LUCAS & SIMMONDS
[2018] FamCA 1036
•7 December 2018
FAMILY COURT OF AUSTRALIA
| LUCAS & SIMMONDS | [2018] FamCA 1036 |
| FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the parents agree to have equal shared parental responsibility for the children – where the applicant mother seeks that the children, aged 8 and 6 continue to live with her in Brisbane – where the respondent father seeks that the children relocate to the United Kingdom – where an assessment of the mother’s mental health indicates a risk of recurrence of major depression with either relocation or losing primary care of the children – orders made for the children to continue to live with the mother in Brisbane FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – where the parties were in a relationship of about seven years – where the parties jointly own a property in the UK – where the parties agreed that, save for the UK property, each retain all other property each owns – where it is just and equitable that the parties share equally in the nett equity in the UK property – where otherwise, it is ordered that each party retain the property that is in each party’s possession |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Banks v Banks (2015) FLC 93-637 Collu v Rinaldo [2010] FamCAFC 53 Hepworth v Hepworth (1963) 110 CLR 309 McCall v Clark (2009) FLC 93-405 MRRv GR (2010) 240 CLR 461 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Lucas |
| RESPONDENT: | Mr Simmonds |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 6100 | of | 2016 |
| DATE DELIVERED: | 7 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 2 & 3 July 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Drysdale |
| SOLICITOR FOR THE APPLICANT: | Franklin Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Gunn |
| SOLICITOR FOR THE RESPONDENT: | Hodgson Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carmody |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous Orders are discharged.
The children, X, born … 2010 and Y, born … 2012 (“the children”) live with the mother in Brisbane.
The parents have equal shared parental responsibility for the children in relation to their long-term care, welfare and development, with such responsibility to include, but not be limited to, issues about:
(a) the children’s education, both current and future; and
(b) the children’s religious and cultural upbringing; and
(c) the children’s names; and
(d) the children’s long-term health and medical treatment; and
(e)any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with either parent.
The parents consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) they shall inform the other parent about all decisions to be made; and
(b) they shall consult with each other on terms they agree; and
(c) they shall make a genuine effort to come to a joint decision.
Notwithstanding the provision of Order (3), the father shall be responsible for the daily care, welfare and development of the children when they are living with, or spending time with, him.
Notwithstanding the provision of Order (3), the mother shall be responsible for the daily care, welfare and development of the children when they are living with, or spending time with, her.
Living and care arrangements for the children
Unless otherwise agreed between the parents in writing, the children shall spend time with the father as outlined below:
(a)if the father is resident in Brisbane: from after school on each alternate Friday until before school on the following Monday, with such time to increase 12 months after the date of these Orders, so that the children thereafter spend time with the father from after school on each Wednesday until before school on Monday; or
(b)if the father is resident in Sydney or any other capital city in Australia: from after school on each alternate Friday until before school on the following Monday, with such time to take place in and around the local Brisbane or south-east Queensland environs unless otherwise agreed between the parents; or
(c)if the father is not resident in Australia: the children shall spend time with the father as otherwise provided for in Orders (8)(a), (9), (10), (11), (12), (13) and (14) of these Orders and at all other times as may be agreed between the parents in writing.
Living and care arrangements for the children during holiday time
The children shall spend each school holiday period with both parents, with such dates and changeover times to be agreed between the parents, but in the absence of agreement:
(a)the children shall spend time with the father for one half of April, July and September gazetted Queensland school holiday periods, being the first half in odd numbered years and the second half in even numbered years; and
(b)the children shall spend time with the mother for one half of April, July and September gazetted Queensland school holiday periods, being the second half in odd numbered years and the first half in even numbered years;
and the operation of any provision for time in this Order that is inconsistent with school holiday time as provided for in this Order shall be suspended during gazetted Queensland school holiday periods.
During the December/January gazetted Queensland school holiday period in even numbered years (where the December is in an even numbered year):
(a)the children shall spend two (2) consecutive weeks with the mother over the Christmas period; and
(b)following this period, the children shall spend two (2) consecutive weeks with the father thereafter up until the commencement of the school term, with the duration of the time the children shall spend in the care of each parent to increase to three (3) weeks from December 2020 onwards.
During the December/January gazetted Queensland school holiday period, in odd numbered years (where the December is in odd numbered years):
(a)the children shall spend two (2) consecutive weeks with the father over the Christmas period; and
(b)following this period, the children shall spend two (2) consecutive weeks with the mother thereafter up until the commencement of the school term, with the duration of the time the children shall spend in the care of each parent to increase to three (3) weeks from December 2021 onwards.
In all even numbered years:
(a)the children shall spend time with the father from 12.00 pm Christmas Eve until 12.00 pm Christmas Day; and
(b)the children shall spend time with the mother from 12.00 pm Christmas Day until 12.00 pm Boxing Day.
In all odd numbered years:
(a)the children shall spend time with the mother from 12.00 pm Christmas Eve until 12.00 pm Christmas Day; and
(b)the children shall spend time with the father from 12.00 pm Christmas Day until 12.00 pm Boxing Day.
Additional time
In the event that the parents live near to each other, or the father is visiting Brisbane, or the mother is visiting Europe during the time the following events occur, the children shall spend the following additional time with the parent with whom they are not living:
(a) on the children’s birthday at times as are agreed but, failing agreement:
(i)if on a school day: from after school until 6.00 pm; and
(ii)if on a non-school day: from 12 noon until 4.00 pm; and
(b)on the father’s birthday each year as agreed and, failing agreement, from 5.00 pm on the day immediately preceding the father’s birthday to 5.00 pm on the father’s birthday; and
(c)on Father’s Day each year as agreed and, failing agreement, from 5.00 pm on the Saturday immediately preceding Father’s Day to 5.00 pm on Father’s Day; and
(d)on the mother’s birthday each year as agreed and, failing agreement, from 5.00 pm on the day immediately preceding the mother’s birthday to 5.00 pm on the mother’s birthday; and
(e)on Mother’s Day each year as agreed and, failing agreement, from 5.00 pm on the Saturday immediately preceding Mother’s Day to 5.00 pm on Mother’s Day.
The children shall travel to Europe to spend time with the father once per year as agreed between the parents, with such time to be of a duration of not less than two (2) weeks until January 2020 and, thereafter, to be of a duration of not less than three (3) weeks, and such travel shall occur on the following conditions:
(a)the father shall give the mother not less than eight (8) weeks’ notice of any proposed travel; and
(b)the father shall pay for the children’s return flights to Europe each year and for two (2) nights’ accommodation prior to handover of the children to the father, with such accommodation to be near to the handover location; and the father shall pay for comprehensive travel insurance for all those travelling for the duration of the holiday; and
(c)the children shall travel accompanied on all sectors with either parent until the age of 18 years, or such time as agreed between their parents in writing.
Changeovers of the children
Unless otherwise specified in this Order or agreed between the parties in writing, the father will collect the children from their school or, if not a school day, from the mother’s residence at the commencement of his time with them and return them to either school (if it is a school day) or the mother’s residence at the conclusion of their time with him.
Each parent will ensure that, when the children spend time with either parent, they attend with any clothing, books, school papers and other belongings which the children require for school or extra-curricular activities.
Each parent shall ensure that the items sent with the children at changeover are returned at the conclusion of the time that the children are spending with that parent in the same condition as that in which they were supplied.
Communication during term time
The father shall be at liberty to communicate with the children by internet or telephone at a minimum of twice weekly between the hours of 6.00 am to 7.00 am Australian Eastern Standard Time.
The father shall be at liberty to communicate with the children by internet or telephone at all reasonable times during the weekend.
Communication whilst on holidays
Each parent shall be at liberty to communicate with the children by internet or telephone between 4.00 pm and 5.00 pm each alternate day when the children are in the care of the other parent and, for this purpose, each parent will provide to the other a mobile and/or landline number at which the children can be reached and will ensure that the children are available to receive the communication during that period.
International Travel and passports
In the event that either parent wishes to travel overseas with the children for a holiday, the following shall occur:
(a)the travelling parent shall provide to the other parent not less than eight (8) weeks’ notice of any proposed travel; and
(b)the parent wishing to travel will provide the other parent with an itemised itinerary of the proposed travel plans; and
(c)the travelling parent shall, fifteen (15) days before the proposed date of departure from the Commonwealth of Australia, provide the other parent with an itemised itinerary, contact details whilst overseas, copy of insurance policies, all accommodation flight details and a copy of the children’s return tickets.
Unless agreed by the parents in writing, the children shall not be taken to a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Both parents shall co-operate with each other regarding the children’s passports and both shall sign all documents necessary to ensure that the children’s passports remain valid, with the father to be responsible for managing the renewal of the children’s passports and the mother to be responsible for managing the renewal of the children’s Australian passports.
Save for travel outside of Australia for holiday purposes, the father, Mr Simmonds, born … 1977, and his servants or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children from the Commonwealth of Australia.
The Marshal of the Family Court of Australia and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the various States and Territories are required and empowered to take all necessary steps to give effect to this Order.
Other matters
Each parent shall positively encourage and facilitate the children’s relationship with the other parent.
Each parent shall notify the other parent if the children or either of them are seriously injured or ill or taking medication that must be taken while the children are in the other’s parent’s care and such notice is to be provided as soon as reasonably practicable having regard to the circumstances of the injury, medical attention required or received, medication or hospitalisation.
Either parent shall be at liberty to attend any of the children’s medical appointments, hospital rooms, medical treatments and therapies and the parent present at any medical appointment shall provide to the other parent an emailed copy of all documentation pertaining to any general practitioner or hospital visits including x-rays, medical reports and pathology results.
The father shall use his best endeavours to ensure continuity of the children’s health care whilst the children are in his care, including ensuring the children attend their treating dentist, general practitioner and specialists’ appointments.
The parents do all acts and things necessary to ensure that:
(a)both are authorised and at liberty to communicate directly with the children’s school teachers and other school authorities as to all aspects of the children’s education; and
(b)both receive copies of all school reports, letters and invitations and all other correspondence that relates to the children’s education.
By this Order, any health or educational professional upon whom the children attend is hereby authorised to provide each parent with copies of all school reports and any other reports, information and documentation relating to the health and education of the children.
Each parent will make reasonable efforts to facilitate the children attending regular/established social and extra-curricular activities when the children are in that parent’s care.
Each parent will notify the other parent in writing of any change to their residential address, mobile telephone number or email address within 24 hours of such change occurring.
The parents shall not criticise or denigrate the other parent or the other parent’s family in the presence of or hearing of the children.
AND IT IS FURTHER ORDERED THAT
The Independent Children’s Lawyer is discharged.
Pursuant to s 65DA(2) and s 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
AND IT IS FURTHER ORDERED BY WAY OF FINAL ORDER PURSUANT TO SECTION 90SM OF THE FAMILY LAW ACT 1975 (CTH) THAT
By no later than 4.00 pm on 7 February 2019 or such later date as may be agreed between the Applicant and Respondent in writing:
(a) the Respondent pay the Applicant AUD$178,000.00; and
(b)contemporaneously with the payment to the Applicant in Order (37)(a), the Applicant do all acts and things and sign all documents needed to transfer her interest in the property known at B Street, Suburb C, City D (“the UK property”) to the Respondent.
The Applicant do all things and sign all documents to enable the Respondent to refinance the borrowings currently secured by mortgage registered on the title to the UK property so as to facilitate the payment by him to her of the amount specified in Order (37)(a).
After the Applicant has transferred her interest in the UK property to the Respondent, he shall indemnify the Applicant in respect of any and all liabilities associated with it.
In the event that the Respondent fails to pay the Applicant the money prescribed in Order (37) by the date prescribed in Order (37), then the parties forthwith do all acts and things, and sign all documents necessary, to market the UK property for sale with E Real Estate Agents, at a listed price to be agreed between them in writing, but not less than £400,000.00 unless otherwise agreed in writing.
In the event that the UK property fails to be sold within a period of 60 days after the date on which it is listed for sale, then the property is to be offered for sale at an agreed lower price and, failing such agreement, then as determined by the Real Estate Agent.
To the extent that they are permitted to do so by the operative local laws, the Applicant and Respondent shall do all things and sign all documents necessary to ensure that the UK property remains tenanted during the period prior to settlement of the sale and to ensure that all rent received be used to repay the existing mortgage over the property, with any excess funds placed in the joint account held with the F Bank, being account number #01, sort code #49 (“the F Bank account”).
Upon the sale of the UK property, the proceeds of the sale shall be disbursed as follows:
(a)first to discharge of all existing loan facilities secured over the property; and then
(b) in payment of agent’s commission and advertising expenses; and then
(c) in payment of all legal expenses associated with the sale; and then
(d)in payment of 50 per cent of the amount then remaining to the Applicant and in payment of the balance to the Respondent.
Within 14 days of the first of compliance with Order (37) or the settlement of the sale of the UK property, the parties shall do all things and sign all documents necessary to close the joint F Bank account and the final balance of that account shall be divided equally between them.
In the event that this has not already occurred, the Respondent shall, within 14 days of the date of this Order arrange, at his sole expense, to ship the framed Indigenous Art piece currently in his possession to the Applicant’s home address.
Except as otherwise provided in this Order, the Applicant shall retain all items of personal property and effects presently standing in her name or possession and control, with the same to include but not be limited to:
(a) the property at JJ Street, Suburb L, Queensland; and
(b) household furniture; and
(c) jewellery and personal effects; and
(d) all amounts in bank accounts; and
(e) motor vehicle; and
(f) superannuation and pension entitlement in the United Kingdom.
Except as otherwise provided in this Order, the Respondent shall retain all items of personal property and effects presently standing in his name or in his possession and control, with the same to include but not be limited to:
(a) household furniture; and
(b) personal effects; and
(c) all amounts in bank accounts; and
(d) pension entitlements in the United Kingdom.
Except as otherwise provided herein, the Applicant and Respondent shall remain liable for any debts in their own name as at the date of this Order and, in this respect, shall indemnify the other from any liability in relation thereto and such debts shall include, but not be limited to, any Capital Gains Tax liability arising out of the operation of this Order.
In the event that either party refuses or neglects to sign any documents, instrument or writing so as to give effect to this Order within a period of 14 days from the date of being served with a copy of this Order and the document, instrument or writing sought to be signed, then a Registrar of the Court or his or her appointee may, pursuant to s 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document, instrument or writing so as to effect compliance with this Order.
All outstanding Applications are dismissed and the matter is removed from the list of cases awaiting determination.
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 Lucas & Simmonds 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 BRISBANE |
FILE NUMBER: BRC 6100 of 2016
| Ms Lucas |
Applicant
And
| Mr Simmonds |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Parenting
The Applicant mother was born in 1976 in Australia. The Respondent father was born in 1977 in County G, Europe. Their cohabitation started in the UK in December 2007. They have two children, both of whom were born in the UK: eight year old X[1] and six year old Y.[2]
[1] Who was born in 2010.
[2] Who was born in 2012.
Following the unexpected death of the maternal grandmother in Australia, the mother returned to this country on about 21 August 2014. The father and the children joined her here on 26 August 2014. The father left Australia for the UK on about 6 September 2014 and returned to Australia on 2 November 2014.
The father initially contended that the parental separation occurred in February 2015. However, I consider that his evidence ultimately corroborated the mother’s account that separation occurred in April 2015. It is uncontroversial that the father returned to the UK in about late February 2015. He has remained living there since then. He is a quantitative analyst and works on a full-time contractual basis via his limited company (“H Ltd”). As at mid-June 2018, his contract was with K Ltd.
The mother is a consultant and is currently employed by J Ltd. It is undisputed that she and children have remained living in Brisbane since their arrival here in late August 2014. They currently live in a three bedroom townhouse in Suburb L, which their mother bought in late 2016. Both children attend Suburb L State School. As at the date of the hearing, the mother had, since early May 2016, employed a nanny (Ms M) to assist her with the day-to-day care of the children. Given that Ms M was soon to embark on her own career, the mother’s intention at the trial was to find a replacement for her when that occurred.
Competing proposals
The mother’s proposal[3]
[3] As particularised in the Amended Initiating Application sealed 4 June 2018.
The mother proposes that the parents have equal shared parental responsibility for the children. She also proposes that the children continue to live with her in Brisbane and spend time with their father:
a)if he is resident in Australia: initially from after school each alternate Friday until before school on the following Monday, with such time to increase after 12 months from the date on which Orders are made, so that the children then spend time with him from after school each alternate Wednesday until before school on Monday (that is, five nights per fortnight); or
b)if he is not resident in Australia: for one half of the April, July and September gazetted Queensland school holiday periods (being the first half in odd-numbered years and the second half in even-numbered years), with such time to occur in or close to Australia other than on one occasion per year, when the children travel with him to Europe (for a longer period than a week) and:
i)during the December 2018/January 2019 gazetted Queensland school holiday period and each alternate year thereafter: for two consecutive weeks (which do not encompass the “Christmas period”); and
ii)during the December 2019/January 2020 gazetted Queensland school holiday period and each alternate year thereafter: for two consecutive weeks (which do encompass the “Christmas period”).
That is, irrespective of whether the father is living in Australia or in the UK (or, presumably, Europe), the mother’s proposal is for the children to spend time with him for half of the school holiday periods each year.
The mother also proposes that the children spend time with their father on specific occasions[4] if he is in Brisbane or she is visiting Europe; that they communicate with him via the internet or by telephone at a minimum of twice each week, with this communication to occur between 6.00 am and 7.00 am AEST.
[4] As particularised in Clause 20 of the parenting orders particularised in the Amended Initiating Application sealed 4 June 2018.
The mother also seeks that the children’s names be placed on the Airport Watchlist “until the court orders its removal”. However, she also specifically proposes that the children travel to Europe to spend time with their father once per year: until January 2020, this be for a period of not less than two weeks and, thereafter, be for three weeks at times agreed between the parents and on the provisos that:
a)the father provide her with not less than eight weeks’ notice of any proposed travel; and
b)the father be responsible for paying for the flights (for herself and the children) to Europe and for two nights’ accommodation before the handover; and
c)the father pay for comprehensive travel insurance for all parties travelling during the duration of the holiday; and
d)the children travel accompanied on all sectors by either parent until they are 18 years of age.
The father’s proposal[5]
[5] As particularised in his Amended Response filed 20 June 2018.
The father agrees with the mother’s proposal that it is in the children’s best interests for there to be an Order for their parents to have equal shared parental responsibility for them. However, he proposes that the children relocate to the United Kingdom and, if the mother remains living in Australia after their relocation to the UK, live with him there and spend time with her:
a)during the United Kingdom school holiday periods as follows:[6]
i)for the first half of all school holidays (except for the Christmas school holidays) in odd numbered years; and
ii)for the second half of all school holidays (except for the Christmas school holidays) in even numbered years; and
iii)for all of the Christmas school holidays in odd numbered years.
[6] Albeit that he does not specify whether such time is to occur in the United Kingdom or elsewhere.
Such parenting regime would involve very significant change for the children given that it undisputed that, to date, the mother has been their primary care provider.
The father proposes that, if the mother returns to live in the United Kingdom, the children live primarily with her and spend time with him each fortnight from after school or 3.00 pm Thursday until after school or 3.00 pm on Tuesday during school terms (that is, for five nights each fortnight). I have proceeded on the basis that his proposal implicitly suggests that the school holiday periods be shared equally.
The father proposes that, in the event the children return to live in the UK and the mother, in essence, follows them back there, she should be permitted to travel with the children to Australia each year so as to ensure that they continue to have a relationship with their maternal extended family in Australia; he said that, to facilitate this, he would pay half of the cost of the children’s return economy airfares between Australia and the UK once a year.
The father also proposed that, if he moved to Australia and lived in Brisbane, the children should live with each parent in an equal time shared care arrangement: this was advanced despite his proposal for the children’s time with him on their return to the United Kingdom (and assuming their mother returned with them) being one of five nights each fortnight. As I understood it, the additional time was sought because he said he would be alone in Brisbane and would have more time to spend with the children here than he would if he continued to live in the UK and they returned to live there also.
The father also sought, as an alternative, that Orders be made to cover the possibility that he might move to live in Australia, but live in either Sydney or Melbourne. He proposed that, in such a scenario, the children should spend time with him each alternate weekend, with such time to occur mostly in Brisbane (where he would find suitable accommodation) and, occasionally, in either Sydney or Melbourne to where the children could occasionally travel once they are older. He also advanced that the children should spend half of each school holiday period with each parent and that they should be able to travel away from Australia during these times.
I note that the father accepted that it is better for the children to have both parents living in the same city: he said that, if the Court decided that the children should remain living in Australia, he would do his best to find a solution. I accept his evidence in this respect. When asked what he meant when he said this, the father said he would do his best to come to Australia and would speak to an immigration agent; he also said he had previously been told he could apply for a parental visa as he has family (the children) in Australia, but thought that such visa would not allow him to work in this country. He also said that another alternative would be for him to try to find an employer who would sponsor him, so that he could apply for a visa on that basis. He said that he had not yet taken any steps to further investigate these issues (and others associated with them) because to do so would be contrary to his primary position that it is in the children’s best interests that they return to live in the United Kingdom.
There is no expert evidence before me about the father’s ability to apply for whatever visas may be necessary to permit him to move to live in Australia.
I accept that, if it is decided that it is in the children’s best interests to remain living in Brisbane with their mother, the father is more likely than not to take steps to ascertain whether it is feasible for him to move here so that they can spend time with him during school terms, in addition to that which will occur during school holidays.
The operative Order: 20 July 2016
On 20 July 2016, Judge Spelleken made parenting Orders by consent. By way of broad overview, these Orders include that:
a)the parents have equal shared parental responsibility for the children in relation to all major long-term issues affecting them; and
b)the children live with the mother; and
c)the children spend time with their father during any period he is in Australia on specified conditions – being that:
i)he provide the mother with not less than 30 days’ notice of his intention to spend block holiday time with the children; and
ii)the block holiday period be for a maximum of two consecutive weeks on each occasion; and
iii)the father may only exercise block holiday time with the children on up to five separate occasions in any calendar year; and
iv)if any time occurred during the school term, the father would ensure that the children attend school and any extra-curricular activities during the time they were with him.
The parents were also agreed that, until further Order, the father be restrained from removing or attempting to remove or causing or permitting the removal of the children from Australia and that the Australian Federal Police give effect to such Order by placing the children’s names on the Watchlist and maintaining them there until the Court Ordered their removal.
The parties also agreed that the children communicate with the parent with whom they were not then spending time, each Monday and Thursday between 6.00 am and 7.00 am. The parents were also able to reach agreement about an extensive number of information Orders. In addition, they agreed that, upon certain agreed conditions, the children travel from Australia to HH Bank between 19 December 2016 and up to and including 7 January 2017 and spend time with their father there.
The children’s time with their father since April 2015
I accept that the children spent time with their father in Australia for 10 days in May 2015 (during which they spent an overnight with him) and for eight days during September/October 2015. I also accept that, since then, they have spent the following time with him:
From
To
Duration
Location
10 January 2016
23 January 2016
13 days
N Town
27 March 2016
2 April 2016
7 days
O Town
2 July 2016
9 July 2016
7 days
P Town
25 September 2016
1 October 2016
7 days
O Town
21 December 2016
25 December 2016
4 days
Country G
26 December 2016
4 January 2017
9 days
Europe/Country G
9 April 2017
16 April 2017
7 days
N Town
25 June 2017
27 June 2017
2 days
Q Town
28 June 2017
1 July 2017
5 days
R Town
17 September 2017
24 September 2017
7 days
Q Town
25 December 2017
6 January 2018
12 days
S Town
31 March 2018
7 April 2018
7 days
T Town
In addition to spending this time together, the children have also communicated with their father regularly: they have used FaceTime to interact with him bi-weekly (Tuesday and Friday) between 6.00 am and 7.00 am. I accept that, on occasions, they also FaceTime him on the weekends. I think it much more likely than not that, as they become older, the children’s capacity to communicate with both of their parents via Skype, FaceTime and other means (such as email or messaging) will only increase. I also note that the father gave X a second-hand laptop for her eighth birthday and he has created an email address so they can chat online. Again, the children’s capacity to communicate with both of their parents in this manner will, it seems to me, only improve as they become older.
Access to such forms of communication and familiarity with it from a young age can only assist the children to continue to develop and maintain meaningful relationships with both of their parents, irrespective of where they and their parents live in the world.
Principles
The statutory framework does not deal differently or specifically with cases involving the proposed relocation of children. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth)(“the Act”), the principles which underpin those Objects[7] and, subject to s 61DA, s 65DAB[8] and Division 6 of Part VII of the Act, such parenting Orders as thought proper may be made.[9]
[7] s 60B of the Act.
[8] Parenting Plans.
[9] s 65D of the Act.
In arriving at the parenting Order I think is proper in the circumstances of this case, I have had regard to the Objects of Part VII of the Act and the principles which underpin the same.
In deciding whether to make a parenting Order, I must regard the children’s best interests as the paramount consideration.[10] Such interests should not be viewed in the abstract, or separate from the circumstances of their parents.[11] Further, the statutory exhortation to regard the children’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored – rather, where legitimate parental interests conflict with the children’s best interests, the former must give way.[12] That is, the determination of those Orders which are in the children’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal.
[10] s 60CA and s 65AA of the Act.
[11] See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.
[12] Ibid.
The matters to which regard must be had in determining those parenting Orders which are in the children’s best interests are prescribed by s 60CC of the Act. The requirement to “consider” each of these matters involves taking note of them or giving heed to them or thinking over or reflecting on them; it does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion. [13] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those Orders which are in the children’s best interests. I have given heed to and reflected on all of the relevant considerations in arriving at my conclusion about those Orders which are in the children’s best interests.
[13] Banks v Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.
The benefit to X and Y of having a meaningful relationship with both of their parents
Whilst the Act does not define the term ‘meaningful relationship’, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life, the term ‘meaningful’ is not synonymous with the term ‘optimal’.
In McCall v Clark,[14] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, Orders can be framed to ensure that the child has a meaningful relationship with both of that child’s parents.
[14] (2009) FLC 93-405.
It is clear that X and Y have meaningful relationships with each of their parents. It is also clear that there is a real and substantial benefit to each of them of having the opportunity, into the future, of maintaining such relationships. Both parents agree about this.
I accept that the mother recognises that the children have enjoyed spending time with their father and have benefited from being able to do so. I accept that she recognises the importance to the children of having a good and strong relationship with the father. I also accept that she has demonstrated her belief that this is important to, and for, the children by actively promoting their relationship with him since he returned to the UK in February 2015 and they separated in April 2015.
I accept that the mother has done those things she particularises in her affidavit to support the children in maximising the benefits to them of having a father from Country G. I accept, for example, that she actively supported the children in maintaining a connection with their Country G heritage by facilitating their attendance at a Country G not-for-profit private school on a weekly basis in 2017. I also accept that, in the past, she has done things like recording a voice message with the children singing “Happy Birthday” to their paternal grandmother in her language. I think it much more likely than not that, if she remains the children’s primary care provider, the mother will continue to encourage the children to take every opportunity to benefit from the fact of their heritage and that she will actively support them in such endeavours.
I accept the father’s evidence to the effect that he has always thought the children to have a very strong and meaningful relationship with both parents.
Whilst he advances that the children’s ability to develop and maintain a meaningful and beneficial relationship with him has been, and will be, limited due to the distance between himself and the children (if they remain living in Brisbane and he remains living in the UK) – which has the consequence that he has only been able to spend time with them for a week at a time during holiday periods and communicate with them via FaceTime – I do not accept the contention that their geographic separation since February 2015 has meant that he has been unable to form a strong bond with them. All of the evidence is to the contrary; in fact, I am easily persuaded that, despite having lived apart from their father since February 2015, the children have been able to continue to develop and strengthen their bond with him. I consider it much more likely than not that this would not have been achieved without the mother’s support for the same and the father’s commitment to traveling to Australia regularly so as to spend time with the children here during their holidays. That both parents have acted as they have in this respect reinforces my conclusion that, in the event that the children remain living in Brisbane with their mother, their relationship with their father, wherever he may live, will likely continue to receive the same support in the future as it has in the past.
I consider that both parents have demonstrated their support for the children having the opportunity to develop and maintain a meaningful relationship with each of them; I also consider that both parents genuinely support the children in this because each parent views it as being important for their children. I am not persuaded that, if the children remain living with their mother in Australia, she will do anything other than continue to support them in their relationships with their father. Similarly, I do not think it likely that the father would really cease to communicate and spend time with his daughters if they remain living in Australia: his devotion to them and to maintaining his relationships with each of them has been manifest in his efforts in travelling to Australia to spend time with them. I am unpersuaded that, even if the children remain living in Australia, their father would think so little of his children that he would cease his efforts to see them.
Given that both parents appeared to agree that it would be better for the children to have both parents living in the same city – or, at least, the same country – I accept that, if the children remain living with their mother in Brisbane, it is likely the father will do his best to attempt to find suitable employment here, such that he can relocate to live somewhere in Australia.
Even if such efforts are ultimately unsuccessful (for whatever reason), I consider it much more likely than not, given his previous trips to Australia to see the children since April 2015, that the father will continue in his efforts to spend time with the children so that their relationships with him can continue to develop and grow as they mature. Further, as they become older, the children’s ability to travel to meet their father will increase, although the age at which they do this on an unaccompanied basis is, of course, a matter for both of their parents to determine.
I also accept that, if it is decided that it is in the children’s best interests to relocate to live in the UK, the mother will relocate herself there also. I accept that she would do so because, as Dr U in essence said, a future inability to be the children’s primary parent would be catastrophic for her and attended by an overwhelming possibility that she would suffer a recurrence of the major depression from which she has suffered since not long after her mother’s unexpected death in August 2014.
The children: their functioning, their views, the nature of their relationships with each of their parents and other significant individuals[15]
[15] Sections 60CC(3)(a), (b) of the Family Law Act 1975 (Cth).
Eight year old X presented to Ms V in April 2018 in a bright and happy manner; her demeanour was gentle and sensitive. She said she was not learning Country G except when her father spoke to her in it, and that she can understand him sometimes. She told Ms V it was good seeing her father every school holidays; she also said she missed him when she did not see him. She said she is close to her father; she thought she was closer to him than Y because she has a birthmark that is exactly the same as one he has.
X said she did not have any friends in the UK and would have to go to a new school. She said she had some really good friends at her current school and had promised them she would never leave them. She said she would have to break her promise if she went to live in the UK. She also said she would be sad about leaving her friends here.
X told Ms V that her parents used to fight a few years ago, but they generally get along together now. She said her mother talks a bit weirdly to her father, but her father talks normally to her mother. When explaining ‘weird’, she said it meant ‘a bit meaner’.
Five year old Y was also interviewed by Ms V in April 2018. She was observed to be bright, confident and expressive: “full of chatter”. She told Ms V that her father is from Country G and that she loves seeing him: he comes to see them every school holidays.
She knew her mother wanted them to live in Brisbane and her father wanted them to live in the UK. According to Ms V’s report, Y said “brightly and emphatically” that she does not want to live in the UK, that she hates the place and wants to keep living in Australia, as it is the most amazing place she has ever had. She said the UK is too cold. She said she does not really like it, although she acknowledged that she did not know much about the UK, except that she was born there.
The father’s account to Ms V in April 2018 that he has a close bond with the children, most particularly X, appears supported by X’s view of the relationships she and Y have with their father. I also note that the father told Ms V X cries when he has to leave each time, but Y is a more robust child, who says goodbye happily and does not cry like her more sensitive sister.
I accept Ms V’s assessment that the children continue to have a strong, loving bond with their father. I accept they are secure, spontaneous and affectionate with him and that, in return, he is responsive and child-focussed toward them. I note that the father accepted that the mother has supported his relationship with the children. I also accept the father’s evidence that, from his perspective, the children feel confident, safe and secure with him. I consider that this would not be likely without the mother’s support for the children’s relationships with him.
I also note that the mother accepts that the children have missed having their father in their day-to-day lives. That she recognises this provides further support for the conclusion that she will, in the future, continue to support the children in having the opportunity to spend time and communicate with their father, wherever they live.
I accept that the mother has always been the children’s primary carer. I accept that, since their respective births, she has been the parent whom has met most of their day-to-day needs, albeit that I also accept that, at various times, the father assisted her to do so when he was not working. I think it more likely than not that the mother is the parent from whom the children have received the majority of their emotional support to date.
I also accept that the mother has provided well for the children and knows their different personalities and needs. I accept that both children are happy and secure with their mother.
I note that X completed her Prep year (2015) and two terms of Grade 1 (January to May 2016) in the W School Country G Immersion Program. I accept that the mother withdrew X from the immersion program. I accept that she did so after consulting with X’s teachers and the Principal. I accept that the main reasons underpinning the mother’s decision were that the daily homework burden was too much for X, particularly given that, as she is not fluent in Country G, the mother was unable to provide her with much assistance; the balance of Country G and English taught was not equal; and the stress of the class resulted in X crying on a daily basis, saying that she did not want to go to school and exhibiting a deterioration in her classroom behaviour.
I accept that X attended Country G language lessons each Wednesday whilst attending after school care at W School throughout 2016. I also accept that the mother enrolled her in a private after school homework class once a week and that such class was offered by a native Country G speaking parent of one of the children in the class.
I accept that the mother asked the father for his support and to nurture X’s Country G language development before she removed X from these classes; I also accept that she received no constructive reply from him about this issue. I note that, after the mother applied to the Court for an Order permitting her to change X’s enrolment from a Country G teaching bilingual school into a standard state school, she did so; I also accept that, as part of her attendance at Suburb L State School, X now learns another language.
I accept the mother’s evidence to the effect that she organised for the children to commence Country G language lessons on a Saturday at Z School in January 2017. I also accept that she asked the father to assist in determining which Country G lessons were best for the children (that is, those offered by AA School or those offered by Z School). I accept that the father did not reply to her requests for assistance and that, consequently, she enrolled them at Z School. I accept that, between about January 2017 and December 2017, the children participated in Country G lessons on Saturdays, between 9.30 am until 11.30 am.
I also accept that the mother has taken other positive steps to foster and encourage the children’s knowledge of their Country G heritage: for example, I accept that she listens to Country G songs with them in the car and that, on about three occasions each month, they watch Country G movies which their father has downloaded for them and provided. I also accept that the children use the Duolingo app for about half an hour each week. I also accept that, in 2017, in addition to attending Z School every Saturday, Y participated in Country G language classes at her kindergarten every Tuesday for half an hour. I accept that the mother has taken the children to the annual Country G festival.
I accept that, at the time of the hearing, the children were not participating in any Country G language lessons at all. I accept the mother’s evidence that she had not continued the children’s previous attendance at Z School in 2018 because they had expressed interest in doing other activities on Saturdays (for example, X said she wanted to play netball).
I accept the mother’s evidence that her intention is that, once the netball season has concluded, the children will recommence their participation in Country G language classes.
I accept that, from the mother’s perspective, it has been difficult for her to determine where the children should attend to best continue to learn the Country G language because the father has not previously assisted her in that task. I accept that the father has previously been unwilling to assist the mother to determine the best institution from which the children can continue to learn the Country G language because he has been concerned that, if he had done so, it would in some way undermine his primary case that the children should return to live in the UK. Despite this discord, I am very confident that, once final parenting Orders are made, these parents will be able to able to join in supporting their children to continue to learn their father’s language of origin; after all, it is difficult to think of a greater benefit to any child than the ability to communicate in more than one language.
I have no doubt that these two parents have the ability to prioritise their children learning the Country G language. I also have no doubt that, if they work together as I consider them capable of doing, they will be able to ensure that their children obtain the maximum benefit from having a parent who is bilingual. I also have little doubt that, as long as the children are able to speak regularly with their father, they will be particularly supported by him in learning the Country G language.
I accept the mother’s evidence about the steps she has taken to renew both children’s Country G passports in Brisbane: a process which involves attending in-person interviews, with the children, at the Country G consulate.
I have no doubt that the children’s Country G heritage will be supported and encouraged by their mother, wherever they live.
The mother: the children’s relationship with her; her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood[16]
[16] Sections 60CC(3)(b), (c), (ca), (f) and (i) of the Family Law Act 1975 (Cth).
I accept Ms V’s assessment that there can be no doubt about the mother’s commitment to the children’s care and well-being: I accept that she has virtually raised them single-handedly since the April 2015 parental separation. I also accept Ms V’s evidence to the effect that the children’s adjustment to this significant change in their lives and their “delightful personalities” are a credit to the quality of nurture their mother has provided to them.
One of the most significant issues in this case – given the mother’s evidence that, if the children are Ordered to return to live in the UK she will follow them there – is whether and, if so, the extent to which, her ability or capacity to continue to primarily parent them in the manner she has – with the attendant results described by Ms V – is likely to be affected by a return to live in the UK.
That the mother will continue to primarily parent the children is not in doubt given the father’s proposal that, if she returns to live in the UK, the children should live with her for nine nights each fortnight and half of the school holiday periods.
The mother’s functioning and mental health
The mother has previously received psychological treatment from a Dr BB (upon whom she attended between November 2014 and mid-July 2017). Following a suggestion from her general medical practitioner, she resumed receiving psychological support in late April 2018: she currently attends on a Dr CC. The mother said she found these sessions therapeutic.
The mother has also previously been assessed by a number of psychiatrists for assessments with respect to her personal injuries claim for post-traumatic stress disorder and depression arising out of the death of her mother in August 2014. She attended on Dr DD on 13 October 2016, on Dr EE on 24 July 2017 and on Dr FF on 6 April 2018. Both Dr EE and Dr DD diagnosed her to suffer from a major depressive disorder, whilst Dr FF’s report is yet to be released.
In October 2016, Dr DD assessed the mother as appearing to be a high functioning and resilient person; however, he thought that the unresolved matters (including the Coronial Inquest into her mother’s death and her Family Court proceedings) caused her the maintenance of her abnormal grief reaction. Dr DD assessed the duration of the mother’s abnormal grief reaction as severe and prolonged enough to found a diagnosis of a major depressive disorder. He said her major depressive disorder (which he thought due to a pathological grief reaction to her mother’s death) appeared to be a new psychiatric diagnosis or condition; he thought it caused by the effects of the tragic loss of her mother in the motor vehicle accident and the subsequent associated stressors. As at October 2016, he thought that she would benefit from ongoing psychological sessions. He also thought it beneficial if the mother continued with her antidepressant medication and opined that the most important strategy would be for her to maintain her employment to provide income, add structure and give stability to her day.
When he assessed the mother in July 2017, Dr EE observed her pervasive mood to be depressed and her affect restricted. He considered that themes of grief were evident, as were themes of stress with regard to her relationship separation and ongoing custody issues. Dr EE opined that the death of the mother’s mother and the relationship/custody issues both evenly contributed to her ongoing psychiatric condition. He thought that she would benefit from further psychological treatment and that she needed to continue to take antidepressant medication. His opinion was that she did not suffer from post-traumatic stress disorder.
Having been referred to Dr BB, a clinical psychologist, by the Homicide Support Group, the mother started counselling with her in November 2014. Dr BB diagnosed the mother as suffering from post-traumatic stress disorder and major depression. As at early December 2015, she considered the mother met the criteria for major depression. She started Cognitive-Behaviour Therapy intervention with the mother in 2014. Her opinion was that the mother’s prognosis was enhanced by treatment; she also considered that, without treatment, the mother would not cope. Dr BB strongly suggested that the mother continue to take the antidepressants her general medical practitioner had prescribed to help her to cope with her profound grief.
Dr U’s evidence
I accept the evidence given by Dr U unless I state otherwise.
When she was interviewed by Dr U on 29 May 2018, the mother told him that she had seen Dr BB for over two years on a weekly to two weekly basis (and, occasionally, monthly). Her last appointment had been on 15 July 2017. She said that, whilst she had felt helped by her engagement with Dr BB, their consultations ended abruptly when the psychologist died unexpectedly. She also explained to Dr U that she was distressed by Dr BB’s death as she had been unable to say goodbye to her.
Dr U said the mother was pleasant and co-operative at the interview, though she presented as an obviously distressed woman who looked worn out. He said she gave her account in a reasonably matter of fact manner: she was not over-stated and demonstrated good social skills and a professional manner. He said there was no psychomotor retardation or agitation, although she looked anxious at times. Dr U said that the mother described depressed mood: he thought her affect seemed more depressed than what she described. She was tearful on occasion, but also smiled occasionally and warmed up when she spoke about the children.
The mother told Dr U that she had been taking an antidepressant for the previous two years. This antidepressant treatment began approximately two to three weeks after her mother’s death. She explained that her treatment with Pristiq (100 mg), which began about six months after she was first prescribed antidepressants, had “helped a lot”. She outlined to him that, when it was first prescribed to her, she would have rated herself at “4 to 5 out of 10” on a scale of 0 to 10, whereas she then rated herself as “7 out of 10” on the same scale.
Dr U considered that the mother’s depression was more than moderate at the time of its nadir. He said that he would not have assessed it as having been severe, but it was more than moderate: he thought that, if he had seen her then, he would have scored her at 4/10 (where 10 is a person’s normal mood and zero is the worst depression that that person could imagine).
Holiday time
The mother accepted that, if the Court made an Order that the children remain living in Australia with her, there was no difficulty in the children travelling to the UK or Europe to spend the entirety of one complete holiday period with their father there, rather than requiring that each holiday period be divided in half.
Given the father’s evidence that, if the Court decides – as I have – that it is in the children’s best interests to remain living in Brisbane with their mother, he will do everything that he can to move to live in Australia, it is appropriate and in the children’s best interests that Orders are made to prescribe their time with him in the event that he lives in Brisbane or Sydney or elsewhere in this country. It is also appropriate and in the children’s best interests that Orders are made to deal with the possibility that the father may remain living in the UK, in which case the only reasonably practicable time that the children can spend with him will occur during school holiday periods.
I accept that it is in the children’s best interests to be able to travel with their father from Australia to spend time with him in or other locations closer to Australia than Europe: I did not understand that the mother was suggesting that the children’s time with their father occur only in Australia and, if I am wrong in my understanding of her position, I consider that it can only be to the children’s benefit to have the opportunity to travel outside of Australia for holiday travel with each of their parents. It is appropriate that the parent proposing to remove the children from Australia for the purpose of holiday travel give notice and provide details about the same to the other parent.
I have determined not to impose any further restraints in relation to any holiday travel that the children may do outside of Australia in the future, other than to restrict the same to travel to countries which are signatories to the relevant Hague Convention. In the event that the non-travelling parent opposes the travelling parent’s plans for the children’s overseas travel, it will be a matter for that parent to return the matter to Court to seek to restrain the children from being removed from Australia for the purpose of particular proposed overseas holiday.
I consider it appropriate and in the children’s best interests that Orders are made to ensure that they have the opportunity to communicate with the parent with whom they are not living and that both of their parents are able to remain informed about matters involving the children.
For the reasons outlined above, I consider that the Orders set out at the commencement of these Reasons are the Orders which are in the children’s best interests.
Property
The manner in which the Court is to approach proceedings for property settlement is well known and requires no further elucidation.
One of the consequences of the parties’ voluntary separation some years ago is that they no longer enjoy the common use of property in which their existing legal and equitable interests were acquired during their cohabitation. Another consequence is the cessation of any “assumption that any adjustment to those interests could be effected consensually as needed or desired”.[23]
[23] Stanford v Stanford (2012) 247 CLR 108 at [42].
I accept that, in the circumstances of this case, it is just and equitable within the meaning of s 90SM(3) of the Act that, pursuant to s 90SM(1) of the Act, Orders altering the interests in property owned by each of them are made.[24] Given this conclusion, it is necessary to resolve the conflict between the parties about the terms of the Orders which are appropriate to reflect properly those matters which, by s 90SM(4) of the Act, must be considered.
[24] Ibid at [42].
Both parties approached this aspect of the proceedings on the basis that, save for the property at B Street, Suburb C, City D, the UK (the UK property), which is currently owned by them as tenants in common (the Applicant owning 35 per cent and the Respondent 65 per cent), each of them should retain all other property (other than a framed Indigenous art piece) and entitlement to superannuation and/or pension that each has.
I agree that Orders providing for the retention by each party of the property that is currently in each party’s possession (save for the specified artwork about which agreement has already been reached) or owned by each party are appropriate[25] and just and equitable in all the circumstances of this case.[26] This is so because of the manner in which the parties determined to manage their finances during their relationship.
[25] S 90SM(1) Family Law Act 1975 (Cth) .
[26] S 90SM(3) Family Law Act 1975 (Cth).
The Applicant originally proposed that the UK property be sold and the nett proceeds divided between the parties. However, once the Respondent outlined his desire to retain the UK property, she said she was agreeable to transferring her interest in it to him upon payment by him to her of that sum determined by the Court as appropriate. Given the Applicant’s approach to the Respondent’s desire to retain the UK property, I consider it just and equitable that she transfer her interest in it to the Respondent.
Ultimately, as their respective cases were advanced, the only issue requiring determination was the amount to be paid by the Respondent to the Applicant in consideration for the transfer by her to him of her interest in the UK property.
For the purpose of determining this amount, it is agreed that the UK property is valued at £400,000.00 (or approximately AUD$700,000.00, depending on the exchange rate). It is also agreed that it is encumbered by a mortgage which secures borrowings. The quantum of such borrowings are either about $345,000.00 (according to the figure provided by the Applicant on her Balance Sheet and Case Outline: which equates to about £200,000.00, depending on the exchange rate) or $343,200.00 (according to the figure on the Respondent’s Financial Statement and Balance Sheet). Consequently, I have determined that, doing the best that I can, it is appropriate to proceed on the basis that the nett equity in the UK property stands at about AUD$356,000.00.[27]
[27] Adopting the loan amount advanced by the Respondent.
The Applicant seeks that the Respondent pay her an amount representing half of the nett equity in the property (say, AUD $178,000.00). She contends, in essence, that an Order to this effect is just and equitable having356800 regard to: her direct financial contribution to the acquisition of the UK property (being the payment of 35 per cent of the deposit amount); that her 35 per cent ownership of the UK property would see her receive AUD$124,600.00 from its nett equity in any event; her primary care of the children during the relationship; the fact that, from late September 2014 to September 2015, she was solely responsible for the maintenance and care of the children as the Respondent first started to pay child support from September 2015; and that, whilst the Respondent pays child support, the quantum of the same is reduced by about $7,000.00 per year as a consequence of the travel expenses he incurs. It is also relevant to note that, as a result of the parenting Orders, she will remain primarily responsible for the physical care of the children – either on a nine night/five night per fortnight ratio[28] (if the Respondent moves to live in Brisbane) or on an eleven night/three night per fortnight ratio[29] (if the Respondent moves to live in Sydney or another capital city in Australia) or for all but half of the school holidays, being time the children will spend with the Respondent (if he remains living in the UK).
[28] And half of the school holidays.
[29] And half of the school holidays.
The Respondent contended that he should pay the Applicant that amount which represents 20 per cent of the nett equity in the property (that is, about AUD$71,200.00) for the transfer by her to him of her 35 per cent legal interest in it. He contended, in essence, that an Order to this effect is just and equitable having regard to his assertion that funds the Applicant brought to Australia (in an amount of about $78,000.00) which were previously held in a HH Bank account were in fact joint savings.
However, given the way in which these parties managed their financial affairs (that is, by keeping their funds in their own personal bank accounts, by managing their individual savings separately and by ensuring that they contributed equally to the payment of all bills, expenses and outgoings, irrespective of whether they were, at times, in full or part-time paid employment or not) and the Applicant’s evidence – which I accept – about the source of the funds in the HH Bank account (namely, that about $100,000.00 of the same represented inherited funds and the balance of about $50,000.00 represented funds she had saved from her earnings) and the admonition by the Court in Stanford[30] (which, whilst made in the context of considering the position of married persons is also apposite to persons previously involved in a de facto relationship) that “community of ownership arising from marriage has no place in the common law”,[31] I am not persuaded that the funds held by the Applicant in her HH Bank account were in fact “joint funds” or funds to which the Respondent had made any contribution.
[30] (2012) 247 CLR 108.
[31] Stanford v Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
I am persuaded, by virtue of those matters summarised in paragraph [165] that it is appropriate that the Applicant and the Respondent share equally in the nett equity in the UK property and that it is just and equitable in all the circumstances that Orders are made to give effect to this conclusion. In arriving at this conclusion, I have also taken into account: their respective contributions (of both a financial and non-financial nature and both direct and indirect) during their relationship and since then; their respective care of the children; their current financial circumstances, including their respective incomes and the fact that the Respondent’s gross weekly income is about $2,000.00 more than the Applicant’s gross weekly income; the fact that the Applicant stopped paying her contribution to the mortgage repayments for the UK property in around April 2018 as she could no longer afford to contribute to the same without receiving rent from the property and that, since then, the Respondent has met the entirety of the same; the value of the other property each owns; their liabilities to credit providers and others; the amount paid by the Respondent by way of child support and the arrears in respect of the same at present; the value of any pension and/or superannuation to which each is entitled.
It is also appropriate that Orders are made to deal with the possibility that the Respondent might not be able to refinance the borrowings secured by the mortgage over the UK property; if that is the case, it will have to be sold. In such a scenario, it is appropriate that the parties share equally in the nett sale proceeds and it is just and equitable in all the circumstances that Orders are made to give effect to these conclusions.
Consequently, I make Orders in the terms appearing at the commencement of these Reasons, to give effect to the conclusions I have reached.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 7 December 2018.
Associate:
Date: 7 December 2018
Key Legal Topics
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Family Law
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Property Law
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Injunction
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