Michel & Stathis
[2022] FedCFamC1F 37
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Michel & Stathis [2022] FedCFamC1F 37
File number(s): SYC 7024 of 2019 Judgment of: HARPER J Date of judgment: 8 February 2022 Catchwords: FAMILY LAW – PARENTING – International relocation – Consent order made for sole parental responsibility to the father – No allegations of risk – Where there is intractable and continual conflict between the parties – Where the parties relocated to Australia from the UK in 2017 – Father seeks permission to relocate with children back to the UK – Where both parties and children have attention deficit hyperactivity disorder – Where children have resided with father since separation – Weight to be accorded to views of the children – Where older child has clear preference to return to the UK – Limited weight accorded due to far-reaching implications of relocation order – Where child refuses to spend time with the mother – Allegations of parental alienation – Where despite hostility to the mother, there is still an intimacy in the relationship observed – Where relocation would decimate any potential to foster ongoing relationship between the children and the mother – Risk of significant long-term damage to identity – Orders for children to remain in Australia – Consent orders for children to live with the father – Orders for one child to spend time with the mother in accordance with his wishes – Orders for other child to spend overnight time with mother – Where child has autism – Diagnosis disputed by mother – Whether child should attend special needs school or mainstream school – Father to determine schooling due to sole parental responsibility.
FAMILY LAW – PROPERTY – Final property settlement – Application for property adjustment orders pursuant to s 79 of the Family Law Act 1975 – Fourteen year relationship – Small asset pool – Assessment of contributions – Where the husband made vast majority of financial contributions – Where the wife undertook primarily caring and homemaker duties – Where the husband has been the primary caregiver since separation – Contributions assessed at 68 percent to the father and 32 percent to the wife – Section 75(2) adjustment – Where the husband’s income far exceeds the wife – Nine percent adjustment in the wife’s favour – Final division of 61 percent to the husband and 39 percent to the wife – Superannuation splitting order made – Order made for husband to pay property settlement sum.
Legislation: Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) Pt VIII, ss 10G, 60CA, 60CC, 61DA, 62B, 65DA, 65DAA(1), 65DAB, 75, 79, 80, 81, 90XT(1)(a), 106A, 117, 117B
Family Law (Superannuation) Regulations 2001 (Cth) Pt 6
1980 Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: Adamson & Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Barnell & Barnell (2020) 60 Fam LR 377; [2020] FamCAFC 102
Benson & Drury (2020) 62 Fam LR 1; [2020] FamCAFC 303
Bevan & Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116
Bilz & Breugelman [2013] FamCA 578
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
C & C (2005) FLC 93-220; [2005] FamCA 429
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 93
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Ember & Assadi [2013] FamCAFC 107
Fielding and Nichol [2014] FCWA 77
Fitzroy & Fitzroy [2009] FamCA 954
Franklyn & Franklyn [2019] FamCAFC 256
G & G (2000) FLC 93-043; [2000] FamCA 1075
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
In the Marriage of Burke (1981) FLC 91-055
In the Marriage of Crapp (No 2) (1979) 5 Fam LR 47; [1979] FamCA 17
Jabour & Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78
JEL & DDF (2001) FLC 93-075; [2000] FamCA 1353
Kowalski & Kowalski (1993) FLC 92-342
M v S (2006) 37 Fam LR 32; [2006] FamCA 1408
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Norman & Norman [2010] FamCAFC 66
Pierce v Pierce [1998] FamCA 74; (1999) FLC 92-844
Re G (2000) FLC 93-025; [2000] FamCA 462
Rodgers & Rodgers(No 2) [2016] FamCAFC 104
Sampson & Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Tomaras & Tomaras [2021] FedCFamC1A 82
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
U v U (2002) 211 CLR 238; [2002] HCA 36
Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Warbrick & Warbrick [2021] FamCAFC 60
Zahawi & Rayne [2016] FamCAFC 90
Division: Division 1 First Instance Number of paragraphs: 274 Date of hearing: 15–17 December 2021 Place: Sydney Counsel for the Applicant: Mr Hodgson Solicitor for the Applicant: Mills Oakley Counsel for the Respondent: Mr Johnston Solicitor for the Respondent: Santone Lawyers Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
SYC 7024 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MICHEL
Applicant
AND: MS STATHIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
8 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The letter emailed to chambers by the father’s solicitors on 22 December 2021 enclosing the invoices and receipts sent to Dr C for the purposes of these proceedings be marked Exhibit “8”.
PARENTING
2.The Applicant Father, Mr Michel (“the father”), have sole parental responsibility for Y (“Y”) born 2007 and X (“X”) born 2012 (collectively: “the children”).
3.The father shall
(a)Notify the Respondent Mother, Ms Stathis (“the mother”) of any proposed decisions relating to the long term care and welfare of the children and the reason for the proposal, such notification to be given in writing at least six (6) weeks prior to a final decision being made; and
(b)Take into consideration any views expressed by the mother about the proposed decision.
4.The children shall live with the father in Australia.
Spend time with the Mother
5.Y shall spend time with his mother in accordance with his wishes.
6.Unless otherwise agreed between the mother and the father in writing, X shall spend time with the mother as follows:
(a)During school terms, commencing on the second weekend after each new school term in even numbered years, and on the first weekend of each new term in odd numbered years, as follows:
(i)In Week 1 of each fortnight from the conclusion of school on Thursday (or 3.00pm if a non-school day) until the commencement of school on the following Monday (or 9.00am if a non-school day); and
(ii)In Week 2 of each fortnight from the conclusion of school on Thursday (or 3.00pm if a non-school day) until the commencement of school on Friday (or 9.00am if a non-school day).
(b)During school holiday periods, for one half of the school holidays each year, being the first half of school holiday period in odd numbered years and the second half of the school holiday period in even numbered years, with changeovers to occur at 3.00 pm on the midpoint day of the school holidays, and if there are two midpoint days, at 3.00 pm on the first midpoint day.
(c)If Mother’s Day does not fall on a weekend, X is to spend time with the mother from 6.00pm on Saturday until 6.00pm on Sunday.
7.In the event that Father’s Day falls on a weekend that X is to spend time with the mother on that weekend, that time with the Mother on that weekend shall end at 6.00pm on the Saturday.
8.For the purposes of these orders, unless otherwise agreed between the father and the mother in writing, changeover shall occur:
(a)At X’s school if the changeover occurs on a school day; or
(b)For changeovers that occur at other times:
(i)The father shall deliver X, or both children if Y chooses to go, to the mother's home at the commencement of the time they are to spend with the mother; and
(ii)The mother shall deliver X, or both children if Y is present, to the father's home at the end of the time they are spending with her.
9.The father and the mother shall
(a)Be restrained from:
(i)Discussing these proceedings in the hearing of or presence of the children; and
(ii)Speaking about the other parent or the other parent's family or member of the other parent's household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
(b)Take all reasonable steps to prevent any other person from denigrating the other parent in the presence and hearing of the children.
10.The father and the mother shall continue to attend upon B Services for family therapy, together with either or both of the children, as recommended or required by the family therapist.
11.The father shall pay for any family therapy sessions as follows:
(a)100 percent of any sessions that involve him solely;
(b)100 percent of any sessions that involve him and the children; and/or
(c)50 percent of any sessions involving the children only, or both children and both parents.
12.The mother shall pay for any family therapy sessions as follows:
(a)100 percent of any sessions that involve her solely;
(b)100 percent of any sessions that involve her and the children; and/or
(c)50 percent of any sessions involving the children only, or both children and both parents.
13.The parents shall communicate by email, except in the case of urgency or emergency, wherein communication shall occur via text message.
14.The father shall:
(a)Provide the mother with, and keep her advised of, the names and addresses of the children's treating doctors;
(b)Inform the mother in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (“specialist medical consultant”) in relation to either of the children; and
(c)Ensure that the mother is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the father's receipt of the report.
15.Both the father and the mother shall be entitled to:
(a)Attend any appointments with any treating doctor or specialist medical consultant relating to either of the children; and
(b)Discuss the childrens’ conditions with such treating doctor or specialist medical consultant,
however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
16.The father shall ensure that the mother is notified as soon as practicable if, while in his care:
(a)Either of the children are admitted to hospital;
(b)Either of the children are involved in a medical emergency; and
(c)Either of the children will be required to take medication when they spend time with the mother, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the period that the children are to spend with the mother.
17.The mother shall ensure that the father is notified as practicable if, while in her care:
(a)Either of the children are admitted to hospital;
(b)Either of the children are involved in a medical emergency; and
(c)Either of the children will be required to take medication when they return to the father's care, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the first 72 hours following children's return to the father's care.
18.These orders authorise any school which the children are attending from time to time to provide both the father and the mother with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited, as well as any and all information which may be sought from time to time by the father in relation to the children.
19.Both the father and the mother shall be permitted to attend:
(a)Any school event relating to either of the children to which parents are ordinarily invited; and
(b)Any of the children's extracurricular activities.
20.The father and the mother shall notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
21.The father and the mother shall notify each other of any proposed change to their place of residence, with such notification to be made in writing and no less than 14 days prior to the proposed change.
Overseas Travel
22.The father shall hold the children’s passports.
23.The parties shall sign all documents and do all things necessary to renew the children’s passports and/or travel documents upon the request of the other party, and the party making the request shall bear the cost of the renewal.
24.Subject to these orders, and unless otherwise agreed between the parties in writing, the parties are at liberty to depart the jurisdiction of Australia for the purpose of holidaying with the children if:
(a)The travel occurs during their time with children during school holidays;
(b)The travel takes place in accordance with all health guidelines and directives of federal or state governments relating to the Covid-19 virus or any other health risk;
(c)The children remain in the care of the travelling parent for the duration of the holiday;
(d)The travelling parent provides the non-travelling parent:
(i)Three (3) months’ notice of the intended travel;
(ii)Evidence of paid return airfares/tickets for the children and the parent;
(iii)Evidence of travel insurance for the children and the parent for the period; and
(iv)An itinerary for travel, including addresses where the children will be staying, including contact phone numbers;
(e)The destination of travel is within those countries who are signatories to the Hague Convention on the Civil Aspects of International Child Abduction;
(f)The destination of travel is within those countries recommended by the Australian Smartraveller.gov.au Website (or equivalent) Advice as being within the category of “exercise normal safety precautions”;
(g)In the case of the father departing the jurisdiction of Australia with the children, he must in addition deposit $20,000 into the trust account of Santone Lawyers, or such other solicitors as the mother may retain from time to time, one month prior to the said travel, such sum to be utilised by the mother in the event that he fails to return the children, and such sum shall be returned to the father upon seven (7) days of the children’s return to Australia.
25.Within one (1) week of the date of these orders, the father shall take the children to the offices of the Independent Children's Lawyer (“ICL”), at a time arranged between the ICL and the father, for the purposes of having these orders explained to the children.
26.Unless a party has obtained an exemption from the Legal Aid Commission of NSW, each party pay one half of the ICL’s costs, being $5,244.15 ($10,488.30 in total), within 28 days of the date these orders.
Disputes or Variations
27.The process to be used for resolving disputes about the interpretation, implementation or enforcement of Orders 1 to 26 shall be as follows:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under s 10G of the Act.
28.Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the children or of the mother or the father:
(a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or
(b)The mother and the father shall participate in family dispute resolution with a person authorised under s 10G of the Act.
29.Pursuant to ss 65DA(2) and 62B of the Act, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
PROPERTY
30.By no later than 5.00 pm on 29 April 2022, the father shall pay to the mother the sum of $182,514 (“settlement sum”), and thereafter the father shall pay interest pursuant to s 117B of the Act upon any balance of the settlement sum which remains unpaid, at the rate prescribed by the applicable Rules of Court.
31.In the event the father fails to comply with Order 30, within fourteen (14) days of 29 April 2022, the father shall sign all documents and do all things necessary to list the property located at NN Street, E Town, United Kingdom (“the E Town Property”) for sale in the following manner:
(a)The mother shall nominate three (3) agents and the father shall select one and the method of sale shall be as recommended by the agent;
(b)The mother shall nominate three (3) conveyancers and the father shall select one;
(c)That the father shall provide an irrevocable authority to the conveyancer to direct the sale proceeds for the E Town Property as follows:
(i)Payment of the agent’s commission, advertising and costs associated with the sale;
(ii)Discharge of the mortgage over the E Town Property;
(iii)Payment to the mother of $182,514, or such balance of the settlement sum together with any interest payable thereon in accordance with these orders, payable to Santone Lawyers Pty Limited Law Practice Trust Account, BSB: …, Account No: ….
(iv)Payment to the mother, on account of her legal fees incurred on an indemnity basis in the United Kingdom to register these orders and lodge any charge over the property, such notification to be provided to the conveyancer prior to the settlement; and
(v)Payment of the balance to the father.
32.The father shall provide the conveyancing solicitor a copy of these orders and shall instruct the conveyancing solicitor and the agent to provide updates to the mother, or her solicitor, with respect to the sale of the E Town Property.
33.The mother shall be at liberty to register these orders in the appropriate Court in the United Kingdom and lodge any charge over the E Town Property, and shall do all things necessary to remove such charge at the time of settlement of the sale of the E Town Property.
34.Pending sale of the E Town Property, pursuant to these orders the father be restrained by injunction from further encumbering the property and shall make all mortgage payments and payment of other outgoings on the property as and when they fall due.
35.The father shall retain:
(a)The property located at City MM, Country F (LL Street);
(b)Funds in his bank accounts;
(c)The household contents in his possession;
(d)The Motor Vehicle 2; and
(e)His interests in the Super Fund 4.
36.The mother shall retain:
(a)Funds in her bank accounts;
(b)The Motor Vehicle 1;
(c)Her superannuation interests with Super Fund 1; and
(d)The household contents in her possession.
Superannuation Split
37.A base amount of $83,911 is allocated (“the Base Amount”), as required by s 90XT(4) of the Act, to the mother out of the father’s interest in the Super Fund 2 (client no. …68) (“the Fund”).
38.In accordance with s 90XT(1)(a) of the Act:
(a)The mother is entitled to be paid the Base Amount, calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (“the Regulations”); and
(b)The father’s entitlements to payments out of their interest in the Super Fund 2, and the entitlement of such other person to whom a splittable payment may be payable, is correspondingly reduced by force of this order.
39.The Trustee of the Super Fund 2 shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Act and the Regulations, the entitlement created for the mother, by Orders 38(a) and 38(b); and
(b)Pay the entitlement whenever the Trustee makes a splittable payment out of the father’s interest in the Super Fund 3.
40.These orders have effect from the operative time, and the operative time for this order is 28 business days after the Trustee is served with a sealed copy of these orders.
41.These orders bind the Trustee of the Super Fund 2.
Other Property
42.Other than as provided in these orders, the parties each be the sole legal and beneficial owners of all other property and all other financial entitlements (not herein before provided for) in their names, possession or under their control or to which each party is presently, legally or beneficially entitled including real estate, furniture and furnishings, monies in bank, shares, jewellery, motor vehicles, superannuation entitlements and insurance policies.
43.Subject to the above provisions of these orders to the contrary:
(a)The mother indemnify, and keep indemnified, the father from and in respect of all actions, claims, suits and demands as may be against the father in relation to all liabilities in the name of the mother and any other liabilities in relation to any property that vests with the mother pursuant to these orders; and
(b)The father indemnify, and keep indemnified, the mother from and in respect of all actions, claims, suits and demands as may be made against the mother in relation to all liabilities in the name of the father and any other liabilities in relation to any property that vests with the father pursuant to these orders.
Compliance and Costs Orders
44.Each party shall, and is hereby directed, to sign all documents and do all such things and all such acts as may be required to give effect to these orders.
45.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to s 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument.
46.If any party seeks an order for costs, an application to the Court may be made by Application in a Proceeding within 28 days of the date of these orders, with an affidavit in support, to be filed and served within that time period and a copy forwarded to my Chambers. If such application is made, the Court will make orders and directions for its determination.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Michel & Stathis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These are final parenting and property proceedings between the Applicant Father, Mr Michel (“the father”), and the Respondent Mother, Ms Stathis (“the mother”).
The parenting aspect relates to the children of the relationship, Y, born in 2007, and X, born in 2012 (collectively: “the children”).
The father was born in City MM, Country F, and is aged 46. He is presently employed as a professional at G Company. The mother was born in City QQ, Country F, and is presently aged 42. She works in allied health. The parties and children are citizens of the United Kingdom and permanent residents of Australia.
When the trial commenced, the father sought an order for sole parental responsibility and for permission to relocate with the children to the United Kingdom (“UK”). The mother, also initially, sought an order for equal shared parental responsibility and resisted relocation. By the end of the trial the mother accepted there should be an order for sole parental responsibility in favour of the father. The parties and the Independent Children’s Lawyer (“ICL”) also accepted the children should continue to live primarily with the father, although differed about how much time the children should spend with the mother. Relocation to the UK remained contentious and it materially affected the proposals for a regime of time to be spent by the children with the mother. There were no allegations of risk factors, beyond the obvious continual conflict between the parents. I will set out the parties’ detailed proposal later in these reasons.
There is a modest property pool. The main elements of each party’s proposal can be summarised as follows. The father, who owns most of the material assets and is subject to the liabilities, proposed a modest cash payment to the mother plus a superannuation split, and otherwise each party retain their assets and liabilities. The mother proposed a property owned by the father at NN Street, E Town, United Kingdom (“E Town”) be sold, with a payment to her of $360,000 plus a superannuation split, and otherwise each party retain their assets and liabilities. In broad terms, the father says he should receive 65–70 percent of the assets, while the mother argues for a 50/50 split.
BACKGROUND
The parties met in mid-2004 in City MM, Country F whilst the father was on holiday. They commenced a long-distance relationship in December 2004. At this time, the father was residing in the UK, whilst the mother was residing in Country F.
In July 2005, the mother relocated to the UK in order to reside with the father. There is a dispute surrounding the circumstances of the mother’s relocation. It is not necessary for the purposes of this judgment to resolve this dispute.
At the time of commencement of cohabitation, the father owned a property at City QQ in the UK. There was a mortgage secured on this property of $240,730. The father also had the following assets:
(a)Motor Vehicle 3 valued at $45,000;
(b)AG Company Share Portfolio valued at $40,000;
(c)P Company stock valued at $120,365;
(d)Savings of $30,000; and
(e)P Company stock options with a potential value of $240,730, which he did not ultimately realise.
The mother commenced employment with TT Company in City QQ in August 2005. She left this job in mid-2006.
In December 2006, the father sold the City QQ property for GBP143,000, receiving net proceeds of sale of GBP28,000. He then purchased E Town, UK for GBP280,000 in his sole name, with stamp duty and moving costs of GBP30,000. This purchase was financed by the sales proceeds of the City QQ property, savings, and a mortgage of GBP255,000. Between 2009 and 2020, the father paid for a substantial number of renovations and improvements to the E Town property at a total cost of $231,000.
The parties married in 2007, and their first son, Y, was born the same year.
The father alleges that the mother suffered from post-natal depression, which manifested in the form of excessive alcohol consumption and spending upwards of ten hours per day playing video games. Accordingly, the father states that he became Y’s primary carer from 2008 onwards. I note here that the mother disputes this and asserts that she was misdiagnosed, and in reality, she had a benign tumour in her ovaries. Her symptoms improved dramatically following surgery.
The mother argues that she was the primary carer for the children, whilst the father was the primary wage earner. This was because the father travelled often for work, particularly upon commencing a new position with a company called UU Company in September 2009. The father requested that the mother remain at home in order to care for Y, and later X. When travelling for work, the mother states that the father would often extend his trips for a further week in order to go sightseeing.
In early 2008, the father discovered that the mother had commenced an online relationship with a man who she often played video games with.
In the years since Y’s birth, the father states that the mother has been in a number of motor vehicle accidents, including when the children have been in the vehicle. This includes one accident in 2009, two in 2010, and further accidents in 2015, 2017, and 2018.
Between November 2010 and June 2011, the mother worked in a retail warehouse, however states she ultimately resigned under pressure from the father who described her job as a “joke.” She also states that the father promised they would try for a second child if she did so, and the mother conceived X soon after. X was born in 2012.
Y was diagnosed with attention deficit hyperactivity disorder (“ADHD”) in 2015. X commenced speech therapy in 2016.
In July 2017, the father purchased land in City MM, Country F, in the sum of EUR60,000.
The parties relocated from the UK to Australia in August 2017. The father asserts that the parties were unhappy in their marriage at this time, and because he had been offered a new work opportunity, relocation would assist in developing their relationship. On the other hand, the mother states that the parties looked positively on a previous holiday to Australia in 2006, and the political and economic climate in the UK in 2017 led to the parties’ move. The father gave evidence that their move to Australia was intended to be for a temporary period of two years.
In 2018, the father was diagnosed with ADHD.
Upon their move to Australia, the father asserts that the family struggled to afford the increased costs of living. Requests that the mother obtain employment were resisted, and from March 2018 onwards, the father states the parties had frequent arguments during which he encouraged her to undertake more parenting responsibilities, reduce her drinking, and find a job. He states he was unsuccessful in doing so, and therefore commenced working from home full-time in order to care for the children and undertake other household duties.
In around April 2018, the father had a falling-out with his employer. His employment was terminated in June 2018, after which he undertook sporadic contract work until August 2018 when he commenced his current position with G Company. The father commenced proceedings against his previous employer and ultimately entered into a Deed of Release and Settlement, receiving a payout of $59,116 in July 2019.
The mother states that between July 2018 and April 2019, the father travelled overseas on six occasions, with each trip taking approximately one week.
On 30 October 2018, X was diagnosed with ADHD and severely delayed language development.
In January 2019, the father discovered the mother had again commenced an online relationship with a man she had met through online video games. He states that she would often exchange sexually explicit messages and engage in explicit audio and video calls, staying awake until 5.00 am. The father expressed concern that the children could be exposed to this behaviour. The mother eventually admitted the existence of the relationship in April 2019, after which the father was diagnosed with depression. The mother states that this relationship only occurred for one month, in April 2019, and that the father discovered it because he was monitoring her devices without her knowledge.
In February 2019, the mother was also diagnosed with ADHD. The parties and children are all currently taking Vyvanse in differing dosages to assist with managing their condition.
On 14 April 2019, the father returned from a trip to City Q. However, he did not immediately return to the family home, staying instead in a hotel. Whilst there, the mother states that he expressed suicidal ideation via a text message due to his discovery of her online relationship.
The mother states that the father’s suicidal ideation continued throughout May 2019, although he was now attending Dr R and Dr T for psychiatric assistance. The father also arranged couples counselling with Dr S.
On 5 June 2019, the father travelled to Country VV.
On 20 June 2019, the parties separated on a final basis.
On that date, the mother had attended upon Dr T for a psychiatric assessment, and was informed that she did not have borderline personality disorder despite the father’s continuous assertions to the contrary. When informed, the mother states the father rejected this assessment and asked for a divorce. One hour later, he called the mother again and informed her that he had spoken to his solicitors in the UK and made the paternal grandmother the trustee of his estate. He then sent the mother a text message regarding proposed parenting arrangements, including his intention to relocate back to the UK or Country F. The father returned to Australia on 29 June 2019.
The father and Y travelled to City WW during July 2019. Upon their return, the father resided in the formal marital home for two weeks before moving out on 26 July 2019 with the children. He states that during the ensuing weeks, the mother contacted the police several times per week to request unnecessary welfare checks.
Between July and October 2019, the children lived with both parents in a week-about arrangement.
In September 2019, the father ceased paying rent for the former marital home. The mother states that she became aware of this only when she was sent a calendar invitation with a date to vacate the property. She lodged an application for child support shortly after.
In October 2019, the paternal grandmother travelled from Country F to Australia to assist the father in caring for the children, as he was recovering from an operation. She remained in Australia until December 2019.
On 29 October 2019, there was an angry confrontation between the parties. The father states that the mother sought to retain X in her care after school, whilst the mother asserts that the father entered the former marital home without her consent and attempted to have X leave with him. The police attended and served the father with an ADVO, although this was later withdrawn and dismissed on 26 June 2020.
On 4 November 2019, the father removed the children from the school and retained them in his house for approximately two weeks until the first listing before this Court on 20 November 2019.
Between October 2019 and February 2020, the father disposed of a number of assets. This included $12,371 worth of AG Company shares, $44,593 worth of premium bonds, $10,500 from his O Bank account, and $28,386 worth of AH Company shares. He states that he did so due to financial difficulties, as he was now solely responsible for the childrens’ expenses post-separation. He was not in receipt of child support and had also been unable to tenant the E Town property for an eight month period. He was also liable for a significant sum in legal fees.
The father commenced these proceedings on 18 October 2019.
On 11 November 2019, the lease over the former marital home ended. The mother moved in with friends until January 2020, following which she moved into a women’s refuge for four months. She later obtained private rental accommodation. The mother also commenced a position as an educator at D School in November 2019, and later as a casual worker in February 2020. Her position as an educator ceased due to the Covid-19 pandemic.
In August 2020, the father requested the mother engage in family therapy with Dr H, which she agreed to do.
The parties’ divorce became effective in October 2020.
PROCEDURAL HISTORY
As outlined above, the father commenced these proceedings on 18 October 2019 seeking property orders only. The parties attempted parenting family dispute resolution on 25 October 2019 which was unsuccessful, leading the father to file an Amended Initiating Application on 4 November 2019 which included parenting orders. On that date, he also filed an application in a case seeking interim parenting orders.
Interim parenting and property orders were made by consent on 20 November 2019. These orders provided for the children to live with the father and spend time with the mother four afternoons per week, from after school to 6.00pm. The father paid $17,000 to the mother by way of interim partial property settlement. These orders also provided for the parties to attend family therapy with Dr H. However, the mother ceased attending after two sessions, alleging bias towards the father by Dr H.
On 19 February 2020, Dr C was appointed as single expert witness.
A further interim hearing was held on 19 March 2020 before a senior registrar. There were no changes to the parenting orders on this date, although the mother was granted leave to file an application for further interim parenting orders pending release of Dr C’s report, as well as to file a more targeted interim application for financial orders.
On 31 March 2020, the mother’s legal representatives withdrew. She remained unrepresented until 6 July 2020.
The parties attended a Conciliation Conference on 5 May 2020 but were unsuccessful in reaching an agreement.
On 2 June 2020, the father filed an application in a case seeking expedition of the proceedings. This was granted by Henderson J on 18 June 2020, who also appointed an ICL on this date.
On 22 September 2020, a further Conciliation Conference was adjourned, with orders made for the valuation of the E Town property.
On 25 September 2020, the mother filed an application in a case seeking interim parenting and property orders, including that the father sell shares he held in V Bank, with the value to be applied to the mother’s legal fees. The father disposed of these shares and instead applied them to his legal fees.
The parties jointly instructed CC Surveyors to conduct a valuation of the E Town property on 28 September 2020. The property was valued at GBP500,000 in late October 2020.
The parties attempted further mediation for parenting on 2 October 2020, but were unable to reach an agreement.
On 22 October 2020, the parties partook in the adjourned Conciliation Conference. Interim orders were made by consent restraining the father from disposing of or further encumbering the E Town property and the land located in City MM.
The matter was originally listed before me for final hearing of the parenting and property disputes in November 2020. However, those dates were vacated by consent by reason of a material change in the orders sought by the father. I conducted an interim hearing instead. On 20 April 2021, I delivered judgment and made fresh interim parenting orders and notations (“the April 2021 orders”). It is unnecessary to set these out in full. In summary they provided for the children to live with the father and spend time with the mother as follows:
(a)During term time each alternate weekend from after school on Friday, until 5.00 pm on Sunday, and each Wednesday from after school until 7.00 pm; and
(b)During school holidays each alternate weekend from 3.00 pm on Thursday until 7.00 pm on the following Monday, and each Wednesday from 3.00 pm until 7.00 pm.
A range of other orders were made for special occasions, changeovers, mutual restraints on denigration and for the parties to engage and participate in family therapy.
Upon delivery of judgment, the matter was listed on 22 July 2021 for case management. On this date, the matter was provisionally listed for final hearing commencing 9 November 2021. This was later vacated due to changes in the judicial calendar and relisted to 15 December 2021 for three days. Consent orders were made to prepare the matter for final hearing.
On 29 July 2021, the father filed an application in a case seeking orders for X to be enrolled at BB School, Suburb K (“BB School”). He argued that X’s school at the time, J School, did not have the funding and experience to support his Autism Spectrum Disorder (“autism”), as he required specialised support and education. The mother did not accept X’s autism diagnosis by Dr H. This application was listed on short notice on 11 August 2021 and stood over to 25 August 2021 for hearing.
On 25 August 2021, consent orders were made for X to be enrolled at BB School and a single expert to be appointed to assess X for autism. It was noted that the mother reserved to final hearing her position about the appropriate school for X.
In September 2021, X commenced school at BB School.
On 16 September 2021, Ms EE was appointed by consent as a single expert to assess X for autism. However, by that date, Ms EE no longer had availability to prepare the report. The parties informed the court that it had not been possible to find another single expert able to undertake the assessment of X at short notice.
On 29 November 2021, the parties obtained an updated valuation of the E Town property, which is now valued at GBP525,000.
The final hearing commenced on 15 December 2021 for three days. I note that all parties failed to comply with the deadlines, which had been made by consent, for the filing of their Case Outlines and tender bundles.
CURRENT CIRCUMSTANCES
The mother spent time with the children in accordance with the orders of 20 April 2021 until 30 June 2021. On Wednesday 30 June 2021, as required by the April 2021 orders, the children were to spend time with the mother from after school to 7.00pm. However, Y refused to do so and left. The mother reports that this was the first time Y had refused to spend time with her, and from this date onwards, spent weekends only with the mother.
Y ceased spending time with the mother entirely on 29 October 2021 and continues to refuse to do so. However, X continues to spend time with the mother pursuant to the April 2021 orders.
The father continues to work as a professional at G Company. He states that he has now shifted to part-time work in order to undertake caring responsibilities for the children.
In June 2021, the mother commenced studies for a Certificate IV. She continues to study for this qualification and anticipates completion in November 2022. She is presently employed as an allied health worker through XX Company, earning approximately $385 per week, as well as a casual job earning $57 per week.
PROPOSALS AND ISSUES IN DISPUTE
In his Proposed Minute of Order emailed on 13 December 2021, the father seeks orders which are summarised as follows:
(a)Parenting orders:
(i)Sole parental responsibility;
(ii)Permission to relocate with the children to the UK;
(iii)The children live with the father;
(iv)The mother to spend time with the children in the UK, and the father to contribute GBP1000 per year to the mother’s airfares; or
(v)If the father and children remain in Australia, the mother to spend time with the children each alternate Friday after school until 6.00pm on Sunday.
(b)Property orders:
(i)Property settlement in the sum of a payment of $52,818 to the mother;
(ii)A superannuation split with an allocation of $63,243 from the father to the mother’s interest;
(iii)That he retain the E Town and City MM properties, as well as all other bank accounts and assets;
(iv)The mother retain her bank accounts and other assets;
In her minute of order, labelled Exhibit “6” during the hearing, the mother seeks orders which are summarised as follows:
(a)Parenting orders:
(i)Dismissal of the father’s application for relocation;
(ii)The father to have sole parental responsibility
(iii)Enrolment of X in the YY Class run by BB School;
(iv)Authority to attend school events and medical appointments for the children;
(v)Authority to obtain information from the childrens’ schools and medical practitioners;
(vi)Information sharing by the father and obligations of consultation prior to making a final decision;
(vii)The children to live with the father; and
(viii)The parties to attend family therapy
(b)Property orders:
(i)Sale of the E Town property, and the mother to receive $360,000 from the proceeds of sale;
(ii)A superannuation split with an allocation of $83,911 from the father to the mother’s interest;
(iii)The parties otherwise retain their property;
It can be seen that the parties agree to an order of sole parental responsibility for the father and for the children to live with the father. Accordingly, what remains to be determined is the following:
(a)Whether the children should be permitted to relocate to the UK;
(b)How often and for how long the children should spend time with the mother; and
(c)Orders for the division of property.
EVIDENCE
The father relied on the following documents:
(a)Case Outline filed 13 December 2021;
(b)Proposed Minute of Order emailed 13 December 2021;
(c)Initiating Application filed 18 October 2019;
(d)Amended Initiating Application filed 4 November 2019;
(e)The mother’s Response filed 5 March 2020;
(f)His affidavit filed 12 September 2020;
(g)His affidavit filed 20 November 2020;
(h)His affidavit filed 24 November 2021;
(i)His Financial Statement filed 24 November 2021; and
(j)The single expert report of Dr C dated 19 May 2020.
The mother relied on the following documents:
(a)Case Outline filed on 13 December 2021;
(b)Response to Initiating Application filed on 5 March 2020;
(c)Response to Application in a Case filed on 16 June 2020;
(d)Application in a Case filed on 25 September 2020;
(e)Her affidavit filed on 7 September 2020;
(f)Her Financial Statement filed on 7 September 2020;
(g)Her affidavit filed on 26 November 2021;
(h)Her Financial Statement filed on 26 November 2021;
(i)Affidavit of Ms DD filed on 7 September 2020;
(j)Affidavit of Ms FF filed on 7 September 2020;
(k)Affidavit of Mr GG filed on 18 November 2020; and
(l)Affidavit of Mr GG filed on 14 December 2021.
The mother had also sought leave to rely on an affidavit sworn by her cousin, Ms HH, on 14 December 2021. However, as this affidavit was filed at the eleventh hour, referred to events well before the date of trial, and was not foreshadowed in the mother’s case outline document, I refused leave.
Both parties were cross-examined. No other witnesses were required for cross-examination.
The following documents were received into evidence:
Exhibit Label Document Tendered by A Document entitled ‘Documents in Tender Bundle of Applicant sought to be relied upon an referred to’ including documents referred to therein A/F B Letter from Mr JJ, accountant, to the father dated 17.12.21 confirming tax owing A/F 1 Application in a Case dated 25 September 2020, Part M of Financial Statement filed 15 October 2020, and letter from Santone Lawyers to Mills Oakley dated 3 September 2020 R/M 2 Two photographs of X’s class at BB School R/M 3 Joint Balance Sheet Joint 4 Document entitled ‘Documents tendered by respondent wife/mother’ including documents referred to therein, session notes dated 31/07/2018 from Ms KK, B Services attendance record, UK Government coronavirus summary, BB School Semester 2 Report for X, BB School 2022 school fees, and arrangements for minors travelling unaccompanied R/M 5 Letter from Mills Oakley to Santone Lawyers dated 17.12.21 R/M 6 Minute of orders sought by respondent mother R/M 7 Letter from Santone Lawyers to ZZ Bank dated 23.11.20 and letter from ZZ Bank to Santone Lawyers dated 26.11.20 R/M 8 Letter from Mills Oakley dated 22.12.21 confirming invoices paid to Dr C R/M ICL1 Minute of Order ICL Court 1 Report of Dr C dated 19.5.20 ICL
I note that Exhibit “8” was admitted into evidence on 24 December 2021. At the conclusion of the hearing, I had made orders for the parties to confer and submit to my chambers an agreed figure of fees that had been paid to the Single Expert for the purposes of these proceedings.
Expert evidence
Dr C was appointed as the Single Expert in this matter. His report dated 19 May 2020 was based on the material filed by the parties so far in the proceedings, some documents produced on subpoena, and the interviews conducted as set out at the commencement of his report. Dr C recorded the observations as a result of conducting interviews with the parents, children, and Dr H, the family therapist.
I will refer to the content of the report as necessary during the course of these reasons.
Dr C made recommendations at [174] of his report to the following effect:
(a)The parties to have equal shared parental responsibility;
(b)Immediate reestablishment of significant and substantive contact with each parent;
(c)Both parents to enrol in a Parenting After Separation Course;
(d)Both parents to use the “Our Family Wizard” co-parenting software program;
(e)The children should attend a single GP, with both parents to be involved in relevant specialist referrals;
(f)Current treatment of all the family members for ADHD with Vyvanse should continue; and
(g)The father’s proposal to relocate to the UK should be addressed by the parents together, as a “collaborative approach to the challenges of international relocation.”
The children
Y is aged 14 and is currently attending school at AF School. The father reports that, despite his ADHD, he is highly gifted in coding, technology, and science, and that he has done all things possible to support Y in his passions.
As noted above, Y has not spent time with the mother since late October 2021. The mother makes allegations of parental alienation and seeks that time with Y be restored. Whether this is in Y’s best interests will be discussed later in this judgment.
X is aged 9 and currently attending BB School in Suburb K. He has a long history of developmental issues, and according to the father, one of the most significant is his Expressive Language Disorder. He commenced speech therapy in 2016 and was diagnosed with ADHD in 2018. In June 2021, X was also diagnosed with autism by Dr H, although I note that the mother disputes this diagnosis.
The father believed that X’s previous school, J School, did not have the adequate funding and experience to properly support X, who needed specialised support and education. Accordingly, he made arrangements for X to transfer to BB School, a specialist school for children with disabilities. Pursuant to the consent orders, X has now been attending BB School since 6 September 2021.
Since that time, the father reports a significant improvement in X’s behaviour and learning, particularly less resistance to going to school, and steady improvements in his speech, literacy, mathematics, and social skills. However, the mother presses for an order that X be enrolled in a satellite class at BB School which is run by YY School, a mainstream school located in Suburb K. This dispute will be discussed below.
PARENTING
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under ss 61DA and 65DAB.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child's parents to have equal shared parental responsibility for the child. As already noted, the parties and the ICL agreed by the end of the trial the presumption was rebutted and, subject to a debate about schooling to which I will return, the father should have sole parental responsibility. I am satisfied the presumption is rebutted in the best interests of the children. Although the father gave some oral evidence of a hope for collaborative parenting, the mother was clear in cross examination that she could see no prospect of the parents co-operating the children. All agreed one parent would have to make the decision for the children. I will make an order for sole parental responsibility in favour of the father.
The best interests of a child are the paramount consideration: s 60CA of the Act. They are to be determined by an examination of the considerations as set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 (“Tibb”) at [74]–[78], the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties present their cases.
I turn then to the best interests of the child.
PRIMARY CONSIDERATIONS
In order to determine the child's best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:
(a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration in subsection 2(b) (see s 60CC(2A) of the Act), although there are no risk factors in this matter.
Section 60CC(2)(a), "meaningful relationship"
The Full Court of the Family Court of Australia in Sigley & Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(a)A “meaningful relationship” is one which is “important, significant and valuable to the child”: (citing Mazorski v Albright (2007) 37 Fam LR 518 and McCall v Clark (2009) 41 Fam LR 483 (“McCall”));
(b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]–[119]; and
(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship: M v S (2006) 37 Fam LR 32; Godfrey v Sanders (2007) 208 FLR 287; Champness v Hanson (2009) FLC 93-407.
There was no dispute that the children would benefit from a prospective meaningful relationship with both parents. There was clear evidence that both children have enjoyed a positive and loving relationship with both parents, even if Y’s relationship with his mother is currently a bit fractious. The real debate was how a meaningful relationship with the mother could be maintained and enhanced if the father was permitted to relocate to the UK. There was no dispute that if the parents remained in Australia with the children, their relationship with the mother could be maintained and enhanced, and they should spend time with her.
Dr C was clear in his evidence that if the father relocated to the UK, it was likely that the children’s relationship with their mother would be compromised or lost completely.
The connection between the risk of impairment to maintenance of a meaningful relationship with a non-custodial parent and a great distance between households is well recognised. For example, in Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”), the Full Court observed at [27] that:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children. …
(Citations omitted)
I am satisfied that, if permitted, relocation by the father to the UK with the children is likely to seriously diminish or even destroy the benefit of the children’s relationship with their mother. I will return to the question of relocation later in these reasons.
Section 60CC(2)(b), “abuse” and “family violence”
The father continues to maintain concerns with the mother’s mental health as a result of her unstable childhood and family history of mental illness. He states that the maternal grandparents were frequently treated in psychiatric institutions, and the mother has admitted to spreading lies about her colleagues, having previous affairs, and a history of theft. However, the mother notes that her parents were largely absent and she was raised by her grandmother.
The father refers to incidents where X has been injured whilst in the mother’s care, notably at [18] of his affidavit of 24 November 2021, where he lists leg and hand injuries, an asthma incident, and bruises. Furthermore, the father also makes complaints that the mother has failed to give medication to both of the children, despite the fact that he had labelled the medication and sent instructions from the treating medical practitioner. Although two risk of harm reports have been made to the NSW Department of Communities & Justice, no further action has been taken.
The mother also argues that the parties’ relationship was one of extensive control by the father, particularly through aggressive and dangerous sexual conduct. She states that if she refused or resisted, the father would become violent and threaten divorce. He denies this, arguing the mother instigated bondage and would become angry if he refused.
However, by the end of the trial, neither party nor the ICL argued there were any risk factors relevant to the parenting orders the Court should make. I find that neither child would be at risk in the care of either parent.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child's best interests. These are as are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated at [34]:
… In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
and at [35]:
... whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed. …
I have received limited evidence of X’s views. Having been diagnosed with autism spectrum disorder, although noting this is disputed by the mother, he has difficulties expressing himself. This was confirmed by Dr C, who at [155] of his report stated:
X’s communication was impeded by his communication disorder. It was evident that he had struggled given his exposure to escalating parental conflict and limited contact with his mother, who until recently had been his primary caregiver. He did not clearly articulate views but it was evident that he enjoyed and wished to sustain a relationship with both of his parents.
The father states at [171]–[172] of his affidavit filed on 12 September 2020 that X regularly expresses a wish to return to the UK. However, even if true, in light of X’s young age and developmental issues, his views are of very limited utility in determining what orders I should make. Accordingly, I give little weight to the views of X save that he clearly wishes to sustain a relationship with both his mother and father.
Y, on the other hand, has expressed quite strong views regarding his desire to relocate to the UK and not to spend time with his mother. This is likely attributable largely to his age, where he is now 14.
At [154] of his report, Dr C provides the following summary of Y’s views:
Although Y had expressed the view that he wished to return to the UK with his father, this view followed their visit there. He was now identified to have a well-developed social network in Sydney. He had one residual contact in England and had adjusted well to life in Australia. Y had been guided in his response to this by his father, who had failed to recognise the importance of the children maintaining a significant and substantive relationship with their mother. That said, at the age of 12, significant weight should be given to his views.
In cross-examination, Dr C noted that Y’s views in relation to relocation should be treated with caution. When asked by the ICL how much weight should be accorded to his views about wishing to return to the UK in particular, Dr C replied “No, I do not think it’s a mature decision and I think limited weight should be provided to his wishes, given those circumstances.” Those “circumstances” refer to the detrimental effects that relocation would have on Y as an individual, but also his relations with his mother, both of which are further discussed below.
Y expressed a wish to not spend any further time with his mother. Dr C noted that this could have a detrimental impact on his “evolving identity and…capacity to form loving bonds with future partners” (at [153] of his report). Nonetheless, Dr C gave clear evidence that no order should be made for Y to spend time with his mother. Rather, the Court should permit him to spend time with the mother in accordance with his wishes.
Where the question of international relocation has more far-reaching implications than that of spend time with arrangements, I accordingly approach the views expressed by Y with regards to relocation to the UK with caution. However, I will accord more weight to his views in determining what, if any, arrangements should be made for him to spend time with the mother.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
There was no dispute that both children have a loving relationship with each parent. It was clear that Y is more aligned with his father, which was noted by Dr C both in his report at [153] and in cross-examination. This is unsurprising, given that Y has been residing primarily with the father since the parties’ separation.
During his interview with Dr C, Y (at [82]) described residing with his father as “a much happier environment, a bit more fun, because with Mum, a lot of arguments happen. Mum gets angry with the tiniest thing. With Mum there are just arguments everywhere.” He also spoke negatively of his mother’s behaviour, suggesting that she “will try to get X to cry often” and “lying” that she was homeless and trying “to make us believe those lies and tries to make us cry” (at [85]). Y further identified other incidents involving his mother which had caused him to be upset, including assuming that any opinions he expresses were due to the father coaching him, retaining his personal belongings, and describing him as “socially awkward” and “socially isolated” (at [88]–[91]).
The father also alleges that there have been physical altercations between Y and the mother where has refused to spend time with her. For example, on 30 June 2021, the father states that
… Ms Stathis had a physical altercation with Y at the steps of her unit. In respect of this, Y said to me, "I was shouting at Mum telling her I don't want to come in and she was shouting threats back at me. She pulled my arm and she tried to pick me up. X was trying to pull her off me and tried to get in the middle of us. Then I dropped my phone and Mum grabbed it and wouldn't give it back." I collected Y after this occurred and he was very distressed and also said to me words to the effect of, "Why do I have to go there? I hate this".[1]
[1] Father’s affidavit filed 24 November 2021, paragraph 16.4
Despite the above, Dr C also observed “comfortable interactions” between both children and the mother, and also their “positive engagement with their mother” and “loving and enthusiastic interactions” (at [112] and [122]). I accept Dr C’s assessment that although “he remained distressed by his mother’s emotionality and commentary,” it was nonetheless clear that “the intimacy in this relationship was evident” (at [153]). This will be taken into account in determining what orders, if any, there should be for Y to spend time with the mother.
There was less evidence concerning X’s relationship with the mother. In his interviews with Dr C, he agreed that he wished to spend more time with the mother and that he would like to sleepover with her. Dr C concluded that “it was evident that he enjoyed and wishes to sustain a relationship with both his parents” (at [155]). Also of note is the fact that X has been spending time with the mother according to the April 2021 orders with no issues identified.
(ii) other persons (including any grandparent or other relative of the child);
The children have no other relatives in Australia. Although both parents make reference to family members who live overseas, the evidence did not support an inference that the childrens’ relationships with these family members were significant, even if they are, notionally at least, ongoing. For instance, at [89]–[90] of his affidavit filed 24 November 2021, the father explains that the paternal family would visit the UK several times per year. I find it is likely that X misses his grandparents, there having been an incident in May 2020 where he became upset when the mother deleted videos of his grandmother from his device.
However, it remains the case that the paternal grandparents continue to reside in Country F. Although there was no dispute that travel between the UK and Country F is more affordable and faster, any prospective contact between the children and their grandparents would remain sporadic. There is also limited evidence to suggest that the children have an intimate relationship with the paternal family such that it could justify an order for relocation away from the mother, with whom they do have such a relationship.
During his interview with Dr C, Y explained that he maintained communication with one friend in England, AB (at [114]). However, he also explained that he was not sure which high school AB was now enrolled in, nor that he could be certain they would attend school together if permitted to relocate. This is discussed further below in assessing whether relocation should be permitted.
The father gave evidence that X had made a new friend, “AC”, since commencing school at BB School. This was described as being a significant accomplishment for X due to his autism. However, when raised with the mother, she stated that she had never heard of AC and thus questioned whether such a relationship was as significant as the father suggested. I accept the father’s evidence that X has formed friendships at BB School.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
I am satisfied both parents have taken the opportunity to participate in making decisions about major long-term issues for the children. There is no suggestion that either parent has failed to do so. Rather, it was readily apparent at trial that the parties’ intractable conflict concerning decision regarding, in particular X’s health and education, showed the extent to which they seek to be involved in decision-making.
The mother alleged that the father often makes unilateral decisions concerning both children without consulting her. For instance, she raises the fact that the father changed X’s speech therapist, whom X had been seeing for 12 months. The father argues that the therapist had ceased speaking to him following the ADVO incident of 29 October 2019, leading him to engage a new therapist for X. The mother also protests the father’s engagement with Dr H without her consent. Dr H diagnosed X with autism and foetal alcohol syndrome disorder, and the mother maintains concerns about Dr H’s impartiality and expertise. Without needing to set out each and every allegation of unilateral decision-making, it is ultimately clear, as stated by the ICL, that “[the parties] are in dispute about everything” and “have been in dispute about everything.”
It is not necessary to resolve these issues because, by the end of trial, the mother consented to an allocation of sole parental responsibility for the father, with certain conditions about consultation prior to a final decision being made.
(ii) to spend time with the child; and
As outlined above, the April 2021 orders provide for the children to spend two nights with the mother in Week 1, and a Wednesday evening with the mother in Week 2. There is no dispute that X continues to spend time with the mother according to these arrangements, however Y ceased spending Wednesday evenings with the mother on 30 June 2021, and ceased to spend time with the mother entirely on 29 October 2021.
There are competing allegations as to why Y has ceased spending time with the mother. Some of Y’s concerns are outlined above at [109], and in particular he complains of upsetting interactions with the mother. The father deposes that Y has told him “I don't like that Mum has created a reputation about you with my friend’s parents. Now they’re not allowed to visit me at home. I’d rather not see my friends than go there with her.”[2] Such a “reputation” is said to include allegations of family violence, the father “kick[ing] her out on the street” and trying to “cheat [the mother] out of her entitlement.”[3] On the other hand, the mother argues that the father has sought to alienate Y from her, relying on evidence that Y suddenly and without reason stopped seeing her, other than stating that it’s simply his “choice.” Despite his reluctance, however, the mother gives evidence that she has continuously attempted to re-establish time with Y and to understand why he no longer wishes to see her.
[2] Father’s affidavit filed 24 November 2021, paragraph 16.1
[3] Father’s affidavit filed 24 November 2021, paragraph 16.1
I also note Dr C’s comment at [161] of his report:
Due to a confluence of factors, including the mother's homelessness, placement in a women's refuge, the COVID-19 pandemic and the father's attitude, the mother had been unable to maintain significant and substantive contact with the boys post separation. This was to their detriment.
It is clear that the mother, at least partly due to the influence of factors beyond her control, has been unable to spend time with the children to the extent that she wishes. She also makes allegations of parental alienation by the father in respect of her relationship with Y. This will be discussed later in this judgment. For present purposes, however, it is clear that she has taken the opportunity, as far as she is able, to spend time with both children.
Since both children live with the father, there is no doubt that the father spends time with the children regularly.
(iii) to communicate with the child;
As established, it is obvious that the children communicate on a daily basis with their father.
There was limited evidence provided as to the extent of the mother’s communication with X whilst he is not in her care. However, due to X’s diagnosis of autism and his evident struggles with communication, which are noted by both parties and Dr C, I draw no inferences from this.
The mother also gave evidence that communication with Y through electronic means “has been severely obstructed since June”. She accepted in cross examination that there continues to be a real communication problem with Y, however, she persists in her attempts to call him and send him text messages, and I accept the mother and child have engaged in regular communication through text messaging. I am satisfied that the mother makes significant attempts to communicate with Y, even if such attempts are now being met with resistance.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
At trial, there were no suggestions that either parent has failed to maintain the child. I find that both parents have fulfilled their obligations to maintain the children, consistently with their financial resources and the time each child has spent with each parent.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents
Dr C was clear that a relocation to the UK would have a seriously detrimental effect upon the children’s relationship with the mother. It would inevitably cause separation from her for most of each year. These concerns will be discussed later in this judgment in the assessment of whether an order for relocation should be made.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
If the children and the father remained in Australia, neither party pointed to any practical difficulties for the children in spending time with the mother.
However, if the father were permitted to relocate to the UK, as already mentioned I received convincing evidence that there would be significant difficulties and expense for the children to spend time with the mother, who would be unlikely to relocate to the UK. She gave two reasons to support her intention to remain in Australia, namely that she has just rebuilt her life from scratch, having found stable accommodation and a job, and also that the father has become close to the maternal grandmother, although the mother’s own relationship with the maternal grandmother is strained.
There was no dispute that regular contact between the children and the mother would not be possible if the children resided in the UK. In addition to these practical difficulties, the expense of the children spending time with the mother would pose additional barriers.
If the Court permitted relocation to the UK by the father, the mother proposes an order for the mother to visit the children in the UK on two occasions per year, with the trip funded by the father in the sum of $20,000 for each trip. She also seeks a further order for the father to fund two additional trips per year for the children to visit the mother in Australia.
I am unable to form a view whether $20,000 for a two week trip to the UK is reasonable. I discuss in detail the financial resources of the parties later in these reasons. The number of proposed trips at that cost would be onerous for the father. However, I do note that the mother admitted in cross examination that she left the determination of this sum to her solicitors, and she had not made any independent enquiries as to the cost of a trip to the UK. Even if the mother were to propose a lower sum, however, it is clear that the father would find difficulty in funding a total of four return trips to the UK and/or Australia each year.
(f) the capacity of:
(i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs
Neither party made explicit arguments in final submissions that the other party is unable to provide for the childrens’ emotional and intellectual needs. Both acknowledged it was their conflict that was most problematic for the children. I have already noted that each made allegations about the other, which were denied. The father alleged that the mother had a bipolar disorder, played video games excessively, has failed to provide the children with their medication, while her emotional dysregulation has caused animosity from Y. The mother alleged the father suffered depression and was sexually controlling during the relationship. It is unnecessary to make any specific findings here about these allegations. It was common ground that the children could and should live with the father, and spend overnight time with the mother. The dispute was about Y spending time in accordance with his wishes, and the extent of X’ overnight time. I am satisfied that both parents, subject to their ongoing conflict, have a reasonable capacity to provide for the needs of the children, although the father’s capacity is probably more developed.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This factor is not relevant. The children are not cared for by any other person in Australia.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
I have nothing to add here, except to note that both parents have a Country F background. This was not contended to be an important consideration in itself, apart from my observations earlier about the extended family.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
Both parents demonstrated a clearly loving attitude towards the children and to the responsibilities of parenthood. However, as noted by Dr C at [168] of his report, it is clear that they each dispute the other’s prioritisation of the children’s developmental needs.
In relation to schooling, the leading authority is the Full Court decision in Re G (2000) FLC 93-025. This decision has been followed many times. In Bilz & Breugelman [2013] FamCA 578, Austin J said:
81. Schooling disputes are not resolved by application of a “blanket presumption” or preference for the views held by the residential parent (Re G at [29], [45], [65]). The Court is required to apply the objects and principles of Part VII of the Act and to consider the statutory criteria in forming conclusions about the child’s best interests (Re G at [66]-[68]).
82. That is probably self-evident, but other more generalised observations were made by the Full Court. In particular, the process of evaluation should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where the competing schools are prima facie satisfactory (Re G at [91]-[92]). Ordinarily, it will be in the child’s best interests to attend a school close to his or her residence, and further, it is proper to consider evidence as to any greater effect of the decision upon the resident rather than non-resident parent (Re G at [92]-[93]), but that does not mean the convenience of the non-resident parent is ignored (Eden-Proust at [56]-[63]).
83. There is conflict in the authorities about whether any prior agreement between the parties concerning the child’s schooling is influential (see Re G at [92]; Eden-Proust at [48]). There also seems a difference of opinion about the need to refer specifically to each of the factors enumerated in s 60CC or whether it is permissible to simply analyse the evidence discursively with those factors in mind (see Re G at [67]–[90]; Eden-Proust at [69]).
Neither proximity to the father or mother’s home, nor convenience to either of them, were raised as factors. As pointed out, it is not for me to evaluate the relative merits of the special needs class at BB School as opposed to a satellite class at YY School.
Since an order will be made by consent allocating sole parental responsibility to the father, decisions concerning education should be made by him. Education is one of the major long term issues which should be decided by the allocation of parental responsibility. I do not propose to make any final order about X’s schooling, particularly now that X is doing well in his current situation. The father will make any future decisions about schooling, subject to seeking views from the mother.
Overseas Travel
The parties made proposals for overseas travel. The ICL expressed no view about this. The father’s proposal included orders that he retain the children’s passports and be permitted to travel overseas with them. The mother’s proposal permitted both parents to travel overseas, with her to retain the children’s passports. I note the UK is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The mother did not argue that the father, who seeks relocation to the UK, was a flight risk if allowed to travel there. However, she did propose an order that the father deposit $20,000 as security with the mother’s solicitors in the event he wished to travel. I consider this is reasonable in circumstances where the father retains strong ties with the UK, owning property and engaging with his extended family there. Subject to this, I see no reason why both should not travel overseas with the children, and in the mother’s case, with Y if he wishes to go with her. Since the father will have sole parental responsibility, I am satisfied he should retain the children’s passports.
PROPERTY
I now turn to consider the property dispute. Given the small asset pool, it is not surprising that the property aspect of the proceedings received less attention from the parties than the parenting dispute.
THE LAW
Part VIII of the Act sets out the legislative provisions relating to property orders that may be sought when parties are or were married. The central provision is s 79 of the Act, which gives the Court power to make such orders for alteration of property interests as it considers appropriate.
Section 79(2) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act set outs the factors to be taken into account in considering what order, if any, should be made (these will be discussed in detail below).
Section 80 grants specific powers to make a range of different orders to adjust property interests.
Section 81 is also relevant, although the Full Court has held it is neither a ‘head of power’ nor an absolute requirement; it reflects a policy of making orders which finally determine the financial relationship between the parties and avoid further proceedings, but this is only to be taken “as far as (is) practicable”: In the Marriage of Crapp (No 2) (1979) FLC 90-615.
THE APPROACH TO BE TAKEN
In property proceedings under the Act, parties generally rely upon the “four step process” set forth in Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 in the determination of an application under s 79, as follows:
1.Identify and value, the parties' property, liabilities and financial resources at the date of the hearing;
2.Identify and assess the contributions of the parties as referred to in s.79 of the Act and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties, whether examined on a global approach or an asset by asset approach;
3.Identify and assess the other factors relevant including, the matters referred to in s.75 of the Act and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
4. Consider the effect of the above and resolve what order is just and equitable in all the circumstances of the case.
In Stanford & Stanford (2012) 247 CLR 108 (“Stanford”) the High Court made clear at [37] it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. The Full Court in Bevan & Bevan (2013) 49 Fam LR 387 (“Bevan”) at [72]–[73] has held that the decision in Stanford has not overruled the four step approach.
Stanford also made clear that the requirement pursuant to s 79(2) that it would be just and equitable to make orders altering property should not be conflated with the requirements of s 79(4). The High Court further stated at [39] that the question of whether it is just and equitable to make an order “is not to be answered by assuming that the parties’ rights or interests in marital property are or should be different from those that then exist”, ie, at the time when the discretion may be exercised.
In relation to the just and equitable requirement, the Full Court in Bevan emphasised that although the pre-condition to making any order for property adjustment is a finding that it is just and equitable to do so in accordance with s 79(2) of the Act, such a finding does not form a threshold issue, nor must the requirements of s 79 be followed in a particular order.
The Full Court in Bevan also summarised three “fundamental propositions” laid down by the High Court in Stanford to provide “useful guidance to trial judges in approaching the task under s79” as follows:
Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties' interests in the property are or should be different from those determined by common law and equity;
A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4) and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
The High Court has held that the very fact of separation may lead to the ready satisfaction of just and equitable requirement: Stanford at [41]–[42]. In most cases, the Court will not need to discuss the s 79(2) issue, because the cases will be conducted on the basis of acceptance by the parties that it is just and equitable to make some form of adjustment: Fielding and Nichol [2014] FCWA 77 at [43]. Here, the parties accept it would be just and equitable to make some form of adjustment. The just and equitable requirement has been satisfied by the issues joined and the way the case was conducted. The Court must also be satisfied that its proposed final orders are themselves just and equitable. I will return to this question later in these reasons.
I will therefore approach the determination of this matter by first identifying the assets and liabilities of the parties, then by dealing with s 79(4) factors, including s 75(2).
ASSETS, LIABILITIES AND FINANCIAL RESOURCES AT THE DATE OF THE HEARING
The first step requires identification of parties’ property, liabilities, and financial resources at the date of the hearing, according to ordinary principles of law and equity.
The joint balance sheet tendered by the parties (Exhibit 3) was refined in the course of submissions.
The parties appeared to agree that the $17,000 paid to the mother as partial property settlement should be included as notional property. This accords with authority: Vass v Vass (2015) 53 Fam LR 373 at [138]–[139]; Warbrick & Warbrick [2021] FamCAFC 60 at [30].
The parties also took the common approach of treating the father’s UK pension scheme, the Super Fund 4, as a financial resource with a present value of $152,413 to be taken into account under s 79(4)(e), rather than as an asset in the matrimonial pool. However, there was also no dispute that even though this pension plan has a current value, the father cannot access it for almost 20 years. I will accept the approach of the parties, and therefore find it unnecessary to confront the question whether the Super Fund 4 should be treated as an asset or a financial resource of the father: Tomaras v Tomaras [2021] FedCFamC1A 82.
There were several limited areas of dispute. The first is the calculation and inclusion of a tax liability for the father on the balance sheet. There was no dispute that this arises from the sale of shares in G Company, his current employer, received by the father as bonuses (see above at [38]), that is, it is capital gains tax, not income tax. The father argued that the correct figure based on the evidence of an accountant is $77,926, as set out in Exhibit B. Although the mother appeared to dispute this, suggesting the figure was less at $74,520, I accept $77,926 is correct as matter of calculation because the difference is not material. The father’s liability for this tax accrued after separation between December 2020 and November 2021. The father submitted that the liability for tax arose because instead of paying his tax, the father used the cash, realised to legal fees, and these appear on the balance sheet. The mother argued that none of this tax liability should be borne by her and it should not appear on the balance sheet at all.
I accept the money received by the father from the sale of his shares has been used to fund his legal fees, which are included as his asset on the balance sheet. I consider it accords with authority, therefore, to include as well the capital gains tax liability which accrued as a result of the sale: Trevi & Trevi (2018) FLC 93-858 at [31]–[42]; Rodgers & Rodgers(No 2) [2016] FamCAFC 104 at [36], [40]–[41].
The Full Court made clear in C & C (2005) FLC 93-220 that the Court, in the majority of cases, should consider the parties superannuation interest as a separate species of property, unless the parties consent to it not being treated separately. The Full Court also said there is no binding principle as to the exercise of the Court’s discretion in deciding whether a one list or a two list approach should be adopted. The parties adopted the approach of simply including the superannuation in the balance sheet. I will also do so.
There was no dispute that a superannuation splitting order should be made. The parties differed as to the base amount. The father proposed $63,243, while the mother proposed $83,911, which represented to full value of the father’s superannuation entitlements at the time of final hearing.
Based on these conclusions, the asset pool is as follows:
Ownership Description Agreed value ASSETS 1. H NN Street, E Town, United Kingdom. $978,768
(GBP525,000)2. H Plot of land (LL Street) located in City MM, Country F $75,879
(EUR48,000)3. H V Bank (ending #...07) NIL 4. H O Bank Account (ending #...18) $9,999 5. H O Bank Account (ending #...39) NIL 6. H O Bank Account (ending #...71) $1,019 7. H O Bank Account (ending #...42) NIL 8. H O Bank Shareholding Portfolio (ending #...20) NIL 9. H AD Bank Investment Account $11,000 10. W ANZ account (ending #...54) as at 26.11.21 $1,031 11. W PP Bank account (ending #...60) as at 26.11.21 NIL 12. W Motor Vehicle 1 $20,505 13. H Motor Vehicle 2 $22,000 14. W Household Items NIL 15. H Paid legal fees $70,000 16. H Monies held in trust for legal fees $40,000 Total $1,230,201 ADDBACKS 17. W Partial property payment $17,000 Total $17,000 LIABILITIES 18. H V Bank Mortgage secured against the E Town property (ending #...77) as at 24.11.21 $209,533 19. H V Bank Mortgage secured against the E Town property (ending #...90) as at 24.11.21 $234,805 20. H Car finance with AE Finance as at 24.11.21 $23,674 21. H Estimated Income Tax as at 24.11.21 $77,926 Total $545,938 SUPERANNUATION Member Name of Fund Type of Interest Agreed value 22. H Super Fund 2 Accumulation interest $83,911 23. W Super Fund 1 Accumulation interest $2,060 Total $85,971 NETT POOL (INCLUDING SUPERANNUATION): $787,234
Consequently, if there was no property adjustment, the father would hold about 95 percent of the parties’ net assets and the mother five percent. The parties approach agreed that such a result would not be just and equitable.
I turn now to consider the application of Pt VIII of the Act and the factors set forth in ss 79 and 75(2).
CONTRIBUTIONS UNDER SECTION 79
I will deal first with s 79 of the Act. Section 79(4) sets out the considerations to be taken into account by the Court in considering what order (if any) should be made under s 79 in property settlement proceedings.
There was no dispute that I should take a global approach to the asset pool: Norbis v Norbis (1986) 161 CLR 513 (“Norbis”). To recap, the parties commenced cohabitation in late 2004, married in 2007 and separated in June 2019. Thus, the relationship was some 14 years. The discussion of contributions below supports taking a global approach.
In accordance with s 79(4) of the Act, it has been settled for many years that the Court must consider all the contributions, both financial and non-financial, to the acquisition, conservation, and improvement of the parties’ assets, as well as to the welfare of the family during cohabitation and after separation. The Court must consider the contributions in an overall sense: Norman & Norman [2010] FamCAFC 66; Kowalski & Kowalski (1993) FLC 92-342; G & G (2000) FLC 93-043. It has long been settled that a broad approach is preferred, rather than reference to precise mathematical calculations: In the Marriage of Burke (1981) FLC 91-055, although an evaluation of each party’s respective contributions is necessary: JEL & DDF (2001) FLC 93-075. Assumptions about equality of contributions should not be made.
In Dickons v Dickons (2012) 50 Fam LR 244, the Court expressly rejected the notion that there must be a relationship between contributions and what the parties produced in terms of property. At [14], the Full Court said:
As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844). But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
The Full Court continued:
17.…it is self-evident that financial contributions (whether direct or indirect) can be made to a relationship that have an effect on the property of the parties without those financial contributions finding their way directly into, or being directly linked to, specific property or, indeed, directly to the totality of the property available for distribution at the time of trial. Financial contributions can be made to the “...acquisition, conservation or improvement...” of property “...directly or indirectly...” (s 79(4)(a). Emphasis added). A financial contribution can be made indirectly by, for example, the use by parties of income or assets for purpose A freeing up the use of other income or assets for purpose B. Moreover, a particular financial contribution might have been used wholly in discretionary expenditure which, but for that contribution, would not have been available to the parties or would have required borrowings or a diminution of capital. Such a contribution can also, in that way, be seen, for example, as an indirect contribution to the conservation of property. Indeed, the principles discussed for example in In the Marriage of Kowaliw [1981] FamCA 70; (1981) FLC 91-092 and In the Marriage of Townsend [1994] FamCA 144; (1995) FLC 92-569, can be seen as an exception to that general proposition.
18. Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
19. That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “...not in any merely token way...”; see, Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 636 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
20. Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “... trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski [1996] FamCA 111; (1996) FLC 92-705 at 83,437). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
21. Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?
More recent authority has emphasised the necessity for a holistic approach: Jabour & Jabour (2019) 59 Fam LR 475 at [31]–[87]; Horrigan & Horrigan [2020] FamCAFC 25 (“Horrigan”) at [35]–[49]; Barnell & Barnell (2020) 60 Fam LR 377 at [30]–[43]; Benson & Drury (2020) 62 Fam LR 1 at [35].
In Horrigan at [35] the Full Court said:
It is well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. (Pierce v Pierce [1998] FamCA 74; (1999) FLC 92-844; Singerson & Joans [2014] FamCAFC 238; Dickons v Dickons [2012] FamCAFC 154; (2012) 50 Fam LR 244; Marsh & Marsh [2014] FamCAFC 24; (2014) FLC 93-576; Lovine & Connor and Anor [2012] FamCAFC 168; (2012) FLC 93-515 at [39]- [42]).
Below is a discussion of the evidence and my findings in relation to the relevant contributions under s 79(4) of the Act.
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage
Initial contributions
There was no dispute that the initial contributions were overwhelmingly made by the father. He brought the E Town property to the relationship. However, I bear in mind that initial contributions are to be weighed against all the other relevant contributions of the parties: Pierce v Pierce (1999) FLC 92-844 at [28].
Financial contributions during the relationship
I have set out earlier details of the parties financial contributions at cohabitation and during the relationship (above at [8]–[40]). I accept the father made the greater financial contribution during the relationship. There was a division of tasks between the parties, with the father earning the money and the mother caring for the children initially.
That changed after the children became older. I accept that the mother made some financial contributions through part time work. I find that the parties relied upon the father’s income to finance their lifestyle.
Financial contributions post-separation
After separation, as noted above at [38], the father disposed of a number of shares received as bonuses. The mother received $17,000 by way of partial property settlement.
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage
I have nothing to add separately here.
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
I accept that both parties made contributions during the relationship as homemakers and parents, although the mother made the greater contribution, for the simple reason that the parties relied upon the father’s income and he travelled for work.
Since separation, I accept the father has made the greater contribution as parent and homemaker, because the children have been living primarily with him.
ASSESSMENT OF CONTRIBUTIONS
I am satisfied that this is a case where the parties, despite an often fractious relationship, have adopted the attitude that their marriage constituted a practical union of both lives and property.
The father submitted that contributions should be assessed in his favour at up to 70 percent. On balance, taking account of all the above considerations, I assess the father’s entitlement at 69 percent and the mother’s at 31 percent.
I now turn to s 79(4)(e) and the s 75(2) factors.
SECTION 75(2) ADJUSTMENT
The Act requires me to take into account the matters referred to in s 75(2) of the Act, so far as they are relevant, when considering what orders should be made in these proceedings. The relevant matters to be so taken into account on these facts are, as follows.
(a) the age and state of health of each of the parties;
The father is aged 46. The mother is presently aged 42. Both suffer from ADHD. Otherwise, both parties are in reasonable health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
I have already discussed the assets and liabilities of the parties.
As noted, the father is presently employed as a professional at G Company Services. It is clear that while the father owns most of the assets, he also pays the material liabilities. In final submissions, the mother argued that the father failed to make adequate financial disclosure, understating his rental income from E Town and the level of bonuses paid to him. There may have been some inaccuracy in his disclosure, but it is unnecessary to make detailed findings in this regard. It is clear that in addition to his salary, the father has received generous bonuses and rental income. If he remains in Australia, this is likely to continue. As already pointed out, the parties agree the Super Fund 4 should be taken into account as a financial resource, which will accrue to the father at age 65.
The mother has capacity to work. She works in allied health and in casual jobs. Her earned income is $442 per week which is plainly far less than the father’s income.
The father continues to earn a substantial income, materially in excess of the mother’s income. There is a clear disparity in income.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
While the father will continue to be the parent primarily caring for both children, and especially Y, under the parenting orders I will make, X will be in the care of the mother for five nights each fortnight.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
As already noted, the father rents his home at Suburb M and pays $850 per week. The mother rents her apartment at Suburb K and pays $360 per week.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The mother receives government allowances of $222 per week.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Neither party made any submissions directly about this factor. The parties’ standard of living during the relationship was reasonably affluent, due to the father’s income. The relatively modest property pool does not permit orders which would allow both live to the same standard.
(h) the extent to which the earning capacity of a party would increase by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
In her affidavit of 26 November 2021, the mother gave evidence that she had completed TAFE qualifications as an educator. She also commenced a Certificate IV, with the hopes of moving into allied health care work. She intends to complete this Certificate in November 2022.
In cross examination, the mother further commented that she faces at least another four years of study, although did not explain what course or qualification this was in pursuit of.
I accept the mother’s earning capacity will be enhanced by the courses she has undertaken.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of a party;
The relationship lasted for some 14 years and the marriage lasted for some 12 years. I accept that in the early period, the mother as primary carer was unable to earn, but overall I do not find that the duration of the marriage affected the earning capacity of either party.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The father made payment of fees to Dr C in the first instance. It was agreed between the parties that the mother will have to pay to the father one half of those fees from her entitlement. At the completion of the final hearing, I directed to the parties to confer to agree how much had been paid to Dr C. By correspondence dated 22 December 2021 (Exhibit 8), the father’s solicitors advised the Court that Dr C had been paid $29,810. The mother did not dispute this figure. The mother therefore will be required to reimburse the father the amount of $14,905.
ASSESSMENT OF SECTION 75(2) FACTORS
Both parties suffer from ADHD. The father has a higher earning capacity than that of the mother. Nonetheless, the mother has the capacity to earn, but also presently relies on government assistance. The father has substantial assets but also significant liabilities secured against E Town, which he must service into the future if he wishes to retain E Town. On the other hand, E Town produces income in the form of rent. The mother has almost no assets. Both parents have responsibilities and commitments to care for the children, although the burden is materially greater for the father. Both parties rent their accommodation in Sydney, and I infer this will continue to be necessary. The mother has almost no superannuation, while the father has a material amount of Australian superannuation together with the Super Fund 4 in the UK.
The father argued that there should be a 2.5 percent adjustment in his favour, as a result of taking account of the s 75(2) factors, if I was not persuaded to assess his contributions at 70 percent. I disagree. After assessing contributions, I am unable to find that the s 75(2) factors favour any adjustment in his favour.
The mother submitted that the Court would attribute a 10–15 percent adjustment to her for s 75(2) factors. On weighing the factors, I am satisfied the mother should receive an adjustment of eight percent in her favour. Accordingly, the assets of the parties will be divided 61 percent to the father and 39 percent to the mother.
The net value of the property owned by the parties is $787,234, taking account of the father’s tax liability, inclusive of superannuation. On the basis of a 61/39 division, the father would be entitled to receive assets with a value of $480,213, and the mother assets with a value of $307,021.
If the mother receives a payment from the father of $182,514 together with a split of superannuation that she seeks, namely $83,911, she will receive her entitlement. Each party will otherwise retain their assets and liabilities. I propose to make orders to reflect this result.
WHETHER THE PROPOSED ORDERS ARE JUST AND EQUITABLE
Section 79(2) of the Act provides that
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Although the parties agree that it would be just and equitable to make an order adjusting their property interests, s 79(2) requires the Court to be satisfied the proposed order itself is just and equitable. The Full Court of the Family Court of Australia in Manolis & Manolis (No 2) [2011] FamCAFC 105 considered the relevant provisions of the Act in relation to this fourth step. At [65]–[66] the Full Court made the following observations, which I adopt and follow:
65. It can be seen that power to make orders in regard to property is not exhausted after the third step. It is not until orders are made that the power is exhausted. The exercise of power pursuant to s 79 of the Act remains subject to the overarching requirement of justice and equity imposed by s 79(2) until it is exhausted. …
66. … The section does however oblige the court to "stand back" from its preliminary determination, and consider its impact. So doing may inform the terms of the orders appropriate to produce a just and equitable outcome in those terms. It may result in a re-consideration of s 79(4) and or s 75(2) factors, and a different outcome. Whatever the scope of s 79(2), the court's determination with respect to it cannot be dependent upon findings or conclusions which are irreconcilable with those recorded in the context of a consideration of s 79(4) or s 75(2). …
The High Court of Australia in Stanford commented at [36] on the meaning of “just and equitable” as follows:
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
(footnotes omitted)
I also take account of the caution expressed in Stanford at [40] that to conclude that making an order is “just and equitable” only “because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act”.
Standing back and considering the proposed result more broadly, after taking account of the s 79(4) matters, I am satisfied it is just and equitable in the circumstances of this case, and consistent with my conclusions under s 79(4). The asset pool is modest and carries inherent limitations on the orders that can be made to achieve a just and equitable result. The mother is in need of access to liquid funds in the near future, bearing in mind a 14 year relationship, her lack of any assets and much more modest earning capacity than the father. While I propose to order a superannuation split which would give the mother the entirety of the father’s Australian superannuation entitlement, he will retain his UK pension fund. I am satisfied that the relevant superannuation trustee has been afforded procedural fairness.
I have taken account of the fact that the father may want the opportunity to raise the amount payable to the mother, $182,514, by refinancing, rather than selling, either E Town or his Country F property or both. He should be given sufficient time to make any necessary enquiries and applications for finance to allow this to happen. The location of the properties overseas may cause this to take longer than it would in Australia. Accordingly, payment to mother will not be required until 29 April 2022. The position of the mother can be protected by ordering the payment of interest by the father in the event he defaults in making the payment to the mother of the settlement in whole or in part, together with an order for the sale of E Town.
On a 61/39 percentage division, the father and mother will have the assets and liabilities as set out in the below table.
Assets and liabilities to be retained by the father Value ($) NN Street, E Town, United Kingdom. $978,768
(GBP525,000)
Plot of land (LL Street) located in City MM, Country F $75,879
(EUR48,000)
O Bank Account (ending #...18) $9,999 O Bank Account (ending #...71) $1,019 AD Bank Investment Account $11,000 Motor Vehicle 2 $22,000 Paid legal fees $70,000 Monies held in trust for legal fees $40,000 V Bank Mortgage secured against the E Town property (ending #...77) as at 24.11.21 - $209,533 V Bank Mortgage secured against the E Town property (ending #...90) as at 24.11.21 - $234,805 Car finance with AE Finance as at 24.11.21 - $23,674 Estimated Income Tax as at 24.11.21 - $77,926 Property settlement sum paid to mother - $182,514 Total: $480,213 Assets and liabilities to be retained by the mother Value ($) Property settlement sum $182,514 ANZ account (ending #...54) as at 26.11.21 $1,031 Motor Vehicle 1 motor vehicle $20,505 Partial property payment made by the father $17,000 Super Fund 1 $2,060 Father’s Super Fund 2 split $83,911 Total: $307,021
COSTS
Section 117 of the Act sets out that each party shall bear his or her own costs. The ICL applied for costs in their proposed orders, but no submissions were directed to this question.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is something that can be addressed after judgment has been delivered. However, my inclination is not to make any order for costs as between the parties in this matter. For example, neither party achieved a result which was wholly successful or unsuccessful.
The ICL made an application for costs in his proposed orders, although this was not the subject of oral submissions. The Court received considerable assistance from the ICL, and his counsel, in this matter. There is reason to think the parties should support the public funding for an ICL by making a contribution to the ICL’s costs in these proceedings. I consider it appropriate that the parties contribute to the costs of the ICL.
I will make provision for any application for costs by the parties to be made separately in the orders, and if such application is made, the Court proposes to make further orders and directions. However, the parties should attempt to agree about costs.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding two hundred and seventy-four (274) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 8 February 2022
0
20
0