Kenneth & Kenneth

[2007] FamCA 535

FAMILY COURT OF AUSTRALIA

KENNETH & KENNETH [2007] FamCA 535

FAMILY LAW – CHILDREN - With whom child lives - Child almost 3 years - Application by wife to relocate with child overseas - Wife came to Australia to study - Met husband and had child - Now wishes to return to her home country - Wife currently unable to work in her chosen field in Australia - Wife has support of family in her home country and no family in Australia - Child has close relationship with both parents - Consideration of distance to travel and cost of child spending time with husband and child’s young age - Possible language and communication difficulties if relocation allowed to non-English speaking country – Consideration of cultural heritage of both parents - Husband’s concerns for child’s safety - Impact on child’s relationship with his father with child only spending 4 to 6 weeks with husband each year if relocation allowed - In best interests of child not to permit relocation - Child to live with the wife and spend time with the husband

FAMILY LAW – CHILDREN - In event relocation refused, wife sought permission to take child overseas once per annum for a period of up to 6 weeks - Husband concerned wife may not return with child - Wife to provide security deposit of $10,000 to be released upon her return

FAMILY LAW -PROPERTY SETTLEMENT - Whether debt owed to husband’s father - After considering s 75(2) factors assets to be divided equally

Family Law Act 1975 (Cth) ss 60B, 60CA, 60 CC, 61DA, 65DAA, 75(2) & 79

AMS v AIF: AIF v AMS (1999) FLC 92-858
A v A: Relocation Approach (2000) FLC 92-035
H v L (2000) FLC 93-036
U v U (2002) FLC 93-112
Bolitho and Cohen (2005) FLC 93-224

APPLICANT: MR KENNETH

RESPONDENT: MRS KENNETH

FILE NUMBER: ADF 1786 of 2005

DATE DELIVERED: 1 JUNE 2007

PLACE DELIVERED: ADELAIDE

JUDGMENT OF: BURR J

HEARING DATE: 9, 10 & 11 MAY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms T Lewis

SOLICITOR FOR THE APPLICANT: Tindall Gask Bentley

COUNSEL FOR THE RESPONDENT: Ms M Pyke QC

SOLICITOR FOR THE RESPONDENT: Sykes Bidstrup

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Burr delivered this day will for all publication and reporting purposes be referred to as Kenneth and Kenneth.

ORDERS: -

(1)That all current previous orders of this Court be and the same are hereby discharged.

(2)That the wife’s application for permission to relocate to a South American country with the child, be dismissed.

(3)That the parties have equal shared parental responsibility for the child, a son (the child), born … August 2004.

(4)That the child live with the wife.

(5)That the husband spend time with the child as follows: -

(i)each alternate week from 6.00pm Thursday until 6.00pm on the immediately following Saturday;

(ii)each intervening week from 6.00pm Thursday until 2.00pm on the immediately following Saturday;

(iii)for one half of each school holiday period at times to be agreed between the parties and in default of agreement, for the second half of each school holiday period;

(iv)from 10.00am until 5.00pm on Father’s Day in each year;

(v)if the husband’s birthday falls on a day when the child is not spending time with him, from 3.30pm or the conclusion of kindergarten or school until 6.30pm in the event that it is a kindergarten or school day and from 2.00pm until 6.00pm in the event that it is a non kindergarten or school day;

(vi)in the event that the child’s birthday falls on a day when he is not spending time with the husband, from 3.30pm or the conclusion of kindergarten or school until 6.30pm in the event that it is a kindergarten or school day and from 2.00pm until 6.00pm in the event that it is a non kindergarten or school day UPON NOTING that the child is to spend time with the wife for an equivalent period in the event that the child’s birthday falls on a day when the child is spending time with his father;

(vii)from 8.00am until 10.00am on 25 December 2007 and in each alternate year thereafter;

(viii)from 6.00pm on 24 December 2008 to 10.00am on 25 December 2008 and in each alternate year thereafter;

(ix)for one half of each Easter holiday period which does not constitute part of a school holiday period; and

(x)at such other times as may be agreed between the parties.

(6)That the wife be permitted to leave the Commonwealth of Australia with the child on one occasion per annum for a period not in excess of six (6) weeks PROVIDED THAT: -

(i)at least 28 days prior to her intended time of departure she provides to the husband written detail of the proposed itinerary for herself and the child and all contact detail whilst she is absent from Australia;

(ii)she provides to the husband’s solicitor or such other agent as they may agree, or in default of agreement as the husband nominates, a security deposit in the sum of $10,000.00 to abide her return and the return of the child to Australia and that such security in that sum be henceforth released to the wife upon her return and the child’s return to Australia; and

(iii)the provisions of paragraph (5) be suspended during any such absence by the wife and the child from Australia.

(7)That on the occasions that handover of the child is not possible at the child’s kindergarten or school, then handovers are to occur by the husband collecting the child from the wife’s premises at the beginning of each period of time that the child is to spend with the husband, and by the wife collecting the child from the husband’s premises at the conclusion of each such period.

(8)That each party be at liberty to attend all school organised events, activities or functions routinely attended by parents in respect of the child including (but not limited to) parent/teacher interviews, sports day, speech nights, school concerts, graduations and the like.

(9)That each party be at liberty to receive a copy of all school newsletters, school reports and school photographs at their own expense in respect of the child.

(10)That the parties do keep the other informed as soon as is conveniently possible of any medical emergency affecting the child.

(11)That in full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property: -

(i)the former matrimonial home property situated at T be forthwith placed on the market for sale with such agent and upon such terms and conditions as the parties may agree or in default of agreement as may be determined by the President of the South Australian Division of the Australian Property Institute and that the gross proceeds of sale thereof be distributed as follows:-

(i)firstly, in payment of all and any real estate agents and auctioneers fees and commissions and any other costs associated with the aforesaid sale of the said property;

(ii)secondly, to discharge the W Credit Union mortgage registered on the title of the said property;

(iii)thirdly, to discharge the W Credit Union overdraft;

(iv)fourthly, to discharge the amount of $20,000.00 due and payable to the husband’s father, the paternal grandfather;

with the balance then remaining being described hereafter as “the net proceeds of sale”.

(12)That the wife be paid from the net proceeds of sale:

(i)an amount of $126,200.00;

(ii)plus 50% of any amount by which the sale price of the said former matrimonial home property exceeds $320,000.00; or

(iii)less 50% of any amount by which the sale of the said former matrimonial property fails to achieve a sale price of $320,000.00,

(13)That the said amount due to the wife be paid to the trust account of the wife’s solicitors for and on behalf of the wife and that the balance of the net proceeds of sale then remaining be paid to the trust account of the husband’s solicitors for and on behalf of the husband.

(14)That the husband do hereafter and until the sale of the said former matrimonial home property pay and discharge all outgoings in relation to the property to the exoneration of the wife and do indemnify the wife against any liability for any such outgoings.

(15)That the wife’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the husband: -

(i)the husband’s personal effects, clothing and jewellery;

(ii)the husband’s furniture;

(iii)the husband’s savings and investments;

(iv)the husband’s motor vehicle; and

(v)the husband’s superannuation benefits and entitlements.

(16)That the husband’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the wife: -

(i)the wife’s personal effects, clothing and jewellery;

(ii)the wife’s furniture;

(iii)the wife’s savings and investments;

(iv)the wife’s motor vehicle; and

(v)the wife’s superannuation benefits and entitlements.

(17)That in the event that the wife affords to the husband written notice of her intention to sit for her Australian Council Allied Health Regulating Authorities Limited examination conducted by the Australian Examination Committee for overseas allied health practitioners, at least 60 days prior to sitting the examination, the husband shall forthwith pay to the wife the sum of $1,100.00 or such other fee as is charged to the wife for sitting the said examination, such fee to be paid by the husband on one occasion and on one occasion only.

(18)That all applications be removed from the pending cases list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1786 of 2005

Mr Kenneth

Applicant

And

Mrs Kenneth

Respondent

REASONS FOR JUDGMENT

The applications

1.The parties are in dispute over their only son … (“the child”) born … August 2004.  Thus is he almost 3 years of age.  The issues between the parties are as to what parenting orders might be appropriate and whether or not the wife ought to be entitled to relocate with the child to a South American country.  Further in dispute is the question of property settlement.

Background

2.     The husband is 42 years of age and the mother is 31 years of age.

3.Having secured her graduate degree in Allied Health in South America, the wife travelled to Australia in 1999 for the purposes of studying a Masters Degree in Allied Health.  The parties met in August 2001 and commenced their cohabitation in December of that year.  They married on 28 September 2002 and separated after some 4 years together in November or December 2005.

4.At the date of cohabitation the husband had net assets in the order of $55,000.00 to $70,000.00.  The wife had negligible assets.  The husband owned the former matrimonial home property at T in which there was an equity of between $60,000.00 and $80,000.00.  He owned some furniture and a motor vehicle and had accumulated some superannuation to the value of $9,365.00.

5.The husband alleges that at the time he purchased the property his father loaned him an amount of $20,000.00.  He further alleged that interest was payable on that loan at 3% per annum compounding.  The terms for the repayment of same were at best very vague.  The husband’s father supports the contention that an amount of $20,000.00 plus interest is owing to him. 

6.In November 2002 the wife completed her Masters Degree in Allied health at the University of … but despite her best efforts has now failed on four separate occasions her exams to qualify her to practice as an Allied Health practitioner in Australia.

7.In early 2004 some quite extensive renovations were undertaken to the former matrimonial home property.  The husband’s father in large part attended to those renovations.

8.The wife secured some work as a health practitioner in May 2004 but shortly after had to retire from that position as she was pregnant with the child.  Her pregnancy was a difficult one.  The child was born on … August 2004.

9.During the course of the parties’ relationship the husband earned an annual income of between $35,000.00 and $40,000.00.  The wife’s income was necessarily limited due to her inability to qualify to practice as a health practitioner and her parental obligations.  In total during the relationship she earned approximately $20,000.00 to $25,000.00.  In addition her parents assisted her significantly with various costs and expenses, particularly those related to the child.

10.The wife’s parents visited the wife, the husband and the child in Australia on a number of occasions and the parties visited the wife’s parents in South America in March 2003, prior to the child’s birth.  The wife and child visited her family again in South America in March 2005 for a period of 5 weeks.  At the time of the parties’ separation the wife’s father travelled from the child to help the wife and child vacate the former matrimonial home. 

11.In early 2006 the wife secured employment as an Allied Health aide.

12.The husband has worked throughout the party’s cohabitation on rotating shifts as a clerical officer at a public hospital.  The wife has been the primary carer for the child since his birth.

The evidence

13.The husband gave evidence in support of his application before the Court and also called his father, the paternal grandfather. 

14.The wife too gave evidence but called no other witnesses.

Relevant law

15.Prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 on 1 July 2006 the approach to determining a case involving the proposed relocation of a child’s residence had been settled by the High Court in AMS v AIF : AIF v AMS (1999) FLC 92-858 and the subsequent Full Court decisions of A v A : RELOCATION APPROACH (2000) FLC 92-035 and H v L (2000) FLC 93-036. There had been a more recent High Court case, namely U v U (2002) FLC 93-112, but that case did not alter the basic principles to be applied; what it did do was ameliorate the strict approach set out in A v A (supra).  As was said by the Full Court in BOLITHO and COHEN (2005) FLC 93-224:

“72.  We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A.  In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”

16.The High Court stressed that the objective is to achieve what is in the child’s best interests.  Those interests may not though be best reflected in the proposals advanced by the parties.  All options that are open on the evidence need to be considered.

17.In a case where there is also a dispute as to with whom the child should live, as is the case here, there can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be permitted (AMS v AIF : AIF v AMS, supra, per Gaudron J p.86,032).  Further, the welfare or best interests of the child remains the paramount consideration but it is not the sole consideration.  For example, the “legitimate interests and desires of the parent cannot be ignored” (AMS v AIF : AIF v AMS, supra, per Kirby J p.86,041).  Moreover, a Court cannot require the applicant to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances (AMS v AIF : AIF v AMS, supra, per Gleeson CJ, McHugh and Gummow JJ p.86,027).

18.In A v A : RELOCATION APPROACH (supra) the Full Court set out in summary form the relevant principles to be applied as follows (p.87,551-87,553);

"In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:

·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

·It is necessary for a court to evaluate each of the proposals advanced by the parties.

·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.

·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.

·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

·It is to be expected that reasons for decision will display three stages of analysis and:

1.A court will identify the relevant competing proposals;

2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;

·As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

·The process of evaluating the proposals must have regard to the following issues:

a)None of the parties bears an onus:

·       In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child.  That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b)The importance of a party's right to freedom of movement:

·       In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.

·       In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity.  If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

c)Matters of weight should be explained:

·       In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

·       In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court."

19.The High Court in U v U (supra) doubted though that the strict application of this three stage process was always appropriate. Gummow and Callinan JJ said this, at p.89,089:

“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discreet and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s.68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”

20.I am satisfied that this is still the approach to be adopted in these cases despite the passage of the Family Law Amendment (Shared Parental Responsibility) Act. The competing proposals of the parties must still be assessed by reference to Part VII of the Family Law Act. There are changes though to the objects, the principles, and the factors to be taken into account in determining what is in the child’s best interests. There is also a presumption that needs to be addressed. These changes may very well affect the outcome in individual cases.

21.The objects and principles are now stated in Section 60B in the following terms:-

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

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

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

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

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

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

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

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

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

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

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

22.Whilst now found in a different section, one thing has not changed and that is, that in determining a dispute over a child, the best interests of that child are to be regarded as the paramount consideration. That principle is now found in Section 60CA which in turn guides the Court to consider factors enumerated in Section 60CC. It directs the Court to analyse primary and additional considerations which I do later in these reasons.

23.Other new relevant provisions of the legislation including the presumption which flows from Section 61DA and the requirements of Section 65DAA, I also deal with later in these reasons.

Relevant factors

24.In my view the evidence presented in these proceedings on the parenting issues, relocation and issues of credit are best discussed within the context of a consideration of the factors requiring my attention pursuant to Part VII of the Act, being obliged as I must to make my decision on what is the appropriate outcome in this case by a consideration of the best interests of the child.  In fact that decision “must regard the best interests of the children as the paramount consideration” (Section 60CA).

Section 60CC

(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

25.Some guidance is found in the legislation as to what might constitute a “meaningful relationship”. That can be found in the Objects and Principles outlined in Part VII of the Act. In particular Section 60B(1)(a) states one of the objects as:-

“ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.”

26.As to the principles enumerated in Section 60B(2), the first three appear the most relevant in the enquiry as to what constitutes a “meaningful relationship” and they are:-

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

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

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

27.Whether or not a “meaningful relationship” can be enjoyed by the husband and the child in the event that I permit the wife’s relocation with the child to South America, will depend to a large degree upon the quality of the existing relationship, the willingness of the parties to maintain that relationship and whether different forms of time spent by the husband with the child and different forms of communication can adequately ensure the maintenance of that relationship.  I examine those issues in greater detail when considering the additional considerations set out below.

(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.

28.This sub-section has no relevance to the determination of the issues in this matter.  The child is adored by each of his parents.  He enjoys a loving and nurturing environment when with each of them.

Additional considerations

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

29.This subsection is not relevant to my determination.  The child is not yet 3 years of age.

(b)the nature of the relationship of the child with:

(i)each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

30.Each of the parties enjoys an excellent loving relationship with the child, and he with them.  However, by dint of the husband’s full time occupation during the parties’ cohabitation, particularly given its shift work nature, the wife was the primary carer of the child and spent the preponderance of the child’s time with him.

31.Subsequent to the parties’ separation, the child has spent time with his father on a regular basis.  The current arrangements, by order of this Court, are that the child spends from 6.00pm on the Thursday until 6.00pm on the Saturday of each alternate week with his father.  In the intervening week and each alternate week thereafter the child spends from 6.00pm on Friday until 6.00pm Saturday with his father.  Thus, the child spends time with his father on 3 nights in 14.  For the balance of the time the child lives with his mother.

32.I am satisfied too that the child enjoys a loving relationship with the paternal grandfather and his wife and the maternal grandparents when they are able to visit from South America.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

33.This is an important consideration within the context of the wife’s proposal to relocate from Adelaide to South America with the child.  If I am not satisfied that the mother demonstrates the willingness and has the capacity in both a physical and emotional sense to facilitate an ongoing relationship between the child and his father, that may well be the end of the wife’s prospects of success.

34.Here, distance is the greatest enemy.  The wife was an impressive witness.  She answered all questions directed at her in a frank, open and honest manner.  She did not seek to shirk or avoid the hard issues or the questions which did not favour her position.  I am satisfied that in the event that I permitted the wife to relocate to South America with the child, she would abide any orders of this Court for the child and his father to spend time with each other.  I am satisfied that she would, as much as was possible, facilitate regular communication between the child and the husband by way of telephone, letters, cards, emails and webcam transmissions.  The question becomes whether or not those processes will be sufficient to maintain a meaningful relationship between the child and his father.  Again, to her credit the wife acknowledges that if she is permitted to relocate to South America with the child it will present difficulties in the ongoing development of a meaningful relationship between the child and the husband.  

35.The wife proposes that the husband visit the child in South America in alternate years for an extended visit of some weeks and that she then visit Australia with the child in the intervening years.  Thus physical contact between the father and the child would be confined to period of some 4 to 6 weeks each year. 

36.The father is seeking an order that the child reside with him.  He then presents a number of fall back positions.  I am satisfied that if the childresided with his father, the husband would facilitate an ongoing and meaningful relationship between the child and his mother.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

37.This is a significant issue.  The husband has enjoyed a close relationship with his son since his birth almost 3 years ago.  That relationship has been fostered by regular contact and communication and by close physical proximity.  A removal of the child from that close proximity by a relocation to South America will reduce the number of occasions they have to enjoy each other’s company and for the child to enjoy the company of his extended paternal family and the activities they can share.  Some 4 to 6 weeks of physical contact supported by various means of communication, is unlikely in my view to provide any compensation for the child for the loss of the close and physical regular contact he has with his father.

38.Significant other issues arise in the event of any relocation to South America.  The child, although quite young and hence adaptable, would need to adjust to new physical living circumstances and environment.  He would need to be engaged in a new child care and subsequently kindergarten and school arrangement. 

39.The father’s communications with the child are almost certainly going to be affected by being unable to easily converse in the same language.  The wife acknowledged that in her house she spoke to the child in Spanish.  Her parents do not speak English.  They speak only Spanish.  The husband does not speak Spanish.  In a relocation to South America, Spanish would become entrenched as the child’s native tongue.  Whilst the wife indicated that she would be sending the child to English language school, I am satisfied that the issues of language difference between the husband and the child will make it even more difficult for the two of them to maintain a meaningful relationship.  This is especially relevant in matters of international relocation where there becomes a heavy dependence upon written, oral and electronic communications to sustain meaningful relationships in the absence of regular physical contact.

40.If the child remained resident in Australia, I am satisfied that he would still be able to maintain the same, or a similar, relationship that he presently enjoys with his maternal grandparents.  They have been regular visitors to Australia.  An occasional annual or other visit by the child to them would also assist in maintaining the relationship they have developed.  To their great credit the wife’s parents have provided the wife with significant financial and emotional support.  I am confident they will continue to do so even in the event that a relocation was not permitted.  

41.The husband made an issue of the dangers that the child was likely to encounter in South America.  There was no evidence upon which I could rely in order to make an accurate assessment of that suggestion.  However, I am satisfied that the mother and her parents would be ever vigilant in ensuring the child’s safety, no matter in which country he resided.  I accept the wife’s evidence that her parents’ living arrangements are very comfortable and in a safe and secure residential setting.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

42.This too is a particularly significant issue.  Aside from the cost of international airfares for the child and his mother in travelling to Australia, or for the husband in travelling to South America, the enormous distance between the two countries is translated into 48 hours of flying time.  That would be an extremely onerous journey for the child to undertake, even though it would only be on one occasion each year.

43.The wife has not been able to secure regular and well paid employment, particularly as a health practitioner, in Australia.  Her own means are limited.  She does though still enjoy the generous support of her parents.  In the event that she is permitted to relocate to South America, I am satisfied that she would be able to practice as a health practitioner and hence her income would be significantly enhanced.     

44.For his part, the husband earns only a very modest income and I accept, will continue to do so into the future.  He is employed as a clerical officer in the medical department of a public hospital on a salary of approximately $40,000.00 per annum.  The limited funds available to the parties would severely inhibit the number of opportunities that the child would have to enjoy physical contact with his father and hence maintain a meaningful relationship in the event that I permitted the relocation.

45.Further, the significant distance between the two countries and the substantial amount of flying time involved with a number of intervening stops, means that it would be a long time before the child could undertake international travel alone.  

(f)   the capacity of:

(i)    either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;to provide for the needs of the child, including emotional and intellectual needs;

and

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

46.In my view it is appropriate to deal with these two sub-paragraphs together as they present similar issues for my consideration and determination.

47.I accept that both of the parties are good parents, a fact acknowledged by each of the other.  I accept that they both exhibit the requisite capacity to provide for the child’s needs and both demonstrate an appropriate attitude to the responsibilities of parenthood.  I am equally satisfied though that the wife presently demonstrates a greater capacity in that regard, mainly by reason of the fact that she has spent more time with the child.  She impressed too in her recognition of the husband’s significant role in the child’s life and with her full support of a continuing relationship within the context of what she could manage if relocation was granted.  If relocation is not granted, despite her disappointment, it is clear from the evidence that she will be fully supportive of the relationship between the child and his father and will encourage and nurture same.

48.The husband was not as open and refreshing in the delivery of his evidence.  He was much more defensive and clearly concerned about making any concessions that might mean that he could lose his son to South America and hence his present excellent relationship with him.  I am satisfied nonetheless that the husband is a good father to the child and is clearly supportive of the child’s relationship with his mother and vice-versa.

49.The parties are caught in a difficult and indeed cruel situation.  Each of them recognises the importance of the other to the child.  Each would desperately like to be able to find a workable solution.  The husband is not opposed to the mother’s relocation out of vindictiveness.  The mother is not seeking to relocate to South America out of vindictiveness.  The mother has spent most of her life in South America.  Her parents and other family members are in South America.  She can pursue her professional qualifications in South America.  She simply wants to go home, but to do so would, in my view, harm the child’s relationship with his father. 

50.The mother and her parents are South American.  Her parents speak only Spanish.  The mother is fluent in both Spanish and English.  The mother wishes to encourage and support the child’s links with his South American heritage.  Clearly, that can be best achieved by permitting her relocation to South America with the child.  She acknowledges though that she did get some support and had a good deal of regular contact with the South American community in Adelaide, members of whom she now counts among her friends.

51.The father is Irish.  He was born in Australia of Irish parents.  He too wishes to ensure that the child learns of his Irish heritage and background.  Whilst the husband acknowledges that he has not spent a good deal of time exploring his heritage, the affidavit of his father makes it clear that his father is indeed passionate about it.  I am satisfied that this can only be done in the event that the child remains resident in Australia.  It would not be likely nor indeed possible if he lives in South American.

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

(j)any family violence involving the child or a member of the child's family;

and

(k)any family violence order that applies to the child or a member of the child's family; if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

52.No matters of relevance emerge for my consideration pursuant to these sub-sections.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

53.This too is a difficult issue.  If the mother is permitted to relocate, and did not comply with orders of the Court, then the husband may well institute further proceedings to enforce his entitlements.  As I said earlier, though, I am satisfied that the mother would abide any orders of this Court. 

54.In the event that I did not permit relocation, I am satisfied that the parties will accept my determination on the remaining parenting issues and that it is most unlikely that there will be further proceedings instituted between them.  Their relationship is sufficiently co-operative and they would be able to make such necessary adjustments to the time that each of them spends with the child as he grows, develops and matures.  They will each work towards accommodating the child’s needs and the rights of the other parent to have regular and meaningful contact with him.

55.However, I cannot rule out the possibility of the wife making a further application to relocate when the childis older.

(m)      any other fact or circumstance that the court thinks is relevant.

56.No additional matters of relevance arise for my consideration pursuant to these sub-sections.

Section 60CC(4)

(4)  Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)   has taken, or failed to take, the opportunity:

(i)      to participate in making decisions about major long-term issues in relation to the child; and

(ii)     to spend time with the child; and

(iii)    to communicate with the child; and

(b)   has facilitated, or failed to facilitate, the other parent:

(i)      participating in making decisions about major long-term issues in relation to the child; and

(ii)     spending time with the child; and

(iii)    communicating with the child; and

(c)    has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

57.This sub-section does not loom large in the determination of these proceedings.  Each of the parents has participated in the child’s life as fully as practical circumstances have permitted.  Each has availed themselves of every opportunity they could to spend meaningful time with the child and assist the relationship of the other with the child.  I accept the wife’s evidence that in times past the husband was less attentive to the child than he could have been, but it is of little significance now.  The husband smoked marijuana for much of their cohabitation.  The mother is concerned that he is still doing so but I am satisfied on the evidence (Exhibit 1) that it is no longer an issue for my consideration in framing parenting orders.

58.Each has done what they could, within their respective means and capacity, to maintain the child.

Section 61DA

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:

(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b) family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

59.In the event that I did not permit relocation to South America, all of the evidence supports the maintenance of the presumption.  The parties should share parental responsibility for the child, equally.

60.In the event that I permitted relocation, then equal shared parental responsibility would be impossible by reason of distance and physical and practical circumstances.  The mother would need to have sole parental responsibility for the child in those circumstances.  It would not be in the child’s best interests for any significant and important decisions impacting upon his health, welfare or education, to await the distant input and approval of the husband. 

Section 65DAA

Equal time

(1)If a parenting order provides  (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)consider whether the child spending equal time with each of the parents  would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2)     If:

(a)a parenting order provides (or is to provide) that a child’s parents  are to have equal shared parental responsibility for the child; and

(b)the court does not make an order (or include a provision in the order) for the child  to spend equal time with each of the parents; and

the court must:

(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a)the time the child spends with the parent includes both:

(i)     days that fall on weekends and holidays; and

(ii)    days that do not fall on weekends or holidays; and

(b)the time the child spends with the parent allows the parent to be involved in:

(i)     the child’s daily routine; and

(ii)    occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the  parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

61.In the event that I do not permit relocation, I need to consider carefully the provisions of this section.  However, the husband’s job, based around rotating shift work of 3 early shifts and 3 late shifts, effectively makes it impossible for him to enjoy an equal shared care arrangement.  I am satisfied on the evidence that it would not be possible for him to structure his working life such that the child could spend week and week about with each of his parents.  The husband indicated that it was possible to swap shifts with other staff members but he frankly acknowledged that such swaps would depend on some other employee being able to swap with him.  He acknowledged in evidence that if he was able to achieve an order of this Court that he spend more time with the child there was no certainty that he could alter his rosters or swap with other staff members.  He would be heavily dependant upon the assistance of child care and the support of his sister, her husband and his father.  In my view that is no substitute for time that the child could spend with a parent, in this case the wife.  To his credit, the husband acknowledged that his proposal of week and week about, given his shift work, would be unsettling for the child.

62.The husband further conceded that the wife cares appropriately for the child and that she is a good mother.  In those circumstances, in the event that I did not grant relocation, it would not appear to be in the child’s best interests that the present arrangement be altered too dramatically.  It is not in the child’s best interests that he spend week and week about with each of his parents.  His mother should continue to provide her excellent, attentive, nurturing care.

63.Within the context of the husband’s rostered shift work, I am satisfied that to perpetuate the current orders with the addition of one extra night per fortnight, would ensure that the husband can spend such substantial or significant time as is appropriate in these circumstances.  By the conclusion of the trial proceedings the husband sought 5 nights in 14.  The wife eventually conceded that she could accept that arrangement but in my view the uncertainties of the husband’s work roster mean that it is not an arrangement I should entertain.  The child’s best interests dictate that he should spend the principal proportion of his time in his mother’s care.

64.As I said, the wife was not opposed to the husband spending some additional time with the child although wanted to avoid Sundays so that she could practice her religion with the child.  She is a devout Catholic.  She also wanted some occasional Saturday time with the child.  During their evidence the parties seemed comfortable with an arrangement whereby the child spent time with his father from 6.00pm Thursday to 6.00pm Saturday of each alternate week, and then 6.00pm Thursday to 2.00pm Saturday of each intervening alternate week.

65.They were in agreement as to the sharing of special days although as Christmas Day is also the wife’s birthday, it is appropriate that the child spend the majority of that day each year with his mother.  In the event that relocation is refused, the child will be the wife’s only family member with whom she can celebrate Christmas.  In that event, the parties agreed that the child would spend time with his father from Christmas Eve to 10.00am on Christmas Day in alternate years, and from 8.00am to 10.00am on Christmas Day in the intervening years.

Assessment of the parties’ competing proposals
Factors in support of relocation

66.The wife was born in South America.  Both of her parents and her extended family reside in South America.  In their several trips to Adelaide, the wife’s parents have established a warm relationship with the child.

67.The wife’s parents can offer accommodation for the wife and the child in South America.  The wife’s accommodation arrangements in Adelaide are uncertain.  She presently lives in rented accommodation.  Whether, after the property settlement ordered hereunder by me, she could afford to buy a property of her own, is questionable. 

68.I am satisfied that the wife will facilitate such communication and contact as is possible and feasible within the confines of the parties financial situation and given the tyranny of distance.  I am satisfied that she will afford to the husband one visit each alternate year and that she will then visit the husband with the child in each intervening year.  I am satisfied that she will provide and actively encourage the use of internet, webcam and other facilities for communication between the child and his father. 

69.The wife has failed in her four attempts to achieve the necessary qualifications to practice as a health practitioner in Australia.  She has all of the qualifications that are necessary to be able to practice allied health in South America and hence her income and financial position would be significantly enhanced by a relocation to South America.

70.I accept that the wife will be saddened and upset in the event that she is not permitted to relocate.  That will make parenting more difficult for her without family support in the country of her residence. 

71.Relocation would recognize the wife’s right to freedom of movement.

72.The child would be able to establish and maintain a strong connection with his South American heritage.

Factors against relocation

73.The child was born in Adelaide.  His father and extended paternal family members live in Adelaide and have developed a close and warm relationship with the child.

74.Pursuant to the orders I propose to make, the husband will spend 4 nights per fortnight with the child.  He would also be spending one half of all of the child’s school holiday periods with him when the child gets to the age that he attends kindergarten and school.  In those circumstances the child will be spending in excess of 130 nights per annum in his father’s care, which is over one third of the year.

75.In the event that I approve relocation the child will only get to spend some 25 – 40 nights per year with his father, some 100 nights per annum less.

76.The child is not yet 3 years of age. He is not yet fluent in either Spanish or English but the wife acknowledged in her evidence that she did speak to the child in Spanish at home.  The prospects of the child becoming fluent in Spanish, but not in English are high in the event that relocation is permitted despite the wife’s stated intention to send the child to an English speaking school.  However, the child will almost certainly enjoy the benefits of being bilingual if he remains in Adelaide.  The father speaks only English.  It is likely that he would encounter significant difficulties in communicating with his son in the event that the child went to live in South America.  Conducting a meaningful relationship in those circumstances would be extremely difficult.

77.South America is a long way away.  It is some 48 hours flying time from Adelaide.  It would be expecting a great deal of the parties or the child to be able to commute over those lengthy distances and for those lengthy periods of time on any sort of regular basis.

78.The significant distance between the two countries also translates into significant costs.  Whilst the wife can expect to earn more if she is able to practice her chosen profession of Allied Health in South America and could expect financial support from her parents, the costs of maintaining a meaningful relationship between the child and his father would be quite prohibitive.  The father earns only a modest $40,000.00 per annum as a clerical officer.  His prospects of ever earning significantly more than that, are extremely remote and most unlikely. 

79.Great distance and significant costs can sometimes be addressed by the child travelling alone.  However, given the significant distances involved and the transfers of aircraft required, it will be a long time indeed before the child can travel alone safely on such lengthy and complex international flights.

80.Whilst the wife has been the child’s principal carer, the husband has been a “hands-on” parent.  He has maintained regular contact with the child throughout his life and since separation.  He has participated in various relevant parenting activities.  He will not be able to continue to engage in such regular and familiar activities both for the child and himself, in the event that the child goes to live in South America.  The husband would be a stranger to the child’s growth and development.  In fact relocation would mean only one parent could effectively be involved in the child’s growth.  The child’s formative years are critical in the development of his attachments to relevant adults, particularly his parents.  Such attachment to his father would be nigh impossible in the event of relocation to South America.  In the event that relocation is not permitted the child will have the opportunity of a full and meaningful attachment and life with both of his parents and other relevant adults, particularly extended paternal family members.

81.Whilst she has failed her qualification exam on four occasions, the wife can sit for her Allied Health qualification exam in Adelaide effectively as many times as she wishes.  She indicated in her evidence she would need a good 12 months to study for the exam again but agreed that she could do it.  The husband offered to pay an exam fee of $1,100.00.  Thus the possibility still remains that the wife can become qualified to practice as a health practitioner in Adelaide thereby increasing her income, her job satisfaction and her security.

82.The child would be required to adjust to a new environment and altered physical surroundings.

83.The child would lose his connection with his Irish heritage and the capacity to learn of it and develop it.

Summary

84.In what is an extremely difficult matter, I am satisfied that the child’s best interests would not be served by permitting the wife to relocate to South America with him.

85.Such an outcome is an extremely harsh and cruel outcome for the wife.  It is quite simply not her fault that she is now stuck in Adelaide for the foreseeable future.  She has done nothing wrong.  She was born in South America.  She travelled to Adelaide to further her academic and professional qualifications.  She fell in love.  She married.  She had a son.  She separated from her husband.  She is confined to Australia for no other sin than that she fell in love and had a child.

86.Similarly, any approval for the wife to relocate to South America with the child, would be a cruel result for the husband.  He too has done nothing wrong.  He fell in love with a young South American women.  He married and had a child with her.  Their marriage did not survive.

87.However, as the legislation dictates, whilst their interests are very important it is not as much about the parents, as it is about the child.

88.Pursuant to Section 60CA it is the child’s best interests which constitute the paramount consideration.

89.A revisitation of the factors identified by me as being relevant pursuant to Section 60B and Section 60CC dictates that I cannot grant the wife’s application to relocate to South America with the child. Effectively none of the relevant objects and principles enumerated in Section 60B could be met in the event of a relocation. Permitting relocation would not:-

89.1ensure that the child will have the benefit of a meaningful relationship with both of his parents and for both of them to have a meaningful involvement in his life (Section 60B(1)(a))

89.2ensure that both parents are able to fulfil their duties and meet their responsibilities concerning the child’s care, welfare and development (Section 60B(1)(d))

89.3afford to the child the right to know and be cared for by both of his parents (Section 60B(2)(a))

89.4recognise the child’s right to spend time on a regular basis with, and communicate on a regular basis with, both of his parents and other people significant to his care, welfare and development (such as grandparents and other relatives) (Section 60B(2)(b))

89.5enable the husband to jointly share duties and responsibilities concerning the child’s care, welfare and development (Section 60B(2)(c))

89.6enable the husband to participate in any meaningful way about the child’s future parenting (Section 60B(2)(d))

89.7enable the child to enjoy his Irish culture (Section 60B(2)(e))

89.8enable the child to benefit from having a meaningful relationship with both of his parents (Section 60CC(1)(a)).

90.In short, denying relocation to South America, meets the child’s needs.  It better recognises his best interests.  Relocation to South America would not do either.  During the hearing I tentatively advanced the notion of relocation being granted but delayed a few years.  However, on a full review of all of the evidence, I am not satisfied that the child’s best interests would be advanced by such an order.

Security

91.In the event that relocation was refused, the wife sought permission to take the child to South America once per annum for a period of up to 6 weeks.  The husband is concerned that the wife will not return the child to Australia at the conclusion of such visits.  However, as I said earlier, I was impressed with the wife as a witness and, as much as these matters are predictable, I believe she will abide all orders of this Court.  If not, then the husband can take some comfort from the fact that the South American country is a signatory to the Hague Convention on the Civil Aspects of Child Abduction.  Further, the wife offered security of $20,000.00 for each such trip.  I believe an amount of $10,000.00 would be adequate.  The wife has limited means.

Property Settlement

Assets and Liabilities

1.92.      The parties were able to agree their assets, liabilities and superannuation entitlements (save and except for some alleged debts due to the husband’s father, which I will deal with later) as follows:-

1.    Former matrimonial home property

at T   $320,000.00

2.    Husband’s furniture   $3,903.00

3.    Wife’s furniture                     $330.00

Total                  $324,233.00

Superannuation

1.   Husband’s A superannuation   $36,852.00

2.   Wife’s S Superannuation      $2,475.00

Total                    $39,327.00

Liabilities

1.   W Credit Union Mortgage   $56,836.00

2.   W Credit Union overdraft   $28,810.00

Total                    $85,646.00          

93.Neither party is seeking a splitting order in relation to the superannuation benefits.  They are content for me to treat them as part of the asset pool.

94.Thus the net total of the assets and superannuation, after deducting the liabilities, is represented by a figure of $277,914.00.

95.The parties also owned a Ford Falcon motor vehicle at separation.  The husband retained that vehicle after separation but paid to the wife a figure which was agreed as representing one half of its value.  Thus neither party asks the Court to include that motor vehicle in the determination of their respective property settlement entitlements.

Alleged debts due to the husband’s father

96.The wife agrees that the husband’s father provided to the husband an amount of $20,000.00 at the time that he purchased the former matrimonial home property.  The husband and his father gave evidence that it was a loan.  The wife disputes the fact that it was a loan and says that it was a contribution made by the husband’s father on the husband’s behalf.  As conceded by counsel for the wife, the outcome is likely to be little different whether I treat the amount of $20,000.00 as having been a loan or treat it as a significant contribution by or on behalf of the husband.

97.Whilst the evidence of the husband and his father was a little vague as to the terms of the loan, I accept that nonetheless it is a loan.  I accept that within the terms of their relationship they did not get down to a great deal of specific detail as to the terms of the loan.  I accept though that the husband’s father has an expectation of repayment at some time, particularly if the house is sold.

98.I cannot though make a similar finding as to the alleged interest owing on the loan of $20,000.00.  The evidence of both the husband and his father makes it clear that there was no agreement as to the payment of interest upon which I could rely.  The evidence on this topic was vague, confusing and unconvincing.

Total net assets

99.A summary of the assets and liabilities of the parties then is as follows: -

1.         Total gross assets  $324,233.00

2.         Total superannuation    $39,327.00

$363,560.00

3.         Less total agreed liabilities    $85,646.00

$277,914.00

4.         Less husband’s fathers loan    $20,000.00

Total net assets  $257,914.00

Contributions

100.The husband’s contributions at the commencement of cohabitation were significantly greater than that of the wife.  The wife had only nominal assets.  For his part though the husband owned a number of assets including the former matrimonial home property.  Neither party produced any evidence as to the value of the former matrimonial home property.  The husband maintained that it was worth $140,000.00.  The wife was prepared to concede that it was worth $125,000.00.  He had furniture to the approximate value of $3,000.00, a motor vehicle worth some $2,000.00 and superannuation agreed at $9,365.00.  The wife conceded that all bar 3 of the furniture items listed in Exhibit 5, were owned by the husband prior to cohabitation.

101.Thus the gross total of the husband’s initial contributions was somewhere between $139,365.00 and $154,365.00.

102.There were though liabilities.  He owed the Commonwealth Bank on the security of mortgage the sum $63,000.00 and his father an amount of $20,000.00.  Thus the total net contribution of the husband at the outset of their cohabitation which lasted a period of some 5 and half years, was between $56,365.00 and $71,365.00.

103.There has thus been an increase in the net asset pool of the parties to the date of trial of between some $186, 549.00 and $201,549.00.

104.The wife earned only modest amounts of income during the period of cohabitation.  For his part, the husband was employed throughout and earned in the order of $40,000.00 per annum.

105.The wife though received significant financial assistance from her parents, that assistance being ultimately for the benefit of the husband, the wife and the child.  I am satisfied that the wife did not devote that financial assistance from her parents to her own sole purposes.  I accept the evidence of the wife, which is summarised in paragraphs 91, 92, 93 and 94 of her trial affidavit filed on 28 July 2006, that those financial contributions of her parents totalled something in the order of $50,000.00 – $55,000.00.   Whilst not agreeing to the quantum, the husband acknowledged that the wife’s parents provided financial assistance.

106.In 2004, the parties undertook extensive renovations to the former matrimonial property.  The mortgage on the property was extended by a further $30,000.00 to cover the costs of those renovations.  However, the costs of those renovations would have been significantly more had it not been for the extensive amount of physical work undertaken on the property by the husband’s father.  The assistance offered by the parties was minimal given that the wife was pregnant (and it was a difficult pregnancy) and the husband was working.  The renovations contributed in large part to the significant increase in value in the property between cohabitation and trial.  There was, though, also the natural appreciation in the real estate market.

107.When the wife’s parents were not visiting and assisting in this regard, the parties both undertook household and domestic tasks but I accept that the wife did more.

108.I find too that the wife contributed significantly more to the care of the child than did the husband.  That has continued to be the case since separation.

109.On balance, the husband has contributed more than the wife.  He had a net asset pool of some $56,000.00 to $71,000.00 at the commencement of the party’s cohabitation.  He was the significant bread winner within the family and his father assisted substantially in significant renovations to the former matrimonial home property, thereby increasing its value.  The wife though contributed through the financial offerings of her parents and her greater role in the parenting of the child since his birth on … August 2004.

110.In my view, that differential in contributions should be reflected by a division of the net asset pool between the parties on a 70 / 30 basis in favour of the husband.

Section 75(2) Factors

111.I turn now, as I am obliged to do by Section 79(4)(e) to the factors enumerated in Section 75(2).

(a) the age and state of health of each of the parties;

112.Both parties are relatively young.  The wife enjoys good health but the husband suffers a 20% permanent disability in his back for which he must take medication.  He also has a liver disorder which is controlled by diet.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

113.Presently the husband enjoys a superior capacity for gainful employment than does the wife.  Whilst his income will always be of relatively modest proportions in the clerical position that he occupies, he is presently able to earn more than the wife and does so.  What the wife is able to earn in the future is very much dependant upon whether or not she is able to pass her examinations which would qualify her to practice as a health practitioner in Australia.  Presently she has tried and failed on 4 occasions to gain that qualification.  I accept that her capacity to pass the necessary exams would likely diminish over time.  She conceded though that she would, if obliged to remain in Australia, try again some time in the future but she would need at least 12 months to study intensively before doing so.  Thus, as far as is predictable, the husband’s income and earning capacity is likely to be greater than that of the wife for quite a number of years yet, if not forever.

114.As a consequence of my findings on the party’s respective contributions, the husband will also enjoy a greater property base than will the wife, unless there is further adjustment.

(c ) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

115.The predominant role in this regard will fall to the wife.  The child will be in her primary care and will be her primary responsibility for some 10 nights in every 14 during school term periods.  The child is approaching only the age of 3 years and thus her responsibilities in that regard will be significant for many years hence.

(d) commitments of each of the parties that are necessary to enable the party to support:-

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

116.No matters of relevance emerge for my consideration pursuant to these sub-sections.

(f) subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under –

(i) any law of the Commonwealth, of a State or Territory or of another country;
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside of Australia, and the rate of any such pension, allowance or benefit being paid to either party.

117.The husband has accumulated superannuation benefits presently of the value of approximately $37,000.00.  The wife has a very modest superannuation entitlement in the order of $2,500.00.  The wife receives social security benefits identified in her Form 13 Financial Statement filed on 28 July 2006, as $403.00 per week.  She has though a debt to Centrelink of $1,000.00 for an overpaid family tax benefit for which an amount of $60.00 per fortnight is deducted from her pension.

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

118.There are no matters of relevance which require my consideration pursuant to these sub-sections.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under considerations;

119. Whilst it is not the duration of the marriage which has inhibited the wife’s earning capacity, her capacity in that regard is nonetheless significantly restricted by my decision that she needs to remain in Australia with the child.  If she had been able to return to South America then she could have earned income as a health practitioner.  As it is she is restricted to earning income as a health practitioner’s aide or receptionist.   Presently her wages are only some $100.00 per week from running Pilates classes.

(l) the need to protect a party who wishes to continue that party’s role as a parent:

120. As I said, the wife will continue in the most significant and important role of caring for the child.

(m) if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;

121.This sub-section is not relevant to the circumstances of this matter.

(n) the terms of any order made or proposed to be made under section 79 in relation to:-

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party;

122.As previously stated, my determination after considering the parties respective contributions, is to the effect that the husband will retain the majority of the asset pool. 

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage;

123.The husband pays child support to the wife of relatively modest proportions.  In his Form 13 Financial Statement filed on 10 April 2006, the husband states the amount to be $100.00 per week.  In her Financial Statement filed on 28 July 2006, the wife does not state any amount.  In her evidence though she said that she received $365.00 per month.

(o) any fact or circumstances which, in the opinion of the court, the justice of the case requires to be taken into account; and

(p) the terms of any financial agreement that is binding on the parties;

124.Neither of these sub-sections is relevant to this matter.

Finding on Section 75(2) factors

125.These factors substantially favour there being a significant adjustment in favour of the wife.  It is likely that the husband will earn more than the wife.  He has a greater property base.  He enjoys a greater earning capacity and hence a greater borrowing capacity. The wife bears the primary responsibility for the child to a significant degree and will do so for at least another 15 years until the child obtains his majority. 

126.In my view it is appropriate to make an adjustment in favour of the wife of 20% meaning that the net assets of the parties ought to be divided equally between them.

Just and Equitable

127.It remains for me to consider whether or not the orders I propose in relation to the property settlement issue between the parties are just and equitable (Section 79(2) of the Act).

128.A division of the net asset pool equally between the parties would result in each of them receiving assets or payment to the value of some $129,000.00. 

129.In his evidence the husband said that if he was obliged to pay the wife more than $50,000.00 by way of property settlement then the former matrimonial home property needed to be sold.  The wife will retain only modest assets by way of her furniture and her superannuation approximating some $2,800.00.  She would therefore be due a payment of $126,200.00.  Thus the amount the husband will be obliged to pay to the wife, as a consequence of my findings, is significantly in excess of the amount that he says he can afford to borrow to pay to the wife.  Thus a sale of the former matrimonial home property is inevitable.

130.Each of the parties will have a modest amount to contribute to the purchase of alternative accommodation.  There must be a strong possibility that the husband’s father will again assist the husband, at least to the extent of advancing again the $20,000.00 he loaned him upon the purchase of the former matrimonial home property.  Also, the husband has a demonstrated income and a demonstrated borrowing capacity.  In those circumstances I am satisfied that he will be able to rehouse himself and thereby provide suitable accommodation for the child during those times that the child is with him.

131.From her own resources, the wife’s position is somewhat more difficult.  Whilst she will have a reasonable deposit to place on a property, she does not have any demonstrated earning capacity or borrowing capacity.  She did though indicate that her parents would continue to assist her and I am satisfied that they will again come to her aid and afford to her an opportunity to acquire suitable accommodation in which she can undertake the primary care of the child.

132.In all the circumstances, I am satisfied that the proposed property settlement is a just and equitable one in the circumstances of this case.

I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date: