IRVINE & IRVINE

[2019] FamCA 627

FAMILY COURT OF AUSTRALIA

IRVINE & IRVINE [2019] FamCA 627

FAMILY LAW – CHILDREN – Relocation – Where the mother seeks at a late stage before trial to relocate from Town A to Town B – Where the court satisfied it is reasonably practicable for the mother to remain living in Town A – Where not practicable for the father to relocate to Town B – Where the father asserts that the mother is unable to co-parent without his assistance due to her mental health – Where the father’s assertion unsupported by evidence – Where the court does not permit relocation – Order for equal shared parental responsibility – Order for the child’s living arrangements as sought by the father – Order for the child to spend six months living in Germany.

FAMILY LAW – PROPERTY – Spousal maintenance – Where the father proposes a payment to the mother of $90,000 – Where the mother proposes a larger sum dependent on certain liabilities being given attributable values – Where the father’s loans are extant liabilities – s 75(2)(o) factors – Where the court satisfied the mother’s contribution based entitlement should be 20% – Order that the father pay the mother $125,342.85 – Order that the father pay the mother spousal maintenance of $250.00 per week for 6 months.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles  (2007) FLC 93-343
Zahawi & Rayne [2016] FamCAFC 90
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
U v U (2002) FLC 93-112
AMS v AIF; AIF v AMS (1999) FLC 92-852
T & N [2001] FMCAfam 222

APPLICANT: Ms Irvine

RESPONDENT: Mr Irvine

INDEPENDENT CHILDREN’S LAWYER: Mr Newman

FILE NUMBER: TVC 1322 of 2017

DATE DELIVERED: 6 September 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 27, 28 29, 30 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr George

SOLICITORS FOR THE APPLICANT: Spina Kyle Waldon

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITORS FOR THE RESPONDENT: BJM Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Fellows

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Newman Family Law

Orders

PARENTING

1. All previous parenting orders be discharged.

2. The parents have equal shared parental responsibility for the child X born … 2016 (‘the child’).

1. As of the commencement of school term 1, 2023 the child shall live with the Mother and the Father on an equal time basis, being for a period of 7 consecutive days in each fortnight with each parent commencing after school on a Friday.

2. Prior to the commencement of equal time provided for in order 2 herein, the child shall live with Mother and spend time with the Father as follows;

   (a)In 2019;

   i.In each fortnight from 10am Saturday until 5pm Sunday in week 1;

   ii.10am Sunday until 7pm Monday in week 2;

   iii.In each week from 3pm Wednesday until 7pm Thursday; and

   iv.Upon the Father providing the Mother with 60 days written notice, for 7 consecutive days

   (b)Commencing as at 1 February 2020;

   i.In each fortnight from 10am Saturday until 5pm Sunday in week 1;

   ii.10am Sunday until 7pm Tuesday in week 2;

   iii.In each week from 3pm Wednesday until 7pm Thursday; and

iv.Upon the Father providing the Mother with 60 days written notice, for 2 periods of 7 consecutive days.

(c)Commencing as at 1 February 2021;

i.In each fortnight from 3pm Friday until 9am Tuesday;

ii.In each week from 3pm Wednesday until 7pm Thursday; and

iii.Upon the Father providing the Mother with 60 days written notice, for 3 periods of 7 consecutive days.

(d)Commencing as at 1 February 2022;

i.In each fortnight from 3pm Friday until 9am Thursday;

1. That commencing in 2022, the child shall live with each of her parents as follows;

(a)during each shorter school holiday period on an equal time basis being for a period of 7 consecutive days in each fortnight with each parent commencing 5pm Friday and;

(b)During each December/January school holiday period with the Father for the first half of each school holiday period falling in even numbered years and the second half of each school holiday period falling in ending in odd numbered years.

1. The Mother shall be at liberty to travel to Germany with the child in each second calendar year for a period of up to 7 consecutive weeks on the following conditions;

   (a)The Mother to provide the Father with 60 days written notice of the dates upon which she intends to travel (‘the German holiday’);

(b)The Mother to provide the Father with a copy of the child’s travel itinerary and tickets;

(c)The Mother to meet the costs of the child’s travel;

(d)The Mother to provide the Father with the child’s contact details for the duration of the travel;

(e)The Mother to ensure the child has Facetime/Messenger/Skype or similar communication with the Father at least twice each week and in the absence of agreement on Tuesday and Friday;

(f)The German holiday may only occur in the December/January Queensland gazetted school holiday period in each alternate year and shall not occur during the first half of the December/January school holiday period in years ending in an even number,

(g)The Father to be entitled to nominate 2 additional periods of 14 consecutive days for the child to spend with him in the period prior to the child’s travel or in the 9 months following the child’s travel, provided those times do not consecutively join other school holiday periods provided for in these orders.

1. The child shall have telephone/Facetime/Skype or similar means of communication with the Father at all reasonable times on at least 2 occasions each week.

1. That the mother may spend one period of extended time with the child in Germany on the following conditions:-

(a)No later than 30 June 2020 the mother may notify the father of her intention to enrol the child for a period of preparatory schooling in Germany that does not exceed 6 months duration from the time of departure from Australia to the time of return to Australia.

(b)The mother is to provide the father with a copy of the child’s travel itinerary and tickets.

(c)The mother is to meet the costs of the child’s travel.

(d)The mother is to provide the father with the child’s contact details for the duration of that period.

(e)The mother is to ensure the child has Facetime/Messenger/Skype or similar communication with the father twice a week and in the absence of the agreement on Tuesday and Friday.

(f)If the father elects to travel to Germany during this period, then for such periods as he may be in Germany, he shall give to the mother not less than 14 days written notice of his arrival and the place or places where he will be living.

(g)When the father is in Germany, he may spend such time with the child as may be agreed between the parents in writing, but no less than a period of 3 days in each week from Thursday afternoon at 4:00pm to Sunday morning at 9:00am provided that on days when the child is attending school he ensures that the child is delivered to or picked up from school on Thursday or Friday as the case may require.

(h)If the period of time that the father spends in Germany incorporates a period of school holiday time, then the child shall spend one-half of that period with the father.

(i)If the mother elects to implement this order, then in the year that she does so, she shall not also spend time with the child in Germany in accordance with order 6.

1. The parties advise each other of any changes of telephone number, or residential address within 24 hours of such change occurring.

10.The parties communicate about matters relating to the child using the online communication book “Talking parents”.  The communication book should detail issues about the child, such as:

(a)Any school events;

(b)Any medical issues;

(c)Food allergies;

(d)Celebrations;

(e)Photographs; and

(f)General parenting updates.

11.The parties not criticise or denigrate the other party or the other parties’ family in the presence of, or within the hearing of the child.

12.These orders shall, without more, act as authority to the child’s schools to provide each parent (at that parent’s expense) information about the child’s education’s progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.

13.These orders shall, without more, act as authority to each of the child’s medical practitioners (including counsellors and psychologists) to provide to each parent (at that parent’s expense) information about the child’s medical condition, treatment and copies of medical records and reports.

14.The parties will ensure that the schools attended by the child, and the child’s usual treating medical practitioners (including counsellors and psychologists) are provided with a copy of these orders.

15.The Independent Children’s Lawyer is discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

PROPERTY AND MAINTENANCE

16.Pursuant to s 79, father is to pay to the mother the sum of $125,342.85 within 3 calendar months.

17. Otherwise each party are to retain the property presently in their names, or in their possession, and remain solely liable for any debts in their name.

18.Until 6 March 2020, the father is to pay the mother the sum of $250.00 per week by way of spouse maintenance.

OTHER ORDERS 

19.Otherwise all extant applications are dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Irvine & Irvine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC1322/2017

MS IRVINE

Applicant

And

MR IRVINE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceeding relate to the division of the property of the parties, and the appropriate parenting arrangements for their three year old only child, X, born in 2016 (“the child”).  Although for much of the litigation the focus was upon whether or not Ms Irvine (“the mother”) should be permitted to relocate from Australia to her native Germany, when the trial commenced before me, the mother abandoned that part of her application, but instead sought to relocate with the child from Town A to Town B.  Assuming that were permitted, the mother then sought that she had sole parental responsibility for the child, who would live with her and spend, principally, weekend time with Mr Irvine (“the father”).

2. For his part, the father opposed relocation, sought equal shared parental responsibility for the child, and whilst conceding that she should live with the mother, sought a regime of substantial and significant time, culminating in equal time in 2023.

3. The Independent Children's Lawyer, albeit without any great enthusiasm that I could detect, supported the position of the mother.

4. As to property, the father conceded that there should be a payment of $90,000.00 to the mother, but otherwise said that the parties should keep the assets, and responsibility for the liabilities that were in their respective names.  The mother sought a greater payment, the quantum of which would depend upon whether or not two asserted liabilities of the father were included in the pool, or excluded from it.  She also sought that the current spouse maintenance payments to her in the sum of $250.00 per week be continued for a further two years.  She conceded the quantum of the maintenance may need to be adjusted in the event that a significant property division was made in her favour.

5. At the end of the trial, I reserved my decision.  This is that decision and the reasons for it.

THE FACTS

The father

1. The father was born in New South Wales in 1980, and hence is presently 39 years of age.  At the time he was born, his parents were engaged in farming, but when he was aged four, the family relocated to Town A, and his parents changed career.  The father excelled at school, both academically and in sports, and at the conclusion of school attended a university in New South Wales, until he won a scholarship to a university in the UK.  He then returned to Sydney where he worked for a large firm.  He then moved to a smaller firm, but later returned to Town A and founded his own business there in 2011.  It was at that stage of his life when in 2014, aged 34, he met the mother in Town A, and commenced a relationship with her.

The mother

1. The mother was born in Germany in 1987, and hence is presently 32 years of age.  Her parents separated when she was six, and she remained living with her mother, who apparently thereafter had a series of unsatisfactory and violent relationships.  When 13, the mother moved to live with her father and step-mother, and continued to do so until she left school, after which she took a year off, and at the conclusion of that, commenced to study a degree.  However she fell pregnant at about that time, but miscarried in early gestation.  Her partner at the time was not supportive of her, and the mother became mentally unwell.  It is not controversial that she then suffered a bout of major depression, and in consequence was a voluntary inpatient at a hospital.

2. After she was discharged from hospital, the mother initially obtained work in City D, but later travelled to Australia, and whilst here in 2014, met the father and commenced a relationship with him.  At the time she had just turned 27 years of age.

The relationship

1. The parties met when the mother was “couch surfing” at the father’s home.  They rapidly formed a relationship, which it appears to be agreed was initially strong and mutually supportive.  In effect, the mother arrived at the father’s home, and stayed there.  The parties married in 2015, and it seems uncontroversial that the mother conceived the child during the honeymoon.

2. It is unfortunate to record that both parties accept that thereafter there was domestic violence between them, and that both were the perpetrators of it.  Although their affidavits are replete with detail of the violence, and there is some controversy between them as to who was the principal perpetrator from time to time, that was not the focus of cross-examination of the parties, or indeed of the trial generally.

3. In December 2015 the mother travelled to Germany to visit her family for three weeks.  Whilst there she consulted her psychiatrist who was of the view that she was then well.

4. The child was born in 2016.  It appears as though the father had difficulty adjusting his lifestyle to the fact that he was now the parent of an infant.  It does not appear to be seriously in dispute that he continued to live as if he were, in effect, still a single man, conducting a reasonably active social life independently of the mother outside of the home.  On the other hand, the mother was left at home with the principal care of the young child and, together with the problems of sleep deprivation and the new found responsibility of caring for the child, became increasingly frustrated at the father’s attitude towards parenthood and herself, and her consequent isolation.

5. Unfortunately, further episodes of family violence ensued.

6. In September 2016 the parties first separated.  Initially the mother and the child lived in a women’s shelter, but thereafter obtained alternative accommodation.  It is not controversial that at about this time the mother again started to experience psychological ill health.  She commenced counselling with a psychologist, Mr E, who gave evidence before me.

7. In November 2016 the mother and the child moved back into the father’s home, although she does not consider that they then reconciled.  Rather she says that she moved due to her not having any other real options for accommodation.  I am also conscious that at the time, the parties’ separation would have jeopardised the mother’s visa application.  At all events, the parties ceased cohabiting in February 2017, and have not thereafter cohabited again.

Post-separation

1. By the time of separation, the parties had hired an au pair to assist with the care of the child.  It seems that she continued to care for the child post-separation, albeit only when the child was spending time with the father.  On one of those occasions, being 19 February 2017, the evidence suggests that the child might have been excessively disciplined by the au pair, in consequence of which a significant bruise shortly afterwards appeared on her face, and the child was thereafter hospitalised for four days.  Whilst in hospital, a small amount of bleeding inside the child’s head was identified, but she was ultimately cleared of any permanent injury.

2. Neither party concedes that they were responsible for the injury to the child, and ultimately the ensuing child protection and police investigation was not able to conclude how the injury had been sustained.

3. An unusual feature of the child’s hospitalisation was that the father did not attend the hospital whilst the child was a patient there.  He says he did not attend because he thought the mother was being overly melodramatic.

4. In the aftermath of separation the parties unsuccessfully attempted to mediate an agreed parenting arrangement.  In total, as I understand it, three attempts were made, but all failed.  At the time, the parties were communicating poorly.  On one occasion they attended a restaurant for dinner together, which appears to have been something of a fiasco.

5. On 29 October 2017 the child was to spend time with the father, until 2:00pm that day.  However, notwithstanding that he had signed an undertaking to return the child to the mother, the father withheld her, on the pretext that he was troubled about the mother’s mental functioning at the time, and that he required some conditions to be imposed to ensure that the mother’s health did not pose a risk to the child.

6. On 3 November 2017 the mother commenced these proceedings.  In the parties’ material, including notices of risk, significant allegations were made against each other.  Allegations were also made in relation to the paternal grandfather.

7. On 24 November 2017 Judge Willis determined the parties’ competing interim applications, in which the mother sought for the child to be returned to her care, live with her, and spend time with the father for two days a week, and the father sought orders that the child should live with him, and spend two nights of unsupervised time with the mother per week.

8. Judge Willis resolved the parties’ disputes substantially in favour of the mother, save that the child living with her was on the condition that the mother “maintain her regular psychological support, including attending on a psychologist no less than once a month, and that the child attends day care no less than two days per week on the days that the child is with her.”  Her Honour also made, on an interim basis, orders for equal shared parental responsibility.  The child was ordered to be returned forthwith to the mother, and thereafter the father would spend Saturday nights on two out of three weekends with the child, and Sunday night on the third weekend.  There was also further provision for the child to spend time with the father on Tuesdays and Fridays.

1. Thereafter Family Report interviews were conducted, and psychiatric assessments undertaken on the parties in early 2018.

2. On 13 July 2018 the father filed an interim application seeking an increase in the time that the child spends with him.  That resulted in consent orders being made on 7 September 2018, which provided for equal shared parental responsibility, for the child to live with the mother, but spend a total of four nights per fortnight with the father.  The proceedings were then transferred to the Family Court of Australia.  Those were the orders which prevailed at the time of trial before me. 

3. In December 2018, through to January 2019, the mother and child travelled to Germany for a holiday.

Current situation

1. As at the time of trial, both the mother and father remained residing in Town A.  The father continues to conduct a business in that city, with a staff of 10 employees.  The mother is not in employment, but is in receipt of some government benefits, together with spouse maintenance of $250.00 per week.

2. The child is now three years of age.  By all accounts, she is flourishing, and has a remarkably active life, undertaking a variety of activities which she obviously enjoys.

THE ISSUES

1. With the assistance of the parties at the Trial Management Hearing, I identified a number of issues which this litigation gave rise to.  Taking into account the fact that the mother no longer seeks international relocation, but wants instead to relocate to Town B, the issues as finalised are as follows:

   1.       What is the nature of the relationship between each parent and the child.

   2.What risk, if any, does each parent and/or their household pose to the child, and what, if any, means are available to adequately mitigate it.

   3.Would the child benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   4.Is it reasonably practicable for the mother to remain living in Town A, and if so, what effect would it have upon:

   (a) Her emotional and financial circumstances; and

   (b) Her parenting capacity.

   5.What benefits would relocation to Town B have for the mother, particularly in relation to:

   (a)Her financial circumstances;

   (b)Her parenting capacity.

   6.Is it reasonably practicable for the father to relocate to Town B, and if so, what effect would doing so have upon:

   (a)His emotional and financial circumstances;

   (b)His parenting capacity.

   7.If the mother and child relocated to Town B, but the father did not, would the mother facilitate a meaningful relationship between the father and child.

   8.(Deleted)

   9.Could the parties’ communication and relationship history adequately support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.

   10.If the mother and the child are ordered to remain living in Town A (not that that is the mother’s proposal) what orders are appropriate for the child’s time with the father and the impact that those orders would have upon the mother and the child. 

2. Once I have considered the relevant statutory provisions and legal principles, but in advance of a consideration of relevant s 60CC considerations, I will address those issues and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Family violence

1. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

2. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

Relocation

1. The application of these provisions in the context of relocation cases has been discussed by many authorities.  In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paragraphs 79 to 81, where her Honour said as follows:

   79. “In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -    that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -    the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   80. It follows from my exposition of the legislation, that earlier core principles:

   -    that the child’s best interests remain the paramount but not sole consideration;

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -    that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -     if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”

2. More recently in Zahawi & Rayne [2016] FamCAFC 90 the Full Court said (footnotes omitted):

   47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests.  What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

   …The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents:  obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[2]

   48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests.  However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation.[3] And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.

   [2] U v U (2002) FLC 93-112, at [92].

   [3]See, for example, the comments of Kirby J in AMS v AIF; AIF v AMS (1999) FLC 92-852, at [77]–[78].

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

ISSUE 1 – THE NATURE OF THE RELATIONSHIP BETWEEN EACH PARENT AND CHILD

1. Although the Family Report writer Ms F’s, observations of the parties were undertaken in March 2018, even at that time she noted that both parents had a comfortable relationship with the child.  She observed that the child willingly went to both parents, from whom she obtained nurture, comfort and support.

2. Although the mother had been the primary carer for the child, Ms F was ambivalent about whether that had translated through to a primary attachment.  She thought that the child was probably equally attached to both parents.  She noted that the mother and child’s bilingualism probably was a difference in their relationship, as distinct from the father and the child, as the father does not speak German.

3. Ms F was not tested in relation to any of this evidence, and I accept it.

ISSUE 2 – RISK POSED BY PARENTS AND MEANS OF MITIGATION

1. Given the circumstances surrounding the child’s injury in February 2017, there was some prospect that in the litigation the parties would seek to attribute responsibility for the injury to the other.  However that did not in fact transpire.  At the very most, the evidence would permit that the au pair is the most likely suspect if there was a deliberate infliction of the injury, but no real criticism of the father could be made either in relation to a failure to properly supervise, or selection of an inappropriate au pair.

2. Rather at trial, the father mounted a case that the mother, and more particularly her mental health, posed some form of risk to the child.  The father’s affidavit was replete with such allegations, and his oral testimony perpetuated them to a degree.  Thus, for instance, the father consistently asserted that, on occasion, the mother had afforded him additional time with the child, because she “was not coping” with caring for her.  He steadfastly refuted the suggestion that the mother was offering him further time so as to assist in developing and maintaining the child’s relationship with him.   He would have it that instead it was sign of the mother’s acknowledgment of her own failing.

3. In part, the father was probably misled in this respect by an unfortunate error in the report of a psychiatrist, Dr G, as to the mother’s mental health.  In that report, under the heading “DSM V diagnosis,” he not only opined that the mother had a “major depressive disorder (recurrent in remission)” but also a “cluster B personality.”

4. However in his oral evidence, Dr G emphasised that unfortunately he had left off the word “traits” after that latter diagnosis, and he emphatically rejected the suggestion that the mother suffered from a personality disorder.  He explained that the mother had reported an unsatisfactory developmental history, and when she was under stress, her cluster B traits can be more apparent than they otherwise are.  However he emphasised that she had no history of maladaptive coping (for example, substance abuse) and there was nothing about her having these traits which would disqualify her as a parent.  The fact that, when she becomes depressed from time to time, her presentation is coloured by her underlying personality traits, did not impact upon her capacity to be a primary parent.

1. Ms F, at the time she prepared the Family Report, had some reservations in relation to the mother’s mental health, but they have now gone, in the light of Dr G’s report.  Moreover she identified that the mother had in the past been proactive in seeking psychological assistance, and maintained a professional relationship with her Town A psychologist, and a psychiatrist in Germany.

2. I am not satisfied that the mother’s major depression (which is recurrent, but presently in remission) or her personality traits, comprise a risk to the child of any moment.

3. The only risk which Ms F ultimately identified as being live in this case was the potential exposure of the child to the parental conflict.  However neither party claimed that the exposure of the child to their conflict was a risk of a kind which disentitled either of them from maintaining a meaningful relationship with the child.

4. I am not satisfied that this is a case which has risk as a significant feature attached to it.

ISSUE 3 – BENEFIT OF MEANINGFUL RELATIONSHIP

1. Ultimately, again this is a matter which proved of little moment in the case.  Ms F was of the unchallenged view that the child would benefit from a relationship with each parent, and they would be best facilitated by regular face-to-face time being spent between the parent and the child, and both parents being as involved in her life as circumstances permit.  I accept that evidence.

ISSUE 4 – REASONABLY PRACTICABLE FOR MOTHER TO REMAIN IN TOWN A AND EFFECTS OF DOING SO

1. In relation to relocation, this was a significant focus of the case.  However the development of the mother’s case was a little unsatisfactory.  Until shortly before the trial commenced, her case had been that she wanted to relocate, preferably to Germany, or in the event that were not permitted, then to South East Queensland.  But, on the eve of the trial, she abandoned both of those positions, and claimed that she wished to relocate to Town B instead.

2. Although one might have thought that her case would be significantly structured around an inability to continue to live in Town A, that ultimately was not the way in which it was presented.  She conceded that she has a friendship group in Town A (albeit her best friend has now moved to Town H) and if she were not permitted to relocate, she would shortly commence upon the process of seeking employment there.

3. Although she called her psychologist to give evidence, Mr E did not express any view that the mother’s emotional coping would be in anyway adversely affected were she were required to stay in Town A, or that being required to do so would adversely impact upon her parenting capacity, and hence the child.

4. Ms F did not appear particularly troubled about the mother remaining in Town A either.  She said that although the mother would initially be saddened if not permitted to relocate, she had in the past been able to access counselling to assist her cope with emotional adversity, and whilst there would be a benefit to the mother in having a “fresh start” which may be deserving of weight, it fell short of improving her parenting capacity, which is already at an exemplary level.

5. Ultimately I am not persuaded that having to remain in Town A would significantly impact upon the mother’s emotional circumstances, albeit that a fresh start in another city may be of some benefit to her.  Given the mother’s concession that she is likely to be able to obtain employment in Town A, I am not persuaded that remaining in Town A is likely to impact adversely upon her financial circumstances.  Further, I am not satisfied that remaining in Town A would to have any significantly adverse impact upon the mother’s parenting capacity, and certainly to the extent that there may be any adverse impact, would not have any material impact upon the child.  I am satisfied that it is reasonably practicable for the mother to remain living in Town A.

ISSUE 5 – BENEFITS OF RELOCATION TO TOWN B

1. I have already noted the mother’s last minute change from relocation to Germany or South East Queensland, to Town B.  The mother hopes, in the event that relocation to Town B were permitted, to be able to secure employment there, but no evidence was led as to the sort of income which she would be able to derive from such work.  The mother also said that a benefit of relocation to Town B would be the fact that that city has an international airport, whereas Town A does not.  It was conjectured by her that it would thus make her and her family’s travel to and from Germany easier.  That may be taken as accepted.  She also pointed out that she has a close friend who is now in her first year of veterinary practice in Town H.  However Town H is still 90 minutes away from Town B, and Ms F’s evidence was that Town H is two and a half hours drive from Town A.  It therefore is not the case that the friend would be particularly more readily available than she is in Town A.

2. Otherwise, the benefit to the mother of Town B appeared to be a little more than a “fresh start.”  As I said to counsel during the course of submissions, in a sense, the mother would prefer to be anywhere but Town A.  However, there is a risk that the mother’s perception of the benefits of Town B over Town A may be too optimistic, and in the event that Town B did not prove a suitable base, there was no “plan B” identified by her.

3. The mother has never lived in Town B.  Indeed there was not even evidence she had visited there, although I accept it is likely she has.  Other than some perfunctory internet searches in relation to housing, there had been no real enquiry made by the mother as to the affordability of accommodation there.  Likewise, there was no evidence as to the day care arrangements that she would be able to obtain in Town B, although I accept that it is likely that she would be able to obtain something.  Similarly, there was no evidence as to potential schools for the child, and whilst it may be expected that schools of a similar quality to that which the parents have agreed to enrol the child in Town A would be available, there was simply no evidence of it.  Likely that was in large part because the mother’s preference for Town B only emerged at a very late stage.

4. The mother has no family in Town B.  There is no evidence that she has any friends in Town B.  Whilst her psychologist is in Town A, Ms F said that it was possible, under a new funding arrangement, for the psychologist to continue to provide therapy by video link, although some face-to-face sessions would still be required.

5. The evidence would not permit me to conclude that moving to Town B would improve the mother’s financial circumstances.  Whilst a “fresh start” may give her some emotional benefit, I am not satisfied that would translate into improved parenting capacity.

6. In conclusion, whilst there might be some benefits to the mother of moving to Town B, they do not appear to directly impact upon the child.

ISSUE 6 – REASONABLE PRACTICABILITY OF FATHER RELOCATING TO TOWN B

1. In discussing this issue, it is again important to note that the mother only introduced the notion of a move to Town B at the last minute.  The father therefore had a little opportunity to consider a move to Town B himself.  However, with what time he had available to make that consideration, he said it was not possible.  He pointed out that all of his practice’s clients are in Town A, and none are in Town B, and to the extent that he engages in work in Town B, it is only if the other party to a transaction or litigation is there.

2. He thought that, whilst his business does not see him assume active responsibility for a particular file, but rather to engage in supervision and assistance of employees, he would not be able to do that remotely from Town B.

3. He was cross-examined by reference to the possibility of using serviced offices in Town B, but he did not think that was practical either.  His concern was that, if he was absent from the principal place of his practice, it may be financially imperilled.  He certainly could not foresee that an office in Town B would be profitable as a standalone operation.

4. Again, because of the lateness of the mother’s selection of Town B, her case did not contain any material from which I could conclude that it was reasonably practicable for the father to relocate as well.  Particularly, it was not said by her that there was a gap in the market in Town B which the father could easily slot into, or that there was some dearth of professionals in that city.

5. True it is that the father told Ms F, back in March 2018, that he was then contemplating setting up satellite offices in capital cities, but that is quite a different proposition to establishing a second office in North Queensland.

6. Whilst there is a possibility that the father could relocate to Town B, the evidence falls well short of satisfying me that it is reasonably practicable for him to do so.

7. Were he to do so, then he would be deprived of the family support which he has in Town A, which I assess as considerable, and whilst I do not think that necessarily would impact upon his emotional circumstances, it plainly would reduce the sorts of practical assistance which his family members in Town A can provide. 

8. There is nothing in the material which would suggest that, if he were to relocate to Town B, it would adversely impact upon his parenting capacity.

9. Ultimately, I am unable to conclude on the evidence that it is reasonably practicable for the father to also relocate to Town B.

ISSUE 7 – MOTHER’S FACILITATION OF RELATIONSHIP FROM TOWN B

1. Ms F was of the view that the mother is open to facilitating a relationship between the child and the father, and to the extent that the mother had reservations about the relationship, it was really that the child was often being cared for by the paternal grandparents, rather than the father, when notionally in his care.

2. In concluding that the mother would likely facilitate a relationship between the child and father from Town B, Ms F pointed to the fact that the mother had given the father more time with the child beyond that which the orders of Judge Willis required.  She rejected the suggestion that the mother was doing so to help her cope with her own mental health problems, as the father asserted.

3. Now it the appropriate time to discuss the father’s concerns in that regard.  His affidavit was replete with the suggestion that the mother was unable to co-parent the child without his assistance.  He claimed the mother was deficient in her capacity to care for the child by virtue of her personality and depression.  However that is not supported by any of the expert evidence.  Dr G roundly rejected it, as did Ms F.  It was not suggested to Mr E that the mother was incapable of caring for the child, and hence had to use the father from time to time.  I reject the father’s suggestion in this respect.

4. Ultimately I am satisfied that the mother does see value in the child’s relationship with father, and would likely facilitate it from Town B.

ISSUE 9 – PARTIES’ COMMUNICATION SUFFICIENT TO SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY

1. At around separation and thereafter, the parties’ communication was very poor.  It was conflictual, rude, angry and hateful.  However by the time of the Family Report, that appears to have settled.  Particularly, by then the parties had taken to using the Talking Parents app, which the father advised Ms F had seen communication calm down.

2. Ms F’s evidence as to the parties’ communication appeared to accept that it is satisfactory, but in relation to whether there could be equal shared parental responsibility, was a little equivocal.  She identified that, in the past, the parties had struggled to come to decisions in relation to the child (for instance, choice of school, whether she should be baptised in the Catholic Church, and whether a German passport should issue for her) but ultimately had got there.  She though that perhaps the father uses his position to, in effect, bluff the mother in the course of negotiations, but ultimately expressed an admittedly optimistic view that, as parties’ separation becomes more distant, their communication tends to become better. 

3. Upon balance the evidence persuades me that, although not without difficulty, and particularly when using the Talking Parent’s App, the parties do have sufficiently good communication to discharge the responsibilities of equal shared parental responsibility.  That is not to say that the parties will not, on occasion, struggle, but ultimately they are likely to be able to achieve a child-focussed, negotiated outcome, satisfactory to both of them.

ISSUE 10 – IMPACT OF PARTIES’ PROPOSALS ON CHILD

1. Ms F was not particularly troubled about either parties’ proposals, whether relocation were permitted or not.  That said, she was troubled about the amount of travel which the child would need to undertake between Town B and Town A, which she identified could be tiring for the child, and lead to a negative perception of the requirement to travel to see her father.  But that evidence did not appear to resonate with either of the parties, who still continued to seek extensive commuting obligations in the event that relocation were allowed.

2. On the other hand, Ms F was strongly attracted to an order which the mother was seeking (again, introduced very late) which would see the child, prior to commencing school, live in Germany for six months, in an effort to immerse her in German language and culture, so that it became an organic part of who she is.  Ms F said that she was very much in favour of such cultural exposure, particularly given that the child is bilingual, and would only benefit from living in a country where German was the principal language.  She said that bilingual children tend to progress better academically that non-bilingual children.  The only practical issue she identified was to have the child’s six months in Germany commence at a time when the German pre-school was commencing, so that the child was part of the student mix from the outset, rather than coming in half way through, when children’s social relationships have already been established.

3. The father opposed the mother’s suggestion of six months in Germany, because he thought that it would be too testing for his relationship with the child.  However a number of means were identified in the evidence by which that could be ameliorated.  The first was the regular use of Skype, which although Ms F identified required hard work in order to achieve success, nonetheless could be done.  She gave instances of defence service personnel being able to maintain good relations with their children, notwithstanding absence overseas.  The other means she contemplated would be the father himself travelling to Germany, and spending time with the child whilst there.  Whilst I do not recall the father directly saying that he could not do so, his business requirements may preclude that altogether, or see any such time there significantly restricted.

4. The father did not contend that the six month period in Germany would not be beneficial for the child; his sole concern was that it would impact adversely upon the child’s relationship with him.  However in cross-examination by counsel for the mother, Ms F said that, so long as the mother put the effort in, there would be a smooth transition both to the child moving to spend time in Germany, and to the father re-establishing face-to-face time with the child back in Australia.  I accept that evidence.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that, in addressing the issues, I have already traversed both of the primary considerations, and a number of the additional considerations.  Nonetheless I further observe as follows.

2. The child is too young to express any views.

3. The child has good relationships with the paternal grandparents and other members of the paternal family.  She likely has good relations with her German relatives, although regular face-to-face time is not a present feature of those relationships.

4. Both parents have availed themselves of every opportunity to participate in decision making about the child, and to spend time and communicate with her.

5. The father pays his child support obligations to the mother.

6. The effect on the child of relocating to Town B would inevitably be to reduce the father’s engagement in her life, and restrict the sorts of activities which he can undertake with her.  During the course of evidence I identified a number of these, for instance taking her to after-school events, getting to know her friends, and being able to attend school functions.  That is not to say that the child would therefore, and thereby, be deprived of a meaningful relationship with her father, but rather it would be of a quite different character to that which would prevail if the child were living in Town A.

7. It is likely that the child’s experience of the paternal family generally would be reduced if she were to live in Town B.

8. If living in Town A, there is no practical difficulty or expense in the child spending time with the father.  However if living in Town B, there is both practical difficulty and expense associated with spending time and communicating with the father.  The child would be required to travel four hours each way by car, or a lesser time by air, if she were spending time with the father in Town A.  Whilst neither party contended that the cost would be prohibitive, plainly if the child is spending eight hours of a weekend commuting, there is practical difficulty in achieving regular time.  If the child were to fly, until about the age of five she would need to be accompanied, and that would be a significant expense.  Once she can commence flying unaccompanied, then the expense would be reduced.  Nonetheless there would be real cost involved.

9. I am satisfied that both parties have the capacity to properly provide for this child.

10. Apart from their conflict, both parties have exemplary attitudes to parenthood.

11. There has been extensive family violence between the parties during the relationship, and shortly thereafter.  On occasions it has been physical, but mostly verbal.  There has been family violence orders between the parties from time to time, although often made by consent without admission.  The inference which I draw is that the relationship was marred by family violence, with both parties being perpetrators.  However this is not a case where, leaving aside parental responsibility, either party contended that the historic family violence had any real role to play.  I accept that is so.

12. Plainly it would be preferable to make an order least likely to lead to further litigation.

13. The mother has the right, subject to relevant domestic law, to travel and live wherever she may choose.

PARENTAL RESPONSIBILITY

1. Given my findings in relation to family violence, the presumption of equal shared parental responsibility does not apply.  The question then is what order would be in the best interests of the child in relation to decision making for her.  With the assistance of the parties during the course of hearing, I identified the following points as favouring equal shared parental responsibility, or being against an order for sole parental responsibility:  

   (a)The father and mother both have much to contribute to decision making in relation to the child, and equal shared parental responsibility would likely maximise the opportunity for that benefit to be obtained;

   (b)Sole parental responsibility could be used by the mother in a way which adversely affected the father’s time with the child (eg. weekend sporting commitments);

   (c)If the mother were to suffer a further occasion of major depression, she might not be able to make optimal decisions about the child (although mother has been proactive in managing mental health in therapy);

   (d)Equal shared parental responsibility has, albeit “clunkily,” worked to date.

   (e)Some difficult decisions have already been made, and hence laid the foundations for related decision in the future (eg baptism and passports);

   (f)Both parents have similar approaches to matters eg religion, importance of German Culture, medical care and passports;

   (g)The mother’s last minute decision to change relocation from Germany/South East Queensland to Town B might show that she may be prone to some impulsivity in decision making.

1. On the other hand, I identified the following points as favouring sole parental responsibility, or telling against equal shared parental responsibility:

   (a)Sole parental responsibility will ensure timely decision making;

   (b)Sole parental responsibility may lead to a reduction in parental conflict (although it might do exactly the opposite);

   (c)In the past, equal shared parental responsibility has seen joint decision making a difficult and protracted process, (although that said, the parties have eventually made the decision, and their ability to act co-operatively might improve once this litigation concludes);

   (d)The history of domestic violence between the parties indicates the prospect of difficulty in the discharge of equal shared parental responsibility.

2. Weighing those considerations tells in favour of an order for equal shared parental responsibility.  The fact is that the parents have been able to achieve joint decision making in relation to this child without the need for judicial determination (albeit sometimes it has been on the doorsteps at the court).  Whilst there has been historic family violence, and whilst it may be that makes the negotiating process more onerous, the fact is that the parties have been able to achieve sound joint decisions to date.  It is the process which has underpinned those decisions which has been problematic, and particularly the father’s delay on occasions in reaching or implementing a decision.  However I do not weigh that as telling ultimately against equal shared parental responsibility. 

3. I am satisfied that an order for equal shared parental responsibility in the child’s best interests, and will make it.

RELOCATION

1. Under the Act, I am obliged, by virtue of the order for equal shared parental responsibility which I intend to make, to consider firstly, an equal time regime, and if not satisfied that it is either in the child’s best interests or reasonably practicable, then a substantial and significant time regime.  However central to both of those considerations is the question of relocation.

2. Again with the assistance of the parties during the course of the hearing, the following points were identified as favouring relocation to Town B.

   (a)It would give the mother the opportunity for (or at least perception of) a “fresh start;”

   (b)It would give the mother (and child) such benefits as close proximity to an international airport might afford;

   (c)It might effect some reduction in conflict (or at least the opportunity for it) between the parties;

   (d)It would see the mother living slightly closer to her best friend in Town H;

   (e)It would enable the father to enjoy a regime of time with the child which might (albeit only just) qualify as significant and substantial time;

   (f)Relocation may, to some degree, shield the mother from the father’s attitude towards her (unless the father were to also relocate);

   (g)It is a live possibility that at some time during the child’s infancy, the father may move to Town B.

3. On the other hand, the following points were identified as not favouring relocation to Town B (unless the father also relocated).

   (a)It would render an equal time arrangement, or something approaching it, (ie anything greater than a 3/14 split) practically impossible;

   (b)It would make it harder for the father to be involved in many areas of the child’s life, eg schooling and homework; knowing the child’s friends; taking the child to after school activities;

   (c)It is unknown whether it is in fact reasonably practicable for the mother to live in Town B (eg employment, affordable housing, day care);

   (d)The late articulation of the mother’s proposal suggests that it might not have a considered choice, or that it might be strategic;

   (e)There is, little, if any, evidence, of the schooling options for the child in Town B, and particularly as to whether a school equivalent to that which the child is enrolled in at Town A exists, and would enrol her;

   (f)The mother’s psychologist (of some years) if in Town A (albeit that could continue via video);

   (g)The chore of regular travel for the child could negatively impact her experience of her relationship with the father;

   (h)There would be considerable costs and effort required for the parties affecting the changeover of the child on as regular a basis as each propose;

   (i)The mother may be looking at the perceived benefits of relocation through rose coloured glasses.

4. To my mind, the two significant countervailing considerations here are, on the one hand, the opportunity of the fresh start for the mother in Town B, and on the other, the fact that the move inevitably would mean that neither an equal time, nor a substantial and significant time regime, could be enjoyed by the child with the father after she commenced school.  True it is that nonetheless a meaningful relationship would continue, but it would certainly be sub-optimal, and it would be of a quite different character to that which would otherwise prevail if she were living in Town A.

5. If I had been persuaded that the “fresh start” was likely to lead to a material improvement in the mother’s parenting capacity, and hence have benefits for the child, then the outcome may have been quite different, but ultimately I am satisfied that the absence of any real material benefit to the child in moving to Town B, means that the cost to her, of having a diminished relationship with her father, sees her best interests lie in continuing to remain in Town A.  I therefore do not intend to permit relocation.

CHILD’S LIVING ARRANGEMENTS

1. Given that I do not intend to permit relocation, the question of reasonable practicability of either equal time or significant and substantial time does not loom large. I am satisfied that all of the four matters specified in s 65DAA(5) tell in favour of a finding of reasonable practicality. The question then is what regime is in the child’s best interests.

2. In the course of the trial, the following points were identified as being in favour of equal time, or significant and substantial time, or against the mother’s proposal:

   (a)The child would benefit from a meaningful relationship with both parents, and equal time may, and significant and substantial time would, likely be the best means of facilitating those relationships;

   (b)The present regime comprises significant and substantial time, under which the child is flourishing;

   (c)Anything less than significant and substantial time will likely see the father unhappy, with the live prospect of further litigation in consequence;

   (d)Equal time, or significant and substantial time, would enable the mother to maximise her opportunities for employment without the need for extensive day care.

3. On the other hand the following points are in favour of the mother’s proposal, or against the father’s:

   (a)The mother’s proposal would see the child with a clear primary carer and home, which may benefit her;

   (b)Many of the factors identified in T & N [2001] FMCAfam 222 are not met, which predicts equal time, or a significant split of time in favour of the father, may not be workable in reality;

   (c)A disproportionate skew of time in favour of the mother may, to a degree, protect the child from exposure to parental conflict, and/or protect the mother from exposure to the father’s views in relation to her.

4. Ms F did not see any impediment to equal time, in the event that relocation were not permitted.  She thought that it should occur at the end of grade one.  In the case of this child, given her birthday is in about the middle of the year, it is not clear what age she will first attend grade one.  However Ms F plainly had in mind an age of about six.

5. The father did not contend for an immediate move to equal time, but rather contemplated that it would occur as Ms F recommended.

6. Ultimately I am satisfied that the regime contended for by the father is more in the child’s best interests than the alternative, and therefore will so order.  Particularly:

   ·It sees a steady progressive increase in the father’s time with the child until the age of 6, at which time, in accordance with Ms F’s prescription, equal time may be contemplated;

   ·Whilst the father did concede that the mother should be the primary carer of the child, that in fact is the situation until the child turns 6 under his proposal.

THE GERMAN EXPERIENCE

1. I have already discussed the mother’s desire to spend six months with the child prior to her commencing school in Australia in Germany.

2. Counsel for the father, in opposing that order, said that she was in the unfortunate position of arguing against a “lovely idea.”  She identified that the cost of the “lovely idea” would be to potentially set back the father’s relationship with the child.  I am not satisfied that is likely.  Particularly, I have already identified that by creative use of technology, and by the father himself potentially travelling to spend time in Germany while the child is there, the relationship can well and truly be maintained.

3. Even if there be some period of disruption, nonetheless I am satisfied that the opportunity for the child to be immersed in German culture, language and society, such that it is experienced by her at a young age and thus becomes an organic part of her, too valuable an opportunity to let slip.  The father concedes that the child will benefit from billinguality and having two cultures informing who she is, and I agree.  I am not satisfied that is likely to be best achieved by the child having “holiday experiences” in Germany, but rather, living there for an extended period as an infant will give her a grounding that she would otherwise not be able to obtain.  It is likely to be of a significant benefit for her for the balance of her life.

4. I am well satisfied that the orders in relation to the child spending six months in Germany prior to commencing school in Australia are in her best interests, and will make them.

OTHER PARENTING ORDERS

1. Otherwise I am satisfied that the orders as sought by the Independent Children's Lawyer are in the child’s best interests and will make them.

PROPERTY

1. There was a relatively slender dispute between the parties in relation to property.  Ultimately however, the father conceded that an adjustment by way of payment to the mother was needed, and he proposed a payment of $90,000.00.  The mother proposed a payment in a larger sum, which would depend upon whether or not certain liabilities identified as being in the pool were given the values attributed to them.

Relevant facts

1. The only significant asset in the property pool is the father’s business.  As to that, the parties commissioned a joint valuation at three points in time, being September 2014, September 2016 and 30 December 2018.  The September 2014 valuation of the business saw it worth $28,303.00.  As at 30 September 2016, it was said to be worth $46,202.00.  However as at 30 December 2018, it was said to have a value of $536,184.00.  In large part that increase is, as I understand the valuations, reflective of a significant amount that is held as cash at bank by the business.

2. When the relationship commenced, the father had already established the business and was in employment there, and the mother was a backpacker.  During the course of the relationship both parties worked, although I am satisfied that the father earned considerably more than the mother.  The mother’s employment appears to have been sporadic, and mainly in the nature of waitressing and the like, although as I understand it, she has also done some work as an interpreter, and has also done some volunteer work in a pet shelter.

The pool

Overview

1. The parties tendered an agreed schedule of assets and liabilities as follows:

Asset/liability	Held	Wife’s value	Husband’s    value
J Firm	Husband	536,184	536,184
Motor vehicle	Wife	2500	2500
Household contents	Wife	1500	1500
Household contents and bike	Husband	4000	4000
Superannuation	Wife	55,153	55,153
Superannuation	Husband	67,590	67,590
Debts to HECS	Husband	(33,527)	(33,527)
Directors loan	Husband	(98,917)	(98,917)
Personal loan (parents)	Husband	(8352)	(8352)

Net = $527,131.00

1. However, the mother contended that items 8 and 9 should, for the purposes of these proceedings, be given a nil value, or alternatively treated in such a way under s 75(2)(o) as to effectively negate them. That is because she said that the director’s loan is a loan by the corporate operator of the father’s business to the father, and since he is the sole director of the corporation, he controls whether it will ever be repaid, and if so, by what means, and over what period. In a sense, counsel for the wife was contending that this was a debt which the father owed himself.

2. Whilst that may be true, the fact is that if the company were to go into liquidation, the father would lose control of it and the liquidator would no doubt seek to recover the loan from him.  Moreover, the father is under a director’s fiduciary duties to the company, such that he could not legitimately forgive the loan unless there was some reason in the company’s interests to do so, and moreover, even if it were to be forgiven, it may well have some tax consequences.

3. I am not satisfied that the director’s loan should be, in effect, ignored by given a zero valuation. It is a live, extant, liability. I intend to however, be cognisant of the fact that the father is, in effect, both debtor and creditor, when considering s 75(2) factors.

4. As to the personal loan to the parents, there is some ambiguity in the evidence as to whether or not there is still a liability to them in that sum.  Certainly the evidence of the father and the paternal grandmother was that the liability was recent and extant.  True it is that the paternal grandmother said that it was evidenced in a written loan document, which specified interest at a rate of 5%, but which document had not been disclosed by the father, and true it is that the paternal grandfather seemed to think that there was no liability, but nonetheless, on balance, I am satisfied that the liability exists.

5. In the past the father has repaid loans from his parents, and I am satisfied that he is likely to do so again, albeit, no doubt it will only be when he can do so.

6. I decline to ignore or give zero value to the personal loan to the parents, but again, I will take into account the circumstances of that loan under s 75(2)(o).

7. It therefore follows that I accept that the schedule of assets and liabilities as tendered is accurate, and thus there is a net property pool of $527,131.00.

Contributions

1. The father introduced into the relationship the business, which is far and away the largest asset in the balance sheet.  Also, during the course of the relationship, I am satisfied he was the greater income earner, although the mother was not without some income.  On the other hand, I am satisfied that, by virtue of her homemaker/parent contributions, not only did the mother maintain the household, but she contributed to the father’s ability to progress and grow the business.  That said, as has been seen, much of the increase in value of the business has been post-separation, albeit for that period of time, the mother has been the primary carer of the child.  That will continue for some years to come.

2. Counsel for the mother advanced a Kennon[4] argument, and said that the mother’s contributions were rendered significantly more onerous by virtue of the family violence.  However not only does Kennon warn against the floodgates opening if cases engaging relatively common facts such as this were to recognise more onerous contributions, but further, it was a short relationship, and the period between the birth of the child and separation was even shorter.

   [4]Kennon & Kennon (1997) FLC 92-757.

3. I am not satisfied that this is a case where the principles espoused in Kennon have application.  That said, even on the basis of a Kennon argument, the mother only argued for a 10% to 15% contribution based entitlement.  Somewhat ironically, counsel for the father conceded a 10% contribution based entitlement to the mother.

4. I am satisfied that the mother’s contribution based entitlement is indeed dramatically lower than that of the father, and assess it at 15%.  In so assessing it, I give weight to her homemaker/parent contribution, albeit in the context of a short relationship, and I give weight to the fact that, at least for the duration of the relationship, her homemaker/parent contribution was able to free the father to contribute to the business in ways that he would not have otherwise been able to do.

SECTION 75(2) FACTORS

1. Both parties are in their 40s and in generally good health. The mother does have a diagnosis of recurrent, but presently in remission, major depression. As unfortunate as it may be, it is quite foreseeable that it will continue to manifest itself on occasions during her life. I therefore take that into account in her favour in relation to s 75(2) factors.

2. But for the father’s business, the parties have little assets that are presently able to be enjoyed by them.  Indeed the only other significant asset is superannuation.  That said, the father will keep the practice, which plainly is valuable and represents a significant financial resource to him.  The mother left the relationship, subject to any adjustment that is made in her favour, with little property, slender financial resources, and income derived only from child support, government payments, and any spouse maintenance which I may order.

3. Whilst the mother has capacity for gainful employment, she is not presently in employment.  It is not possible to quantify the likely income that she would earn were her earning capacity deployed in Town A.

4. For the next few years the mother will have the primary care and control of the child.  Thereafter she will be equally shared between them.

5. The mother has, according to her financial statement filed 14 May 2019, weekly expenditure of $1,014.00.  The father has expenditure of $1,966.00.  That said, there is some relationship between those two, in that the father’s expenditure includes child support of $150.00 per week, but does not include (for reasons I cannot presently understand) the spouse maintenance of $250.00 per week which he pays.

6. Of her expenditure, the mother says that $332.00 per week is applicable to the child, whereas in the father’s case, $105.00 is applicable to the child.

7. Neither party has the responsibility to support any person other than the child.

8. The mother’s entitlement to her social security payments is income tested, and therefore I must disregard it.

9. Neither party presently has any eligibility for a pension, allowance or benefit, under a superannuation scheme.

10. Both parties seem to live relatively modestly, and I am satisfied that is a reasonable standard of living for them.

11. The mother proposes that she should have spouse maintenance paid to her until she is entitled to enrol at a university and access the HECS scheme, rather than required to be full fee paying.  Inferentially, she seeks a payment of maintenance to enable her to continue to live until she can commence upon university education in Australia.

12. The mother’s contribution to the father’s practice is extant, but limited.

13. The relationship was of short duration, and the marriage even shorter.

14. The mother wishes to continue as a parent for the child, as indeed does the father.

15. Neither party have formed new relationships, or are cohabiting with any other person.

16. The father is paying child support in the sum of $150.00 per week.

17. I have already identified that the director’s loan from the father’s corporate practice operator to him, and his loan from his parents, have a degree of flexibility associated with them.  I take that into account, and I give that some weight.

1. Weighing those factors in the balance, even on the father’s case, sees a considerable need for adjustment in favour of the mother, in order for the property division to be just and equitable. The father conceded a 17.5% adjustment referable to s 75(2), whereas the mother sought a 25% to 30% adjustment.

2. Ultimately I am satisfied that the adjustment to the mother referrable to s 75(2) factors should be a further 20%. In dollar terms, that translates to a further $105,426.20. I am satisfied that, whether expressed as a dollar figure, or a percentage, that is reasonable adjustment.

Evaluation – just and equitable

1. Adding the mother’s contribution based entitlement of 15%, and 75(2) entitlement of 20%, sees a total of 35%, which is $184,495.85.  The mother’s car, furniture and superannuation amount to $59,153.00, which therefore would see the father obliged to pay her a further $125,342.85.  I am satisfied that, standing back, such an outcome is just and equitable.  Particularly:

   ·It will see the father retain his business, which is of considerable value and secures his financial future;

   ·It will see the mother with a sum of capital which should provide her with some financial security, and perhaps enable her to afford housing, assuming that she can obtain employment;

   ·It reflects the father’s far superior earning capacity;

   ·It reflects the fact that the mother will, until the child turns six, be her primary carer;

   ·Although the father will take responsibility for the parties’ debts, they are flexible in nature.

2. There will therefore be an order in accordance with that evaluation.  It should be payable within three months.

SPOUSE MAINTENANCE

1. I have already addressed the relevant s 75(2) factors, and do not need to repeat that analysis. Also now relevant is the fact that the mother will, under the orders which I propose, receive a further $125,342.85, to attain a total entitlement of $210,852.40.

2. The mother’s unchallenged evidence is that, if required to stay in Town A, as she now is by virtue of her application for relocation being denied, she will seek employment.  There is no reason to believe that someone like the mother will not be able to secure employment.  If I were to make an order for spouse maintenance for the next two years as she contends, it is almost inevitable that, once she secures employment, her financial circumstances would change, and the matter would need to come back before me.  However realistically it is likely to take a little while for her to obtain employment, perhaps somewhere in the order of 6 months.  Until then, it is reasonable that the spouse maintenance continues in the presently ordered sum of $250.00 per week.  Particularly:

   ·The mother’s need for spouse maintenance is clearly established;

   ·The father’s capacity to pay spouse maintenance is not seriously in doubt;

   ·Within a three month period, the father will be obliged to pay the mother the sum payable by way of property division;

   ·Within 6 months, the mother should be able to obtain employment, or at least be well down the track to securing it.

3. Therefore I am satisfied that for a period of six months, there should be an order continuing the present arrangement, whereby the father pays spouse maintenance to the mother in the sum of $250.00 per week.  I will so order.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.     

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 5 September 2019.

Associate:

Date:  6 September 2019