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: 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…
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- Holst & Holst [2023] FedCFamC1F 694
- Case
- [2023] FedCFamC1F 694
- Decision Date
CaseChat Overview and Summary
The parties to this matter, who were married in 2013, have separated on a final basis. The wife filed an Application for Final Orders seeking parenting orders in October 2019. The husband responded to the wife’s application and sought orders restraining the wife from relocating the child away from the City F/Town H area without his consent. The matter came before the court on several occasions over a two-year period and a final hearing took place over five days in August 2022. The court was required to determine the appropriate parenting orders, as well as the division of the parties' property. The court took into account the objects and principles of Part VII of the Family Law Act 1975 (Cth), and found that an adjustment of three percent in favour of the wife was appropriate. The court found that the wife should receive 26.5% of the pool of assets, which resulted in an adjustment in her favour of $2,048,662. The wife had already received a partial settlement of $355,000, and the court ordered that the husband pay her an additional sum of $1,693,662. The husband was to retain certain properties, water entitlements, plant and equipment, livestock, the wife’s motor vehicle, and the amounts expended on his lawyers. The court considered that the orders it proposed to make provided a just and equitable outcome as between the husband and the wife.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.PARENTINGLEGAL 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).
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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