $7,700,000, and largely comprise of assets either brought into the relationship by the husband or acquired by him from his family during the relationship, on any view, the husband’s contributions are significant.
It is common ground that the parties effected a number of improvements to both the Town EE and Town N properties during the course of the relationship.
In 2015 the husband and the wife borrowed approximately $800,000 for the purposes of upgrading the facility at the Town N property. The parties expended approximately $1 million on those improvements. It is common ground that both the husband and the wife were actively involved in the planning and implementation of the redevelopment of the facility on the property.
In addition, over the course of the parties’ cohabitation improvements were effected to the irrigation systems at Town N and Town EE and the fencing was updated.
It is also common ground that the wife was actively involved in the farming operation. The wife’s evidence is that she contributed her professional skills to the farming enterprise.
The husband sensibly concedes the contributions made by the wife; his evidence is that whilst the wife assisted with those tasks, he attended to the ‘mechanic’ type jobs on the farm. The evidence of both parties, which I accept, is that they worked together on the farm.
The wife’s evidence is that in addition to her assistance on the farm, she attended to meal preparation and management of the household, cleaning the house and managing payment of the farm and household accounts.
There is little dispute between the parties that both worked hard in the farming operation, and that both contributed to the best of their abilities to its success. It is also common ground between the parties that upon X’s birth, the wife assumed principal responsibility for attending to her day-to-day needs. It is common ground between the parties that X commenced attending day-care in 2018 and on those days the wife assisted with farm work.
It was submitted on behalf of the husband that significant weight ought be attributed to the husband for the contributions made by him at the commencement of the relationship (due to his holding of land and water rights at Town EE) and also in relation to his acquisition of the Town N land and water rights from his family in 2015. It was submitted on his behalf that to look at the retrospective valuations of those properties alone does not fully convey their significance.

Whilst the husband acknowledged that the parties have effected improvements to the properties, he submitted that those improvements have had little impact on their value; rather, the increase in the value of the properties is largely attributable to the substantial increase in the land values as detailed in Mr FF’s valuation report. For example, the appreciation in land value over the course of the relationship is approximately $1.7 million. It was submitted on behalf of the husband that the fact the parties have had the benefit of those increases in land value is attributable to the direct financial contributions made by the husband through his ownership of the two properties, and should be reflected in the contribution assessment.
In support of that proposition, the husband relied upon the decision of the Full Court in Williams & Williams [2007] FamCA 313. At [26] the Full Court stated:-
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commence of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
Senior Counsel for the wife cautioned against unreservedly accepting the submissions on behalf of the husband in relation to the treatment of his direct financial contributions. In support of that position, he relied upon the decision of the Full Court in Jabour & Jabour [2019] FamCAFC 78 at [43] where it stated:-
We consider that the decisions in Baker and Bilous indicated that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (Williams at [26]).
In light of that statement, Senior Counsel for the wife urged the Court to have careful regard to the many contributions made by the wife during the marriage, albeit acknowledging that the husband’s direct financial contributions are significant. It is on that basis that the wife contended that the adjustment in favour of the husband should be 65/35.
There can be no question that the husband’s contributions are significant. The two farming properties, Town EE and Town N, are available to the parties as a result of direct financial contributions made by the husband to the marriage.
Nonetheless, the husband concedes the significant contributions made by the wife over the course of the relationship. Indeed, it is acknowledged by the husband that initially upon his father’s death it had been his family’s intention to sell the farming business, and the parties had then planned to relocate to Melbourne to work. The husband acknowledges that it was the decision of he and the wife to remain on the farm that resulted in the transfer of the farming assets to him.[18] Upon determining to remain on the farm, the husband and the wife operated the farm in partnership; together they borrowed significant sums to effect improvements to the properties, and each contributed to that enterprise to the best of their abilities.
[18] Trial affidavit of Mr Holst filed 16 April 2021, [71] & [79]
Senior Counsel for the husband also relied upon the decision of the Full Court in Horrigan & Horrigan [2020] FamCAFC 25. It was submitted on behalf of the husband that that case is relevant as it too related to farming properties and a relationship of similar duration to that of the parties in this case, noting that the case is distinguishable insofar as the wife in Horrigan brought a property into the relationship, albeit it was of modest value compared to the farming properties introduced to the relationship by the husband. In that matter, the Full Court found that the wife’s initial contributions represented approximately 11.5% of the parties’ assets at the commencement of the cohabitation. The Trial Judge found the parties’ contributions during the relationship, which spanned a period of approximately eight years was equal. The Trial Judge assessed the parties’ contributions as 85% by the husband and 15% by the wife.
Ultimately, the Full Court upheld the assessment by the Trial Judge, confirming that he had appropriately considered the myriad of financial and non-financial contributions made by both parties during the course of the relationship. The Full Court also distinguished the decision in Jabour, noting that that case relates to a long relationship of over 24 years whilst the considerations in Horrigan relate to a relationship that subsisted for a little less than eight years.
I have had regard to the above authorities in assessing the contributions of the husband and the wife in this matter. However, each matter must be determined having regard to its own unique set of facts.
I am well satisfied that the contribution made by the husband of the farming properties at Town EE and Town N is substantial. In addition to the properties, the husband also brought into the relationship water rights, plant and equipment and livestock attached to those properties.
I am also satisfied that the parties each worked to the best of their abilities in the improvement and development of the farming enterprise. Early in the relationship the parties determined that they would continue with the farming operation and worked in partnership to that end. The wife brought to the relationship a unique skill set by virtue of her qualifications, which provided real and meaningful assistance in the farming operation. That much is conceded by the husband. The parties borrowed significant funds to improve the farm. They also implemented improvements to the irrigation systems on the farms during the relationship.
Throughout the hearing, the husband urged the Court to have regard to the importance of the irrigation systems in the successful operation of the farms. I accept that evidence.
It is common ground between the parties that the wife was primarily responsible for the day‑to‑day care of the parties’ only child, X. It is also common ground that the wife played a significant role in the operation of the parties’ household.
Having regard to the above matters, I am satisfied that save for the introduction by the husband of the farming properties, water rights, livestock and plant and equipment, the contributions made by both parties over the course of their relationship were equal.
However, in circumstances where the bulk of the parties’ assets are directly attributable to the husband’s contributions, such contributions attract significant weight. It is a contribution of capital and it also provided a home for the family and income to the parties.
Great care must be taken in having regard to earlier decided cases; each turns on its own facts. The discretion of the Trial Judge pursuant to section 79 is broad.
Taking into account the myriad of contributions made by the parties in their respective spheres during the relationship as identified above, coupled with the significant direct contributions of the husband, in my view contributions ought be assessed in the proportion of 76.5% to the husband and 23.5% to the wife. That is a 53% adjustment in the husband’s favour, which in dollar terms represents approximately $4,096,000 (based on a pool of approximately $7,730,000). That adjustment recognises the contributions of the husband, both in terms of the properties at Town EE and Town N, the water rights attached to those properties, the plant and equipment and the livestock.
SECTION 75(2) FACTORS
The husband is aged 57 years. He will continue to operate the farm following the conclusion of the proceedings. The husband receives significant benefits from the farming operation, including provision of housing and living expenses. The farming enterprise has also supported the wife and the child since the parties’ separation. This is confirmed in the husband’s Financial Statement filed 9 December 2020 where he does not disclose his income or personal expenditure, but confirms at Part F that all living expenses are paid from the farming partnership.
The wife is aged 42 years. She does not work and at this time is reliant upon the husband for her financial support.
The wife has qualifications which are recognised in Country B. Her evidence, which I accept, is that upon her return to Country B she anticipates securing employment utilising her qualifications. It was submitted on behalf of the wife that she is confident of securing well‑paid employment upon her return.
The wife has the primary care of the parties’ child, X, who is aged seven years. The wife will continue to be principally responsible for X’s support at the conclusion of these proceedings.
It is common ground between the parties that the wife will be paid a cash settlement by way of adjustment of the property interests. In order for that to occur the husband will need to borrow funds or realise assets, such as the sale of water rights or land in order to meet the wife’s entitlements.
The husband pays modest child support to the wife as assessed, currently approximately $27 per week.
The husband’s evidence is that it will be necessary for him to undertake significant upgrades of the irrigation system at Town n in the future. The husband’s evidence, which I accept, is that the existing irrigation systems are aging and require greater ongoing maintenance; in the long term, for the farm to remain viable there will necessarily be upgrades required to the irrigation systems, particularly at Town N. The husband has obtained estimates as to the costs of such upgrades from Mr V, who filed an affidavit in relation to those matters on 17 August 2022. Mr V’s estimate as to the cost of replacing and upgrading the irrigation system is approximately $255,000.
It was submitted on behalf of the husband, and I accept, that those future repairs are matters that ought be taken into account pursuant to s 75(2)(o) of the Act.
The husband also submitted that regard ought be had to the evidence of Mr U whose affidavit was filed 16 February 2022. Mr U is a consultant who has provided a report in relation to the profitability of the farming operation and the husband’s capacity to service debt.
In his report, Mr U assessed the parties’ farm as a ‘well balanced farm with appropriate land and water resources to provide the feed supply for a 250 [livestock] herd and associated replacement stock’.[19] Further, Mr U confirmed that the farm is ‘a sound farming operation’ and that its business performance is ‘somewhere between average and top 25%’ when compared to other farms.[20]
[19] Affidavit of Mr U filed 16 February 2022, p 14.
[20] Ibid.
Mr U observed that the farm has ‘a moderate amount of debt for a farm of [its] size’.[21] He also confirmed that the farm is capable of servicing additional debt.[22] Mr U confirmed that the land at Town EE could be sold in order to meet the wife’s entitlement. That land is used for grazing and the provision of conserved fodder for the livestock. Mr U considered that if the land were sold, the farm may be exposed to high fodder and agistment prices, or alternatively may need to scale back the size of the livestock herd which will impact the farm’s profitability.
[21] Ibid p 16.
[22] Ibid p 17.
Mr U also considered the potential impacts of the sale of water rights attached to the farming properties. He noted the volatility of the temporary water market to which the farm may be exposed in the event of a sale of water rights. Mr U reported that the farm currently holds over 650 ML of high reliability water (albeit it is common ground between the parties that the husband holds an additional more than 25 ML of high reliability water), and that the farm uses between 400 and 800 ML of water per annum, with any additional requirements purchased on the temporary water market.[23]
[23] Ibid p 19.
In his conclusions, Mr U notes that were the farm to sell more than 150 ML of high reliability water, or the Town EE land, the viability of the farm may be at risk.[24]
[24] Ibid p 21.
Mr U expressed the view that the best option for the continuation of the farming enterprise would be to meet the wife’s entitlements by taking on additional debt, as opposed to selling water rights or land and suggests that the business ‘will struggle to maintain financial viability’ if the additional debt exceeds $1.2 million.[25]
[25] Ibid.
The difficulty with Mr U’s evidence is that it is based on speculation in relation to a number of factors including seasonal conditions, cost of production and produce prices. During cross‑examination, Mr U conceded that produce prices had continued to increase since his report was prepared, and indeed stated that since 1 July 2022 had been higher than the average produce price for the past four years. Mr U’s report is dated 30 August 2021 and was almost a year old at the time of trial. As was evident, from his oral evidence, there was no update from him as to the prevailing conditions at the time of trial; nonetheless he conceded that there had been marked increases in produce prices during the intervening periods.
Similarly, Mr U was pessimistic as to the farms viability were more than 150 ML of water sold, but provided no opinion were a lesser quantity of water to be sold. Based on the valuation of water rights at the time of trial, I note that 100 ML of water is valued at approximately $490,000.
It was submitted on behalf of the husband that the evidence of Mr U is a significant factor in considering any s 75(2) adjustment. Having regard to the above matters, I am satisfied that whilst that evidence is relevant in the assessment of those issues and the determination of what is just and equitable, it must be treated with caution.
I accept that in order to satisfy the wife’s entitlements, it will be necessary for the husband to acquire additional debt or realise assets.
The reality is that the husband has been in a position to meet his own living expenses and those of the wife since the parties’ separation. In addition, over the course of these proceedings the partnership has funded both parties’ legal expenses and a total of $665,000 has been provided to the parties from the partnership for that purpose.
The husband contends that there ought be an adjustment of between zero to five per cent to the wife to take into account the above considerations pursuant to s 75(2), whilst the wife seeks an adjustment of five per cent on account of those matters. An adjustment of five per cent is approximately $386,000.
Having regard to those matters, I am satisfied that there should be a s 75(2) adjustment in favour of the wife to take into account the fact that she will have the primary care of the parties’ only child, and the husband will have the benefit of retaining the farming enterprise and the benefits that flow from it.
I am satisfied in all of the circumstances that an adjustment of three per cent in favour of the wife is appropriate. Based on a pool valued at approximately $7,730,000 the value of that adjustment is approximately $231,900.
CONCLUSION
Taking into account the matters within s 79(4) of the Act, I am satisfied that there should be a division of assets on the basis that the husband receive 73.5% and the wife receive 26.5% of the pool. Based on a pool of $7,730,802 that results in an adjustment in favour of the wife in the sum of $2,048,662. The wife has had a partial settlement of $355,000. Deducting that amount from her entitlements will result in a requirement that the husband pay to her an additional sum of $1,693,662.
The husband will otherwise retain the properties at Town N and Town EE, the water entitlements attached to those properties, plant and equipment, livestock and the wife’s motor vehicle, and the amounts expended on his lawyers, valued at $7,375,802, and he will be responsible for the payment to the wife, leaving him with assets valued at $5,682,140.
Having regard to the circumstances of the case, I consider the orders I propose to make provide a just and equitable outcome as between the husband and the wife.

I certify that the preceding three hundred and thirty-nine (339) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.
Associate:
Dated: 8 September 2023

File number(s):	MLC 11822 of 2019
Judgment of:	JOHNS J
Date of judgment:	8 September 2023
Catchwords:	FAMILY LAW – CHILDREN – best interests – international relocation – where the applicant is the primary carer of the child – where the applicant is seeking that the child be permitted to relocate with her to Country B –– in the alternative the mother seeks to relocate with the child to Suburb C in the event relocation to Country B is refused – where the father opposes the mother’s application to relocate and seeks that the mother be restrained from relocating the child’s residence from the Region D. FAMILY LAW – PROPERTY – final property settlement – where the respondent’s initial contributions were greater than the applicant’s – where both parties made contributions during marriage – where the respondent made substantial direct contributions to the asset pool – where the respondent brought in two farming properties into the asset pool – where the applicant is the primary carer for the child of the marriage – s 75(2) adjustment in favour of applicant
Legislation:	Evidence Act 1995 (Cth) s 140(2) Family Law Act 1975 (Cth) Part VIII, ss 60B(1) & (2), 60CA, 60CC(2), (2A) & (3), 61DA, 64B, 65C, 65DAA, 75(2), 79(1), (2) & (4)
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592 Donnell & Dovey (2010) FLC 93-428 Horrigan & Horrigan [2020] FamCAFC 25 Jabour & Jabour [2019] FamCAFC 78 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 Mulvany & Lane (2009) FLC 93-404 Omacini & Omacini (2005) FLC 93-218 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Stanford & Stanford (2012) 247 CLR 108 U v U (2002) 211 CLR 238 Vass & Vass (2015) 53 Fam LR 373 Williams & Williams [2007] FamCA 313 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	339
Date of last submission/s:	26 August 2022
Date of hearing:	22-26 August 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Walmsley KC
Solicitor for the Applicant:	Melbourne Family Lawyers
Counsel for the Respondent:	Mr Puckey KC
Solicitor for the Respondent:	SMR Legal

MLC 11822 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HOLST Applicant
AND:	MR HOLST Respondent

ORDER MADE BY:	JOHNS J
DATE OF ORDER:	8 SEPTEMBER 2023

Description	Ownership	Applicant’s Value	Respondent’s Value
ASSETS
1. Partial settlements/Legal fees	Husband	Ignore[$310,000]	$310,000
2. Partial settlements/Legal fees	Wife	Ignore[$335,000]	$441,000
3. Livestock	Joint	Agreed	$706,400
4. Real property at Town N over 250 acres	Husband	Agreed	$2,000,000
5. Real property at Town EE over 600 acres	Husband	Agreed	$1,450,000
6. Water shares - over 650ML of HR (over 90ML joint names and over 560ML Husband)	Husband/Joint	Agreed	$3,218,810
7. Water shares - over 300ML of LR	Husband	Agreed	$205,920
8. Water shares - over 25ML of HR	Husband	Agreed	$145,530
9. Water shares - over 15ML of LR	Husband	Agreed	$10,620
10. Plant and equipment	Joint	Agreed	$372,155
11. Wife’s vehicle	Wife	Agreed	$30,000
Assets Subtotal		$8,139,435	$8,890,435
LIABILITIES
12. Money owned to Husband’s mother	Husband	Agreed	$494,651
13. NAB Loan #...68	Joint	Agreed	$577,000
14. NAB credit card #...48	Joint	Agreed	$1,982
15. Automated irrigation upgrade	Husband	Ignore	$268,889
Liabilities Subtotal		$1,073,633	$1,342,522
TOTAL (assets – liabilities)		$7,065,802	$7,547,913
SUPERANNUATION
Name of Fund	Member	Applicant’s Value	Respondent’s Value
Superannuation Fund 1 (at 9/8/2022)	Husband	Agreed	$267,529
Superannuation Fund 2 (at 7/8/2022)	Wife	Agreed	$109,505
Superannuation subtotal		$	$377,034

ASSETS	OWNERSHIP	VALUE
Partial settlements/Legal fees	Husband	$310,000
Partial settlements /Legal fees	Wife	$355,000
Livestock	Joint	$706,400
Real Property at Town N over 250 acres	Husband	$2,000,000
Real property at Town EE over 600 acres	Husband	$1,450,000
Water shares – over 650ML of HR (over 90ML joint names and over 560ML Husband)	Husband/Joint	$3,218,810
Water shares – over 300ML of LR	Husband	$205,920
Water shares – over 25ML of HR	Husband	$145,530
Water shares – over 15ML of LR	Husband	$10,620
Plant and equipment	Joint	$372,155
Wife’s vehicle	Wife	$30,000
Assets subtotal	$8,804,435
LIABILITIES
Money owed to husband’s mother	Husband	$494,651
NAB Loan #...68	Joint	$577,000
NAB Credit card #...48	Joint	$1,982
Liabilities subtotal	$1,073,633
Total (assets – liabilities)	$7,730,802
SUPERANNUATION	Member	Value
Superannuation Fund 1 (at 9/8/2022)	Husband	$267,529
Superannuation Fund 2 (at 7/8/2022)	Wife	$109,505
Superannuation total	$377,034	$377,074