JONES and HILL
[2016] FCWA 87
•14 OCTOBER 2016
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: JONES and HILL [2016] FCWA 87
CORAM: O'BRIEN J
HEARD: 20, 21 & 22 JULY 2016
DELIVERED : 14 OCTOBER 2016
FILE NO/S: PTW 5864 of 2013
BETWEEN: MR JONES
Applicant
AND
MS HILL
Respondent
Catchwords:
PARENTING - relocation to the United Kingdom.
FINANCIAL - de facto relationship - whether leave required - modest asset pool.
CONDUCT OF PROCEEDINGS - absence of detailed proposals in parenting case - purported tender of expert report without affidavit and without expert being made available for cross-examination - duty of disclosure - annexure of irrelevant documents to trial affidavits - failure to file joint schedule of assets and liabilities as ordered.
Legislation:
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr R Klimek
Respondent: Mr R Crane
Solicitors:
Applicant: Klimek & Co
Respondent: Friedman Lurie Singh & D'Angelo
Case(s) referred to in judgment(s):
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Clarence and Crisp [2016] FamCAFC 157
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1[Mr Jones] (“the father”) and [Ms Hill] (“the mother”) are unable to agree to the parenting arrangements for their daughters born [in] 2007 (“[Child A]”) and [in] 2009 (“[Child B]”) respectively.
2Central to their disagreement is the mother’s desire to move permanently with the children to England.
3The parties have also been unable to resolve the division of their property.
Brief background and history of the litigation
4The father was born [in] 1969. He is employed as a [nurse].
5The mother was born [in] 1975. At present, she is not regularly employed, but she has recently undertaken some relief work as a [care worker] and has a desire to work full-time in this area, it being associated with her studies.
6Both parties were born and grew up in England. They began their relationship in or about 1995. According to the father, they began living together in July 1997. On the mother’s case, they began living together in August 1998. They did not marry.
7The parties moved to Australia, living initially in Sydney, in or about August 2002. On the father’s case, the move to Australia was always intended by him to be permanent. On the mother’s case, she agreed to move to Australia for what might be described as a “trial period” only.
8After a relatively short time living in Sydney, the parties moved to Western Australia where, at that time at least, the mother had some family members. Child A and Child B were both born in Western Australia.
9The relationship became strained and in due course the parties separated. Their recollections as to the circumstances of separation, and when it finally occurred, differed. On the father’s case, the relationship ended no later than 30 November 2011 but he continued to visit the home every day to spend time with the children. On the mother’s case, the relationship did not end until 18 December 2011 when a particular incident occurred.
10For reasons which appear below, the dispute between the parties in that regard took on some significance during the course of the trial.
11The father commenced proceedings by filing an application seeking parenting orders only on 21 October 2013. The mother filed a Form 1A response on 10 December 2013, also seeking parenting orders, and orders for alteration of property interests. The father filed a Form 1B reply on 14 August 2015, setting out the relief sought by him in relation to financial matters.
12The mother filed an amended Form 1A response on 17 September 2015. That document amended the relief that she sought in relation to parenting matters, to include an application for an order permitting her to relocate to England with the children.
Matters not in issue
13Prior to the commencement of trial, the parties had agreed that they should have equal shared parental responsibility for the children.
14At the status hearing shortly prior to trial, counsel were able to confirm that in relation to the issue of alteration of property interests, the parties agreed that their respective contributions from the commencement of the relationship through to trial were appropriately to be regarded as having been equal.
15I regard both agreements as sensible and supported by the evidence.
16The parties agreed that the mother’s surname should be added as an additional given name for each of the children. A number of other matters in relation to non-denigration injunctions, information sharing and the like were also agreed.
17The parties also agreed, as contemplated by s 202A(2)(b) of the Family Court Act 1997 (WA) (“the Act”), that the financial aspects of the proceedings should be conducted as a child-related proceeding.
Relief sought by the parties
18While the agreements reached were sensible and limited the issues for determination, regrettably the state of preparation of the matter meant that the relief sought by the parties, and the position of the father in particular in relation to a number of issues, remained ill-defined by the commencement of trial.
19Until I raised the matter with counsel at trial, it did not appear to have occurred to either party that the dispute as to the date on which their relationship ended had potential consequences in relation to the financial case. On the father’s case as to the date on which the relationship ended, the mother’s Form 1A response was filed outside the statutory time limit for the commencement of proceedings seeking alteration of property interests. On the mother’s case as to the end of the relationship, her response was filed within time.
20Having raised the matter with counsel, I gave them the opportunity to take instructions. I pointed out to counsel for the father, Mr Klimek, that both parties were seeking orders for alteration of property interests. I invited him to consider with his client whether (the proceedings having been commenced, on his case as to separation, less than two weeks out of time) an appropriate concession might be made such that leave, if required, could be granted without opposition.
21Having taken the opportunity to consider that issue overnight, Mr Klimek submitted that the issue was “more complicated than is first thought” given that, he said, the mother had not sought financial relief until she filed her amended Form 1A response on 17 September 2015 – nearly two years out of time. When at my insistence he reviewed the initial Form 1A response filed by the mother on 10 December 2013, Mr Klimek conceded that he had missed the fact that financial relief had been sought in that document.
22Similar difficulties arose in relation to the parenting orders sought by the father. At the status hearing on 13 July 2016 I observed to both counsel that the relief sought by their respective clients remained unclear. An order was made requiring each party to file and serve a minute specifying with precision the orders sought, with that document to be provided no later than the commencement of trial.
23On the morning of the first day of trial, the solicitors for the father forwarded to my chambers two minutes of proposed orders, dealing separately with financial matters and parenting matters.
24The minute of proposed parenting orders ran to some 10 pages and descended to significant detail in relation to the exchange of information, time to be spent with the children on particular specified occasions, and the like.
25In relation to the central issue of the mother’s proposed relocation to England, however, the father sought orders in the following terms:
In the event the court permits [the mother] to relocate with the children to the United Kingdom, then this Court make parenting orders:
(a)as it deems in the best interests of the children with a view to them spending time with and communicating with [the father] to the maximum extent possible whilst [the father] continues to reside in the Commonwealth of Australia; and
(b)in the event he also relocates in the future, then in equivalent terms to those sought by him in these orders with respect to the parents both continuing to reside in the Perth metropolitan area, save and except the children live equally with each parent.
26I pointed out to Mr Klimek that, in considering an application involving relocation, I am required to identify and consider the competing proposals of the parties. He did not disagree with the proposition that the order sought above left me none the wiser as to what his client proposed in the event that the relocation was permitted. Similarly, he did not disagree with my observation that the second limb of the orders sought proposed that I prospectively make an order for the children to live equally with each parent at some unspecified time in the future, at the behest of the father, if he chooses to move to England, and without any information as to what might be the circumstances of the children and the parties at that time.
27I directed Mr Klimek to again take further instructions and better define his client’s case. An amended minute of proposed parenting orders was handed up in Court late on the second day of trial. The more significant components of that minute had been foreshadowed by Mr Klimek orally in sufficient time for them to be addressed in the cross-examination of the father if required.
28The parties had, on 9 December 2015, been ordered to file a joint schedule of assets, liabilities and financial resources two days prior to trial. At the status hearing on 13 July 2016 I had emphasised the need for compliance with that order. At the commencement of trial, no joint schedule was in existence despite the fact that the parties had spent a considerable time the day immediately prior to trial conferring at the Court’s suggestion, using meeting facilities provided by the Court.
29Counsel for the mother, Mr Crane, indicated that he had endeavoured to confer with the solicitors for the father with a view to agreeing a joint schedule, but had been significantly hampered in that regard by the late and incomplete nature of the father’s disclosure. Mr Klimek rejected that suggestion, saying that timely disclosure had been given. I reviewed the father’s undertaking as to disclosure filed on 14 July 2016 (significantly late, but nearly a week prior to trial) and pointed out to Mr Klimek that the list of disclosed documents annexed to the undertaking did not include a single document dated 2016. The list itself bore the description “Husband’s (sic) Index of Disclosure Documents as at 23 December 2015.” Mr Klimek then contended that more up-to-date disclosure had been provided to the solicitors for the mother after the filing of the undertaking, in the several working days immediately prior to trial.
30Such an approach is clearly contrary to the Rules, and (more importantly) to the interests of the parties. Compliance with the duty of disclosure is fundamental to the narrowing of factual issues in a case, the prospects of resolution without the need for a trial, and the orderly and cost effective management of litigation. In circumstances where the father was represented throughout the proceedings, and prior to trial had incurred legal fees of over $105,000, it is difficult to fathom why fundamental requirements in the preparation of the matter for trial had not been met.
31In the end, the father sought parenting orders in terms of his amended minute of proposed orders (parenting) handed up in Court on 21 July 2016. He sought financial orders in the terms of his minute of proposed orders (financial) received by the Court on the morning of the first day of trial.
32The mother sought orders in terms of her minute of proposed final orders filed on 9 March 2016.
33Given the late preparation of the father’s proposed orders, at the conclusion of the trial I gave both parties liberty to inform the Court in writing as to any orders sought by the other party which could be made by consent; such notification to be received by my chambers by the close of registry on 29 July 2016. A letter was received from the solicitors for the mother on 27 July 2016, identifying those of the orders sought by the father that can be made by consent. No letter was received from the solicitors for the father.
The competing proposals of the parties – parenting case
34As already noted, the parties agreed that an order for equal shared parental responsibility should be made.
35They also agreed that the children should live with the mother.
36The father sought that the mother be restrained from relocating to England with the children. He proposed that if the children remained living in Perth, the current arrangements for their care should change so that the children would spend time with him during school term on a regular “rolling” arrangement based on his work roster. The father’s roster requires him to work four days “on” followed by four days “off”. He sought that the children spend time with him in the first eight day cycle of his work roster from after school on day one of his four days off, until 5.00 pm on day one of his four days on. For the second eight day cycle of his work roster, he proposed that the children spend time with him from after school on day one of his four days off, until 5.00 pm on day four of his four days off. On his proposal, therefore, during school term the children would spend seven nights of every 16 with him. His evidence was that on his four rostered days on he typically works two day shifts from 8.00 am to 6.00 pm, and two night shifts from 6.00 pm to 8.00 am.
37The mother proposed that, if she and the children remained in Perth, the children spend time with the father each alternate weekend from after school on the Friday to commencement of the school on the Monday, and each intervening Wednesday from 3.00 pm until 6.30 pm, plus such further or other times as might be agreed.
38It can be seen that on the father’s case (if the children remain in Perth) the arrangements should revolve around his roster; on the mother’s case (if the children remain in Perth) the arrangements should revolve around the children’s school week.
39The mother proposes to relocate with the children to England. Prior to the commencement of the trial, her desire was to do that as soon as practicable. Having heard the evidence of the single expert witness as to the desirability of the children having the opportunity for counselling to prepare them for any move, the mother amended her position during trial to propose that she not leave for England until the end of the year.
40If permitted to relocate with the children, the mother proposed that the father spend time with them in England, in each of the English school half term holidays and end of school term holidays, from 9.00 am on the first Saturday to 9.00 am on the last Saturday. Additionally, she proposed that he spend up to one half of the English summer school holidays with the children, with the dates and times to be agreed and with the father being at liberty to take the children to Australia each alternate summer. She proposed to pay half of the cost of the children’s return air tickets to and from Australia for each alternate summer school holidays and that the father meet his own costs to spend time with the children in England. She proposed that the children have Skype or FaceTime communication with the father each Sunday and liberal telephone communication.
41In the event that the relocation is permitted, the father proposes that the children spend time with him:
(a)for the entirety of the midyear school holiday period, in Perth, with the travel costs to be met by the mother;
(b)for the entirety of the English Christmas school holiday period in 2016 and each alternate year thereafter, at his election either in Perth or England, with the mother to meet the cost of travel required of either the father or the children in any event; and
(c)for the entirety of the mid-term English school holiday periods in England, at his election, with the mother to meet his costs of travel in the event he so elects.
42Apart from the more central aspects of the dispute, there were a number of relatively minor differences in the positions of the parties in relation to, for example, the need for consent to medical treatment and the holding of passports for the children. While no specific evidence was led (other than some historical complaints by the father that he was not kept informed about the children’s medical treatment), nor submissions made in relation to those issues, they are able to be dealt with in the overall consideration of what arrangements will be in the best interests of the children.
43The father also sought orders restraining both parties from allowing the children to have any contact or communication whatsoever with various named members of his family, other than with the consent of the other parent.
The competing proposals of the parties – financial case
44The asset pool available for division between the parties is very modest. It comprises the sum of $89,013 (which is all that remains from the proceeds of sale of the home of the parties), some fairly nominal amounts in various bank accounts and chattels.
45The father has available to him the financial resource of superannuation in the amount of $74,016. The mother’s superannuation has a current value of $8,193.
46The father’s proposal for alteration of property interests was that the mother should retain the whole of the remaining net proceeds of sale of the home and that each party should otherwise retain their own chattels, superannuation and responsibility for their own liabilities.
47The mother’s proposal was the same, but for the additional proposition that the father should pay her a lump sum of $22,198.
The law – parenting case
48As noted above, the parties agreed that an order for equal shared parental responsibility should be made. I am therefore required to consider whether the children spending equal time with each of the parents would be in the children’s best interests and reasonably practicable. If so, I am required to consider making an order to that effect.
49If I determine that an order for the children to spend equal time with each of the parents is not to be made, I am required to then consider whether the children spending substantial and significant time (as that term is defined in the Act) with each of the parents would be in the children’s best interests and reasonably practicable. If so, I am required to consider making an order to that effect.
50In a relocation case, there is no presumption against an order being made which permits relocation, nor is there any presumption in favour of a parent with whom the children predominantly live at the time of the application.
51The children’s best interests remain the paramount, but not the sole, consideration. A parent wishing to move does not need to demonstrate “compelling” reasons to justify the proposed move, and the children’s best interests must be weighed and balanced with the proposed relocating parent’s right to freedom of movement. A court should not lightly interfere with that right of freedom of movement, save and except where it is contrary to the best interests of the children.
52While the parent proposing to relocate is not required to justify the desire to move (beyond the Court being satisfied that the application is bone fide and not motivated by some ulterior consideration) it is appropriate for the Court to have, as it does in this case, evidence as to the benefits which the parent seeking to move says would flow from the relocation. The welfare of the parents is to be considered and balanced with the best interests of the children; that exercise necessarily includes an examination of the likely benefits to the parent of the proposed move and the likely detriments of an inability to move.
53In determining the matter I must be guided by the objects of the Act and the principles underlying them. In determining what is in the children’s best interests, I am required to consider the matters set out in s 66C of the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.
The law – financial case
54Pursuant to s 205ZB of the Act, an application by a de facto partner for alteration of property interests may only be commenced without leave within two years after the relationship ended. However, the Court may grant leave to commence proceedings out of time if satisfied that hardship would be caused to a de facto partner if leave were not granted.
55Some confusion has been expressed as to whether leave may be granted by the consent of the parties. That confusion apparently arises because s 44(3) of the Family Law Act 1975 (Cth) expressly permits applications for financial relief between married couples to be commenced out of time with the consent of the parties. Section 205ZB of the Act contains no such express provision.
56For reasons which follow, it is not necessary to determine that issue in this case. That said, it is important to bear in mind the distinction between the clear power of the Court to extend or abridge time limits fixed by its own rules, and the proposition that the Court can (other than as expressly permitted by the legislation itself) extend or abridge time limits fixed by the Act.
57Albeit in a different context, the High Court observed in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, 321 at [220] per Callinan J:
When therefore a legislature has enacted an express and clear period of limitation, it is not for the courts to subvert it, or to seek to qualify it, by the introduction of words embodying the concept that the specified period might be shortened or lengthened, in the discretion of the court according to whether the court thinks that a period is too long or too short.
58As noted, the matter was not argued fully before me and it is unnecessary to the disposition of this case to determine whether or not it is possible for the time limit set by s 205ZB of the Act to be extended simply by the consent of the parties, and without the need for a finding of hardship as expressly contemplated in the legislation. As presently advised, my view is that such an extension is not possible. Parties cannot by agreement confer on a court jurisdiction or power which it does not have.
59If I am correct in that view, and it is necessary in all cases for the Court to make a finding that hardship would be caused if leave is not granted, it is in any event clearly open to the parties to advise the Court that they do not oppose such a finding being made, nor seek to be heard in relation to it. At worst, by that process, a respondent to an application for leave to commence proceedings out of time can (in substance if not in form) consent to it. In those circumstances there is, in my view, no need for the Court to conduct further enquiry or make further findings.
60If the application for leave to commence proceedings out of time is opposed, the Court must carefully consider whether hardship would be caused to a de facto partner if leave were not granted.
61The applicant for leave must first establish that she would suffer hardship (which is generally interpreted to mean “substantial detriment”, and not merely the loss of the opportunity to litigate) if leave were not granted.
62The Court must consider whether the applicant for leave has produced evidence sufficient to establish on a prima facie level a viable claim for property settlement. The stronger the prima facie case, the more likely it is that hardship would be caused if leave is refused.
63A finding that hardship will be caused if leave is not granted is not the end of the matter; a discretion remains. In exercising that discretion the Court must have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of the extension of time.
64If leave is granted for the application for alteration of property interests to be commenced out of time, the principles then to be applied to that application are clear.
65The Court has a wide discretion conferred by s 205ZB(2) of the Act. That discretion must be exercised in accordance with legal principle and without assuming that the interests of the parties in assets are or should be different from those determined by common law and equity.
66The Court must be satisfied that it is just and equitable to make an order adjusting existing property interests. While that requirement is readily satisfied in most cases, it cannot be assumed.
67In determining what orders will be just and equitable the Court’s power is not confined by any “steps” or “stages”. Having said that, the Court will satisfy the legislative requirements if it identifies and values the assets and liabilities of the parties, assesses their respective contributions (including contributions to assets which have ceased to be owned by them), assesses the factors in s 205ZD(3) of the Act, to the extent they are relevant, and considers whether the proposed orders are just and equitable.
68The Court is required to consider the respective contributions of the parties holistically over the whole period to trial. While nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party, the allocation of percentages is a sensible and generally valuable practical tool.
69In many, if not most, cases, the Court assesses the respective contributions of the parties in a global sense rather than by specific reference to individual assets. That said, the Court is entitled in an appropriate case to consider contributions and assess them on what is commonly described as an “asset by asset” basis.
The evidence at trial
70The father relied on his trial affidavit filed on 16 December 2015 and his financial statement filed on the same day. He also relied on the affidavit of his partner, [Ms Mallard], filed on 16 December 2015. While his papers for the judge said that he relied on his affidavit sworn on 15 January 2016, which was sworn in response to a Form 2 application filed by the mother on 6 January 2016, at the commencement of trial his counsel confirmed that he did not.
71The trial affidavit of the father filed on 16 December 2015 had, in its first incarnation, exhibited to it some 92 separate exhibits, running to over 400 pages in what was (forensically at least) an uncomplicated case. At an earlier hearing before the Honourable Justice Walters on 18 January 2016, His Honour made very clear and, with respect, accurate observations as to the filing of that document. For whatever reason, no steps were taken by the solicitors for the father to address the matters raised in his Honour’s observations.
72At the status hearing on 13 July 2016, Mr Klimek acknowledged that a significant proportion of the documents exhibited to the father’s trial affidavit were irrelevant to matters in issue in the proceedings. I made an order that by no later than the close of registry on 15 July 2016, the father file and serve a schedule identifying which, if any, of the exhibits to that affidavit he sought to be received into evidence for the purposes of the trial.
73That schedule formed part of the father’s papers for the judge. It confirmed that of the original 92 exhibits, the father sought to rely only on 43. Even then, few if any of the exhibits were actually referred to during the course of the trial.
74During the father’s evidence in chief, Mr Klimek sought to tender through him a report apparently prepared by a psychologist, who had seen Child A at the father’s request to assess her in relation to learning issues. The psychologist concerned was not in any sense Child A’s treating psychologist and had apparently been consulted specifically for the purposes of obtaining a report for use in the proceedings. Mr Klimek acknowledged that no application for permission to lead expert evidence or tender a report had been made. He acknowledged that the report, which was prepared in April 2016, had not been “formally” disclosed to the mother’s lawyers, although he asserted that the father had sent a copy directly to the mother. For obvious reasons the report did not appear in the list of disclosure documents annexed to the father’s undertaking as to disclosure filed a few days prior to trial, as that list was prepared in December 2015.
75Mr Klimek also confirmed that he intended to seek to rely on the opinions expressed in the report, on the basis of the asserted expertise of the author. He acknowledged that no arrangement had been made for the psychologist to swear an affidavit, nor to be available for cross-examination.
76Even allowing for the apparent misunderstanding by many practitioners of the scope and operation of Division 11A of Part 5 of the Act, the approach adopted on behalf of the father was remarkable. I declined to admit the report into evidence.
77The mother relied on her trial affidavit filed on 7 December 2015, witness affidavits of [Mr Hampton], [Ms Faline] and [Ms Kala] all filed on 1 December 2015, and her own financial statement filed on 7 December 2015. While her papers for the judge said that she relied on her affidavit filed on 6 January 2016 for the purposes of trial, Mr Crane confirmed that she did not.
78Margaret Cherubino was appointed as single expert witness in the case by an order made on 15 March 2016. Her affidavit filed on 5 July 2016, exhibiting her curriculum vitae and report, was in evidence.
Observations as to the evidence
79For the most part, I consider that the father tried to give his evidence in an honest fashion. That said, he was initially evasive when it was put to him that he had been involved in a sexual relationship with Ms Mallard prior to separating from the mother, before flatly denying it. When Ms Mallard was asked whether she had been in a sexual relationship with the father prior to his separation from the mother, she readily admitted it.
80Similarly, I formed the view that the father’s reluctance to admit entering into his new relationship before the end of his relationship with the mother influenced his evidence in relation to the date on which the relationship of the parties actually ended. He admitted that on 18 December 2011, some weeks after he would say that the relationship ended, he went to some lengths to give the mother the impression that he was going to work when in fact he was going to meet Ms Mallard. When I asked him why he would lie about his whereabouts if the relationship was over his answer was “because I am stupid”.
81Where the father’s evidence contradicted that of the mother, in relation to the father’s relationship with Ms Mallard and the details and timing of the end of the relationship of the parties, I preferred the evidence of the mother. Otherwise, as already noted, I formed the impression that the father tried to give his evidence in an honest fashion. He was not, however, an overly reliable historian and his strong personal feelings in relation to the issue of relocation in particular, led, in my view, to a certain amount of conscious or unconscious manipulation of his recollection.
82Ms Mallard gave evidence in a blunt, albeit occasionally belligerent, manner. She was transparently evasive in the answers which she gave regarding the question of the financial settlement she received on separating from her former husband, purporting for example to be less than certain as to whether she had received the settlement in 2014. She clearly held a strong view (which she asserted was based on advice given to her by Mr Klimek who had also acted for her in those proceedings), that the subject was irrelevant and that she should not have to answer the questions asked.
83Notwithstanding that, I formed the impression that she endeavoured to give her evidence in a truthful fashion.
84The mother gave her evidence in a straightforward and apparently honest fashion. Her evidence was largely unshaken in cross-examination. She did not appear to me to attempt to tailor her evidence to her desired result, nor to any perception of the impression she might be giving; by way of example, she was firm in expressing her views that all members of the children’s family (including extended family with whom they have had relatively little contact) are “equally” important, including in that analysis both herself and the father.
85In that regard, the mother’s actions and evidence demonstrated somewhat of a lack of empathy for the father. The mother is aware of the difficulties associated with the father’s relationship with his own extended family and the depth of his feeling about what he would assert was abuse suffered by him at the hands of his stepmother. Notwithstanding that, she took steps prior to the separation of the parties to establish a relationship between the children and the father’s extended family, over his objections, and has taken further steps since separation to maintain those relationships. I accept that those actions were driven by the mothers’ genuinely held view as to the equal importance to the children of all members of the extended family, rather than by any malice to the father. Nevertheless they show, at the very least, a lack of empathy for his strongly held views and potentially a prioritisation of her own views over his as to what is best for the children.
86The mother’s witnesses all gave their evidence in a straightforward and truthful manner. They were unshaken under cross-examination.
87The single expert witness, Ms Cherubino, was forthright and even-handed in her evidence and open and responsive when cross-examined. There was no challenge to her expertise or to the integrity of her opinions.
Consideration of equal time
88As there is to be an order for equal shared parental responsibility, I am required to consider whether it is in the children’s best interests and reasonably practicable that they spend equal time with each of their parents.
89Neither party proposed that the children spend equal time with each parent, whether or not the relocation is permitted.
90I agree with the conclusion of the parties that equal time is not in the best interests of the children. It is clearly not practicable if the relocation is permitted. It is not practicable even if the relocation is not permitted, given the nature of the father’s work commitments.
91The father’s proposals in the event that the relocation is not permitted would amount to the children spending substantial and significant time with him. His proposals in the event that the relocation is permitted would not. My consideration of the question of whether it is in the children’s best interests to spend substantial and significant time with the father is accordingly enmeshed with my consideration of the children’s best interests generally.
The mother’s relocation proposal
92The mother is not required to justify her desire to move to England, beyond the Court being satisfied that the application is bona fide and not motivated by some ulterior consideration.
93When invited through his counsel to do so, the father was not prepared to concede that the mother’s expressed desire to relocate was genuine, nor would he concede that it was not motivated by some unspecified ulterior motive.
94It is therefore necessary for me to consider that issue and make findings in relation to it.
95Mr Klimek challenged the mother in cross-examination as to why she had not raised the issue of relocation in the relief sought in her Form 1A response filed on 10 December 2013, noting that she did not amend that application until September 2015.
96The mother’s answer was that she had thought about relocation prior to commencing proceedings but, being certain that such an application would be strenuously opposed by the father, did not feel at that time that she had the strength or financial resources to pursue it.
97It was suggested to the mother in cross-examination that she in fact had not reached a concluded desire to relocate until she found out that her father, who lives in England, was terminally ill. She denied that suggestion, saying that her father had not been diagnosed until November 2015.
98That suggestion, and the general proposition of the father that the mother’s desire to relocate was a very recent development, was in any event directly contradicted by the father’s own affidavit evidence.
99At paragraph 395 of his trial affidavit, the father said that he contacted the Department for Child Protection and Family Services (“DCPFS”) “in or around mid-2012” soon after the mother told him of her intention to move back to England. He went on to say that the mother had told him on previous occasions that she wanted to move to England.
100The mother’s evidence, consistent with what she told the single expert witness, was that she had repeatedly told the father for some years prior to separation that she was unhappy in Australia and wanted to return to England.
101In her report, Ms Cherubino made the following observations:
(a)with respect to the motives of the mother in terms of the proposed relocation, there is no doubt that the mother’s motives are sincere; and
(b)there is no doubt that the mother is isolated from her family residing in Australia… It is noticed that the mother is communicating with her family as if she was residing in the UK.
102In her oral evidence, when asked by Mr Klimek whether the mother was “idealising” her vocational opportunities in England, Ms Cherubino said, “in a way – I do get the sense it’s like she is actually living in the UK but in Australia”
103Ms Cherubino was very firm in her view that the mother would be happiest if she could return to live in England. She acknowledged that the mother’s ability to cope if not permitted to relocate was as yet untested, saying that the mother had coped so far but had done so with the benefit of the hope of returning to the UK. Ms Cherubino expressed the view that if that option was no longer open to the mother, she would do her best to put up a brave face for the sake of the children, but was concerned that the mother was “really quite isolated”, and might not cope.
104I accept the evidence of the mother as to her motivations for seeking to move with the children to England. She was not in fact challenged in cross-examination as to the sincerity of those motives, but merely as to the time at which they were formed; as noted above, that challenge on the part of the father was inconsistent with his own evidence in any event.
105In closing, Mr Klimek conceded that there was no evidence to support a suggestion that the mother’s wish to relocate was other than sincere. He also conceded that the proposition that the mother’s wish was other than sincere, was never put to her in cross-examination.
106I find that the mother’s application to relocate is bona fide and is not motivated by any ulterior consideration.
The interests of the parents
107As already noted, in determining what orders are to be made, the children’s interests are the paramount, but not the only consideration. It is therefore appropriate to consider the competing interests of both parents.
108The mother says that she will have better opportunities for employment in England than she does here. She says that the current arrangements for the children to spend time with the father, revolving as they do around the father’s availability on what is a perpetually “rolling” work roster, inhibit her ability to obtain employment. She says also that the additional family support she will have in England would give her greater flexibility in her employment prospects, as they will not be restricted to school hours.
109That said, the mother readily acknowledged that she very much enjoys the work she is presently doing as [a] care worker, which by its nature is during school hours. If she stayed in Perth, she would intend to continue working in that area. Adjustments to the arrangements for the children to spend time with the father could be made in such a way that the current difficulties she says she experiences in terms of availability for work could be addressed. In my view, enhancement of her employment prospects is not a significant factor in the mother’s desire to move.
110The mother is close to her family and wants to live near them. I do not doubt the sincerity of her expressed wishes in that regard. Equally, I accept that the mother feels isolated and unsupported in Perth. While the father said that he was willing and able to provide the support the mother needs, that proposition is (with no disrespect to his sincerity) unrealistic given the nature of the parties’ relationship and the circumstances of their separation.
111In short, the mother will be much happier if she is able to return to live in England. She would not contemplate returning to live in England without the children. I accept her evidence, and the opinion of Ms Cherubino, that she would be very unhappy continuing to live in Perth.
112It is also clear that the father will be happier if the children remain in Perth and that he will be desperately unhappy if they do not.
113In that regard, the father’s position in relation to the question of whether he too could move to England bears consideration. It is fair to say that his position in that regard has been somewhat changeable.
114The mother’s evidence was that in November 2015 the father had made clear to her his intention to move to the UK in the event that the children moved there. Her statements to the single expert witness were consistent with that evidence.
115In his trial affidavit, the father said that “at the end of the day, I would go to England if the girls go to England.”
116In contrast to that evidence, the father told the single expert witness that he had no intention of returning to England, and would not do so even if the children moved there.
117When questioned during the trial about the apparent conflict between those two positions, the father confirmed his present intention not to move to England even if the children do so. He described it as a “hard question to answer, because you go with your kids”. He said that he had made recent inquiries regarding employment opportunities for him in England, and that he would face considerable difficulties in that regard.
118While the father’s explanations were not entirely convincing, I accept that he has found the issue difficult, and that he is genuine when he says that he does not wish to move to England. He would clearly face at least some difficulty in terms of employment prospects, and the loss of his relationship with Ms Mallard. I make no criticism of him for having considered the possibility of moving if the children are permitted to relocate; to the contrary, that was consistent with my view of the depth of his desire to spend regular time with them. Similarly, I make no criticism of his ultimate decision that he would not move.
The primary considerations
119It is common ground that the children have a close and loving relationship with both parents. Under cross-examination, the mother acknowledged without hesitation that the children love their father very much.
120The evidence of Ms Cherubino is consistent with what the parties said.
121It is also common ground that the relationships of the children with each parent are significant to them, and that it is in the best interests of the children that they be maintained.
122In her report, Ms Cherubino expressed the following opinion:
It is evident that if the children were to relocate to the UK that due to the close relationship the children have with the father they would be able to maintain the relationship with him. Whilst it would not be at the same level as is currently the case, there are sufficient qualities in the relationship of the children with the father to indicate that the relationship is of an enduring nature.
123She was not challenged in cross-examination on that opinion, other than being asked whether there would be a negative impact on the children if the father was unable to afford to visit them, or have them visit him.
124The evidence clearly supports the agreed position of the parties in relation to the quality of the children’s relationships with each parent and the importance to the children of those relationships.
125The evidence also supports the conclusion that the relationship of the father with the children is of sufficient quality to enable it to endure, and continue to develop, if the relocation is permitted provided that appropriate arrangements are made both for the children to physically spend time with him and for regular Skype or FaceTime communication.
126I have considered whether the allegations of family violence raised during the proceedings are such as to have any impact on appropriate assessment of what parenting orders are in the best interests of the children. In my view, they are not. While the mother made allegations as to behaviour on the part of the father during the relationship that would clearly meet the definition of family violence, she also said that the situation is now much better and that the parties are able to communicate effectively. That observation is not made in any way to condone the alleged behaviour; rather, it is now the case that the need to protect these children from violence or abuse is not a factor in determining the appropriate orders to be made.
The additional considerations
127Both children expressed to Ms Cherubino a clear preference to live primarily with their mother. They also expressed a clear desire to continue spending time with their father. They expressed concern that if they moved to England they would not see their father again.
128When asked how she would feel if she was to live in England, [Child A] is reported as having replied that she would be “sad because my dad said he’s not coming over to England and he’s not staying there and if we go over there will never see him again”. [Child B] is reported as having said “I wouldn’t be happy there because our dad wouldn’t come with us, because he said, if you guys go to England I wouldn’t be able to come because I work here”. That was reportedly the only reason she did not want to go to England.
129The mother denied having said anything to the children to indicate to them that they would not see their father again if they moved to England. While the father denied directly telling the children that they would not see him again if they moved, his denial was not overly convincing. In any event, he had to acknowledge the possibility that the children had overheard him making statements along those lines, whether or not he had made them directly to them.
130The father has clearly struggled to contain his emotions in relation to the proposed relocation. That was evident in his presentation in the witness box and I have no doubt that the children have been exposed to his struggles.
131The views of the children which are relevant to the matter for determination are simply put; they want to live primarily with the mother and they want to continue to see their father and maintain their relationship with him.
132While the children did not describe Ms Mallard in particularly positive terms, Ms Cherubino observed that they appeared to have a good relationship with her, but one that could not necessarily be considered to be close or affectionate. In fairness to Ms Mallard, Ms Cherubino noted a fairly clear contrast between her demeanour and parenting style and that of the mother. That contrast could explain some of the ambivalence expressed by the children.
133Ms Cherubuino noted the children had a good relationship with Ms Mallard’s children. That was consistent with the evidence of the father.
134Both parties are devoted parents who have appropriately participated in spending time with the children and making decisions about them. It is common ground that they should have equal shared parental responsibility.
135Similarly, both parties have fulfilled their obligations to maintain the children. Apart from the concerns mentioned as to the father’s unwillingness or inability to shield the children from his own distress at the prospect of them leaving Australia, both parties have an appropriate capacity to provide for the needs of the children; including their emotional and intellectual needs. Both have loving, responsible and appropriate attitudes to the children and to the responsibilities of parenthood.
136As in any relocation case, the likely effect of any changes in the children’s present circumstances, including the likely effect on them of any separation from either parent or other relevant person, weighs heavily in this case.
137The evidence of the single expert witness was instructive in that regard.
138She observed that there was “no doubt” that the mother’s motives for relocation were sincere and that she was isolated from her family while living in Australia. Similarly, in her opinion there was no doubt that the mother’s life would improve on relocation. At paragraph 99 of her report, Ms Cherubino said:
She will be surrounded by supportive maternal and paternal extended family assisting her in her endeavours and her care of the children. This level of support will improve the financial and social situation for the mother. Considering that the mother is very much a family orientated individual this level of change and support will likely change the quality of her life considerably. These positive changes in the life of the mother will have a considerably positive impact on the children in her care (emphasis added).
139She also observed that the mother and the children would have opportunities to develop relationships and spend time with their extended family, when currently those opportunities are minimal.
140Having said that, Ms Cherubino noted also that the children currently have frequent contact with both parents. She observed that the children have enjoyed spending regular time with both their parents.
141The potential impact on the children of a change in the current circumstances is also affected by their exposure to the father’s strong opposition to the relocation and the impression given to them (whether directly or indirectly) by the father that should they relocate, they will not see him again.
142Ms Cherubino commented as follows:
It is apparent from the information that has been provided that the subject of relocation to the UK has been discussed by the father with the children. From the children’s account it appears that the father has indicated to the children that he is unable to live in UK as he has to remain working in Australia and that they may not see him again if they relocate with the mother. This could be interpreted as a type of threat to the children should they express a view that would be favourable towards relocating to UK to live with the mother. This type of discussion with the children could be considered as influence. Whilst some of what the father has told the children concerning UK may be true it does not seem that he has offered a balanced perspective of residing in Australia when compared to residing in the UK.
143In cross-examination, Mr Klimek put to Ms Cherubino the proposition that if the relocation was permitted the children would need to “transition” through some grief and loss. Ms Cherubino agreed that the children would need to adjust and confirmed her view that family therapy would assist. She said that the therapy would help the children understand the process and deal with any emotions, allowing the therapist to help them transition with a minimum sense of loss and grief. She regarded that process as being important for the children.
144When asked how long that process might take, Ms Cherubino noted the need to address the fact that the children were under the impression from their father that he may never see them again. In her opinion, once the children had some reassurance from their father the transition process would proceed fairly quickly, provided there was some collaborative effort by both parents. She felt it was important that the children receive reassurance both about the strength of their relationship with the father and that they would not lose that relationship by virtue of the relocation.
145If the relocation was to proceed, she recommended more frequent Skype communication between the children and father than what had been proposed by the mother.
146Ms Cherubino expressed the opinion that the children enjoyed the company of Ms Mallard’s children, but would manage their absence well as long as they were able to have some communication over Skype or the telephone. Similarly, she felt they would manage the absence of Ms Mallard well.
147Under cross-examination, she also reiterated her view that the mother would be much happier living in England and would struggle if unable to relocate. She expressed the view that the primary caregiver’s happiness coincides with the happiness of the children, as does the relationship with both parents. She rejected the suggestion put to her in cross-examination that the mother might be equally happy if she was able to travel regularly to England for holidays and received a financial settlement which would enable her to purchase a motorcar.
148Importantly, she also rejected any suggestion that the mother was unsupportive of the father’s relationship with the children.
149Ms Cherubino was also asked by Mr Klimek to consider a scenario where the relocation was permitted, but life in England did not turn out as well for the mother as she had hoped, and the children were unhappy and wanting to return to Australia. She was unequivocal in her opinion that the mother would be sufficiently objective to recognise the children’s unhappiness. When asked by Mr Klimek whether the mother would be able to objectively put the children first and leave the UK if they could not adjust, Ms Cheribino’s response was:
Oh yes. Yes, she’s a very child focused mother… she would try and help the children adjust as best they could. But I think if the children were really unsettled, she’s the sort of mother who would put the children before herself.
150When I clarified this position with Ms Cheribino she confirmed that she had suggested in her report that Australian citizenship should be obtained by the mother, specifically because in her view if the children could not settle in the UK, the mother would bring the children back to Australia, no matter how much she herself wanted to stay.
151She was unequivocal in her opinion that in those circumstances the mother would put the children’s interests above her own.
152I accept the evidence of the single expert witness. In my view, provided the process is handled with sensitivity and collaboration between the parents, the children will cope well with the change in their circumstances if the relocation is permitted. Their relationship with the father will be maintained. Similarly, their existing other relationships in Perth will be able to be maintained. In addition, there will be significant positive effects of the proposed relocation as already outlined.
153The practical difficulty and expense of the children spending time with, and communicating with, the father in the event that the relocation is permitted is also a significant factor.
154The father’s proposals to spend time with the children in the event the relocation is permitted are already outlined above. He firmly proposed that all travel costs associated with his time with the children should be met by the mother. When pressed by me in closing, Mr Klimek suggested that the father would otherwise be unable to afford the travel costs associated with spending time with the children. He was unable to satisfactorily explain how that position was consistent with the father’s proposal to fund an annual trip to England for the children each year in the event that the relocation was not permitted.
155While there was no specific evidence as to the costs of travel and the like, clearly the expenses associated with the children travelling to Australia to spend time with their father, or the father spending time in England, are considerable. The parties are, however, in the fortunate position to be able to afford those expenses at least annually if they are prioritised as they should be. The father presently earns a good income. The mother intends to work full-time, and will also (as Mr Klimek pointed out) have available to her a modest lump sum from the proposed property settlement.
156The costs associated with frequent Skype and other electronic communication are entirely manageable.
157Most importantly, in my view, the practical difficulties and expenses associated with the children spending time and communicating with the father if the relocation is permitted are not such that they will substantially affect the children’s right to maintain their relationship and direct contact with the father.
158The parties should, in my view, accept equal responsibility for the relevant expenses. It is not a matter of the mother in some way financially compensating the father for the consequences of her desire to move to England – rather, it is appropriate for both parents to regard the travel costs as a necessary and important expense to be met on behalf of the children.
159I have considered whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. In my view, that factor does not significantly influence the appropriate decision to be made in this case. The mother has pursued her wish to relocate in an appropriate way and I agree with the observation of the single expert witness that she is respectful of the judicial process. In my view, she would accept (albeit unhappily) and abide by an adverse decision. Similarly, I take the view that the father will accept and abide by a decision adverse to his wishes, notwithstanding what I anticipate would be his significant disappointment and distress.
160On balance, I conclude that it is in the children’s best interests to permit the proposed relocation to England.
161Bearing in mind the evidence of the single expert witness, and the appropriate concessions made by the mother having heard that evidence, I propose to delay the relocation until the end of the year. That will not only afford the opportunity for the family therapy which the parties agree is appropriate, but would also enable the children to spend time at Christmas with both parents before their departure.
162I propose to make orders to facilitate the children spending time with the father as frequently as the parties can afford, both in Australia and in England. As foreshadowed above, I also propose to make orders for very regular and frequent Skype communication.
163I am confident that, notwithstanding his strong feelings, the father will participate in the proposed family therapy for the benefit of the children, to assist in their transition. I am hopeful that he will also take up the suggestion of Ms Cherubino that he first undertake some counselling or therapy for his own benefit, both to address some of the issues arising from the nature of his relationships with his extended family, and importantly to ensure that he is able to manage his emotions and participate in the family therapy in a manner which will reassure the children.
The father’s family
164A matter of some importance to the father was the question of whether or not the children would be brought into contact with his family in England. He would strongly prefer that there was no such contact. On his evidence, he suffered significant abuse as a child from his stepmother, to whom his father is still married. That, entirely understandably, continues to affect him and colours his relationships with other members of his extended family from whom he is now estranged.
165Against that background, the mother’s actions in establishing relationships between the children and the father’s extended family in circumstances when she knew of his strong feelings in that regard demonstrated at the very least insensitivity to his feelings and at worst a lack of respect for his role in parental decision-making.
166That said, the relationships have been established. The evidence is that they are enjoyed by the children and likely to be to their benefit.
167During the trial the mother conceded that she would consent to an injunction restraining her from leaving the children in the care of the father’s stepmother, or alone with her, at any time. I propose to make that order.
168The evidence does not support the making of any other order restricting the degree to which the children are brought into contact with the extended family.
Other matters
169The father sought an order whereby the mother would be required to obtain his prior written consent to any significant medical, surgical or other procedures save and except in the case of a medical emergency. Given the orders I propose to make permitting the children to relocate to England, in my view such an order has the potential to be impracticable. I propose to make an order which ensures that the mother is able to authorise medical treatment other than elective treatment.
170Both parties set out proposed orders for the children to spend time with the father in the event that he moved to England. Given his clear evidence that he will not do so, I do not propose to make such orders.
The financial case
171As noted above, the parties disagreed as to the date on which their relationship ended.
172In his trial affidavit, the father said that the parties “separated on a final basis on 30 November 2011”. He said that on that date he moved out of the [Suburb A] property, and stayed at a friend’s residence for a few months. At another point in his affidavit, he said that a few months later he spoke with the mother about reconciling their relationship. He said that she initially agreed to “start afresh” but later declined.
173When cross-examined in relation to the matter, the father was asked whether he remembered the date on which he communicated to the mother his conclusion that the relationship was over. He said that he did not. He was vague as to the precise date, but clear in his view that the communication took place promptly after the mother’s return from a trip to the United Kingdom. Neither party gave evidence as to the exact date of the mother’s return from that trip.
174In her trial affidavit, the mother said that she had found out in July 2011 that the father was having an affair, but that he had agreed to her taking the children to the United Kingdom for a few weeks in October/November 2011 and she accordingly did not confront him so as not to jeopardise that trip. On her evidence, the parties “finally split in the evening of 18 December 2011, as we had waved [the father] off to supposedly go to his night duty, but he had already phoned in sick and was heading out into [Suburb B] with his girlfriend.”
175The mother was not cross-examined in relation to that issue other than indirectly in relation to one point. During the course of cross-examination about a debt the mother asserts she owes to her sister, Mr Klimek put to the mother the proposition that she was in the United Kingdom on 21 November 2011 when a particular transaction occurred. He suggested to her that she had returned from the United Kingdom on 30 November 2011. The mother denied both propositions. She said that while she could not recall the precise date of her return, she had left Perth to travel to the United Kingdom on 6 or 8 October 2011 and returned four weeks later.
176The approach to be taken in determining whether a de facto relationship has ended was recently considered by the Full Court in Clarence and Crisp [2016] FamCAFC 157. As that judgement was handed down after I reserved my decision in this matter, the Court wrote to the parties to bring the judgement to their attention, and to afford them the opportunity to make submissions if they wished to do so. No submissions were received.
177The Full Court noted that the notion of “separation” is clearly something more than a physical separation, and must represent the irreconcilable breakdown of the personal and domestic relationship. That said, there is arguably a difference between the concept of “separation” and the “end of the relationship”.
178The Full Court considered that the “real test” to be applied in determining whether a de facto relationship has ended is to refer to the indicia of a de facto relationship laid down in the legislation, in the same way that reference is had to those indicia in determining whether or not a de facto relationship exists.
179In Western Australia, the relevant indicia are set out in s 13A of the Interpretation Act 1984 (WA) as follows:
13A.De facto relationship and de facto partner, references to -
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.
180While there was limited evidence presented by the parties to address those indicia, the ending of a relationship involves “intention, action and communication:” Clarence and Crisp (supra) at [20].
181While it may well be that the father had reached at least a tentative view that the relationship was over while the mother was in the United Kingdom with the children, and formed the intention to convey that to her on her return, the evidence does not establish that he did so. As already noted, his evidence in that regard was vague and unconvincing.
182In contrast, the mother was very firm as to the point in time when she reached a clear decision that the relationship was over and unequivocally conveyed that decision to the father. Her recollection centred around the incident on 18 December 2011, when the father told her that he was going to work on night shift, and departed the home dressed for work. She became suspicious because he took items such as aftershave with him and so telephoned his employer to check up on him. She was told that he had called in sick, and when later confronted he admitted that he had been with Ms Mallard. When asked by me, the father was unable to explain why he would have lied to the mother in that regard if in fact their relationship was already unequivocally over.
183I find that the de facto relationship between the parties ended on 18 December 2011.
184Accordingly, the mother’s application for financial relief was commenced within time.
185I record that even had I concluded that the relationship ended earlier as contended by the father, I would have granted the mother’s oral application for leave to commence the financial proceedings out of time.
186As noted earlier in these reasons, the potential issue in relation to the date of separation had not occurred to either counsel prior to the commencement of trial, and both parties came to trial seeking orders for alteration of property interests. When I first raised the potential issue on the first day of the trial, Mr Klimek purported to concede on behalf of his client that the mother would suffer hardship if leave was not granted. At my suggestion, he subsequently took instructions on the point.
187There was then some confusion as to those instructions, as Mr Klimek had apparently advised the father based on his own misunderstanding as to when the mother had sought to commence a financial case, as referred to earlier in these reasons.
188Having taken further instructions, Mr Klimek advised me that if I determined that it was possible for leave to be granted by consent, without the need for a finding of hardship, the father would consent to leave being granted.
189Curiously, Mr Klimek then advised me that if I determined that a finding of hardship was necessary, the father would oppose that finding being made. He said that the father would voluntarily pay to the mother all the money presently held in interest-bearing trust account (which on his case represented the entirety of the assets available for division) and that accordingly the mother would suffer no hardship and leave to commence proceedings should be denied. I pointed out to Mr Klimek the obvious difficulties with that proposition in circumstances where the extent of the asset pool was not agreed and when the father himself was actively seeking orders for alteration of property interests. The matter was stood down yet again for Mr Klimek to take instructions from the father.
190Mr Klimek subsequently advised that the father would consent to the grant of leave if I determined leave could be granted on that basis, and that he would not oppose the necessary finding of hardship to support a grant of leave if I determined such a finding was required.
191Had leave been required, I would have had no hesitation in granting it.
192I am also satisfied that it is just and equitable to make an order altering the existing property interests or the parties. Both sought orders to that effect. They are no longer living together, and neither proposes ongoing common use of property.
Asset pool available for division
193As noted earlier in these reasons, the pool of assets available for division between these parties is very modest.
194Regrettably, hearing time was wasted as the parties had not by the commencement of trial filed a joint schedule of assets and liabilities as had been ordered months prior to trial. A particularly pointed example of the level of preparation of the matter emerged at an early stage. No joint schedule having been prepared, Mr Crane tendered a schedule of assets and liabilities, the contents of which were not agreed. In particular, complaint was made that no disclosure had been given by the father in relation to various numbered bank accounts into which he had made payments. Those accounts were numbered eight to 13 in the tendered schedule.
195The following exchange then took place:
Mr Crane:Your Honour will see that in rows 5 and 8 to 13 there are various accounts we’ve had no disclosure of; where funds have been transferred from either the father’s account or his joint account with his partner.
His Honour: Mr Klimek do you accept the accuracy of that statement?
Mr Klimek:Those accounts that are being referred to are not the father’s accounts... they are the accounts of his partner. If my friends are alluding to transfers from his accounts to that account then that could be dealt with forensically by bank statements that have been provided by the father.
His Honour: …there are a number of bank accounts listed at line items 4 to 13. Which of those do you say are accounts either in your client’s name or in which he has an interest?
Mr Klimek:Yes his accounts are items 4 through to 7 and disclosure has been given of those accounts and at the end of last week statements were provided so that we could vouch for the updated balances. The line items 8 through to 13 are the accounts of [Ms Mallard]… and really aren’t of any relevance to these proceedings.
His Honour: So you say items 4 to 7 are your client’s bank accounts and 8 to 13 are his partner’s bank accounts and that he has no interest in them?
Mr Klimek:No, his accounts are 4, 5 and 6 in his sole name. Five is long closed. Six is a joint account. And then line items 8 through to 13 certainly aren’t his, I’m presuming that they’re the accounts of [Ms Mallard].
His Honour: You are presuming?
Mr Klimek:Well I don’t know those account numbers offhand sir.
196It will be seen from the above exchange that Mr Klimek twice stated unequivocally that the accounts in question were the accounts of Ms Mallard. It was only on being further questioned by me that he expressed any level of uncertainty in that regard, while still maintaining his “presumption” as to the ownership of the accounts. Questions were then put to the father in cross-examination based on Mr Klimek’s assertion that the accounts belonged to Ms Mallard.
197As it eventually transpired, one of the accounts in question was in fact the trust account of Mr Klimek’s firm. The father had made payments into that account for legal fees.
198Another of the accounts in question was in fact the trust account of Mr Crane’s firm, into which the father had made a payment pursuant to an order made earlier in the proceedings.
199I do not suggest that there was any intention on the part of Mr Klimek to mislead the mother or the Court. The confusion in relation to the accounts was, however, indicative of the lack of attention paid to the proper preparation of the case. It might also be considered that in making the inaccurate unequivocal assertions referred to above, Mr Klimek paid insufficient regard to counsel’s obligation to ensure that the Court is not misled, whether intentionally or otherwise.
200By the conclusion of the trial the parties had reached agreement in relation to most items in the joint schedule of assets and liabilities which was tendered in closing. Only three items were not agreed.
201The first item in dispute was the inclusion by the father as a liability of the total amount owing on a novated lease, entered into by him after separation, for a 2015 [Toyota Kluger] in his possession. The father purported to include the total liability of $43,731 in the joint schedule, without attributing any value to the vehicle itself. For fairly obvious reasons, the mother disagreed with that approach.
202At an early stage in the trial I queried with Mr Klimek the basis on which he asserted that it was appropriate to include the liability in the schedule, but not the asset to which that liability related. He initially contended that the approach was “clearly correct”, as on his submission the father had no legal interest in the vehicle. The lease agreement was not in evidence. When I questioned that approach, and queried what rights the father had in relation to the vehicle, Mr Klimek said that the father had (for example) the right to sell the car. On reflection, he requested time to consider the matter further.
203In closing, Mr Klimek eventually conceded that if the liability for the lease payments was to be taken into account, the value of the vehicle leased must also be taken into account. When it was pointed out to him that the only evidence as to the value of the vehicle was that produced by his client in an exhibit detailing the salary packaging arrangements associated with the lease, and which suggested a taxable value of the vehicle for fringe benefits tax purposes of $53,742 at 25 January 2016, he submitted that the better approach was to include neither the value of the vehicle, nor the amount of the liability.
204That was the approach which had been suggested on behalf of the mother from the commencement of the trial.
205The mother asserted that she owed a debt to her sister in the sum of $3,270. On her case, the debt related to a credit card liability incurred prior to separation, her sister having loaned her the necessary amount to clear that debt.
206In cross-examination, it was established that the funds had been received from the mother’s sister on 21 November 2011 which was (on either party’s case) prior to separation.
207The father did not dispute the receipt of the monies by the mother from her sister, nor that the monies had been used to pay off a credit card liability. In essence, he expressed doubt that the mother’s sister would genuinely require repayment and suggested that she had provided the monies to the mother as a gift. He did not purport to have been involved in any relevant discussions at the time.
208I accept the evidence of the mother that the funds advanced by her sister were by way of loan, which remains repayable.
209The only other dispute as to relevant assets and liabilities related to the father’s debt of $1,723 on a personal loan with the Police and Nurses Bank. It was not disputed that the loan was taken out by the father well after separation, and the proceeds applied to his own purposes. In those circumstances, I do not propose to include that loan in the assets and liabilities to be divided between the parties, as to do so would effectively be to require the mother to subsidise the debt. In any event, the amount involved is so small as to have no impact on the assessment of a just and equitable overall result.
210Based on the various matters agreed between the parties, and the findings above, the assets and liabilities available for division between the parties are as set out in the table which appears below.
| No. | Description | Assets/Liabilities |
| 1 | Net proceeds of sale of [Property A] | $89,013 |
| 2 | Furniture/Chattels (mother) | $4000 |
| 3 | Furniture/Chattels (father) | $4,000 |
| 4 | Father’s bank account number ending [XXXX] | $2,002 |
| 5 | Father’s bank account number ending [XXXX] | Nil |
| 6 | Father’s bank account number ending [XXXX] | Nominal |
| 7 | Father’s bank account number ending [XXXX] | $354 |
| 8 | Mother’s bank accounts (account numbers ending [XXXX] and [XXXX]) | $2,855 |
| 9 | Balance of loan owing to mother’s sister | -E3,270 |
| 10 | Foxtel debt | -E400 |
| 11 | Solomon’s Flooring Carpet loan | -E1,500 |
| 12 | GE Credit Line | -E1,073 |
211The net value of the assets available for division between the parties is $95,981.
212In addition to the assets and liabilities available for division between them, the parties each have superannuation. As the parties were not married, their superannuation interests cannot be split between them or altered. They each presented the case on the basis that their superannuation interests should be taken into account as financial resources.
213It was agreed that the father’s superannuation has a current value of $74,016 and that the mother’s superannuation has a current value of $8,193.
214The parties also agreed that an interim payment of $15,000 made to the mother in August 2014 from the proceeds of sale of the home, and applied by her to legal fees, should be notionally “added back”. Neither suggested that other interim distributions made to each party should be taken into account. Similarly, neither suggested that monies held in trust by their respective solicitors for legal fees, nor the liability for those fees, should be taken into account.
Contributions
215As noted at the commencement of these reasons, the parties agreed that their respective contributions from the commencement of the relationship through to trial were appropriately to be regarded as having been equal.
216I regard that as a sensible agreement, supported by the evidence. It is consistent with what would have been my finding in any event.
Relevant section 205ZD(3) factors
217Pursuant to s 205ZG(4)(e) of the Act, I am required to take into account those of the matters referred to in s 205ZD(3) which are relevant.
218The father is aged 47 and is in good health. The mother is aged 40 and is also in good health.
219The father’s evidence was that his current income from employment is approximately $94,800 per annum. He has some opportunities to work overtime for extra income, but those opportunities are not guaranteed to him.
220The mother has, since separation, largely been reliant on Centrelink benefits and child support. She has undergone training as a care worker. She also has a range of other skills and professional experience which would enable her to earn a reasonable income were she to work full-time. It is unlikely, however, that her income could match that of the father.
221The mother will continue to have the primary care of the children. The father has paid child support as assessed in the past, and there is no reason to suspect that he will not comply with his financial obligations to the children in the future. In addition, there will be travel expenses associated with the arrangements for the children to spend time with him.
222The father has re-partnered; the mother has not. The financial circumstances of the father’s new relationship are somewhat unclear. At the very least, it is open to conclude that his new partner is working, earning a reasonable income and that they share some expenses while largely keeping their financial affairs separate.
223The father has a greater financial resource in the form of superannuation than does the mother. Given the respective ages of the parties, and the amounts involved, that factor is not significant.
Conclusion – financial case
224In the circumstances of this case, it is not necessary to consider in more detail an assessment of the parties respective contributions, or the extent of the adjustment to be made to what would otherwise be the “contributions based” result.
225That is so because the father’s proposal will see the mother receive something in excess of 90 per cent of the assets and liabilities actually available for division between the parties, without consideration of the agreed notional add back.
226The mother’s proposal, if implemented, would see her receive the equivalent of 110 per cent of the assets and liabilities actually available for division. That is so as in constructing her proposal, the mother has effectively treated superannuation as if it was an asset available for division between the parties, and sought a cash payment from the father to reflect that calculation. Superannuation splitting is not available to these parties as they were not married.
227The Court’s power extends to making orders altering the interests of the parties in existing property. It does not extend to making orders which have the effect of giving one party a settlement greater than the whole of the asset pool available for division.
228I am satisfied in any event that the orders for alteration of property interests proposed by the father represent a just and equitable outcome in all the circumstances. I note that the proposed orders will see the mother retain by value approximately 56 per cent of the combined net assets and superannuation of the parties.
Proposed orders
229Subject to any submissions by counsel as to form, I propose to make the following orders:
1.The father, [Mr Jones], and the mother, [Ms Hill], have equal shared parental responsibility for the children, born [in] 2007 [(“Child A”)] and [in] 2009 [(“Child B”)] respectively.
2.The Court declares that it is in the best interests of the children that their names be changed by inserting “[Hill]” as a second middle name and henceforth the children be known as [Child A] and [Child B].
3.The Registrar of Births, Deaths and Marriages, Western Australia, do effect the required change to the children’s birth registration pursuant to this order.
4.The children live with the mother.
5.The mother be restrained and an injunction is hereby granted restraining her from changing the principal place of residence of the children to any place outside the Perth metropolitan area until 31 December 2016, and thereafter the mother be at liberty to change the children’s principal place of residence to England.
6.While the children’s principal place of residence continues to be Perth, the children continue to spend time with the father in accordance with the interim orders made by consent on 21 November 2014, and such further times as may be agreed between the parties.
7.With effect from the date of the children’s relocation to England, they spend time with the father as follows:
(a)for the whole of the English school half term holidays and end of school term holidays (other than the summer holidays), on the basis that the father travels to England for the purposes of such time, and provides the mother with at least 60 days notice of his intention to do so;
(b)the time spent by the children with the father during the end of year English school holidays include Christmas Day in each alternate year;
(c)for up to one half of the English summer school holidays each year, with liberty to take the children to Australia during that period at his election; and
(d)such further or alternative times as the parties may agree.
8.For the purposes of the children’s time with the father pursuant to paragraph 7(a) of these orders:
(a)the father meet his own travel and accommodation expenses;
(b)the father be at liberty to take the children to holiday outside England on the basis that he meets their associated travel and accommodation expenses;
(c)handover take place at Heathrow airport;
(d)in the event the father elects to take the children to holiday outside England, he provide the mother with no less than 30 days written notice of his intention to do so, and keep her advised of the proposed itinerary and contact details for the holiday; and
(e)in the event the father elects to take the children to holiday outside England, the mother provide him with the children’s passports for that purpose and the father return the passports to the mother at the conclusion of the holiday.
9.For the purposes of the children’s time with the father pursuant to paragraph 7(c) of these orders, the parties each meet one half of the children’s airfares (including any additional costs if the children fly as unaccompanied minors) to and from Australia.
10.The mother facilitate the children communicating with the father by Skype or FaceTime each Sunday, and at such additional times as the father may reasonably request.
11.The mother facilitate the children receiving telephone calls from the father at all reasonable times.
12.The mother be restrained and an injunction is hereby granted restraining her from leaving the children or either of them in the care of the father’s stepmother, or alone with her, at any time.
13.The parties be restrained and an injunction is hereby granted restraining each of them from:
(a)denigrating or describing in negative terms the other parent, the other parent’s partners or spouse, friends and family in the children’s presence or within their hearing;
(b)discussing with or in the children’s presence these proceedings or allegations raised therein;
(c)communicating with the other party in a manner that is offensive, intimidating or emotionally abusive; and
(d)causing or inducing any third party to engage in any of the actions or conduct referred to in this paragraph.
14.The parties each authorise all relevant organisations, authorities, institutions, agencies and individuals (including but not limited to medical practitioners and school authorities) to release and provide to the other parent any and all information and documents regarding the children, including but not limited to reports, and/or information regarding the children’s activities, development, health, education, sporting, recreation or artistic activities and other relevant issues.
15.The parties each give all necessary authorities to enable the other party to:
(a)liaise and discuss the children’s progress with all educational and healthcare professionals, institutions or organisations dealing with the children and receive, directly from those professionals all relevant documents including but not limited to medical and school reports and circulars relating to the children; and
(b)attend at and participate in functions and/or activities organised by any school, organisation, institution attended by the children, as well as any sporting, educational or extracurricular events organised for the children including but not limited to assemblies, sports days, parent teacher evenings and other special or significant events.
16.Notwithstanding that the parties are to have equal shared parental responsibility for the children, the mother is by this order authorised to give any necessary instructions or authority to any medical practitioner or other health professional to enable the children or either of them to receive any required, and non-elective, treatment.
17.Each party:
(a)is to inform the other as soon as practicable of any significant injury or significant health problem suffered by, or hospitalisation required in relation to either of the children whilst in that parent’s care;
(b)authorise the treating medical practitioner to provide to the other parent information that they are lawfully able to provide about the children;
(c)is to inform the other parent by telephone as soon as practicable of any medical emergency concerning the children; and
(d)is to keep the other parent informed of any change to that parent’s contact details, including telephone number, residential address and email address.
18.The parties each do all things necessary to facilitate and participate in family therapy prior to the children’s relocation to England, in accordance with the recommendations of Ms Cherubino, and each meet one half of the associated costs for such therapy, irrespective of whether particular sessions are attended by the parties together, either party individually, or the children with or without the parties.
19.Within 14 days of the date of these orders, the parties do all things necessary to release to the mother the funds (including accumulated interest) currently held in National Australia Bank term deposit account number [XX – XXX – XXXX] (“ the NAB term deposit”).
20.All the right title and interest of the father in the following vest in the mother:
(a)the funds in the NAB term deposit;
(b)furniture and chattel property in the possession of the mother;
(c)monies standing to the credit of the mother in any account in any bank or other financial institution; and
(d)the mother’s superannuation.
21.All the right title and interest of the mother in the following vest in the father:
(a)furniture and chattel property in the possession of the father;
(b)monies standing to the credit of the father in any account (other than the NAB term deposit) in any bank or other financial institution; and
(c)the father’s superannuation.
22.The mother be solely liable for, and indemnify the father and keep him indemnified in relation to the Foxtel debt, the debt to Solomon’s Flooring, and the debt to the mother’s sister.
23.Each party otherwise be solely liable for all liabilities in that party’s sole name, and indemnify the other party in relation thereto.
24.The parties each do all acts and things necessary, and sign any documents required, to give full effect to these orders.
25.The parties have liberty to apply in relation to the implementation of these orders.
26.All outstanding applications and responses otherwise be and are hereby dismissed.
I certify that the preceding [229] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
14/10/2016
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