Milligan and Milligan

[2013] FCCA 2061

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLIGAN & MILLIGAN [2013] FCCA 2061

Catchwords:
FAMILY LAW – Whether wife may relocate children’s residence – property orders.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA, 75(2), 79(1)

Morgan v Miles [2007] FamCA 1230
Stanford v Stanford [2012] HCA 52
Hickey [2003] FamCA 395, [2003] FLC 93-143

C & C [2005] FamCA 429, [2005] FLC 93-220

Applicant: MS MILLIGAN

Respondent: MR MILLIGAN

File Number: DGC 704 of 2013

Judgment of: Judge Phipps

Hearing dates: 28 & 29 October 2013

Date of Last Submission: 29 October 2013

Delivered at: Dandenong

Delivered on: 4 December 2013

REPRESENTATION

Counsel for the Applicant: Ms Gordon

Solicitors for the Applicant: M D Motherwell

Counsel for the Respondent: Mr Starvaggi

Solicitors for the Respondent: Michael Benjamin & Associates

Counsel for the Independent Children’s Lawyer: Mr Eidelsen

Solicitors for the Independent Children’s Lawyer: CE Family Lawyers

ORDERS

Children’s Orders

1. That all previous orders are discharged.

2. That the husband and the wife have equal shared parental responsibility for the children [X] born [in] 1998, [Y] born [in] 2001 and [Z] born [in] 2007.

3. That the children live with the wife.

4. That the wife is restrained by injunction from relocating the children’s residence to more than 30 kilometres from their current residence in [A].

5. The children spend time and communicate with the husband as follows:

   (a)Each alternate weekend from Thursday after school until Monday before school;

   (b)In the alternate week to 5(a) each alternate weekend from 4.00pm Sunday to the commencement of school on Monday;

   (c)Half school holidays as agreed and if not the first half;

   (d)From 10.00am on Father’s Day to the commencement of school on Monday;

   (e)For two hours on each child’s birthday with that child;

   (f)For two hours on the father’s birthday;

   (g)Otherwise as agreed;

   (h)Telephone and electronic communication as agreed.

6. That on Mother’s Day any order for the children to spend time with the husband is suspended from 10.00am on that day until the commencement of school on Monday.

7. That the children spend time with each parent at Christmas as agreed and if not agreed in 2013 and each alternate year thereafter with the wife from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the husband from 3.00pm Christmas Day to 3.00pm Boxing Day and in 2014 on each alternate year thereafter with the husband from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the wife from 3.00pm Christmas Day to 3.00pm Boxing Day.

8. The orders for the child [X] to spend time with the husband are subject to [X]’s wishes.

9. That each party keep the other informed of his or her current residential address, and any available email addresses and advise the other parent of any change within seven days.

10. Each party is restrained by injunction from denigrating the other party to the children or in the presence of the children or permitting any other person to do so. 

11. The order appointing the Independent Children’s Lawyer is discharged

Property Orders

1. That the money held in the Bendigo Bank ($514,135.60 on 12 August 2013) being the balance of the net proceeds of sale of the former matrimonial home at Property W (the balance) be divided and applied as follows;

   (a)By paying 65% of the balance to the wife;

   (b)By paying 35% of the balance to the husband.

2. That otherwise:

   (a)Each party be solely entitled to the exclusion of the other to all property (including choses in action) owned by or in the possession of such party as at the date of these orders;

   (b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

3. That the wife, through her solicitor, forthwith send to the Trustee of [M] Superannuation, the husband’s superannuation fund, a copy of the following Minute of Proposed Superannuation Order for the purpose of providing procedural fairness to the Trustee, and file evidence that this has been done together with a Minute of Proposed Order amended in accordance with any requirements of the Trustee:

   Minute of Proposed Superannuation Order

   1. Whenever a splittable payment is payable in respect of the superannuation interest of Mr Milligan (account number [omitted]) in the [M] Superannuation fund:

   i.Ms Milligan is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $79,879 at the operative time;

   ii.There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

   2. The operative time for the purpose of the preceding paragraph is four days after service of a copy of this order on the trustee;

   3. The above order binds the trustee or trustees from time to time of the superannuation fund.

4. The application is adjourned to 31 January 2014 for the making of superannuation orders unless made earlier in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Milligan & Milligan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DANDENONG

DGC 704 of 2013

MS MILLIGAN

Applicant

And

MR MILLIGAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant wife, the mother of the children [X] born [in] 1998 aged 15, [Y] born [in] 2001 aged 12 and [Z] born [in] 2007 aged 6 wishes to move with the children from her current residence in [A] to live with her partner in [G].  The respondent husband, the father of the children, opposes that move and proposes that the amount of time the children spend with him should be increased.

2. The parties disagree on the division of their property.  The property is money in a bank account, the net proceeds of sale of the former matrimonial home, and superannuation.  The wife proposes that the non-superannuation assets be divided 70% to her 30% to the husband and the superannuation be divided equally.  The husband proposes that the non-superannuation assets be divided equally and the superannuation adjusted so that it is divided equally as at the date of separation.

Children’s provisions

1. Provisions concerning children are contained in Part VII of the Family Law Act 1975 (Cth). The objects of Part VII and the principles underlying it are contained in s.60B. The objects are ensuring that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, protecting children from harm, ensuring that children receive adequate and proper parenting and ensuring that parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.

2. Section 60CA provides that the child’s best interests are the paramount consideration in making parenting orders. Considerations for determining a child's best interests are contained in s.60CC.

3. If the court makes or intends to make an order for equal shared parental responsibility, s.65DAA provides that the court must consider whether equal time with each parent would be in the child's best interests and reasonably practicable, and if equal time is not appropriate, the court must consider whether substantial and significant time would be in the child's best interests and reasonably practical. Considerations for determining what is reasonably practical are set out in s.65DAA(5).

4. The parties agree on an order for equal shared parental responsibility for the children. There is nothing to rebut the presumption in s.65DAA of the Family Law Act 1975 (Cth) and the order is an appropriate one. This means that the parenting dispute must be decided within the framework of s.65DAA of the Family Law Act 1975 (Cth).

5. In Morgan v Miles [2007] FamCA 1230 at [80] and [81] Boland J described the manner in which a court should approach a relocation case.

   80. It follows from my exposition of the legislation, that earlier core principles:

   -      that the child’s best interests remain the paramount but not sole consideration;

   -      that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -      that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   -      the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid. 

   81.  What the legislation now requires is:

   -     consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -      if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority.  It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

Proposals

1. The wife proposes that the children live with her in [G] and spend time with the husband each alternate weekend from Friday evening until Sunday evening, 10 days of each of the school term holidays and on the various celebratory occasions.  In her outline of case she makes no specific proposal for summer holidays but from her general approach I infer that she intends that the children spend a substantial part of summer holidays with the husband.

2. The father proposes that the children live with him each alternate week from Wednesday night to Monday morning or from Thursday night to Tuesday morning.  Therefore he proposes that the children live with him for six nights each fortnight.

3. The independent children’s lawyer proposes orders as recommended by Ms S who prepared the family report.  This is that the children should remain living with the wife in the [A] area and spend time with the husband each alternate weekend from Thursday after school until Monday before school and in the alternate week Sunday after dinner to the commencement of school on Monday, half school holidays and time on the various celebratory occasions.

Background

1. The wife was born [in] 1971 and is aged 42.  The husband was born [in] 1970 and is aged 43.  The parties commenced their relationship in 1993, married [in] 1995 and separated on 12 August 2011.  The former matrimonial home at Property W was sold in February 2013.  After repayment of a $40,000 loan from the wife’s mother and a distribution to the parties of $20,000 each, as at 12 August 2013 is held in the Bendigo Bank.

2. Each party now lives in rented accommodation, the wife in [A] and the husband in [D].

3. The wife was born in Holland and came to Australia with her parents when she was nine years of age.  Her parents were [occupation omitted] and she lived with them in rural Victoria, mainly [omitted] until she left home to attend  [education omitted] in [omitted] in 1988.  After completing that work she was employed as a [omitted] in [omitted].  Her parents were living [omitted].  Her father has died and her mother remains living at the [property] with the wife’s brother and his family.  The wife says that the children have spent considerable time with her family [omitted] and have enjoyed the time in the country.

4. The husband has re-partnered and now lives with his new partner

   
   

   Ms E. The wife met Mr R in 2011. He lives at [G] and the wife wishes to move there to live with him and to take the children with her.

5. Mr R has three children aged 18 years, 17 years, and 13 years.  The 13-year-old son spends half his time living with Mr R in accordance with Mr R’s roster.  He sees the older two children occasionally.  Mr R is a [occupation omitted].  He works for [omitted] on a rolling roster that involves two days on, two days off, three days on and then three days off.  Mr R was born in [T] and has always lived in that area except for a short period of time when he completed his [qualification omitted] in Melbourne.  He lives in rented accommodation in [G].  The house has five bedrooms and is on a block which Mr R says is 3 acres and is part of a larger [property] of 400 acres.  His parents live next door.

6. The husband is a [occupation omitted].  He works from home about two days a fortnight, these being days when he has appointments at [omitted] near his home.  His proposal for the time the children spend with him involves the children spending school days with him and he intends working from home on those school days.  Annexed to one of his affidavits is a letter from his employer stating that they have flexible employment arrangements so that employees can commit to family arrangements.

7. Following separation the children and the wife remained living in the family home and the husband stayed in his father’s house until he relocated to rental accommodation.  For the first three months the husband would come back to the family home and spend alternate weeks and the wife would relocate to a girlfriend’s home until she found her own accommodation.

8. The agreement the parties reached for the children’s time with the husband was for alternate weekends 6.00pm Friday night to Sunday night and alternate Sundays from 4.00pm until the commencement of school on Monday morning and for the two younger children, [Y] and [Z], from after [sport omitted] on Wednesday until the commencement of school on Thursday.  While the agreement was Friday night to Sunday night on alternate weekends it has frequently extended until the Monday morning.  The husband says that this became the normal pattern while the wife suggested it was not so frequent.  The difference is immaterial.

9. The proceeding commenced with the wife’s application on 21 March 2013 applying only for property orders.  The husband’s response sought children’s orders and the wife then replied in relation to the children’s orders.

10. The only parenting orders were made by consent on 14 May 2013 and they provide that the parties have equal shared parental responsibility for the children and that the current living arrangements for the children continue, but may be altered by agreement between the parties.

Evidence

1. The wife’s material is affidavits sworn on 20 March 2013 and 30 September 2013 and an affidavit by Mr R sworn on 26 September 2013.  Both the wife and Mr R were cross-examined.  The wife filed two financial statements, the most recent on the day of the hearing.

2. The husband’s material is affidavits filed on 7 April 2013, 29 July 2013 and 14 October 2013.  He filed a financial statement on 7 April 2013.  The husband was cross-examined.

3. A family report was prepared by Ms S.  She gave evidence verifying the family report and she was cross-examined.

Best interests considerations

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child's parents.

1. That the parents to date have agreed on living arrangements for the children, and that both parents being substantially involved in the children’s lives shows that the children have a good relationship with each parent.  Ms S’s interviews with the children confirm this.

2. [X] told Ms S she feels emotionally close to both parents but finds it easier to talk to her mother rather than her father.  She has withdrawn a little from her father.  [X] described her parent’s separation as quite hard initially and said she was very conscious of the conflict between them but she thought they were doing a good job of hiding their fighting.

3. The wife says of [X]’s views about moving to [G] that [X] does not want to upset either parent.  Ms S says that [X] is quite anxious about her father’s reaction to her mother’s request to move away.  [X] states that she doesn’t mind but Ms S says that was in a very resigned and flat manner.

4. [Y] and his father attend [sport omitted] on Wednesday nights.  He told Ms S that the night his parents separated had been horrible.  He believed things settled quite well after his father left and currently it was good.  He described his sister [X] as being grumpy at times and [Z] as being annoying.  Ms S remarks that [Y] sees that his mother understands the sibling rivalry and his father does not.

5. Ms S describes [Z] as a delightful young lady although many of her responses ended up with “can’t remember”.

6. The wife is clearly the children’s principal carer.  She was able to describe each child’s personality and friendships.  For instance [X], who has had some trouble with bullying at school, has a best friend who comes to their house frequently.  [Y] has many friends but no particular friend.  The mother described in some detail her interaction with the children.

7. Ms S recommends against relocation for two principal reasons, the effect on the children’s relationship with their father and the effect of moving away from the current environment and their current school friends and activities.  Ms S considers their relationship with their mother may be affected.

8. Ms S refers to a published paper which says that once a child moves more than 20 minutes away from the other parent sustaining a relationship between them necessitates fragmenting the child’s life and activities.  She says that a move that results in an hour or more travelling time produces another qualitative shift in the impact of the move.  Brief visits are not easy.  She says that whenever a move necessitates a significant travel time and expense the potential impact is significant, as social networks of the children are disrupted, they cannot join a footy team, or play tennis for the school which requires regular commitments.

9. Ms S considers that relocation will change the nature of the children’s relationship with their mother.  Ms S considers that, realistically, the children will be able to spend only one weekend a month with their father and school holiday time.  The mother proposes fortnightly time and if the mother does move with the children, clearly that is what the husband would want, at least initially.  However, the travel time is two a half hours or more and possibly longer if travelling on congested roads through Melbourne late afternoon or early evening on Fridays.  [G] is north of Melbourne and [D], where the father lives, is in the south-eastern suburbs.  The combination of the travel time and the children developing interests and having weekend commitments in the [G]/[T] area means that, whatever the order, monthly time is probably what will occur at best, unless the father stays in a hotel or motel in the [G] or [T] area, which would further affect his relationship with the children.

10. This means, Ms S considers that the wife will be a full time parent with little capacity for individual time with either of the children or with her current partner.  This will change the nature of her relationship with the children.

11. Ms S sees a risk that the wife, as the primary parent, becomes the boring disciplinarian and the husband, the holiday parent, the fun parent.

12. Ms S says in relation to the youngest child, [Z], that attachments are fragile in the early years of their formation.  Younger children are more vulnerable to disruptions in attachment formation and consolidation.  Ms S says that [Z]’s relationship with her father may alter to be more like a visiting uncle rather than an involved father.

The need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.

No evidence is relevant to this consideration.

Additional considerations

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.

1. [X], clearly, is of an age where her views must be given considerable weight.  The wife says of all the children, [X] in particular, that they do not want to upset either parent.  She says that [X] is prepared to move.  The wife has taken the children to [T] where they have visited the schools they will attend if they do move and they are provisionally enrolled.

2. Some direct quotations from the family report are worthwhile in assessing [X]’s views about a possible change of residence.  Important to the context of these quotations is the mother’s evidence that [X] had been bullied at school but things were now much better.  She has a constant best friend and her results and reports are much improved.

3. Ms S says at paragraph 60 of her report:

   [X] spoke of some of the most important things in her life which were her peer group and her best friends.  She is proud of herself that recently she has been “better at school” and has been able to put aside any negative feeling she had about school.  Her greatest hope is for everything “to settle down” but does not see that things are “fair” in the family.  She believes that [Y] is favoured by her mother and that [Z] is fairly easy going in both sets of families.

4. In paragraph 62 Ms S says:

   She is quite anxious about her father’s reactions to her mother’s request to move away and although she states “I don’t mind”, it was in the very resigned and flat manner.  She advised that she would give up [activity omitted] and that she would miss her friends.  She is concerned about being fair to both parents and does not wish to upset either of them.

5. I conclude from the evidence that [X] would prefer not to move from her current environment.  Her reasons are quite rational.  She would move away from her friends and her activities.  She would have to establish herself in the new school and a new home with a stepfather and a stepbrother.  Her relationship with both parents would change.  Ms S’s evidence shows this is so.

6. Ms S describes [Y] as a delightful young man to interview.  He recalled the night his parents separated and he said it was horrible. He told Ms S that he is worried about his parents interacting and possibly fighting.  He is worried about the future and needs to know what is happening and finds it difficult to cope with the uncertainty.  He liked living both in his mum’s house and his father’s house.

7. [Y] told Ms S that he hopes his parents would be fair to each other and treat each other well.  He believes that he is not comfortable in choosing between his parents and is not sure about complying with his mother’s request to move from what is his familiar environment.

8. Similar to [X], this evidence shows that [Y] would prefer not to move.

9. [Z], who is aged six, is described by Ms S as a delightful young lady.  She is too young to have any views about where she should live.

The nature of the relationship of the child with: each of the child's parents; and other persons (including any grandparent or other relative of the child).

1. The children’s relationship with each parent is discussed under the first of the primary considerations.  The wife is their principal carer but they have a good relationship with the husband. Notable are [X]’s statements to Ms S that she feels emotionally close to both parents but finds it easier to talk to her mother than her father and that she has withdrawn a little from her father.  [Y] sees that his mother understands the sibling rivalry whereas his father lets [Z] get away with things most of the time. 

2. The evidence, including that of Ms S show that the children get on well with the new partner of each parent, and that they get on well with

   
   

   Mr R’s son.

The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child and to communicate with the child.

1. The main issue in this case is a major long-term issue, the proposed move by the wife with the children which will make it more difficult for the children to have a relationship with their father.  Clearly both parties have pursued the opportunities consistent with their separation to spend time and communicate with the children.

The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. Both parents have fulfilled their obligations.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. This consideration is a particularly significant one in this case.  Currently the children live with their mother and spend time with their father on alternate weekends from Friday night to Monday morning and on alternate Sundays from 4.00pm to Monday morning.  The two younger children, [Y] and [Z] spend Wednesday night to Thursday morning with their father and on that Wednesday night [Y] and his father attend [sport omitted].  This, on the mother’s proposal, will reduce to fortnightly Friday night to Sunday night and realistically will probably be only monthly.

2. Ms S’s evidence that a move to [G] will change the nature of the children’s relationship with each parent has been described already.

3. Ms S’s refers to the obvious disruption in schooling, peer systems, relationships with other adults, e.g.  teachers, grandparents and child community.  She sees this is particularly so with 15-year-old [X], less so with the younger [Y] and less so again with six-year-old [Z].  The children will have to establish new friendships, new peer groups and new extracurricular activities.  [X] attends [activity omitted] near her current home, something she will have to give up on, something she specifically referred to when talking to Ms S.  The mother says she has found [activity omitted] in [T] but [X] will still have to change.

4. [X] is in year nine and so will have to re-establish herself in a new school in the middle of her secondary years.  Ms S says of [X] that she is achieving well at her current school and a disruption at teenage level can result in isolation.  To break into new friendship groups can be daunting and filled with difficulty and it is not known whether she has the resilience to manage this.  This is all in the context of a child who has had difficulty at school, difficulty with bullying, that now has a best friend, a friendship group and is doing well at school.

5. [Y] is in Grade 6 and school captain, something of which he is very proud he told Ms S.  If he moves he will not be commencing secondary school with an established core of the peer group from his current primary school.  Ms S applies her comments about the difficulty of changing schools to all three children.  She says that if any of the children find accessing the new school difficult they will be at risk of not making friends and not being part of teams.

6. [Y] has been attending [sport omitted] with his father and [sport omitted] can be found in [T] or the [G] area they will still be different and his father will not be there.

7. Ms S refers to the untried new environment of living with a stepfather, Mr R and a step sibling, Mr R’s son.  As well as other adjustments, the children will need to accommodate this change in the context of the mother also having these new relationships.  Ms S says this is an unknown.

8. The change in circumstances, the change in the relationship of the children with each parent and the other changes described above are significant reasons in Ms S’s recommendation that the children not move to [G].

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.

1. The difficulty and expense of the children spending time with the husband if they live in [G] is obvious.  The travel time between [G] and the father’s home is two and a half hours or more depending on traffic conditions.  Both parties have motor vehicles.  The principal expense is the cost of fuel but there will be others.

2. The change will substantially affect the children’s right to maintain personal relations and direct contact with the husband on a regular basis.  Their weekly or even more time with him will be reduced to fortnightly, two nights instead of three, and possibly less than fortnightly.

The capacity of each of the child's parents; and 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.

1. What has been said about the children’s relationship with each parent shows that each has the capacity to provide for the needs of the children.

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.

1. The children’s ages, sex and particular circumstances are described under earlier considerations.

If the child is an Aboriginal child or a Torres Strait Islander child the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right.

1. The children are not Aboriginal or of Torres Strait Islander origin.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. The wife puts forward as a reason for moving to [G] the advantages of children growing up in the country.  She did so herself.  She says that the children will be able to have animals, help grow their own food and will have a better lifestyle.  She considers that her financial ability to care for the children will be better rather than just getting by as she says she does now.

2. The wife acknowledges that if it was not for her relationship with Mr R and her desire to live with him she would not be moving.  Mr R says he cannot move because he does not have the same employment opportunity in Melbourne and he will be unable to have his son living with him to the extent he has.

3. Ms S proffers the observation that similar issues of stability and disruption arise if Mr R moved to Melbourne as arise with the children.  Ms S makes the observation that the Court is being requested to change the current set of the children’s lives for the purpose of the wife progressing her relationship with Mr R.

4. Ms S’s observation is, I am satisfied, correct.  The wife would not be moving to [G] if it was not for her desire to pursue a relationship with Mr R.  Therefore she is wishing to move the children’s residence and the circumstances in which they live so she can progress her relationship with Mr R.  To this extent she gives priority to her interests of those of the children.

Any family violence involving the child or a member of the child's family.

1. There are no family violence orders.

If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order.

1. There are no family violence orders.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. There is no evidence which suggests that adopting one parent’s proposal would be less likely to lead to the institution of further proceedings if the other party’s proposal was adopted.

Any other fact or circumstance that the court thinks is relevant. 

1. There are no other relevant matters.

Reasonably practicable

How far apart the parents live from each other.

1. If the wife’s proposal is adopted and she moves with the children to [G], the parties will live at least two a half hours driving time apart.  Weekend time Friday night to Sunday night, probably only monthly, and holiday time is all that will be practicable for this reason alone.

2. If the wife remains with the children at or near her current residence the parties live only a few minutes apart and a few minutes from the children’s schools.

The parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents.

1. The wife says of the husband that he was too controlling and wanted her and the children to be perfect.  Whether or not that is correct, it indicates a difficulty the parties would have with living arrangements for the children which required close cooperation.  The current dispute indicates difficulties in their relationship.  The current living and spend time arrangements are working but there must be considerable doubt whether a change to more time with the father would maintain that cooperation.

The parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.

1. The same can be said under this consideration.  The parents can communicate within the current arrangement but any change which meant closer cooperation about the children’s day-to-day activities might be problematic.

The impact that an arrangement of that kind would have on the children.

1. The children are well settled in the current arrangement.  In particular, what is said about [X]’s relationship with each party shows that a change to her spending more time with her father would impact adversely on her.  She has had difficulties at school in the past but now is doing much better.  Any change in her living arrangements is undesirable.

Such other matters as the court considers relevant. 

1. No other matters are relevant.

Freedom of movement

1. The wife wishes to pursue a relationship with Mr R by moving to his home in [G].  That means that for the children to remain living with her, they must move to [G].  Her freedom to select her home must be balanced against the best interests of the children.

2. I am not convinced that the move to [G] is essential for the wife and Mr R to live together.  For the relationship to be successful Mr R needs to be committed to the wife just as the wife needs to be committed to Mr R.  Mr R says he cannot move his employment and I accept that employment in his current occupation with a [omitted] is not available in Victoria other than at [T].  Other than that employment similar to his current employment is only available in [T] there is no evidence led on the wife’s part of enquiries made about possible employment in the Melbourne area for someone with Mr R’s skills.

3. Mr R’s other reason for remaining in the [G]/[T] area is his relationship with his son.  His son would not be able to share his time between his mother and Mr R on the equal basis that occurs now.  If the mother remains in Melbourne with the children, and Mr R wishes to live with the mother then he would have to make a decision about his relationship with his son.

4. Ms S says that the wife’s psychological response to the relocation issue may be considerable.  If relocation is not allowed the restricted parent, in this case the mother, may need psychological help to deal with the anger and resentment or depression that may be present.  She says the children in these situations often feel a mixture of guilt, anger and fear and may need to be helped through this period with their own counselling assistance.  These possibilities have to be taken into account.

Conclusion

1. The children’s best interests are met by them remaining living where they are with their mother.  If they move their relationship with their father will change significantly and the same may happen with their mother.  I accept Ms S’s evidence to this effect.

2. While [X] and [Y] do not want to upset either parent their views are against moving.  Their reasons are a combination of the change in the relationship with their father and a move away from their current environment, peer groups, friends and activities.

3. Ms S considers that the children, [X] in particular, to a lesser extent [Y], and lesser again for [Z], will have difficulties with the transition to a new home with Mr R and his son living there, new schools and the need to establish new friends, peer groups and activities.  I accept what Ms S says.

4. Ms S recommends against the move largely for the dual reason of the effect on the children’s relationship with both parents and the difficulties they will face with the move. Ms S’s recommendation is soundly based.

5. When the best interests considerations are balanced against the wife’s freedom of movement the best interests considerations must prevail, particularly given that I am not convinced that the move to [G] is essential for the mother to pursue her relationship with Mr R by them living together.

6. The father wishes to increase his time with the children.  There seems no reason why this should be done.  The children have a good relationship with each parent, better and closer with the wife and nothing in the best interests’ considerations points to a need to change.  Currently the time is alternate weekends Friday after school to before school Monday and in the intermediate week late afternoon Sunday to before school Monday.  Ms S recommends alternate weekends from after school on Thursday until the commencement of school on Monday.   She does this on the basis that the Wednesday extracurricular activity of [omitted] can be changed to Thursday.  It also has the effect of eliminating the overnight time every second Sunday which means the children have a weekend with each parent.  The extension of the husband’s time to after-school Thursday means that he has the children for a school day, which helps meet the requirement of substantial and significant time.

Property

1. Section 79(1) of the Family Law Act 1975 (Cth) provides that in property settlement proceedings the court may make such order as it considers appropriate. The following sub-sections set out the considerations the court is to take into account in deciding what is appropriate. Prior to the decision of the High Court in Stanford v Stanford [2012] HCA 52 this was a four step process. First, determine what are the assets and liabilities of the parties, next consider the parties’ contributions taking into account the matters in s.79(4)(a)-(c), next consider whether an adjustment should be made taking into account the matters referred to in ss.79(4)(d), (f) and (g) and s.75(2) insofar as they are relevant, and finally consider whether in all the circumstances it is just and equitable to make the proposed order[1].   The four step process was usually applied to superannuation and non superannuation assets separately, but there are cases where this may not be appropriate.[2]  The decision in Stanford v Stanford means that the four step process must be modified.  The court must identify the matrimonial property and the legal and equitable interest of each party in the property applying normal principles.  That presents no difficulty in this case because the parties agree on the identity of the property.

   [1] Hickey [2003] FamCA 395, [2003] FLC 93-143.

   [2] C & C [2005] FamCA 429, [2005] FLC 93-220

2. The court must determine, as required by s.79(2) whether it is satisfied that in all the circumstances it is just and equitable to make an order.  In this case the parties have separated and the separation is permanent.  The basis upon which they lived together with their children in the principle asset, the former matrimonial home, and shared their finances is gone.   Each party applies for property orders.  It is just and equitable to make an order for division of property in accordance with the provisions of s.79.

1. The appropriate way then to proceed is to undertake the second and third steps of the four step process, contributions and possible adjustments, and then again consider whether the proposed order is just and equitable.  Stanford v Stanford has not affected the earlier decisions concerning the separate treatment of superannuation and non-superannuation property.

2. The former matrimonial home at Property W has been sold.  The parties authorised payment of a joint Capital Gains Tax liability of $31,549, repayment of a loan of $40,000 to the husband’s mother and on 12 April 2013 $20,000 to each party as a partial distribution.  The balance, held in a term deposit with Bendigo Bank, was $514,135.60 on 12 August 2013.

3. Each party has a motor vehicle.  The wife estimates the value of her motor vehicle at $24,500 and the husband estimates the value of his at $39,900.  Since these are non-expert estimates only and they are not assets that either party intends selling except in the course of obtaining a replacement vehicle I will not include them as part of the assets.

4. Each party has small amounts in bank accounts and the husband has a small credit card debt.  There is no evidence about bank statements and credit card debts at the time of separation and so I will treat them as having accrued or been incurred since separation and not include them as part of the assets.

5. Both parties have superannuation.  At 4 July 2013 the husband’s in [M] Superannuation was valued at $192,256.60.  At 1 November 2011, shortly after separation on 12 August 2011, it was valued at $143,909.78.  The wife’s was valued at $24.065.97 in August 2011 and at 19 October 2013, $32,498.24.

6. The parties commenced their relationship in 1993, married [in] 1995 and separated on 12 August 2011 and so had an 18 year relationship.

7. The parties met when the wife was in [omitted].  She moved to Melbourne where they started living together.  The husband was then a full-time university student and the wife owned and operated her [business omitted]. She says they were living in rented accommodation and she paid the rent, and most of the household expenditure.  She says that the husband worked part-time as a [omitted].

8. The husband says that the wife was the sole financial supporter of the household for approximately one year.  He says that during his four years of postgraduate studies he was supported by an Australian Postgraduate Research Award Scholarship of approximately $24,000 per year.  He worked part-time as a tutor for 2 to 3 classes each week at $50 per class.  During the summer holidays of the final two years of study he had employment as a [omitted] one year and as [omitted] for the other.

9. The wife says that in 1997 she sold her [omitted] business for $18,000 and two blocks of land for $15,000 and applied those funds towards the purchase of their first home.  He says that the proceeds of sale of the two blocks of land were put towards the purchase of a new vehicle used primarily by him.  He says that both contributed equally to the purchase of their first home.

10. The first child [X] was born [in] 1998. Soon after the wife sold her [omitted] business and put the proceeds towards the purchase of the parties’ first home.  The wife continued to operate her [omitted] business from home.  She says initially she earned about $100 a week but that reduced to $50 a week with the birth of the third child.  The husband does not put an amount on the earnings but says that the income from home [business omitted] paid for most of the children’s activities and some of his own.  He says this totalled hundreds of dollars per month. 

11. The husband after his studies worked full time as a [omitted]. His evidence that he earned additional money by doing private [omitted] is not disputed.  His financial statement dated 15 April 2013 gives his weekly income at $2,352 which is $122,304.  He has worked in a similar occupation throughout the relationship and so his income would have been at a similar level taking into account inflation and possible promotion or increases due to seniority.  He undertook normal household tasks and maintenance and repairs consistent with his full-time employment.

12. The parties first child was born [in] 1998, the second born [in] 2001 and the third [in] 2007.  While the husband worked full time, the wife was the principal child carer and homemaker.  The husband contributed to these roles consistent with his full-time employment.

13. The husband made the greater financial contribution while the wife devoted most of her time to the children and caring for the home.  This is the way in which the parties chose to organise their life and their family.  Their contributions are equal.

14. The matters relevant to considerations under s.75(2) are the age and state of health of the parties, their property, then income earning potential, care of children and child support.

15. The wife is 42 and the husband is 43.  Both are in good health.  The husband has secure well-paid employment earning $122,304 a year.  He lives with his partner who has an income of $1,490 per week.  He pays child support for the two children, which the wife says is $315 per week.

16. The wife has some part-time employment earning $300 per week.  The wife is a qualified [omitted] and did in the past earn money from a home [omitted] business.  She says that now she does [omitted] for friends and family and receives payment for product which is a small amount of money.  She says the income is negligible.  What is relevant is that she has the ability to earn income as a [omitted].

17. The wife will not move to live with Mr R in his rented premises at [G].  There is some possibility that Mr R might move to the Melbourne area to live with the wife.  Thus there is some possibility of a sharing of the expenses of a home.

18. The wife’s other income is family tax benefit $159 per week and single parent benefit $200 per week.

19. The wife comes from a [omitted] family.  Her deceased father’s will left the residence and surrounding 10 acres to the wife’s mother and the balance of the [property] to her brother.  This was subject to her brother paying an annuity of $25,000 per annum to the wife’s mother, to be reduced upon the wife’s mother becoming eligible for a pension, and paying $150,000 to the wife within 12 months of the wife’s mother’s death.

20. The wife casts some doubt on whether she will receive this money because of the state of the [omitted] industry.  There is no evidence of the size of the [property], its productivity or its value other than that it is a [omitted] property.  On the meagre information available it appears that the only risk that the wife might not receive the $150,000 is that if the [property] is sold its net equity is less than $1,500,000.  There is no evidence of such a risk.  Consequently, the wife has a reasonable expectation of a payment of $150,000 within 12 months.

21. There is no evidence about any expectation the husband might have of an inheritance other than that at some point his mother lent the parties $40,000.  This suggests that the husband’s mother has some property.  It seems reasonable to assume that the husband’s parents have some property and he has some expectation of an inheritance.

22. The husband has a good income and a reasonable expectation of that continuing.  He has a partner in employment and normal living expenses and he pays child support.  The wife’s income and income earning ability is limited while she has the children to care for, and if she is able to work full time her income earning ability is substantially less than the husband’s.  The wife has a reasonable expectation of an inheritance of $150,000 but I must take into account the possibility of the husband having an expectation of an inheritance.  The adjustment for the wife of all these considerations is 15%.

23. Each party has received $20,000 already but neither proposes it be added back and there is no evidence of an agreement to that effect.  Each party has had to establish a new home and neither now has any substantial savings.  A fair inference is that each has spent the $20,000 on reasonable living expenses.

24. The parties’ superannuation has accumulated since they commenced their relationship. The wife proposes an equal division of superannuation while the husband proposes an equal division valued at the date of separation.  Each party’s submission accepts that at least up to the date of separation contributions were equal and the analysis of contribution considerations already done shows that this is correct. 

25. The husband’s submission assumes that the wife has made no contribution to his superannuation since separation.  That is not correct.  Investment earnings on the husband’s superannuation since separation are attributable to the amounts that accumulated prior to separation.  The same applies to the wife’s superannuation.

26. The addition since separation is contributions plus investment earnings on those contributions.  I have no way of calculating those amounts and a reasonable approach is to treat contributions as equal for all superannuation.

27. Section 75(2) factors are not relevant so superannuation should be divided equally.

28. The calculation is:

    Husband’s superannuation            $ 192,256.60

    Wife’s superannuation                 $   32,498.24

    Total  $ 224,754.84

    Half  $ 112,377.42

    Adjustment to wife                   $   79,879.00

29. The proposed orders which result are just and equitable.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  4 December 2013