Keirn & Moxey

FAMILY COURT OF AUSTRALIA

KEIRN & MOXY

[2017] FamCA 487

FAMILY LAW – PROPERTY – Application for an adjustment of property interests pursuant to s 79(2) – Where the parties had entered into an agreement pursuant to New Zealand law with respect to their assets – Where the wife has made a greater contribution to the asset pool by purchasing and maintaining a property in the UK – Where the parties also had a joint property in the UK – Where an asset by asset approach is deemed appropriate in considering the adjustment of property interests – Where the property held in the wife’s sole name in the UK is considered separate to the remainder of the asset pool – Where there is insufficient evidence to establish that the husband contributed funds to the marriage as asserted – Where $36,000 is set aside from the parties’ joint funds to establish a child care fund – Where the wife retains the UK property in her sole name and each party is entitled to 50 per cent of the remaining property pool.

FAMILY LAW – CHILDREN – SPEND TIME WITH – Where the father seeks equal shared time with the two children, aged seven and four – Where the mother opposes the husband’s application – Where the children have a loving and close relationship with both parents – Where the parents have agreed to equal shared parental responsibility and orders in relation to other aspects of the care of the children – Consideration of s 60CC factors – Orders made for the children to spend time with the father in a graduating arrangement concluding in six nights per fortnight and half of all school holidays – Orders made allowing the mother to travel overseas with the children.

Family Law Act 1975 (Cth) 79(2), 75(2)

Norbis & Norbis (1986) 161 CLR 513

APPLICANT:

Mr Keirn

RESPONDENT:

Ms Moxy

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

8029

2014

DATE DELIVERED:

12 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

23, 26, 27 and 28 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ladopoulos

SOLICITOR FOR THE APPLICANT:

Rockliffs Solicitors and IP Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Peter Barker Solicitors

Orders

PROPERTY
IT IS ORDERED

That the husband and the wife do all things required to effect the payment, from the funds held jointly by them in the National Australia Bank accounts #...31 and #...91; the O Bank (UK) accounts #...92 and #...84; the P Bank Joint Savings Account #...97; and the rental bond in the sum of $3,400, in the following order and priority, of the following sums:
1.1.The sum of $36,000 to an account to be held in their joint names in the National Australia Bank, to be used only for the payment of the fees required to pay for C’s care at day-care, pre-school or H School (or such other care as the parents jointly agree); after school care for B and, once C attends school, after school care for C and B until such fund is depleted. In the event that, when no fees are payable for after school care or day care, any amount remains in the account, that sum is to be divided equally between the husband and the wife.
1.2.The sum of $188,944 to the wife.
1.3.The balance to the husband.
That otherwise than as provided in these Orders, the husband is solely entitled to all assets in his possession at the date of these Orders and the wife is solely entitled to all assets in her possession at the date of these Orders.

PARENTING

BY CONSENT, IT IS ORDERED

The mother and father shall have equal shared parental responsibility for B born … 2010 and C born … 2013 (“the children”).
The children live with the mother.

School holidays

That the children spend time with the father during each school holiday period at the conclusion of Terms 2 and 3 in 2017 and Terms 1, 2 and 3 in 2018, as follows:
5.1.For 4 nights commencing at 8.00am on the first Saturday after commencement of the school holidays until 6.00pm on the following Wednesday;
5.2.For 3 nights commencing at 8.00am on the second Saturday after the commencement of school holidays until 6.00pm on the following Tuesday;
5.3.As otherwise agreed between the parties in writing.
That for the purposes of calculating the school holiday periods in accordance with the provisions of these Orders:
6.1.school holidays commence from the conclusion of school on the last day of school term referrable to the school day that children are to be in attendance and this shall be known as the "first day";
6.2.school holidays conclude at 5:00pm on the day prior to the first school day that children attend of each school term referable to the school B attends. This shall be known as the "last day"; and
6.3.unless otherwise agreed between the parties in writing, changeover halfway through a school holiday period shall occur at 5:00pm on the date in the middle of the first day and the last day, and in the event there are 2 middle days, then changeover shall occur at 12 noon on the first of the 2 middle days.

Special occasion time

That notwithstanding any Order herein, commencing from the date of the making of these Orders, when the children are not already spending time with the father and unless otherwise agreed between the parties in writing, the children spend time with the father as follows:
7.1.on the day prior to Father’s Day from 5:00pm until 5:00pm on Father's Day;
7.2.on the children’s birthdays in each year where the children are not already spending the night with the father on that day, then from 5:00pm until 7:00pm;
7.3.from 10:00am on Christmas Day until 12.00noon on Boxing Day in each year;
7.4.for Easter from 10:00am on Good Friday until 5:00pm on Easter Saturday in 2019 and each alternate year thereafter;
7.5.for Easter from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in 2018 and each alternate year thereafter;
7.6.at such other times as agreed between the parties in writing.
That notwithstanding any Order herein, commencing from the date of the making of these Orders, where the children are not already spending time with the mother unless otherwise agreed between the parties in writing, the children live with the mother as follows:
8.1.on the day prior to Mother’s Day from 5:00pm until 5:00pm on Mother's Day;
8.2.on the children’s birthdays in each year where the children are not already spending the night with the mother on that day, then from 5:00pm until 7:00pm;
8.3.from 10:00am on Christmas Eve until 10:00am on Christmas Day in each year;
8.4.for Easter from 10:00am on Good Friday until 5:00pm on Easter Saturday in 2018 and each alternate year thereafter;
8.5.for Easter from 5:00pm on Easter Saturday until 5:00pm on Easter Monday in 2019 and each alternate year thereafter;
8.6.at such other times as agreed between the parties in writing.

Changeover

That unless otherwise stated in these Orders or agreed between the mother and father from time to time, changeover shall occur at the children’s school/s where it is a school day on the day of changeover and otherwise, if not a school day then:
9.1.the father or his nominee shall collect the children from the mother’s residence at the commencement of his time with the children; and
9.2.the father or his nominee will return the children to the mother’s residence at the conclusion of his time with the children unless the mother resides more than 30 minutes driving away referrable to the quickest route calculated by Google Maps for 6pm on a Sunday.

Mother and father’s communication with the children
10.That each party not prevent or interfere with and do all things necessary to facilitate and encourage, the children to make telephone calls to and receive telephone calls from the mother or father whilst in the care of the other and where a mobile telephone is provided to the children by the other parent, as far as reasonably practical, ensure that this mobile telephone is available to the children whilst in the home and is kept charged.
11.That each party will do all things to facilitate the children having access to Skype or Facetime or other free electronic communication device and facilitate these services being used by the children to contact the other parent when they are in their care not less than each second day.

Information

12.Each parent shall notify the other, as soon as possible, and in any event within 4 hours, of any serious injury or illness suffered by the children whilst with that party.
13.Each party shall notify the other, not more than 24 hours after any change to their address and/or landline and/or mobile telephone numbers and/or email address.
14.Each party shall notify the other party of any contact details for Facetime, or Skype, or Viber within 7 days from the date of the making of these Orders and keep the other party notified of any change not more than 24 hours after any change occurs.
15.The mother and father authorise any day care centre or school the children may attend to provide to the parents copies of reports, newsletters and announcements of day care / school activities, or otherwise pertaining to the education of the children or if none have been made available in writing then the parent receiving such information shall provide written particulars which include by email, such reports and/or activities to the other parent within 3 days of such documents or particulars being received by them, and both parents shall authorise staff members at any day care and school the children may attend to discuss the children’s progress with the other parent.
16.The parties shall keep each other fully informed of all details of any medical or dental treatment administered to the children, and shall authorise and direct any persons or entity treating the children to discuss with the other parent matters relevant to the children’s health and welfare.

Airport Watch List

17.The Federal Police are requested to remove forthwith the names of the children: B born ... 2010; and C born … 2013, from the Airport Watch List and PACE Alert System and the mother be responsible for serving a copy of the Orders on the Australian Federal Police.

Passport

18.That the mother retain the UK and New Zealand passports for B except at times of travel and at such other times as necessary to make travel bookings for travel under these Orders, and the mother provide to the father B’s passport not less than 4 weeks prior to the scheduled date of departure for any travel overseas.
19.That the father retain the UK and New Zealand passports for C except at times of travel and at such other times as necessary to make travel bookings for travel under these Orders, and the father provide to the mother C’s passport not less than 4 weeks prior to the scheduled date of departure for any travel overseas.

Restraint

20.That each party is hereby on a without admissions basis restrained from:
20.1.making any negative or denigrating comments about the other parent or the other parent's family members in the presence or hearing of the children;
20.2.allowing any other person to make any negative or denigrating comments in relation to the other parent or the other parent's family members in the presence or hearing of the children (as far as they are able to).

IT IS ORDERED

That in addition to the consent Minutes of Order signed by the parties and made by the Family Court of Australia on 26 June 2017 (and contained above at Orders 3 to 20 of these Orders), the Court makes the following Orders:

School Terms

21.That for the period from the date of the making of these Orders until the conclusion of Term 4 in 2017 the children spend time with the father on a two‑week rotation during school term time with week 1 to commence on the first Wednesday after the commencement of each school term, as follows:
21.1.In week 1:
21.1.1.from the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day); and
21.1.2.from 9:00am on Saturday until 8:00am on the following Monday.

21.2.In week 2:
21.2.1.from the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

22.That for the period from the commencement of Term 1 in 2018 until the conclusion of Term 4 in 2019, the children spend time with the father on a two-week rotation during school term time with week 1 to commence on the first Wednesday of each school term, as follows:
22.1.In week 1:
22.1.1.From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day); and
22.1.2.From the conclusion of school or day care on Friday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until 8.00am on the following Monday (or 8:00am if the children or either of them is not in attendance at school or day care on that day.

22.2.In week 2:
22.2.1.From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

23.That for the period from the commencement of Term 1 2020 and thereafter, the children spend time with the father on a two-week rotation during school term time, with week 1 to commence on the first Wednesday after each school term commences, as follows:
23.1.In week 1:
23.1.1.From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on the following Monday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

23.2.In week 2:
23.2.1.From the conclusion of school or day care on Wednesday (or 5:00pm if the children or either of them is not in attendance at school or day care on that day) until the commencement of school or day care on Thursday (or 8:00am if the children or either of them is not in attendance at school or day care on that day).

School holidays

24.That in the short school holidays at the conclusion of Terms 1, 2 and 3 from 2019 and thereafter:
24.1.That the children spend time with the father at the conclusion of Terms 1, 2 and 3 in 2019 and at the conclusion of Terms 1, 2 and 3 each year thereafter by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time with the father as follows:
24.1.1.For one half of each such school holiday being the first half in 2019 and each alternate year thereafter, and the second half in 2020 and every second year thereafter.

25.That in the Christmas school holidays commencing in December 2017 and December 2018 :
25.1.That the children spend time with the father during the school holiday periods commencing in December 2017 and December 2018 by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time as follows:
25.1.1.Commencing at the conclusion of Term 4 on a two-week rotation during the school holiday period with Week 1 to commence on the first Saturday after the commencement of the school holidays being:
25.1.1.1.For 4 nights commencing at 8.00 am on the first Saturday after the commencement of school holidays until 6.00 pm on the following Wednesday; and
25.1.1.2.For 3 nights commencing at 8.00 am on the second Saturday after the commencement of school holidays until 6.00 pm on the following Tuesday.

26.That notwithstanding anything in Order 25, the mother shall be permitted to travel with the children to Europe for three weeks in January 2019, providing that the children return to Australia not less than five days before the first day of the school term in 2019 and provided that she gives notice to the father in accordance with the provisions of Order 29.
27.That in the Christmas school holidays commencing in December 2019:
27.1.That the children live with the father during the school holiday period commencing in December 2019 by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time as follows:
27.1.1.From the conclusion of school on the last day the children attend school in Term 4 until noon on the second Saturday of the holidays; and
27.1.2.From noon on the third Saturday of the holidays until noon on the fifth Saturday.

That the children live with the father during the 2020 Christmas school holiday period and every Christmas school holiday period thereafter by agreement between the parties in writing and if no agreement is reached 28 days prior to the school holiday period commencing then the children spend time with the father as follows:
28.1For one half of each school holiday being:
28.1.1the first half in the school holidays commencing in December 2020 and each alternate year thereafter; and
28.1.2the second half in the school holidays commencing in December 2021and each alternate year thereafter.
That notwithstanding any Order herein, commencing from C attaining the age of 5 (from 11 June 2018) the mother and father are at liberty to take the children outside of the Commonwealth of Australia for a period of up to one (1) week on one occasion in each year during a school holiday period, at times agreed between the parties in writing and provided that they give the other party at least 6 weeks’ written notice of the intended travel dates and comply with the following:
29.1.provide the other parent not less than 28 days prior to the date of departure, a detailed itinerary including the contact details for the children whilst overseas;
29.2.not less than 7 days prior provide a detailed itinerary of such overseas travel including copies of all airline tickets (or electronic ticket details if available) and accommodation address and contact details.
29.3.during the overseas holiday, the parent they are with ensures the children telephones the other parent on at least two occasions each week.
That, subject to Order 26, in the school holidays commencing in December 2019, each parent is permitted to travel with the children outside Australia for a period of two consecutive weeks and from the school holidays commencing in December 2020, each parent shall be permitted to travel with the children outside Australia for any period that the children live with that parent pursuant to these Orders.

That both parties shall be restrained from discussing any of the allegations in these proceedings in the presence or hearing of the children.
That the parties shall keep each other informed of any extra-curricular and/or sporting activities in which the children are engaged in and make all reasonable efforts to ensure the attendance of the children at those activities whilst the children are in the care of either party pursuant to these Orders.
The mother shall be restrained from enrolling the children in any other school either in Australia or overseas without the father’s written consent or an Order of this Court.
That the mother pay to Legal Aid NSW the sum of $6,899.75 within one month of the date of these Orders.
That the father pay to Legal Aid NSW the sum of $6,899.75 within one month of the date of these Orders.
That each of the mother and the father provide written confirmation to the other no later than 7 days after compliance with the preceding orders that they have made their respective payments to Legal Aid NSW.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8029 of 2014

Mr Keirn

Applicant

And

Ms Moxy

Respondent

REASONS FOR JUDGMENT

Mr Keirn (“the husband” or “the father”) and Ms Moxy (“the wife” or “the mother”) married in the UK in 2006. The husband was born in New Zealand and the wife was born in Country E, Europe. They lived together in the United Kingdom (“UK”).
The husband asserts that they commenced to live in a de-facto relationship in March 2005 and, while the wife does not dispute that their relationship commenced at that time, she asserts that they lived variously as flatmates and in separate countries before they married. Neither party asserts that any significant contributions were made in that time and, for the purpose of these proceedings, I propose to disregard that period and to consider the contributions each of them made after they married.
They have two children, B born in 2010 (“B”) and C born in 2013 (“C”), collectively referred to herein as “the children”.
The proceedings before the Court relate to the parenting of the children and to property settlement.
The wife is a professional having qualified in her field in 1999. The husband is also a professional but now works as a technician.
In about June or July of 2006, at the husband’s instigation, they entered into a “Contracting Out Agreement” pursuant to New Zealand law (“the Agreement”). Pursuant to the Agreement, each retained the benefit of the property he or she brought into the marriage and no contribution made by either to the property of the other created any legal or beneficial interest in that property. In general terms, future acquired property was to be held in tenancy in common in proportion to the direct contribution to its purchase price. In the event of separation, jointly owned property was to be divided in accordance with the respective contributions to its acquisition. Schedules of their respective property interests were attached to the Agreement. The document was prepared by the husband’s solicitor.
At the time of the marriage, the wife owned the leasehold of a flat in J Street in City G (“J Street”) which she had purchased in 2000 for £171,000 subject to a mortgage of £85,000. She had savings of £9,500 and about £4,000 in a business account. The husband had about NZ $3,000 and a car. The husband asserts that he also had superannuation of NZ $10,000; however, no superannuation is recorded in the asset schedule to the Agreement and the husband has not established that he had any superannuation at the time.
The wife asserts that she supported the husband financially until he obtained employment in about January 2007. The husband asserts that he was employed as a contractor at a salary of £45,000 from October 2006.
In 2007 the wife refinanced the mortgage over J Street. She obtained a valuation for that purpose in September 2007, valuing the property at £345,000. The mortgage was increased to £160,000.
Also in September 2007, the wife purchased a second flat in K Street, City G (“K Street”) for £360,000, using the money raised by the extension of the J Street mortgage, a mortgage over K Street of £270,000 and about £10,000 from savings. She asserts that the husband made no contribution. They moved into K Street.
The wife arranged and paid for substantial renovations to be carried out to K Street at a cost, she asserted, of about £42,264 which she paid from her own funds. The husband says that the cost of the renovations was £22,000 and that he contributed about £5,000.
The wife asserts that she paid all of the outgoings on both J Street and K Street and managed the tenancy of J Street. The husband asserts that he contributed equally.
The wife asserts that the husband made no significant contribution to their joint living expenses until they opened a joint account in February 2010. The husband asserts that he contributed to half of all their expenses.
In April 2010, the wife received a redundancy payment of £60,000.
After B was born in 2010, the wife worked on a contract basis between 31 and 36 hours per week.
In May 2011, the wife sold J Street for £370,000 and received a net sum of about £193,000.
In about July 2011, the parties moved to rental accommodation and K Street was tenanted. The wife has met the shortfall between the rent and the mortgage payments of about £45 per month until the present time.
On 13 February 2012 they purchased, as tenants in common in equal shares, a property at L Street, City G (“L Street”) for £605,000. The wife contributed £150,000 from the sale of J Street. The husband contributed £100,000 from savings and a gift of £50,000 from his father. The balance was borrowed from the M Building Society.
Renovations were carried out to L Street. The wife asserts that she paid the entire cost of those renovations, in the sum of £26,189, from her own funds. The husband asserts that the cost was £20,000 and he paid £6,775.
A second renovation was carried out in 2013 at a cost of £53,467. Of that amount, it is agreed that the wife paid £13,467 from her own account and the balance was paid my way of borrowings secured by mortgage.
C was born in 2013. The wife did not work for 12 months.
In September 2014, L Street was sold for £955,000. Net proceeds of £579,059 were invested in a joint account with O Bank UK.
In October 2014, the family relocated to Australia and lived in rental accommodation. They both secured employment. About $623,000 from the sale of L Street was invested in a joint account with the National Australia Bank (“NAB”) in Australia and the balance was left in the UK.
The wife commenced employment in Australia on 18 November 2014. Although the evidence about her employment is a little unclear, I infer that she has been employed since that time.
The husband and wife separated on 21 November 2014 but remained living under the same roof until January 2015.
In December 2014, the husband commenced employment.
On 11 December 2014, the wife removed $623,000 from the NAB joint account and placed those funds in an account with NAB in her own name. On 16 December 2014 she also removed a further sum of £20,000 from the joint account in the UK and placed those funds in an account in her own name in the UK.
On 19 December 2014 the husband commenced these proceedings and the children were placed on the Airport Watch List. Initially, the wife responded to the husband’s application by seeking an interim order that she be permitted to return to the United Kingdom.
In early January 2015, the husband moved to other premises. The children remained living primarily with the wife.
On 16 April 2015, after a hearing, Orders were made which provided that the children live with the husband each Wednesday night and each alternate weekend from Saturday morning until Sunday evening.
In June 2015, the husband’s employment contract ended. He did not work again until September 2015.
On 14 August 2015, Orders were made in contested proceedings to the effect that each of the parties received $200,000 by way of partial property settlement from the funds removed by the wife from the joint NAB account and the balance of $223,000 was to be placed in an interest bearing deposit.
On 14 August 2015 Orders were also made dismissing the wife’s application for interim relocation.
In September 2015, the husband commenced a one year contract of employment.
In September 2016, the husband’s employment contract ended. He elected not to seek work but to concentrate on preparation for the litigation until he had filed his trial affidavit in December 2016 when he started to look for work.
On 11 January 2017, Orders were made by consent for the children to live with the husband each Wednesday from 5.00 pm until 8.30 am on Thursday and each alternate weekend from 9.00 am on Saturday until 8.00 am on Monday. The Orders also provided for the children to live with the husband for periods of up to three days in the school holidays.
On 12 January 2017, Orders were made for a further partial property settlement in favour of the wife for the payment of legal fees up to $90,000.
On 29 May 2017, the husband commenced his present employment.
The wife no longer seeks to relocate from Australia, having changed her position only days before the commencement of the hearing.

PROPERTY

As can be seen from the narrative at the commencement of these Reasons, the issues to be determined are:
·    The effect of the “Contracting Out Agreement” entered into pursuant to New Zealand law.
·    Whether the husband contributed to the parties’ living costs before February 2010.
·    What income was contributed by the husband during cohabitation.
·    Whether the husband made any contribution to the mortgage payments for J Street and K Street.
·     The cost of the renovations to K Street.
·    The cost of the first renovations to L Street and the source of the funds.

The effect of the “Contracting Out Agreement” entered into pursuant to New Zealand law

It was not the position of either party that the Agreement was binding in Australia.
On behalf of the husband it was submitted that the Agreement should be given no weight and had no relevance because, he said, it had been ignored by both parties. By way of illustration, counsel for the husband referred to the wife having removed $623,000 and £20,000, being funds generated from the sale of L Street, from the joint accounts.
On behalf of the wife it was submitted that she had acted in accordance with the terms of the Agreement and that, in accordance with the Agreement, she had solely paid all of the outgoings on the properties at J Street and later K Street.
The wife as a consequence submitted that an asset by asset approach was justified, treating K Street as an asset separated from the rest of the pool.
Did the wife act in accordance with the Agreement?
Dealing firstly with the contention on behalf of the husband that the wife’s removal of funds from the joint accounts demonstrated that she had abandoned the Agreement, I do not accept that submission. On 17 December 2014, the wife wrote to the husband, stating:
As discussed, I have safeguarded the money to protect my and my children’s future until we sit down with the mediators. The money will be apportioned and split as per the agreement. I still urge you to sit down with the mediators and discuss this as soon as possible. You, however, refuse to talk. I would suggest as soon as next week and the money can be moved as soon as an agreement has been reached.
The terms of the wife’s communication demonstrates that she considered herself to be bound by the terms of the Agreement and intended to divide the proceeds of sale of the jointly owned property at L Street in accordance with its terms.
The wife owned J Street at the time the Agreement was signed. As I have set out later in these Reasons, I accept her evidence that, after the marriage, she continued to pay the outgoings on J Street without contribution from the husband.
K Street was purchased in September 2007. I accept her evidence that she paid the whole of the purchase price, principally by re-financing the mortgage over J Street. As is discussed later in these Reasons, I accept that she paid for the renovations to K Street.
I accept that she did so because, as she deposed, she considered herself bound by the Agreement.
Since separation, the wife has continued to pay the outgoings on K Street, in accordance with the Agreement.
The contrast between the way in which the parties paid for L Street and its ongoing expenses and the way in which J Street and K Street were paid for supports the wife’s contention that, in relation to the properties solely in her name, she acted in accordance with the Agreement.

Whether the husband contributed to the parties’ living costs before February 2010

The parties agreed that they first established a joint bank account in February 2010.
The wife asserted that the husband was not employed until January 2007 and that from the time of the marriage until he had employment, she provided him with spending money and paid his expenses.
The husband’s assertions as to his income are dealt with later in these Reasons. It is sufficient to say that the husband has not provided any evidence of employment before January 2007. For the reasons which are later canvassed, I regard his evidence about his income as unreliable where it is not supported by independent, documentary evidence.
I am unable to find that the husband contributed any income before January 2007.
The wife deposed that after the husband found employment, they shared the costs of food, supplies and entertainment roughly equally and the husband used his income for his own expenses. She deposed that in 2008, she asked him to pay the equivalent of rent and suggested £500 per month. In cross-examination, she said that the husband paid her £1,500 on one occasion and £500 on another as well as some other small amounts of cash.
The husband in cross-examination said that he had always paid half of all of their living expenses, in cash, drawn from his bank account and given to the wife. In cross-examination, the husband asserted that he had paid to the wife “large amounts of cash” in sums of £800 or £1,000 at a time. Those funds, he said, had been withdrawn from his bank account. Bank statements were called for but no document was produced to substantiate the husband’s assertion. In fact, the husband produced no bank statements to substantiate his claims about his income earned in the UK.
I am unable to find that the husband paid half of the parties’ living expenses before February 2010 when it is agreed that they started a joint account into which they each paid a sum to cover their living expenses.

What income was contributed by the husband during cohabitation

The wife disputed the husband’s evidence about his income after cohabitation.
The husband deposed that his income was as follows:
From October 2006 to February 2007  £45,000 per annum
From February 2007 to June 2008  £55,500 per annum
From June 2008 until July 2009  £63,600 per annum
(He did not work between July 2009 and October 2009)
From October 2009 until October 2010  £92,000 per annum
From October 2010 until April 2011  £63,250 in total
From May 2011 until December 2011   £89,125 in total
From December 2011 until September 2014                   £110,000 per annum
He annexed to his affidavit his tax returns for the years ended 2010 to 2015 inclusive. It was agreed that the financial year in the United Kingdom ends on 5 April in each year.
The tax returns disclose the husband declared his income as follows:
Year ended 5 April 2010  £50,401
Year ended 5 April 2011  £52,381
Year ended 5 April 2012  £54,715
(plus a declared capital gain from the sale of “Unquoted shares” of £40,436)
Year ended 5 April 2013  £98,953
Year ended 5 April 2014  £106,023
Year ended 5 April 2015  £55,018
There can be no direct comparison of the husband’s assertions and the evidence of the income disclosed in his tax returns because the periods do not coincide.
By way of example, using the amount disclosed in the 2010 tax return of £50,401, the husband asserted that he earned £63,600 per annum between April 2009 and July 2009, an average of £5,300 per month for a period of four months, or £21,200. Between October 2009 and March 2010 he asserted that he was earning £92,000 per annum or £7,667 per month for a period of six months or £46,000. According to him, his income for that financial year was £67,200. His declared income was £50,401.
In the 2011 tax return, the husband disclosed an income of £52,381. He asserted that between April 2010 and October 2010, his annual salary was £92,000, an average of £7,667 per month for seven months or £53,669. From October 2010 to April 2011 he asserted that he earned £63,250 in total. Thus the husband asserted income in the year ended 5 April 2011 of £116,919, but his tax return disclosed an income of less than half that sum.
I do not accept that the husband’s earnings were as he deposed. I accept that his tax returns better reflect his actual earnings in the years for which returns were provided.
In relation to the husband’s assertions as to his income between October 2006 and March 2010, he has not provided any document to substantiate his assertions and has not established that which he asserts. I do not accept that the husband contributed income in the amount he asserts.

Whether the husband made any contribution to the mortgage payments for J Street and K Street

It is not disputed that the wife made all of the mortgage payments for both properties from a bank account in her own name.
It was her evidence that, apart from the sums totalling £2,000 to which reference is made when considering the husband’s contribution to expenses at paragraph 57 of these Reasons, all of the money deposited into that account came from her earnings.
There is no doubt that the wife was paying the mortgage payments on J Street when the parties commenced their relationship and when they married.
I am unable to find that the husband had any funds to contribute to the mortgage payment before January 2007.
The husband deposed:
From the time I secured employment in about October 2006 until 2010, [the wife] and I had an arrangement whereby we contributed equally towards our fixed expenses such as mortgage payments towards the [J Street] property and then subsequently in relation to the [K Street] property. Each month I gave [the wife] an amount equivalent to approximately half our fixed expenses. She used those monies to attend to the payment of our fixed expenses. I usually provided [the wife] my share of the living expenses in cash each month and on other occasions it was done by way of electronic transfers into her personal bank account.
The husband produced no bank statement or other document to substantiate that assertion.
The Agreement had been signed in June or July 2006. The purpose of the Agreement was to keep separate the assets of each of the parties. The Agreement specifically provided that J Street was the wife’s separate property and that no contribution made by the husband towards that property would create an interest in it. Any increase in its value was her property alone.
It is not likely that, having gone to the trouble of having the Agreement prepared and signed, the husband immediately ignored it.
It is more likely, as the wife deposed, that the terms of the Agreement in relation to J Street were observed and that she paid all of the outgoings, including but not limited to the mortgage payments.

In relation to K Street, it is not in dispute that the whole of the purchase money was contributed by the wife. She deposed that, at the time of the purchase, the husband told her that he had saved £5,000 and that he wanted to make a contribution of that amount. She deposed that there was a conversation where she told the husband that £5,000 would not even cover the stamp duty and he suggested that they buy as tenants in common (again in accordance with the terms of the Agreement) with his share being limited to the proportion of the purchase price provided by him. She deposed that she declined that offer and suggested that they would buy a property together when he had saved a significant deposit.
The husband was cross-examined in relation to those conversations. He did not recall them. He did not deny that they took place as the wife deposed.
The husband is unable to substantiate his claim that he contributed to the mortgage payments relating to K Street. The property was purchased in September 2007, about 15 months after the Agreement was executed. The most likely scenario is that the purchase of K Street was conducted in accordance with the Agreement by the wife and that she paid all of the outgoings including the mortgage payments.
That scenario is made more likely by the fact that, consistently with the Agreement, when the husband had accumulated a significant sum, the parties each contributed the same amount to the purchase of L Street and each contributed equally, while they were both working, to the mortgage.

The cost of the renovations to K Street

The wife deposed that she renovated K Street at a cost of £42,264 using savings.
The husband disputed that evidence. He said that the cost of the renovations was £22,000 which exceeded the wife’s budget of £15,000 to £18,000. In his oral evidence, but not in his affidavit, he said that he contributed £5,000 or £6,000 towards the renovations. He variously said that the £5,000 (or £6,000) was either a loan or a gift.
The husband was unable to produce any bank statement or other document to substantiate his claim that he contributed to the cost of the renovations.
In cross-examination, the husband said that he recalled seeing a spreadsheet which detailed the costs of the renovations. The spreadsheet was called for but not produced. It is unlikely that, if the husband contributed to the costs of the renovations, he did not mention that fact in his affidavit.
It is likely that, in accordance with the Agreement, the wife paid for the renovations.

The cost of the first renovations to L Street and the source of the funds

The first renovations to L Street were commenced after the purchase in February 2012. The work was done largely by the wife’s brother-in-law. The wife deposed that the cost was £26,189 and provided, without objection, a spreadsheet she had created at the time showing money paid to the builder. The wife deposed that all of the money for the renovation was drawn from her bank account.
The husband deposed that the cost of the renovations was £20,000 and that he contributed £6,775 from his own funds. In cross-examination he said that he recalled seeing a spreadsheet detailing those amounts. The spreadsheet was called for but not produced. In cross-examination, he said that the money had come from his “emergency fund” and from his salary. He was unable to provide any bank statement or other document to substantiate his assertion either as to the cost or the contribution asserted to have been made by him.
The husband’s evidence in relation to financial matters was not reliable. I have already considered the discrepancies between his declared income for tax returns and his assertions as to his earnings. There were numerous occasions in his evidence where it was clear that his assertions were based on his “best recollection”, rather than on any document. He deposed to having £110,000 in savings at the time of the purchase of L Street and a gift from his father of £40,000. In his oral evidence, he said that was a “typo” and that in fact he had savings of £100,000 and a gift from his father of £50,000 as the wife alleged. Another example is his recollection, in his affidavit, that he had superannuation of NZ $10,000, where that asset is not recorded in the Schedule to the Agreement. Yet another example is the husband’s assertion that, by the time of the wife’s first maternity leave when B was born in 2010, his contributions towards their living expenses increased to more than half “as my income had also increased substantially by this time”. This asserted increase in his income was not reflected in his tax returns. The husband’s tax returns, insofar as they were provided, did not substantiate his assertions as to his income.
The wife’s evidence in relation to financial matters was more accurate and supported by some documents including bank statements. Where they disagree, her evidence is to be preferred.
However, in relation to L Street, it is clear that this was a joint venture and that the husband and wife intended to contribute equally according to their incomes. For example, the wife gave evidence that, when she was on maternity leave and unable to pay her share of the mortgage, the husband paid the whole amount. When she was working on contract and earning less than he was, she contributed proportionally less to the mortgage.
However they arranged their finances after the purchase of L Street, I accept that their contributions to renovations and outgoings relating to that property were equal.

THE BALANCE SHEET

At the commencement of the hearing, the parties tendered a joint balance sheet. There was very little in issue in their respective contentions and they can be dealt with shortly.
They disagreed on the value of the contents of the wife’s home. Since there was no valuation evidence, I propose to accept the figure to which the wife deposed. The contents are included in the balance sheet as her asset as there is no dispute that they will remain in her possession.
The more significant point of difference was the treatment of the amounts received by each of the parties by way of interim property settlement pursuant to orders. The husband had received $200,000. The wife had received $306,467.
On behalf of the husband it was submitted that the difference between the amount received by each, and the amount each paid in legal fees, should be added back. On behalf of the wife it was submitted that both the amounts received by way of interim property settlement and the legal fees should be left out of the balance sheet.
There is merit in both approaches. Costs letters were tendered for each party. The wife’s solicitors disclosed that her total legal costs were $244,957 plus costs paid directly to Dr N of $8,475, a total of $253,432. The husband’s estimated total legal costs were $221,634 of which he had paid $132,102.
The wife in her Financial Statement deposed to an income of $2,414 per week and expenses of $3,567. Her most significant expense was the cost of child care which, at the time of the trial, was $635 per week, including the costs of C’s day care and after school care for B. At the time of the trial, the husband was paying child support of $229 per month or $53 per week. It can readily be seen that the wife was bearing a disproportionate burden of the costs of child care. On the husband’s evidence, he had made no contribution to the costs of child care since August 2016. The shortfall between the wife’s income and her expenses, the reasonableness of which were not challenged, was $1,153 per week.
The husband had also spent a portion of the funds he received on living expenses.
Insofar as each of the parties has retained some of the funds received by way of interim property settlement, those funds are brought into account in the balance sheet.
I do not consider that it is appropriate to add back the funds. Insofar as the wife received a greater amount, she had greater expenses, particularly for the children. They were each entitled to spend their own money on legal costs.
The husband is the beneficiary of a discretionary trust established by his father. Apart from the gift of £50,000 used for the purchase of L Street, there was no evidence that he had received any benefit from the trust and it was not asserted that his interest as a beneficiary should be given any value.
The exchange rate from pounds to Australian dollars, where relevant, was agreed.
The assets and liabilities of the parties are:
ASSETS

1.     W K Street, City G (£515,000) $ 861,780

2.     W NAB #...50 as at 6 June 2017 $ 539.86

3.     W NAB #...42 as at 6 June 2017 $ 622.84

4.     W ISA Savings Account (UK) #...36 as at 4 Nov 2015 (£30,651) $ 51,290

5.     W Q Bank Account (UK) #...52 as at 6 June 2017 (£18,008.47) $ 30,134

6.     H O Bank Account #...12 as at 15 June 2017 (£310.32) $ 519.27

7.     H O Bank Account #...36 as at 15 June 2017 (£1495.34) $ 2,502.24

8.     H O Bank Account #...39 as at 15 June 2017 $ 4,685.41

9.     H O Bank Account #...18 as at 15 June 2017 $ 6,806.58

10.   H O Bank (UK) Account #...40 as at 15 June 2017 (£ 0.96) $ 1.60

11.   J NAB Account #...31 as at 6 June 2017 $ 1,384.84

12.   J NAB Account #...91 as at 6 June 2017 $ 1.62

13.   J O Bank (UK) Account #...92 (£190,194) as at 15 June 2017 $ 318,263

14.   J P Bank Joint Savings Account (UK) #...97 (£1158) $ 1,937.75

15.   J O Bank Account #...84 (£243.17) as at 15 June 2017 $ 406.91

16.   J Westpac Bank Account #...25 $ 144,214

17.   J Rental Bond $ 3,400

18.   H Rental Bond $ 2,840

19.   W Furniture at the former matrimonial home $ 2,000

20.   H Furniture and personal effects $ 6,000

21.   H Motor Vehicle $ 3,500

22.   H Equity Share Scheme $ 6,000

Total $1,448,830

LIABILITIES

23.   W Mortgage – repayment of principle and interest for Flat 7, 10 K Street (£206,810.12) $ 346,067

24.   H Income tax liability in UK $ 6,513

25.   H O Bank Credit Card (Master Card) $239.35

26.   H Credit Card (UK) (£19.83) $ 33.18

27.   W Outstanding School Fees $ 2,796.85

Total $355,649

SUPERANNUATION

Member Name of Fund Type of Interest Wife / de facto partner’s value

28.   W R Group Superannuation (£49,311.68) Defined Benefit $ 82,516

29.   W S Group Superannuation Accumulation $17,119

30.   H AMP Accumulation $ 22,175

31.   H T Group Pension (£62,167) $ 104,027

32.   H U Group Pension          (£24,406.95) $ 40,841

Total $266,678

Thus the parties have gross assets (excluding superannuation) of $1,448,830 and liabilities of $355,649, leaving then with a net asset pool of $1,093,181.
Of this pool, the husband has assets of $32,855 and liabilities of $6,786, leaving him in possession of net assets of $26,069.
There is a total of $469,608 in joint accounts.
The wife has in her possession assets totalling $944,367 and liabilities of $348,864, leaving her in possession of net assets of $595,503.

SECTION 79(2)

The wife is the legal owner of K Street and legally responsible for the mortgage. The husband has modest assets. There is a significant jointly owned asset in the money invested from the sale of the jointly owned property at L Street. Each of the parties asks the Court to divide the joint asset. Accordingly, it is just and equitable that there should be a distribution between them.

ASSET BY ASSET OR SINGLE POOL APPROACH

On behalf of the wife, counsel submitted that in the particular circumstances of this case, an asset by asset approach was appropriate, treating the wife’s K Street property as a distinct asset from the balance of the pool. That approach was opposed by counsel for the husband who contended for a global approach.
That an asset by asset approach is permissible was made clear by the plurality of the High Court in Norbis & Norbis (1986) 161 CLR 513 where their Honours said, at 532:
If, as we understand to be the case, the so-called global approach requires no more than that the whole of the assets of the parties be identified and, so far as possible, assessed in value before any alteration of property interests can take place under s. 79, then it is a requirement which, as a general rule, is imported by the section itself. It would not ordinarily be possible to have confidence in the justice and equity of a division of property based upon anything other than the whole of the assets available. Nor would it ordinarily be possible to assess the contributions made directly or indirectly by or on behalf of the parties to the marriage for the acquisition, conservation or improvement of the property or otherwise in relation to the property as required by s. 79(4)(a) and (b) if the whole of the property were not identified and valued. Moreover, if the matters referred to in s.75(2) were relevant and had to be taken into account under s.79(4)(d) (now s.79(4)(e)), they could only be considered against the whole financial background of the parties. So much is clear from the terms of the legislation itself and it has been so interpreted by the decisions of the Family Court.
26. On the other hand, if the suggested approach goes further and precludes individual assets being treated differently in the division of property by the application of different proportions, then it is, in our view, misconceived. Of course, it may be possible and appropriate in many cases to determine the proportions in which the property is to be divided without treating any of the assets separately, but where the interests of the parties differ, a different approach will be open. Section 79, in particular s.79(4), refers to "any property of the parties to a marriage or either of them" and that expression is sufficient to encompass both the entirety of their property and their individual interests. If the parties' interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case. It is true, as Nygh J. pointed out, that where this is done, at the end of the exercise a calculation of the overall proportions in which the total property has been divided may serve as a useful check to ensure that the result is not disproportionate as a whole.
I consider that, because of the existence of the Agreement, and the wife’s reliance upon it in acting in accordance with its terms, this is an appropriate case for an asset by asset approach, dealing with K Street as an asset separately from the rest of the pool. Accordingly I propose to consider the appropriate division of K Street discretely.

K STREET

As has been explained earlier in these Reasons, I accept that the wife made the sole financial contributions to the acquisition, improvement and conservation of K Street.
The renovations to K Street took place over a period of about three months. During that time, the wife worked from time to time in Country V. The husband variously gave evidence that she was in Country V for about four weeks, or every other week. He conceded that she returned home every Friday evening on the weeks she was away. Taken at its highest, his evidence, as deposed in his trial affidavit, is “At the time of the [K Street] renovations … I did day to day chores and ran errands for [the wife]. I obtained quotes, I purchased plumbing supplies, tiles, paint and other building materials.”
In cross-examination, he said that because the wife did not drive, he drove her to visit suppliers to select material and therefore they “did it together”. He conceded that the builders left notes and invoices for the wife and she responded to their notes and left money to pay the invoices.
He did not assert that he did any physical work on the property.
The husband has not established that his contribution to K Street was any more than driving the wife and being present when she selected materials, and passing on notes and invoices and payments.
I do not consider that contribution requires any adjustment in his favour.
The wife made all of the contributions to K Street.
The net value of K Street is $515,713.

THE BALANCE OF THE ASSET POOL

The balance of the pool consists primarily of the remaining proceeds of the sale of L Street and the savings accumulated by each of the parties during the marriage, a pool of some $577,468.

CONTRIBUTIONS

Because I have considered K Street separately, the wife’s initial contributions, primarily of her equity in J Street and later subsumed in K Street, cannot be considered again.
The husband had savings of NZ$3,000 and a car which I assume he sold. His initial contribution is of no consequence.
After the marriage, they both worked as they were able to. I do not accept that the husband earned substantially more than the wife. He has not demonstrated from his tax returns that he did so. However, they each worked. There may have been times when the wife’s income was greater than that of the husband. There were times when she had no income because she was caring for one or both of the children and times when she was unable to work other than on a contract basis to accommodate her childcare responsibilities.
Each contributed their full efforts to the joint enterprise of their family and L Street.
There was a disparity on contributions after separation in relation to the children. The wife was their primary carer although the husband consistently sought more time with them and the wife resisted. The wife made a greater contribution to the children’s childcare costs, and the husband from August 2016, made a very minimal contribution by way of Child Support of $53 per week, but that has already been taken into account in considering whether to add back the amounts received by interim property settlement.
I consider that their contributions to this asset pool were equal.

SECTION 75(2)

The husband contends that there should be no adjustment if a global approach were taken to the division. However, I accept that, because of the asset by asset approach which has been adopted here, the considerations are different. The wife, who contended for the asset by asset approach, submitted that there should be an adjustment in her favour.
In the course of the submissions, the parties reached an agreement to set aside a fund of $36,000 to pay the costs of C’s day care, whether at a H School or his present day care facility, and B’s after school care. Once C starts school, presumably in 2019, the high cost of day care will no longer be a factor. B’s after school care currently costs $15 per day so that cost will not be so significant once both children are at school. Thus the cost of child care is no longer a factor to be considered.
On behalf of the husband the factors to be considered are:
·    The wife has the benefit of her investment in K Street;
·    They will each have significant responsibility to house and care for the children;
·    Insofar as their incomes differ, he will pay Child Support as assessed.
On behalf of the wife, the factors to be considered are:
·    The husband has a superior income earning capacity. He currently has a contract which provides a salary package of $170,000, including superannuation of $14,749 and a base salary of $155,251 per annum;
·    The wife earns $125,528 per annum;
·    The husband’s superannuation exceeds that of the wife. He has $167,043. She has $99,635.

Taking all of those matters into consideration, I do not propose to make any adjustment.

CONCLUSION

The sum of $36,000 agreed to be set aside for child care will be paid from the joint funds leaving a balance remaining of $433,608.
The wife will retain K Street and be responsible for the outgoings. She will receive the equivalent of 50 per cent of the remaining asset pool, or $270,734. She already has net assets (excluding K Street) of $81,790 and will receive a further $188,944.
The balance of the jointly owned funds will be paid to the husband, leaving him with $244,664, in addition to the net assets of $26,070 already in his possession and his contribution of $18,000 to the child care fund.
It is instructive to consider whether the result would have been different if a global approach had been taken.
The net asset pool, including K Street, is $1,093,181. The husband, in his trial affidavit, conceded that the wife, at the time the Agreement was executed, had net assets of £144,814. He deposed that this was the equivalent of $353,118.
The wife’s initial contribution was quarantined in accordance with the Agreement. The husband made no contribution to J Street or, as I have found, to K Street which was purchased using funds from the re-finance of J Street. After separation, the wife continued solely to maintain K Street. K Street now represents 47 per cent of the asset pool. The wife’s contribution to the asset pool is therefore 47 per cent for K Street and half of the remaining 53 per cent represented by the balance of the pool, or a further 26.5 per cent, making a total contribution of 73.5 per cent.
The percentage to be received by the wife using the asset by asset approach is 74 per cent.
I am satisfied that the asset by asset approach has produced a just and equitable result.

PARENTING

At trial, the children were represented by an Independent Children’s Lawyer (“ICL”). Each party relied on a trial affidavit and one updating affidavit. The husband’s father and mother swore affidavits as to their relationship with the children but were not required for cross-examination. The single expert, Dr N, was cross-examined.
The parents agreed that they should have equal shared parental responsibility for the children and they agreed on a suite of orders relating to special occasions and ancillary matters.
The Consent Orders entered into by the parties on 26 June 2017 dealt with the short school holidays in 2017 and 2018; Christmas; Fathers’ Day and Mothers’ Day; the children’s birthdays; Easter; changeovers; children’s communication with each parent; provision of information; removal of the children from the Airport Watch List; passports and non-denigration orders.
The issues upon which they were unable to agree were:
·    The time the children should spend with each parent during the week in school term time, the mother contending for a maximum of five nights a fortnight with the husband, and the husband contending for an arrangement leading to equal shared care;
·    The rate at which the children’s time with the husband should be increased;
·    How school holidays should be divided from the end of Term 1 of 2019 onwards;
·    Overseas travel and, in particular, the wife’s wish to travel to Europe with the children for three weeks in the school holidays at the beginning of 2019.

BACKGROUND

The family moved from City G, where they had lived since their marriage and where the children were born, to live in Australia, arriving in 2014. C was about 15 months old. B was four and a half.
The wife had no connection with Australia. She is European by birth and had lived her adult life in the UK. Her family was in Europe although she is estranged from her father and her mother suffers from mental health problems. The husband was born in New Zealand and his family is in New Zealand.
They had sold their home in City G and both left their employment. There is a dispute, which cannot be resolved, about the reasons for the move, but there is no doubt that the husband was the instigator of the plan and its enthusiastic supporter.
Before coming to Australia they researched places to live and an appropriate school for B. They settled in Sydney and agreed that AA School would be the best place for B. They found rental accommodation in Suburb X.
In the UK, the wife’s professional work qualifications allowed her to work in a number of allied fields. Her qualifications did not translate to Australia. She cannot drive a car. She had difficulty finding work.
The wife was present in Australia on a temporary New Zealand Citizen Family Relationship Visa which was dependent on the husband’s New Zealand citizenship. She secured contract employment but with a lesser salary than she had been earning in the UK. It was necessary for the children to be cared for while the wife worked, initially by a nanny then using a combination of the nanny and day-care.
On 8 November 2014, less than a month after they arrived in Australia, the husband told the wife that he wanted to separate. He remained in the home until 5 January 2015 when he moved out to separate accommodation in the same suburb. He did not tell the wife his address.
Thereafter, matters went from bad to worse. The wife’s immigration status did not enable her to have access to Australian Social Security benefits.
The wife removed $623,000 from their joint accounts and put the money in an account in her sole name. The husband instituted proceedings in this Court. The children were placed on the Airport Watch List. The wife responded by filing an application to relocate with the children to the UK on an interim basis.
When the 2015 school year commenced, the wife withheld B (who would be five years old in May of 2015) and refused to allow him to start school. The wife’s motivation in withholding B from school was that they would be returning to the UK and she did not want him to settle into school in Australia.
The wife refused to allow the children to spend any overnight time with the husband. By March 2015, the children were spending time with the husband on Wednesday evening until 7.00 pm and all day on Saturday.
On 16 April 2015, Orders were made after an interim hearing which provided that the children spend time with the husband on Wednesday night until Thursday morning and each alternate weekend from 9.00 am Saturday until 5.00 pm on Sunday.
In August 2015, after hearing expert evidence, the wife’s interim applications to relocate to the UK, and that Australia be declared an inappropriate forum, were dismissed.
The wife, with the agreement of the husband, enrolled B at Y School in Suburb X at commencement of Term 3. B had missed the first two terms of Kindergarten.
B repeated Kindergarten in 2016 because of his late commencement.
In the April 2016 school holidays, the parties agreed that the children could spend two consecutive nights with the husband.
The husband continued to agitate for more time with the children. The wife continued to oppose more overnight time although they agreed on some additional day time.
The litigation proceeded on the basis that the issue for determination was the wife’s application to return with the children to the UK.
Dr N, a child and family psychiatrist, was appointed as single expert and prepared a report in July 2016.
The husband’s employment ceased in September 2016. He did not thereafter contribute to the child care expenses which, by this time were over $600 per week. He paid very little child support.
The matter was listed for call over for the allocation of hearing dates on 26 September 2016. The wife’s trial affidavit was filed on 23 September 2016. The husband did not file his trial affidavit, despite having been ordered to do so and despite the fact that he was not working, having elected to use his time to prepare his affidavit. As a consequence of his evidence not being filed, the call over was adjourned to February 2017.
On 29 September 2016, the wife was taken by ambulance to hospital. Her version of that event is found in an affidavit sworn on 9 June 2017.
The wife deposed that she felt exhausted and drained of energy. She deposed:
On Thursday, 29 September 2016 at about 5:15 pm in the afternoon I sent a text message to [Mr W], a friend. [Mr W] texted me back and told me to relax and breath (sic) and asked if I wanted to join him at the [Z Hotel]. I declined as I had the children in my care and I texted back, to the effect of ‘would you like to come over to my home instead’. [Mr W] agreed. I had a glass of wine and I felt a bit lightheaded. I had not eaten that day and had eaten little the day prior, I had not been feeling well throughout the course of the day and did not feel well throughout the course of that evening. I had another glass of wine and felt dizzy. [Mr W] played with the boys around the table and I stayed sitting. I got up from the dining room table and walked down the hallway of the house and I tripped on the floor mat and banged my head, when I fell backwards. [Mr W] found me on the ground with blood on my head and called an ambulance. The police arrived as well. I was sedated in the home and I woke up in the hospital, the head scan was completed and three metal staples were placed into my head to seal to the wound (sic). I had never fallen in the home before and I was embarrassed by the whole situation. The police inspected the home, concerned of what occurred and observed one empty bottle of wine and 2 glasses.
On the basis only of the wife’s evidence, the reader might assume that she drank two glasses of wine.
In relation to the same incident, the husband deposed:
In the evening of 29 September 2016 two Police Officers attended my apartment. One of the Police Officers said words to the effect: “Are you [the husband]?” To which I replied: “Yes”. The Police officer then said words to the effect: “[The wife] has been taken to hospital. Can you come and take the children so they can stay with you whilst she is in hospital?” I replied: “Sure, just let me get changed”. I was in shock when I heard this. I asked the Police Officer words to the effect: “What happened?” One of the Police Officers said to me words to the effect: “Due to privacy reasons, we cannot discuss with you what happened. [The wife] has been taken to hospital by ambulance”. The Police Officers accompanied me to [the wife’s] apartment. There were a few people standing around at the front lawn. I walked among the people and found the children. They were in their pyjamas and barefoot. They looked scared. They ran to me and hugged me.
The husband deposed that he asked the police if he could go upstairs and get the children’s shoes, and they replied “No you cannot go upstairs, it is a crime scene”. The police escorted the husband and the children back to his apartment.
The husband deposed that the children were frightened and he tried to comfort them. He deposed that B said to him “I was so scared Daddy. There was blood coming out of mummy’s head. Is mummy going to be okay?” The husband asked B what had happened and B said “I heard mummy scream and then mummy had blood coming out of her head. It was the most blood I had ever seen. There was blood in the bedroom, hallway and my bedroom. Everywhere … There was brown stuff on the sofa. Mummy had a poo in her pants and the poo came out of her pants onto the green sofa”. The husband deposed that the children both slept in his bed that night. He contacted the hospital the following morning and arranged for a taxi to drive the wife home when she was discharged from the hospital. Following her discharge from the hospital, the wife rang the husband and said to him “Everything is fine. I just walked into the toilet door and was knocked unconscious. I cannot remember what happened because I had a concussion.”
The husband took the children to the wife’s apartment. In the wife’s presence B said “I want to stay at daddy’s house tonight. Who will clean up the blood? There was so much blood everywhere. I do not want to sleep in my bedroom as there is blood on the floor, in the hallway and in the toilet. I am scared to stay at mummy’s house … who will clean up the poo on the sofa.” The husband suggested to the wife that the children stay with him for another night but she insisted that they remain with her. He deposed that the wife had obviously cleaned up the apartment although there were faint blood stains in B’s room, in the hallway and in the bathroom. He also saw blood stains in the wife’s bedroom and in C’s bedroom. The sofa had been cleaned.
The text messages between the wife and Mr W were produced. They had been retained on the wife’s mobile phone and were clearly available to her when her affidavit was prepared. She was clearly very agitated and distressed by the delay in the hearing of her application and wanted Mr W to help her take her story to the media. Her distress was understandable in the context of her great desire to return to the UK and her unhappiness at being required to remain in Australia.
In cross-examination, and after the production of documents by the police, the ambulance service and the hospital, it was apparent that the wife’s version of that event was, at worst, deliberately untruthful and, at best, minimised.
The records produced by the NSW Police state:
At 5:00 pm on the 29th of September 2016, the patient sent multiple text messages to the witness asking how she was able to go to the media regarding her divorce. The patient agreed for witness (sic) attend her house, have dinner with her and her children and discuss the divorce proceedings. The witness was previously dating the patient in May 2016 however they had no communication for around a month. Around 5:30pm, the witness attended the patients address and observed her to be highly affected my (sic) alcohol as she was falling off the chairs at the dinner table and was staggering around the house. The patient burnt the dinner she was cooking so the witness ordered pizza. They all ate dinner together and the witness played with the children. Around 8:30pm, the witness left the residence to make a phone call and obtain items from his vehicle. The witness spoke to a friend on the phone for nine minutes before returning inside and seeing the patient laying on the ground with thick blood on the floor underneath her. The witness ran outside to obtain the street address and house number before calling an Ambulance. The witness ran back inside to see the patient where he found her in her childss (sic) bedroom. He observed blood over the floor and walls of the house. Her two children were in the bedroom with the patient when the witness walked in. The witness asked the patient to apply pressure to the wound with a towel to which she replied “who are you” and “why are you in my house”. Due to causing stress to the patient he walked outside to wait for paramedics. Paramedics found the patient on the ground outside the residence. She was conveyed to GG Hospital for treatment of a head wound. At time of writing the doctors were awaiting test results for scans on her head. The Doctor stated she cannot remember at this stage how she obtained the laceration however was continually asking asking (sic) for her children. The children were conveyed by police to their fathers address which was located around the corner. … It was later discovered the patient had slipped on a matt (sic) in the hallway of her residence and hit her head, sustaining a laceration to the front right side of her head.
Ambulance records produced by the GG Hospital state:
c/t collapse with head injury. o/a 43 year female home with 2 small children. pt sent a friend bizaare (sic) text messages and friend came over to check on patient. friend found blood and diarrhoea up the hallway and patient collapsed on floor ... 2 small children unattended. friend then called cda. when cda arrived pt downstairs screaming hysterically with inappropriate responses eg “my kids are fine”, blood and diarrhoea everywhere all up the inside hallway and all over patient. cda sedated patient with good response, police arrived on scene and treating house as a crime scene. o/e pt has multiple contusions – right parietal with abrasion and bleeding heavily, haematoma to forehead and bridge of nose. nil other obvious injuries, chest sounds clear and equal, moving all limbs and nil obvious injuries to torso. pt denies medical hx, medicaitons (sic) and allergies. currently in a custody battle with ex husband and has been stressed/emotional. en route pt states no one else was on the scene with her and her kids prior. states she drank too much and fell over.
The wife was taken to GG Emergency Medicine Unit, the diagnosis on admission being acute alcohol intoxication. It was noted that on admission she smelt of alcohol and was incontinent of urine and faeces. Blood tests revealed an alcohol level of 0.34 per cent.
In January 2017 the parents agreed on arrangements for the forthcoming school holidays in January, April, July and September and they also agreed to increase the time that the children spent with the husband by extending the weekends to Monday morning.
There was ongoing tension about the arrangements for the holidays and it was clear from the evidence given by the wife in cross-examination that, while she was willing, and indeed anxious, for the children to spend more days with the husband when she was working, she would not agree to them spending additional nights as he wanted.
In March 2017 there was an exchange of emails between the parents wherein the wife was concerned that she had not received a child support payment in circumstances where she had notified the husband that C’s child care expenses had increased significantly as a result of the husband filing his 2016 tax return and the child care rebate being withdrawn. The fees had increased from $330 per week to $565 per week. The husband was not working at this time. The wife was clearly stressed about her financial position. The husband conceded that he had, in fact, missed a child support payment.
On 29 March 2017 there was an exchange of texts where the wife was asking for the child support payment. The husband replied after three messages from the wife, saying:
I do not have time respond (sic) I have job interviews and camping trips to organise. Child support is calculated and collected by the government as you requested. I pay every month the amount the government says I have to. It is you that wanted the government to collect child support because you felt I was not paying you enough. I have nothing further to add and I am complying with the government regulations that you imposed on me.
The wife responded:
I will need you to take [C] 3 days a week and [B] for all 5 days of after school. I would like I (sic) give the nursery notice tomorrow. Please confirm.
I cannot afford childcare any more.
Please respond. After school I would like to give them notice tomorrow.
The husband replied “No I cannot do that. I plan to be starting work soon.” He then sent a further text saying “Please do not text or email me any more tonight I am trying to enjoy what limited time the court had appointed me with my children.”
The wife texted “When you start working kids will return to daycare until then you will need to look after them. I have waited now for 6 months and you are still out of work…”
On 30 March 2017 the wife sent a text message at 7.20 am asking if the husband could be at her home by 8.15 am. In all she sent eight text messages, the last saying “Your child support doesn’t cover day care. You are not working. Please can you look after the boys 3 days a week to assist with the costs.”
The husband responded by asking the wife to stop harassing him and to have her solicitor write to him if she had a problem with the level of child support.
The husband declined the wife’s request for assistance with the care of the children. He said he was looking for work. B’s school fees were in arrears and the wife told the husband that she did not have money to pay them. He paid half of the arrears of school fees.

On 1 May 2017, the wife again asked the husband to assist with caring for B after school. He did not respond.
On 16 May 2017 the husband sent a text to the wife saying “You know I am preparing for an important job interview, yet you continue to send txt and call me. Please stop”.
At 1.35 pm on 16 May 2017 the wife sent a text asking the husband to take B for an eye test as she thought he might need glasses. The husband responded:
You obviously took no notice of (sic) above text I sent you and are deliberately trying to stop me preparing for my job interview. Thanks a lot … I should know to expect this from a person with your abusive nature. I fear for the children and how you treat them. [B] tells me all the time how mean you are to him and treat him like a slave. I can only imagine now that I am not around to take your abuse and shield the children from it.
The wife responded in a polite manner explaining why she thought B might need an eye test.
On the following morning the wife sent a text again asking if the husband could take B for an eye test. The husband was to collect the children that afternoon. The husband responded “Suddenly he needs an eye test immediately…give me a break…make an appointment for Friday afternoon. I assume you are paying. Please prepay on your card.”
Again the wife’s response was polite but she asked why the husband could not take B that afternoon for an eye test. The husband responded:
I told you about my interview…STOP TXTING ME.
I will only take (sic) to appointment that you pay for and you need to pay for glasses
You need to leave your credit card details with spec savers, I pay child support to cover these cost (sic). You need to prepay before I take him and order glasses.
The wife replied to the effect that the test would be free and again asked the husband to take B that afternoon. She confirmed that she would pay for his glasses. The husband replied “No I will take (sic) on Friday afternoon”. The wife replied “Ok. Let me know what time as I will try to work from home. That way I can pay for it and pick the frames.”
The husband then texted the wife at 6.38 pm when the children were in his care:
I can’t believe you give a growing child plain rice crackers for lunch. Why not make him a sandwich, it takes two seconds. [B] does not like dry plain rice crackers with nothing on them, and only ate two apples today at school. If anything is stopping his concentration it is probably his poor diet that you feed him...
In cross-examination, the husband was given an opportunity to explain why he could not assist with child care and why he felt it necessary to send such offensive messages to the wife. He denied that the tone of his messages were a result of being stressed by the impending job interview but gave no other explanation.
The husband started work on 29 May 2017. He works in the city centre. He gave evidence that his hours can be flexible and he can work from home on occasion. When he needs to collect the boys by 6.00 pm from their respective carers, he can catch a ferry at 5.10 pm. If he were detained at work, he would ask the wife to collect the children and, in the event that she could not, he would ask family friends to assist. Those friends did not give evidence as to their availability.
Very shortly before the commencement of the trial, the wife abandoned her application to relocate with the children to the UK. In oral evidence she said that her decision had been reached over time but only finalised in the past week. She had told the children they would not be returning to the UK. Tellingly, she said that B had said to her words to the effect “If you are happy Mummy, then I am happy”.

THE EVIDENCE OF DR N

Dr N interviewed the family in April 2016 and provided a report dated 19 July 2016. He also gave oral evidence.
Dr N was concerned by the inconsistency in the statements made by the wife which, he said, raised questions with regard to the reliability of her account. By way of example, Dr N recorded that when he asked the wife about the enrolment of B at AA School she initially told him that she thought the husband had enrolled B. In response to further questioning she acknowledged that she had also participated in this process.
Questioned about her mother, the wife denied that her mother had exhibited paranoia. Pressed by Dr N, she acknowledged that her mother had mental health problems and that she had proposed that her mother be psychologically examined because she suspected that her mother had exhibited paranoid behaviour.
Another instance of the wife’s inconsistency was her insistence to Dr N, when asked, that she had never self-harmed. He reported:
She insisted that she had never self-harmed and displayed her arms to demonstrate this. A scar was observed on her left forearm, which was reportedly an oven burn. She added, “I have to be honest about this, once in a moment of madness, in 2008-2009, [the husband] said he was moving out. In a moment of madness, I started to cut myself.” She insisted that there had been no recurrence of deliberate self-harm.
It was the wife’s evidence that Dr N had misunderstood what she said to him. In her trial affidavit, she deposed that she had been learning to cook and that the husband was not appreciative of her efforts. She stated:
… I was frustrated. It was then on the evening referred to by [Dr N] presumably recounted by [the husband] where I obtained a cut to my arm. I was distressed and upset. I was cutting up some meat with a kitchen knife and [the husband] came in and commenced to say to me: “I don’t know why you’re bothering. You can’t cook. Your food’s always crap.”
I commenced to cry. Whilst in tears and cutting up to (sic) the meat I made a small cut to my arm, about 1 centimetre long. This was not an attempt at self-harm and was an accident.
In cross-examination, the wife gave a somewhat confused account of accidental injury. Dr N was cross-examined in relation to that evidence. He had recourse to his notes taken during the interview. Dr N read out the note which was identical with the words in the report. When pressed, Dr N said that it was his understanding that the wife was telling him that she had deliberately cut herself. I accept the evidence of Dr N.
I accept that the wife, in recounting events to Dr N, gave a version which she thought would assist her case and only resorted to a factual version when pressed.
In relation to the issue of family violence, Dr N reported:
When specifically asked if she had ever assaulted [the husband] during an argument, [the wife] responded: “I never punched him in the face. But in arguments, where I was pushed in the corridor … I would retaliate and grab his arms. [The husband] had photographs of me holding him. I’ve shown him bruises to my back where he has punched me to the ground.” When this was clarified, she told me that these were red marks on her back but not bruises. She further acknowledged having grabbed him by the scrotum in an argument as she had gone to take the baby away from him. He had fallen to the floor. She alleged that [the husband] would open the window and shout for the benefit of the neighbours, “… Don’t hit me!”
In her trial affidavit, the wife denied that she had grabbed the husband by the scrotum. She described an argument between herself and the husband, who was holding C at the time. She said she wanted to take C from him because, she said, he was drunk. She deposed:
[The husband] refused and I grabbed at [the husband] to take [C] from his hands. [The husband] eventually let go. [The husband] then fell to the ground. I deny as asserted by [the husband] that during this altercation I ever punched [the husband] or that I grabbed [the husband’s] scrotum as asserted.
In cross-examination the wife admitted that she had, in fact, grabbed the husband by the scrotum.
There was a further incident involving the wife and the children on 29 September 2016 to which reference has been made earlier in these Reasons. It is sufficient to say here that the wife minimised and dissembled in her affidavit the evidence in relation to that incident.
Dr N observed the children with the wife. He reported:
The children were brought to the assessment by their mother. [B] and [C] were both playful and engaged. [The wife] was clear, organised and effective in responding to the children’s play. She was highly attuned to their needs. After initial organisation of [B’s] activities, she continued to play with [C].
[B] was asked to draw a picture of his family. He sat attentively and attended to this drawing task. He then was comfortable to be interviewed on his own.
Dr N then spoke to B. At the time, B was turning six in six weeks’ time. Dr N reported:
He drew a picture of Mummy, Daddy, [B] and [C] all feeling happy, as they all loved each other. He agreed that this was the way it was, except that Mummy and Daddy now lived apart. When asked if he remembered them all living together, he responded that he did not. When asked who he lived with, he told me that he lived with Mummy. This made him happy because she loved him. There was nothing he didn’t like about this. He visited Daddy and would sleep over once a week on Wednesdays. He told me that this was the same as with Mummy. He was thoughtful as he described enjoying, “going surfing with my Daddy. So Dad’s on the beach, digging in the sand with [C], and he can watch me in the water on my own surfing.” This was a lot of fun. He also enjoyed skateboarding, seeing his Granddad, [BB, the paternal grandmother] and Nanna [CC]. He explained that he had two grandmothers and one grandfather. He was excited that they were all coming to see him that day and looked out at the window to see if they had arrived. He told me that the best thing about his Granddad was that he loved him, wanted to be with him more and every time he came he give (sic) him presents. [BB] was the same as Granddad, but didn’t always give him presents. Nanna [CC] also loved him. There was nothing that he didn’t like about his paternal extended family.
B identified feeling “happy a lot because everybody in his family loved him”. He told Dr N that he thought his mother was the happiest in the family because she loved him. B could not think of anyone in the family who was sad and denied any negative emotions of anger, worry or being scared.
Dr N reported:
When asked why his Mum and Dad were not together, he responded, “Because they shout when they live with each other and my Dad always starts the shouting.” When asked how he knew this, [B] responded, “Because my Mum tells me that Dad starts the shouting.” When asked what his Mum thought, [B] continued, “She says that she doesn’t really want me to go surfing. And she sometimes says you have the most happy time with Daddy. But I actually have all of them with Mummy. Most happy times are with Mummy.”
B told Dr N that he enjoyed living near the beach “a little bit”. He said:
“… I don’t really like living there because I miss where I come from. And I miss [the UK].” When asked what he missed about [the UK], [B] responded, “All my friends and my school in the [UK].” When asked about his friends, he identified [DD], [EE] his girlfriend, [FF], but he couldn’t remember the names of the other children. When asked when he last saw them, he told me on his last day of school before he went to Australia, “a long, long, really long time ago, not really that long, but a long time ago.” When asked who missed the [UK], [B] responded, “Mummy.” When asked how he knew this, he responded, “Because she tells me. She says that Daddy wants us to stay here.” He did not think this was a good idea. He then asked when Daddy was going to come to the appointment because he missed him.
In his oral evidence, Dr N said that B had been enlisted by his mother as an ally in her quest to return to the United Kingdom and that to some extent B felt responsible for his mother’s happiness.
When Dr N asked B about going on a long journey, he records that B told him that:
He would want to take both Mummy and Daddy and his little brother, [C], if he was to go away. He was unable to identify a single person, but added his paternal grandparents who lived in New Zealand as people he would want to be with. He told me that he would miss both Mummy and Daddy if he left either of them behind.
B told Dr N that if he went to live in the UK then his father would definitely come along because B would miss him if he stayed in Australia.
B spoke positively about his experience at his present school and his teacher and said there was nothing he did not like about school. When Dr N asked him if he would miss his school, B answered “No. I’m not going to miss anything because I miss the UK.”
Dr N also observed the children with the husband and reported “Loving enthusiastic interactions were observed between the children and their father. He effectively managed their needs. Positive interactions were also identified with their paternal grandparents.”
B was re-interviewed by Dr N at the conclusion of the assessment. Dr N noted that C was upset and distressed that his father was leaving. Dr N reported of B:
He said that he didn’t want to spend more time with his dad or sleep over. He said that he liked it the way it was, and he’d like to spend most of his time with Mummy. When asked if he had talked to Mummy about going to [the UK], he told me, “Not yet. Mummy has talked to me about it.” He repeated that he thought about his friends there. He agreed that he would miss his Dad if he didn’t come over and that he would miss his grandparents.
Dr N regarded the children as having been exposed to longstanding parental conflict. He stated. “They had also experienced restriction to their contact with their father subsequent to the parental separation. This should be regarded as a form of psychological harm. They had otherwise not been exposed to or subjected to physical or psychological harm or family violence.”
In relation to the views expressed by the children, Dr N stated that C was too young to express any views but that he interacted positively with each of his parents and his paternal grandparents. In relation to B, Dr N stated:
[B] similarly was seen to have a positive relationship with both parents and paternal grandparents. He identified a primary connection with his mother but highlighted the importance of his connection with his father and paternal grandparents. He repeatedly stated that he missed his friends and life in [the UK] and that he wished to return there. These views had been strongly influenced by his discussions with his mother. He also understood that he would maintain regular contact with his father in [the UK]. Given these factors and his age, limited weight should be accorded to those views. Such views were inconsistent with his positive statements about his sunny Sydney, enjoyment of this school, peers and contact with his father and paternal extended family.
Dr N observed a positive relationship between each of the children and their parents and paternal grandparents. He stated that their primary attachment with their mother was a secure one but they had a significant secondary attachment to their father.
Dr N stated that the children would be distressed if separated for an ongoing period from either of their parents.
In relation to the capacity of each of the parents to provide for the children’s needs, Dr N stated:
Both parents were identified to have adequate parenting capacity to provide for the children’s needs, including their emotional and intellectual needs. Should they reside in Australia, the mother would have the support of the father and the paternal grandparents. This was seen of be of benefit to the children.
In relation to the attitude of the parents towards the responsibility of parenthood, Dr N stated:
Both parents exhibited a responsible attitude towards the children and parenthood. It was of concern that following the parental separation that the mother failed to ensure that [B] attended [AA School] as planned. This was a source of disappointment for [B] and frustration for the father. This resulted in further frustration as he needed to repeat kindergarten after commencing at [Y School] in term three. Whilst the mother was correct that [B] had already been exposed to the adversity of the parental separation, her justification for not continuing with the school placement was not seen to be justified if the primary consideration was [B’s] well-being. It was consistent with her plan to return to [the UK], as opposed to the parents’ previous agreement and father’s wishes. This exacerbated the difficulties in communication and problem solving experienced by the parents in the context of their volatile relationship and subsequent separation.
Dr N was concerned at the capacity of the parents to communicate with each other. He stated:
Given the longstanding volatility in the parents’ relationship, it is likely that they will continue to have difficulties in communication and cooperation in relation to parenting. That said, prior to coming to Australia, they had reached agreement regarding their place of residence and the children’s school placements. It was thus unfortunate that post-separation the mother changed her view. Her previous difficulty maintaining respectful communication with her extended family was predictive of further difficulties in respectful communication and problem solving. That said, both parents had similar values with regard to the children’s developmental needs.
Dr N was asked to comment on any psychological or psychiatric issues affecting either of the parents. He said that the wife had an underlying emotional vulnerability. This, he said:
… was reflected in her volatile interactions with the father and inability to maintain stable relationships with her extended family. She had experienced an Adjustment Disorder with depressed mood in the context of her current circumstances. She had received psychological support in this context. She had previously experienced similar symptoms associated with fleeting suicidal ideation and self-harm which had been treated with antidepressant medication. It was however difficult to identify the extent of her emotional and personality vulnerabilities given her minimisation of key issues during the assessment conducted. Despite there being evidence of her volatile mood, she denied that this had been the case.
Dr N concluded “I was concerned by the inconsistency in her statements which raised question with regard to the reliability of her account.”
Dr N concluded “The children will continue to benefit from joint parental responsibility, given the evident capacity and motivation of both parents. They will continue to benefit from having a significant and substantive relationship with both parents.”
In cross-examination by counsel for the ICL, Dr N did not support the proposals of either parent for the time the children would spend with both of them.
He recommended that the children should have a stable primary residence with their mother and that they should spend both mid-week and weekend time with their father. Dr N specifically rejected the husband’s proposal of equal shared time, firstly because that would detract from the children having a stable primary residence and secondly because this was not an arrangement that he thought could be tolerated by the wife, having regard to her vulnerabilities.
Dr N recommended that the children’s time with the husband should increase but it should do so in gradual steps, somewhat more slowly than the husband envisaged, until, as a permanent arrangement, they should spend each alternate Wednesday night with the husband and, in the alternate weekend, live with him from Wednesday after school until Monday morning. This would provide an arrangement where they spent six nights out of every fortnight with the husband but also maintained a stable base in their mother’s home
In cross-examination, Dr N was asked, by counsel for the ICL, to review the documents produced by GG Hospital in relation to the wife’s admission on 29 September 2016. Dr N said that the notes indicated that the wife was admitted in a state of acute alcohol intoxication. He said that the blood test revealed significant quantities of alcohol in her blood and that the recorded level indicated a very high level of alcohol content. He said that it was commonly recognised amongst clinicians that any reading over 0.3 per cent is indicative of a very severe alcohol intoxication and enough to cause people to collapse into unconsciousness. He noted that the wife on presentation had been incontinent and that she required anti-psychotic medication. Dr N said that the wife’s high level of agitation, disorientation, and screaming hysterically were all explained by her alcohol level. Asked whether the observations of the hospital could be explained by the wife having consumed two glasses of wine, Dr N said “definitely not”. Dr N also said that the fact that the wife had not eaten and the fact that she was taking anti-depressants would not have affected the level of alcohol in her system to such an extent.

However, Dr N said that it was his understanding that this was a single episode of extreme alcohol intoxication. He said it was highly concerning that the children were in her care at the time, but it was indicative that she was agitated at the time. Although he said that, as a one off episode, this was extremely concerning, he saw no evidence in the records produced by the hospital or in his assessment in 2016 that there had been a significant history of alcohol abuse by the wife, there was no history consistent with binge drinking and there was no evidence that the problem was likely to be ongoing.
Dr N examined the blood testing that was done at the time and commented that the best indicator of significant alcohol use was the liver function test. In this case the wife’s test was in the normal range and there was no indication of significant ongoing alcohol use. Specifically asked whether, as the husband sought, an order should be made restraining the wife from being intoxicated in the presence of the children, Dr N said that he did not think such an order was necessary. Firstly he said that there was no indication that this episode was likely to be repeated. Perhaps more significantly he said that making such an order would raise issues of monitoring of the wife’s drinking behaviour by the children and reporting to the other parent. To make such an order would make it likely that the children would be asked questions about the wife’s drinking behaviour, the children might become hypervigilant and it would be unhelpful for their relationship with both of their parents.

THE MATTERS TO BE DETERMINED

At the commencement of submissions, counsel for the ICL handed up a Minute of Orders which reflected the recommendations of Dr N. Counsel for the husband indicated that he accepted the proposal of the ICL, with the exception that he proposed a further extension of the time the children spend with him commencing in 2021, when C would be eight years old, to a week about arrangement.
Counsel for the wife indicated that she consented to an arrangement whereby the children ultimately spent five nights each fortnight with the husband, rather than six as recommended by Dr N.
Ultimately, therefore, the matters in dispute were:
· Whether the children should spend equal time with the husband as proposed by him, five nights a fortnight with him as proposed by the wife, or six a fortnight with the husband as proposed by Dr N;
· Whether the wife should be able to take the children overseas on holidays for the Christmas holidays in 2019 for a period of not more than 21 days.

CONSIDERATION

There is no issue that the children will benefit from a meaningful relationship with both of their parents.
Dr N considered the issue of psychological harm caused to the children by the conflict between their parents and I accept his evidence that they have not otherwise been subjected to psychological harm or family violence.
I accept Dr N’s evidence about the views of the children. Insofar as they were expressed, they could be given no weight. Probably the most compelling expression of B’s views is that which the wife recounted; if she is happy, B is happy.
I accept the evidence of Dr N that the children have a loving, close and positive relationship with both of their parents and with their paternal grandparents. I accept his evidence that the wife is their primary carer.
Whilst the husband has, since separation, consistently agitated for more time with the children, he failed to respond to the wife’s requests that he assist with the care of the children when she was having difficulties from March of 2017. I infer from his oral evidence that he would have been prepared to take the children overnight but was not prepared to care for them only during the day. He was not working. He could have provided some assistance. That he chose not to do so demonstrates a number of things. He was dismissive of the wife’s distress at her financial position and the burden of paying for child care with very little contribution from him. He gave evidence that he knew that she worried about finances and that, if she was stressed, that would have an impact on the children. His attitude could only be described as vindictive. He ignored the children’s interests and welfare to pursue his own interests.
The husband has paid child support, albeit at a much reduced amount when he was not working. He elected not to seek employment after September 2016 and to concentrate on the preparation of the litigation. This had the effect that the wife was required to bear the costs of the children’s care. He appeared to have little regard for the effect of his decision on her, and indirectly on the children.
With the exception of the wife’s proposal to take the children to Europe for three weeks in January 2019, neither parent proposes any substantial separation of the children from either parent or grandparents. The change in circumstances which is proposed by the husband, and by Dr N, is a change in the number of nights that the children spend with each parent. I accept the evidence of Dr N that these children need a stable home base with their mother.
I do not accept that the proposal for the children to eventually spend time with the husband in a five night block each fortnight (in addition to one night in the other week), is impractical. I accept that the husband has not yet had to organise his and the children’s lives to accommodate such a care arrangement but there is no reason to assume that he cannot do so, just as the wife, who also has full time employment, has done. There may be occasions when he needs her assistance or that of friends or parents of other school friends. That is not unusual in modern families where both parents work. The parents live in close proximity and have been able to organise the children’s care since Orders were first made in April 2015. Despite the occasionally hostile relationship between them which was demonstrated by the exchanges to which reference has been made in these Reasons, they have been able to cooperate on day-to-day arrangements and have (with the notable exception of the husband’s refusal to help with child care from March 2017) each compromised to assist the other.
Each of the parents is capable of providing for the children’s needs. I accept the evidence of Dr N as to the anxiety and vulnerability of the wife. I also accept that her anxieties will necessarily affect the children and should be kept to a minimum consistent with their best interests. It is for that reason that Dr N recommends moving more slowly to increase the children’s time with the husband, at a pace she is more likely to be able to tolerate.
The attitude of each of the parents to their responsibilities is open to criticism. I have already detailed those matters of concern about the husband’s attitude. The wife has vigorously resisted increasing the children’s time with the husband. She withheld the children from him after separation, albeit that she did so on legal advice and now regrets having done so. She initially opposed any overnight time and an order was required to effect the children staying overnight with the husband. She persisted with her application to relocate to the UK with the children long after the release of Dr N’s report which demonstrated that such a proposal was not in the interests of the children. Her actions on 29 September 2016 put the children at risk and, on her own evidence, frightened and worried them.
The issue of family violence was considered by Dr N. I accept his assessment that the relationship between the parents was one of longstanding conflict. The wife admitted to one act of violence towards the husband. It is likely that they each contributed to the volatility of their relationship. Dr N expressed the view that, while it is accepted that exposure to family violence is detrimental for the children, there is no current evidence of any significant emotional or behavioural impact on them.
I accept the evidence of Dr N that the care arrangements he recommends are consistent both with the children’s need to spend significant time with their father and with their mother’s ability to tolerate them being away from her. Accordingly the orders will be made as proposed by Dr N and the ICL.
The husband’s application for a move to an equal shared time arrangement in 2021 will be rejected. Dr N recommended the maintenance of a primary residence for the children with their mother. There is real doubt about the wife’s emotional capacity to cope with such an arrangement and any deterioration in her parenting capacity would not be good for the children. Whilst it is hoped that the lamentable standard of communication between the parents, demonstrated particularly by the husband in March and May of 2017, will not be repeated, I am not satisfied that the relationship between them is sufficiently respectful and their attitudes sufficiently child-focussed that an equal shared arrangement would benefit the children. Dr N stressed the importance of the children experiencing the parents working collaboratively, being in a stable mental state and being comfortable with each change. Those goals have not yet been achieved. Although it is to be hoped that both parents will move to that collaboration and stability that Dr N requires to recommend an equal shared arrangement, I am not prepared to speculate what might be the situation for these children in 2021.
The time which Dr N recommends and which I will put in place provides for the children to spend a block of five nights with the husband in each alternate week and one night in the other week. That time is sufficient for him to parent them and probably the limit of what the wife can tolerate.

OVERSEAS TRAVEL IN JANUARY 2019

Dr N did not support the wife’s proposal for travel for three weeks in January 2019. He said that three weeks away from the husband was too long a time.
However, it is necessary to balance the children’s need to spend time with the husband against the wife’s need not to feel trapped in Australia. She has only recently resiled from her position that she wishes to live in the UK. Her acceptance that the children are settled in Australia and that they need to spend regular time with their father is but a recent understanding.
Her emotional health has vulnerabilities as identified by Dr N and it is important to the children’s well-being that she not be stressed to such an extent that the events of 29 September 2016 risk repetition.
It may be of assistance to her emotional well-being if she has the prospect of reunion with friends and family in January 2019 to look forward to. That possibility will compensate for the small time that the children will not see their father.
From January 2021, when C will be seven, each parent will have the children for half of the school holiday period (commencing with the Christmas school holiday period of December 2020 to January 2021) and each should be entitled to take them overseas.

I certify that the preceding two hundred and fifty-eight (258) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 12 July 2017.

Associate:

Date: 12/7/2017

[2017] FamCA 487

12 July 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Procedural Fairness

Jurisdiction

Statutory Construction

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2.	W	NAB #...50 as at 6 June 2017	$ 539.86
3.	W	NAB #...42 as at 6 June 2017	$ 622.84
4.	W	ISA Savings Account (UK) #...36 as at 4 Nov 2015 (£30,651)	$ 51,290
5.	W	Q Bank Account (UK) #...52 as at 6 June 2017 (£18,008.47)	$ 30,134
6.	H	O Bank Account #...12 as at 15 June 2017 (£310.32)	$ 519.27
7.	H	O Bank Account #...36 as at 15 June 2017 (£1495.34)	$ 2,502.24
8.	H	O Bank Account #...39 as at 15 June 2017	$ 4,685.41
9.	H	O Bank Account #...18 as at 15 June 2017	$ 6,806.58
10.	H	O Bank (UK) Account #...40 as at 15 June 2017 (£ 0.96)	$ 1.60
11.	J	NAB Account #...31 as at 6 June 2017	$ 1,384.84
12.	J	NAB Account #...91 as at 6 June 2017	$ 1.62
13.	J	O Bank (UK) Account #...92 (£190,194) as at 15 June 2017	$ 318,263
14.	J	P Bank Joint Savings Account (UK) #...97 (£1158)	$ 1,937.75
15.	J	O Bank Account #...84 (£243.17) as at 15 June 2017	$ 406.91
16.	J	Westpac Bank Account #...25	$ 144,214
17.	J	Rental Bond	$ 3,400
18.	H	Rental Bond	$ 2,840
19.	W	Furniture at the former matrimonial home	$ 2,000
20.	H	Furniture and personal effects	$ 6,000
21.	H	Motor Vehicle	$ 3,500
22.	H	Equity Share Scheme	$ 6,000

23.	W	Mortgage – repayment of principle and interest for Flat 7, 10 K Street (£206,810.12)	$ 346,067
24.	H	Income tax liability in UK	$ 6,513
25.	H	O Bank Credit Card (Master Card)	$239.35
26.	H	Credit Card (UK) (£19.83)	$ 33.18
27.	W	Outstanding School Fees	$ 2,796.85

Member		Name of Fund	Type of Interest	Wife / de facto partner’s value
28.	W	R Group Superannuation (£49,311.68)	Defined Benefit	$ 82,516
29.	W	S Group Superannuation	Accumulation	$17,119
30.	H	AMP	Accumulation	$ 22,175
31.	H	T Group Pension (£62,167)	$ 104,027
32.	H	U Group Pension (£24,406.95)	$ 40,841