Lambton and Lambton
[2017] FamCA 73
•15 February 2017
FAMILY COURT OF AUSTRALIA
| LAMBTON & LAMBTON | [2017] FamCA 73 |
| FAMILY LAW – CHILDREN – Application by mother to relocate overseas with the child – Where the child is 3 ½ years old – Where the father and paternal family reside in Australia – Where the father opposes the mother and child relocating overseas – Where the mother suffers from depression – Where the mother contends her parenting capacity is impaired by living in Australia – Where the expert evidence indicates that the child’s relationship with the father will be impaired if permitted to relocate – Where the effect of the child of losing their relationship with the father is balanced against the mother’s impaired parenting capacity in Australia – Where there is no certainty that the mother’s mental health will improve upon relocating overseas – Where orders are made for the child to live in Australia with the mother and spend significant and substantial time with the father. |
FAMILY LAW – PROPERTY – Application by mother for property settlement and spousal maintenance – Where the father’s contributions were greater than that of the mother’s – Where an adjustment of 15 per cent in the mother’s favour is made under s 75(2) – Where the mother is entitled to 60 per cent of the property pool – Where the husband’s contended loans to his parents have been added back into the asset pool – Orders are made for the husband to retain the former matrimonial home and to make a lump sum payment in favour of the mother – Where a superannuation splitting order is made in favour of the wife – Orders made for spousal maintenance for three months.
| Family Law Act 1975 (Cth) ss 60CC(2), 72 Family Law Rules 2004 (Cth) r 15.41 | |
| APPLICANT: | Ms Lambton |
| RESPONDENT: | Mr Lambton |
| FILE NUMBER: | SYC | 212 | of | 2015 |
| DATE DELIVERED: | 15 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 20, 21, 22 and 23 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Pigdon Norgate Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
IT IS ORDERED
PARENTING
That the parents Ms Lambton (“the mother” or “the wife”) and Mr Lambton (“the father” or “the husband”) have equal shared parental responsibility for the child B born … 2013 (“the child”).
That the child live in Australia.
That the child live with the mother.
That, from the child’s fourth birthday, she spend time with the father as follows:
(a)Each Thursday from 3.00pm until Friday morning at the commencement of day care, commencing on Thursday 3 August 2017; and
(b)Each alternate weekend from Friday morning until Monday morning before day care, or 9.00am if the child is not attending day care, commencing 4 August 2017.
On two occasions in 2017 and four occasions in 2018, provided the father gives one month’s notice in writing to the mother, the time in Order 4(b) may be extended to conclude on Wednesday morning.
That from the commencement of the school year in 2019, the child shall spend one half of each school holiday period with the father, subject to Order 7.
That in each of 2017 and 2018 the mother shall be permitted to take the child to the United Kingdom for two periods, each not to exceed four weeks, provided that she gives the father 28 days notice in writing of her intention to do so.
That in 2019 and each year thereafter, the mother shall be permitted to take the child to the United Kingdom for one period not to exceed four weeks, unless otherwise agreed, in the Christmas school holidays. If the mother takes the child to the United Kingdom pursuant to this Order, then the child shall spend the whole of the school holidays at the end of Term 1 and Term 2 of the following year with the father.
That the father shall pay one half of the costs of the child’s economy class airfare for any return trip to the United Kingdom pursuant to Orders 7 and 8 above.
That pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) each parent shall be allowed to travel overseas with the child during any period that the child is in that parent’s care pursuant to these Orders subject to providing written notice to the other parent no less than 28 days before the intended departure date and the other parent is provided with the address and contact details of the place the child will be living during the holiday.
That where, in these Orders, notice is required to be given in writing, such writing shall include by email.
That for the purpose of these Orders, the school holiday shall commence on the morning after the last day the child attends school and end on the evening of the day before she next attends at school.
That on any occasion when the child is on holidays with a parent, that parent shall facilitate the child communicating with the other parent each morning between 7.00am and 8.00am in whichever time zone the child is present.
Notwithstanding any other provision of these Orders, the child shall spend time with the mother:
(a) From 9.00am to 4.30pm on Mothers’ Day;
(b)From 9.00am until 5.00pm on the mother’s birthday if it falls on a non‑school day or from after school until 7.00pm if it falls on a school day;
(c)For no less than two hours on the child’s birthday and in default of agreement, if the child is otherwise in the father’s care, from 4.30pm until 6.30pm;
(d)Provided the parents are in the same country, from 5.00pm on Christmas Eve until noon on Christmas Day in odd numbered years, and from noon on Christmas Day until 5.00pm on Boxing Day in even numbered years.
Notwithstanding any other provision of these Orders, the child shall spend time with the father:
(a) From 9.00am to 4.30pm on Fathers’ Day;
(b)From 9.00am until 5.00pm on the father’s birthday if it falls on a non‑school day, or from after school until 7.00pm if it falls on a school day;
(c)For no less than two hours on the child’s birthday and in default of agreement, if the child is otherwise in the mother’s care, from 4.30pm until 6.30pm;
(d)Provided the parents are in the same country, from 5.00pm on Christmas Eve until noon on Christmas Day in even numbered years and from noon on Christmas Day until 5.00pm on Boxing Day in odd numbered years.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
PROPERTY
Company D Shares
Definition:
"Company D Deferred Shares" means:
Name of Plan & vesting date # of shares that vest Deferred S/P (ESAP) a) 22.11.2019 1,361 shares b) 18.11.2018 1,899 shares c) 21.11.2017 1,411 shares Employee share offer (AUS) d) 3.12.2018 33 shares e) 4.12.2017 29 shares Share save scheme (SSS) f) 31.12.2016 278 shares
That in respect of the husband's Company D Deferred Shares the following shall occur:
(a)The husband shall provide to the wife notice in writing 7 days prior to the Company D deferred shares vesting.
(b)Upon the vesting of the Company D deferred shares:
(i)the husband shall do all acts and things to sell 60 per cent of the shares which have vested within 14 days of the vesting date of such shares (provided such period is not a "black out" period that prevents the husband from transferring or selling shares) and upon the sale of the said shares, he shall pay the proceeds of sale as follows:
1. Brokerage and other costs of sale associated with the sale of shares;
2. Pay to an account in the parties’ joint names an amount equal to a calculation set out in Order 17(b)(ii) ("the joint account")
3. The balance to the wife ("the Wife's shares").
(ii)That upon the sale of the Wife's shares, the husband shall provide to the wife a verified statement prepared by the husband's accountant which sets out an estimate of the tax payable on the Wife's shares and such schedule shall include a detailed calculation of the tax payable.
(iii)Upon the filing of the husband's income tax return for the relevant financial year, which shall be submitted by the husband no later than March following the expiration of the financial year in which the Wife's shares are sold, the parties must do all acts and things to pay from the funds held in the joint account to the Australian Taxation Office an amount sufficient to meet any income tax that is payable by the husband as a result of the receipt and sale of the Wife's shares.
(iv)The husband must, 14 days prior to the date upon which the husband is required to pay tax referred to in the preceding order, provide to the wife a copy of the husband's income tax return for the relevant financial year together with all documents and records relied upon by the husband's accountant to verify the tax payable by the husband as a result of the sale of the Wife's shares and/or any income tax payable by the husband as a result of the vesting of such shares together with a copy of his Notice of Assessment of Taxation.
(v)In the event there are funds remaining in the joint account after the payment having been made to the Australian Taxation Office, the parties will do all acts and things to cause the balance of the funds held in the joint account to be paid to the wife as she may direct.
(vi)In the event the funds in the joint account are not sufficient to meet the tax payable by the husband as a result of the receipt and tax payable on the Wife's shares, the wife shall, within 7 days of the receipt of documents referred to in Order 17(b)(iv) pay any shortfall between the tax payable as a result of the receipt and sale of the Wife's shares and the funds held in the joint account.
In the event of dispute between the parties as to the calculation of the tax referred to in the preceding paragraph the parties shall jointly appoint an accountant as agreed between the parties, to make an expert determination as to the amount of taxation payable by the husband in respect of the Company D Deferred Shares, and the parties shall be bound by that determination and the costs of that determination to be borne equally between the parties.
In the event an expert is to be appointed pursuant to Order 18 the wife shall nominate the name of three suitably qualified experts, and 7 days thereafter the husband shall select one of the names nominated by the wife, and should the wife fail to nominate three accountants, then the accountant such be such person as the husband shall nominate, the parties to share one half of the costs associated with the appointment of the expert.
Lump sum payment to wife
Within three months of the date of these Orders, the husband shall pay to the wife the sum of $656,288.
That in the event that the husband does not pay the amount in Order 20 by the due date, then the husband shall sell Suburb C and, from the net proceeds of sale pay to the wife the sum in Order 20 together with interest at the rate prescribed in the Family Law Rules 2004 (Cth) from the due date until the date of payment.
Superannuation
That:
(a)In accordance with section 90MT(1)(b) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the interests of the husband in the Company D Staff Superannuation Fund, the wife will be entitled to be paid the sum of $161,101 and there will be a corresponding reduction in the entitlement of the husband, being the person to whom the splittable payment would have been made but for these Orders.
(b)That Order 21(a) have effect from the operative time, being the fourth business day from the date of service of these Orders.
That subject to these orders each party shall be entitled to retain any asset in his or her possession.
Spousal Maintenance
That for a period of three months from the date of these Orders, or until the payment of the lump sum referred to in Order 20, whichever is later, the husband shall pay to the wife the sum of $1,361 per week by way of spousal maintenance, the first payment to be made forthwith and thereafter weekly.
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 Lambton & Lambton 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 212 of 2015
| Ms Lambton |
Applicant
And
| Mr Lambton |
Respondent
REASONS FOR JUDGMENT
Ms Lambton (“the wife”) was born in the United Kingdom (“UK”). Mr Lambton (“the husband”) was born in Australia. The husband lived and worked in the UK from 2002 and met the wife there.
In October 2006 they moved to Australia and commenced living together in about April 2007.
They married in Australia in 2008 and have a daughter, B, who was born in 2013.
They physically separated on 1 July 2014. the child remained living with the wife. Thereafter, the child has spent increasing periods of time with the husband.
The wife now asks the Court to allow her to move with the child to live in the UK, specifically in F Town. The husband opposes that application.
Both parties ask the Court to make orders adjusting their financial interests. In addition, the wife seeks an order for spousal maintenance.
PARENTING
In this section of the reasons, the parents will be referred to as “the mother” and “the father”.
The mother’s case is that her return to the UK will be in the child’s best interests. She submits that:
· Her mental health will improve;
· She will have a support network;
· She will have financial security; and
· She will not have to deal with a difficult parenting relationship with the father on a day to day basis.
It is the mother’s case that the best outcome for the child is that she and the father both move to the UK.
In the event that the child is not permitted to relocate, the mother will stay in Australia.
The father opposes the relocation application. He will not move to the UK.
The father’s case is that a move to the UK will not be a panacea for the mother’s difficulties.
He submits that the evidence does not establish all or any of the following:
· That the mother will find financial security in the UK;
· That she will have the family support she expects;
· That her mental health issues will resolve.
Whilst much was made in the mother’s affidavits of alleged poor behaviour by the father in relation to her around the time of their separation and in relation to their parenting relationship after separation, little time was spent in cross‑examination on those allegations.
This determination will not turn on the evidence of the parents about the events leading up to the hearing.
There is no dispute that the child’s primary attachment is to her mother. There is no dispute that she has a close and loving relationship with her father.
There is no dispute that the child’s relationship with her father cannot be sustained in its current form, and cannot progress to a close and mature relationship, if the child lives in the UK and he lives in Australia.
The issue in the parenting determination revolves around two factors. The first is an assessment of the effect on the mother’s parenting ability of her depressed state and the effect on her depressed state of relocating to the UK. The second is the child’s ability to have a meaningful relationship with her father if she and her mother are permitted to relocate to the UK.
The Court was assisted by a report from a single expert, Mr G, who was cross-examined.
The mother relied on affidavits of herself, her mother, her father, her brother and her psychiatrist Dr H.
The father relied on affidavits by himself, his father and his mother.
Not all deponents were required for cross-examination.
THE EVIDENCE IN THE MOTHER’S CASE
There is no doubt that the mother believes that, if she is permitted to relocate with the child to the UK, her problems will all be solved. She appears to see nothing but a positive future for herself in the UK.
However, it is not the mother’s subjective evidence that will determine that issue but the evidence of her psychiatrist and the single expert which will be examined later in these reasons.
The mother’s assertion that she could return to her childhood home needs to be examined in the light of history.
The mother left home when she was aged 19 to go to university in City I. City I is some 340 miles from F Town. She is now aged 34 years. She has not lived in F Town for 15 years although she has visited at least annually.
The mother relied on her assertion that the father, having worked in the UK before, could do so again.
When the parties met in 2004, the father was working for the Company J in City I. There is no evidence that he has maintained any employment contacts in UK or that he has any contacts in London. It was not suggested by the mother that he could find employment in his profession in F Town.
The father is currently employed in a senior management role with Company D. He earns a significant salary.
There is no evidence that he could obtain a comparable position, or any position, in his profession, in the UK. There is no evidence that he has any other qualifications for employment or that there is any other field of employment open to him in the UK.
On behalf of the mother, it was put to the father that he could obtain a position in London. He did not agree with that proposition but said in cross‑examination that he would then have to live in London and travel to F Town to spend time with the child, a journey that he said would take about two hours.
The mother’s proposals for the child to maintain contact with her father, if the child lived in the UK and he lived in Australia, which involved the child spending time with him in the UK each year and then the mother bringing the child to Australia for a second extended visit, were conceded by the mother to be unworkable. She said in cross-examination that this was the best she could come up with. She conceded that the father would not be able to take time off for the extended periods that she offered and that the best that could be achieved in Australia was that the father worked during the day and saw the child in the evenings.
She conceded that the child’s relationship with her father would be damaged if the child lived in the UK. Asked if that was acceptable to her the mother replied “How I’m living isn’t acceptable”. She agreed that, if the child lived in the UK, her relationship with her father would be “severely compromised”.
In cross-examination, the mother conceded that the parenting relationship had improved and that she and the father were able to negotiate arrangements where he cared for the child when she needed assistance with work or other commitments. She also conceded that the paternal grandparents were willing to care for the child at any time and that it was she who, until recent times, had been unwilling to allow the child to spend time with them. In fact, the paternal grandparents were caring for the child during the hearing.
THE EVIDENCE IN THE FATHER’S CASE
It was a critical plank of the mother’s case that she had a good relationship with her parents and would receive their support if she relocated.
That was not always the mother’s position.
The father deposed that when he first met the mother she was living in City I, about 340 miles from her home town and her parents. He was not aware that she visited them regularly. He deposed that the mother said to him that she was not particularly close to her mother and that her mother had only visited her twice in City I. The father said that on about five occasions the mother had cried when she told him that her mother did not give her much attention. That evidence was not challenged.
The father deposed that, when he and the mother announced their engagement in Australia, the mother rang her parents and spoke to her father. She was told that her mother was asleep and she asked her father to have her mother call her. Over the next four days, the mother waited for the call. The father said that the mother was devastated and she cried when her mother did not call. As arrangements were being made for the wedding, the mother was upset because her mother did not seem to be taking an interest. The mother wanted her sister to be her attendant but her sister did not come to Australia for the wedding. The mother’s parents attended the wedding as did her grandparents and her brother. That evidence was not challenged.
In 2014, the mother and the father attended relationship counselling with Ms K. On 12 April 2014, the mother told Ms K that she did not get on well with her own mother. She said that, as the eldest child, her mother was very unpleasant to her for all of her life. She said that her mother was mean when she became engaged to the father and when they married. The mother told Ms K that her mother has become more friendly since the child was born. The mother told Ms K that she “thinks she should spend time in [the UK] (maybe even go home)” and that the father was upset because he found her Googling how to take the child to The UK without his permission.
In cross-examination, the mother agreed that after the child was born, she and her mother Skyped more frequently.
On 29 April 2014, Ms K, in her clinical notes, observed that it is possible that the mother will sacrifice her relationship with the father to gain her mother’s approval but that there was a risk that the maternal grandmother wants the child, not her own daughter. The mother and Ms K discussed the mother’s attachment to her mother and Ms K noted that their attachment was anxious and avoidant. This discussion appears to have taken place with both the mother and the father present.
The mother and the child went to the UK in about June 2014. The father deposed that, while the mother was in the UK, she called him and told him that, if he did not move out of their home, she would not bring the child back. In cross‑examination, the mother initially denied that she had made that threat but Ms K’s notes of a consultation on 22 July 2014 record that the mother, when asked about whether she had said what the father alleged, said she could not remember.
Asked about her parents’ attitude to her remaining in the UK in June 2014, the mother said that her father had encouraged her to stay but her mother was angry with her and told her that she should “get some counselling and make it work”.
When the mother returned with the child to Australia in July 2014, she sought a referral to a psychiatrist, Dr L. Dr L had a consultation with the mother and reported to her general practitioner, Dr M, that the mother had no psychiatric disorder and that she should seek further counselling.
In November 2014, Dr M referred the mother to Dr H.
In cross-examination by senior counsel for the father, the mother agreed that she had been a health professional for 15 years and that she was familiar with the clinical signs of depression. She agreed that she knew what symptoms to report in order to secure a diagnosis of depression.
The mother said that Dr M told her that Dr H was known as a psychiatrist who did forensic work, particularly in family law, and that ultimately her case might be assisted by a report from Dr H.
The mother deposed that, when she was in the UK at Christmas time in 2015, she had been offered a position at a hospital in F Town. The salary was £25,314 plus an allowance and shift enhancements. There was no evidence that this position was still open to her but I accept that she would be able to find similar work, although not necessarily in F Town.
In cross-examination, the mother said that she was able to earn about $100,000 in Australia if she worked full time. She agreed that the father was willing to be flexible and help care for the child (as were the paternal grandparents) and that she could work on weekends or at night if she wanted to.
In 2016, the mother earned $50,000 working only two days each week but those earnings included “benefits” which I infer to mean leave entitlements.
The mother deposed that, if she moved to F Town, she would be able to rent her brother’s house. In cross-examination she said that her brother has returned to live with his family in F Town and that house is no longer available to her.
I accept that the mother would be able, initially, to stay with her parents, but that cannot be a permanent arrangement. Thus, whether in Australia or the UK, the mother will have to rent or purchase accommodation.
There was no evidence that the mother’s family would be able to provide her with financial assistance.
THE EVIDENCE OF DR H
Senior counsel for the father took objection to the admission of Dr H’s report asserting that the report did not come within the parameters of rule 15.41 of the Family Law Rules 2004 (Cth) which sets out the limitations on evidence of a treating practitioner as follows:
FAMILY LAW RULES 2004 - RULE 15.41
Application of Part 15.5
(1) This Part (other than rule 15.55) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:
(i) about that expert's involvement with a party, child or subject matter of a case; and
(ii) describing the reasons for the expert's involvement and the results of that involvement;(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert's association, involvement or contact with that party, child or subject matter;
(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).
Example: An example of evidence excluded from the requirements of this Part (other than rule 15.55) is evidence from a treating doctor or a teacher in relation to the doctor's or teacher's involvement with a party or child.(2) Nothing in this Part prevents an independent children's lawyer communicating with a single expert witness.
Senior counsel for the mother argued that the provisions of rule 15.55, which require mandatory disclosure of expert’s reports, would operate to make Dr H’s report admissible, even if the contents of the report exceeded the limitations of rule 15.41. I do not accept that argument. I accept that the parameters of Dr H’s report are limited to those matters set out in rule 15.41. On that basis, portions of his report expressing opinions outside those permitted, were objected to and either not read or excluded.
The mother was referred to Dr H, a psychiatrist, by her general practitioner on 20 November 2014. The general practitioner notes, in relation to that consultation:
Much stress regarding relationship issues with ex spouse who apparently is threatening a long fight. I advise more support and possibly psychiatrist if there is going to be a long legal battle she may well need objective support for the court.
The mother first saw Dr H on 13 January 2015. He reported back to the general practitioner by letter dated 15 January 2015. In the final paragraph of that letter, Dr H stated:
My impression is that [the mother] is struggling with separation and major adjustment in her life. There is no evidence of any mental health disorder. She has stable personality structure and appears to be a very impressive young woman. I would regard her as attempting to be balanced and organised with regard to caring for her daughter and wanting to cooperate with [the father] and include him in the child’s life. However, she is feeling very vulnerable financially and emotionally isolated and is hoping that a good settlement can be achieved. I’ve said I don’t need to see her from a mental health perspective but would be happy to review her progress in three months.
In his next report to the general practitioner, dated 27 July 2015, Dr H stated, inter alia:
[The mother] seems to be handling the situation reasonably well. She was prescribed Prozac 10mg which I think is probably helpful to help with her stress levels. Overall I am impressed with how she is handling the situation which is extremely difficult. I plan to review her progress towards the end of the year. Her child appears to be progressing well in her care.
The mother saw Dr H again on 22 October 2015 and he reported to the general practitioner by letter dated 29 October 2015 where he stated, in relation to his review of the mother:
She seems to be coping reasonably well at the present. She has continued taking Prozac 20mg which has helped to settle her mood. Generally she is feeling reasonably settled. The major issues are that she still wants to relocate to the UK because the long-term benefits for her and her child are significant … Generally however she appears to be managing reasonably well although there are still significant degrees of apprehension about her situation. I plan to review her early next year.
The mother next saw Dr H on 12 January 2016. In his report of the same date to the mother’s general practitioner, Dr H stated “Generally her mood is good and she is able to enjoy herself.”
Dr H again reviewed the mother on 15 March 2016.
In his next report to the mother’s general practitioner dated 23 March 2016, he stated:
At the moment she is eating and sleeping well and her mood is reasonable and she is enjoying spending time with the child. the child appears to be developing well currently. However the predicament is weighing heavily on her in terms of what the outcome may be for the Family Court.
Dr H produced a further report dated 27 April 2016. In that report he states:
I diagnosed her with an adjustment disorder with depression and anxiety in relation to her predicament having separated from [the father] and being a single parent in Australia with her major supports being in the UK.
In a report to the mother’s general practitioner dated 9 June 2016, Dr H, stating his working diagnosis to be “adjustment disorder with family law predicament”, reported:
[The mother] is progressing her legal case. She has a final hearing in October to determine whether she returns to the UK long-term or whether she stays in Australia. She is quite anxious about this. She is hoping to (sic) back to the UK for a month in August and then return for the court case. She seems to be managing although it is extremely difficult and stressful. I am happy to continue supporting her.
Dr H next reported to the mother’s general practitioner on 8 July 2016. It is noted that the appointments for the parents to be interviewed by Mr G for the purpose of the single expert report had been fixed for 11 July 2016. In relation to the mother, Dr H noted that she “is struggling”. He reported:
Her sleep is interrupted. She has decreased appetite and finds it hard to eat food other than protein shakes. Her mood is anxious. She has lost a significant amount of weight. The upcoming assessment for court is worrying her a great deal [I infer that this is a reference to the assessment by Mr G]. She is worried that she will be stuck in a cycle of poverty and lack of control of her life if she remains in Australia.
Dr H prescribed medication in the short term.
Dr H’s next report was dated 25 October 2016. His working diagnosis was “family law stress.” He reported:
[The mother] is continuing to struggle. She is trying to balance working and caring for the child and managing her difficulties. She has just returned from being overseas in the UK which was very positive. The family law matter is fast approaching in December 2016. Until the family law matter is managed I have recommended that she stop working in order to deal with her stress and to be able to be as calm as possible in caring for the child.
Dr H stated:
If [the mother], the child, and [the father] remain living in Australia. Under those circumstances I believe that [the mother] would probably still be able to continue to provide well for the child, even though she would continue with an adjustment disorder of depression from the predicament.
Dr H concluded:
My concern is that in the long-term [the mother] will become increasingly frustrated and despondent. It is extraordinarily difficult for her to be dislocated from her family and to not have a strong support. Whilst the paternal grandparents have been a positive influence they are not able to provide the needed emotional support and substitute [the mother’s] family. I have concerns that [the mother] will struggle in Australia financially and emotionally. I believe that she is strong and capable and that she would continue to be a healthy competent parent. However [the mother] will continue (sic) find the adjustment to life if remaining in Australia a major challenge and at a great personal cost to [her] wellbeing.
The ongoing stress and worry financially, worry about her family and pressure of the full responsibility of the care of the child is likely to gradually wear her down. She is likely to have a chronic adjustment disorder with depressive symptoms, but in the long-term she could find the situation overwhelming which would impact on the child.
Dr H concluded:
I am confident that [the mother] will continue to care well for the child no matter what the outcome of the family court hearing is.
He did not resile from that statement.
DR H’S ORAL EVIDENCE
In evidence in chief, Dr H said that the mother’s prognosis, should she be required to stay in Australia, was moderately poor. He said he had concerns about her ongoing depression, low mood and dysphoric state.
He believed the mother’s state was chronic because she feels pessimistic about being able to create a life for herself in Australia and her ability to pursue her employment and to create a full and healthy environment for her child.
In cross-examination, Dr H said that, at the time of her referral to him, the mother did not have any mental health problems and that the referral from the general practitioner was for the management of the separation and management of the child.
Dr H said that he was not aware when he first saw the mother that there was a live issue of relocation to the UK and became aware of that “over the past 12 months”. I note that the mother’s application for final orders, including relocation, was filed on 15 January 2015, only two days after the first consultation.
Dr H said that the mother’s mental state has gradually deteriorated over the past 12 months but he conceded that his assessment relied heavily on the mother’s self reporting.
He also conceded that his written reports, until recently, acknowledge that the mother was a person with a significant degree of psychological strength and that she was quite resilient.
Asked about the mother’s representations to him of her childhood and family relationships, Dr H said that he would be concerned if the presentation by the mother was misleading. Dr H accepted, in cross-examination, that the mother’s previous history of not feeling well-supported by her mother was not presented to him during his consultations with her. He was, however, aware of the mother having felt unsupported by the maternal family from reading Mr G’s report.
In cross-examination, the following exchange occurred between Dr H and senior counsel for the father:
If you hypothetically assume, though, that the history of [Ms Lambton] with her mother could be described in this way – that she did not get on well with her mother, she was the eldest child and the mother was pleasant – unpleasant to her all her life, causing – that proposition would be a stark inconsistency with how she described the relationships of great and good to you ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ would it not? That her mother was mean when she became engaged to marry [Mr Lambton] but now, since the baby has been born, that her mother was more attached and friendly. And – pausing there – that, again, would be a stark inconsistency with what was presented to you, would it not?‑‑‑I think what was being presented was that the – her parents were very supportive of her now but the previous history of not feeling well-supported by her mother wasn’t presented to me. No.
And in the context of if it was the case that, in fact, it was in her mind that she was about to file an application in the Family Court to relocate on an argument that depended, at least to some level, in a simple sense, to regaining the support – the day-to-day support and assistance of her mother. It would be – this would become a topic that if – that if what I’ve just put to you was, in fact, the true position where you would be concerned about her failure to present that to you, wouldn’t you?‑‑‑Yes. I – I think it sounds, in the way you’re presenting it, as if the mother may have had forethought and preplanning and executed ‑ ‑ ‑ …
He conceded that it was possible that the mother was presenting her history in a way to gain advantage from her therapy with him and that it was possible that the mother was editing her history to achieve her aims.
Dr H said that, at the heart of his support for relocation, was his assumption that the mother’s difficulties would be ameliorated by returning to the UK. He conceded that, if the mother’s relationship with her parents was as she described to Ms K and not as he presumed, “then that could change the situation quite – for the mother and the child. That’s true”.
Dr H conceded that stressors such as the mother reported from time to time, particularly at times when she was engaged in the preparation of affidavits or preparing for the interviews with Mr G, were common stressors to litigants in family law proceedings.
Dr H conceded that there were a number of assumptions which he had made in his assessment that relocation would benefit the mother including that she had employment available to her and that her financial security would be improved. If either of those assumptions were unfounded then that would be a significant matter in his recommendation. He said that the mother is relying on having a good relationship with her family, being able to find adequate employment and having a good social environment and that, if those things did not eventuate, then a relocation to the UK might prove to be more difficult than the mother anticipates.
He said that he could not make a clear prediction as to the mother’s condition if she were permitted to relocate. However, he said “I would expect that her condition may not resolve immediately but I would expect that it would improve in the UK.” Dr H said that if the mother relocates to the UK, she may nonetheless require some ongoing help or therapy to readjust to her new life.
Dr H said that the finalisation of this litigation would be beneficial to the mother’s condition and that she should experience some significant relief when the matter was concluded. He said that it was possible that the resolution of the proceedings, even if the outcome were not favourable, might see her approach work and social interaction with a changed, positive, mindset and that it was also possible that an adverse outcome would have a negative effect.
Dr H said that, if the mother and the child relocate, an adverse outcome for the child (in terms of her maintaining her relationship with her father) was guaranteed, whereas the potential of a positive outcome for the mother was not guaranteed.
Dr H was of the opinion that the relationship between the child and the father will inevitably suffer if she and the mother were to relocate to the UK.
He said that resolution of the property settlement proceedings, if the mother were to receive financial security, would assist the mother to a degree but would not address her social isolation and lack of family support.
THE EVIDENCE OF MR G
Mr G interviewed the parties on 11 July 2016 and prepared a report dated 7 October 2016. He had been provided with a copy of the report of Dr H before he completed his report.
In relation to his interview with the mother, Mr G reported that the mother, with respect to the possibility of her remaining in Australia, said:
I can’t see a future for myself here … I am desperate … no support system … I can’t afford it here … couldn’t afford to live close together (that is near to the father’s residence).
The mother told Mr G:
Going home is the only thing that keeps me going … he has no compassion or empathy … [The mother] said that she feels ‘very distressed and angry’. [The mother] went on to say that she is currently on antidepressant and anti-anxiety medication … [The mother] said that she ‘cries a lot’. She indicated that these tears are spontaneous – in that they often come without warning.
In response to the writher (sic) asking [the mother] about the effects of her mental state on the child, she said, ‘it does affect us … the depression takes quite a lot of the joy out of parenting … I am torn, exhausted and I’m overcompensating…’ (The writer noted that the mother was experiencing a sense of despair, hopelessness and feelings of being trapped).
The mother told Mr G that “there are times when ‘I don’t want to wake up … (such is the) level of (my) despair.’”
Mr G observed the child with both of the parents. He reported:
At the commencement of the observation [the child] and her parents sat quite close together and [the child] appeared to be comfortable with the parents being in close proximity. The writer noted that the father was energetic and enthusiastic whilst he played snap with [the child]. The mother quietly observed this interaction and joined in at the request of either [the child] or her father. When the play turned to throwing a ball, [the child] engaged both parents and each of the parents encouraged engagement with the other. The writer noted that the father’s demeanour continued to be ‘excited’ and the mother’s demeanour appeared to be somewhat more reserved, thoughtful and at times preoccupied. At times, the father interrupted the mother’s engagement with [the child]. After some minutes [the child] commenced throwing the ball towards other rooms as if she wished to explore these new aspects of the environment.
In a separate room, the writer introduced [the child] to a set of ‘feeling eggs’ (i.e. china eggs with facial expressions that displayed a range of emotions). She very much preferred the Smiley Face egg. The writer noted that the father’s engagement with [the child] during this play activity, whilst continuing to be exuberant, also included didactic and directive elements. The mother’s engagement with [the child] during this passage of play was measured and calm and she maintained a thoughtful/perhaps preoccupied expression. The writer noted that again, on occasions, the father interrupted [the child’s] play with the mother when she was engaged with [the child]. For the most part, however, the parents were non-competitive when they were playing together with [the child].
The writer noted that [the child], when the parents were more passive during play activities, has the capacity for autonomous and self-sufficient play. This interpretation was consistent with her capacity to play with a comparative stranger (the writer) in the absence of her parents. At the conclusion of play with the writer [the child] suggested, in an excited voice, that the writer ‘get daddy’.
[The child] separated from her father without fuss in order for the mother to take her to the toilet. Upon return from the toilet, [the child] rushed towards her father.
Mr G noted that when necessary, during independent play, the child was able to ask for either of her parents’ help if necessary. Mr G then observed the child alone with her mother and at the end of that session the child was asked to fetch her father and did so enthusiastically. At the end of that session, the child readily went to fetch her mother at her father’s request. At the end of those observations Mr G noted that the child initiated a hug and a cuddle with her mother while the father watched with a warm smile and did not intrude.
Mr G reported:
Towards the end of the observation, the father initiated a dance with [the child] to which the mother joined from a sitting position. [The child’s] facial expression during this activity could reasonably be described as joyful.
The final passage of this set of observations entailed the father reading a picture book to [the child]. The mother looked tearful as she observed this interaction.
Mr G invited the parents to complete attachment diaries on the two or three occasions where the child was being transferred between them. He commented that a recurrent theme in the mother’s attachment diary was that the child is usually excited by the prospect of seeing her father and that the mother openly acknowledges this. The mother noted that the child was looking forward to seeing her father and that the child often protested at separation from her father.
There was a similar theme in the father’s diary in that he noted that the child was often upset from separation from him.
In relation to the issue of attachment, Mr G reported:
Over the course of the first few years of life, children’s attachments tend to be hierarchical – that is, there is often a primary attachment figure but, notwithstanding this, they also form important and meaningful attachments to a small group of other attachment figures who provide care for them – e.g. another parent, grandparents and childcare workers. It is also noted that infant brains are programmed/hardwired to develop deep attachments in the first to three years of life. With respect to [the child], having been cared for primarily and continuously by the mother since birth, [the mother] is self-evidently her primary attachment figure. It would be very likely therefore that the absence of her mother from her life for prolonged periods would be emotionally intolerable for her … Having been her primary caregiver since birth, the mother would be [the child’s] preferred attachment figure in terms of her expressing and resolving the full range of emotional needs. It is unsurprising, in this regard, that she expresses negative emotions (anger, distress, irritability etc) primarily in the context of her relationship with her mother.
In relation to the child’s attachment to her father, Mr G reported:
Notwithstanding her being primarily attached to the mother, [the child] has also developed a meaningful and loving attachment to her father and, if he were to be absent from her life for prolonged periods, she would probably experience an enduring sense of absence and longing which would only be partially ameliorated through such devices such as Skype and telephone calls. It is also likely that her attachment to her father would weaken over time.
Mr G reported, in relation to the nature of the child’s attachments to her mother:
Given that she seems to be often feeling flat/preoccupied/depressed it is suggested that at times, the mother would find [the child’s] demands for a ‘safe-haven’ challenging and tiring. It would be likely that, at such if times (sic) [the child] would sense this and experience her mother as disconnected from her and would be likely to escalate demanding behaviours in a bid to reconnect with her mother. She might also experience her mother’s disconnection from her as rejection. In the writer’s view the mother tries hard to override her own emotional discomfort when [the child’s] need for a safe haven is evident but it is noted that it is extremely difficult to disguise parental emotional discomfort from young children. It is also the writer’s opinion that the mother, when she is not stressed or preoccupied, has the capacity to be in tune with [the child’s] emotional needs …
Mr G reported that both parents reported tensions between them on changeovers. He commented:
It seems likely that [the child’s] challenging behaviours, as mentioned above, are exacerbated by an increasing awareness of these tensions. [The mother] reports that she experiences [the father’s] behaviours as intimidating and also unhelpful (through his perceived over-exuberance with respect to managing [the child’s] separation behaviours). [The father] reports that he experiences the mother’s behaviours as brusque and uncommunicative when [the child] is being transferred). It is highly likely that [the child’s] awareness of the tensions between her parents will become more acute and conscious as she develops and is more able to read and interpret the perspective of others.
In relation to the paternal grandparents, Mr G noted:
[The child] has had an ongoing relationship with the paternal grandparents since she was born and it would seem that this relationship is characterised by mutual affection and that [the child] has a clear-cut attachment relationship with them.
Mr G had the impression that both parents supported the view that the child had an affectionate relationship with her paternal grandparents. He noted that the mother was of the view that the paternal grandparents have become a necessary part of the child’s caregiving regime when she is in the care of the father.
The child also has a good relationship with the maternal grandparents which has been developed through regular visits to the United Kingdom, regular visits by them to Australia and through communication through Skype. Neither parent raised any concern about the capacity of the maternal grandparents to support the child were she to be living in the United Kingdom.
Mr G stated that the child is at an age where her focus is largely on her parents, and that the loss of peer relationships and a sense of community would not have a substantial impact on her emotional wellbeing.
Mr G expressed the view that if both of the parents were living in sufficient proximity to one another, a parenting arrangement whereby the child lives with her mother and spends substantial and significant time with her father would be a viable option. Indeed it would be an optimal arrangement.
In relation to the mother’s depression, Mr G stated:
Observations of interactions between [the child] and her mother; the mother’s reports of her own mood and behaviours (especially, but not only, in interaction with [the child]) and the psychiatrist’s report indicate that she is depressed. From an experiential perspective she often feels anxious, sad and lonely. In the writer’s view, the mother’s depression, although she tries hard to disguise her symptoms from [the child], is negatively impacting on their relationship and, in particular, on the quality of their attachment. Children who grow up with a depressed parent as their primary caregiver are at risk of, to some degree, of becoming anxious and depressed themselves as they may experience the depressed parent’s flatness/preoccupation as rejection and develop a sense of themselves as not good enough.
In the writer’s view, the nexus between the mother’s depression and [the child’s] emotional wellbeing should be given substantial weight in any determination of this matter. If the Court accepts this view, the question then arises as to whether her depression would be alleviated if she would be allowed to return to live in [F Town] with [the child].
Mr G’s views in that regard were limited given that he had not had the opportunity to interview the maternal grandparents or other members of the mother’s extended family. However, Mr G stated:
Irrespective of whether or not the maternal grandparents would be as supportive as the mother claims they would be, it is nevertheless suggested that she would be likely to be, at the least, less lonely and isolated were she to be living in close proximity to her parents and other extended family members and this would go some way to ameliorating her depression. It is noted that her psychiatrist seems to be of the view that the mother’s depression is situational in nature (rather than a permanent psychological state) and thus positive changes in her life context are likely to be helpful as far as her depression is concerned.
Mr G concluded:
In summary, and unfortunately, none of the available options in this matter could be executed without considerable emotional cost to [the child]. If she were to be living in the United Kingdom with the mother, her relationship with her father would be compromised, she would miss her father and her attachment to him would be likely to weaken over time …
If [the child] and her mother were to continue to live in Australia, [the mother] would be likely to continue to experience significant symptoms of depression and anxiety, that would compromise her capacity to provide a secure emotional base for [the child] and, as indicated above, would be likely to have an enduring and profound impact on [the child’s] emotional security. This factor … should be given considerable weight in any consideration of this matter.
MR G’S ORAL EVIDENCE
Mr G, when asked by senior counsel for the mother whether the mother presented in a very fragile psychological state, disagreed with that proposition. He said that one of the important things about the mother was that she was inherently a strong person who overrides her depression for the child’s sake. Later in his evidence he described the mother as having considerable psychological strength.
Mr G said that the best outcome for the child was for the parents both to live in the UK. He said that he had explored that option with the father who said that his profession in the UK and his profession in Australia were not sufficiently similar and he would have difficulty working in the UK.
Mr G said that the best arrangement for the child was one where she could spend substantial and significant time with her father.
Mr G said that if the mother’s condition worsened and she moved to a major depressive illness, then there is an elevated risk that the child would have significant psychological problems later in her life.
Mr G, like Dr H, said that it was inevitable that, if the mother relocated with the child, the child’s relationship with her father would be impaired.
Asked by senior counsel for the father to comment on the consequences for the mother if relocation to the UK did not prove to be a resolution to all of her problems, Mr G said that would be problematic and impose a whole new level of stress on the mother.
He said:
Put simply, if this, as I believe it to be, is depression that’s related to her situation, then clearly the stressors need to be diminished and eliminated as much as possible, and if she ends up in a stressful situation in The UK, then that would – that would certainly be problematic, and a lot would flow from that.
Mr G agreed that, if the move to the UK did not turn out to be as the mother expected, then the child would be left with an impaired mother and an absent father.
On the other hand, he said, if the mother remains living in isolation in Australia, she will continue to be depressed.
Mr G said that the “worst” alternative for the child is to live with a primary attachment figure who is depressed. However, it was conceded by Mr G that his opinion relies on Dr H’s diagnosis of the mother. In that regard, and as outlined earlier in these reasons, Dr H could not be certain that a relocation to the UK will result in a significantly more positive outcome for the mother’s mental health.
Mr G accepted that it would be highly problematic if the child were to live in the UK with a mother who remained depressed and anxious, particularly as she would be deprived of the regular physical and direct emotional interaction with her father.
On the other hand, Mr G gave evidence that if the child and the mother relocate to the UK, the child’s relationship with the father “will almost certainly weaken over time”. He accepted that their relationship would weaken even if the father spent some holiday time in the UK and if the child spent some holiday time in Australia each year. Mr G accepted that whilst their relationship would be assisted by electronic communication, “nothing really replaces frequent, regular, physical, intimate interaction.”
DISCUSSION
The mother, the father, Dr H and Mr G all agree that, if the child lives in the UK and her father lives in Australia, her relationship with her father will be compromised. That much is certain.
Dr H and Mr G opine that, if the mother is allowed to relocate with the child to the UK, her condition may improve. That is probable but not certain.
Thus the primary considerations set out in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) are brought into stark focus.
The child’s views have not been canvassed. She is three and a half years old.
The child’s primary relationship is with her mother but she also has a meaningful and loving attachment to her father and a clear cut attachment of mutual affection with her paternal grandparents.
No doubt she also loves her maternal grandparents but she is not accustomed to having them regularly available to her and is accustomed to their absence. There is no evidence that the child has a close attachment with the members of the mother’s extended family, although I accept that she knows them and loves them. Again, she is accustomed to their not being part of her daily life.
Thus the effect on the child of separation from her father and paternal grandparents is a significant factor.
The mother would urge upon the Court that the significant change that should be considered will be the change to her living circumstances that, she asserts, will have the effect of improving her emotional and financial circumstances and make her a better parent.
As is clear from the evidence of Dr H and Mr G, there is no certainty that the mother’s circumstances will improve to the extent that she hopes. The mother was not frank with Dr H about the nature of the relationship between herself and her mother. He was not, therefore, in a position to give considered evidence about the likelihood of the relationship between the two women mitigating for or against the prospects of successful improvement in her emotional health.
Mr G described the mother as inherently strong.
Neither Mr G nor Dr H predicted that, in Australia, the mother would not be able to parent the child. Rather, they said that her parenting might not be optimal. Dr H was confident that the mother would continue to care well for the child, whatever the outcome of the proceedings.
The practical difficulty of ensuring that the child could spend time with her paternal family if she lived in the UK was demonstrated by the cross‑examination of the mother as to her inability to craft a set of proposals that would be workable and practicable and also allow the child sufficient time with her father for their relationship to be nurtured. Ultimately, the parents agreed on a proposal for the child to spend time with her father if relocation were permitted.
In broad terms, the parents have agreed that the mother will bring the child to Australia for four weeks in 2017, and each alternate year (commencing no later than 17 July 2017), and she will live with the father for periods of six nights, returning to her mother for a day after each six night period. In 2018, and each alternate year thereafter, the four week period will commence in December.
The orders also provide for the father to spend time with the child in the UK. However, the mother conceded that the father has, at the most, four weeks of holidays so that if he travels to the UK to see the child, then for some or all of the periods when the child is in Australia, the father will have to work so that the child will spend the days with her paternal grandparents and see her father in the evening and at weekends.
The mother is to pay for her own costs of travel and accommodation and half of the cost of the child’s travel. Whether that will have a financial impact on her ability to secure accommodation remains to be seen.
It was not suggested in the mother’s case that arrangements of the sort which are agreed will be sufficient to allow the child’s relationship with her father to be maintained as it now is. This, unsatisfactory as it is, is the best that can be done in practical terms.
I am satisfied that each of the parents has the capacity to provide for the child’s needs in Australia. In relation to the mother’s parenting, I am conscious of the evidence of Dr H and Mr G to which reference has been made in paragraph 132 of these reasons.
Ultimately, the determination to be made involves balancing the benefits and detriments to the child inherent in the two competing proposals.
If the mother is permitted to relocate with the child, the child’s relationship with her father will be compromised. The mother’s emotional wellbeing may improve. If the relocation is ultimately a disappointment for the mother then, as Mr G said, the child will live in the care of an impaired mother without the benefit of her relationship with her father and her paternal grandparents.
If the mother and the child remain in Australia, the child will have the benefit of a continuing and evolving relationship with her father and her paternal grandparents. Her mother’s parenting might not be optimal, but it will be sufficient. The mother’s emotional wellbeing may improve for the reasons expressed by Dr H. The child will be able to have a meaningful relationship with both of her parents.
In accordance with the primary considerations expressed in the Act, I give the greatest weight to the child having a meaningful relationship with both of her parents.
The least harmful alternative for the child is that she remain living in Australia.
WHAT PARENTING ARRANGEMENTS SHOULD BE PUT IN PLACE?
The parents each proposed a Minute of Orders sought and spoke to those orders in final submissions. They agreed that they should have equal shared parental responsibility for the child.
Neither parent proposed an equal time arrangement and Mr G did not think such an arrangement would be appropriate.
The mother proposed that, until the child starts school in 2019, she should live with the father in the first week of each two week cycle overnight on Tuesday until Wednesday morning and on Friday afternoon until 6.30pm. In the second week, the child should live with her father from 3.00pm on Friday until 9.00am on Monday. Thus the child would spend four nights in each fortnight with her father.
In addition, the mother proposed, in 2017, four holiday periods of five nights annually, increasing in 2018 to six nights.
The mother proposed that, when the child starts school, the holiday time would be extended to half of each holiday period, subject to her being able to travel with the child to the UK for block holiday periods. She did not propose any extension of the four nights each fortnight during school terms.
The father’s proposal was that, until the child is five years old, she should live with him each Tuesday overnight. In addition, in each two week cycle, she should live with him in the first week from after pre-school on Friday until Monday morning and, in the second week, on Friday afternoon until 6.00pm.
The difference between the two proposals is that the father’s proposal has the child with him for five nights each fortnight.
After the child turns five years of age, the father proposes that, in each two week cycle, the child live with him, in the first week on Tuesday night until Wednesday morning, then from Friday afternoon until Monday morning. In the second week the child would live with the father on Tuesday night until Wednesday morning and on Friday afternoon until Saturday morning. the child would spend six nights a fortnight with her father.
From the time the child is five years old, the father proposes that school holidays be shared.
There is neither logic nor science in either proposal. The mother did not explain why the child could be away from her for six consecutive nights if she were permitted to relocate but only for a maximum of five nights if she lived in Australia.
The father had not appreciated that his proposal would see the child spending one night with her mother between her return to the mother on Monday morning and then going again to stay overnight with her father on Tuesday.
Although the father’s proposal specified Tuesday as his preferred overnight for the child, in submissions he said that the day had no particular significance and any day of the week could work.
I consider that there is a benefit to the child in having a regular night that she always spends with her father in every week. I also consider that the number of changeovers should be limited. Mr G recommended that the child should not spend more than six nights away from either parent. No doubt, if the parents could co-operate to design a regime of time for the child, it would be a better arrangement than that which I will order. However, they cannot. The regime of time for the child that will be put in place meets Mr G’s recommendation while remaining practicable. The longest time that the child will be apart from her father will be from Friday morning until Thursday.
The existing regime of contact will remain in place until the child’s fourth birthday. The orders will provide that from the child’s fourth birthday, in July 2017, she will spend each Thursday overnight with the father and that time will be extended to Monday morning in each alternate week, so that she will spend five nights in each fortnight with her father.
From the time the child turns four years of age until she starts school, she should have the opportunity to spend a slightly extended time with her father and the four day weekend period can be extended to six days, that is from Friday until Wednesday, on four occasions each year.
After the child starts school, school holidays will be shared.
Until the child starts school, the mother will be permitted to take the child to the UK twice each year for not more than four weeks at a time. After the child starts school, those holidays will be once each year. The father will pay one half of the child’s air fare to and from the UK on those occasions.
The parties are, of course, free to change the arrangements for the child by agreement.
PROPERTY
The parties will be referred to as the husband and the wife in this portion of the reasons.
The parties commenced cohabitation in about April 2007. The husband worked as a professional and the wife as a health care professional. They maintained separate bank accounts.
In October 2007, the husband purchased, in his sole name, an apartment at Suburb N for $700,000 subject to a mortgage of $665,000. He paid the balance of the purchase price. The property was sold in April 2012 for $900,000.
The parties then rented the Suburb N apartment from the purchaser.
In May 2012, the husband purchased, again in his sole name, a property at Suburb C for $2,000,000 subject to a mortgage of $1,600,000. The balance of the purchase price and the stamp duty and legal fees were paid from the proceeds of the sale of the Suburb N apartment and the husband’s savings. Suburb C was rented for $5,600 per month and the rent applied to the mortgage payments. The shortfall of about $3,400 per month was met from income.
In June 2013, the wife, who was pregnant, ceased work but continued to receive an income from maternity leave and annual leave for 18 months.
After the child was born, the wife stayed at home and cared for her.
The parties separated on 1 July 2014. The husband left the Suburb N apartment and lived with his parents. The wife and the child lived at the Suburb N apartment and the husband paid the rent of $803 per week plus the utilities, and paid $400 per week in Child Support.
As at 2 July 2014 there was $210,502 in the mortgage offset account.
In September 2014, the husband moved into the Suburb C property. Also in about September 2014, the husband paid two amounts to his parents from the offset account. The first amount of $102,075 purported to be in payment of principal and interest on an advance to him in 1999. The second amount of $25,000 purported to be repayment of the value of the 4WD motor vehicle that the husband’s parents gave the parties in 2013.
Pursuant to Orders made 9 March 2015, the husband transferred a parcel of 2,100 Company D Bank shares to the wife and paid her $30,000 by way of interim property settlement. In March 2015, the wife moved to rented accommodation in her own name in Suburb N. She sold the Company D shares for $65,000.
In February 2016, the wife started working for two days each week.
In February 2016, the flat in City I was sold for £203,500. Settlement took place in March and the net proceeds were divided equally, each receiving about $73,000.
ISSUES
There were relatively few matters in dispute between the parties in the financial matter.
The matters in dispute were:
· Repayment of the loan from the husband’s parents;
· Payment for the 4WD vehicle; and
· The quantum of the husband’s initial contribution (which will be dealt with in the context of discussion of contributions).
LOAN FROM HUSBAND’S PARENTS
On 23 September 2014, the husband paid the sum of $102,075 to his parents. The husband asserted that the payment consisted of repayment of the principal amount of $50,000 and interest of $52,075. The husband deposed that he calculated the relevant interest from the Reserve Bank of Australia website.
The husband’s father deposed that, in 1999, he and the husband’s mother gave each of their children $50,000 “as a loan repayable upon demand”. He deposed that he said to the husband and his sister “the $50,000 is only a loan. It is repayable on demand…we might need the money back later in our retirement…I expect to be repaid those funds if I ask for it”.
The husband’s father did not depose to any arrangement for the payment of interest on the loan.
The husband’s mother deposed to a similar conversation.
Both the husband’s parents, in cross-examination, said that they had not asked for the loan to be repaid.
The law in relation to loans repayable on demand is well settled and need not be set out fully. The limitation period on such a loan is six years from the date of the advance. Thus there was no legal requirement for the husband to repay the loan.
The payment of interest was the husband’s initiative.
As between the husband and the wife, the amount of $102,075 should be notionally added back to the asset pool. I note that in the final version of the balance sheet there was an agreement between the parties to add back these funds.
PAYMENT FOR THE 4WD VEHICLE
The husband and the wife reached agreement in relation to the disposition of the shares to whey referred to as the “Company D deferred shares” which were shares which the husband received by virtue of his employment. A form of order was agreed, subject to the determination of the percentage division of the overall asset pool.
The percentage division on the asset pool was left to be determined.
The husband’s parents, in about June 2013, gave the parties a 4WD. The wife deposed:
The [4WD] was their car and they said to us ‘You should have the car. We are going to trade it in and buy another car anyway’, which they did. There was never any discussion about how much the car was worth or that we had to repay the cost of the car.
The wife deposed that the husband’s mother also said to her that a sum of money would be given to the husband’s sister “so that it’s fair”.
The parties physically separated on 1 July 2014.
The husband’s mother deposed that, after September 2014:
[The husband] began the process of repaying monies relating to the [4WD]. Payments totalled $25,000. This was a car we had transferred to [the husband and wife], as I was worried she would be driving with a new baby in her little [Japanese car] and I wanted her to have a stronger car for her and the baby for safety.
The husband deposed, “I also repaid mum in $5,000 increments for the 4WD vehicle which she transferred to [the wife]. I have now repaid the cost of the car, totalling $25,000.”
In cross-examination, the husband’s mother said that the 4WD was a gift.
There was no requirement to repay the sum of $25,000. There was no evidence of the value of the vehicle at the date of the transfer.
I accept that, as between the husband and the wife, the amount of $25,000 should be notionally added back to the asset pool.
At trial, the parties consented to the figure of $126,000 as representing the addbacks for “Funds given to Husband’s parents for the period 1 August 2014 and 7 January 2015”, which included the sums paid from the husband to his parents for the $50,000 loan and for the 4WD motor vehicle.
BALANCE SHEET
The parties tendered a balance sheet which disclosed those matters upon which they had reached agreement and those matters upon which they disagreed.
Excluded from the balance sheet was a parcel of Company D Deferred Shares which are shares received by the husband as a result of his employment. The parties agreed that those shares should be divided between them in the same proportions as the balance of the asset pool is divided and provided an agreed Minute of Orders in relation to the mechanics of that division.
The only real matter of disagreement was the treatment of money received by the wife (at Item 25 of the Balance Sheet) and ultimately it was conceded that the amount should be $10,200, being $5,200 which the wife withdrew from the child’s account and used for legal fees and $5,000 which the husband mistakenly paid into the wife’s bank account and which she retained.
The parties both approached the issue of money already received and used by each party on the basis that those funds should be added back. Although that approach is not usual, in this case it was the most convenient manner in which to deal with those funds.
The parties also reached agreement on the manner in which the 5,011 unvested shares referred to as a financial resource should be dealt with, agreeing on a mechanism for their disposal in due course and agreeing that the shares should be divided in the same proportions as the asset pool is divided.
I therefore find the assets, liabilities and financial resources of the parties (excluding the Company D Deferred Shares) to be as follows:
| ASSETS | ||||||
| Ownership | Description | Value ($) | ||||
| 1 | Husband | E Street, Suburb C (to be revalued) | 2,450,000 | |||
| 2 | Wife | Wife’s Bank Accounts as at 13.12.16 | 1,957 | |||
| 3 | Wife | Company D Progress Saver Account No. …84 in the name of B as at 7.12.16 | 11 | |||
| 4 | Husband | St George Offset as at 12.12.16 | 5,249 | |||
| 5 | Husband | Company D Access as at 12.12.16 | 1,700 | |||
| 6 | Husband | Company D Saver as at 12.12.16 | 6 | |||
| 7 | Husband | Company D Online as at 12.12.16 | 8 | |||
| 8 | Husband | E-trade as at 12.12.16 | 1 | |||
| 9 | Husband | RBS (...57) 832 GBP as at 10.03.16 | CLOSED | |||
| 10 | Husband | Tabcorp Shares 455 shares @ $4.20 | 2,029 | |||
| 11 | Husband | National Australia Bank Shares 240 shares @ $28.40 | 6,816 | |||
| 12 | Husband | Eumundi shares 9000 shares @ $0.09 | 810 | |||
| 13 | Husband | SBG Resources shares 353 shares @$5.10 | 1,800 | |||
| 14 | Husband | SIPA shares 65,000 shares @ $0.017 | 1,105 | |||
| 15 | Wife | 4WD | 15,000 | |||
| 16 | Husband | Sedan motor vehicle | 3,170 | |||
| 17 | Husband | Company D Shares 3,1731 shares @ $27.98 | 88,780 | |||
| 18 | Husband | Trust Account of Barkus Doolan | 110,000 | |||
| 19 | Wife | Trust Account of Pigdon Norgate Lawyers | 48,164 | |||
| 20 | Wife | Household contents | 4,000 | |||
| 21 | Husband | Household contents | 5,000 | |||
| 22 | Wife | Jewellery | 2,500 | |||
| Total | 2,748,106 | |||||
| ADDBACKS | ||||||
| Ownership | Description | Value | ||||
| 23 | Husband | Funds given to Husband’s parents for the period 1 August 2014 and 7 January 2015 | 126,000 | |||
| 24 | Wife | Legal fees paid by the wife | 190,500 | |||
| 25 | Wife | Partial property settlement payments made by the Husband to the wife, that are not taken up in the paid legal fees: | 10,200 | |||
| 26 | Husband | Legal fees | 96,457 | |||
| 27 | Wife | G fees Wife's share | 4,400 | |||
| 28 | Husband | G fees Husband's share | 4,400 | |||
| 29 | Wife | Half share of the single expert property valuer | 1,925 | |||
| 30 | Husband | Half share of the single expert property valuer | 1,925 | |||
| Total | 435,807 | |||||
| LIABILITIES | ||||||
| Ownership | Description | Value | ||||
| 31 | Husband | St George Loan Account No. …00 secured against Suburb C Property as at 3 November 2016 | 183,507 | |||
| 32 | Husband | St George Loan Account No. …01 secured against Suburb C Property as at 3 November 2016 | 375,994 | |||
| 33 | Husband | St George Loan Account No. …02 secured against Suburb C Property as at 3 November 2016 | 972,290 | |||
| 34 | Husband | Company D Credit Card (…04) $25,000 of those comprise monies in the Trust Account of Barkus Doolan. | 27,900 | |||
| 35 | Husband | Income Tax Payable for the last three years | 16,052 | |||
| 36 | Wife | Company D Banking Group Limited | 10,000 | |||
| 37 | Husband | Company D Banking Group Limited (Margin Loan) – funds standing to the credit of the Trust Account of Barkus Doolan | 60,000 | |||
| 38 | Husband | Division 293 Tax and account fees for the completion of Tax Returns for the last three financial years | 14,000 | |||
| 39 | Wife | Ms O | 4,200 | |||
| 40 | Wife | Mr O | 6,708 | |||
| 41 | Wife | Mr P | 10,000 | |||
| 42 | Wife | Funds due to be repaid to the child's bank account | 5,200 | |||
| Total | 1,685,851 | |||||
| SUPERANNUATION | ||||||
| Ownership | Description | Value | ||||
| 43 | Wife | HESTA as at 30 June 2015 | 65,715 | |||
| 44 | Husband | Mercer Super Trust | 18,628 | |||
| 45 | Husband | Company D Staff Super | 281,579 | |||
| 46 | Husband | Australian Eligible Rollover Fund | 495 | |||
| 47 | Husband | AMP Rollover Fund | 14,943 | |||
| Total | 381,360 | |||||
| Ownership | Description | Value | ||||
| Husband | Company D Shares Deferred/Unvested 5,011 shares | |||||
| TOTAL ASSETS | 2,748,106 |
| ADDBACKS | 435,807 |
| TOTAL LIABILITIES | 1,685,851 |
| TOTAL FINANCIAL RESOURCES | 0 |
| SUPERANNUATION | 381,360 |
| NET POOL (EXCLUDING SUPERANNUATION) | 1,498,062 |
| NET POOL (INCLUDING SUPERANNUATION) | 1,879,422 |
SECTION 79(2)
Both parties ask the Court to make orders dividing their assets. The significant assets of the marriage are legally owned by the husband and have increased in value during the marriage. Leaving those assets in his hands would not give proper weight to the wife’s contributions.
CONTRIBUTIONS
The wife had no significant assets at the commencement of the relationship in about April 2007.
The husband had a flat in City I which had been purchased in 2002 for £182,000 subject to an interest only mortgage at purchase of £150,000.
The husband asserted that the value of the City I flat should be brought to account at the exchange rate applicable in March 2007 of 2.496. The flat, which was bought for £182,000 before co-habitation, was sold in 2015 for £203,500. The balance of the proceeds of sale after discharge of the mortgage was about $148,000. That balance was brought into account in the proceedings as a partial property settlement divided equally between the parties. There is no evidence of the relevant exchange rate which pertained when the flat was sold.
The husband had an asset worth net £37,000. To attribute a value in Australian dollars to that asset would be artificial.
He had savings in City I of about £6,300.
The husband deposed that he had savings sufficient to pay the balance of the purchase price of Suburb N of $35,000 together with the stamp duty of $34,000. He specified a figure of $61,990 which he conceded was a calculation only. That calculation did not take into account the First Home Owner’s Grant of $7,000.
The wife deposed to a conversation with the husband where he told her that he had borrowed $40,000 from his parents to complete the purchase of Suburb N and subsequently repaid that money. Senior counsel for the husband put to the wife that the sum of $40,000 had been borrowed and repaid. She agreed.
In cross-examination, the husband said that he had no recollection of borrowing that amount from his parents but that he was not surprised when he read the wife’s version of the event in her affidavit. Neither of his parents recalled the transaction. I am unable to conclude that the husband had $61,990 in savings as he asserted. He needed $69,000 to complete the purchase of Suburb N. If he borrowed $40,000 and received the First Home Owners Grant, I accept that he has established that he had $22,000.
The husband also asserted that he had cash in bank accounts of $39,342. The bank statement for the offset account with the NAB was tendered. That account was not opened until August 2007 with an initial deposit of $830. A deposit of $39,342 was made in November 2007 which the husband deposed was money moved by him from his Company D account into the offset account.
The husband has established that he had about $61,350 in savings in Australia.
He had superannuation of about of $11,400.
He had a motor vehicle which is the same vehicle he now has.
His 2007 bonus of $35,188 was awarded in 2007 but not paid until February 2008. I accept that the bonus was an asset of the husband at the commencement of cohabitation.
In addition to the City I flat, the husband’s initial contributions, including cash, his bonus and superannuation, were about $108,000.
The husband’s initial contributions were superior to those of the wife.
During the course of their relationship, after the child was born, the wife was primarily engaged as home maker and carer for the child and the husband was employed as a professional.
Each party contributed according to their abilities and their agreement about the way in which their child would be cared for.
After separation, the wife continued to care for the child and the husband continued to be employed as a professional.
Throughout the time until trial, the wife made the greater parenting contribution and the husband made the greater financial contribution.
Their respective contributions after the commencement of their relationship are assessed to be equal.
Contributions are assessed at 55 per cent for the husband and 45 per cent to the wife.
SUPERANNUATION SPLIT
The husband asks the court to split superannuation so that the wife receives half of his entitlement. The wife seeks an order that she receive a base amount of $182,000.
The husband has superannuation entitlements of $315,645 and the wife has entitlements of $65,715.
Most of the superannuation entitlements were accumulated during co-habitation.
They should be divided on the same basis as the other assets.
SECTION 75(2) ADJUSTMENT
The husband works as a professional. In the financial year ended 30 June 2016 his salary was $320,000. He received an incentive bonus for 2015 of $125,000 gross (about $62,000 net) and a long term incentive in deferred shares of $38,000, giving a total gross income of $483,000. In December 2016, he received his 2016 bonus of net $58,000 which will be accounted for in his 2017 tax return.
There is no suggestion that the husband will not continue to receive a similar level of remuneration.
The wife works as a health professional. She currently earns $70,980. She may have the capacity to earn more depending on her commitments to care for the child and her health. When she was working full time, she earned about $100,000.
Thus the husband’s income is almost five times greater than that of the wife.
At the present time, the wife’s ability to work is affected by her health. She has been diagnosed with depression and, at the time of the trial, had been on sick leave since 4 November 2016. She deposed that her sick leave, annual leave and long service leave will be exhausted on 8 January 2017 when she will have no income from employment unless she returns to work. She has little option but to do so.
The child is three and a half years old. The wife will have significant parenting responsibilities for the child for some years to come and will also have to provide housing for her. The husband will also have significant child caring responsibility but there is no evidence that his income earning capacity will be thereby reduced.
The husband will provide child support for the child as assessed.
The disparity in income requires an adjustment in favour of the wife of 15 per cent.
Thus the wife will receive 60 per cent of the net asset pool, 60 per cent of the parties’ joint superannuation entitlement and 60 per cent of the Company D Deferred Shares.
EFFECT OF THE ORDERS
The husband wishes to retain Suburb C if possible. It is agreed that the potential Capital Gains Tax liability on Suburb C, referable to the period when it was rented, will be covered by the husband’s tax losses of $148,000 disclosed in his 2016 tax return and does not require to be accounted for further.
Suburb C is valued at $2,450,000 and there is currently a total of $1,531,791 secured against it. Including the Suburb C property and the mortgages secured against it, the husband has either spent or retained assets totalling $2,905,256 and he has liabilities totalling $1,649,743.
The wife has either spent or retained assets totalling $278,657. She has personal liabilities totalling $36,108. I have determined above that the wife is entitled to 60 per cent of the total asset pool, namely $898,837. The wife therefore requires assets to the value of $656,288.
I will make orders for the husband to retain the Suburb C property and pay the wife the sum of $656,288.
The wife will receive a further $163,101 in superannuation, bringing her total superannuation entitlements to $228,816 to represent 60 per cent of the parties’ joint interest in superannuation.
She will receive 60 per cent of the Company D Deferred Shares.
SPOUSAL MAINTENANCE
The wife seeks an order for spousal maintenance in the sum of $1,956 per week.
The husband agrees that he should continue to pay a contribution towards the wife’s rental costs until such time as he has paid to her the whole of the lump sum she is to receive pursuant to these Orders. He currently pays $803 per week.
To that extent, that is a concession that she meets the threshold in s 72.
The wife has an income, according to her Financial Statement sworn 7 December 2016, of $857 per week. She has fixed expenses of $1,332 after allowing for the husband’s contribution towards rent. She has discretionary expenses claimed at $805, some of which were challenged.
Senior counsel for the husband conceded that it would be open to order that the husband pay spousal maintenance for a period of three months. After that, it is submitted and I accept, she will have the lump sum of her property settlement available to her and she will have the ability to work.
The expenses which are referable to the child are not expenses that can be taken into account in determining the wife’s reasonable expenses.
In calculating the wife’s reasonable needs for the next three months, I have not included the claim for holidays of $200 per week which she deposes she is not currently paying and I have not included the claim for house repairs which is not recurrent. The wife’s reasonable expenses are $558 per week in addition to the $803 referable to her rent, a total of $1,361.
An order in that sum will be made for a period of three months.
I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 February 2017.
Associate:
Date: 15/02/2017
Key Legal Topics
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Family Law
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Property Law
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Tax Law
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Damages
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