JENNINGS & JENNINGS

FAMILY COURT OF AUSTRALIA

JENNINGS & JENNINGS

[2019] FamCA 86

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Where the mother is relocating to New Zealand – Where the father is remaining in Australia – Where there are allegations of family violence – Whether a parent is capable of supporting and promoting a relationship between the children and the parent they do not live with – Where the parties are not able to effectively communicate – Where the parties are not able to co-parent effectively – Any relationship between the parties is now estranged – Where the mother intends to relocate regardless of the outcome of the matter – Where the tyranny of distance will inevitably impact on the children’s relationship with the parent who does not have primary care – Meaningful relationship.

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Superannuation – Consideration of contributions – Where it is appropriate to make orders to adjust the interests of the parties.

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(1), 60CC(2), 60CC(2A), 60CC(3), 75(2), 79

AMS v AIF (1999) 199 CLR 160
Bevan & Bevan [2013] FamCAFC 116
Clauson & Clauson (1995) FLC 92-595
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright [2007] FamCA 520
Pascoe & O’Keefe and Ors [2018] FamCAFC 243
Pierce v Pierce (1999) FLC 92-844
Stanford & Stanford (2012) 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Ms Jennings

RESPONDENT:

Mr Jennings

INDEPENDENT CHILDREN’S LAWYER:

Terrill & Associates

FILE NUMBER:

DNC

2018

DATE DELIVERED:

26 February 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Berman J

HEARING DATE:

30 - 31 January 2019 and 1 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Giacomo

SOLICITOR FOR THE APPLICANT:

Ward Keller

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Terrill

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Terrill & Associates

Orders

That the wife shall have sole parental responsibility for X born … 2005, Y born … 2007 and Z born … 2013 (collectively “the children”) provided that the wife shall consult with the husband regarding the long term care, welfare and development of the children in respect of their education and serious medical decisions to the intent that the parties shall use their best endeavours to reach agreement, but if unable to do so THEN the wife shall make the necessary decisions and advise the husband in writing as soon as reasonably practicable.
That the children live with the wife forthwith.
That the wife be permitted to relocate with the children to New Zealand forthwith.
That the children spend time with husband as may be agreed between the parties but failing agreement as follows:-
(a)In 2019 and each alternate year thereafter for the entire term 2 and 4 gazetted New Zealand school holidays;
(b)In 2020 and each alternate year thereafter:-
(i)For the entire term 2 gazetted New Zealand school holidays;
(ii)For the last four weeks of term 4 gazetted New Zealand school holidays.
(c)For the purposes of this order and unless otherwise agreed in writing between the parties the children shall commence travel to Darwin on the day immediately after the final day of school term (subject to flight availability) and shall return to New Zealand at least forty eight (48) hours prior to the commencement of the first day of school term.
For the purposes of the husband’s time pursuant to order 4 herein the following shall apply:-
(a)The husband shall book and pay for the children’s flights from City G to Darwin (or a location within Australia nominated by the husband) and provide a copy of the children’s flight itinerary to the wife no less than thirty (30) days prior to the children’s travel;
(b)The wife shall book and pay for the children’s flights from Darwin (or a location within Australia nominated by the husband) to City G and provide a copy of the children’s flight itinerary to the husband no less than thirty (30) days prior to the children’s travel;
(c)The wife shall be responsible for booking and paying for an adult to accompany the children between City G and Australia and vice versa;
(d)That should the husband nominate a location other than Darwin, he shall give the wife no less than forty (40) days written notice to the commencement of the children’s time with him.
That should the husband travel to L Town or the surrounding area in New Zealand he permitted to spend up to twenty one (21) days with the children PROVIDED:-
(a)He give the wife no less than twenty one (21) days written notice;
(b)He ensures that the children attend school and any extra-curricular activities;
(c)Such time is not to occur during the children’s school holiday time with the wife.
That the children have telephone communication and/or Skype with the parent with whom they are not living or spending time with at the times agreed in writing between the parties but failing agreement as follows, with the parent whom the children are not living spending time with to initiate the call at 7.00 pm in the time zone that the children are living:-
(a)Each Monday, Wednesday and Saturday;
(b)Each of the children’s birthday;
(c)The husband’s birthday;
(d)The wife’s birthday
(e)Christmas Day;
(f)On such other occasions and times as the children may reasonably request.
That both parties do all acts and things and sign all documents necessary to obtain and/or renew an Australian and/or New Zealand passport for each of the children and for the purpose of this order the following shall apply:-
(a)The wife shall send to the husband completed passport applications for the children by express post addressed to him at his current residential address;
(b)If the husband shall fail return to the wife within fourteen (14) days after posting, the passport applications signed by him, a Registrar of this Court may sign the application instead of the husband and his signature and consent otherwise be dispensed with;
(c)The wife is to retain the children’s passports and provide a certified copy to the husband.
That either parent be permitted to travel with the children interstate or overseas during the gazetted school holidays, PROVIDED that they give the other party no less than twenty eight (28) days notice of their intended travel and provide a copy of the return flight and itinerary and contact details for the children whilst travelling.
Each parent is to keep the other informed of their contact details including a landline (if applicable) and mobile telephone numbers and residential addresses and notify the other of any change in these contact details within forty eight (48) hours of any such change.
That each party is hereby authorized to obtain from the children’s school all notices, letters and school reports.
That each party is hereby authorized to obtain any information and reports from any medical practitioner, health professional or dental practitioner involved in treating the children so far as the practitioner can provide at law.
That each party is to notify the other immediately of any emergency involving either of the children.
That each party shall notify the other in writing of the names of any treating medical practitioner of the parties.
By way of alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) the husband shall pay to the Trust Account of Ward Keller for and on behalf of the wife the sum of FIFTY FOUR THOUSAND FIVE HUNDRED AND FORTY ONE DOLLARS ($54,541) (“the settlement sum”).
That contemporaneously with the payment of the said settlement sum the wife do sign all documents and do all things necessary to transfer to the husband all her right, title and interest in the property situate at H Street, Suburb D, NT … (“the former matrimonial home”) being the whole of the land contained in Certificate of Title Volume … Folio …, Lot … Town of E at the husband’s cost.
That contemporaneously with the payment of the said settlement sum and the consequent transfer of the wife’s interest in the former matrimonial home to the husband, he do all things necessary to refinance the J Bank home loan account #01 and the 4WD Loan #00 into his sole name and that he indemnify the wife and keep her indemnified in respect of same.
That within seven (7) days of the date of these orders the wife shall transfer to the husband her right, title and interest in the 4WD, NT registration number ...
That within seven (7) days of the date of these orders the husband shall transfer to the wife his right, title and interest in the Motor vehicle 1, NT registration number ...
That within seven (7) days of the date of these orders the parties sign all documents and do all things necessary to close the joint J Bank account number #40.
That in the event that the husband shall fail to pay the settlement sum either in whole or in part and should the default extend for more than fourteen (14) days THEN the parties shall do all things necessary to list and sell the former matrimonial home as follows:-
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within fourteen (14) days from the date of these orders the real estate will be as nominated by the then President of the Real Estate Institute of the Northern Territory at the request of the parties or either of them;
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within fourteen (14) days of the date of these orders the list price will be as nominated by the real estate agent;
(c)The sale price of the property will be such amount as agreed between the parties and failing agreement any offer to buy the property that is at least 90 percent of the list price shall be accepted by the parties as the sale price;
(d)The husband is to cooperate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer;
(e)Upon agreement being reached for the sale of the property the parties shall execute all documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
(f)The proceeds of sale shall be paid in the following manner and priority:-
(i)To discharge the mortgage owing to J Bank home loan accounts #01 and #00;
(ii)Payment of the agent’s commission and advertising or other costs of sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv)The payment of the settlement sum or so much as is outstanding together with default interest to be calculated by reference to the Family Law Rules 2004 (Cth) on any amount outstanding together with the balance outstanding.
That pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the husband’s interest in the Superannuation Fund 1 (“SF1”), the Trustee shall pay to the wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of TWENTY ONE THOUSAND EIGHT HUNDRED AND THIRTY FIVE DOLLARS ($21,835) and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
That whenever the Trustee of SF1 makes a splittable payment out of the member’s spouse interest in SF1, the Trustee shall do all acts and things and sign all documents necessary to pay the entitlement created at order 22 herein in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation Splitting) Regulations 2001 (Cth).
That the operative time for the payment split under these orders shall be four (4) business days from service of a certified copy of these orders upon the Trustee.
That as between the husband and wife and subject to the above orders they shall each respectively retain all interest and entitlement to:-
(a)All personal property now in his/her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;
(c)All interest in life insurance policies and superannuation funds standing in his/her sole name respectively.
That as between the husband and the wife and subject to the above orders the husband and wife shall indemnify the other and keep the other indemnified for all credit cards, personal loans and any other liability in his/her sole name.
That in the event that either party shall refuse or neglect to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by affidavit.
That the husband shall indemnify the wife in respect of any liability outstanding for the Electrical Account in the sum of TWO THOUSAND SEVEN HUNDRED AND SEVENTY SIX DOLLARS ($2,776) and the J Bank Loan for the 4WD in the sum of THIRTEEN THOUSAND TWO HUNDRED AND SIXTY DOLLARS ($13,260).

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 Jennings & Jennings 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

FILE NUMBER: DNC 51 of 2018

Ms Jennings

Applicant

And

Mr Jennings

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between Ms Jennings (“the wife”) and Mr Jennings (“the husband”) relate to property settlement and the future parenting arrangements for three children, namely X born in 2005, Y born in 2007 and Z born in 2013 (collectively “the children”).
The wife commenced the proceedings by Initiating Application filed 17 May 2018 seeking orders that she be permitted to relocate with the children to New Zealand.
The husband opposes the orders sought by the wife. He seeks that the children remain in Australia and live with him.
The parties have modest property and superannuation.
The Court is assisted by the appointment of an Independent Children’s Lawyer (“ICL”).
At the commencement of the hearing I caused the husband to be provided with a copy of Re F: Litigants in Person Guidelines (2001) FLC 93-072 and extracts of the Family Law Act 1975 (Cth) (“the Act”) with specific focus on s 60CC and div 12A. The proceedings were then stood over to allow the husband to read and digest the material provided. Whilst the husband was self-represented, he indicated that he had sought legal advice and had instructed solicitors to prepare his Court documents.
The issue of the application of div 12A had been raised at an earlier directions hearing and after consideration the parties elected to opt in to div 12A of the Act for the purpose of the proceedings.
I reminded the parties of the importance of the relevant sections of div 12A and the extent to which the provisions of the Evidence Act 1995 (Cth) were applicable.
For the benefit of the husband I summarised how the trial would proceed and emphasised that he would have an opportunity to respectfully cross-examine the wife, her witness and the family consultant, but also that he would be able to adduce further evidence in examination in chief where appropriate to do so, that he would be the subject of cross examination and that there would be a further opportunity in re-examination to adduce further evidence where it was necessary to resolve inconsistencies or enable me to gain a better understanding of a particular issue in contention.
The prospect of the husband cross examining the wife was discussed with the parties and counsel. Tentative arrangements were made for the wife’s cross examination to be conducted remotely. Whilst obviously a matter for the Court, I was assisted by the intimation of the wife’s counsel that it was not the wife’s intention to have her evidence given remotely.
The parties elected to opt in to div 12A of the Act for the purpose of the proceedings.

Documents relied upon

The wife relies upon the following documents:
a)Amended Initiating Application filed 26 October 2018.
b)Wife’s Trial Affidavit filed 26 October 2018.
c)Affidavit of Mr K filed 29 October 2019.
d)Financial Statement filed 29 October 2018.
e)Wife’s Affidavit filed 18 January 2019.
f)Case Outline Document filed 23 January 2019.
The husband relies upon the following documents:
a)Amended Response filed 21 December 2018.
b)Husband’s Trial Affidavit filed 21 December 2018.
c)Financial Statement filed 21 December 2018.
The ICL relies upon the following document:
a)Family Report dated 14 December 2018.

Orders sought

The wife’s orders are outlined in her Case Outline Document at Annexure “A”. She seeks that the parties have equal shared parental responsibility for the children to the extent that the parties should consult with each other about potential decisions but that the parent with the primary care of the children is to make the final decision where there is disagreement between the parties. She proposes that the children spend two school holiday periods per year with the parent who does not have the primary care of the children, with the parties to equally share the cost of airfares.
With respect to property, the wife seeks a division of the non-superannuation asset pool as to 60 per cent in her favour. She is seeking a settlement sum of $80,000 and that the respective superannuation entitlements of the parties be split to equality.
The husband opposes the orders sought by the wife and seeks that the children remain in Australia with him. He seeks that the property of the parties be divided as to 70 per cent in his favour and 30 per cent to the wife.
The ICL proposed to reserve her position to the conclusion of the evidence. The ICL considered it necessary to conduct an analysis of the “credibility” of the parties and their evidence before promoting any order. I do not consider that it is axiomatic that an ICL should only be required to given an indication of orders that are sought following the hearing of the evidence.
The evidence of the parties is contained in their trial affidavits and there is the further advantage of a comprehensive family report. I do not consider that the function of the ICL should include assessments of credibility and in any event the parties are entitled to know the position to be adopted by the ICL. It is entirely proper that a consideration of the evidence may invite a reconsideration of any preliminary position adopted by the ICL.
It was an important consideration that the ICL had spoken to the children.

At a late stage in the proceedings the ICL supported the children living with the husband unless the Court found that he could not promote and support the children’s relationship with the wife. In her final submission the ICL maintained that position.

Background

The wife is 46 years old and the husband is 48 years old. They are both in full-time employment and earn a similar wage.
The wife was raised in New Zealand and moved to Australia in 1994. The husband was born and raised in Australia.
The parties met in 2004 and were married in 2006. They separated on 22 June 2016.
At the commencement of the relationship the wife had modest property comprising a motor vehicle and a motor bike. The husband had a two bedroom unit in Adelaide and a motor vehicle.
Following separation the parties reached an informal shared care arrangement for the children. The children lived with each party on a week about basis. In or around May 2017 the arrangement was amended such that the children lived with the parties on a fortnightly basis.
The children spent supervised time with the husband from 14 February 2018 until 6 September 2018 following an incident at the wife’s home.
Orders were made on 31 August 2018 that as and from 6 September 2018 the children spend time with the husband each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday.
The wife says that there is a history of family violence perpetrated by the husband. She wants to move to New Zealand in part to escape from the husband’s “ongoing controlling, intimidating and harassing behaviour…” The husband “vehemently denies” the allegations and says that the parties had a good life together.
The wife has re-partnered with Mr K. The husband has not re-partnered.

Proposals of the parties

The wife seeks that the children live with her and be permitted to relocate to New Zealand. In those circumstances the wife seeks that the children spend time with the husband as may be agreed between them but failing agreement for the entirety of terms 2 and 4 of the gazetted New Zealand school holidays in 2019 and each alternate year thereafter and in 2020 and each alternate year thereafter for the entirety of term 2, but only for the last four weeks of term 4.
The wife asks that the parties share equally in the travel costs associated with flights between City G and Darwin, but that she be solely responsible for the cost of any adult required to accompany the children until such time as they can travel unaccompanied.
The wife further proposes that should the husband travel to L Town he be permitted to spend up to 21 days with the children provided that any such travel not interfere with the children’s attendance at school and extra-curricular activities nor coincide with the children’s school holiday time with her.
Should the children not be permitted to relocate then the children will live with the husband and spend time with the wife upon the same terms and conditions as proposed for the husband if the wife is successful in relocating the children.
The husband seeks that the parties have equal shared parental responsibility and “should consult with each other about decisions for long terms care, welfare and development of the children…”
If relocation is not permitted then the children’s care would be shared on the basis of each alternate fortnight with each parent during school terms and half of the school holiday periods.
If relocation is permitted then the husband seeks the same orders as promoted by the wife.
The husband does not consider the circumstance of the wife’s stated position that if the children are not permitted to relocate then she will return to New Zealand in any event. It is reasonable to assume that the husband would not reject the primary care of the children should that situation eventuate.
At the conclusion of the evidence the only significant alteration to the orders sought as to property settlement is that the husband seeks that any settlement sum as may be ordered to be paid to the wife should be satisfied from his superannuation entitlement rather than a cash settlement.
It was also generally conceded by the parties that notwithstanding they each sought orders that would have the children travelling between City G and Darwin for two periods in each year, it is likely that they would only be able to contribute sufficient funds to one half of one period of travel.

Issues in dispute

The wife contends that the parties are unable to communicate with each other about the children to any effective or appropriate level. The husband seems to concede that he has no interest or intention of speaking to the wife on any topic.
The wife alleges that she has been the subject of family violence perpetrated by the husband and that it has taken the form of physical, emotional and coercive behaviour.
The husband denies the extent of the wife’s allegations and whilst conceding that at times his conduct may have been aggressive, following separation there was no conduct consistent with family violence relevant to the Court’s determination of the appropriate arrangements for the children.
The wife concedes that whilst the children have expressed a clear wish to remain in Darwin, it is her position that in the circumstances of this case and bringing to account the husband’s adverse conduct and influence, little weight should be afforded to their wishes.
The wife considers that she understands the importance of the children’s relationship with the husband and would foster and maintain the relationship, whereas the husband has no ability or preparedness to support the children’s relationship with her.
The husband did not file a Case Outline document and was not prepared to provide any assistance in identifying relevant parenting issues other than as may be gleaned from his affidavit.

Evidence

The wife

The wife relied upon her Trial Affidavit filed 26 October 2018.
The husband declined to cross examine the wife. His determination was such that he turned his chair so that his back was facing her for the duration of her evidence. He did not look at her and his demeanour strongly suggested that he was not emotionally able to do so.
Given the extensive explanation provided to the husband in order to assist him in the conduct of his case, the husband’s decision not to cross examine the wife had not been foreshadowed by him and was surprising.
The Court made significant effort to urge the husband to reconsider his position, in particular given that the issue of family violence loomed large in the proceedings, cross examination was the husband’s opportunity to challenge what was promoted as serious instances of family violence that the wife contends should be an important consideration in the Court’s determination of the parenting issues.
The husband remained steadfast in his refusal to engage in the proceedings and he did not seek to cross examine either the wife, Mr K or the family consultant. He did not take the opportunity to make any final submissions that may have assisted the Court in better understanding how the evidence may have supported his proposal for parenting and to a lesser degree property settlement.
In response to questions put by the ICL, the wife conceded that X and Y had expressed to the family consultant that they did not want to move to New Zealand. She agreed that the children would not want to leave their school friends and were comfortable in their daily routine. She accepted that it was valid and natural that the children would prefer to stay in Australia.
The wife agreed that if the children were to relocate that they would be upset but considers that it would be for a short time and would form part of a natural process.
She has family support in New Zealand and has re-partnered. She has wanted to return to New Zealand for “a long time” and wants to have her family around her again.
The wife has Māori heritage. It is her evidence that while she has lost some of the language, she hopes to reconnect with her culture and language when she returns to New Zealand. She intends to introduce the children to Māori culture and language so that they can experience and reconnect with their heritage.
She has made enquiries with respect to the schools that she proposes the children attend. The proposed schools are able to accommodate the children.
The wife obtained estimated costs of airfares for the children to travel between New Zealand and Australia. During peak periods such as school holidays the estimated cost of return airfares is within a range of $1,200 to $1,500 per child.
If the children were not permitted by airline policy to travel unaccompanied or as an “unaccompanied minor” then the wife proposes that she would travel with the children or pay for a service where the children will be escorted during travel. She can meet half of the cost of the airfares and it is her positon that the husband is able to meet the other half given they earn similar salaries.
The wife says that the husband has withheld the children from her on three occasions following separation. The first was a period of six weeks immediately following separation in June 2016. The second was a period of three weeks in June 2017. The third was a period of four weeks in October 2017. During these periods the husband did not permit her to contact the children. She would visit X and Y at their school in the morning and had telephone contact with X. It is her position that she did not wish to escalate the matter or involve the children in grievances between the parties so she did not take any action.
She denies that she has restricted the children from calling the husband. She has made a rule that the children are to take their calls with the husband in the lounge room. She is concerned that the children may be exposed to “sensitive material” such as information relating to the Family Court proceedings, or “adult stuff” relating to the husband’s views about the wife or his intentions. She does not want the children to feel that they have to hide or sneak around to take the husband’s calls.
In her Trial Affidavit filed 26 October 2018 the wife records that the husband became “physically and emotionally abusive” toward her in 2011. The parties were sleeping in separate rooms and the wife tried to end the relationship. She says that conversations would escalate and that the husband would slam doors, throw things, scream abuse and punch walls. She says the children witnessed some of the arguments.
In June 2016 the wife communicated to the husband that she wanted to leave the relationship. She records in her Trial Affidavit at [27] that this conversation escalated:-
… [H]e went out to the shed and retrieved a short handled sledgehammer. When he returned to the house, he yelled at me words to the effect “I’ll fucking smash all this shit up you cunt”, “fucking make me get all this done so you can fuck off and go with your mates”, “that’s what you get when you fuck me over”. [The husband] was referring to smashing the kitchen cabinetry we had recently had installed for $30,000. I placed myself between [the husband] and the benches in an attempt to stop him. The children witnessed this.
There was a further conflict a number of days later where the husband took the wife’s phone from her leading to an argument. The wife left the home to attend the gym. The argument escalated when she returned and she says the husband was “extremely angry and aggressive” and accusing her of having another relationship. She says that the husband blocked her access to her car and there was a physical struggle when she attempted to leave. She slept in her car that night. When she returned to the home the following day she says the lock on the gate had been changed.
The wife is concerned that the husband’s behaviour toward her has escalated following separation. She says he has driven to her home on three occasions and “screamed abusive threats” which the children witnessed on two occasions. She says the husband would force his way into her house and intimidate her by “moving his face into mine, speaking through gritted teeth and holding his fists closed at his sides.” Due to the presence of the children, the wife “tried not to make a scene” however police attended on one occasion and a Domestic Violence Order (“DVO”) was taken out shortly thereafter.
The wife recalls in her trial affidavit that the parties had a telephone conversation on 17 January 2018 with respect to private health insurance. The wife advised the husband he had been removed from her policy and that he would need to make his own arrangements. The husband told the wife he intended to attend at her home and collect the children. She felt afraid and telephoned the police. She sent X and Z upstairs to their rooms and locked the doors. Y and Mr K were out on a walk.
The husband arrived at the wife’s home at 5.30 pm and the wife says that he was yelling and swearing. He attempted to access the house via the front and back door. She says he “attempted to spit and punch at me through the security screens” and shouted words to the effect “I’m going to get you, you’re a whore, you’re a cunt! You’re gunna get it one day, you better watch out”.
Y and Mr K returned from their walk and the husband directed Y to get into his car. Y complied. The husband was calling out for X, however X and Z remained in the room upstairs.
The police arrived at 6.30 pm and engaged with the husband. The husband argued with police and left approximately 40 minutes after their arrival.
The wife applied for a DVO on police advice following this incident. The DVO was granted by consent and named the wife and the children as the protected persons.
It is her evidence that she is fearful of the husband and she says “[t]he thought of having to remain in Darwin and be continually exposed to his behaviour terrifies me.”
There was a time where the wife had contemplated relocating to Brisbane, Queensland. She considered it would be an appropriate “stepping stone” and she would have the support of the husband’s family who live there. She has a good relationship with the husband’s family.
It is now the wife’s intention to relocate to New Zealand irrespective of the outcome of the present parenting matter.
While she intends to take up residence with Mr K the prospect of continuing her relationship with him is not the factor that motivates her decision to relocate.
The wife was an impressive witness. Under cross examination by the ICL she was candid in her responses and made appropriate concessions.

Mr K

The wife has re-partnered with Mr K. They first met in 1982 and formed a relationship. They moved to Australia together in 1994 and separated in 1995. They rekindled their relationship in January 2017.
Mr K lived with the wife in Darwin between May 2017 and late February 2018. He returned to New Zealand in February 2018 to pursue an employment opportunity relevant to his skills and certification. This type of employment is not available to him in Australia.
Mr K has three children, aged between 14 and 20 years old. His youngest child lives with him while the older children have moved to pursue employment and study in other cities.
He owns a three bedroom home and it is his intention that the wife and the children will live with him in his home.
He considers that his relationship with the children is good. He has observed that the children and his youngest son have developed a bond, noting that they spend time each day chatting via a social media platform.
The husband declined to cross examine Mr K.
I find that Mr K is a person who is supportive of the wife.

The husband

The husband relied upon his Trial Affidavit filed 21 December 2018. The husband retains fulltime employment. He works a full week but has a level of flexibility that will enable him to adjust his work hours to fit in with the children’s education and extra-curricular activities.
The husband denies each and every allegation of the wife that he is controlling, intimidating or harassing. He considers that up until separation the parties created a nurturing family environment for the children. The conflict commenced when the wife expressed her intention to return to New Zealand with the children.
The husband does agree that on one occasion he was so frustrated that he picked up “a hammer and wanted to smash our newly renovated kitchen.” He accepts his loss of control over his emotions and states that he regrets his conduct.
He acknowledges the DVO made on 18 June 2018 by consent but without admission and contends that his consent was given because he did not have the financial wherewithal to defend the proceedings.
The husband is categorical in his denial that he had either breached the DVO, had ever harmed the wife or the children or even that he was disrespectful towards her.
Whilst he opposes the children’s relocation to New Zealand, if they remain in his care he will support their relationship with the wife and ensure that they spend generous time with her.
The husband’s position in respect of the wife is summarised in [54] of his trial affidavit:-
It is difficult for me to trust [the wife] again as she lied to me, spoke badly about me, cheated on me, took money from me without consent, mislead me into drawing on re-draw facility in the extent of some $50,000 for renovations of the house. The renovations has not yet been completed.
The husband was challenged as to his assertion that there was no conflict in their relationship leading up to separation. The wife’s position is that from 2011 the relationship had broken down highlighted by aggressive arguments and the husband displaying overt acts of aggression towards her and on occasion witnessed by the children.
The husband’s denials of his aggressive conduct during the period of marriage were unconvincing. As discussed, the husband was not able to look at the wife at any period during the hearing and his anger towards her was clearly evident.
He made the easy concession that he was bitter towards her and hated her. He agreed that it was unlikely his bitterness would easily abate.
The catalyst for separation was the incident in June 2016 where the husband threatened to destroy the newly installed kitchen with a sledge hammer.
The husband was not prepared to concede the extent of his offensive language directed to the wife and attempted to convey the impression that whilst he was angry, the wife should have known that he did not intend to carry out his threat to destroy the kitchen. I accept that the incident terrified the wife and reject any attempt by the husband to place the incident in a more benign context.
I accept the wife’s evidence that some few days later she was confronted by the husband accusing her of infidelity. The wife alleges that the husband “hacked access to my phone and read my messages” and whilst denied by the husband I accept that during the course of the confrontation the husband directed the following statements to the wife:-
“You’re a fucking cunt”.
“Talking about me to all your friends, they don’t even know me”.
“Who are you fucking now?”
“I know you’re up to something you’re a lying cunt”.
“You’re fucking every guy at your work”.
The husband did not seriously dispute the wife’s further allegation that later in the evening whilst attempting to leave the premises he grabbed her from behind and placed his arm around her neck and shoulder. She alleges that the husband dragged her out of the front gate, pushed her to the ground and had his hand on her neck.
Whilst not known to the husband, I accept that the wife slept in her car that night and upon her return found that the husband had changed the lock on the gate. The husband denied that allegation.
Contrary to the husband’s position that following separation there were no overt acts of aggression or behaviour that might constitute family violence, I accept that the husband took active steps to refuse the wife any contact or communication with the children for six weeks.

The husband attempted to minimise the basis upon which he did not allow contact between the children and the wife following separation. His position is that the wife’s living arrangements were temporary and uncertain and therefore not suitable for the children to stay with her. The husband’s attitude ignores the obvious namely, that the husband enjoyed the facilities of the former matrimonial home, whereas the wife was at significant disadvantage. In any event, irrespective of the sleeping arrangements, the husband’s evidence was unconvincing in his attempt to explain why he had not promoted the children spending time with the wife during the day or being able to freely communicate with her.
Following separation, the husband moved the children’s beds into the master bedroom and the husband and the children slept in the master bedroom for a period of three to four months.
The wife alleges that between June 2016 and January 2018 the husband had driven past her home and had screamed abuse directed to her. The husband denies the wife’s allegations and attempts to explain that his attendances at her home were necessitated by him wanting to return her personal belongings, return the children, ensure that the children had not been removed by the wife and to speak to her about the ongoing financial arrangements in respect of the mortgage secured over the former matrimonial home.
I accept the wife’s version of events and in particular that the husband used threatening language in the following terms:-
“Fucking taking the kids away from me, you fucking cunt, I’ll fucking kill you before you take the kids anywhere.”
“You better watch out.”
“If I ever see any of your friend’s, you’re all gunna get it.”
“I’m gunna smash the lot of ya’s.”
The husband denied the further allegations of the wife that on these occasions he forced his way into the home and was physically threatening towards her. I accept the wife’s contention and reject the husband’s denials. As will be evident from the children’s report to the family consultant, they are well aware of their father’s aggression and regrettably on occasion have observed serious and threatening behaviour from the husband towards the wife.
The husband was challenged as to the basis of him retaining the children for a period of three weeks in June 2017. The husband alleges that he did so because the wife’s step-brother had committed suicide, she was not in the country and had asked the husband to care for the children. I accept the wife’s evidence that her refusal to discuss property settlement with the husband caused him to become enraged, that he removed the children from the wife’s car and following an offensive exchange he retained them.
A significant issue in the proceedings emanates from the arrangements between the parties as to the payment of the mortgage secured over the former matrimonial home.
It is common ground that following separation the wife continued to contribute to one half of the mortgage notwithstanding that she was no longer permitted to reside in the home.
In October 2017 the wife was apparently no longer able to contribute to the mortgage and ceased making payments.
For reasons that are not readily explained by the husband, he reacted violently to what he saw as the wife’s unilateral action and withheld the children for a period of about four weeks.
The wife was only able to see the children at school. In evidence, it was evident that the husband could not accept that it was a decision open to the wife to cease contributing to the mortgage in circumstances where she was not residing in the home.
Notwithstanding the orders sought, the husband was clear that he did not think the wife should receive or be entitled to any settlement of property in circumstances where he considered that it had been largely derived from his pre-cohabitation assets.
The husband was unmoved and did not accept the wife’s explanation that she was not able to contribute to the mortgage in circumstances where she was paying rent at another premises and she had taken on a second job in order to meet her expenses.
As discussed above, in January 2018 the wife advised the husband of her intention to remove him from her private health insurance policy. Fearful at the husband’s reaction to her advice of a change to the health insurance arrangements between the parties, the wife locked the doors and called the police. X and Z were present in the home, while Y was out for a walk with Mr K. The wife alleges that the husband arrived and was yelling and swearing. He tried to gain access to the wife’s premises and she alleges that he attempted to “spit and punch at me through the security screens.” He used the following language:-
“I’m going to get you, you’re a whore, you’re a cunt! You’re gunna get it one day, you’d better watch out.”
The husband denies that he was in any way aggressive but concedes that he was concerned that in some way the wife may have removed the children from her home. His persistence was explained as an expression of his reasonable concern to ascertain the whereabouts of the children.
The husband’s behaviour was such that when the police arrived, and it is the wife’s observation, but denied by the husband, that he continued to yell and scream. Following a discussion with the police, the wife made application for the DVO.
The wife concedes that during the operation of the DVO there has been no contact between the husband and the wife other than through solicitors.
The husband remained unrepentant in respect of his conduct and was not prepared to admit that he had ever acted with aggression or violence other than his threat to damage the newly installed kitchen.
Following the commencement of the DVO the wife made arrangements for the husband to have phone contact with the children and to spend supervised time with the children at a contact service provided by B Group. The children spent time with the husband on 22 April 2018, 3 June 2018, 17 June 2018, 1 July 2018 and 15 July 2018. There was phone contact in accordance with the orders made 29 May 2018.
On 16 July 2018 the husband ceased the telephone communication with the children and did not accept their calls.
On 26 July 2018 the wife received a notification from B Group that visits would not proceed because the husband was refusing to come to the centre.
It was put to the husband that he was unhappy that he had been required to sign passport applications for the children. In June 2018 he sent a letter to the wife’s solicitor agreeing to sign the passport applications if the time spending arrangements were changed. It was after the wife issued a contravention application with respect to the passports that the husband ceased communicating with or seeing the children.
The husband accepts that it may have upset the children or emotionally harmed them when contact and communication was cut off with no explanation. It is his position that it was “up to the lawyers” to resolve the issue.
The husband was challenged as to the representations that he had made to Centrelink in respect of payments that the family had received for the children. It is not in contention that the Centrelink benefit was paid into the joint account of the parties. Following separation and in particular during the period that the children were in the primary care of the wife, the husband continued to receive the benefit. He could proffer no explanation for why this had occurred, but conceded that he could have raised with Centrelink that he was not entitled to the entirety of the benefit given that the children lived primarily with the wife for the majority of the period post-separation.
The husband’s evidence on the topic was unimpressive. I find that at all material times the husband understood that he did not have a proper entitlement to the entirety of the Centrelink benefit but did so with malevolent intent. His conduct was intended to “punish” the wife for leaving the relationship.
Whilst not obliged to pay child support in circumstances where the wife gained an exemption from making such an application, the husband made no attempt to offer the wife money by way of voluntary payment. It is only in anticipation of the DVO coming to an end in February 2019 that the wife is no longer able to claim an exemption on the grounds of family violence that an assessment is now in place.
The husband’s evidence did nothing to support a finding that the he has gained insight into his conduct and the damaging effects both upon the wife and the children of family violence. His current conduct and demeanour unfortunately lends support to the wife’s contention that she is justified in her fear of him and is concerned that once the protection of the DVO comes to an end she may well be a significant risk.

The family consultant

The family consultant conducted interviews with the parties and the children on 13 November 2018. The family report was published on 14 December 2018. It accurately sets out the current arrangements, relevant family background, history of the dispute and the proposals of the parties.
The family consultant correctly identified the risk factors being the wife’s allegations of family violence and abuse and the husband’s categorical denial of the allegations noting his acknowledgement that post-separation there had been “heightened verbal conflict, psychological acrimony and incidences of the use of physical force by both parties against the other over the time of their separation”.
The family consultant was also confronted with the wife’s assertion that the children were exposed to the conflict between the parties generally but in particular the husband’s overt aggressive conduct, whereas the husband considered that the children had witnessed only heightened arguing.
The issues in dispute were identified by the family consultant at [28] and [29] of her report.
The family consultant properly recorded the wife’s acknowledgement that whilst she considered that she had been the victim of the husband’s family violence, he had never physically harmed the children, nor was there any sign or concern that he would do so. The wife readily conceded that the husband had cared for the children over the course of the marriage and her summary of his parenting is recorded in the following terms:-
He was good at caring for the kids.
The wife also expressed concern that the husband had been talking to the children and warning them that the wife intended to take the children away from him.
At the time of interview X was 13 years, Y 11 years and Z five years of age. Both parties recognised that the children were physically healthy and “intellectually bright”. Z and X excelled at school, however Y has struggled since 2017. The wife’s concern is that Y may well be mimicking the husband’s aggressive presentation.
Consistent with the husband’s presentation during the proceedings, the family consultant recorded her observations of the husband’s presentation as “forthright and assertive” which “could at times have been perceived as hostile and close to marginally angry”.
The family consultant formed the view that the husband’s anger was not directed towards the children but rather towards the wife.
The family consultant questioned the husband as to his intervention with the Department of Families in 2017 where a counsellor considered that following a comment made by the husband, he presented as a risk to the wife.
The husband expressed his strong opposition to the relocation of the children and considered that he would not be prepared to pay any child support or contribute financially to them if they “get taken away”. He conceded that at present his communication with the wife is non-existent.
The initial assessment of the extent of the parties ability to co-parent is summarised by the following extract from [66] of the report:-
[T]hese parents have become completely estranged, and unable to form any semblance of a cooperative co-parenting relationship. The outlook for these parents to establish a better parenting relationship, as it stands at this time, seems poor. In such circumstances, it usually takes anywhere between 2 and 5 years post separation, for parents to recover from their anger and resentment about the circumstances surrounding the separation. …
The family consultant was generally impressed with the presentation of the children. X was described as “a healthy, well mannered, intelligent child” who engaged with the family consultant “in a calm and mature manner, demonstrating impressive communication skills, both verbal and non-verbal”.
X willingly expressed her view that she did “not really want to move” to New Zealand, and preferred to live in Darwin on an alternating fortnight basis. She had considered her position if the wife relocated to New Zealand and determined that her preference was to remain in Darwin and with her father. X reported that she had not witnessed aggressive interaction between the parties, but did see a fight at the gate of the wife’s house after separation. If required to move to New Zealand she considered that she would “adjust”, but that her biggest worry was “not seeing dad”.
X summarised the tragedy of the circumstances in which the parties and the children find themselves when she was asked to identify who she feels happy and safe with. Recorded at [76] is the list of “safe and happy” people to include:-
‘dad, mum, [Y], [Z], and auntie [Ms M]’
X also expressed satisfaction with the wife’s partner.
Y presented as a healthy, well-mannered and amiable child. He approached the interview in a relaxed manner and was able to communicate adequately.
Similar to his elder sister, Y expressed clearly that he would wish to remain in Darwin with his father. He did not want to leave his friends and understanding that his mother was intending to relocate to New Zealand in any event, he considered that he “would be okay with mum leaving me here”. He did not report any observations of either aggressive conflicts between the parties or physical aggression on the part of the husband.
Y also identified the parties and his siblings as safe and happy people.
The assessment with Z was necessarily truncated by her age. She did however indicate a close attachment to each of the parties and did not identify anything associated with her mother, her father or the wife’s partners’ home in New Zealand that caused her to be worried or scared.
The children’s presentation prompted the family consultant to readily find that the children were both closely bonded to each other and also with their parents. The overall position of the children is summarised in [95] of the report in the following terms:-
The prospect of spending extended time away from the father, appeared to be causing them some anxiety, and it was evident that they were all gravitating and aligning towards their father, in the event they were given a choice about their living arrangements.
The husband acknowledged that he remained angry and distressed at the separation of the parties and continued to be embittered towards the wife. It was the opinion of the family consultant that the husband had difficulty containing and controlling his emotions. The husband continued to deny any allegation of overt and ongoing family violence directed to the wife.
The husband was not considered a risk to the children if the Court determined that they should remain in his primary care. The family consultant did not record that the children’s presentation was consistent with “pervasive domestic violence perpetrated within the family”. The children have however been exposed to parental conflict and the possibility that this has impacted upon their “psychological and emotional wellbeing” cannot be discounted.
The family consultant considered that the husband was able to compartmentalise his bitterness towards the wife and not allow his dislike of her to adversely impact his parenting of the children. She did not consider that the impression created by the husband that he was “angry and potentially volatile” was necessarily an indication of how he would conduct himself into the future.
It was an important consideration that in the view of the family consultant the conflict between the parties appears to have settled down during the currency of the DVO.
Nonetheless, the risks for the children are summarised at [119]:-
Given [the husband’s] apparent ongoing unresolved anger towards [the wife], the writer reserves concern about his willingness to promote the children’s relationship with their mother, and thereby assist them to overcome and better manage their feelings in relation to the parental separation.
The conundrum for the family consultant is highlighted by the apparent strength of an attachment of the children to each of the parties and the impact that the children will experience by inevitably being separated from either the husband or the wife.
The focus of concern for the family consultant was how Y would adjust to a relocation. She considered that, “he may find the transition challenging”.
Nonetheless, the ability of the children to adapt to a new environment if they were to relocate to New Zealand would be highly influenced by the extent to which the wife’s happiness would be enhanced by the change.
The family consultant formed the view that subject to the evidence supporting the wife’s contention that there is ongoing family violence, the children should remain in the care of the husband.
Exhibit “3” is an extract from the notes of Territory Families in January/February 2018.
The following note was recorded by a case support worker following a conversation with the husband:-
- He is frustrated that the mother keeps changing their agreement and is now not wanting to hand the children back on Friday.
-[The husband] stated that he is frustrated that he has been paying private health fees for the family for years and now the mother has removed him from their health card. He stated that he has contacted the private health company and they advised him that there is nothing that they can do unless he has a Court Order.
-He advised that things will come to a head on Friday if [the wife] does not return the children to his care.
-He advised that [the wife] has refused to give the children back before and he called the Police and they did nothing as he didn’t have a Court Order.
-I asked him to clarify what he meant by “things will come to a head”? He advised that he would go to [the wife’s] place and remove his children himself.
X was interviewed by the same case support worker on 5 February 2018. Contrary to her recorded observations by the family consultant the note records the following:-
Mother and father have been fighting; generally spend two weeks with mum then two weeks with dad. Switch on Friday’s mum and dad doesn’t see each other.
Living with Dad – Dad is cleaner, likes to make everything clean and tidy. He tells me what is going on with mum but not the other kids as they are too young. The last fighting and arguing was about mum taking us to New Zealand to live. Dad thought we had gone.
When we use to switch on Sunday’s they (mother and father) use to always fight at the gate. Dad doesn’t say bad or nasty things about mum and neither does mum say things about dad.
Going to NZ to live – I don’t want go to live in NZ, I have lived in Darwin my whole life and my friends are here. Don’t want mum to move either. I like staying with both parents. Mum is more strict than dad and makes us do chores.
When they had a fight the other day dad came around to mum’s. I could hear dad yelling and could hear the police. I kept [Z] upstairs watching a movie. She did not know what was going on. I worry for [Z] I don’t want her to see or hear anything. I was also worried dad might come upstairs and take us kids.
Dad gets mad easily he yells and swears nothing physical he does not smack us. I ignore him, [Y] gets upset and [Z] doesn’t pay attention. Dad gets mad at [Y] because he always complains.
When Y was interviewed by the case support worker the following was recorded:-
[Y] explained that he gets scared when dad starts yelling at them. He said that dad swear about mum. CPP asked how does dad swear at mum, [Y] said he swears F, C words at mum in the house, in the car or anywhere. Mum doesn’t do anything she stays quiet and doesnt say bad things about dad. [Y] advised he feels bad when dad yelled at him; he feels his body shakes and is scared.
[Y] said last week dad called the police because mum threatened dad that she wants to take the kids in New Zeeland [sic]. [Y] stated that dad showed him the messages that mum had sent to dad. When the police came, dad stopped [Y] to get out of the car, to not go in the house. Dad started swearing in the car. [Y] explained [he] wanted to get out of the car, did not want the police to come because he was worrying about mum because dad was angry. [Y] said he is scared dad will hurt mum.
[Y] advised he will feel bad if mum leaves. He explained he wants to stay in Darwin because he does not want to change schools.

The worker formed the impression that Y was intimidated by his father and that he was reluctant to give too much information because “Dad will get very angry if I wanted to say nice things about mum so I cant say what happened at mums because he will yell and swear which makes me sad and scared”.
The care worker made contact with the principal of Y’s primary school. A note of that conversation is significant:-
[Y] appears lethargic and unmotivated. The school has found it difficult to engage [the husband] and contact him. School have asked for a meeting regarding [Y] [the husband] has not attended a meeting. [The wife] will attend. No issues with [the wife] – engages well, nil issues trying to contact her. School will be concenred [sic] if the chidlren [sic] are left in [the husband’s] care and [the wife] moves to New Zealand as [the husband] does not engage well. Found [the husband] to be hostile and aggressive at times. Cannot have both parents attend the meeting regarding their children which is not the best outcome for the chidlren [sic].
Y’s pre-school teacher reported that she:-
Has found [the husband] to be unaproachable [sic] on occasions as he is often angry and hostile. Pre school got blamed for [Y] breaking his arm. [The husband] is very narrow minded and has narcisitic [sic] and egotistical traits. [The husband] cannot see another point of view. The preschool has had nil issues with [the wife] and have found her plesant [sic] to engage with.
The family consultant was asked to consider the notes and conceded that they present a different picture than conveyed to her following her interview with the children. In particular, the family consultant conceded that X may well be trying to protect her father and as openly displayed to the case support worker, both she and Y are well aware of the husband’s view of the wife and his seeming inability to control his emotions.
The family consultant was also concerned at the reports given by the children’s teachers of the husband’s hostile interaction with them.
The family consultant was asked to consider the husband’s conduct post separation in moving the children’s beds into the master bedroom. She considered that this action would not have reassured the children. This action may have had the effect that the children aligned their views with the husband and in the case of X and Y could have had the effect that they felt responsible for the husband.
The family consultant was asked to consider the husband’s conduct in July 2018 where he ceased receiving the children’s telephone calls and ceased attending supervised visits a B Group. She considered that this conduct may have given the children the impression that the husband’s attitude was “my way or the highway”.
It was conceded that the views expressed by the children, and in particular X, may have been influenced by their concern about the husband arising from his presentation post separation.
Under cross examination the family consultant was prepared to concede that if the husband has minimised the extent of the family violence as alleged by the wife, or does not consider that it is a relevant consideration and therefore lacks considerable insight, this may well be determinative of whether they should remain with the husband in Darwin or relocate with the wife to New Zealand.
Ultimately the important consideration is not a question of whether the children have a closer attachment to one party or the other, or even where they would wish to reside, but the extent to which the Court can have confidence that one party will be better prepared and able to support the children’s relationship with the non-primary care parent.

Principles applicable to relocation cases

In AMS v AIF (1999) 199 CLR 160 Hayne J highlighted that the focus of the court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216.An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father … or to be in the custody of the mother … That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody…
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the coexistent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38.[I]t is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals, in this case the wife’s application for the children to relocate with her to New Zealand.
Whilst there is no specific principle or procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parties, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-
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 & 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.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)

Parenting considerations

Each of the parties seek an order for equal shared parental responsibility. The wife’s counsel concedes that the orders sought by the wife are consistent with an order for sole parental responsibility but with terms and conditions that would require the parties to consult and attempt to reach consensus in respect of major issues that will likely impact upon the children, but in the absence of agreement then the wife has the final decision.
I consider that the position of the parties is born of vain hope.
I am satisfied upon the clear and unequivocal position adopted by the husband that there is no likelihood in the foreseeable future of his attitude towards the wife altering. The husband maintains his clear rage and anger against the wife and his bitterness and enmity is such that he considers the safest way for him to conduct himself is to avoid any communication with her. His demeanour in Court was such that he was not able to look at the wife and the obvious difficulty with cross examination is that he would have had to engage her in conversation.
It is not really contended by either party that they could see a time when reasonable parental relations could resume. Neither of the orders sought by the parties for parental responsibility realistically reflect the current circumstances. An order for equal shared parental responsibility would fail at the first hurdle and could not be considered in the interests of the children.
Parental responsibility will be determined in favour of the party with whom the children primarily reside.
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the directions contained in s 60CC(2A) and in particular the focus by the wife on what she considers to be the potential emotional and psychological harm to the children by the attitude of the husband towards her and its potential to undermine the children’s relationship with the wife should they remain in the primary care of the husband.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the children’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit to the children of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.

Meaningful relationship

The aims and objects of the Act are to ensure that the best interests of a child or 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.
In Mazorski & Albright [2007] FamCA 520, Brown J considered the definition of “meaningful” and observed:-
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …
Therefore, a meaningful relationship is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
A consideration of the importance of a meaningful relationship to a child is no more starkly exemplified and highlighted than in the circumstances in which the subject children find themselves.
The husband’s proposal is that he remain in Darwin. He has secure and rewarding employment. He is held in apparent high regard by his employers and there would be no circumstance where it would be reasonable for the husband to consider relocating from Darwin.
Equally, I do not find that the wife’s proposal to relocate to New Zealand is either frivolous or malicious. The wife has a cultural connection to New Zealand arising from her Māori heritage. Whilst this has not been a feature of her life in recent years, there is no evidence to suggest that she is not genuine in her desire to rekindle her cultural connection. She has family in New Zealand and whilst her relationship with Mr K may not necessarily be the wife’s only reason to relocate, it is nonetheless significant. There was no challenge by the husband to any basis expressed by the wife in support of her intention to return to New Zealand. Mr K gave evidence and I found that his evidence was reliable. Moreover, the children speak of him in positive terms.
I am not entitled to be critical of either the wife for her intention to relocate to New Zealand, nor the husband for his refusal to contemplate leaving Darwin. The conundrum for the children is that inevitably their relationship with either the husband or the wife will suffer significant insult.
Whilst the parties may differ as to their perception of the extent to which each of them were engaged in the parenting of the children, there is no doubt that the children are strongly attached to each of them.
The children, but in particular X and Y, have expressed a wish to remain in Darwin with their father even though they acknowledge being separated from their mother will be difficult. The evidence suggests that each of the parties are well able to care for the children and the conflict is not as to their ability to physically parent the children but rather, whether their intense mistrust and dislike of the other will fundamentally interfere with their ability to support the children’s relationship with the other parent. This is particularly so in circumstances where the tyranny of distance will make the maintenance and retention of a meaningful relationship difficult even if it is significantly supported by the parent retaining primary care.
As noted by the family consultant, the children “appeared to be equally and strongly bonded to their parents”.
The proposals of the parties contemplate the children spending time with the non-primary care parent for a maximum of two holiday periods in each year. Taking into account the financial position of the parties even that modest level of frequency is at risk. The very prospect of a parent spending time with a child limited to school holidays means that the experience of a parent interacting with a child in terms of day to day activities however mundane is not possible.
The children’s relationship with their parents is made more complex by the children’s differing needs. X will be 14 years of age this year. Y will be 12 years of age. It is likely that their relationship with the parties will remain relatively intact. Z at age 5 years will be more at risk.
I consider that I am bound by the orders sought by each of the parties and notwithstanding some concerns raised by each of them as to their financial ability to contribute to the travel costs of the children, I propose to make orders that would require the children to spend time with the non-primary care parent on at least two extended holiday periods in each year.
In Godfrey & Sanders [2007] FamCA 102 Kay J considered the requirements of the legislation in relation to the promotion of a meaningful relationship in the following terms:-
36.… Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

The need to protect the children from emotional or physical harm

The gravamen of the proceedings is the extent to which the evidence supports a finding on the balance of probabilities that the husband has perpetrated family violence towards the wife and if so the extent to which family violence should impact upon the orders each of the parties seek.
As highlighted by the family consultant at [108] of the family report:-
The parents presented highly incompatible accounts about the nature of their relationship pre-and post-separation, and events surrounding the care of the children. [The wife] alleged incidences of physical assault over the time of their separation, and coercive and controlling behaviours towards her by [the husband] during their relationship. [The husband] claimed to have been at the receiving end of provocative behaviours and exaggerated and contrived allegations by [the wife].
The husband admits that shortly prior to separation he brandished a short handled sledge hammer and threatened to smash the newly installed kitchen in the family home.
The wife describes in graphic detail how she stood between the husband and the kitchen cabinetry. The husband concedes that he was enraged and I find that the wife was at significant risk of physical harm.
The evidence supports a finding on the balance of probabilities that the husband demonstrated a consistent pattern of aggressive, demeaning and coercive conduct in the years leading up to the separation and thereafter.
The husband determined that he would not challenge the wife’s assertions. I place significant weight on the wife’s recitation of offensive and threatening language directed to her by the husband.
The husband’s conduct in Court provided some corroboration (if it was needed) for the wife’s assertion that the husband holds her in low regard. As discussed, the husband either refused or was not able to look at the wife nor direct any questions to her. He was frank in his admission that he remains embittered towards her but was not able to accept that his conduct was frightening not just to the wife but to others.
Despite the observations of the family consultant, I consider the effect on the children of the husband’s behaviour to be dramatic.
X did not admit that she had observed any acts of physical aggression by her father, but in the notes prepared by the social worker for Territory Families it is readily apparent that the children did witness ongoing conflict in the household. Moreover, Y appears to be significantly affected by his observations of his father’s barely restrained anger. He corroborates the wife’s assertion that the husband was quick to anger and would resort to highly offensive language.
I am satisfied that the wife was the victim of family violence perpetrated by the husband leading up to the date of separation. I consider that the evidence of the family consultant, together with the notes of Territory Families supports a finding that not only were the children a witness to their father’s aggression, but have been adversely affected by it evidenced by X’s attempt to minimise and/or deny her father’s aggressive conduct and Y experiencing fear consequent upon his observations of the husband’s behaviour.

The family consultant considered that if the wife did relocate then this would remove her as a focus of the husband’s anger and whatever the impact of family violence may have been upon the children the impact would be substantially lessened.
The family consultant placed significant weight on the children’s wishes that they remain with the husband in Darwin rather than relocate to New Zealand with the wife.
In Pascoe & O’Keefe and Ors [2018] FamCAFC 243 the Full Court supported the position that family violence must be given strong weight. At [46] the following is said:-
In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745 – 85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).
47.The fact a child may not currently manifest symptoms of exposure to family violence does not mean the exposure has not already been harmful or that more exposure in the future will not compound the harm. The mother’s false contrary assumption underpinned one ground of appeal, which must fail (Ground 8). Her submission that the risk of harm to the child is reduced because neither B nor C exhibit any tangible ill-effects of their past exposure to the second respondent’s violence is therefore rejected as fallacious.
The children are likely to be affected in different ways. The clear effect on X is that she attempts to minimise and deny that her father acted aggressively or violently towards the wife in circumstances where the evidence is strongly to the contrary. For his part, Y’s classroom and academic performance has been adversely impacted.
I do not ignore the reference in the notes to the children’s teachers, school principal and childcare workers all detailing difficult interaction with the husband and highlighting their concerns as to his aggressive and threatening behaviour.
I am obliged to carefully consider the impact of the family violence perpetrated by the husband on the separate parenting proposals of each of the parties.
The family consultant in cross examination was confronted with the possibility that the Court may find the husband was the perpetrator of family violence as alleged by the wife and moreover, that his current conduct may well support a finding that he remains embittered and angry towards the wife. This prompted a concession that unless the evidence supported the husband’s ability to promote the children’s relationship with the wife then they remain at a significant emotional risk in his care.

Children’s wishes

The family consultant was impressed with the presentation of the children. In particular she considered X to be intelligent with good verbal and non-verbal communication skills. Y presented in a similar fashion. Z’s age prevented any meaningful enquiry as to her wishes.
The wife concedes that the children have expressed a genuine wish to remain living with the husband in Darwin. I am obliged to assess the weight that I should give to their presentation. The family consultant was clearly impressed by the children’s demeanour and I find that she placed significant weight on their desire to remain with their father in Darwin.
Under cross examination the family consultant resiled from her position. She considered that it was an important issue that the children had presented differently to the social worker for Territory Families and the concern raised is that the children’s support for remaining in Darwin may in part be because they wish to protect their father and understand that he will be sad and possibly bereft if they are required to relocate with the wife to New Zealand. A further concern is that X may well have assumed an adult parenting role in respect of her siblings in the husband’s home.

Children’s relationship with important adults

The children are strongly attached to each of the parties. The relocation of the wife will inevitably have a significant and deleterious impact upon them.
The parties each concede that the other is able to provide good enough parenting and the family consultant was left in no doubt that each of the parties were people with whom the children felt safe and secure.
Similarly, there were no issues raised in respect of Mr K.
There is little doubt that there is a strong emotional attachment that the children have with each of the parties. The inevitability of the wife’s proposed relocation will place that attachment at risk.
The focus therefore is to consider the ability possessed by each of the parties to promote and maintain a relationship with the non-primary care parent.

Ability of the parties to support the children’s relationship with the non-primary care parent

I have found that on the balance of probabilities the family violence as alleged by the wife has occurred. I do not share the optimism of the family consultant that once the wife relocates to New Zealand the husband will be able to place the children’s relationship with the wife in perspective.
The parties separated in 2016. Nearly three years after separation the attitude and demeanour of the husband remains unchanged. He remains angry and embittered towards the wife. He is unable to contemplate any communication with her and there is no prospect that he will ever view the wife in a more benign light. She is the focus of his anger and he has not demonstrated any insight into his own behaviour or any concession that his aggressive conduct may well have been the very antithesis of what is required for a stable and respectful relationship with the wife.
I further accept that the husband’s conduct provides justification for the wife’s assertion that she remains fearful of him.
The husband was not able to refrain from using appalling language towards her and was quick to anger.
He was physically aggressive and conducted himself such as to belittle the wife and engender fear.
Whilst I accept that the DVO has resulted in no further physical acts of aggression, it cannot be said that the husband is free from any further complaint.
I have found that the husband has been financially manipulative in his dealings with Centrelink in order to retain the entirety of the family benefit payment even though he well knew that the extent of his care of the children did not warrant or justify him retaining the entirety of the payment.
For a significant period following separation the wife contributed one half of the mortgage payments in respect of the family home. It is not suggested that her payments were other than voluntary, but when she was no longer able to maintain her contribution the husband retaliated by withholding the children for a period of four weeks.
When the wife made separate private health insurance arrangements for herself and the children the husband retaliated by overt and threatening conduct which required police intervention.

The extent to which each of the parties has fulfilled or failed to fulfil their obligations to maintain the children

Other than three periods when the children remained in the primary care of the husband, their care has either been shared or primarily undertaken by the wife. A child support assessment has not been a feature of the care arrangements for the children. The wife was not required to pursue a child support assessment given the history of family violence and the imposition of the DVO. There is no suggestion that the parties did not maintain the children when in their separate care. The husband did not make any voluntary offer of financial support for the children and I find that he was aware of the potential for a child support assessment and that had the wife applied he would have been liable to pay child support.
The husband has now been assessed to pay child support consequent upon the DVO coming to an end in February 2019. At present the husband continues to make payments but the evidence supports a finding that if the children are permitted to relocate to New Zealand then it is not his intention to provide any ongoing financial support for them.

The likely effect of any change in the children’s circumstances

The proposals of the parties bring into stark contrast the primary considerations under s 60CC(2)(a) and (b).
The children have a close attachment to each of the parties. As discussed, the parties both feature as people with whom the children feel safe and secure. At present the children live with the wife and spend significant and substantial time with the husband.
The family consultant considered the impact that the parties’ proposals may have had on the children. If the children were to remain with the husband they are likely to miss the wife given that she has been their primary caregiver.
Their relationship with the husband is intact and strong. The observations concerning the children’s academic performance are favourable and the children’s desire to remain living in Darwin is a reflection that they have good social interaction.
It is not known what would be the real impact on their physical and emotional wellbeing following the wife’s departure. The family consultant considers that X may be at greater risk, whereas it is conceivable that Z may not understand the new dynamics and feel the loss of her mother more acutely.
The family consultant considered that if the children relocate with the wife the loss of their relationship with their father will be no less significant. Whilst of narrow focus “the strength of their relationship with their mother might assist to mitigate the loss of their father’s involvement”.
The family consultant considered the children’s resilience. X was considered to be “an intellectually and emotionally intelligent child with resilience and a strong sense of her own identity”. The family consultant considered that she would be least likely affected by the move.
Z is likely to adapt given her developmental age. The family consultant was uncertain as to how Y would cope given his clear connection to friends and lifestyle in Darwin.
Under cross examination the family consultant conceded that the children would likely manage the relocation given the history of primary care and the management of the day to day issues affecting the children.

The practical difficulties and expense arising from the parties proposals

Significant evidence was given as to the costs associated with the children travelling between New Zealand and Darwin.
Given the inevitability of the wife’s relocation to New Zealand, each of the parties propose similar orders that would see the children spending time with the non-primary care parent for two block holiday periods in each year.
The wife has made enquiries as to the likely cost of the airfares and subject to seasonal fluctuation it is likely that the cost of return travel will be in the vicinity of $1,500 with a further similar amount for an accompanying adult. Each return trip for the children alone would be approximately $4,500 to occur twice in each calendar year. The wife’s position is that she should be responsible for the accompanying adult, but that the children’s travel cost should be shared equally. In evidence the husband conceded that he would be able to share one half of the costs namely, $2,250 but was not certain that his financial position would allow for two visits per year.
I propose to fall in with the proposals of the parties on the basis that it is important for these children to spend as much time as is practicable with the non-primary care parent. It is not open to the Court to put in place more generous arrangements than as sought by each of the parties, but equally I am satisfied that the financial circumstances would not warrant an arrangement that would see the children spending less time than as proposed by the parties.

Maturity, sex, lifestyle and background of the child

The wife is of Māori heritage but concedes that it was not a feature of the children’s upbringing in Darwin. She has lost significant association with language and family but expresses a wish that if permitted to relocate to New Zealand she would take steps to reintroduce both herself and the children to their Māori culture.
The evidence does not support a finding that the wife’s Māori heritage is or is likely to be a significant factor in the lives of the children and as such I bring it to account but as a factor of less weight.

The attitude to the child and the responsibilities to parenthood by each of the child’s parents

The family consultant considered the extent to which each of the parties would support the children’s relationship with the other as an important consideration.
It is self-evident that the children were to relocate with the wife to New Zealand then she would bear significant responsibility to keep the husband informed as to the children’s circumstances. A similar consideration would apply if the children remained with the husband. The issue is distilled down to a consideration of the extent of the risk, if any, that one parent may not be supportive of the children’s relationship with the other.
At [134] of the family report the following assessment appears:-
[I]n the writer’s opinion, due to the ongoing mutual hostility between the parents, and [the husband’s] apparent ongoing distress about the separation, the outlook for better communication between the parents about the children is not positive, and therefore, whichever parent does not have the children in their care, will most likely be limited insofar as their level of involvement in the children’s day-to-day lives.
I consider that the family consultant’s accurately reflects the evidence as presented.
The evidence supports the further contention that whilst the husband is hostile and embittered towards the wife, this is largely a matter of his state of mind and not engendered by ongoing conduct by the wife. Post-separation the wife has had a history of acquiescing to the husband’s demands. She continued to contribute to the mortgage for as long as she was financially able to do so. On occasions when the husband unilaterally retained the care of the children she did not take any precipitous action in order to minimise the children’s distress. There is clear evidence of the husband’s volatile and aggressive conduct justifying the wife’s fear of him.
The husband is demonstrably not able to contemplate any form of civil relationship with the wife either when she is living in Darwin or in circumstances where she would live in New Zealand.
The wife presented as reasonable and prepared to communicate appropriately with the husband. The husband is unlikely to reciprocate with any level of goodwill towards the wife.
Again it must be remembered that the husband chose not to cross examine the wife and did not seek to challenge the wife’s evidence of entrenched family violence, her fear of the husband and her preparedness to promote and foster the children’s relationship with him. The wife was prepared to readily admit the strength and importance of the relationship between the children and their father. I consider that the wife is more likely to support the children’s relationship with their father.
Under cross examination the husband admitted that in his home the children do not discuss the wife. I find that this is so not because the children do not wish to do so of their own volition but because they understand the degree of enmity in which the husband holds the wife.
There has been little or no conduct by the husband post separation which could be consistent with the husband recognising the importance of the children’s relationship with their mother.
The family consultant considered at [138]:-
…that there is a likely possibility of [the wife] undertaking a restrictive gatekeeping role. …
The family consultant did not have the advantage of hearing the evidence and whereas she properly highlighted that at the time of the assessment the parties relationship and attitudes towards each other was unknown, consequent upon the evidence there is less uncertainty. The wife is more likely to promote the children’s relationship with their father, whereas I am satisfied that the husband is not capable of reciprocating a similar approach.

The capacity of the parties to provide for the needs of the children

I place significant weight on the reports of the children’s teachers and childcare workers as to the extent to which each of the parties involve themselves in the children’s education and extra-curricular activities. Ignoring for the moment the adverse remarks made concerning the husband’s aggressive contact and interaction with the children’s school and childcare, the notes suggest that it was the wife who was almost entirely engaged in the day to day activities of the children, their education, extra-curricular activities and health needs. There is little or no reference to the husband’s involvement. That is not to suggest that he would not to be able to do so but it does highlight that at the present date the preponderance of the evidence supports the contention that the wife took on the role of primary care carer. It may well be that the husband adopted his aggressive stance to those involved with the care of the children because he considered that in some way they had sided with the wife and therefore became integral to his belief that the wife sought to engender support for her false allegations that the husband perpetrated family violence.
The family consultant accepted that this was the husband’s presentation. Similarly, I have little doubt that the husband genuinely believes that the wife and those that have an involvement with the children have either intentionally or unwittingly fallen in with the wife’s plan. The difficulty for the husband is the finding that there is support for the wife’s allegations of family violence and her justifiable fear of the husband. I am not satisfied that the husband has presented evidence that his ability to appropriately parent the children would be equal to or superior to that of the wife.

Parental responsibility

As discussed, I do not consider that the orders sought by each of the parties reflects consent that there should be an order for equal shared parental responsibility. The orders sought by the wife are more consistent with an order for sole parental responsibility. The uncontroversial evidence of the parties, but in particular the clear position of the husband, is that he is not able to contemplate civil communication with the wife. He is mistrustful, disbelieving and holds unbridled bitterness towards her. The real concern is that should the children relocate to New Zealand his reaction will to be to have nothing to do with the children, not dissimilar to his current attitude to orders that allow him telephone time with the children when they are not in his care. The husband has not taken advantage of that order and I find that he is not able to contemplate contacting the children when they are in the wife’s care. That circumstance may change when the children gain the advantage of the ability to communicate independently via their own mobile phone or other electronic apparatus.
There is nothing in the evidence that speaks of any of the circumstances which would justify or support equal shared parental responsibility. The history of interaction between the parties is redolent of family violence and accordingly I do not propose to fall in with the parties even were it to be a position of consensus.

Conclusion

In the circumstances I consider that it is appropriate for the children to relocate with the wife to New Zealand. It is in their best interests that they remain with the parent who is best likely to look after their day to day needs and to foster the relationship with the husband. The wife is entitled to be fearful of the husband and her wellbeing consequent upon the relocation is likely to enhance her ability and capacity to care for and parent the children.

The evidence raises the concern that the children’s relocation to New Zealand may fundamentally change their relationship with their father. Unfortunately, other than in circumstances where the wife remained in Darwin, the separation of the parties and the ongoing conflict will inevitably impact adversely on the children. There is no middle ground, but I consider that the best that can be done to protect the children’s interest is that they should be cared for by the wife who the evidence suggests is more likely to support the children’s relationship with their father than would be the converse.
I propose to generally fall in with the orders that each of the parties seek consequent upon a determination that the children should be permitted to relocate with the wife.

Property settlement

The wife seeks orders that she receive 60 percent of the net property of the parties and in addition that she be paid from the splittable interest of the husband in his Superannuation Fund 1 (“SF1”) the base amount of $6,828.
The wife’s counsel submits that the adjustment to the wife arises from a concession that the husband made a superior contribution arising from his ownership of real estate as at the date of commencement of cohabitation reflecting an adjustment of 65/35 percent in his favour, but considering factors pursuant to s 75(2) of the Act there should be an adjustment of 25 percent in favour of the wife principally because if successful in the orders for relocation she will have the ongoing financial care of the children and it is reasonable for the Court to find that the husband is likely to be recalcitrant in respect of the payment of child support. The settlement sum sought by the wife in addition to the superannuation adjustment is $80,000.
Both parties agree that upon the payment of the settlement sum the wife should transfer her interest in the former matrimonial home situate at H Street, Suburb D Northern Territory … (“the Suburb D property”) to the husband and she should thereafter be free of any liability in respect of the mortgage to N Bank over the Suburb D property.
In their separate applications the parties agreed that the wife would transfer her interest to the husband in the 4WD motor vehicle (“the 4WD”). There is an outstanding loan in the sum of $13,260 in respect of the 4WD.
The husband does not substantially disagree with the orders sought by the wife except that he considers the net pool of assets should be adjusted as to 70/30 percent in his favour and in order to maximise his opportunity to retain the Suburb D property, he seeks that any settlement sum payable to the wife be satisfied by a superannuation split from his SF1 entitlement.
The wife’s solicitors by letter dated 7 February 2019 provided procedural fairness the trustee of SF1 and by reference to the response dated 13 February 2019 the trustee has acknowledged that there will be no difficulty in complying with the proposed superannuation order if the Court determines that it is proper to do so.
Consistent with the husband’s approach to the parenting considerations, he relied upon his trial affidavit and financial statement but declined any opportunity to cross examine the wife, nor did he make any final submissions.

Background

At the commencement of cohabitation in 2006 the parties both worked for the same employer. The husband’s income was greater than the wife’s income but nonetheless modest.
The wife concedes that at the commencement of cohabitation she had a motor vehicle 1 and a motorbike. They were sold in 2008 for a total sum of $11,000 which was used by the parties for daily living expenses.
The husband was the sole registered proprietor of a unit at O Street, Suburb P, South Australia. He had purchased the property in 1996 and it was sold in 2008 for $199,000. During the period of ownership the property generated rental income of about $160 per week.
The husband also owned a motor vehicle 2 which was traded in for $10,000 on the purchase of a motor vehicle 3 purchased for $19,000 in 2009. Ultimately that vehicle was sold in 2012 for $6,000. The proceeds of sale of O Street was used to purchase a unit at Q Street, Suburb R, Northern Territory (“the Suburb R property”) for $165,000.
The balance of the sale proceeds of the Suburb P property was used to upgrade the kitchen in the Suburb R property.
The Suburb R property was sold in about 2011 and the net proceeds of sale of about $295,000 were used towards the purchase of the Suburb D property for $475,000.
Reasonably substantial renovations were undertaken in 2016 which required $60,000 to be redrawn from the mortgage.
There remains an outstanding electrical invoice for the renovations undertaken in 2016 in the sum of $2,776.40. The wife has paid $600 towards the invoice. She proposes that the parties share the outstanding liability equally taking into account her payment. The husband seeks the entirety of the outstanding electrical account be shared.

Schedule of assets and liabilities as the commencement of the proceedings

A balance sheet was tendered on behalf of the wife. The following assets and liabilities are agreed:
Assets

H Street, Suburb D, NT

Joint

450,000

Motor vehicle 4

Husband

3,050

Furniture

Wife

2,000

Furniture

Husband

4,000

Total

$459,050

Liabilities

J Bank Home Loan xx00

Joint

301,087

J Bank Loan xx10 (car loan)

Joint

13,260

Electrical account

Joint

2,776

Total

$317,123

Superannuation

Super 2

Wife

69,024

Super 3

Wife

3,433

Super 4

Wife

1,379

SF1 Super

Husband

68,058

Super 5

Husband

19,439

Total

$161,333

Is it just and equitable to alter the property interests of the parties?

The parties both consider that it is just and equitable for the Court to make an order pursuant to s 79 of the Act.
In Stanford & Stanford (2012) 247 CLR 108 the majority held:-
35It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
In Bevan & Bevan [2013] FamCAFC 116 the Full Court considered at [73] that the decision of Stanford could be reduced to three fundamental propositions:-
(1)The Court needs to consider the existing property interests of the parties and to identify those interests (by reference to common law and equity); and
(2)The discretion must be exercised in accordance with legal principles and not in respect of any assumption that the parties interests should be different from those determined by common law equity; and
(3)Section 79(2) cannot be conflated by reference to matters in s 79(4).
I consider that it is just and equitable for a s 79 order to be made.
The parties obviously hold interests in assets, but in particular the Suburb D property and orders of the Court are required to separate the financial interests of the parties.

Issues in dispute

4WD

The parties are not agreed as to the value of the 4WD. The wife provides a Redbook valuation at $16,300. The husband considers that this does not represent a fair value taking into account his assessment that the vehicle is in “poor condition”. Neither party would wish to retain the vehicle and each now seek that it be sold. There is a reasonable concern that given the non-existent communication between the parties, the method and manner by which the vehicle is to be disposed of is unlikely to be the subject of agreement.
I propose to take the mid-point of the trade in valuation of $13,100 and leave the vehicle with the husband. It is for him to retain or sell the vehicle as he may elect.

Personal accounts of the parties

I propose to not bring to account the arbitrary balances of the parties in the separate bank accounts. They are modest and are unlikely to reflect the amount standing to the credit of the parties as at the date of trial.

Furniture of the parties

The parties are agreed that the wife holds furniture to the sum of $2,000, but she considers that the husband’s retention of furniture should be brought to account at $4,000. The husband is only prepared to concede a value of $2,000. No evidence was presented and nothing appears in the parties affidavits. I will fall in with the husband’s position.

NAB personal loan of the wife

The wife seeks to bring to account an outstanding bank loan in the sum of $22,301. The husband considers that the wife should be entirely responsible for the loan given that it was taken out by her after separation.
The history of the loan is that the wife took out a personal loan initially for $10,000 to cover her expenses but it later increased to $25,000. The wife’s financial arrangements following separation requires closer inspection. After leaving the Suburb D property she took up residence in rented accommodation incurring a bond of $1,440. She concedes that this was paid from the joint bank account of the parties.
Up until 31 August 2016 both parties continued to deposit their wages into a joint offset account and the wife’s rent together with the mortgage and other expenses were debited to the account.
As and from September 2016 the wife’s rent of $360 per week (then reducing to $300 per week) has been paid from her personal account without any contribution by the husband. From 31 August 2016 to 28 September 2017 and in addition to her rent, the wife paid money into the offset account to cover one half of the mortgage repayments and Z’s day-care costs. Documents annexed to the wife’s affidavit (being “A4 and A5”) enable the mortgage payments made by the wife to be calculated in the sum of $27,000.
There appears to be no good reason why the wife should have been required to contribute to the mortgage in circumstances where she derived no benefit from the property. No financial support for the children was paid by the husband and he retained the Centrelink benefit.
In those circumstances it is reasonable that the wife’s personal loan be brought to account in determining the value of the net asset pool.

J Bank personal loan of the husband

The balance sheet reflects the husband’s outstanding personal loan in the sum of $10,000.
Paragraph 96(c) of the husband’s trial affidavit refers to the personal loan taken in order to pay his legal fees.
No similar figure is brought to account in respect of the wife’s legal fees and accordingly I do not propose to bring to account the husband’s J Bank personal loan. Accordingly, the adjusted property pool is as follows:-
Assets

H Street, Suburb D

Joint

450,000

4WD

Husband

13,100

Motor vehicle 4

Wife

3,050

Furniture

Wife

2,000

Furniture

Husband

2,000

Total

$470,150

Liabilities

J Bank home loan xx00

Joint

301,087

J Bank loan (4WD motor vehicle) xx10

Joint

13,260

Electrical account

Joint

2,776

NAB personal loan

Wife

22,301

Total

$339,424

Net balance

$130,726

Superannuation

Super 1

Wife

69,024

Super 3

Wife

3,433

Super 4

Wife

1,379

SF1 Super

Husband

68,068

Superb 5

Husband

19,439

Total

$161,343

Contributions

It is conceded that at the commencement of the relationship the husband had interest in real property and that the wife did not bring any property of significant value into the relationship.
The parties worked cooperatively during the course of the relationship to advance their financial circumstances.
It is not suggested that the husband was anything other than supportive of the wife in her various career options. For her part, the wife fulfilled the role of homemaker and was predominantly the parent providing the primary care to the children.
The husband contributed to the family by income generated from his steady employment.
Following separation the children remained primarily in the wife’s care. The husband did not contribute to the financial support of the children, although it is conceded that the wife did not seek an assessment of child support given her continuing fear of the husband. In addition, the husband retained the Centrelink benefit payable in respect of the children in circumstances where I have found that he knew he did not have an entitlement to retain the entirety of the benefit at certain times, or any of the benefit at other times.
The amount is significant and I bring this to account as a contribution made by the wife post-separation.
Given that I have brought to account the wife’s NAB personal loan I do not bring to account the contribution by the wife towards the mortgage and the payment of her rent post-separation.
The net property of the parties is modest at $130,726.
When considering the weight to be given to the separate contributions of the parties I must have regard to a dollar value that is the outcome of any percentage of any application of a percentage adjustment.
In Clauson & Clauson (1995) FLC 92-595 the Full Court was faced with the fact of the husband’s substantial initial contribution followed by a 10 year period of cohabitation where the parties made direct and indirect contributions over what was described as “10 busy years”. At 81,910 the Full Court considered the husband’s initial financial contribution as follows:-
The circumstance that the significance of the initial contributions may be eroded over the passage of time because of the other contributions which the parties make over the duration of the marriage is, we think, not a matter of controversy…:
(citations omitted).
This must be considered with the remarks of the Full Court in Pierce v Pierce (1999) FLC 92-844 at 85,881:-
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the original contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home.
(citations omitted).
The contribution of the husband of his real property at the commencement of cohabitation is represented in the Suburb D property. Given the modest income of the parties and their general circumstances, it is reasonable to opine that without the husband’s initial contribution the Suburb D property would not now be available to them.
Nonetheless, I am not able to ignore the overwhelming significance of the husband’s pre-cohabitation contribution in circumstances where the net value of the Suburb D property is slightly less than $150,000.
Accordingly, I propose to reflect the contributions of the parties as to 80/20 in favour of the husband.

Section 75(2) factors

The parties are not dissimilar in age and employment opportunities.
The husband is in secure fulltime employment with an annual salary of about $81,900.
The wife’s income is similar although she will give up her employment in order to relocate to New Zealand. Nonetheless, I consider that her employment prospects are good and I bring to account that she has a range of employment skills including in accounting and finance.
It is not suggested by the wife that she will not find employment. It is an integral part of her application to relocate the children to New Zealand that she does not consider she will have any difficulty in providing for their financial support.
In considering the factors pursuant to s 75(2) the overarching consideration is the wife’s submission that given the ongoing hostility between the parties and the husband’s stated response that if the children relocate to New Zealand he will not make any financial provision for them, in those circumstances the wife’s care of the children will represent a significant expense.
After separation the husband’s conduct was poor in relation to his preparedness to provide financially for the children. He did not pay child support on a voluntary basis nor did he provide to the wife any proportion of the significant sum by way of Centrelink benefit retained by him for the children’s care.
There has been an assessment of child support of recent date of a modest sum.
The husband’s evidence did little to instil any confidence that he would not carry out his earlier threats to cease any financial support payable to the wife for the children.
In any event it is reasonable to assume that even were the husband to pay a level of child support as may be assessed, the children’s expenses would still be substantial.
In determining a percentage adjustment I am mindful of the modest pool and in order that an adjustment be meaningful I consider that a 20 percent adjustment in favour of the wife would provide her with significant assistance in terms of the ongoing care of the children.
Accordingly, the overall adjustment is 60/40 in favour of the husband.

Financial outcome

The total assets are $470,150 and the total liabilities are $339,424. The net balance is $130,726. At 40 percent the wife is entitled to a settlement sum of $52,290.
The wife retains the Motor vehicle 4 at $3,050 and her furniture and effects at $2,000 with a total of $5,050. When her personal loan of $22,301 is brought to account there is a deficiency of liability over asset of $17,251. To receive the net sum of $52,290 the settlement sum payable should be $69,541.

Superannuation

The parties are agreed that their superannuation entitlements should be adjusted to equality. On that basis there would be a superannuation split in favour of the wife of a lump sum amount of $6,835.
The husband seeks that the entirety, or at least a substantial proportion of any settlement sum awarded in favour of the wife, be payable by way of a further adjustment against his superannuation. In summary, the smaller the amount that he is required to pay to the wife by way of a cash settlement sum the greater his chance is of being able to source the funds necessary and still being able to retain the Suburb D property.
The husband presented no evidence of any attempts made by him to seek funds by way of an extension of the mortgage or a further loan. No evidence was presented as to the husband’s ability to borrow money, nor was it asserted by the husband that if a particular sum was ordered this would inevitably result in him having to dispose of the Suburb D property. There is some basis to consider that the children may be distressed if the husband is required to sell Suburb D.
Doing the best that I can and in an attempt to balance the interests of the parties I propose to adjust the settlement sum of $69,541 by increasing the superannuation split in favour of the wife by $15,000 and thereby reducing the settlement sum to $54,541.
I propose that the settlement sum be paid within 60 days of this order.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and thirty-two (332) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 February 2019.

Associate:

Date: 26 February 2019

[2019] FamCA 86

26 February 2019

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Jurisdiction

Remedies

Costs

H Street, Suburb D, NT	Joint	450,000
Motor vehicle 4	Husband	3,050
Furniture	Wife	2,000
Furniture	Husband	4,000
Total	$459,050

J Bank Home Loan xx00	Joint	301,087
J Bank Loan xx10 (car loan)	Joint	13,260
Electrical account	Joint	2,776
Total	$317,123

Super 2	Wife	69,024
Super 3	Wife	3,433
Super 4	Wife	1,379
SF1 Super	Husband	68,058
Super 5	Husband	19,439
Total	$161,333

H Street, Suburb D	Joint	450,000
4WD	Husband	13,100
Motor vehicle 4	Wife	3,050
Furniture	Wife	2,000
Furniture	Husband	2,000
Total	$470,150

Super 1	Wife	69,024
Super 3	Wife	3,433
Super 4	Wife	1,379
SF1 Super	Husband	68,068
Superb 5	Husband	19,439
Total	$161,343