Kaule & Brown

FAMILY COURT OF AUSTRALIA

KAULE & BROWN

[2015] FamCA 480

FAMILY LAW – CHILDREN – FINAL ORDERS – Best interests – interstate relocation – where the parties agree the child should live with the mother – where the mother seeks to relocate from Melbourne to Brisbane to pursue an employment opportunity and live near her family – where the mother complains of a lack of suitable job opportunities in Melbourne – where the father has professional and other ties to Melbourne – where both parties are competent and appropriate parents – where the father wants the child to learn French due to the family connection – where the child is just over one year old – ordered that the child remain in Melbourne with gradual build-up of overnight time to equal time with the father.

FAMILY LAW – PROPERTY – FINAL ORDERS – where cohabitation was for two and a half years – where there is one young child of the relationship – where the parties never commingled their finances – where parties were each responsible for their own liabilities during the relationship – where all property was acquired before the commencement of the relationship – where both parties have significant earning capacities – held that it is not just and equitable to alter the parties’ property interests.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

A v A (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
Bolitho v Cohen (2005) FLC 93-224
Mazorski & Albright [2007] FamCA 520
Morgan & Miles [2007] FamCA 1230
Mulvaney & Lane (2009) FLC 93-904
Stanford v Stanford (2012) 247 CLR 108
Bevan & Bevan (2014) 51 Fam LR 363
U v U (2002) FLC 93-112

APPLICANT:

Mr Kaule

RESPONDENT:

Ms Brown

FILE NUMBER:

MLC

4757

2014

DATE DELIVERED:

29 May 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATES:

16 – 20 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dickson QC and
Mr Barbayannis

SOLICITOR FOR THE RESPONDENT:

Cooper Grace Ward Lawyers

Orders

IT IS ORDERED THAT

All previous orders be discharged.
The father and mother have equal shared parental responsibility for the child B Kaule born on … 2013 (“the child”).
The mother be restrained from relocating the residence of the child from the Greater Melbourne Metropolitan area without the written consent of the father or court order.
The child live with the father as follows:
(a) until 1 September 2015:
(i)each Tuesday and Friday from 8.30 am until 5.30 pm;
(ii)on alternate weekends from 9.00 am on Saturday until:
A.9.00 am on Sunday in the first fortnight;
B.2.00 pm on Sunday in the second fortnight; and
C.thereafter 5.30 pm on Sunday.
The question of the child’s further time with the father be reserved to the mention of this matter on 9 July 2015.
The child live with the mother at all other times subject to the further orders with respect to the time the child spends with the father.
Notwithstanding any order to the contrary herein, the father’s time with the child be suspended and the child be returned to the mother on the Mother’s Day weekend and the father’s weekend with the child be substituted for the mother’s next weekend with the child.
For the purposes of the time the father spends with the child, the father or his nominee shall collect the child from the mother’s residence at the commencement of that time and the mother or her nominee shall be responsible for collecting the child from the father’s residence at the conclusion of the child’s time with the father save that if the child is in child care, kindergarten or school he will be collected from or delivered to childcare, kindergarten or school in accordance with these orders.
In the event that the mother secures a locum position, she is permitted to travel with the child for the purposes of that locum and the father’s time is suspended for the duration of that travel provided that:
(a)the mother give the father not less than 21 days’ notice in writing that she has secured a locum position, the proposed dates of that position and the location in which it is to occur;
(b)on one occasion in each 12-week period;
(c)the locum position cannot be more than seven days if that position is outside the state of Victoria or fourteen days if the position is in the State of Victoria;
(d)the period of that locum position not to include the child’s birthday, the father’s birthday, Father’s Day or Christmas Day if it is the father’s turn to spend Christmas Day with the child;
(e)in the event the father elects to travel to the location of the locum position, the father spend time with the child at such times as he would otherwise have been entitled to spend with the child had he remained in Melbourne;
(f)in the event the father elects not to travel to the location of the locum position, the father communicate with the child by Skype as agreed by the parties in writing and failing agreement as follows according to Eastern Standard Time:
(i)6:00 pm Tuesday and Thursday; and
(ii)5:00 pm Sunday.
Subject to paragraph 9 in the event that either parent wishes to travel overseas with the child, the travelling party shall provide the following information to the other parent within at least 45 days prior to departure:
(a)the proposed dates of travel;
(b)the ship/flight details; and
(c)a full itinerary of the trip, including all addresses and phone contact numbers for the period when the child will be travelling.
The parties are to sign all documents and do all things necessary to obtain or renew the child’s passport within seven days of receiving a request from the other party, and the associated costs to be shared equally by the parties.
The parent who last travelled overseas with the child retain the child’s passport until it is required by the other parent, and the passport to be provided to the travelling party within seven days if not already in their possession.
Notwithstanding any order to the contrary herein, the parties each be restrained from causing the child to be removed from the Commonwealth of Australia to any country in respect of which the Australian Department of Foreign Affairs and Trade has at the time of intended travel the travel advisory “Reconsider your need to travel” or “Do not travel” without the written consent of the other party.
Each party shall keep the other informed as to their residential address, mobile telephone number and e-mail address and advise the other of any change to those within 24 hours of such change.
Each party be at liberty to request from the Principal of any school attended by the child copies of school reports, newsletters, event notices, and school photographs at their respective cost.
Each party be at liberty to attend at all school events, concerts, parent/teacher interviews, sporting and extra-curricular competitions and events and any other school function ordinarily attended by parents.
Each party shall advise the other as soon as practicable of any serious injury or significant health concern or emergency medical or dental treatment concerning the child whilst they are in the parties’ care.
The father and mother be and are hereby restrained by themselves, their servants and/or agents from:
(a)denigrating, criticising and/or otherwise demeaning the other party or any other member of that party’s family in the sight and/or hearing and/or presence of the child; and
(b)discussing these proceedings with or in the presence of hearing of the child.
The matter be listed for mention at 9.30am on 9 July 2015.
All extant applications, including the applications for property settlement and the wife’s application for spousal maintenance, be otherwise dismissed.

*These orders have been amended where underlined to accord with the orders as pronounced by Justice Macmillan on 29 May 2015.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4757 of 2014

Mr Kaule

Applicant

And

Ms Brown

Respondent

REASONS FOR JUDGMENT

Introduction

The mother and father in this matter met in Town A in late 2010. They had a long distance relationship until January 2012 when the mother moved to Melbourne and commenced cohabitation in the father’s home in Suburb C. They were both highly trained medical professionals and talented musicians who met as a result of their shared love of music. They were married in August 2013 and their son B (“the child”) was born in late 2013. There is no evidence that would suggest, at least at the time of their son’s birth, that they had anything other than a bright future together. However less than six months after their son’s birth the father and the mother had separated under the one roof and were involved in litigation in this Court. It is the circumstances leading up to and surrounding the somewhat surprising and rapid deterioration in their relationship which appear to lie at the heart of the current litigation.
Although the father and the mother now seek to move on with their lives, both personally and, perhaps of more significance in this case, professionally they have been unable to agree upon a course that will best promote the child’s interests in doing so. Central to the dispute is the mother’s desire to take up the offer of a Fellowship at a hospital in Brisbane, where she spent most of her teenage years and where most of her family, including her parents, still live. It is that offer of a position which was due to commence on 2 February 2015 or earlier if possible which precipitated the mother’s application and ultimately the orders made by the Court expediting the final hearing.
Both the father and the mother are intelligent and articulate and each has strongly held views as to both the benefits and risks to the child of their respective proposals. Dr W, the family consultant, in her first report dated 26 August 2014 said that the father and the mother both presented as extremely good parents. Although there is some dispute as to how much time the father was spending with the child, the quality of that care and his commitment to the child prior to separation, there is no dispute that the father has spent time with the child pursuant to orders made by this Court on 30 June 2014 and that since the orders of 16 September 2014 the child has been spending time with the father for nine hours a day six days a fortnight. With two intelligent, caring and committed parents the future looks bright for the child. However it is also the case that the orders they each seek and those ultimately made by this Court are likely to have a significant impact upon the child’s welfare both in the short and long term. The Court’s task, particularly where both parents are good parents with a lot to offer the child and where they each wish to fulfil their not insubstantial potential, is not an easy one.

Background

The father in this case is aged 38 and works as a medical professional. He is employed at the X Hospital on a five year contract which he signed in July 2013 working Mondays, Wednesdays and Thursdays each week. In addition the father does one session a week at the Y Health Service.
The mother’s case was that it might not be unreasonable to expect the father to relocate to Queensland even if he might be required to work longer hours in whatever employment he was able to obtain in Queensland. The father was cross-examined about his capacity to work longer hours. This was in the context of the mother’s case as to the positions that might be available to him in Brisbane and whether his decision to remain in Melbourne in the event that she were permitted to relocate with the child to Queensland was a lifestyle choice. It was the father’s evidence that it was in part a lifestyle choice which allowed him to pursue his interest in music but that also given the nature of his work he had decided for his own mental health not to work full time. I accept the father’s evidence which was not challenged in any real sense.
Apart from three periods in Europe as a child when his mother took study leave, a gap year spent studying in England and Europe and three short term locums from late 2012 to mid-2013 the father has lived, studied and worked in Melbourne his whole life. His father and step-mother, his mother and her partner and his brother all live in Melbourne.
The father is currently renting a property owned by his mother and her partner and they are currently living with him in that property whilst they are renovating their home.
The father’s maternal grandmother was French and his mother grew up speaking French, obtained her PhD in France and was a Senior Lecturer in French at a university. The father speaks fluent French as do his father and brother. Both the father and his brother attended a French speaking primary school in Melbourne and the father attended the Melbourne French School until the end of Year 8. The father has an uncle and aunt and cousins with young children in France. The father’s evidence is that he and his mother converse in French when possible.
The father has been involved in and has significant ties to the performing arts community in Melbourne, which includes being significantly involved in performing arts events in Melbourne.
The mother is aged 36 and is a medical professional. It is her case that she has not been able to find suitable employment in Melbourne and apart from the period following the child’s birth, has accepted various locum positions throughout Australia since qualifying as a medical professional in early 2012. Much of the hearing was taken up with cross-examination in relation to the mother’s employment prospects in Melbourne.
The mother, who is the second of six children, was born in the USA where her father was working at the time. She came to Australia with her parents in 1979. The mother’s family lived in various parts of Australia during her childhood however she completed her secondary education and a three year degree followed by four years in a graduate medical program in Brisbane. The mother graduated with honours and won a prize for one specialised area of study. She completed her internship at a regional hospital from January 2005 to January 2006 and the following year commenced her specialty training at the Z Hospital in Brisbane. The mother remained in Brisbane until 2010 except for an eight month overseas exchange.
Thereafter the mother spent approximately 18 months working in Town A which was where she met the father. The mother deposes that from:
...mid 2011 I had 6 months of training left to complete my general [specialty] fellowship. At this point I was considering subspecialty training, including the possibility of overseas training, but decided to prioritise my relationship with [the father]. For that reason, having unsuccessfully attempted to find employment in Melbourne, I accepted a position in … in Tasmania due to its relative proximity to Melbourne.
Following her move to Melbourne, the mother said that she was unable to obtain a permanent position in her specialty. The mother’s evidence was that she applied for almost every advertised position in Melbourne and the surrounding area. The father complained that despite numerous requests the mother had not provided him with copies of all of her employment applications. Although the mother produced some applications she also said that there were others which she had applied for by email or phone or had not kept records. Both the father and the mother provided detailed lists of positions they said had been advertised which included the email lists circulated by Professor S and the jobs section of the relevant professional organisation. It is essentially the mother’s case that most of the advertised positions were either not suitable either because she did not have the necessary qualifications, the timing was not right because of her pregnancy and the child’s birth, the location was not practical or that in relation to those positions she had applied for her applications had been unsuccessful. The mother was hopeful of obtaining a hospital position although she did apply for a Geelong based private practice locum in mid-2014. The mother was successful in obtaining this position which she said she declined because the position was for the three months almost immediately following separation which she said would have “...posed the most disruption for [the child].” It became clear however in cross-examination that the mother had declined to take up this position not because it would be unsettling for the child but because her preference was to take up the Fellowship she was hopeful of obtaining in Brisbane.
Although the parties disagree as to whether or not there were suitable roles available prior to the child’s birth, there is no dispute that in the two years prior to his birth the mother accepted locum positions for periods of up to nine weeks at a time in Victoria and interstate. During this period the father also took a locum position interstate during his long service leave so as to be closer to the mother who was working in that State at the time.
The mother also sought out a number of locum positions following the child’s birth and on a more limited basis and pursuant to the interim orders made by Senior Registrar FitzGibbon on 16 September 2014 that the mother be permitted to accept a locum position of not more than 14 days on one occasion in each twelve week period accepted a locum position in a regional location following separation, albeit that she complains that the father has objected to and which has ultimately prevented her taking up other interstate locum positions.
The mother having completed her training as a general professional is now seeking to pursue a sub-speciality. The mother’s evidence which is that most subspecialty programs, including the program she is interested in, take at least two and a half years of relevant study and examinations beyond the study she has already undertaken to complete her general professional training. The mother points out in her evidence by way of background that specialist professional can work in hospitals or the general community, either in public or private practice or a combination of both, depending on their training, experience and particular interests. It was her evidence that city hospitals employ both general and sub-specialist professionals:
…with general [professionals] looking after [patients] with common problems not requiring specialist care and coordinating the care of children with complex needs where multiple specialities are involved.
Regional hospitals employ general [professionals] who care for all … patients and liaise with metropolitan specialists and transfer [patients] when necessary.
The mother in her affidavit sworn 10 December 2014 also set out in some detail what she said would be required for her to maintain her registration in her chosen field. It was her evidence that the Australian Health Practitioners Regulation Agency guidelines which require medical practitioners to have recent practice in fields in which they intend to work which provide that when there has been an absence from practice of between one to three years medical practitioners are required to complete a minimum of one year’s pro-rata activities relevant to their practice before commencing work. It was the mother’s case that if she could not meet the recency requirements, either as a result of having obtained a permanent position or locum positions, she could be at risk of suspension or might be required to undertake additional training before being able to return to work. It was her evidence that the 12-day locum position in the regional location in October 2014 meant that she had not technically been absent from practice for over one year. The mother also deposed that in addition to the requirement for recent experience and references with respect to that experience she is also required to obtain 100 continuing professional development (“CPD”) points each year to maintain her practising privileges, the necessary points being easier to obtain in a hospital setting.

The father did not dispute that the mother needed to maintain her registration in her chosen field of practice. However, it was his case that she had not availed herself of all of the opportunities available to her in Melbourne, in particular that she had not pursued a Fellowship in Melbourne or been prepared to give any real consideration to private practice, wanting instead to pursue a career as a consultant in the hospital system. Counsel for the father also put to the mother a number of more recent job opportunities in Melbourne which the mother conceded might be more suitable but of which she was unaware or had not pursued choosing, not surprisingly, to await the outcome of this case. The mother referred to there having been “a rash of positions” and pointed out the irony of that being the case.

Documents Relied Upon by the Parties

The applicant father relied upon the following documents:
·Further Amended Initiating Application filed 28 January 2015;
·Affidavit of Non-Filing of Family Dispute Resolution Certificate filed 2 June 2014;
·Affidavit of the father filed 12 September 2014;
·Affidavit of Genevieve Dee of Cooper Grace Ward Lawyers filed 31 December 2014;
·Undertaking as to Disclosure of the father filed 12 January 2015;
·Affidavit of Single Expert Witness Ms O of P Valuers filed 23 January 2015;
·Affidavit of Evidence in Chief of the father filed 28 January 2015;
·Financial Statement of the father filed 28 January 2015;
·Affidavit of Dr D (Expert) filed 28 January 2015;
·Affidavit of Dr K (Expert) filed 28 January 2015;
·Affidavit of Single Expert Witness of Mr L, G Valuers filed 1 February 2015;
·Affidavit of Danielle Adriana Sturgeon of Blackwood Family Lawyers filed 3 February 2015; and
·Affidavit of Single Expert Witness of Mr E of P Valuers filed 11 February 2015.
The respondent mother relied upon the following documents:
·Amended Response filed 5 January 2015;
·Financial Statement of the mother filed 31 December 2014;
·Affidavit of the mother filed 24 June 2014;
·Affidavit of the mother filed 19 December 2014;
·Affidavit of the mother filed 31 December 2014;
·Affidavit of the maternal grandmother filed 31 December 2014;
·Affidavit of the maternal grandfather filed 31 December 2014;
·Affidavit of the maternal uncle filed 31 December 2014;
·Affidavit of the maternal aunt 31 December 2014; and
·Undertaking as to disclosure of the mother filed 12 January 2015.
Although the father sought leave to rely upon the Affidavit of Dr K he was not granted leave to do so. Although the father sought leave to rely upon the affidavits of the single expert valuers there was no dispute as to valuation.

The Parties’ proposals

The Father

In his Further Amended Initiating Application filed 28 January 2015 the father sought a complex regime of orders having regard to the child’s age, his work commitments and taking into account the different possible scenarios based upon his and the mother’s respective cases. Significantly it was his case that if the mother were permitted to relocate to Brisbane with the child he would remain in Melbourne.
The father’s primary position was that the child remain living in Melbourne and that he spend time with the father in summary as follows:
·Until 22 June 2015 (when the child would be 18 months old) on a fortnightly cycle:
(a)in week 1 from 9.30 am until 6.30 pm each Tuesday and Friday; and
(b)in week 2 from 9.30 am until 6.30pm on Tuesday and from 9.30 am on Friday until 6.30 pm on Sunday (two overnights per fortnight);
·From 22 June 2015 until 1 January 2016 (when the child would be two years old) on a fortnightly cycle:
(a)in week 1 from 9.30 am on Tuesday until 9.30 am on Wednesday and from 9.30 am to 6.30 pm on Friday; and
(b)in week 2 from 9.30 am to 6.30 pm on Tuesday and from 9.30 am on Friday until 6.30 pm on Sunday (three overnights per fortnight);
·From 1 January 2016 until 1 January 2017 (when the child would be three years old) on a fortnightly cycle:
(a)in week 1 from 6.30 pm on Monday until 9.30 am on Wednesday and from 9.30 am until 6.30pm on Friday; and
(b)in week 2 from 9.30 am until 6.30 pm on Tuesday and from 9.30 am Friday until 6.30pm on Sunday (four overnights per fortnight);
·From 1 January 2017 until 1 January 2018 (when the child would be four years old) on a fortnightly cycle:
(a)in week 1 from 6.30 pm on Monday until 9.30 am on Wednesday and from 9.30 am until 6.30 pm on Friday; and
(b)in week 2 from 6.30 pm on Monday until 6.30pm on Tuesday and from 9.30 am on Friday until 6.30 pm on Sunday (five overnights per fortnight);
·From 1 January 2018 (when the child would start school) on a fortnightly cycle:
(a)in week 1 from after school Monday (or 6.30 pm if not a school day) to before school Wednesday (or 9.30 am if not a school day; and
(b)in week 2 from after school Friday (or 6.30 pm if not a school day) to before school the following Wednesday (or 9.30 am if not a school day) (seven overnights);
or in the alternative the child live with the father and the mother on a week about basis with changeover after school each Monday.
The father also sought orders with respect to school holidays as follows:
·For the first half of each Victorian gazetted school term holiday;
·From 6.30 pm on 26 December until 6.30 pm on 7 January commencing December 2015, 2016, 2017 and 2018; and
·From 6.30 pm 26 December until 6.30 pm 10 January 2019 and each year thereafter.
The father also set out in detail his proposals for special occasions including Christmas, the child’s birthday, and Mother’s Day and Father’s Day.
The father’s proposals in the event of the child moving to Brisbane were in summary as follows:
·In Melbourne from noon on Friday until 5.30 pm on Sunday, each alternate week, the mother to pay the costs of transporting the child to and from Melbourne;
·Upon the father giving the mother 14 days’ notice of his intention to travel to Brisbane on a weekend he is not ordinarily spending time with the child in Melbourne, on the days he is in Brisbane from 9.30 am to 6.30 pm to include at least two consecutive nights whilst the father is in Brisbane;
·In Melbourne during each Queensland gazetted Term holiday from midday on the day after the last day of term until midday on the second last day of the holiday, the mother to pay the costs of transporting the child to and from Melbourne;
·In Melbourne from midday 24 December until 5.30pm on 7 January commencing December 2015 and each alternate year thereafter until December 2019, the mother to pay the costs of transporting the child to and from Melbourne;
·In Melbourne from midday 26 December until 5.30pm on 7 January commencing December 2016 and each alternate year thereafter until December 2020, the mother to pay the costs of transporting the child to and from Melbourne;
·In Melbourne from midday on 24 December until 5.30pm on 10 January commencing December 2019 and each alternate year thereafter the mother to pay the costs of transporting the child to and from Melbourne;
·In Melbourne from midday 26 December until 5.30pm on 10 January commencing December 2020 and each alternate year thereafter, the mother to pay the costs of transporting the child to and from Melbourne; and
·By skype at any time requested by the child, at all reasonable times requested by the father and before school on the child’s birthday if he is not otherwise in the care of the father.
The father also sought detailed orders with respect to such matters as mediation in the event of a dispute, overseas travel and the child’s education, the party’s travel for professional purposes and the arrangements for the child’s care at those times and orders restraining both he and the mother from posting references to the child or Family Court matters or photographs of the child on Facebook or other social media.

The Mother

The mother in her Amended Response filed 5 January 2015 proposed that until the child turned two and a half years of age that he should spend time with the father on an eight week alternating cycle as follows:
·In Brisbane on each alternate weekend for the first six weeks on Friday, Saturday and Sunday for periods of up to nine hours in each day as agreed and in default of agreement then from 8.00 am until 5.00 pm;
·In Melbourne on the 8^th weekend on Saturday and Sunday for periods up to nine hours each day as may be agreed and in default of agreement from 9.30 am until 6.30 pm on Saturday and from 7.30 am until 4.30 pm on Sunday; and
·By way of holiday time, for seven consecutive days in Brisbane from 8.00 am to 5.00 pm on not more than four occasions each calendar year.
Thereafter until the child turns three years of age, the mother proposed that the father spend time with the father as follows:
·In Brisbane from 8.00 am Friday until 10.00 am Saturday and then 8.00 am until 5.00 pm Sunday for two alternate weekends, followed by:
·In Brisbane from 8.00 am Friday until 1.00 pm Saturday and from 8.00 am until 5.00 pm Sunday for two alternate weekends, followed by;
·In Melbourne from 8.00 am Saturday until 4.30 pm Sunday on the next alternate weekend and then on an eight week alternating basis as follows:
(a)In Brisbane from 8.00 am Friday until 1.00 pm Saturday and then 8.00 am until 5.00 pm on Sunday each alternate weekend for the first six weeks; and
(b)In Melbourne on the 8^th weekend from 9.30 am until 6.30 pm on Saturday and from 7.30 am to 4.30 pm on Sunday.
After the child turns three, the mother proposed he spend time with the father as follows:
·In Brisbane from 8.00 am Friday until 10.00 am Sunday for two alternate weekends followed by;
·In Brisbane from 8.00 am Friday until 1.00 pm Sunday for two alternate weekends, followed by;
·In Melbourne from 8.00 am Saturday until 4.30 pm Sunday on the next alternate weekend and thereafter;
·In Brisbane from 8.00 am Friday until the start of crèche or kindergarten or school on Monday of each alternate weekend, the time to be spent in Melbourne no more than once every two months with the father to be responsible for the costs of the child’s airfares to and from Melbourne and changeover to be at Brisbane airport.
The mother further proposed that once the child had turned three and the arrangement she proposed had been in place for three months, that the child spend half of all gazetted crèche, kindergarten or school holidays with the father upon condition that:
·The child not spend more than five consecutive nights with the father in the first school holiday period;
·The child not spend more than one week with the father until he is six years of age; and
·From the age of six onwards the child not spend more than two consecutive weeks with the father.
On the first day of the hearing the mother amended the orders she sought. In particular she proposed that the child spend time with the father in a four week cycle as follows:
·Until 31 August 2015 when the child would be 20 months of age:
(a)in Brisbane in weeks 1 and 3 from 8.00 am Friday until 5.00 pm Saturday, the mother to provide the father with accommodation at her expense and the use of her motor vehicle; and
(b)in Melbourne in weeks 2 and 4 from 11.30 am on Saturday until 3.00 pm on Sunday;
·From 31 August 2015 until 19 December 2015 (when the child would be 20 months to two years of age):
(a)in week 2 in Brisbane from 8.00 am Friday until 5.00 pm Saturday; and
(b)in week 4 in Melbourne from 5.00 pm Thursday concluding at 9.00 am on Saturday on the first weekend, at 11.00 am on Saturday on the second weekend and thereafter at 3.00pm on Saturday.
·From 19 December 2015 until 19 December 2016 (two years to three years):
(a)in weeks 2, 4 and 6 in Brisbane from 8.00 am Friday to 12.00 noon Sunday; and
(b)in week 8 in Melbourne from 11:30 am Friday to 3.00 pm Sunday.
·Thereafter after the child turns three years of age on an eight week cycle as follows:
(a)in weeks 2, 4 and 6 in Brisbane from 8.00 am Friday (or the end of kindergarten or school) until the start of day care, kindergarten or school Monday, or 9.00 am Monday; and
(b)in week 8 in Melbourne from 7.00 pm Friday to 3.00 pm Sunday.
In the event that she was not permitted to relocate to Brisbane with the child the mother proposed that the child spend time with the father as follows:
·Until 31 August 2015:
(a)each Tuesday and Friday from 8.00 am to 5.00 pm; and
(b)on alternate weekends from 8.00 am Saturday concluding at 8.00 am Sunday in the first fortnight, at 11.00 am Sunday in the second fortnight, at 2.00 pm Sunday in the third fortnight, and thereafter at 5.00pm Sunday.
·From 31 August 2015 until 19 December 2016:
(a)each Tuesday and Friday from 8.00 am to 5.00 pm; and
(b)each alternate weekend, weeks 2 and 4 from 8.00 am Friday until 10.00 am Sunday, weeks 6 and 8 from 8.00 am Friday until 1.00 pm Sunday, and thereafter from 8.00 am Friday until 5.00 pm Sunday.
·Thereafter from:
(a)8.00 am until 5.00 pm each Tuesday; and
(b)each alternate weekend from 8.00 am Friday (or the end of day care, kindergarten or school) until 9.00 am Monday or the start of day care, kindergarten or school).
The mother also proposed for holiday time:
·that until the child commences Year 1, the child spend time with the father for up to seven consecutive days on the condition that the time be exercised in the city where the child is living, not more than four times per calendar year and as follows:
(a)until 19 June 2015, the time shall be from 8.00 am until 5.00 pm on each of the seven days;
(b)between 19 June 2015 and 19 December 2016 there shall be one overnight period during the seven day period; and
(c)after 19 December 2016 there shall be two overnight periods during the seven day period.
The mother proposed that in the event that the child were living in Brisbane, that before Year 1 she spend up to seven consecutive days with the child and the father’s time be suspended during that period no more than four occasions per calendar year, or eight occasions per calendar year in the event that the child is living in Melbourne. It was also part of the mother’s proposal that if the child were living in Melbourne, upon her giving the father not less than 21 days’ notice in writing that she has secured a locum position, the time the child is to spend with the father be suspended provided that the locum position must not be more than 21 days in total, not occur more frequently than once in every 12 week period or include any time for the father when he ordinarily would spend time with the child on special days such as Christmas, birthdays and Father’s Day.
The mother’s proposals for special days including Christmas Day were based upon the child spending Christmas in Brisbane and Melbourne in alternating years until Christmas 2019 when school holiday periods are to be allocated in such a way as to ensure that Christmas Eve and Christmas Day is alternated between the parents each year commencing with the mother in 2019.
The orders proposed by the mother also included her proposals with respect to both overseas and interstate travel.

The Proposals Generally

Counsel for the father was critical of the mother’s proposals, in particular the fact that it was only at the commencement of the hearing that she had sought to amend her proposal, on the basis that it demonstrated that she was more concerned about being permitted to relocate to Brisbane than the child’s welfare and that she would essentially do whatever it took, irrespective of his welfare, to achieve that end.
Counsel for the mother was critical of the father’s proposals on the basis that they were based upon what the father wanted and not the child’s welfare or his views of what was best for the child’s welfare and because, she said, they were an attempt by the father to exert control over the mother. This was not consistent with my observations of the father or my assessment of his evidence generally.
Counsel for the mother made the point that although Dr W’s updated report dated 7 February 2015 had not been released until after the father filed his Further Amended Initiating Application filed 28 January 2015, he unlike the mother had not sought to amend his proposals. Counsel for the mother put to Dr W that the father’s proposals, for example his proposal that he immediately have two consecutive overnights and that the child spend significant overnight periods with him during holiday periods, demonstrated a lack of insight into the child’s welfare in light of her recommendations. Dr W said that she considered the father’s proposal disappointing because she had been clear about the need for a gradual build up. She also said that the father’s proposals, particularly with respect to the extended overnight holiday periods, were not age-appropriate and that it would not be in the child’s best interest to immediately spend two consecutive overnights with the father as he had proposed.
However Dr W also said that although she had read the father’s Further Amended Initiating Application and the mother’s Amended Response and Case Outline, she relied upon on what the parties told her rather than the documents prepared by their solicitors. I tend to agree with Dr W’s view and although I would have reservations about the father’s proposal that the child immediately spend time with the father for two consecutive nights or substantial periods of overnight holiday time, I am satisfied, having heard his evidence, that the father is generally speaking child focused and very committed to the child’s welfare.
Although I am satisfied that the mother was attempting to address some of the issues raised by Dr W and that this may be a positive shift it is also the case that she only did so at the door of the Court, notwithstanding the recommendations made by Dr W in her first report which was released on 26 August 2014, well before she filed her Amended Response on 5 January 2015. And although the mother’s position has shifted somewhat, that shift is made within the parameters of her preferred position that she should be permitted to relocate to Brisbane with the child notwithstanding the evidence of Dr W that such relocation would not be in the child’s best interests.
Although counsel for the mother submitted that this was not simply a case of the parties having a “wish list’ and that the father’s motivation was somewhat more sinister I am satisfied that both the father and mother’s proposals are clearly intended to achieve the result they seek. I also have no doubt that they were both guided in the preparation of their respective proposals by their legal advisors with a view to achieving the outcome they sought. Whilst their respective proposals may provide some insight into both the parties themselves and their respective cases, it is ultimately their evidence and my observations of them in the witness box upon which I have based my findings.

The Evidence

The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 provides that in applying the relevant standard of proof the Court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.

Both the father and the mother gave evidence and were extensively cross-examined. The maternal grandparents and two of the mother’s siblings who had all filed affidavits in the proceedings on behalf of the mother were also required for cross examination. So was Dr D who had sworn an affidavit in the proceedings on behalf of the father with respect to the child’s exposure to the French language in the father’s care.
In my view this is not a case that turns on the credit of any of the witnesses in so far as it could be said that any of those witnesses were deliberately not telling the truth. That being said, the truth or what is perceived to be the truth can be subjective rather than objective and ultimately it is often not a question of the truth or otherwise of what they are saying but what lies behind that witness’ perception of the truth which is telling. That is certainly to the point in this case.
Although the mother mentioned on a number of occasions that the father was concerned about his rights rather than the child’s welfare, that was not my impression of the father or his evidence. He was a somewhat cautious, and at times pedantic witness but my impression of him was that whilst he considered both the questions and his answers carefully that he was, notwithstanding that his case was that he would not relocate to Brisbane if the Court acceded to the mother’s application, focused on his relationship with the child and the child’s welfare.
In my view it was the mother and not the father who was focused on her rights, in particular the right to pursue the career of her choice, it being her turn to do so, and that focus coloured her evidence. The mother kept returning to the fact that she had made career sacrifices for the father and that she did not think it unreasonable for her to now expect him to do the same for her. Dr W said at paragraph 61 of her first report as follows:
Ultimately the mother keeps going back to the fact that she did it for him, and so she doesn’t think it is unreasonable for her to now expect him to do it for her; and she stated that the only reason they are in this situation is because the father refused to move.
The mother’s evidence before me, which was consistent with what she was reported to have said to Dr W, included the following:
·That she was the “mug who moved here for him” and that the parties were “in this situation because I had a child here”.
·That she was unaware that she had signed a “contract” to remain in Melbourne for “the remainder of her existence”;
·That she had done a lot of compromising;
·That the only reason she and the father face their current situation is because he will not move and she is only asking him to do what she did for him; and
·That as she had come to Melbourne he should come to Brisbane.
At paragraph 60 of her first report Dr W said as follows:
The mother insists that it would be much easier for the father to get a job up there than it is for her to get the job she wants here; and she stated that he doesn’t love his job like she loves or wants to love hers; and she maintains that the job in Brisbane is a fantastic opportunity for her, and she is going to resent the father significantly if he stands in the way of her job opportunities and prospects too. She also reported that she is [the child’s] primary care giver, and he will be happy wherever she is, and she strongly believes that a happy mother is best for [the child]; and whilst she recognises that there will indeed be some impact on the father/son relationship, she insists that the father can still maintain his bond and relationship with regular calls and Skypes, and also with frequent visits to Brisbane to see [the child]. The mother also insists that she is totally willing to foster the father/son relationship if she is allowed to relocate, because this is what she wants and what makes her feel fulfilled, and this will make her happy, and so she will try very hard to make it work out.
The mother said when interviewed by Dr W for the purposes of her second report that Dr W had “got it wrong” the first time and that was not “...really the main reason for her wanting to relocate to Brisbane, and rather her family is”. That is not consistent with my reading or observations of her evidence or that of her family members who gave evidence on her behalf. For example the mother’s sister said in cross-examination that “... the mother would really, definitely, would like to move back [to Brisbane] if that role (the job offer in this case) became available”.
The focus of the mother’s affidavits is overwhelmingly on her employment opportunities, not only in relation to the lack of job opportunities that she says there are in Melbourne but also in relation to her career preferences. The mother expressed similar views to Dr W and also during cross-examination including words to the effect that she wanted a challenge not just a job that pays the bills as follows:
a suitable job [is one] that offers challenge and intellectual stimulation to me for the next thirty years is what I consider to be a suitable job, not just one that pays the bills.
In his evidence, the maternal grandfather reaffirmed the words in his affidavit that:
[The mother] is a highly trained and dedicated professional with a passionate commitment to the contribution her medical and interpersonal skills can make to young families. We have often talked about how fulfilling she finds her work and the personal and professional satisfaction she gets from helping [patients] and families. I know, from those discussions with her, that the satisfaction she gets from work is an important part of who she is.
The maternal grandmother said in cross-examination words to the effect that the mother had lost everything she had worked for, that her career was in tatters, that she needed different challenges and that she wanted to pursue her professional career at a level at which she could contribute to people’s lives. She said that the mother’s “aim is to contribute to the world”. The mother’s sister described the mother not being able to pursue her career or her “special gift” to its full potential as a “loss to the community”.
Having heard the evidence of both the mother and her witnesses, which is consistent with the mother’s position and what she is reported by Dr W to have said, I am satisfied that the mother’s priority is to reach what she sees as her potential and it is her belief that her potential would be wasted if she were to practice as a general professional, particularly if that were to be in private practice.
Although I do not doubt that the mother would prefer to be near her family and have their assistance, I am also satisfied that it is her career that is her primary concern and objective and that if she had the job she wanted in Melbourne rather than Brisbane that she would not be proposing to leave Melbourne to be nearer her family. Or for that matter if there was a job on offer in some other city that she would move to Brisbane rather than take up that position.
Whilst I am satisfied that the mother was doing the best she could to tell the truth, the perception I was left with of her evidence was that it was coloured by her desire to pursue her career, if possible in Queensland and the view that she had made sacrifices for the father and that it was now her turn to pursue her professional objectives and live where she wants to live in order to do so.

Dr W’s Evidence

Dr W’s evidence was both cogent and considered. She demonstrated a capacity, in both her reports and in cross examination, to reflect upon the positive and negative aspects of the parties respective cases and how that related to the child’s welfare. In cross examination she was able to readily incorporate information not available to her at the time of writing her reports and give careful consideration to that information and how it might impact upon her opinions and recommendations. It was my observation that Dr W was able to make concessions in circumstances where it was appropriate to do so. However, it is also the case that cross-examination did not cause her to significantly alter either her opinion or her recommendations. Dr W was an impressive witness and I found her evidence very helpful.

Legal Principles

Relocation cases are not a specific category of cases and as in all parenting cases the best interests of the child the subject of the proceedings is the paramount consideration.
In A v A (2000) FLC 93-035 the Full Court formulated what it described as a guideline, drawing upon previous decisions of the Full Court and the decision of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852 which included the following matters:
·the welfare of the child is the paramount but not the only consideration;
·the court cannot proceed to determine issues in a way that separates the issue of relocation from that of residence and the best interests of the child;
·the court must evaluate the parties’ proposals in the context of the legislative pathway;
·compelling reasons for, or indeed against, (this part is not in the guidelines) the relocation need not be shown;
·neither the applicant or the respondent bears an onus;
·treating the welfare or best interests of the child as the paramount consideration does not oblige a court to ignore the legitimate interests and desires of the parents. If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights; and
·if a parent seeks to change arrangements affecting the residence of, or contact with the child, he or she must demonstrate that the proposed new arrangement, even if that new arrangement involves a move overseas, is in the best interests of the child.
In U v U (2002) FLC 93-112 the High Court, whilst not challenging the test in A v A, also gave consideration to the court’s power to make orders it considered to be in the child’s best interests, not limited by the parties’ proposals. Of particular relevance in this case were the observations of the minority judges and in particular the decision of Gaudron J upon which counsel for the wife in this case relied: that the Court should have regard to the possibility of the party opposing the relocation moving if that is what the best interests of the child dictate. At [35], Gaudron J said:
...it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
The Full Court in Bolitho v Cohen (2005) FLC 93-224 referring to the decision of the High Court in U v U said at p79,699 as follows:
..the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals having regard to relevant s68F(2) factors (of the Family Law Act 1975 prior to the shared parental responsibility amendments) and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
The parties in this case agree that they should have equal shared parental responsibility for the child. There is no evidence that would lead me to conclude that the presumption of equal shared parental responsibility should not apply in this case. In those circumstances the Court is required pursuant to s65DA of the Family Law Act 1975 (Cth) (“the Act”) to consider whether it would be in the child’s best interests and reasonably practical to spend equal time with the father and the mother. If the Court concludes that it is not in the child’s best interests to spend equal time with the father and the mother, it must consider whether it is in his best interests to spend substantial time with each of his parents.
In the Full Court decision of Morgan & Miles [2007] FamCA 1230, Boland J summarised the core principles developed in relation to relocation cases, such as this, where one party seeks to relocate with the child or children of the parties, whether that relocation be domestic or international or for interim or final orders. Her Honour also made reference in the context of the relocation case before her, to the wording of s 65DAA(1) of the Act, which provides that:
…if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Her Honour noted that “there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority”. However, her Honour considered it practical to firstly examine the issues in dispute against the relevant s 60CC factors, and secondly to apply those findings to a consideration of the criteria in s 65DAA of the Act. I propose to adopt that approach in addressing ss 60CC and 65DAA of the Act.

Section 60CC of the Act

In determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of s 60CC of the Act (s 60CC(1) of the Act). There is no legislative requirement that the matters be considered in a particular order or that any one factor take priority over another other than the requirement that the Court, in considering the two principal considerations, place greater weight on the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. There is no evidence in this case that the child would be exposed to physical or psychological harm in the care of either of his parents.
It is also the case that in considering the principal and additional considerations in s60CC of the Act the relevance of particular considerations will vary depending on the circumstances of the case. For example in this case the child’s wishes, assuming they could be ascertained, are of little or no relevance given his young age. There are in this case also no allegations of family violence and neither the father nor the mother has applied for a Family Violence Intervention Order.
It is also often difficult to address the issues in a particular case within the constraints of the particular s60CC considerations and in particular without repetition. As highlighted by May and Thackeray JJ in Mulvaney & Lane (2009) FLC 93-904 the central enquiry is “...to determine the outcome that will be best for the child”, and as long as the Court gives due weight to all of the relevant considerations, it does not matter under which particular heading it does so.
The first matters I propose to consider and what are in my view the considerations which are central to this case are as follows:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(3)(b) the nature of the relationship of the child with:
i.each of the child’s parents; and
ii.other persons (including any grandparent or other relative of the child);
In Mazorski & Albright [2007] FamCA 520 Brown J said that a meaningful relationship “...is one which is important, significant and valuable to the child” and that the word ‘meaningful’ is “a qualitative adjective, not a strictly quantitative one.” Although when these proceedings commenced in mid-2014 the mother was critical of the father’s parenting and his commitment to and interest in the child, which suggested that the child’s relationship with the father might be not as meaningful as it might be otherwise expected to be, both in her affidavit sworn 10 December 2014 and her oral evidence she described a much more positive relationship. She said in that affidavit that “...[the child] seems to have a lovely, strong bond with [the father].” This is consistent with the evidence of Dr W who said in her first report that although it appeared at that time that the child was more securely attached to the mother he appeared to have formed a strong and positive bond with both of his parents. Dr W similarly observed in her updated report that both the father and the mother were “…extremely positive and appropriate in their interactions with [the child], and [the child] was so responsive to both of them.” She said that the child and the father currently have a “wonderful” relationship and that the child is “...very much in the process of developing a strong attachment with his father”. Although the preferred approach to the assessment of the benefits of a meaningful relationship is prospective, I am satisfied that the child currently has a meaningful relationship with both the father and the mother which in my view indicates that he will continue to benefit from those relationships in the future.
There is no dispute in this case that whether or not the mother is permitted to relocate to Brisbane the child will, given his age and stage of development, at least in the short term, live primarily with the mother. I am satisfied that he will benefit and will certainly continue to have a meaningful relationship with the mother whether he remains in Melbourne or moves with her to Brisbane. The issue in this case is not whether the child will benefit from a meaningful relationship with both his parents, but rather how orders can best be framed to ensure that his meaningful relationship with both his parents will continue to develop, bearing in mind that the question of whether he will benefit from having a meaningful relationship with the father and how that can best be maintained is just one aspect of the enquiry the Court must undertake in assessing what will be in the child’s best interests.
I am satisfied that if the child were to remain in Melbourne as suggested by Dr W, his relationship with the father would continue to develop. However I cannot be certain that will be the case in the event that he relocates with the mother to Brisbane. Dr W said in her first report that:
...there is no doubt that any relocation, no matter what the reason, is certainly going to have an effect on the status quo, on [the child], and on the father/son relationship; whereby if relocation is allowed, and the father remains in Melbourne, then his time with [the child] will significantly change, and the frequency of contact visits each week/fortnight will be reduced, and this is likely to change the nature of the father/son relationship, in that it may reduce the quality and closeness of this relationship with less shared experiences and quality time; and such a move will also impact the father’s ability to be involved in [the child’s] life generally and going forward, and his schooling, sporting, and social activities as he grows and develop (sic).”
Dr W went on as follows:
For instance, the father currently has regular and consistent daytime contact with [the child], which is consistent with the guiding principles for children of this age and stage in order to develop a strong secure bond, and namely for more frequent visits of lesser duration as opposed to less frequent visits of longer duration; so that they get used to going to the father, but knowing that they are returned to their mother, and so that there is opportunity for a relatively high level of physical and emotional access and quality time and experiences, as this aids the development of a secure attachment and bond; with frequency being necessary for a child of this age and stage because of their inability to hold a picture of the father in their head. However, if [the child] is residing in Brisbane, then it will require the father to spend time with him on a fly in/fly out basis, and there will be less frequent contact and bigger gaps between contact, and contact will need to take place in an artificial environment such as a hotel; and ultimately not only will contact be much more difficult for the father, but developmentally, it is not the best way for a secure bond and attachment to be maintained and built.

It was a matter of some contention in the case that when Dr W asked the mother whether she thought that the child seeing the father once every two weeks, at his age and stage, would be sufficient for the father/son relationship the mother:
… reported that she doesn’t think that [the child] will see him as a stranger, and she insists that her dog remembers her after a whole year; and she also reported that ‘my child knows his grandparents after months’...”
The mother’s evidence was that she was disappointed with Dr W’s report and that she had taken her comment about the dog out of context. However when counsel for the father put to her in cross-examination that there was more to this issue than whether the child recognised the father, the following exchange occurred:
‘When asked if she really thinks that seeing [the child] once every two weeks at his age and stage would be okay for the father/son relationship, [the mother] reported that she doesn’t think that [the child] will see him as a stranger’ and I’ll just stop there, it’s a bit more than that, isn’t it, that’s necessary? --- I’m not saying that it’s not more than that. I believe she put it to me that he would see him as a stranger if he hadn’t seen him for two weeks.
‘and she insisted that her dog remembers her after a whole year.’ Now you explained this by saying that you were really staggered that someone who was supposedly an expert would ever have suggested that a child wouldn’t hold an image of their father for a two week period and, in that shock, you said something about the dog. Do you stand by that answer, do you? --- yes.
…
You would know full well that a dog, and a dog’s recollection, and the dog’s formation of those, is completely different to a child. --- I think that’s the point I was trying to make. That an eight and a half month old, if a dog – which was not my dog by the way, it’s my parents’ dog – would remember me after not seeing me for a year, there was no way that my eight and a half month old child would not remember his father after two weeks.
…
Let’s keep going with the dog thing then. You’d know full well that the whole formation of attachment is at its most imperative in the first two years of a child’s life --- yes.
And, indeed, continues of significant importance for a number of years after that --- yes.
So much so that, really, the optimal relocation time is probably when a child is about six, seven years, eight? --- yes.
…
You stand by that, that’s fine. It doesn’t sound defensible to me. I’m giving you an opportunity to move away from it if you want --- can I, can I say to you that, that I have some experience with my child in this situation and just before this interview my mum arrived for a visit, to help me out, she’d rescheduled since the family report got rescheduled from a month before. So she hadn’t seen [the child] for a month, she’d spoken to him by Skype in the meantime, but he definitely knew her. We were, we were waiting for her at the airport …
How do you know it, how do you know he knew her? --- we were waiting for her at the airport, and she approached from the direction that I was not expecting, I was standing with [the child] outside the car, facing the other direction. When [the child] saw her coming, he squealed and held out his arms.
Do you think [the child] might have seen her excitement in her face? --- he has never done that to a stranger before.
Do you think [the child] might have seen her excitement in her face? --- sure.
I mean, that’s the reality, isn’t it? A child, even a child who’s not your own child, if they see a smiling happy face, they tend to respond to it, don’t they? --- the previous, or the …
Can you answer my question? ---- yes. The, the next time however …
No, no, just answer my question. They would respond to it positively. If they are seeing something positive in the face, they will respond to it positively --- not usually to that degree. He remembered his favourite book that he hadn’t seen for two weeks, when he didn’t even see the front cover of it, at that age.
Apart from the fact that the mother had difficulty making concessions with respect to the inappropriateness of what she had said, it was clear from the evidence that she either did not understand which in my view is unlikely given her qualifications, or did not want to acknowledge the point Dr W was making. Or as Dr W opined in her first report:
… there was an element of her believing that her relationship with [the child] was more important than the father’s because she is the primary caregiver, and a tendency to trivialise or minimise the importance of his fathering role too, and similarly the importance of regular and consistent time in order to develop and maintain a secure father/son bond and attachment.
In my view it is clear that Dr W was addressing the quality of the child’s relationship with the father, not whether he would remember the father’s face after not seeing him for a period of two weeks. It is quite possible, which ultimately the mother conceded, that the child might have been responding to the excitement in the maternal grandmother’s face but even if it was that he recognised her and even if the child were to have a memory of his father between visits, that is very different to developing and maintaining a meaningful relationship and the child understanding the importance of his father in his life.
Dr W clarifying her evidence in relation to her concerns about the mother’s attitude said that it was not that the mother was not child focussed but:
she really does believe she is the better parent and I got the impression at one point that she didn’t think that the father was as important to the child and I got that impression from the comment, or from many comments, but one I think which might explain it was, …”wherever I am that child will be fine, that’s all that matters” kind of thing.”
Her evidence was that the mother’s attitude was not uncommon and that she hoped that the mother, having read her report, would develop some insight into the father’s importance in the child’s life.
It was also put to Ms W in cross-examination by counsel for the mother that what he referred to as the “unfortunate dog comment” arose in the context of her first report and that the mother had not made any comments during the interviews for the updated report that would suggest an offhand attitude to the father. Although Dr W conceded that the mother had not made any comments similar to the comments she had made about her dog recognising her and that she was encouraged by the fact that the mother having read her report had amended her proposal, she also said that she had been “...looking for more of a shift and I didn’t see that in some of the words that she did use. I think her proposal now shows a shift but during the interview I didn’t see a shift, but at the same time there wasn’t those comments either, so that’s a positive.” Dr W was also encouraged by the fact that the mother had completed a parenting program.
Whilst it is no doubt encouraging that the mother has amended her proposals and has completed a parenting course, having heard her evidence I am left with the strong impression that the mother does not consider the father’s role in the child’s life to be as important as hers and that she has a somewhat cavalier attitude to the child’s relationship with the father.
In her updated report Dr W said as follows:
I think it is also important to understand that [the child] is still very young at just over one year of age, and there is no getting around the fact that this is just not the best time for him to be relocating away from a parent, and ideally it would be much better in a few years’ time, and even better again in 5-6+ years’ time. Children of [the child’s] age and stage need lots of regular contact with the non-resident parent in order to maintain and also develop a strong meaningful quality relationship, and even fortnightly contact, whilst better than longer blocks of no-contact time, is just not the same as if he was able to continue with the very regular time he has with his father now. This becomes even more of a problem in this respect when you consider that most of the time that [the child] will be spending with the father will be in an artificial environment such as a hotel room, and this just does not lend itself to a normal father/child relationship, and in reality it just cannot compare to the sense of identity and home and security he will likely have if he were to continue spending regular time with his father at the father’s home.
Ultimately, there is just no doubt that the nature and quality of [the child’s] relationship with his father will change, and it will likely become more distant and diluted, as [the child] becomes more and more used to, reliant upon, and attached to his mother, and less bonded and attached to his father without the normal routines and activities that are shared, and that serve to create positive experiences, memories, the shared father/child identity, and strong bonds.
The mother agreed with Dr W’s evidence that it was not the appropriate time from the child’s perspective to relocate and that it would be better at this stage of the child’s development for him to be having regular and frequent time with the father. Nor did she cavil with Dr W’s opinion that the child’s bond with the father could be damaged. However, her proposals are not consistent with her evidence in relation to the possible impact of her proposed relocation upon the child’s relationship with the father.
I find the mother’s evidence unsatisfactory given her knowledge of the developmental needs of children of the child’s age and her acknowledgement of what the impact of her proposed relocation might be upon the child’s relationship with the father and it follows, his welfare generally. In my view this suggests that the mother is knowingly prepared to take that risk, either because she wants to pursue her career irrespective of any impact her decision to do so might have upon the child’s welfare, or alternatively because as suggested by Dr W she does not place great importance on the child’s relationship with the father, and that in those circumstances does not consider that the proposed relocation will have a significant impact upon the child’s welfare.
(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; …
As I have previously discussed the mother was initially critical of what she said was the father not engaging with the child following his birth and there are competing allegations with respect to each of the parties not keeping the other advised with respect to issues relating to the child’s welfare. However leaving aside the clearly vexed question of the mother’s proposed relocation and its impact upon the child’s welfare I am satisfied that each of the parents has participated to the extent that they are able or required to do so in making decisions about major long term issues and have taken the opportunity to spend time and communicate with the child.
(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed
to fulfil, the parent’s obligations to maintain the child;
Although the parties separated less than six months after the child’s birth they continued to live separately and apart under the one roof until September 2014. Since separation the mother has applied for a child support assessment and the father has paid child support pursuant to that assessment. The father and mother have otherwise generally been responsible for the costs associated with the child’s care when he is in their respective care. I am satisfied that both the father and the mother have fulfilled their obligations to maintain the child.
(3)(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I have already dealt with the possible impact of the child’s relocation upon his relationship with the father. It is this consideration that lies at the heart of the case. However in my view it is not just the impact upon the child of a separation from his father that is an issue. It is the mother’s case is once she returns to Brisbane and takes up her fellowship she will be working full time and the child will be in the care of her parents during work hours. The mother will be required to work from 8.00 am to 5.00 pm each day with added time for travelling to and from work, two to three weekend shifts per term of one day each and some on call weekend work one week in three. The mother’s proposals represent a significant change in the child’s life. Not only would the child be separated from his father and the life he knows, but hand in hand with the reduction in the time he spends with the father is that he would be spending significantly less time with his mother. Although I have no doubt that the child will love and enjoy time with his maternal grandparents and that they will continue to play an important part in the child’s life, their relationship is one of grandparent and grandchild, not that of a parent.
As Dr W said in her updated report “[The child] will go from having 2 very positive, appropriate, loving, and involved parents in his life, to effectively being primarily cared for by the maternal grandparents during the day, and the mother at all other times….”. Whilst it is true that if the mother remains in Melbourne it may be necessary for her to return to work, possibly on a full time basis and necessary for the child to be in child care, it is also the case that he would continue to spend significant time with his father. In his Further Amended Initiating Application the father sought an order that neither party enrol or change the child’s enrolment in a day care facility without first obtaining a written agreement from the other party. Whilst the wording of this order may be a little heavy handed having heard the father’s evidence I am satisfied that the intent of the proposed order is to ensure that the parties make joint decisions with respect to the child’s care and not as submitted by counsel for the mother part of a broader attempt to exercise control over the mother’s life. Hopefully as the parties will be living in the same city they will be able to make arrangements which both promote the child’s interests and maximise the time they are each able to spend with him.
Although they did not give evidence, the father describes a positive relationship between the child and his extended family, particularly his mother and her partner who are presently living with the father. Although the mother was somewhat negative about members of the father’s family both in her affidavits and during her discussions with Dr W, it was not put to the father that the child does not have a positive relationship with the father’s extended family. That relationship would of necessity be more limited if the mother were to be permitted to relocate to Brisbane with the child. However the child would on either the father’s proposal or the mother’s proposal spend time with the father’s extended family in Melbourne, on the mother’s proposal at least every two weeks in the first six months and thereafter every eight weeks.
In the event that the mother is not permitted to relocate to Brisbane with the child, the child’s time with the mother’s extended family will continue to be limited to those occasions when the mother travels to Brisbane to see her family or when they visit her in Melbourne. The mother’s evidence is that the child has a positive relationship with her parents maintained by her parents visiting Melbourne and her visits to Brisbane. Although it is not unusual for families to be spread out around Australia and even overseas and maintain relationships, inevitably in cases such as this, one family is likely to have less contact with the child.
(3)(d) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Counsel for the mother challenged the father’s estimates of what it would cost the father to travel to and from Brisbane to spend time with the child, in particular the upper end of the range deposed to by the father.
I am satisfied that with some forward planning it would be possible for the father to obtain air fares at the lower end of the range. I note that the mother’s amended proposal as at the date of the hearing was that for the first six months she would provide the father with accommodation in Brisbane at her expense on alternate weekends. That being said her proposals require the father to travel to Brisbane on a fortnightly basis at his expense and after the first six months to provide accommodation for he and the child during those weekend visits. The mother also proposed that the father have the use of her motor vehicle for the first six month period but thereafter the father would need to rent a vehicle.
Even taking into account the possibility of cheap airfares, the expense if the father were to travel to Brisbane as the mother suggests would be not insignificant. That being said it is the practicalities of the mother’s proposal and not just the cost which are an issue in this case. The mother’s case is that for the first six months she will travel to Melbourne with the child on alternate weekends. This would allow the child to spend time with his father from 11.30am on Saturday until 3.00pm on Sunday. Although that would allow the child to initially spend time with the father in his own home and environment one night overnight per fortnight, thereafter the mother’s amended proposal is that for a further four months she will travel to Melbourne with the child on one in every four weekends with the child spending from 5.00pm on Friday until noon on Saturday with the father in his home. The mother’s proposal is that once the child turns two he spend one weekend in every eight from 7.00 pm Friday to 3.00 pm Sunday with the father in Melbourne. On the basis of the mother’s proposal the father would need to travel to Brisbane three out of eight weekends after the child turns two if he is to maintain and develop his relationship with the child.
The father would otherwise spend time with the child in Brisbane. This would be likely to be in the artificial environment of a hotel or some other short-term rental accommodation but more importantly with the child having only a limited experience of his father’s life in Melbourne and all that provides for him.
I can see practical issues with the mother’s proposal on a long-term basis given his commitments and increasingly the child’s new life in Brisbane and in my view to do so would be quite onerous.
I agree with Dr W’s observation that:
There is also a need to look at the reality and feasibility of this situation, because although these parties appear to have good careers, and consequently have more means than some; it is unlikely that the parties will be able to afford, or will remain committed to doing what is necessary practically and financially for the father to visit [the child] every fortnight or more, indefinitely; and the mother to also visit every fortnight for the next 6 months.
Although the father’s proposal would overcome some of the disadvantages of the mother’s proposal in so far as it provides for the child to spend time with the father in the familiar environment of his home in Melbourne on a fortnightly basis and would allow him to participate in his father’s life at least to some degree, it would almost certainly be equally onerous for the mother and the child to have to fly to Melbourne each alternate weekend on an indefinite basis. In my view this proposal is similarly unfeasible and would almost certainly need to be reviewed as the child reached school age.
(3)(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

Dr W said that when she interviewed the father for the preparation of her updated report his proposal was in general terms to progress to shared care by the time the child started school. Dr W also recommended in her updated report as follows:
Moreover, if the Court was to decide that [the mother] cannot relocate to Brisbane with [the child], the idea will also be to move to less regular but larger blocks of time with the father as he gets to 3 and 4 years of age, so that by kinder and school he is spending at least 5 nights per fortnight with his father, but with a block of 3 or 4 consecutive nights over a weekend and 1 or 2 night midweek; because as he gets older and is better able to hold a picture of his father in his head, there will be less need for regular time every 2-3 days or so, and instead he will be able to handle longer periods of time between contact visits to his father of longer duration, and this ends up giving him more stability in both homes.
The father’s proposal from 2018 onwards when the child will be just over four, albeit it is for seven nights in each fortnight, rather than up to six nights as suggested by Dr W, is generally more consistent with her recommendations that he could be spending at least five nights per fortnight with the father than the mother’s proposals. Neither Dr W nor the father were cross-examined in detail about this aspect of the father’s proposal nor was it addressed specifically by counsel in their final addresses. This is not a criticism of either counsel who both focussed primarily on the question of the proposed relocation.
However in all of the circumstance having regard to all of the evidence, in particular the evidence and recommendations of Ms W, I am satisfied that it is ultimately in the child’s best interests to spend equal time with each of the father and the mother; however I propose to delay the implementation of equal time until the commencement of 2019, when the child has just turned five and not 2018 as proposed by the father when he will be only four. Although I propose to make orders for week about at that time I am not satisfied that a changeover on a Monday night is the best option. In my view a changeover on a Friday night will be less disruptive to the child.
The father’s proposed orders were drafted on the basis of the child living with him rather than spending time with him as the mother proposed. Given the amount of time the child will be spending with the father and that pursuant to the orders I propose to make he will ultimately be spending equal time with the father and the mother I propose to make “live with” orders.
Dr W said in her updated report with respect to the mother’s concerns about the pickup times not fitting in with the child’s nap times as follows:
...I would say that it is likely that [the child’s] nap times will change soon anyway, and they can handle some movement in their nap times; and the reality is that in an ideal world the routines could be very set, and both parties could work around this; but the reality is that these parties had a child and then separated, and so [the child] now has to reside between them, and there will always be difficulties and unsettledness and changes in routines, and the better his parents handle this and miminise the impact on him, the better he will manage it; but this should not prevent [the child] from spending time with one parent or the other.
However , in saying this, I can see that the mother is proposing that the times simply move an hour earlier, and if this might help in the short term, with things as already mentioned above, likely changing again rapidly anyway, I see no reason why it couldn’t at least be tried. Moreover , if the father has concerns about the early morning traffic like the mother alleges, then an option would be for the mother to drop ben off to him in the mornings, and then the father to drop [the child] back to the mother in the afternoons.
Although counsel for the mother cross-examined the father about the issue the focus of that cross-examination was largely with respect to what the mother says is the father’s lack of good will and inability to put the child’s needs ahead of his own rather than the merits of the respective positions. I have no doubt that both parties believe that they are acting in the child’s best interests however that being the case and notwithstanding that the child’s needs are likely to change I propose to accede to the mother’s application. This will ultimately not be an issue once the child starts spending overnights with the father and/or is attending child care or kindergarten.
Although the orders will make provision for the child’s care for the foreseeable future his circumstances, particularly given his age, and the parties’ circumstances will inevitably change. Whilst the Court can make orders which put in place arrangements for the future those orders as I have already discussed cannot and do not provide for every contingency. Employment opportunities are not the only variable. The parties will have to make decisions in the child’s best interests having regard to a variety of changes in their circumstances, that is what parents do. I am hopeful that with the conclusion of these proceedings the parties will be able to move forward and parent the child without the need of the Court’s intervention.

Other Matters

As previously referred to each of the parties had detailed proposals with respect to what I would describe as the broader arrangements for the child’s care. These were matters that were not the subject of specific evidence or final submissions. They included the father’s proposal that in the event of any dispute the parties attend mediation and counselling with a qualified Family Dispute Resolution practitioner or a family relationship centre, orders with respect to the child’s schooling, orders restraining the parties from taking the child out of the Commonwealth of Australia until he is eight years old, and once he is eight the conditions for such overseas travel, and orders restraining either party from referring to or posting photographs of the child on social media. The mother for her part sought orders allowing her to have block periods of time with the child to enable her to take up locum positions in the event that she is not permitted to relocate to Brisbane, holiday time and provisions for both overseas and interstate travel. Both parties sought orders with respect to special occasions.
Counsel for the mother submitted that many of the ancillary orders sought by the father were not necessary and that the matters that they related to were not matters which required that level of regulation. In my view this similarly applies to some of the orders sought by the mother. Whilst parties sometimes attempt to make provision for every eventuality in my view it is often not possible for the Court to do so. These parties are to share parental responsibility for the child and have many years in which they will be required to do so. In those circumstances I am not satisfied that it is for the Court to regulate their lives to the degree they both seek.
However doing the best I can on the limited evidence before me in relation to those issues, I will deal first with the order proposed by the father that the parties attend mediation or counselling in the event that they are unable to resolve any dispute by consultation. The parties agree that they will have equal shared parental responsibility for the child. That involves consultation and decision making with respect to his welfare. The parties are both intelligent and committed to the child and although they have had some disputes with respect to the arrangements for the child’s care I am also conscious of the fact that they were plunged into what is always very stressful litigation with respect to the mother’s proposed relocation very shortly after their separation. Although I have no doubt that the mother may resent the fact that she has not been permitted to relocate and blame the father for that decision, I am also hopeful that as intelligent and committed parents and for the child’s sake that they will be able to parent co-operatively in the absence of the ongoing stress of the litigation. Although I would certainly encourage the parties to avail themselves of counselling or even attend mediation in the event that they have an intractable dispute I am not satisfied that it would be appropriate to order them to do so in anticipation of such a dispute. It is hard firstly to see how one would define the dispute which would trigger the order requiring them to attend counselling or mediation and also difficult to see it having much benefit in circumstance where one or other party is required to attend pursuant to an order rather than as a result of their desire to resolve any disputed issue.
I am also of the view that it would be premature for the Court to make orders with respect to the child’s schooling given the matters that might be relevant to that decision. The child is only 18 months old. Where he goes to school will depend upon his needs and requirements at that time, where he and the parties are living and many other matters which could change significantly between now and when the child starts school. Whilst there may be some benefits to the child attending a French immersion kindergarten and school that is ultimately a decision the parties will need to make based upon the circumstances and guided by the child’s best interests at the relevant time.
Both the father and the mother sought orders with respect to holiday time. I do not accept that it would be in the child’s best interests to immediately spend half of the Victorian gazetted school holidays with the father on an overnight basis in circumstances where there is otherwise a gradual introduction of overnight time. I accept Dr W’s evidence with respect to the arrangements with respect to holiday time and will make orders which accord with her recommendations.
However I also do not propose to accede to the mother’s application firstly that she be permitted to spend up to seven consecutive days with the child on not more than eight occasions each year, with at least seven days separating each of those periods or that she be permitted to take up the offer of a locum position of up to 21 days up to once in every 12 weeks.
The mother’s proposal with respect to locum work would, if she availed herself of the 21 day period on four occasions each year, result in her spending 12 weeks each year away from Melbourne and more importantly the child spending significant periods away from the father. In her updated report Dr W proposed a continuation of the existing order. She expressed concern that the child was in a “vulnerable period” for the next year or so and that separations of more than two weeks would be counterproductive for his relationship with the father. However in cross-examination Dr W said words to the effect that a week here and there would not be a problem but seemed less comfortable with the idea of more extended periods. As to the mother’s proposal, Dr W said that this would be up to whether the father could arrange visits to the place of the mother’s work, and that staying in Melbourne would be better for preserving the child’s routine. I accept her evidence. I am not satisfied that the mother’s proposal would be in the child’s best interests. I am similarly not satisfied that it would be in the child’s best interests to immediately spend those periods when the mother has accepted a locum position with the father. The current order permits the mother to accept a locum position for up to 14 days in total and not more frequently than once in every 12 weeks. It is primarily the amount of time the child is away from the father that is the issue, rather than where the mother takes up a locum position, which means that if the time the mother is away is limited to a week then it is not as crucial that the locum position be somewhere that makes it reasonably easy for the father to spend time with the child. Weighing up all these matters and having regard to Dr W’s evidence, I am satisfied that the mother should be permitted to take up locum positions for 14 days if the position is in Victoria but limited to seven days if not otherwise agreed if the position is interstate. The order will otherwise be similar in terms to the existing order. If the father is able to spend time with the child during the period that the mother is away that time should be on the same basis as he would be spending time in Melbourne.
I am conscious of the mother’s need to spend time in Queensland with her family. Although I am not satisfied that the child should be immediately spending half the school holidays on an overnight basis with the father, there is in my view no reason why he cannot spend holiday time with the child on a daily basis having regard to the gradual increase in overnight time pursuant to the orders I propose should be made and ultimately that the parties should otherwise share the school holidays. This will permit the mother and the child to spend time in Queensland with her family but also allow the father to have more extensive periods with the child even if not immediately overnight. I am also satisfied based upon Dr W’s evidence, having regard to the child’s age that until the child is a little older, the mother’s time away with the child during the long summer holidays should not be for more than two weeks at a time.
Finally there is the issue of overseas travel. I am not satisfied that there is any basis for restraining either the father or the mother from travelling interstate or overseas subject to the orders with respect to the time they are each to spend with the child. Whilst the father complains about the mother making plans to travel both interstate and overseas with the child without consultation with him this was in the context of the breakdown of their relationship and I am not satisfied that there is any evidence based upon which I could conclude that the mother might abduct the child and travel to a country that is not a signatory to the Hague Convention to avoid having to return him to Australia. However although it may not be strictly necessary I am in an excess of caution prepared to make an order restraining both the father and the mother from taking the child to any country which the Department of Foreign Affairs and Trade travel advisory to Australian citizens is to either reconsider the need to travel or not to travel to that country without the consent in writing of the other party. The parties’ proposals with respect to overseas travel are otherwise not markedly different and I will make orders along the lines of their proposals.
Although I have some sympathy for the father’s security concerns about the mother posting information about and particularly photos of the child on social media I do not consider that I should restrain the mother from doing so. She is a responsible parent and I am satisfied that she would not be likely to do anything that might compromise the child’s safety. That being said, I have read some of the comments posted by both the mother, her family and friends and in my view the mother needs to be mindful of the fact that once information is posted it may be accessible and that it would not be in the child’s best interests to see what the mother and her family and friends have posted in relation to the father.
Finally the parties each made proposal for spending special occasions with the child. Those proposals were not dissimilar save and except with respect to the proposals for Mother’s Day and Father’s Day. It was the mother’s proposal that she have the whole of the weekend on which Mother’s Day falls if it was otherwise not her weekend and the father have the whole of the Father’s Day weekend. The father’s proposal was that in the event of Mother’s day falling on his weekend his time with the child be suspended from 6.30pm on the Saturday and the child spend time with the mother until 6.30pm on Sunday. In circumstances where the mother may wish to spend time with her mother and other family members in Brisbane on the Mother’s Day weekend I propose to accede to the mother’s application. This will mean that the father will have the whole of the Father’s Day weekend and another weekend will be substituted for his weekend if Mother’s Day falls on his weekend.
The father has incorporated Christmas and the surrounding days into his proposals for holiday time. Those proposals do not in my view make provision for what will almost certainly be the mother’s desire to spend Christmas with her family in Brisbane. On the other hand her proposal would require the father to spend time in Brisbane with the child in alternate years which would also have disadvantages. I am satisfied that a better option would be for the child to spend Christmas with the mother in alternating years either in Brisbane or Melbourne at her election and the alternate year with the father in Melbourne.

Property

In addition to her application for parenting orders, the mother in her amended response to the father’s initiating application sought orders for property settlement. It included an order that the father pay such amount as is necessary to ensure that she received a total entitlement of 65 per centum of the property of the marriage, which I took to mean the value of their combined property. In the minute of orders sought by the mother filed at the commencement of the hearing the mother sought an order that she retain the property in her name and her superannuation entitlements and that the father pay her the sum of $100,000 . Although neither party afforded much time during the case to what if any orders should be made for property settlement, the father’s primary submission was that it is not just and equitable in all of the circumstances of this case to make orders adjusting the parties’ interests in property.
The parties relied upon an agreed list of their legal and equitable interests in property as follows:

Assets

Name

Value

C Property

Father

$650,000

R1 Property

Mother

$460,000

R2 Property

Mother

$530,000

A Property

Mother

$320,000

Cash at Bank

Father

$ 96,350

CBA Complete Access

Mother

$    3,270

Westpac Rocket Deposit offset account

Mother

$ 69,305

VW motor vehicle

Father

$    2,000

Peugeot motor vehicle

Mother

$    5,000

Share Portfolio

Father

$   19,872

MM Share Portfolio

Mother

$ 108,516

Total

$2,273,658

Liability

Name

Amount

NAB Home Loan

Father

$ 271,654

Westpac Investment Loans

Mother

$ 814,362

Westpac Share Loan

Mother

$ 100,000

Husband’s credit cards

Father

$    22,803

Wife’s credit card

Mother

$    18,476

Total Liabilities

$1,227,295

TOTAL NET ASSETS

$1,046,363

SUPERANNUATION

First State

Father

$ 155,518

QSuper

Mother

$ 108,768

On the basis of that agreed list the father currently holds 46.2 per centum of the combined value of their property and the mother holds the other 53.8 per centum.
The mother deposes that all of the real property she owns was acquired prior to the commencement of her relationship with the father and that she has accumulated savings and shares by careful management of her income since the commencement of their relationship. The father deposes that the mother had assets at the commencement of the relationship totalling approximately $453,000. Although the mother complains that in order to depose to these matters the father must have had access to her personal financial information without her knowledge she does not dispute his figures.
It is the father’s evidence that at the commencement of the relationship he had assets totalling $330,800. This included the property in Suburb C in which the mother is presently living which he says was valued at $550,000 and was subject to a mortgage of $300,000. It is the father’s case that at the commencement of the relationship the property he brought to the relationship represented approximately 42 per centum of the combined value of their property at that time. The mother’s property made up the balance of 58 per centum. It is also the father’s case that the difference in the percentages of the combined value of the property they now hold, albeit that the mother has reduced her level of indebtedness, is largely attributable to the fact that during the period of the relationship the C property increased in value whereas the real estate owned by the mother has either remained the same or decreased in value. It is common ground that the parties did not consolidate their finances and did not acquire any property jointly. The mother deposes that when the parties commenced cohabitation she suggested that she should pay rent but that the father rejected her suggestion as he did not want her doing so to acquire an interest in his property. The father deposes that he paid the mortgage, rates, insurance and utility bills for the C property, all car registration and insurance until July 2014 when the Peugeot was transferred to the mother, for fortnightly cleaning, gardening, watering and mail collection, nearly all restaurant bills, about half of the grocery bills, and home telephone and internet accounts. The mother’s evidence accords with the father’s evidence save that she says that she says she paid for the majority of the expenses when they travelled overseas and would give the father cash to pay for things such as cleaning.

The sum of $100,000 the mother says she should be paid by the father is a little less than 10 per centum of the value of their combined property. As she already holds 53.8 per centum of the combined value of the property her entitlement after payment of the sum of $100,000 would represent approximately 64 per centum of the property. Counsel for the mother submitted that the order sought by the mother was not based upon a detailed analysis of the parties contributions but what he said was the impact upon the mother’s earning capacity in the event that she was not permitted to relocate. More so on the basis of what he said her needs would be in those circumstances.
Counsel for the father submitted that the mother has a significant income earning potential, in the range of $400,000 per annum, should she choose to work in private practice. Although it is the mother’s case that it would be expensive and not necessarily easy for her to set up in private practice she has not attempted to do so and whether she is able to successfully establish a private practice, if that is what she ultimately decides to do, remains to be seen. I am not satisfied that the uncertainty of her employment would, given my findings as to her qualifications and experience and her potential to earn a substantial income in private practice, be a basis for the adjustment in their respective interests in property that she seeks or indeed any adjustment at all.
I also note that although the mother in her minute of orders sought spousal maintenance of $1,000 per week in the event that she was not permitted to relocate that application was barely referred to let alone pressed. I am satisfied and have found that there are employment opportunities, particularly those in private practice, that the mother has chosen not to pursue. I am also satisfied that even though she is required to remain in Melbourne that she is likely to be gainfully employed and able to adequately support herself without the need for spousal maintenance. If she is not able to find employment, in private practice or otherwise, then arguably she may have some entitlement, subject to the father’s capacity to spousal maintenance. Given that the application was not pressed and my findings I am satisfied that there is no basis for that order and propose to dismiss the wife’s application.
Applications which seek to alter property interests such as the mother’s application in this case are governed by s 79 of the Act. Section 79(2) of the Act provides that a court should not make an order for property settlement unless it is satisfied that it is just and equitable to do so (Stanford v Stanford (2012) 247 CLR 108 (“Standford”); Bevan & Bevan (2014) 51 Fam LR 363 (“Bevan”). As the Full Court pointed out in Bevan, although the Court’s power to make an order altering the parties’ interests in property is conditional upon the Court having found that it is just and equitable to make such an order, the just and equitable requirement permeates the process in which the Court is engaged.
The High Court said in Stanford at paragraph 36 (footnote omitted) that:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
In Bevan & Bevan (supra) the Full Court considered the question of the matters that might be taken into account in determining whether it is “just and equitable” to make orders altering existing interests in property. Bryant CJ said at paragraph 84 as follows:
Just as the expression “ just and equitable” does not admit of exhaustive definition, it is not possible to catalogue the “range of potentially competing considerations” that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s79(4), which make clear that in considering “what order (if any) to make, the court must take into account the matters referred to in that subsection. [Emphasis added.]
Although there was some consideration following the decision in Bevan as to whether it was mandatory to consider the matters in s 79(4) of the Act in determining the question of whether it is “just and equitable” to make orders altering interests in property that has now been clarified, and although it is open to me to consider the matters in in s 79(4) of the Act in addressing the question posed by s 79(2) of the Act, those matters will not be conclusive of whether or not it is “just and equitable “ to make an order altering any interest in property.
As the High Court said in paragraph 42 of Stanford:
[i]n many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of a choice made by one or both of the parties, the husband and the wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.
That is in my view clearly not the position in this case. I have, as I am permitted to do, considered the matters in s 79(4) of the Act in considering whether it is “just and equitable” to make an order as the mother seeks, altering the parties interests in property. However those are not the only matters I have considered in reaching my decision that it would not be just and equitable to make any order altering the parties’ interests in property in this matter. In reaching my decision I have considered the following matters:
·The parties in this case commenced cohabitation in January 2012 and had separated, living under the one roof, a little over two years later;
·During their short relationship the parties kept their finances completely separate;
·The parties did not acquire any joint property nor is there any evidence of any intention to do so even after their marriage and the birth of their son, save that the mother told Dr W that when the father had considered they might do so she had had reservations and required time to consider it;
·They maintained such a degree of separation in their finances that the mother took exception to the father having accessed her personal records which suggests that not only did they keep their finances separate they did not even discuss their finances;
·During the relationship the father paid the expenses for the property in which they lived and the parties both contributed, the mother says equally, to the cost of food. The mother says she paid a greater proportion of their holiday expenses but concedes that the father generally paid for dinner when they went out;
·Although the child will live primarily with the mother for some years, on the basis of the orders I propose to make, before long the child will be spending significant periods in the father’s care and he will be responsible for his support during those periods. These parties both have substantial income earning potential by community standards and should each be in a position to support the child when he is in their respective care. Child support will be as assessed taking into account their respective incomes.
It was submitted by counsel for the mother that I should take into account that fact that it was the father who ticked the box indicating the orders he sought included financial orders for property settlement and/or maintenance. Whilst that may be the case I also note that the orders sought by the father were essentially orders that each party retain their own property rather than orders adjusting their interests in property to which s 79 of the Act relates. It is also a matter for the Court not the parties to determine whether or not it would be just and equitable to make orders adjusting the parties interests in property.
In all of the circumstance having considered all of these matters and having regard to the matters in s 79(4) of the Act I am not satisfied that it would be just and equitable to make orders altering their interests in property. I propose on that basis to dismiss both the father and the mother’s applications for property settlement.
Finally I note that the father seeks the return of the mother’s engagement ring which he said is a family heirloom. The difficulty with the order the father seeks is that arguably that ring was a gift and is now property owned by the mother and in circumstances where I have found that I will not make orders adjusting the parties interests in property the mother would be entitled to retain the ring as part of her property. It is not possible on the evidence before me to determine who owns the ring in question and in all of the circumstances I do not intend to make the order sought by the father with respect to the ring. I would however say that whatever property each of the parties may have belonging to the other party in their possession should be returned to its owner. It is also arguable given the way the mother clearly feels about the father and his family that the mother would have no sentimental connection to the ring which, clearly has sentimental value to the father and she will in those circumstances be prepared to return it to the father.

I certify that the preceding one hundred and eighty six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 29 May 2015.

Associate:

Date: 29 May 2015

[2015] FamCA 480

29 May 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

*Assets*	*Name*	*Value*
C Property	Father	$650,000
R1 Property	Mother	$460,000
R2 Property	Mother	$530,000
A Property	Mother	$320,000
Cash at Bank	Father	$ 96,350
CBA Complete Access	Mother	$ 3,270
Westpac Rocket Deposit offset account	Mother	$ 69,305
VW motor vehicle	Father	$ 2,000
Peugeot motor vehicle	Mother	$ 5,000
Share Portfolio	Father	$ 19,872
MM Share Portfolio	Mother	$ 108,516
*Total*	$2,273,658

*Liability*	*Name*	*Amount*
NAB Home Loan	Father	$ 271,654
Westpac Investment Loans	Mother	$ 814,362
Westpac Share Loan	Mother	$ 100,000
Husband’s credit cards	Father	$ 22,803
Wife’s credit card	Mother	$ 18,476
*Total Liabilities*	$1,227,295
*TOTAL NET ASSETS*	*$1,046,363*

*SUPERANNUATION*
First State	Father	$ 155,518
QSuper	Mother	$ 108,768