Howell & Potter
[2025] FedCFamC2F 691
•28 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Howell & Potter [2025] FedCFamC2F 691
File number(s): NCC 3930 of 2022 Judgment of: JUDGE CARTY Date of judgment: 28 May 2025 Catchwords: FAMILY LAW – PARENTING – LIVE WITH -RELOCATION – Where the mother seeks an order to relocate the two children from City B to Melbourne – Where the mother will not move to Melbourne unless she is permitted to relocate the children – Where the father opposes the relocation – Where the parents agree that if they live in the same city the children will live in an equal time week about arrangement with each parent – Where there are no safety issues in the household of either parent – Where the children have additional needs due to their diagnoses – Where the children have meaningful relationships with both parents – Where the mother’s capacity to financially support herself and the children will be enhanced if she is permitted to relocate to Melbourne – Where the mother’s mental health and sense of wellbeing will be enhanced by emotional and practical support from her family in Melbourne – Where the mother’s parenting capacity will be enriched by moving to Melbourne – Where father and his partner and child are able to relocate to Melbourne – Order made permitting relocation of children to Melbourne.
ALLOCATION OF RESPONSIBILITY FOR DECISION MAKING – Parents agree that they will share decision making for major long-term issues relating to the children except long-term medical issues – Where the mother seeks sole decision making for long-term medical issues relating to the children – Where the children’s long term medical needs will be met if the mother has sole responsibility for decision-making about long-term medical issues relating to the children – Where it is necessary to eliminate opportunities for parental conflict and avoid delay in obtaining appropriate medical assistance for the children – Order made that mother will have sole decision making for all major long-term issues relating to the children.
FAMILY LAW – FINANCIAL – SPOUSAL SUPPORT – Mother seeks order for de facto spousal maintenance – Father opposes order – Where the Court is satisfied that the mother is currently unable to support herself adequately – Where the Court is satisfied that the father has the capacity to pay spouse maintenance – Order made for payment of periodic spouse maintenance for six months from the date of these Orders
Legislation: Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 60CE, 60CG, 61CA, 61D, 61DAA, 64B, 65AA, 65D, Part VII, 90SB, 90SD, 90SE, 90SF, Part VIII Cases cited: AIM v AIF (1999) 24 Fam LR 756
Atwill & Atwill (1981) 7 Fam LR 573
Babcock & Wadell [2018] FamCA 276
Bevan & Bevan (1993) 120 FLR 283
Blass & Blass [2022] FedCFamC1A 63
Bolitho & Cohen (2005) 33 Fam LR 471
Corelli & Beroni [2021] FedCFamC1F 125
In the Marriage of Murkin (1980) 5 Fam LR 782
U v U [2022] HCA 36; (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 272 Date of last submission/s: 24 October 2024 Date of hearing: 21, 22, 23 & 24 October 2024 Place: Newcastle Counsel for the Applicant: Mr Ellis Solicitor for the Applicant: Marshalls & Dent Lawyers Counsel for the Respondent: Ms Ticehurst Solicitor for the Respondent: Mullane & Lindsay ORDERS
NCC 3930 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HOWELL
Applicant
AND: MR POTTER
Respondent
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
28 MAY 2025
THE COURT ORDERS THAT:
Responsibility for decisions about major long-term issues other than medical issues
1.The parents will have joint responsibility for making decisions about major long-term issues other than medical issues in relation to the children X born in 2016 and Y born in 2017 (“the children”).
Responsibility for decisions about major long-term medical issues
2.The mother will have sole responsibility for making decisions about major long-term medical issues in relation to the children, including decisions about speech therapy and psychological therapy, and in the exercise of her sole decision-making responsibility, save in the case of an emergency, prior to making such decisions the mother must:
(a)Provide the father with details of the decision to be made and allow him seven (7) days to respond with his views.
(b)Consider the father’s views in relation to the proposed decision.
(c)Inform the father of the decision she has made within 48 hours of making the decision.
3.Communication between the parents for the purposes of Order 2 hereto will be by email.
Live with arrangements
4.The children will live with the mother.
5.The mother is permitted to relocate the residence of the children to Melbourne, Victoria.
6.The mother will establish and maintain the children’s residence within a 30km radius of the suburb of Suburb C, unless otherwise agreed in writing between the parents.
Spend time arrangements
When the parents are living in different cities and the children’s time with the father is to take place in Melbourne
7.Not less than 24 hours before the children spend time with the father pursuant to these Orders, the father will provide the mother with particulars of the address where the children will stay overnight with him.
8.Unless otherwise agreed between the parents, when the children spend time with the father overnight and they are required to attend school the next day, the father will accommodate the children overnight at a place which is no further away than a one-hour drive from the mother’s home. In all other circumstances changeover will occur at a place which is no further away than a one hour driving time from the mother’s residence.
Communication
9.Until the third anniversary of this Order, unless otherwise agreed in writing between the parents, each parent will do all things required to facilitate the children to have telephone communication with the parent with whom they are not then spending time or living each evening between 6.00pm and 6.30pm, and the parent who is not with the children at the relevant time will initiate the communication by calling the other parent’s mobile telephone number.
10.Commencing from the third anniversary of this Order, each parent will do all things required to facilitate the children to have telephone communication with the other parent:
(a)By Facetime, telephone or other electronic means as may be initiated by the other parent, each Monday, Wednesday and Friday between 6.00pm and 6.30pm, or as may otherwise be agreed in writing; and
(b)At all reasonable times and by such means including Facetime, telephone, text message or other electronic means as may be requested by the children.
THE COURT ORDERS BY CONSENT THAT:
11.The parents are not required to consult with each other when deciding about an issue relating to the children which is not a major long-term issue, while the children are in their respective care.
If the children live in Melbourne with the mother and the father lives in City B or interstate from the children
12.The children will spend time with the father at times to be agreed in writing between the parents and failing agreement:
(a)During the school terms as timetabled by the school which the children attend:
(i)In City B, for an extended weekend of up to four consecutive nights each month, in months that the children do not spend time with the father pursuant to order 12(a)(ii) or spend a week or more of school holiday time with the father pursuant to order 12(b):
A.On dates to be nominated by the father in writing no less than thirty (30) days prior to the time commencing; and
B.Where practicable to be nominated by the father to coincide with non-school days for the children and public holidays in City B and/or Melbourne.
(ii)In Melbourne, each alternate week on a fortnightly basis, with changeover to occur each Sunday at 5.00pm and, unless otherwise agreed in writing, PROVIDED THAT:
A.The father nominates the dates in writing no less than thirty (30) days prior to the time commencing; and
B.The time nominated by the father pursuant to order 12(a)(i) and 12(a)(ii) must not conflict with the children’s time with the mother for special occasions pursuant to Order 14 hereto.
(b)During the school term holidays, being the school holiday periods as timetabled by the school the children attend, for all but the last five days of each of the term holidays, commencing from the conclusion of school on the last day of term and concluding at 9.00am on the fifth penultimate day of the school term holidays.
(c)During the long school holidays, being the school holiday periods as timetabled by the school the children attend:
(i)In two week long block periods, with the father to have the first two weeks in even years and the mother to have the first two weeks in odd years and for the avoidance of doubt long school holiday period is taken to end at 5.00pm on the last Friday before the commencement of Term 1.
(ii)Commencing in the 2027/2028 school holidays, for one half of the long school holidays:
A.The second half of the holiday period in even numbered years, concluding at 5.00pm on the last Friday before the commencement of Term 1; and
B.The first half of the holiday period in odd numbered years, commencing from the conclusion of school on the last day of term.
If both parents live in the same city (Melbourne or City B)
13.If both parents live in the same city as the children, for example if the father relocates to live in Melbourne or the mother remains living in City B with the children, the children live with the parents at times to be agreed in writing and failing agreement, as follows:
(a)During the school term, the children live with the mother and spend time with the father in a fortnightly cycle as agreed between the parents, or in default of agreement in an equal care arrangement with changeover to occur each Sunday at 5.00pm or such lesser time as the father may nominate in writing.
(b)During the school holidays:
(i)For the term holidays, with the father for the first half and the mother for the second half in even years, and with the mother for the first half and the father for the second half in odd years; and
(ii)For the long summer holidays, in two-week blocks, with the father to have the first two weeks in even years and the mother to have the first two weeks in odd years.
Special Occasions
14.The children spend time with each parent for special occasions at times to be agreed and failing agreement, as follows:
(a)Notwithstanding Orders 12 and 13 hereto, the children will spend time with each parent at Christmas as agreed in writing and failing agreement:
(i)In even numbered years, with the mother from 3.00pm Christmas Eve until 4.00pm Christmas Day, and with the father from 4.00pm Christmas Day until 5.00pm Boxing Day; and
(ii)In odd numbered years, with the father from 3.00pm Christmas Eve until 4.00pm Christmas Day, and with the mother from 4.00pm Christmas Day until 5.00pm Boxing Day.
(b)On the children’s birthdays:
(i)The children shall spend time with the non-resident parent from 3pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of four hours as agreed, but failing agreement from 3.00pm to 7.00pm.
(c)On the mother’s birthday:
(i)With the mother for her birthday from 3pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of four hours as agreed, but failing agreement from 3.00pm until 7.00pm any order inconsistent with this order is suspended.
(d)On the father’s birthday
(i)With the father for his birthday from 3pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of four hours as agreed, but failing agreement from 3.00pm until 7.00pm any order inconsistent with this order is suspended.
(e)On Father’s Day:
(i)For Father’s Day weekend, from the conclusion of school on Friday, or if Friday is a non-school day from the conclusion of school on Thursday, until the commencement of school on Monday, or if Monday is a non-school day until the commencement of school on Tuesday; and
(f)On Mother’s Day:
(i)For Mother’s Day weekend with the mother, from the conclusion of school on Friday, or if Friday is a non-school day from the conclusion of school on Thursday, until the commencement of school on Monday, or if Monday is a non-school day, until the commencement of school on Tuesday.
15.Unless otherwise agreed in writing, if the children are living in Melbourne and the father is living in City B, the father must provide to the mother at least 30 days’ notice of his intention to spend time with the children for the special occasions set out in Order 14 hereto and:
(a)The time will take place in the city in which the children are living unless otherwise specified; and
(b)The mother is not permitted to travel with the children away from the children’s home city on the special occasions set out in Order 14, unless the father has failed to notify the mother of his intention to spend time with the children on the particular special occasion.
Changeover
Parents living in same city
16.If both parents are living in the same city, unless otherwise agreed between the parents in writing, all changeovers will occur as follows:
(a)On school days, at the children’s school; and
(b)On non-school days, the father will return the children to the mother’s residence at the commencement of her time with them and the mother will return the children to the father’s residence at the conclusion thereof.
Parents living in different cities
17.If both parents are living in different cities, unless otherwise specified in these Orders or agreed between the parents in writing:
(a)Where the children’s time with the father takes place in Melbourne:
(i)Changeover will take place at the children’s school where practicable.
(ii)On non-school days, the father or his agent will collect the children from the mother’s residence at the commencement of time and return them to her residence at the conclusion of time.
(iii)The father will meet the cost of his travel and accommodation for the children to spend time with him in Melbourne.
(iv)The father will notify the mother at least seven days prior to travel of his flight details and thereafter of any changes to scheduled flights and estimate times for changeover.
(b)Where the children’s time with the father takes place in City B:
(i)The mother will book and pay for the children’s economy air travel flight to City B upon receiving the father’s nomination pursuant to order 12(a)(i)A hereto and the father will book and pay for the children’s return flight to Melbourne.
(ii)The mother will notify the father at least fourteen (14) days prior to travel of the children’s flight details and thereafter of any changes to scheduled flights and the father will notify the mother at least fourteen days prior to the return date of the children’s flight details and thereafter of any changes to scheduled flights.
(iii)The mother or her agent will accompany the children on the arriving leg of the travel between Melbourne and City B, at the mother’s expense.
(iv)The father or his agent will accompany the children on the returning leg of the travel between City B and Melbourne at the father’s expense.
(v)The children are permitted to fly unaccompanied upon Y attaining the age of 12 years, or such other age as the parents may agree in writing.
(vi)Changeover in City B will take place at City B airport and changeover in Melbourne will take place at Tullamarine airport.
Parental communication and authorities
18.Unless otherwise agreed in writing, the mother and father will communicate with one another in relation to the children by email, save for when urgent communication is required which will occur by text message, and in the case of an emergency by telephone.
19.If the children are living in Victoria with the mother, the mother will send to the father a written ‘handover’ message by email on a monthly basis, which provides a summary of relevant information with respect to the children, under the following headings:
(a)Activities.
(b)Schooling.
(c)Social and friendship issues.
(d)Medical/psychological needs.
(e)Behaviour.
20.The parents must keep each other informed of their residential address, preferred email address and mobile telephone number, and keep the other parent advised of any proposed changes to the above details in writing including by email or text message within seven (7) days of any proposed changes.
Medical matters
21.The mother and the father:
(a)Must forthwith provide the other parent with a copy of any report or record provided to them by a medical, dental or other health professional attended by the children.
(b)Have leave to provide a copy of these Orders to any medical, dental or other health professional, including speech therapists, attended by the children.
(c)Are authorised to receive from the children’s medical practitioners (including speech therapists, counsellors and psychologists) information about each child’s medical condition, treatment, and a copy of any medical record and reports.
(d)Will inform the other parent of any medication prescribed for the children from time to time and provide the appropriate instructions for its administration.
22.In the event that either of the children fall sick or become injured (save and except for sustaining minor injuries) while in the care of a parent, that parent:
(a)Must notify the other parent as soon as practicable of the illness or injury.
(b)In the case of emergency or hospitalisation:
(i)Must notify the other parent as soon as practicable via telephone and if the other parent does not answer their phone, the caring parent must do all things practicable to reach the other parent including leaving a voicemail message; and
(ii)If medical treatment has been obtained after an emergency or hospitalisation, must notify the other parent as soon as practicable of the treatment and provide the contact details of any medical professional that has treated the child(ren).
23.If the children are living in Melbourne and the father is living in City B, both parents will facilitate remote medical appointments for the children, when appropriate.
Education and extracurricular activities
24.The mother and the father are each hereby authorised to:
(i)Receive information, notices, reports, class lists, and family contact details and photographs directly from any school and/or provider of before and after school care and extracurricular and sporting activities attended by the children.
(ii)Attend all events parents are invited to and permitted to attend, including but not limited to parent-teacher interviews, open days, concerts, and like events.
(iii)Provide a copy of these Orders to any school and/or provider of before and after school care and extracurricular activities or sporting activities attended by the children.
25.The mother and the father must keep each other informed at all times of any significant school, social or extracurricular events for the children which have been brought to their individual attention (and not available through the school’s shared parent communications) including but not limited to school concerts and awards nights, and will provide the other parent with information regarding such events as soon as practicable once it comes to hand.
26.If both parents are living in the same city, unless the prior written consent of the other parent is first obtained, the parents be and are hereby restrained from enrolling the children in:
(a)Any new extracurricular activities or schedule.
(b)Any one-off activities if the activity interferes with the other parents’ time with the children or if the activity occurs within school hours.
27.Each parent is authorised to attend the children’s first and last day of each new school year.
Travel
28.In the event the mother or the father plan to travel interstate with the children, save for any regular travel between City B and Melbourne pursuant to these Orders, unless otherwise agreed in writing, no less than a week prior to the travel:
(a)The parent intending to travel with the children must advise the other parent in writing of their intended travel plans as soon as possible once those plans are known but no less than seven (7) days prior to travel; and
(b)No less than five (5) days prior to travel, the parent travelling with the children must provide the other parent with details for the children’s travel, including precise dates of travel and contact details for the duration of their travel along with a copy of the airline tickets/flight details, travel itinerary and accommodation details, and must forthwith inform the other parent of any changes to those details.
29.Pursuant to section 65Y of the Family Law Act1975 the children are permitted to travel internationally with each parent, when the children are in the care of that parent pursuant to these Orders, and unless otherwise agreed in writing subject to the following conditions:
(a)The children travel only to countries in respect of which:
(i)The Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia; and
(ii)The Australia Department of Foreign Affairs and Trade Smart Traveller (or equivalent government department) travel advice is “Level 2 – exercise a high degree of caution” or lower.
(b)The parent proposing to take the children overseas, (“the travelling parent”), must give the other parent 60 days written notice of their intention to do so.
(c)Not less than 30 days prior to the proposed day for leaving the Commonwealth of Australia the travelling parent must provide to the other parent in writing:
(i)Details of the departure date and departure location, date of arrival, and return date, including details of flights, including the airline name, flight number, and the countries and all other flights to which they propose the children will travel.
(ii)An itinerary for the journey including telephone contact numbers and all addresses the travelling parent, and the children stay at while they are overseas, including the name of all persons whom the children stay with while overseas.
(d)The travelling parent must facilitate communication for the children with the other parent at all reasonable times in accordance with Order 9 or Order 10 hereto as applicable.
30.Each parent will sign all documents necessary to apply for a passport for each child or to renew or replace a child’s passport (such renewal to be applied for not less than seven months before expiry), within seven (7) days of a written request by the other parent to sign any document necessary for the issue of children’s passport.
31.The parents will each hold one of the children’s passports (the father will hold X’s passport and the mother will hold Y’s passport unless otherwise agreed), subject to the holder of the passport delivering to the other parent the child’s passport at least twenty-one (21) days prior to any planned departure date for international travel by the other parent.
32.The parents shall each return the children’s passports to the usual holder within seven (7) days of return from international travel with the children.
Non-Denigration Order
33.Pursuant to section 68B of the Family Law Act1975, the parties are restrained, and an injunction is granted restraining them from:
(a)Making negative, derogatory or disparaging comments denigrating or criticising the other parent or members of the parent’s household in the presence or hearing of the children or on social media, and from allowing or permitting any other person to do so; and
(b)Discussing the Court proceedings or any issues in relation to each other or members of the other parent’s families in the presence or hearing of the children and from allowing or permitting any other person to do so.
THE COURT NOTES THAT:
A. The parents agree that each parent will pay one half of all costs associated with obtaining, renewing, or replacing the children’s passports.
AND THE COURT ORDERS THAT:
Spousal maintenance
34.Pursuant to s.90SE of the Family Law Act 1975 the father will pay to the mother by way of periodic spouse maintenance the sum of $389.00 each week continuing for a period of six (6 months) from the date of these Orders, and payment is to be made:
(a)On Monday each week.
(b)By electronic transfer to bank account nominated by the mother in writing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
These are parenting and spousal maintenance proceedings which are to be determined under the Family Law Act 1975 (Cth) (“the Act”).
The applicant mother Ms Howell (“the mother”) seeks a final parenting order to permit her to relocate the two children of the relationship from City B to Melbourne. The children are 8 years and 7 years old respectively. The mother will not move to Melbourne unless she is permitted to relocate with the children.
The respondent father Mr Potter (“the father”) opposes the mother’s application to relocate the children to Melbourne. He seeks to maintain the current equal time arrangement whereby the children live week about with each parent in City B, pursuant to interim parenting orders made by consent on 24 March 2023.
The mother seeks an order that the father pay her the sum of $500 per week for the next two years, by way of periodic de facto spousal maintenance.
For the reasons which follow, I am satisfied that it is in the best interests of the children to make an order that permits the mother to relocate the residence of the children to Melbourne. I have found that the mother’s capacity to provide for the children’s needs will be enriched if she can move to Melbourne with the children, and that the children will benefit by such enriched capacity. I am satisfied that the mother values the children’s relationships with the father, and that both parents will encourage and facilitate the children’s relationships with the other parent.
I am also satisfied that the mother has demonstrated that she has a need for spouse support while living in City B with the children, and I am satisfied that the father has capacity to contribute to the mother’s support. The mother’s capacity to work and to earn an adequate income will be enhanced when she has moved to Melbourne, settled herself and the children into Melbourne and finds employment. I find that it is just and equitable in the circumstances of this case to make an order that for a period of six months from the date of these Orders the father will pay the sum of $389 per week to the mother for de facto spousal maintenance.
BACKGROUND
In this background, statements of fact are to be construed as findings, unless otherwise stated.
The mother is 36 years old. She works part-time in Sydney, under contract in the entertainment industry. The mother lives in rental accommodation in City B and travels to Sydney each alternate week to work when the children are not living with her. The mother’s extended family live in Melbourne.
The father is 40 years old. He works fulltime as a professional in primary industry in Region D of New South Wales. The father lives in rental accommodation in City B, with his partner Ms E and their son F who was born in 2023. Ms E currently works part-time as a customer service officer.
The parents met in Brisbane in 2011 and commenced living together in February 2013 in New South Wales. The parents were not married. Their relationship finally broke down on 12 June 2022.There are two children of the relationship:
(a)X born in 2016, 8 years old at the date of hearing; and
(b)Y born in 2017, currently 7 years old.
Currently, the children live in an equal time week about shared care arrangement with each parent in City B. The children attend G School, where the older child was in Grade 2 in 2024, and the younger child was in Grade 1. Both children have diagnoses which require additional supports and therapies, discussed further in these Reasons. Otherwise, the children are healthy and active, and they both enjoy extracurricular sporting activities.
During the parents’ relationship, the family relocated to several different rural and regional areas, where the father worked long hours in primary industry. In May 2022, while the father was working at Town H and the family were living nearby at Town J, the father accepted employment in City B, commencing from July 2022.
On 10 June 2022, the father submitted an enrolment form for the older child at G School in Suburb K, City B. He did not copy the mother into his communication with the school.[1] On 12 June 2022, during a telephone call with the mother, the father told her that he did not love her anymore and did not want to be in a relationship with her. By this time the plan for the family to move to City B was well advanced.
[1] Exhibit M1
In July 2022 the family moved to City B, where the parents lived separately and apart under the one roof in the home of the paternal grandparents. The father commenced his new job near City B and withdrew his financial support for the mother. The mother struggled financially, and with no maternal family support or friends in City B.
In September 2022 the father re-partnered with his former work colleague Ms E, who moved from Town L to City B.
In late October 2022 the mother commenced fulltime work in Sydney. The mother lived in subsidised accommodation during the week in Sydney and returned to City B on weekends to care for the children in a ‘co-nesting’ style arrangement. The parents agreed that if the mother could obtain independent housing in City B the children would live in a week about shared care arrangement with each parent.
On 16 November 2022 the mother informed the father that she wanted to relocate to Victoria with the children, and on 21 December 2022 the mother filed an application initiating this proceeding.
On 12 January 2023 the parents again discussed a week about shared care arrangement for the children. The mother’s plan was to work each alternate week in Sydney and return to City B to care for the children during the other week. The father told the mother that the arrangement would have to go through the lawyers. In late January 2023, after multiple applications, the mother obtained independent rental accommodation in City B. The father reneged on his agreement to implement the equal time arrangement and insisted that the children spend time with the mother each alternate weekend. The children continued to communicate with the mother by Facetime every evening and spent time with the mother from Friday after school until Monday before school each alternate weekend.
On 2 February 2023 there was an Order made for a Child Impact Report to be prepared. Court Child Expert Ms M prepared the Report which is dated 3 March 2023. Ms M observed that the children were very relaxed and comfortable with both parents, and with the maternal grandmother who had accompanied the mother to the interview and observation session. Ms M observed no overt hostility between the parents and the children were not perturbed being in the same area with both parents. [2]
[2] Ibid [28]
On 24 March 2023 following a defended interim hearing, an Order was made for the children to live with each parent in an equal time week about arrangement, with changeover each Sunday.
On 3 April 2023 interim financial orders were made by consent, whereby the mother would receive $65,000 and the father $40,000 from the proceeds of sale of a jointly owned real property at Town L, characterised as a partial property settlement. The loan for Motor Vehicle 1 was to be paid out, and the vehicle transferred to the mother who was required to account for any proceeds of sale of the said vehicle. The father was ordered to pay the mother $500 per week by way of interim spousal maintenance.
On 27 April 2023 the parents agreed to appoint Ms N, Psychologist and Family Consultant, as Single Expert to prepare a Family Report. The Family Report is dated 6 August 2023 and is in evidence in this proceeding.
In June 2023 Ms E moved in with the father. In June 2023 the children told the mother that Ms E was expecting a baby. Later in 2023 the children’s paternal half-sibling F was born. At the trial the father and Ms E expected to marry in 2024.
On 11 December 2023, by way of a further partial property settlement the mother received $5,000 from the proceeds of sale of the Town L property, to cover the costs of a surgical procedure.
THE HEARING
The hearing of the parenting and property dispute proceeded over the course of four days on 21, 22, 23 and 24 October 2024.
Mr Ellis of Counsel appeared for the applicant mother.
Ms Ticehurst of Counsel appeared for the respondent father.
The Court made Final Property Orders by consent on the final day of the hearing. On the mother’s case the net pool of property, including addbacks and superannuation has a value of $814,580. On the father’s case the net pool has a value of $757,631.[3] In the final division, the mother received property with a net value of $453,021, which in percentage terms equates to just under 56 % of the net pool on her figures. The father received property with a net value of $304,610 which in percentage terms equates to just over 40% of the net pool on his figures. The only financial issue which remains in dispute is the spouse support issue.
[3] Exhibit A
On 24 October 2024 the Court made further interim parenting Orders by consent on a without prejudice basis, which require the parents to enrol the children to commence at any school either proposes in Melbourne in Term 1, 2025, and to arrange for the children to attend upon any medical practitioner either parent proposes in Melbourne, if the children are living in Melbourne. Nothing in the interim order permits a child to attend a school or to attend upon a medical practitioner without the consent of both parents.
On 24 October 2024 the matter was adjourned for delivery of reserved Judgment in relation to parenting issues, and the de facto spousal maintenance issue.
Documents
In support of her case the mother relies upon:
(a)Her Outline of Case Document (Final Hearing) filed on 15 October 2024.
(b)Further Amended Initiating Application filled on 24 September 2024.
(c)Her Affidavit filed on 24 September 2024.
(d)Her Financial Statement filed on 24 September 2024.
(e)Affidavit of Ms NN filed on 24 September 2024.
(f)Affidavit of Ms P filed on 24 September 2024.
(g)Affidavit of Ms Q filed on 24 September 2024.
(h)Affidavit of Ms R filed on 24 September 2024.
(i)Child Impact Report prepared by Court Child Expert Ms M dated 3 March 2023 (“the Child Impact Report”).
(j)Single Expert Family Report prepared by Ms N dated 6 August 2023 (“the Single Expert Report”).
(k)Exhibits M1 – M22 inclusive and Joint Exhibits A, B and C.
In support of his case the father relies upon:
(a)His Case Outline Document filed on 18 October 2024, including Minute of Order Annexure A.
(b)Amended Response filed 16 May 2024.
(c)His Affidavit filed on 24 September 2024.
(d)His Financial Statement filed on 24 September 2024.
(e)Affidavit of Ms E filed on 24 September 2024.
(f)The Single Expert Report.
(g)Exhibits F1 – F9 inclusive and Joint Exhibits A, B and C.
THE PROPOSALS
Counsel for each party tendered a Joint Minute of Order marked Exhibit B, which sets out the final parenting orders sought by consent, and the parenting orders which remain in dispute.
Orders which can be made by consent
The Orders which the parents propose should be made by consent are very detailed. In essence, the parents agree that:
(i)The parents will have joint responsibility for making decisions about all major long-term issues relating to the children, apart from medical issues in respect of which the mother seeks sole decision making.
(ii)If the mother is not permitted to relocate the children from City B to Melbourne and she chooses to remain in City B, then the children will live in an equal time week about arrangement with each parent.
(iii)If the mother is permitted to relocate the children to Melbourne, and the father remains in City B the parents agree that the children will spend time with the father as agreed and failing agreement:
(a)In City B, for an extended weekend for up to four consecutive nights each month, unless the children are spending time with the father in Melbourne each alternate weekend with changeover each Sunday at 5.00pm; and
(b)More than half of each school holiday period.
(i)If the mother is permitted to relocate the children to Melbourne and the father moves to Melbourne, the children will spend equal time with each parent.
(ii)Orders relating to specific issues including special occasions, authorities, information exchange, international travel, passports and non-denigration.
The mother’s proposal
The mother seeks an order to permit her to relocate the residence of the children to Melbourne, Victoria.
The mother seeks sole decision-making responsibility for major long-term medical issues relating to the children, subject to her providing the father with the details about any relevant decision she intends to make, and an opportunity to respond with his views, and informing the father of her decision.
The mother seeks the following additional parenting orders which are not the subject of agreement:
(a)The children live with the mother within a 30km radius of the suburb of Suburb C, Victoria.
(b)The children be enrolled at S School in Suburb T commencing in Term 1, 2025 or such other school as may be agreed between the parents in writing.
(c)If the parents are living different cities, unless otherwise provided or agreed:
(i)The father will not less than 72 hours before the children’s time with him provide the mother with the particulars of the address where the children will stay with him and details of any other adult present.
(ii)The father will stay overnight with the children no further than 30 minutes’ drive from the mother’s residence on school days and, in all circumstances, changeover will occur not more than one hour drive from the mother’s residence on non-school days.
(d)Until the first anniversary of the Court’s Orders, the children have daily telephone communication with the parent with whom they are not otherwise spending time, and thereafter each parent facilitate the children communicating with the other parent at times they are in their care:
(i)By FaceTime, telephone or other electronic means as may be initiated by the other parent, each Monday, Wednesday and Friday between 6.00 pm and 6.30 pm, or as may otherwise be agreed in writing: and
(ii)At all reasonable times and by such means (Facetime, telephone, text message or other electronic means) as may be requested by the children.
(e)Unless otherwise agreed between the parents in writing:
(a)In the event the children live in Melbourne with the mother, each parent be restrained from moving outside of a 30km radius from Melbourne CBD.
(b)In the event both parents live in City B, each be restrained from moving the children outside of a 30km radius from City B CBD.
Finally, the mother seeks an order that the father pay her the sum of $500 each week for the next two years, by way of spousal maintenance.
The father’s proposal
The father opposes the mother’s application to relocate the children to Melbourne, Victoria.
The father proposes that the children continue to live in an equal time arrangement with each parent in the City B area. As noted already, the parents agree that if the mother remains in City B the children will live in the current week about equal time arrangement.
The father proposes an order that for their primary school years the children remain enrolled at G School at Suburb K.
If the mother lives in Melbourne without the children, the father proposes that the children live with him and spend time with the mother as agreed between the parents and failing agreement, on the third and seventh weekend of each school term from conclusion of school on Friday until 5.00pm Sunday, with changeover at Town U.
If the mother lives in Sydney, the father proposes that the children spend time with the mother each alternate weekend from conclusion of school on Friday until 5.00pm Sunday, with changeover at Town U.
The father seeks an order that the parents have joint decision-making responsibility for all major long-term issues relating to the children, and he opposes the mother’s application that she be allocated sole decision making for major long-term medical issues relating to the children.
The father opposes the order sought by the mother that the children be enrolled at S School in Suburb T. He proposes that no order be made in relation to the children’s schooling if they live in Melbourne.
The father opposes the order sought by the mother that would require him to provide her with particulars of any address where the children stay with him in Melbourne, and details of other adults.
The father seeks an order that the children have daily telephone communication with whichever parent they are not otherwise living or spending time.
Finally, the father opposes the mother’s application for de-facto spousal maintenance.
THE PARENTING DISPUTE
The primary issue to be determined is whether the mother will be permitted to relocate the children to live in Melbourne.
The other issues the Court is required to determine are:
(a)The allocation of responsibility for making decisions about major long term medical issues relating to the children.
(b)What Order if any ought to be made relating to the children’s schooling, including if the children move to Melbourne.
(c)What Order will be made relating to the children’s telephone and electronic communication with both parents.
(d)If the children live in Melbourne, when the children spend time with the father, must the father inform the mother of the address where the children will stay with him overnight, and provide details of any other adults in the household.
(e)If the children live in Melbourne, when the children spend time with the father overnight and are required to attend school the following day, must the father accommodate the children at a place which is no further than 30 minutes’ drive from the mother’s residence, and will changeover occur on non-school days at a place which is no more than one hours’ drive from the mother’s residence.
LEGAL PRINCIPLES
A parenting proceeding which involves an application to relocate the residence of a child or children, must be determined in the same manner as all parenting proceedings.
Orders in respect of children are regulated by Part VII of the Act. The meaning of “parenting order” and related terms is set out at section 64B of the Act.
The court may make such parenting order as it considers proper.[4] When making a parenting order, the court must regard the child’s best interests as the paramount consideration.[5] Section 60CC (2) of the Act specifies six matters which the court must consider for the purposes of determining what is in the child’s best interests. Those matters are:
[4] Subsection 65D(1). The Objects of Part VII of the Act are set out in s. 60B of the Act and provide further important context. The Objects of Part VII of the Act are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the 1989 Convention on the Rights of the Child.
[5] Sections 60CA and 65AA.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views[6] expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
[6] By virtue of section 60CE, nothing in Part VII permits the court or any person to require the child to express his or her views in relation to any matter.
The court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child, or a member of the child’s family.[7] Section 60CG of the Act requires the court to ensure that whatever parenting order is made, the order does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order. Family violence is not identified as an issue for consideration in this matter.
[7] Subsection 60CC(2A).
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and in doing so, to have regard to the best interest of the child as the paramount consideration. Should a parenting Order deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child, then provision can be made for joint or sole decision-making in relation to all or specified major long-term issues.[8] Any encouragement of consultation is rendered obligatory upon the making of a joint parental responsibility order, requiring each person to consult each other in relation to such a decision and to make a genuine effort to come to a joint decision.[9]
THE EVIDENCE
[8] Subsection 61D(3).
[9] Section 61DAA.
The parenting and work arrangements during the relationship
The parents provided inconsistent evidence about the reasons why they relocated to several different locations during their relationship. The mother deposes that the parents almost always prioritised the father’s career over her career, and the father deposes that the relocations occurred for many reasons, including the mother’s career and his career.[10]
[10] Father’s affidavit [87]
It is common ground that shortly before the premature birth of the first child in Sydney in 2016, the mother had relocated from Region V to live with the father, who in February 2015 moved from Region V to Sydney for employment in Sydney. For the first 18 weeks after the first child was born the mother ceased paid work and provided fulltime care for the child. The mother was diagnosed with post-partum anxiety during this period. In October 2016 the mother recommenced paid work as a craftsperson in the entertainment industry in Sydney on a contract basis. In 2017, while pregnant with the second child, the mother once again ceased paid work to care for the children.
On 9 October 2017 the father relocated from Sydney to Town L with the older child, to take up employment at W Company. In 2017 the second child was born prematurely in Sydney and he remained in hospital for 10 weeks. The mother was hospitalised herself for about three weeks with a medical condition. In November 2017 the mother relocated from Sydney to Town L to live with the father and the older child. The younger child was transferred to a nearby hospital and discharged soon after.
Between November 2017 and October 2019, the mother was the primary carer for the two children, while the father worked long hours. The younger child required regular medical appointments, and he attended physiotherapy at Town L community health on a weekly basis to assist in relation to delayed milestones including walking. I accept the mother’s evidence that she felt isolated living in Town L while caring for two young children with additional needs, without support from extended family. In Town L there was limited medical support, and no entertainment industry where the mother could find paid work close to home. The mother suffered depression and anxiety, which I accept affected her mood and her level of functioning.
In February 2020, the father obtained employment at Town H and the family relocated from Town L to live at Town J, so that the father could work nearby. I accept the mother’s evidence that once again she felt isolated with no family support. There is no entertainment industry in Town J so the mother could not obtain local paid work in her industry. The family lived at Town J from February 2020 until they relocated to City B in mid-June 2022. In cross-examination, the mother credibly confirmed her affidavit evidence that by February 2020, when the family moved to Town J, the parents had a five-year plan to buy a home in a major city and move there so that they could settle in one place, where the mother could focus on her career and supporting the children. The father denied that the parents had a five-year plan. In cross-examination he said there never was a discussion about a set plan and that “it may be the mother’s interpretation.” On 11 July 2022 the mother sent an email to the father wherein she referenced the 5-year plan. The mother’s email corroborates her evidence that she understood that there was such a plan. I am satisfied that by early 2020, around the time the family moved to Town J, the parents had discussed a plan to relocate the family to a major city by 2025, where they could both obtain employment without the mother having to travel away from home to work in her career, and I consider that the father’s acceptance of a two year contract to work in City B from July 2022 until mid-2024 was consistent with that plan. I accept the mother’s evidence that City B was never intended to be the families’ long-term home.
While the family lived at Town J the mother accepted paid work away from home in Sydney, Canberra, Melbourne, City Z, and City AA. Between 12 July 2020 and 5 November 2020, the mother was away from home working. Due to the pandemic restrictions, she was unable to fly home. The father took the children to see the mother for four days in August 2020. The parents planned another trip so that the children could see the mother, but the father cancelled that trip citing the costs of travel.
In early 2021 the paternal step-grandfather moved into the parents’ home at Town J to help care for the children while both parents worked, and in September 2021 he was joined by the paternal grandmother Ms BB. The paternal grandparents lived with the parents and the children for the rest of the parents’ relationship, including when the family moved to City B in July 2022. After the mother moved out in January 2023 the paternal grandparents remained in the home with the father and the children until at least early 2024.
Between February 2021 and late June 2021, apart from twelve days she spent at home with the children in early April 2021, the mother worked away from home. Between late November 2021 and mid-December 2021, and January 2022 and early March 2022, and late April 2022 until mid-May 2022, the mother worked predominantly in Sydney and travelled back home almost every weekend to care for the children.
In March 2022 the father applied for a job in City B. In May 2022 he told the mother that he had accepted the job in City B, and that his contract of employment was for two years. I accept the mother’s evidence that the move to City B was to be temporary and was never the end goal for the family.
Accommodating the mother travelling away from home for work has been challenging for the family. I accept the mother’s evidence that she has done the best she can to provide financial support for the family, and she has tried to maintain her career. In cross-examination the mother said that during the parents’ relationship, whenever the mother worked away from home she prepared meals in advance for the family which were frozen for re-heating. While working away the mother did all online grocery shopping for the family, and she arranged and co-ordinated the children’s medical appointments, and spoke to the children each night by telephone.
The father has worked fulltime since the birth of the children. His involvement in caring for the children has been limited by his long work hours and travel for work. Contrary to the evidence provided by the father, I am satisfied and find that the family moved to Town L, and to Town H, and to City B to accommodate the father’s career, and not for the mother’s career.
Breakdown of relationship and relocation to City B
In mid-2019 the mother came to suspect that the father was having an affair with his colleague and their mutual friend, Ms E. The mother challenged the father about this and was met with his denial. While the mother was working away from home in mid-May 2022, she received a telephone call from a staff member at the older child’s primary school. The mother was informed that the child had wet his pants in distress, when the father had not returned home. The mother then discovered that, without informing her that he was going away, the father had left the children with the paternal grandmother for three days. The mother left work and returned to Town J to care for the children. The mother was concerned about the father’s unusual conduct.
The parents and the children moved to City B in July 2022, so that the father could take up his new employment. Counsel for the mother squarely put to the father that he had used false pretences to get the mother to move to City B, which the father denied.
On 12 June 2022 the father telephoned the mother and told her that he did not love her and that he no longer wanted to be in a relationship with her. In cross-examination, the father denied he had any inkling that he wanted to end the relationship at any time before he delivered that news to the mother on 12 June 2022. On 10 June 2022, without informing the mother, the father had enrolled the older child in school at City B, having travelled to City B on at least a couple of occasions prior to 10 June 2022 to look at schools and housing. I found the father’s evidence, that until he told the mother he considered their relationship was over he had no inkling that he wanted to end the relationship with her, highly improbable. In my view it is most unlikely that the father would have told the mother that their eight year long relationship was over, before he had given some considerable thought to the implications of a separation, including the impact on the children, the impact on the parents’ mutual commitment to relocate to City B for the father’s employment, and the financial ramifications of a separation. Noting that that planned relocation to City B with the children was imminent when the father suddenly told the mother that their relationship was over I am not persuaded by the father’s evidence and consider it most unlikely that the father made a spontaneous or ill-considered decision to end his relationship with the mother.
The father denied that his relocation to City B was a factor in Ms E’s choice to move to City B from Town L where her family live. The father said that Ms E moved to City B after the breakdown of her relationship, to be close to friends. The father’s evidence on this point is inconsistent with the evidence which Ms E provided to the Court. On 24 September 2024, Ms E deposed that she has lived in the City B area for two years, and that she has worked for a government department for one and half years. Ms E deposed that she has:
“…developed a social network of friends here in [City B]-from work, the gym and from [Mr Potter]’s friends.”[11]
[11] Affidavit of Ms E [25]
Quite plainly, Ms E’s evidence is that she has developed her social network of friends since she moved to City B, not before, given that her friends are from work, the gym and through the father. On the issue of when precisely the father formed his intention to end the parents’ relationship, and why Ms E moved to City B from Town L, I found the father’s evidence in cross-examination evasive and unconvincing, and I consider that he is prepared to tailor his evidence when it appears to him that it will suit his case.
I accept the mother’s evidence that following the breakdown of the parents’ relationship on 12 June 2022, the father left the mother with no choice but to relocate to City B. The family was scheduled to move to City B three weeks later. From the mother’s perspective the father’s decision to end the relationship was a “bombshell” and she was heartbroken, as evidenced by her email to the father on 11 July 2022. The mother wanted to continue to provide care for the children, and the father was not prepared to financially support the mother, who was in no position at that time to make any alternative plan in relation to the children’s care.
In cross-examination, the father conceded that it was a “challenging’ situation in City B when the mother arrived there to live with the children, under the same roof as the father and the paternal grandparents. When pressed, the father was forced to admit that it was an untenable situation. The father would not concede that the mother had no option but to move out of the untenable situation, and nor would he concede that the untenable situation was not sustainable in the long term. The father said he was “hopeful of a co-parenting arrangement, until we figured out what is was.”
The father agreed that he did not offer to move out of the home himself, and he didn’t provide the mother with money to assist her to move out of the home. The father agreed that he never offered to subsidise the mother’s rent and volunteered “she never asked.” The father said that he understood that the mother was working fulltime, before being forced to concede that she had been working fulltime prior to moving to City B, and that the only way that the mother could generate income after she moved to City B was to work somewhere other than City B. The father was forced to concede that to live independently the mother had to leave City B for work. In late October 2022 the mother commenced working each week in Sydney. I accept the mother’s evidence that she had no option other than to accept work in Sydney due to the lack of opportunity to work as a craftsperson in City B. The children remained with the father and the paternal grandparents in City B. The mother was available to spend time with the children on the weekends, and the children were living in the father’s household each week. Notwithstanding that the parents had agreed that the mother would work in Sydney and return to City B every weekend to spend time with the children, the father insisted that the children spend time with the mother every second weekend instead and this arrangement continued until interim parenting orders were made in February 2023.
In cross-examination, the father said:
“My preference was to spend time with the children on the weekend as well…I insisted that I spend alternate weekends with the boys.”
The father was taken to a telephone call he made to the mother on 21 December 2022, which was the same day that the mother initiated the family law proceeding and the same day that the father’s lawyers were served with her documents by email.[12] The father admitted that he said to the mother:
…all I can say is I hope you’ve got some strong financial support because I’m gonna drag this out over three years I’m gonna cripple your family. Bring it on. This is gonna be a very long and expensive process.[13]
[12] Exhibit M2
[13] Mother’s affidavit [15]
The father admitted that he used threatening words but he refused to concede that by doing so he had threatened the mother. Clearly, the father threatened the financial security of the mother and her family during the telephone call. When it was put to father that he has crippled the mother financially he responded, with a self-focus:
I have crippled myself financially as well.
The father admits that in January 2023 the parents agreed that the children would spend equal time with each parent. The father did not follow through on that agreement, and he insisted that the children continue to spend time with the mother each alternate weekend instead. In cross-examination, notwithstanding the father was forced to concede that until the interim order was made in March 2023, he was doing everything he could to oppose an order for the children to spend equal time with each parent, he maintained that during January, February and March 2023 the parents were working collaboratively to make a week about arrangement work. I accept the submission of Counsel for the mother that the father's idea of working collaboratively seems peculiar and appears not to involve the need for any compromise on his part.
The mother’s work
The mother has worked as a craftsperson in the entertainment industry since 2007. Both her parents were in the entertainment industry and guided the mother into the industry in 2007. Shortly after, the mother gained her first job in the industry, and she has since worked with several entertainment companies in City V and in Sydney and Melbourne. The mother’s work is contract based. The mother said that currently she has no expertise to work in any other career or in a different industry, and she has not considered any career other than the entertainment industry.
There are almost no opportunities for work in City B in the entertainment industry.[14] The mother details the employment applications she has submitted since arriving in City B in mid-June 2022. The mother has so far been able to arrange a total of four weeks and three days’ work in City B.
[14] Ibid [138]
The mother has obtained work in Sydney, which is two-hours’ drive away from where she lives with the children in City B. The mother can only work every second week because she lives in City B to provide care for the children each alternate week. Therefore the mother is not employed full-time, and she is paid effectively one half of a full-time salary. Currently the mother works approximately 10 to 12 hours each day, but sometimes as long as 14 hours.
I accept the mother’s evidence that it is very important to her that she is able to financially support the children, and I accept that she will struggle financially if she must remain in City B and works only every second week in Sydney. I accept that it is very important to the mother that she does not have to travel far away from the children to undertake her work.
The father’s work
The father has a post-graduate degrees from university. He is an experienced professional. The father’s qualifications and experiences have enabled him to work in Sydney and Brisbane, as well as in rural and regional areas.[15] The father conceded in cross-examination that he would be able to obtain work in a city such as Melbourne, and Ms E agreed that she can also obtain work in a major city.
[15] Exhibit M11
The mother’s health
The mother has provided detailed evidence about the impact on her health of commuting between City B and Sydney for work.[16] I accept that the mother finds the travel for work physically demanding and exhausting. She has difficulty sleeping and struggles to stay awake during the day. She has experienced hair loss, which she believes may be stress related. She has lost weight, and experiences anxiety. The mother feels entirely alone in City B with no support and wonders how she will cope. She cries often and is scared for her own future and the children’s future. The mother tries her best to shield the children from the toll of her stress.
[16] Mother’s affidavit [123]-[126]
In late 2023 the mother was diagnosed with an illness which required surgical treatment. Her lawyers promptly advised the father’s lawyers about this, and the parents agreed to adjourn the Compliance and Readiness Hearing scheduled on 19 October 2023 so that the mother could focus on her health. On 23 October 2023 the father, in a letter from his lawyers, requested further disclosure of the mother’s medical condition. Unfortunately, the letter was argumentative and insensitive. On 3 November 2023 the mother provided further disclosure evidencing her medical condition, and she underwent successful surgical treatment in December 2023, although the surgery contributed to a flare up of a previous medical condition.
In January 2024 the mother was diagnosed with an adjustment disorder with anxiety. Clearly, the mother has experienced a number of stressors including the breakdown of the parents’ relationship, her relocation to City B where she has never previously lived, financial difficulties, another house move, the father’s new relationship, working in Sydney, and commuting back and forth to City B, all the while doing her best to meet the children’s additional needs while dealing with her own serious health issues.
The mother has been engaging in Zoom sessions with Dr P, who is a registered psychologist. Dr P provided an affidavit in the mother’s case, and she was cross-examined at the hearing.
Dr P has 25 years’ worth of experience as a psychologist and expertise in psychological treatment of chronic illness, depression and anxiety. In cross-examination, Dr P did make appropriate concessions about the nature and limitations of her work as a treating psychologist.
Since 15 February 2023, Dr P has had seventeen telehealth sessions with the mother. Initially the mother presented as distressed about her access to the children and financial difficulties and was upset that the children were not coping with the separation and the instability. After four sessions, Dr P diagnosed the mother with an adjustment disorder with anxiety, which is chronic because the mother’s symptoms have persisted for more than six months.
Dr P confirmed her evidence that:
I am extremely concerned for [Ms Howell] if she cannot relocate with the children as she does not have any family support in [City B] and is isolated. I understand from conversations I have had with [Ms Howell] that she is caring for all her children’s medical and psychological needs, as well as their health and wellbeing. She is stretched as she does not have support in [City B] to assist her with the children. If [Ms Howell] was not permitted to relocate, it would mean that she would continue to struggle with the children’s health and wellbeing alone without support from family or friends. In my professional opinion, [Ms Howell] needs to have stability for the children according to their mental health needs…[17]
In my opinion, it is quality of life having loving family around to support that would impact on [Ms Howell] the most…[18]
If [Ms Howell] were to relocate with the children to Melbourne, my opinion is that [Ms Howell]’s stress levels would reduce, and her physical health should improve with her knowing her children will be in warm, loving environment with family. She is currently doing all health, school and general living requirements on her own with limited resources. It appears she is doing this well but becomes overwhelmed at times when trying to manage two children, both with high medical needs, on her own.”[19]
[17] Dr P’s affidavit [14]
[18] Ibid [15]
[19] Ibid [16]
I accept that Dr P is a treating practitioner for the mother and that her assessment is based upon the mother’s self-reports and the mother’s presentation. In deciding what weight I should place on the evidence of Dr P, noting firstly her reliance on the mother’s self-reporting, I consider that the mother presented to this Court as a witness of truth. Her evidence withstood the rigours of cross-examination, and proved to be accurate and reliable. The mother was polite and responsive, and she was not argumentative. The mother didn't hesitate to say positive things about the father, and she provided detailed and child focussed evidence about the relationships between the children and the father. I accept the submission of Counsel for the mother that the mother demonstrated her capacity to see shades of grey, and that her position in relation to the parenting dispute was formulated through the lens of what the mother genuinely perceives is in the best interests of the children.
I consider it most likely that the mother has been entirely honest and genuine when reporting to Dr P.
Secondly, Dr P is an experienced practitioner, and she was not challenged in relation to her qualifications to assess the mother’s presentation during sessions, and to diagnose the mother based upon her presentation and self-reporting.
I place substantial weight on the evidence of Dr P.
The children’s needs
The Child Impact Report was released to the parents on 7 March 2023. The Report provided preliminary advice about the needs of the children, and the impact of the parental conflict on the children. Relevantly, the Court Child Expert recorded that:
(a)The parents agree that the older child is an anxious child. [20]
(b)The parents agree that communication between them is a barrier to effective communication, but the mother was optimistic that this will improve once the proceeding is over.[21]
(c)The father reported that he was not seeing the same behaviours in the children as the mother reported and had questioned what psychological support the eldest child needed and had more recently arranged for the child to access counselling with the school counsellor.[22]
(d)It is common ground that the younger child has several difficulties, particularly with his speech. The Court Child Expert observed that the younger child had great difficulty communicating, and both parents agree that this creates problems for him, including his behaviour and social interactions at school.[23]
[20] CIR [21]
[21] Id
[22] Ibid [22]
[23] Ibid [23] and [24]
The Single Expert Family report prepared by Psychologist Ms N (“the expert”) is dated 27 April 2023. The expert gave oral evidence at the hearing. She noted that both children have speech and communication delays and immediate needs for early intervention services and educational support. [24] She expressed her view that any further delays to intervention services by either parent should be assessed as medical neglect and appropriate referrals made to child protection services.[25] Other than the impact on the children of any further delay in accessing therapeutic intervention services and the impact of escalating parental conflict, the expert did not identify any other risks for the children.[26]
[24] Single Expert Report [81]
[25] Ibid [96]
[26] Ibid [83]
Considerable time during the hearing was devoted to the dispute between the parents about the extent to which the father has been able to identify the children’s needs and obtain assistance for the children.
The mother contends that she has always been responsible for arranging the medical and specialist support appointments for the children, including while she was working away from home, and that she has identified the children’s need for support and acted promptly on the advice of medical professionals. The mother contends that she has been met with resistance from the father, who she says has failed to identify the children’s need for additional support. The mother contends that the father has downplayed the children’s needs, diminished the mother’s concerns, and that he has challenged the advice and recommendations of professionals.
The father denies that he has dismissed the mother’s concerns, and he contends that both parents were responsible for arranging medical appointments for the children and keeping each other informed about recommendations for treatment. In cross-examination the father was taken to the expert’s opinion that he was not aware or not closely involved in assessments and interventions for the children. He denied the proposition that he did not want to believe the mother’s concerns, or that he was resistant to any diagnosis or resistant to engaging with professionals. It was put to the father that if he genuinely accepted that the children had issues then he would have sought the assistance of the paternal grandmother Ms BB who is an experienced early childhood educator and has additional qualifications in assisted speech communication.[27] As noted already, the paternal grandmother was present in the family home to assist with the care of the children between about September 2021 and early 2024. The father denied that he would have sought the advice or assistance of his mother in relation to the children’s medical needs, and he said that she provided support “as a grandmother” to the mother and himself. I find it implausible that if the father held concerns for the children’s development, he would not have discussed those concerns with his mother, given her qualifications and experience.
[27] Family Report [49]
The paternal grandmother was not called to give evidence in the father’s case, even though she had provided an affidavit in the interim proceeding, and would have been able to give evidence at the trial about the children’s needs and their relationships. In cross-examination the father said that he did not feel it was necessary to call the paternal grandmother to give evidence. The father denied that the paternal grandmother would be able to give evidence about the extent to which the father was aware of the children’s needs, or what the father did or did not do to meet the children’s needs. Counsel for the mother submitted that the Court would draw an inference that the evidence of Ms BB would not have assisted the father’s case.
The Full Court in Blass & Blass [2022] FedCFamC1A 63[28] considered the law in respect of a failure to call a witness, in the course of which their Honours observed that:
24. In ASIC v Hellicar [2012] 247 CLR 345 (“Hellicar”) at [165], the plurality of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ firstly observed, on the issue of the failure to call a witness, that:
“Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led... And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.”
25. At [167], the plurality then referred to Jones v Dunkel, as an example of the application of such principles, quoting:
...“that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.
[28] Blass & Blass [2022] FedCFamC1A 63
If the father had called Ms BB to give evidence the Court would have had the benefit of hearing from her personally, in evidence in chief and in cross-examination, and I consider that she would have been able to put some true complexion on the extent of the father’s awareness or otherwise of the children’s needs and whether he was proactive in obtaining assistance for the children. She could have put some true complexion on whether the father minimised the children's medical needs. Further, the father did not provide evidence about when and why the paternal grandparents moved out of the home in City B. He provided some quite limited evidence about the children’s current relationships with the paternal grandparents. I consider that evidence from Ms BB would have assisted the Court to understand the nature of the children’s current relationships with the paternal grandparents. I consider that is it open to the court to draw the inference that Ms BB’s evidence would not have assisted the father’s case.
In February 2019, when the older child was almost three years old and the family was living in Town L, the mother observed that he struggled with his emotional regulation. The child’s day care educator raised concern about the child’s sensory issues and recommended that he see an occupational therapist. The mother tried to discuss this issue with the father, who expressed his view that the child was fine and did not need to see a specialist. On 19 February 2019 the mother sought the advice of the paternal grandmother and in a text message to Ms BB the mother wrote: “Mr Potter and I are on completely different pages when it comes to X and its stating to concern me” (sic).
In June 2019, the children’s physiotherapist recommended that the children be referred for an evaluation. On 5 June 2019 the mother wrote in a text message to Ms BB: “It just so hard with Mr Potter arguing with me about it. He won’t listen to the specialist and he feels both boys are fine…” (sic), Ms BB replied “Ms Howell maybe he will listen to me when I’m there in a few weeks. He just wants it to be ok I’m sure…” (sic).[29]
[29] Mother’s affidavit Annexure MSH8
The parents agree that staff at the older child’s daycare centre gave him a fifty-fifty chance of being able to cope with starting school in 2021. In cross-examination the father maintained that the decision to send the older child to school was made by the parents together, and he disagreed that he had imposed his preference upon the mother. The father justified the decision to send the child to school on the basis that all the child’s friends were starting kindergarten. When the father spoke with the expert he conceded that he had not considered the impact on the child of starting school when he was not being ready, and then having to be sent back to day care. [30] I accept the expert’s evidence that the father was most likely the driving force behind the decision to send the older child to school in 2021. The mother was working away from home throughout most of 2020 and 2021. In early 2021 the paternal step-grandfather had moved into the family home to assist the parents to provide care for the children, followed by the paternal grandmother in September 2021.
[30] Single Expert Report [10]
I accept the mother’s evidence that whenever she was working away from home, she organised the appointments the medical appointments for the children, and she regularly called and sent messages to the father and the paternal grandmother reminding them of the appointments she had made for the children. I accept that in relation to meeting the children’s medical needs the mother met with some resistance from the father, who required continuing encouragement to accept that the children needed support.
In January 2022, while the family was living at Town J, Ms CC, Speech Pathologist recommended that both children attend frequent speech therapy sessions. The father did not accept the recommendation and said that he didn’t think the older child needed this.[31]
[31] Exhibit M3
I accept the submission of Counsel for the mother to the effect that the challenges that will inevitably attend a relocation of the children can be overcome, but what can not be overcome is the mother's unhappiness in City B. I accept that living in City B has been very difficult for the mother without family and or a supportive social network, and unable to support herself or the children by working in reasonable proximity to where she lives in her career which brings her great joy. I consider the long term impact on mother and the children if the mother is required to remain in City B to parent the children, and I accept that the mother’s parenting capacity will be diminished due to her genuine distress, which will impact negatively upon the children.
The detriments which may flow to the father and his relationships with the children are, in my view, significantly offset by the extension of the children’s relationships with the mother’s family and the enhancement of the mother’s parenting capacity if she is permitted to relocate the children to Melbourne.
While relocation of the children is not an outcome that the father seeks, a child focus is very much required. I am confident that the father is willing and able to support the children to transition even if the outcome is not what he wants. I consider that the mother has demonstrated her capacity to encourage and facilitate the children’s relationships with the father, and she has demonstrated that she can prioritise the children’s need for a relationship with the father.
For all of the reasons discussed, I am satisfied that it is in the best interests of the children that the mother is permitted to relocate their residence to Melbourne, where she will have greater support, and where she can further her career and financially support herself and the children. I consider that the mother’s parenting capacity will be enriched and enhanced by moving, and I have every confidence that with the support of the mother the children will continue to have the benefit of their meaningful relationships with the father and extended family members.
Allocation of decision -making for medical issues concerning the children
The mother submits that during the parents’ relationship the father did not provide for the medical needs of the children in a timely manner, and that his failure in this respect has been detrimental to the children. Further, she submits that since separation the father has prioritised the parental conflict over the children’s needs, by adopting an aggressive and uncompromising approach to her proposals for therapy for the children and that his instinctive reaction has been to contradict any proposal put forward by the mother.
I accept that since 2019 the parents have often disagreed about how best to manage the children’s medical needs. In cross-examination the father conceded that, in hindsight, the mother’s decisions and suggestions have been good for the children, and I find the father is not as adept as the mother is at identifying the children’s needs and taking appropriate action to arrange additional supports, and that it was the mother who organised specialist appointments for the children between 2019 and 2022.
Since separation in 2022, the father’s engagement with the children’s therapists has improved. Currently there appears to be no disagreement about the children’s diagnoses and their treatment, and the unchallenged evidence of each parent is that they are willing to take advice from experts. Nevertheless, the parental communication about medical matters is not functional The mother’s proposal provides for information sharing between the parents in relation to long term medical issues and I consider that the mother’s proposal that she be responsible for making decisions about major long term medical issues relating to the children is more child focussed than the father’s proposal because it ensures that the children’s medical needs are identified and met in a timely fashion.
Schooling
In the context of the parents’ agreement that, except for decisions relating to long term medical issues for the children, the parents will have joint decision-making responsibility for all other major long-term issues, the mother proposes that the Court makes an order that the children attend a particular school, unless otherwise agreed in writing.
The father opposes the mother's proposal, and notes that initially the mother’s proposed order identified two schools. Counsel for the father submits that the father has so far been unable to contemplate the children moving to Melbourne and, if the Court permits the relocation of the children then he would like to have some input into the decision about which school the children will attend, and that there is no evidence that there has been any issue between the parents relating to the children’s schooling previously.
I can see no reason on the evidence why it is not in the best interests of the children for the parents to consult with each other about a major long-term issue such as the children’s schooling and in doing so, to have regard to the best interest of the child as the paramount consideration. A joint parental responsibility order requires each parent to consult each other in relation to such a decision and to make a genuine effort to come to a joint decision, and I decline to make the order sought by the mother in relation to the children’s schooling, in light of their mutual consent to an order that the parents will have joint decision-making responsibility for all major long-term issues, except medical.
Electronic communication for the children with each parent
With respect to the children’s communication with each of the parents, the children are accustomed to speaking daily with whichever parent they are not with. The children will experience significant changes in their parenting arrangements as a consequence of the orders which the Court will make in this matter. One way of supporting the children to navigate the changes is to facilitate as much routine as possible, including their daily routine of a phone call with one or other of the parents.
In my view this routine of daily communication ought to continue for as long as the children benefit from it. It is difficult to predict how long this will be. I am mindful that as the children grow and mature they are likely to develop interests which impinge on the amount of time they have available to spend on the phone. Daily phone calls can sometimes end up being a burden, not only for the children but also for the parent who is required to facilitate an incoming call from the other parent. Sometimes it is inconvenient or an unwelcome intrusion into the household routine. In this matter, there is no expert evidence to assist the Court in relation to this issue.
Having regard to the children’s ages and stages of development and their close relationships with each parent, it appears to me that they will benefit from having daily calls with the other parent until they are around 11 or 12 years old, when they are maturing into adolescence and are likely to want more privacy and autonomy. The older child will turn 12 in 2028, not quite three years from now and the younger child will turn 11 in 2028. In my view daily calls for the next three years are likely to benefit the children, but beyond that that sort of a regime may become burdensome for the children, and it is likely more beneficial to the children if an order is made that provides for at least three calls each week and more if the children request. The parents are urged to be guided by the children’s needs in the future and anticipate that some flexibility will benefit the children.
Other specific issues
I am not persuaded that the father should be required to provide the mother with details of other adults with whom he may share his accommodation in Melbourne when the children spend time with him there. There is no evidence that the father has ever compromised the safety of the children by exposing them to harm through association with any inappropriate person and I consider that the father is quite capable of introducing the children to anyone he sees fit without the mother having to prepare the children for such introductions. Of course, courtesy, respect and consideration are necessary ingredients of a functional co-parenting relationship and the father is aware that the mother is vulnerable to experiencing anxiety. Any reasonable step that the father can take to help ameliorate the mother’s anxiety will be of considerable benefit to the children, and one step he might consider is to keep the mother informed of any significant events involving the children while they are in his care.
I accept that it is in the best interests of the children for the father to notify the mother of the address where the children are to stay with him, because the mother will be better able to prepare the children ahead of their time with the father if she knows where the children will be, and it is appropriate for both parents to know where the children are staying overnight when the children in the care of the other parent. In my view twenty-four hours is adequate notice, and I will order accordingly.
I consider that it is appropriate to make an order that, unless otherwise agreed, when the children are required to attend school the next day the father will accommodate them overnight at a place which is no further away than a one-hour drive from the mother’s home. This will ensure that the children do not have to travel any longer than one hour to attend school in the morning, which I am satisfied will not exceed the children’s coping capacity and allows sufficient latitude for the father to make appropriate arrangements for the children’s accommodation in Melbourne. I consider that a changeover which is no further away than one hour drive from the mother’s home is generally appropriate, unless otherwise agreed.
DE FACTO SPOUSAL MAINTENANCE
Proposals of the parties
The mother seeks a final order that the father pay her spousal maintenance in the sum of $500 per week for a period of 24 months.
The father opposes the mother’s application. He made an open offer during the hearing to pay $200 per week to the mother by way of spouse support, provided that she remains living in the City B area.
The mother relies upon her Financial Statement, and the evidence which she provides in her affidavit.[57]
[57] Mother’s affidavit [204] - [217]
The father relies upon his Financial Statement, and the evidence which he provides in his affidavit.[58]
[58] Father’s affidavit [160] - [176]
LEGAL PRINCIPLES
The power of the court to make an order for maintenance in de facto proceedings is found in Part V111AB of the Act, Division 2. Section 90SE (1) of the Act relevantly provides:
After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.
Note 1.The geographical requirement in section 90SD must be satisfied.
Note 2: The court must be satisfied of at least one of the matters in section 90SB.
I am satisfied that both parties to the de facto relationship were ordinarily resident in New South Wales for the whole of their relationship and at the time the application for maintenance was made and that New South Wales is a participating jurisdiction of the purposes of S.90SE of the Act.
For the purposes of S.90SB of the Act I am satisfied that there are two children of the de facto relationship, that the relationship endured for at least eight years.
Section 90SF of the Act sets out the matters to be taken into consideration in relation to maintenance and is reproduced below:
Matters to be taken into consideration in relation to maintenance
(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a) only to the extent that the first - mentioned party is reasonably able to do so; and
(b) only if the second - mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
Note: For child of a de facto relationship , see section 90RB.
(2) In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
(4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The question of weight to be attached to each of the matters referred to in s.90SF (3) of the Act is a matter for the discretion of the Court in each particular case. I have taken into account only the matters referred to in subsection (3) and will refer to those matters that are relevant in this case.
The threshold test is the ability of the applicant to support herself adequately and not need. This distinction was considered, in the case of In the Marriage of Murkin[59] by Nygh J who said, in relation to s.72 of the Act, which applies to married couples but is also apt in applications for de facto spouse maintenance:
“In my opinion the issue is not whether the wife is receiving sufficient funds, but whether she is able to support herself adequately ie whether she can generate funds from her own resources or earning capacity to supply her own needs.…. The threshold test in terms of s.72(1) is ability to support one’s self, not need….The criteria of need and ability support one’s self are not identical.”
[59](1980) 5 Fam LR 782 at page 784
In Atwill & Atwill[60] Nygh J said:
“Adequately” imports relativity. Subsistence may be adequate for some applicants but not for others. It must be viewed in the light of ….“a standard of living that in all the circumstances is reasonable.”
[60] (1981) 7 FamLR 573 at 576; (1981) FLC 91-107 at 76,792
The interpretation of the expression “unable to support…. herself adequately” is subject to the words “ whether ….by reason of having the care and control of a child…or age of physical and mental capacity for appropriate gainful employment or for any other adequate reason.”
In Bevan & Bevan (1993) 120 FLR 283 at 290 the Full Court set out the requirements for an award of spouse maintenance, again, in proceedings relating to married parties, but which has been applied in de facto maintenance cases[61]:
“Taken together then we would state the law as being that an award of spousal maintenance requires:
1. a threshold finding under section 72 (now section 72(1))
2. consideration of section 74 and section 75(2)
3 no fettering principle that pre separation standard of living must automatically be awarded whether the respondent’s means permit; and
4.discretion exercised in accordance with the provisions of section 74 with “reasonableness in the circumstances” as the guiding principle.”
Can the mother generate adequate funds from her own resources or earning capacity to supply her own needs
[61] For example, Corelli & Beroni [2021] FedCFamC1F 125
The first question is whether the mother can support herself adequately from her earning capacity and her own resources, and the mother bears the onus of establishing that she is unable to do so.
The father concedes that the mother’s current earning capacity is less than his, and that the mother’s capacity to earn depends upon where she will live. Currently, the mother lives in City B and works on a contract basis as a craftsperson in Sydney each alternate week so that she can be in City B to care for the children in the other week. The mother earns on average $762 each week from her work. There are no other income earners in the mother’s household.
The mother’s fixed weekly expenditure in respect of her needs amounts to $907 each week comprising income tax, rent, insurances, and motor vehicle registration.
In terms of the mother’s discretionary expenditure, which is set out at Part N of her Financial Statement, she was challenged in relation to her medical expenses. The $280 which she sets out for her medical expenses includes a weekly payment of $105 to her counsellor. If the mother is permitted to relocate the children to Melbourne, then she will be able to live in Melbourne, which she says will enhance her wellbeing. As the mother’s wellbeing improves, her need for counselling services will likely diminish over time, and I take this matter into account in assessing the mother’s reasonable expenditure. The mother’s estimate that she spends $220 per week for hairdressing and toiletries, which equates to $11,400 per annum, is inexplicably high, and I consider that $100 per week is a more reasonable estimate in respect of those expenses. Otherwise, I consider the mother’s claimed expenditure is reasonable. Having regard to my findings above, I assess that discretionary weekly expenditure of $934 is reasonable.
The mother is currently capable of generating weekly income in the sum of $762. I assess that her reasonable fixed and discretionary expenditure which is necessary to adequately meet her own needs combined amounts to $1,841. While the mother lives in City B and cares for the children she is not able to generate sufficient income from her earnings to meet her reasonable need for support and there is a deficit of income in the amount of $1,079 per week.
In terms of the mother’s resources, I take into account that by virtue of the final property Orders which made by consent on 24 October 2024, the mother has or will receive the whole of the funds held on trust from the net proceeds of sale of the Town L property, in the sum of approximately $101,342 together with interest, and Motor Vehicle 1 unencumbered, along with her part property settlement of $70,000, and $9,323 in her bank account. The sum of $161,044 is allocated to the mother from the father’s superannuation fund.
The cash resources that the mother has received or will receive by way of property settlement has or will be expended on her legal fees in respect of this proceeding. That is clear from the Costs Notice filed on behalf of the mother on 21 October 2024. I accept that the mother has no property or financial resources which materially affect her capacity to earn income. She has an accumulation interest in a super fund in the sum of $75,218 which does not materially affect her capacity to meet her current needs.
The mother discloses that she is eligible for the Single Parrent Payment. Section 90SF (4) of the Act requires that in exercising jurisdiction under s.90SE the court must disregard any entitlement of the party whose maintenance is under consideration to “an income tested pension, allowance or benefit.”
I consider, by refences to my findings about the work and parenting arrangements of the parents during the relationship that the mother has contributed to the income and earning capacity of the father, by relocating on three occasions during the parties eight years’ long de facto relationship to further the father’s career, and I take into account that the duration and the circumstances of the relationship, along with the care of the children, has impacted the earning capacity of the mother in a significant way, including by restricting her options to engage in paid employment due to the lack of work in her industry in the regional areas where the parents and have lived and because the need to provide care for the children has restricted the number of days and hours that the mother has been able to work.
The current child support assessment requires the father to pay to the mother the sum of $676.29 each week by way of child support.
If the mother moves to Melbourne, she will in due course obtain regular and stable employment her financial situation will improve. The mother estimates that she will earn income in the vicinity of $2,520 per week gross in Melbourne.[62] She anticipates that her weekly expenses will be comparable to those she currently pays in City B, except that she will likely incur higher rental costs of between $75-$125 per week for a three bedroom home in Suburb T and her petrol expenses will decline by $80.00. Although not part of the mother’ case, as her level of income increases so will her income tax liability increase, although there is no evidence about what the mother will pay in weekly income tax on her increased earnings.
[62] Mother’s affidavit [211]
I am entitled to take judicial notice of the fact that if the mother earns an income of $131,040 per annum, this will place her in a marginal tax bracket of 30%. She will therefore pay $4,288 plus 30 cents for each dollar she earns over $45,000. This will see the mother’s weekly payment for income tax increase to E$578.84 ($4,288 + $25,812 ($86,040 x $0.30) = $30,100 per annum divided by 52 weeks).
Doing the best that I can, once the mother is gainfully employed in Melbourne she will earn $2,520.00 gross each week. Her reasonable combined weekly fixed expenses will be in the vicinity of $1,350, and her discretionary expenses will be about $854, making a total for reasonable weekly expenditure of $2,204.
I am satisfied that when the mother has established herself and the children in Melbourne, and is in a position to obtain work in her industry she will be able to generate sufficient income to meet her own reasonable expenditure, but until she does so she will still have a deficit of expenditure over income, in the sum of about $1,079 each week.
The court has no difficulty in finding, on the evidence, that the mother has no present capacity to generate sufficient income to support herself adequately. Taking into account the children’s needs, and the likelihood that initially at least the mother will need to be available to settle the children into their new home and schools and must make necessary arrangements for the children to access regular therapeutic supports and attend school and arrange their extra-curricular activities, it is reasonable in my view to anticipate that the mother will not be in a position to undertake regular paid employment until she has had sufficient time to relocate and establish herself and the children in Melbourne.
Father’s capacity to pay spouse maintenance
The father is liable to maintain the mother only to the extent that he is reasonably able to do, and provided the mother has satisfied the threshold test, which I have found she has.
I will turn now to the father’s income. He discloses weekly income of $4,446. Counsel for the mother contends that the father has underestimated his weekly income by about $93.00 but conceded that when additional taxation liability on the greater income is calculated the underestimation amounts to $32.00 per week more in the father’s pocket.
The father discloses that he has total weekly expenditure, including his fixed and his discretionary expenditure at Part N in the sum of $5,561 each week. If the father’s estimates as to his expenditure are accepted then the father’s expenditure exceeds his income, with an asserted shortfall of $1,115. However, the father includes the amount he currently pays by way of spouse support to the mother, which rationally must be excluded for the purposes of calculating his future capacity to pay spouse support. This discrepancy reduces the shortfall to $615 each week.
The father’s partner Ms E is an income earner in his household, and she earns $1,115 each week. The father notes in his Financial Statement that Ms E contributes $1,115 towards household expenses, but he has claimed the expenses that Ms E pays as though those expenses are paid by the father himself. This has resulted in what is described by Counsel for the mother as a double counting of Ms E's expenses. Noting that it is common ground that Ms E pays not less than $1,004 dollars towards expenses the father claims he pays[63] the shortfall asserted by the father is reduced by that amount, leaving a surplus over expenditure of $389 per week.
[63] Exhibit M21
The father has received or will receive property pursuant to the Final Orders which has a net value of $304,610 which in percentage terms equates to just over 40% of the net pool on his figures. He receives sole title to Motor Vehicle 2 subject to the loan, and otherwise he retains his Motor Vehicle 3, his part property settlement of $40,000 and funds held in his bank accounts along with his shares. The husband discloses just over $10,000 in his bank accounts and shares worth $450. As with the mother, I am satisfied that the cash resources that the father has received or will receive by way of property settlement have or will be expended on his legal fees in respect of this proceeding. That is clear from the Costs Notice filed on behalf of the father on 21 October 2024.
The father has disclosed two personal loans from family members, and he is currently making no repayments in respect of the amounts outstanding. The father provides no evidence as to the terms of the loans, and therefore I am unable to take them account in assessing his capacity to pay spouse maintenance to the wife, as there is no certainty as to when or if the loans are required to be repaid.
I take into account that if the mother moves to Melbourne the father will have to travel to spend time with the children, at least for some period of time. I take into account that the costs of travel can be a reason to depart from Child Support Assessment and may reduce the father’s liability. I also take into account that when the children move to Melbourne and live with the mother, unless the father relocates there and the children live with him each alternate week, his discretionary weekly expenditure in so far as it relates to the children’s needs in his household will reduce. These matters are all uncertainties, but nevertheless I take them into account in determining what order is appropriate.
On balance, I am satisfied that the father currently has capacity to pay spouse maintenance in the sum of $389 week.
CONCLUSION AS TO SPOUSE MAINTENANCE
I accept that there are several uncertainties in concluding what order is proper to make in this case. Having regard to the mother’s circumstances I am satisfied that she has a current need for spouse support and that her needs will not abate until she has obtained work in Melbourne. Having regard to her having the care of the children I consider that once she will need time to establish herself and the children before she will be in a position to adequately support herself. I consider that the mother will require support for not less than six months following the making of these Orders.
I conclude that it is proper to make an order that the father pay the sum of $389 each week to the mother by way of periodic spouse maintenance continuing weekly for six months from the date of these Orders.
I certify that the preceding two hundred and seventy-two (272) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Associate:
Dated: 28 May 2025
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