MONRO & MONRO
[2020] FamCA 124
•4 March 2020
FAMILY COURT OF AUSTRALIA
| MONRO & MONRO | [2020] FamCA 124 |
| FAMILY LAW – CHILDREN – Parenting Orders – International Relocation – Where the mother, father and children live in Australia and both parents extended families live in New Zealand – Where the mother seeks to relocate with the children to New Zealand – Where the father opposes relocation – Where the Independent Children’s Lawyer supports relocation – Where the mother’s application to relocate is granted. FAMILY LAW – PROPERTY – Property Orders – Modest pool – Superannuation Splitting Order. |
| Family Law Act 1975 (Cth) s 72(2) |
| AMS & AIF (1999) 199 CLR 160 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275 |
| APPLICANT: | Ms Monro |
| RESPONDENT: | Mr Monro |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 6086 | of | 2018 |
| DATE DELIVERED: | 4 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 28, 29, 30, 21 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tockar |
| SOLICITOR FOR THE APPLICANT: | Swan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Ford |
| SOLICITOR FOR THE RESPONDENT: | Jack C Herrald Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW |
Orders
The mother and the father have equal shared parental responsibility for the children, X born … 2010, Y and Z born … 2012 (“the children”).
The children live with the mother.
The mother be permitted to permanently relocate the residence of the children to New Zealand forthwith.
The mother to enrol the children at B School, C School and D School, or any other such school as agreed between the parties.
The mother is to do all acts and things to ensure the father is able to contact the children’s school on any occasion he requires so to do to discuss his children’s progress.
The mother is to advise the father of the general medical practice the children attend and is to do all acts and things to ensure the father is able to contact the children’s treating doctor on any occasion he requires so to do to discuss his children’s diagnosis and any health issue.
The children to spend time with the father during the New Zealand school holidays in Australia:
(a)From 5.00 pm on the first Saturday after the conclusion of Term 1 until 12.00 noon the last Sunday before the commencement of Term 2;
(b)From 5.00 pm on the first Saturday after the conclusion of Term 2 until 12.00 noon the last Sunday before the commencement of Term 3; and
(c)For the first half of the Christmas school holidays in even numbered years, and the second half of the Christmas school holidays in odd numbered years, with the holidays to commence the day after the last day of Term 4; and
(d)The children to spend time with the father during the New Zealand school holidays in New Zealand in even numbered years from 5.00 pm on the first Saturday after the conclusion of Term 3 until 12.00 noon the second Sunday of the holidays and in odd numbered years from 12 noon the second Sunday of the holidays until 12.00 noon the Sunday before school resumes if is able to facilitate this time.
The children will spend time with the father in New Zealand on any occasion he is able to travel, provided the father:
(a)gives the mother not less than seven (7) days’ notice of the proposed time;
(b)if the time is during the school week, is able to take the children to and from school; and
(c)if during the weekend, is able to take the children to their extra-curricular activities;
Limited to no more than four (4) occasions each term unless otherwise agreed by the parties.
The mother will be responsible for booking and paying for the children’s travel from Australia to New Zealand and will give the father 14 days’ notice of those travel details.
The father will be responsible for booking and paying for the children’s travel from New Zealand to Australia and will give the mother 14 days’ notice of those travel details.
Until the children are able to travel as unaccompanied minors the mother or her agent will accompany the children to and from Australia, with the mother to bear the costs of the accompanying traveller.
Changeovers during the father’s time with the children in New Zealand shall occur at the mother’s residence.
The father or his agent are to collect the children from Sydney Airport at the commencement of their time with him in Australia and deliver them to Sydney Airport at the cessation of their time with him in Australia to enable their return to New Zealand.
The parent with whom the children are living with is to ensure the children communicate by telephone or any other electronic means with the other parent each Wednesday and Saturday between 6.30 pm to 7.00 pm or as agreed and the children may contact either parent on any occasion they wish to do so.
Each parent is to ensure the children have access to a telephone or internet service as required to facilitate such communication.
Each parent is permitted to take the children outside the Commonwealth of Australia or New Zealand for the purposes of a holiday during his or her time with the children, provided that:
(a)The travel occurs during the school holidays and the travelling parent’s time with the children, unless otherwise agreed between the parties in writing;
(b)The travelling parent provides the other parent twenty-eight (28) days’ notice of the intended travel, including copies of all flight bookings and accommodation details; and
(c)The children are not taken to any country which travel warnings have been issued by the Department of Foreign Affairs and Trade of “Do not travel” or “Reconsider your need to travel” or any country which, is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
The parties do all acts and sign all documents to apply and renew the children’s Australian and apply for and when obtained, renew their New Zealand Passports, with the mother responsible for ensuring the children maintain valid New Zealand passports and the father responsible for maintaining their valid Australian passports.
In the event that father does not comply with Order 17 within seven (7) days’ of the mother requesting that he sign a passport application, the mother is permitted to obtain and renew the children’s New Zealand passports without the consent or signature of the father.
The mother is to hold the children’s New Zealand passports and the father the children’s’ Australian passports and the mother is to forward the Australian passport to the father after she has arrived in New Zealand.
Both parties are restrained from:
(a)Denigrating the other parent within the hearing of the children or any of them or from allowing any other person to do so within the hearing of the children or either of them;
(b)Discussing these proceedings with the children; and
(c)Physically disciplining the children or allowing any other person to physically discipline the children.
Each party must promptly inform the other parent of any medical emergency or significant illness suffered by the children and authorise the other parent to receive medical information about the children and comply with all instructions provided in relation to treatment of the children. All ordinary communication shall take place on My Family Wizard App or a similar parenting application except in the event of an emergency when the parent in whose care the children are, shall text the other parent.
THE COURT NOTES THAT:
A.The mother agrees the children will spend time with their paternal grandparents in New Zealand for at least one weekend each school term as agreed.
Property Orders
Within three (3) months’ from the date of these Orders, the husband is to pay the wife the sum of $218,405.
Simultaneously with the payment to the wife in accordance with Order 22 the husband shall to do all things and sign all documents to discharge the mortgage registered in favour of the E Bank (registered no. …42) with account number …92 (“the Mortgage”) securing the property situated at and known as F Street, G Town in the state of New South Wales (lot … in deposited plan …92) (“the G Town property”) and provide the mother with evidence of same.
On compliance with Orders 22 and 23, the husband be declared the sole owner of the G Town property.
In the event the father is unable, fails, refuses or neglects to comply with Orders 22 and 23 herein and unless otherwise agreed between the parties in writing, the parties shall forthwith do all acts and things and sign all documents necessary to sell the G Town property for the best price reasonably obtainable in such manner as the parties may agree but failing agreement as follows:
(a)Within seven (7) days from the date of the father’s default of Order 23, the parties do all acts and sign all documents necessary to appoint a real estate agent as agreed between them, or failing agreement, the mother to nominate three (3) real estate agents and the father to choose one (1) from the list;
(b)The property be sold by auction or as agreed;
(c)The father shall cooperate with all reasonable requests by the real estate agent including facilitating inspections and maintaining the home in good order;
(d)The price or reserve price for auction be agreed by the parties, or failing agreement, as recommended by the selling agent;
(e)The conveyance of the property shall be conducted by the husband’s solicitors;
(f)The net proceeds of sale shall be calculated as the amount remaining after payment of agents commission, solicitors fees, usual conveyancing adjustments and the discharge of the mortgage calculated on an outstanding mortgage balance of $491,474;
(g)In the event the mortgage balance at the time of settlement is greater than $491,474 that husband shall pay any difference in the discharge amount from his share of the proceeds of sale; and
(h)The wife to receive $218,405 together with interest calculated from three (3) months after the date of these Orders and the husband to receive the balance.
Within 14 days’ from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to close any jointly held bank accounts between the parties and transfer the balance remaining, if any, to the mother.
The father is solely responsible for the payment of the mortgage, council rates and outgoings for the G Town property up until the date of settlement.
Superannuation:
(a) A base amount of $493,964 is allocated, as required by s 90XT(4) of the Family Law Act 1975 (Cth), to the mother out of the interest of the husband’s Superannuation Fund entitled, Military Superannuation and Benefits Scheme.
(b)In accordance with section 90XT(1)(a) of the Family Law Act 1975, the Trustee of the Fund (“the Trustee”):
(i)Creates an entitlement on the part of the wife to be paid into her nominated superannuation fund in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(ii)The husband’s entitlement in the Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the father’s superannuation interest) is correspondingly reduced;
(iii)Whenever the Trustee makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 28 (a) of this Order in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and
(iv)Orders effect from the operative time and the operative time is four business days after a certified copy of the sealed Orders are served on the Trustee.
The after each party is declared the sole owners in equity and at law to all items of property and financial resources including shares, motor vehicles, chattels and money in back accounts held in their respective names.
Each of the parties are to remain solely liable for any debt or liability held in their name and, if required, release and indemnify the other party in respect of any debts, liabilities, demands or claims arising from any debt or liability their name.
If either party fails or neglects to sign a document required to give effect to these Orders then the Registrar of the Court is appointed pursuant to section s 106A of the Family Law Act 1975 (Cth) to sign any such document which a party has failed or neglected to sign.
The wife pay to the Legal Aid Commission of NSW costs for the Independent Children’s Lawyer in the sum of $6,271 and for the husband costs of $4,621 within three (3) months from the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Monro & Monro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6086 of 2018
| Ms Monro |
Applicant
And
| Mr Monro |
Respondent
REASONS FOR JUDGMENT
The matter of Monro is an application by a mother to permanently relocate the parties’ three children, X, born … 2010, and twins, Z and Y, born … 2012, to New Zealand to live, where both the parties extended families live. The father opposes the relocation of the children.
There was also an application for property dealt with at trial.
Mr Tockar of Counsel represented the applicant mother, Mr Ford of Counsel represented the respondent father, and Ms Karagiannis of Counsel appeared as Independent Children’s Lawyer.
DOCUMENTS RELIED UPON
The evidence tendered at the trial for the mother:
a)Further Amended Initiating Application, filed 10 January 2020;
b)Affidavit, filed 20 December 2019;
c)Financial Statement, filed 20 December 2019;
d)Affidavit of the maternal grandmother, Ms H, sworn 10 December 2019;
e)Affidavit of Ms J, filed 20 December 2019; and
f)Affidavit of clinical psychologist Ms K, filed 20 December 2019.
For the father:
a) Amended Response to Initiating Application, filed 23 January 2020;
b) Affidavit, filed 20 December 2019;
c) Financial Statement, filed 20 December 2019;
d) Affidavit of his partner, Ms L, filed 20 December 2019; and
e)Affidavit of the paternal grandmother, Ms M Monro, filed 20 December 2019.
The Family Report, prepared by Family Consultant Ms N, was dated 6 March 2019 and marked court exhibit 1.
The mother, father, paternal grandmother, maternal grandmother, Ms L, and Ms N were cross-examined.
The documents tendered were as follows:
a)Court Exhibits:
i)Exhibit 1, Family Report of Ms N, dated 6 March 2019; and
ii)Exhibit 2, balance sheet, filed 15 January 2020.
b)For the mother:
i)Exhibit 1, case outline;
ii)Exhibit 2, costs notice;
iii)Exhibit 3, schedule of dates children spent in their father’s care; and
iv)Exhibit 4, proposed Minute of Order.
c) For the father:
i)Exhibit 1, case outline;
ii)Exhibit 2, costs notice;
iii)Exhibit 3, documents relating to his retention bonus and Australian Defence Force retention bonus;
iv)Exhibit 4, subpoenae material G Town public-school;
v)Exhibit 5, documents from psychologist; Ms O;
vi)Exhibit 6, aide memoir.
d) For the Independent Children’s Lawyer:
i) Exhibit 1, case outline;
ii) Exhibit 2, costs notice; and
iii) Exhibit 3, section 81 of the Family Law Rules 2004.
SHORT RELEVANT CHRONOLOGY
The father was born in Australia on … 1979, currently aged 40. His parents moved between New Zealand and Australia, but he lived the majority of his life in New Zealand. The father’s partner, Ms L, is an American citizen. She is 27 years of age, and is currently on a bridging visa.
The mother was born in New Zealand on … 1979, aged 40. The mother is a New Zealand citizen.
The mother was an educator on a permanent basis in City P, New Zealand from 2001 to 2004.
The parties met in City P in 2004 when the father was visiting his family.
The father is currently a member of the Australian Defence Force with 20 years seniority and is a vehicle operator.
On 5 January 2005, the parties commenced cohabitation in Australia at Q Town where the husband is currently stationed.
The parties were married on … 2005.
In or around October 2005, the mother commences work as a casual educator at a series of schools in the Q Town region and is not a permanent resident.
In 2007, the father was deployed away from home for two six-month periods. One was overseas in that year.
In 2008, the father was deployed on a round-the-world trip.
On 20 December 2007 the parties purchased their first home in Australia at R Street, S Town, (“S Town property”) for $405,000 with the paternal grandparents providing the parties with a short term loan of $97,000 to assist.
In 2008, the mother sold her property at T Street, Suburb U, City P (“Suburb U property”) netting in New Zealand dollars $110,000. The mother used $97,000 of that money to repay the paternal grandparents and the balance of the monies was for the deposit.
Between 2009 and 2010, the parties lived in V Town, Queensland, for 10 months. The father commenced his career as a vehicle operator at this time. The mother worked again on a casual basis in Queensland.
X was born on … 2010.
In 2010, the father secured a position as an instructor at a Defence facility in Q Town, and the parties returned to the S Town property. The mother became a full-time parent upon the birth of X, and her parents financially assisted the parties, including paying for a cleaner and the like whilst the mother remained at home.
On … 2012, the twins Y and Z were born. Thus, this young couple had three children under the age of three years in 2012, a joy but a significant burden upon each of them, for the father carrying out his important full-time work and the mother being a full-time parent. From this point on, the maternal grandparents assisted the family by coming to Australia regularly as did the paternal grandparents although less frequently.
The parties sold the S Town property in August 2013 and purchased their property at F Street, G Town (“the G Town property”) for $415,000. The maternal grandparents paid for an au pair for a period of time. The parties also paid for an au pair to assist with the care of the three young children.
In 2014, the mother returned to work as an educator full-time but on a casual basis at G Town from 2014 to 2017.
In September 2016, the father was voluntarily deployed to City W, State AA, United States for six months. This was important to his career in increasing his skillset, an impressive and meteoric rise.
The former matrimonial home was renovated during this period of time, the mother was caring for three young children with the assistance of an au pair, working and also completing renovations to the home in the absence of the father. The father failed to acknowledge this significant burden carried out by the mother solely either in his material or his oral evidence.
On 7 September 2016, whilst the father is in America, the mother’s parents pay for her and the children to visit him.
In late November/early December 2017, the father travels to City W for two weeks for training, and whilst at that training, which was a compulsory training course, he met Ms L, his current partner.
Between 31 January 2018 and 9 February 2018, the father travelled to America again, ostensibly to watch the Super Bowl.
In April 2018, the mother is in New Zealand, visiting her family with the children. During this time, the father pays for Ms L to come to Australia and she stays at the former matrimonial home with him whilst the mother and children are overseas.
The parties separated on 21 May 2018.
On 23 September 2018, Ms L moved into the former matrimonial home with the father.
OVERVIEW
Ms L’s evidence was that in April 2018 when she first came to Australia, this was the first time she and the father had an intimate relationship. The mother and children were in New Zealand.
Prior to separation the father paid for Ms L to come to Australia, staying at the matrimonial home in a small town in Australia where the mother worked at a local school, and where she and the father were involved members of the community. The consequences of this decision by the father has been regrettable.
For the mother, the consequences of his decision has been extremely damaging to their relationship and her emotional state in being able to continue to live in Australia. He could have made a decision to spend time with Ms L in Canberra, Sydney, or anywhere else, but he chose to ensconce her at the former matrimonial home without the mother’s knowledge surrounded by their and their children’s friends.
The potential consequences of his actions for the children was put to the father by the Independent Children’s Lawyer. It was clear from his bowed head he had not even considered the possibility his children may have also been embarrassed at this behaviour given they were on holidays in New Zealand at the time.
The parties’ separation on 21 May 2018 was a very difficult time for each of them. This was particularly difficult for the mother, who laid much stock in fidelity, for whom the father was her first and only serious relationship, and the breach of trust that the mother felt by the father’s conduct has had repercussions as all adult decisions do. I accept the father was also suffering, and it was a tough time for him and the children. It is the consequences of these decisions I am now tasked to deal with.
The mother’s proposal is that she and the father share parental responsibility. That she and the children live in New Zealand near to where her parents live and initially with her parents in City P, New Zealand; that the children spend all of the New Zealand term school holidays with their father in Australia; that the children should have equal time in the New Zealand long school holidays with their father in Australia and their mother in New Zealand; and that upon the father giving the mother seven days notice of his intention to travel to New Zealand, he will spend time with the children when he is able in that country.
The mother also agreed that there be a specific Order for the children to spend time with their paternal grandparents, who live in the BB Region, New Zealand.
The father’s proposal is that the mother remain in G Town, New South Wales, where the parties and children currently live; that he and the mother share parental responsibility, a position agreed by the parents, and share the children equally; and that in the event the mother wishes to relocate to New Zealand without the children, the children to live with him.
At the commencement of the trial, the mother put forward a position that she may relocate to Sydney. However, it became clear that this was not a realistic proposal for her.
In oral evidence the mother was clear, compelling and distressing namely if the Court does not permit her to permanently relocate the children’s place of residence to New Zealand, she will go to New Zealand. Her words, “I must go home,” were poignant, heartfelt, and I accept that she will leave the children in the care of their father.
This was not a position put to the report writer at the time of the mother’s interviews in March 2019. Nor was this proposal canvassed with the mother by the report writer. The father’s position of not relocating to New Zealand even if the Court permitted his children to live there permanently was canvassed by the report writer but not a position of the mother relocating without the children. This is but one of the deficits in the report.
As in all relocation matters, I must identify the parties’ competing proposals and any other proposal that becomes apparent at the trial, assess those competing proposals applying the principles and factors relevant under the Family Law Act1975 (Cth) (“the Act”) to the facts as found or agreed, and after that process, determine which of the various proposals and possible scenarios would result in an arrangement that is in the children’s best interest.
It is clear that as Justice Boland said in Morgan & Miles,[1] the paramount consideration in any parenting matter is the best interest of the children. However, it is not the only consideration, and this is particularly so in relocation matters, for whatever decision I determine is best for the children, one parent will be bitterly disappointed.
[1]Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275.
Further, I am not bound by the proposals put forward by the parties and may generate my own proposals as Orders in the children’s best interest, however must put the proposals I have generated to the parties for their consideration during the trial.
EVIDENCE AND THE PRACTICAL REALITY
Looking at the practical reality of the parties’ proposals prior to an analysis of the evidence and then an application of the law to that evidence.
Scenario one. If I do not permit the children to live in New Zealand with their mother, they will live with their father in the absence of their mother in Australia, cared for by the father and his current partner, Ms L, and all their family, including their mother, who, on any version of the facts has been the children’s primary carer will be living in New Zealand.
Scenario two. If I accede to the mother’s primary position, the children will be living in New Zealand with her, their primary carer, surrounded, as she says and I accept, by their paternal and maternal families, and their father will continue to live in G Town with his new partner, Ms L and the children will be separated from him.
Scenario three. I accept the mother will not remain living in Australia and thus the father’s primary position of the mother remaining in Australia is not an option.
Scenario four. The father living in New Zealand. The father was questioned on whether he could move to New Zealand to work and be closer to his children. I accept his evidence that he will not move. He is an Australian citizen, a highly skilled and highly trained member of the Australian Defence Force with seniority of 20 years, is an instructor in the operation of a particular vehicle, of which, he said he may be the only one of two instructors if not the only instructor in Australia. He has risen through the ranks, and this rising in the ranks occurred during the marriage whilst the wife was the primary carer of three young children. His skill and commitment to his work is impressive and has resulted in him being highly skilled, highly trained and a highly valued member of the Australian Defence Force.
I also accept his evidence that due to his 20 years in the Armed Services, he has reached a seniority and a level of experience and expertise where it is unlikely he will be redeployed to other locations, as is so often the case in Defence Force personnel’s work history. I accept that it is likely he will remain at the Q Town Base, he will be able to continue to live at G Town, and I accept there is a degree of certainty and stability in his work.
This does not mean he cannot move to New Zealand to obtain work either with their Defence Force or in some other capacity, as his skillset and experience would be of value to any employer who needed trained employees to operate vehicles. Thus, although the father does not wish to move to New Zealand, and I accept he will not move to New Zealand and I understand the reasons for his position, I could see little impediment to him moving to New Zealand and being able to obtain work in New Zealand with his considerable skillset.
That option, consideration of the other parent moving to the new location, is an option I must consider, consistent with the decision in U & U[2] and particularly the decisions of Gaudron and Hayne JJ, even if I accept that the husband will not move to New Zealand as he tells me he will not.
[2]U v U [2002] HCA 36.
However the husband made no inquiries in relation to the possibility of a move, what it would mean in reality, a matter I will refer to later and I accept his position is clear. He wishes to remain in Australia, in the Australian Defence Force, and live at G Town with his partner, Ms L, and have the continued involvement in his children’s lives as he currently does – if not equal time, no less than the five nights a fortnight that he currently enjoys. The father effectively wants matters for him and the children to remain as they are for he is content and happy with his current circumstances both as to his living arrangements and work.
The mother’s position is entirely different. She is not a permanent resident of Australia however has residential status because she has New Zealand citizenship and, due to this, is unable to obtain a permanent position as an educator. As she indicated in her material, the mother desires to be a specialist educator. Whilst she is presently an educator, she needs to do further training and obtain a masters degree to pursue her chosen career path. It will cost a significant sum for her to obtain a permanent residency, between $7,500 and $10,000, and to obtain the additional qualifications she wants at around $23,000.
Whilst the parties have lived in Australia, her work has been of a casual and temporary nature, although I accept she has been in almost continual employment as a casual educator. Her work position in Australia is in stark contrast to that for her in New Zealand. In New Zealand, she has secured a permanent position as an educator to commence the second term of the 2020 school year, near to where her family live and where she proposes to live, temporary accommodation with her family until she is able to find her own accommodation, and the support of her extended family and the father’s family.
The option of the mother remaining in Australia now is not an option that is viable as she sees it and I accept her evidence on this issue was genuine and heartfelt. The mother has no ties to anywhere in Australia other than G Town where her husband and his partner now live in the former matrimonial home, a small community where she worked at a local primary school and where she and the children and the father were valued members of this small community.
Thus her position now that if I do not permit her to remove the children to New Zealand, she will leave the children in Australia, is a genuine position and I reject the submission by the husband’s counsel that the mother by so saying during her evidence, was holding the Court to ransom. It was clear to me from the mother’s heartfelt and truthful evidence, that she is desperately unhappy living in Australia since the breakdown of her marriage and the circumstances of the breakdown, has a longing to live in New Zealand to be with her family, and the reality has been her parents have come to Australia on no less than 19 occasions since the birth of X to assist her to care for the children.
The mother says she is isolated in Australia and there is significant evidence to support her position.
The family lives in a small community, G Town, her husband and his new partner live in the former matrimonial home, and she was particularly hurt, not just by the breakdown of her marriage, but the manner in which this occurred. I accept her evidence that she has at times felt and continues to feel extremely uncomfortable on many occasions, particularly when the father and his partner and the mother might come together, such as at the children’s school.
The mother’s desire to remove herself from this small community is clear and this has been a significant factor for her in forming her desire to remove herself from Australia and return to her home, as she describes it, in New Zealand and get on with her life as she sees it is best for her.
It is correct that parties can leave their marriages and their relationship and there is no odium or criticism of a party in so doing. However in this matter the manner by which the father went about ending his marriage knowing his wife’s strong belief system in fidelity and marriage was regrettable in hindsight. He had a foot in both camps. He had a relationship with Ms L overseas whilst telling the mother he wanted the marriage to work. I raise this only as he and his family would do well to recast how they currently see the consequences of this marriage breakdown and endeavour to look at it from the mother’s position as opposed to only the father’s position which is that matters stay the same.
The same is, the children and the mother remain in G Town, he continue to live in the former matrimonial home and enjoy the benefits of his happy new relationship, continue working in his excellent career at which he excels and move towards an equal time arrangement with his precious children. I am tasked to look at both parties’ proposals not just the position of the parent who wishes to remain or for things to stay as they are.
There was much made by the father and the paternal family of the mother stopping the father’s time, preventing him from spending time with the children, not supporting his time with the children or their relationship with him. Nothing could be further from the truth, and each of the adults who gave evidence in the father’s case, the father, his mother and Ms L, would do well to look at the objective facts, for the reality is as follows.
In circumstances where the father behaved very poorly at the breakdown of the marriage and showed scant, if any, regard for the type of person that the mother was and her nature being a gentle, kind, trusting person, as I apprehend Ms L is also, the mother has supported the children’s all important relationship with their father to the very best of her ability and has done an exemplary job in this regard.
To say that the mother has not supported his relationship with the children, is a fabrication, for he currently has and has had since May 2019 five nights a fortnight with his children, together with significant additional days, such as his birthday, the children’s birthdays, Father’s Day, special occasions, school events, and the like, without any Order of the Court. This arrangement came about by agreement.
It is hardly surprising that at the commencement of the separated and new world order for these parties, the mother was a little difficult, hesitant and reticent in the children spending time with the father. As I pointed out to the paternal grandmother on many occasions during this trial when she was giving evidence, the fact that the mother did not agree with her proposal, for example, the children in spending four nights with the paternal grandparents when they are in Australia and agreeing to only two did not mean she was preventing her from spending time with the children. Rather this was the mother putting forward what she believed was the best for the children in the circumstances at that time.
The father and the paternal grandmother were very similar people. If they did not get what they wanted, in their opinion, the other person was thwarting them. That is simply not the case. These children have a strong and established relationship with their father. That could not happen unless the mother supported that relationship 100 per cent, and she has done so. The father’s criticisms of her have fallen off deaf ears and did nothing to assist me to look favourably upon his capacity to promote a positive attitude in the children of a relationship with the mother if the children live with him in Australia and she lives in New Zealand. That is another aspect of this matter which was superficially dealt with in the Family Report and yet it has prominence in the decision I am tasked to make.
Initially the mother left the former matrimonial home and moved to rental accommodation, and the children spent alternate weekends with their father, together with Tuesday after school. This schedule changed and varied depending on the father’s work commitments, yet he and his mother could not make that concession.
It was a difficulty for me when the father said he wished to retain the former matrimonial home to provide stability for the children that he could not see the hypocrisy in that argument given it was the mother and children who left the home at separation and not him.
That was the time to ensure stability for the children and leave them in their home and in their bedrooms as he described it. They are now accustomed to living in two households. I could form a view that the stability the father was speaking of was his stability and not the children’s.
The father then acted in, what I regard, a very high-handed and poor manner with little cause. He cut off the mother’s access to joint funds on 22 June 2018, including credit cards, he withdrew $7,200 from the mortgage facility and put it into his E Bank account and removed the mother from the family private medical health insurance. I could not see on his material any justification for the steps he took at this time other than that the father spent $13,151 in travel for himself and Ms L between November 2017 and November 2018.
This conduct speaks of a difficulty for the father in recognising the importance of supporting the mother so that she can continue to parent her children to the best of her ability as she did throughout the marriage whilst his career took off in leaps and bounds. I have concerns regarding the father’s to capacity to support the children’s relationship with the mother over a distance such as Australia to New Zealand in regard to this past conduct.
On 23 September 2018, Ms L moved into the former matrimonial home with the father. The father showed no insight into what this meant for the mother or the fact that everyone in the small town of G Town would know this had occurred in his Affidavit all oral evidence.
X struggled significantly with the separation of his parents, and all adults report this. In September 2018, he began to see a psychologist, Ms O, and she has assisted him, and his behaviour is settling down quite well. Ms O noticed he was experiencing heightened emotional and anger issues and having difficulty controlling his bladder at night.
The mother commenced proceedings on 21 September 2018 for property and parenting Orders and the father filed a Response on 1 November 2018.
The father refused to allow the children and the mother to travel to New Zealand on 14 November 2018. His argument for this petty refusal that he was concerned because there were no Orders, fell on deaf ears. He was legally represented. New Zealand is a Hague Convention country. They had been to that country on many occasions, and the mother is not a flight risk. This was a poor decision by him, for which I will criticise him.
Similarly, the mother’s decision and insistence that Ms L not care for the children alone as she was of the view that Ms L had smacked X when nothing could be further from the truth, was a poor decision by her and has caused a degree of animosity and difficulty between the families which need not have occurred. Ms L’s explanation to the mother, being that she put her hand up to stop X hitting Z was plausible and correct, and, having seen Ms L in the witness box and the mother having met her, she would have known this lady did not and would not hit X.
Despite the fact the parties only separated in May 2018, in September 2018, the father was agitating for more time, having no understanding that the mother and the children needed to adjust not only to the new separated living arrangements, but the fact that Ms L had come into the scene. This showed limited insight by the father into the needs of the children, and his criticisms of the mother at this stage fall on deaf ears.
Due to the failure of the mother to be able to take the children to New Zealand in 2018 for spurious reasons, the children did not see their father, ultimately, for 25 days straight, and that decision by the mother was not child focused, nor in the children’s best interests despite her upset at not being able to take the children to New Zealand. The mother asked to take the children to New Zealand in March 2019 to celebrate their maternal grandmother’s 70th birthday. The father did not consent to that travel either and this was a non-child focused decision by him.
On 11 December 2018, the mother received a job offer for a full-time permanent position at C School in New Zealand, and that offer is extended until the commencement of these proceedings.
In February 2019, the father withdrew $2,510 from the mortgage facility to pay for his legal fees.
In July 2019, the father went to New Zealand with Ms L to visit his family. The children did not go with him.
On 27 January 2020, the mother’s last payment was received as her casual position has ceased.
Parenting
This is, as I said, a relocation case, and the decision of Boland J in Morgan & Miles,[3] is seminal in relation to how a Judge determines these matters. That decision was informed by the High Court decision of U & U,[4] and, in particular, the reasons for judgment of Gaudron and Kenneth Hayne JJ. As their Honours say in U & U at paragraph 24, relying upon the decision of B & B: Family Law Reform Act 1995:[5]
The long-term unhappiness of a resident parent is likely to impinge in a negative way upon the happiness and, therefore, the best interests of the child.
[3] Above, note 1.
[4] Above note 2 at [24].
[5]B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC 92-755.
I have formed the view that upon seeing the mother in the witness box and hearing her evidence, she is desperately unhappy living in Australia, and her closing comments under re-examination with her head bowed, “I just want to go home,” were poignant.
The mother commented that X, her eldest child, knows that she is happier in New Zealand, and it is fairly clear to me that the father is, at present, by far the most content and happy parent. He is living where he wants, doing a job he loves with a partner he loves, seeing his children and contra this for the mother who feels stuck, isolated and caged living here in Australia. From the mother’s position the father has it all, and she has little.
Justice Gaudron goes on to say at paragraphs 36 and 37:[6]
Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having the reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risks that her interests will not be properly taken into account. To avoid that possibility, it is essential that in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in the decision of AMS & AIF.[7]
[6] Above note 2 at [36] – [37].
[7] AMS & AIF (1999) 199 CLR 160 at 191 [95] per Gaudron J, 226 [196] per Kirby J, 232 [218]-[219] per Hayne J.
What is important about that obiter is that there is, apparently, no odium attached to a father, such as in this case, who has a wonderful job in a particular country saying, “I can’t move to the country where the mother wants to move because it will impact upon my job,” yet odium to a mother who says, “I need to go to this other country because of the job I have there and the support of my family.” As Justice Gaudron says, such a mother may be seen as in some way “acting selfishly,” when the reality is both parents maybe so acting. Children live with their parents and parents are entitled to maximise their happiness and career prospects and make decisions that they see are best for not only themselves but also their children. Children do not live in a vacuum but with adults whose choices and behaviours have consequences for them.
I accept the father does not want to relocate because he is very happy in Australia. He has a job, a home, a partner, and he lives where he wants to live. I accept the mother will not remain in Australia as she is desperately unhappy in Australia, where she lives in a small town, with no permanent work, no family support, and can come into daily face-to-face contact with the father’s partner.
Ms L gave pointed evidence that Z said to her “We can’t go there,” and when asked why not, Z said, “We might run into Mum, and you know Mum does not like you.” It is patently and palpably clear that that is how it is for the mother, and the children are aware of it. How could they not?
Justice Hayne made it abundantly clear in U v U how a Judge is to look at these matters and said the following:[8]
It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Part VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
[8] Above note 2 at [176].
This passage describes, precisely, the matter before me. It is clear to me what the competing proposals are, and I will now commence the process of evaluating them.
THE MOTHER’S EVIDENCE
Going now to the mother’s evidence. The mother was clear that she does not believe the current situation is in the best interests of the children because of her difficulty living in a small town faced day-to-day with the father and Ms L. The mother said, “If I can’t take the children to Sydney, then I will have to go to New Zealand,” and she became very upset. She said, “Sydney is not the best proposition, realistically, and I want to go home,” and that was palpably clear.
Much was made that the mother had not facilitated time, the parties do not communicate well, and that the father had missed out on time with the children. I do not accept the submission that the mother has not facilitated time. I accept they do not communicate well.
The schedules prepared by Mr Tockar on behalf of the wife indicate that the children have spent the following nights in the father’s care:
a)January 2019, 17 nights;
b)February 2019, four nights;
c)March 2019, four nights;
d)April 2019, 13 nights;
e)May 2019, nine nights;
f)June 2019, 10 nights;
g)July 2019, 13 nights (half of the school holidays);
h)August 2019, 11 nights, including the morning of the twins’ birthday;
i)September 2019, 11 nights;
j)October 2019, 15 nights;
k)November 2019, 11 nights;
l)December 2019, 19 nights, including Christmas and New Year’s Eve; and
m)January 2020, seven nights.
In addition, the father has spent considerable day time with the children, such as ballet concerts, soccer games and school assemblies.
This it is simply wrong to assert, as the father and his mother asserted in the witness box and in their respective Affidavits, that the mother has prevented the father from seeing the children.
I accept there was a significant disagreement over the 2018/2019 Christmas period and although the father did not see the children for 25 days he had them for 17 nights in January 2019. I accept that he may not have had the children when he wanted them, but he did have them in his care and spent good quality time with his children.
The paternal grandmother’s evidence that, “It is obvious, due to Ms Monro’s behaviour, if she’s allowed to relocate to New Zealand with the children, we would be denied access to them”, is just patently wrong. Nothing could be further from the truth. I was impressed by the mother’s commitment to the children spending time with their paternal family, and her concession to agree to an order that this occur was further proof of this. The mother sincerely wants the children to be, to use her words, surrounded by their maternal and paternal family in New Zealand rather than the isolation they currently suffer from their extended families in the difficult situation the mother currently finds herself.
At separation and in September 2018 when he and Ms L commenced living together the father wanted additional time. The father demonstrated no insight or understanding that they had never experienced regular periods in his sole care of any length or done so with his new partner. Yet the father chose to criticise the mother for not providing him with the extended time he wanted with the children around this time.
This lack of insight into the consequences for other people of changed circumstances is apparent in the father. His desire to get what he wants is overwhelming as is apparent from his Affidavit and oral evidence:
I never agreed to the arrangement of time with the children that were enforced on me.
It’s my belief Ms Monro has tried to reduce my involvement with parenting the children wherever possible.
This enforced arrangement of time was initially alternate weekends, an evening meal one day a week and later then five nights a fortnight and there can be no criticism of the mother rather a lack of insight by the father.
Further, the father cited as an example of the mother attempting to minimise his involvement with children was that she had put an emergency contact list into the children’s bag which did not have his details on it. The mother’s evidence was that the emergency contact list was for the father and Ms L to have in the case of an emergency. Unfortunately, the mother did not write on that emergency list, “This is for you.” In hindsight, this was a something she should have done however father’s immediate reaction was the mother attempting to minimise his involvement with the children. This evidence concerns me as to his capacity to promote a positive attitude for the children to their relationship with their mother if they are in his sole custody in Australia.
The father complained that the mother will not engage with him. He had no thoughts on how this could be addressed and did not understand that his behaviour has fuelled the mother’s inability to engage with him, for example. He introduced the children to Ms L on Skype in August 2018, one month before she was to arrive in Australia, knowing what a sensitive issue this was for the mother. The manner by which he went about introducing the children to Ms L was regrettable.
In cross-examination, he could not comprehend the position he had put his children in, in them not being able to go home and say to their mother, “We met Daddy’s new girlfriend today on the Skype phone.” He showed no understanding of the need for the children to have been prepared by their mother and father for this event the introduction of a new and significant person in the father’s life. The needs of his children and the position from their perspective was lost on him.
The father did not accept the clear evidence that whilst he was obtaining his qualifications, working at night, doing his courses and at times travelling overseas the mother was the one doing the hard yards with three young children at home. He was asked do you accept that, “this is how the mother saw your lives when the children were young”. His answer was, “no”. Later he said she had the au pair to help her. The father’s answers on this important issue demonstrated his inability to look at their joint life from the mother’s perspective.
This is a significant deficit in a parent who tells me he is able to parent children solely and maintain their all-important relationship with their mother over a long distance.
At paragraph 223 of the father’s Affidavit, the father said:
Ms Monro has made every effort not to increase my time with the children, which not only will reduce the burden on her but has been a constant desire of the children and recommended in the Family Report.
The recommendation in the Family Report is somewhat akin to the time that the father is currently having, which is five nights a fortnight being significant and substantial time. The father has completely missed the point. His time with his children is excellent. His time has increased to where it is in a staged process so that the children could become used to the new world and living arrangements and his partner Ms L. The mother has done an exemplary job in ensuring in very difficult circumstances for her that the children’s relationship with their father was not only maintained but has flourished. The father could not see this at all and made no such concession.
The mother said she found communication directly with the father tricky. That it was abrupt and abrasive. That she believes wholeheartedly that matters will improve when she is in New Zealand as she will be happier and supported by her family. I accept that evidence. The children can communicate with their father on their own, and there are always going to be difficulties with telephone and Skype communication at times however as the children age this will become less problematic.
The mother has also behaved in a less than appropriate fashion at times. In 2019, she turned up to the father’s house with a woman who was an educator at G Town School, as a support person. That was a very poor decision by her. This woman had to be spoken to by the principal and told to not get involved in personal disputes.
However, that is also further evidence of the difficulty living in a small community. Her circle of friends is also his circle of friends, which is also the community’s circle of friends and this evidence coupled with what Z said to Ms L, “We can’t go to the shops, Mum might see you, she doesn’t like you,” supports the mother’s position that she feels like she is living in a pressure cooker.
It was inexplicable to me why the mother had not obtained permanent residency. However, as she said, “I didn’t think I needed it. I was in a marriage. My husband was a citizen. He was working. I was able to obtain casual work.” This was evidence that the father agreed with saying it had not been an issue until separation.
It was put to the mother whether she had thought about the consequences for the children of not seeing their father five nights a fortnight as they currently do. Her answer was this, “He went to [City W] for six months. He volunteered to do it. It was good for his career. They did well then”.
The difficulty for me with this evidence is that the parents were still together at that time in an intact marriage, as far as the children knew, and he came back to live with them at their home. That is a different scenario and circumstance to what is now being contemplated. However, I accept the mother’s position that the children have had long absences from their father and adjusted well to it. This is not the case for the children and their mother. There has been no long absences.
The mother agreed they have a warm, loving relationship with their father and will miss him, and they would miss her as well. The mother admitted the psychological and emotional loss that the children would feel if she went to New Zealand without them, and also that they would suffer some harm by not spending the time they currently do with their father. The mother demonstrated insight and understanding of these matters for the children.
The mother was asked how she would support the children’s daily time with their father if in New Zealand. The father says telephone contact is not smooth and rarely happens. The mother said the children do FaceTime with their father, which they are able to do on their own on their iPad, and that the children do go into the bedroom to be together, and they all enjoy talking to their father at the one time. The mother said she will make sure the children contact their father at least once a week whilst in New Zealand, that they will have their own devices for school and they will have freedom to contact him at any time.
There was criticism levelled at the mother for not wishing to attend mediation and her reason was that she did not think it would be an open process and that it would be one sided. I do not accept her vague evidence that that the father has behaved in a violent, aggressive or threatening manner towards her. I accept there was a significant degree of unhappiness in the marriage, and the manner by which the marriage broke down and the end of the relationship was devastating for the mother and she struggles to communicate with him face to face. However, I do not see that the father has behaved as the mother has said, and I do not find there is any risk of harm to the children in their father’s care from his behaviour.
The children are doing very well at school, a testament to the parents. The Report writer said the children did not seem to be aware of the dispute between their parents or the mother’s ultimate application, although X knew his mother wanted to go to New Zealand, and the mother confirmed that X knew she was happier when in New Zealand. This too is remarkable and a testament to the parties ability to shield the children from their dispute.
The mother said she is trusting the father more with the children now because he has stepped up to the mark, and it is clear he is an excellent parent. He is loving, supportive and fun, and the children adore him. That is apparent. The mother could not have any concerns for the children’s safety in their father’s care. The mother talked about how many things the father does for the children and spoke positively of him as their father. The mother said she will do her very best not to diminish their relationship with him if she moves to New Zealand, and he will have to put effort in to seeing them and that it won’t be as easy as it is now.
Ms L became upset in her evidence when she learnt that the mother had accepted that she was protecting Z when putting her hand up to X and had not hit him. This is the difficulty with believing everything children say in a matter where there is conflict between their parents.
It is clear that X has separation anxiety. His father noted it, and Ms O said he had a 94 per cent score on that area. Thus, being separated from either of his parents will be traumatic for X, who reacted badly at the first separation. The consequence for X of not having his mother in his life daily are unknown and the father, showing some insight agreed he could not contemplate what it would mean for the children to not have their mother in their life as they currently do.
The consequence for X of a long absence from the father is known. He managed well when the father was overseas for almost six months in 2017. He has with therapy managed his parent’s separation. This is not the case for an absence from his mother it is an unknown. The twins did not have the same issues as X at separation or at any time.
The mother sees her own psychologist once a month. If she stays in Australia, she will have to vacate her premises because she has been given notice on her lease, and the children will have to move.
The mother became very upset when it was put to her, “How are you going to explain to the children the Order that’s made, whether they stay in Australia or go to New Zealand?” She said, “I’m not sure.” It is clear that both parties will need assistance from a trained therapist to assist the children to understand whatever decision is made by the Court.
I accept that the mother did not communicate with the father about X’s sessions with Ms O. The mother finds communicating with him directly very difficult, and the father has to accept this. There was no impediment to him directly dealing with Ms O and he spoke to her on the telephone but did not accept her offer of a session with him.
THE MATERNAL GRANDMOTHER’S EVIDENCE
The maternal grandmother gave evidence through a Japanese interpreter. She was highly critical of the father taking the children water-skiing when they did not want to, and complained they were they were cold and wet and the father was careless of this. I do not accept the father would behave in this fashion with his children.
The maternal grandmother had three good things to say about him; that he was a good sportsman, often did the gardening, and he was good at mechanics. She did not describe any of the things the children describe, a loving, fun, caring, great father. She and the father do not get on well and her evidence did not assist me. I accept that she has not spoken badly of him to the children.
The mother had a difficult relationship with her own mother, who, I apprehend, is a difficult woman. The mother had a better relationship with the paternal grandmother throughout the marriage, and both she and the paternal grandmother agreed this was the case.
In the last nine years, the maternal grandparents have visited Australia 19 times. These visits were extensive visits of more than a week. The maternal grandparents have been very supportive of their daughter, and I accept they have advanced her sums of cash and that she owes them a significant debt.
Ms L said that the maternal grandmother glared at her at a soccer match and this made her feel uncomfortable. I accept the grandmother’s evidence that she didn’t have her glasses on, and she didn’t know who Ms L was.
THE FATHER’S EVIDENCE
The father agreed that the children’s extended families, particularly the maternal family, played a significant role in the lives of the children. The father hesitated when he was asked, “Do you agree that the mother was, historically, the children’s primary carer?”
There could be no other thing than that. For some reason, the father would not initially make that concession and when he did so added, “I’m not sure if the children have more emotional attachment to me or her”.
Mr Tockar said:
But you work full-time, and the wife works sporadically.
Instantly, the father said:
She worked full-time.
Yet as Mr Tockar put to him that the words he used in his own Affidavit were:
She was a stay-home mum when X was born. Once an au pair came on the scene in 2014 and the twins were about three, she commenced some full-time work.
Those first three years of a child’s life, the father may not know, are crucial to primary attachment and bonding. The father would not concede that he was in City W for six months from September 2016 to March 2017. “No,” he said, “five months and one week.”
He would not concede that the mother solely parented the children because they had hired an au pair. Clearly, she carried out the role of parenting in his absence.
He would not agree that he had returned back to State AA in November/December 2017 for two weeks. He said it was 10 days. He found it difficult to make a concession if it supported the mother’s role.
If the mother moved the children to New Zealand, there is no doubt this will have an impact on his relationship with the children. The father said, “I would want all the holidays with the children, but I would have difficulty taking them because of leave.”
However, the facts are that he has three months long-service leave and annual holiday leave, Ms L to assist in caring for the children, and his mother has, on occasions, come over and care for the children and confirmed she would do so again.
Despite his evidence there is no reason that the father cannot accommodate or arrange for the care of the children for their all New Zealand school holidays in Australia. He can purchase leave, take leave without pay, or use his long-service leave. Clearly, he can have the children in Australia for all the New Zealand school holidays if that be the Order I make, and he can make the arrangements for this to work.
He agreed that the mother living in New Zealand and the children in Australia would have a negative impact upon them, but quickly added, “As it would if it was reversed.”
The father had not put in his Amended Response any proposal for the time he wanted to spend with the children if the Court agreed with the mother’s position to remove them to New Zealand. This was an interesting oversight and supports the position I have reached. The father has difficulty in seeing a position from any other point of view than his own. I do not think he could conceive of the children living in New Zealand, and that is clearly a possibility and one option I must consider.
The father would not concede initially that the mother was desperately unhappy. He said, “I don’t know.” I reject that evidence. After seeing the mother in the witness box, reading her material and the Family Report, it is clear that the mother is desperately unhappy. The father said he appreciated that living in a small town and he and Ms L living in the former matrimonial home was difficult for the mother. However, although the father said those words, I could not detect in his oral evidence or Affidavit any allowance for the mother of this difficulty rather criticisms of her. There is a significant self-focus in the father, which is necessary, given the job he does. When he is a vehicle operator, he is in control, but he not in control of the lives of people that he loves and who surround him.
Further, the father would not concede that the mother felt cut off, and I remonstrated with him at that point. It was not for him to tell me what the mother did or did not feel. I accept she feels cut off. The fact the father thinks she has a good circle of friends does not mean she does not feel cut off. She is cut off from his support, the life she knew and the comity of the marriage she had very important matters to this mother. A circle of friends, as wonderful as it is, does not replace a committed, full-time, co-parenting relationship that the parties had when they were an intact family.
For reasons that I do not understand, the father and his mother were both of the view that if the children lived in New Zealand, they would not maintain their relationship with the paternal family. There is not one jot of evidence to support that. I accept that the mother and the paternal grandmother’s relationship has deteriorated. It must, given that the paternal grandmother fully supports her son and could not see how difficult this had been for the mother.
Secondly, the mother has agreed to an Order for the children to spend time with their paternal family in New Zealand, and the father’s parents can come from New Zealand to spend time with them when they are with him in the holidays to help him and Ms L care for them.
I have difficulty in accepting the father’s capacity to support the children to maintain their relationship with their mother if she is in New Zealand and they are in Australia. That matter was not explored by the report writer. Given the negative view the father has of the mother, I am struggling to see how he will support this relationship.
The father said the relationship with the wife, his family and his mother deteriorated when the wife changed solicitors, and this was confirmed by Ms L. There may be truth in that. However, once these proceedings are over and if the mother is living in New Zealand, I have absolute confidence that she will promote that relationship. The mother does have the children’s best interests at heart and she agreed with the love they have for their paternal family, and she will ensure that they see them far more than they have been able to see them when living in Australia.
At paragraph 105, there was a very pleasant email from the mother to the paternal grandmother about the time of the hearing:
Hi Ms M Monro, wondering if you’ve already booked flights? If so, Mr Monro usually has the kids Thurs nights and every second weekend. That Thursday 30 Jan - Mon morning 3 Feb should be his weekend with the kids. I need to confirm with Mr Monro about this date, but I’m sure the kids would love to see you then? Let me know. Happy birthday to you both for Friday. I’ve reminded the kids to give you a call from Mr Monro’s. Hopefully they will remember…
The paternal grandmother said, “But I had written to her earlier and asked her if we could help out this week, and she said she had it sorted”.
This was a criticism of the mother and I do not understand the complaint. The paternal grandmother could not care for the children during this trial as she was to give evidence in the trial. Merely because the mother does not agree with a proposal put to her and counter proposes does not indicate she does not support a relationship with the father or paternal family.
It was put to the father that this hearing was a difficult time for the mother. His answer was, “For both of us.” I remonstrated with him. “We didn’t ask about you.” This is another example of the father’s self-centredness.
Although the mother acknowledged in her Affidavit what a great relationship her children have with the paternal family, the paternal grandmother raised issues about not being able to have the children in New Zealand at her home because she runs a Bed & Breakfast, the fact she did not have the funds to stay in City P to see the children, only her husband went there she did not etc. It was the grandmother putting up hurdles about why she could not spend time with the children in City P and at her home in the BB Region. After hearing this evidence I will not make the Order for time with the paternal grandparents in New Zealand as this was not happily accepted by her, however I will note it is the mother’s intention to do so.
It was put to the father that the mother remaining in G Town at the expense of her happiness and for the father to have equal time with the children whilst maintaining his excellent job was not an Order in the children’s best interests. The father’s evidence was clear, “Yes, that is an Order in the children’s best interests”.
Going to the wise words of Hayne J in U & U:[9]
… It must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes not to the needs of the child but to the wishes of the father to pursue his life in a place of his choosing.
[9] Above note 2 at [176].
That statement by the father is his seeing the children’s best interests filtered through his eyes, as all parents do. However I am concerned his best interests is what is his paramount consideration, not his children’s and this may be understandable given what is at stake.
His Defence contract expires in June 2020, and he can move to New Zealand. There is no reason he cannot move to New Zealand. His skillset is impressive. The father said in cross-examination that it was better for him financially to go to an open contract at the end of June, which is what he intends to do. He considered many years ago, in 2005, of doing a stint in the New Zealand Defence Force. I accept that is a long time ago and that although early on, he had missed his family and thought about going to New Zealand after the parents had purchased their property at S Town, he changed his mind.
The main reason the father gave for not removing himself to New Zealand was set out in paragraphs 211 and 212 of his Affidavit. He currently operates a specialist vehicle which is not something that the New Zealand Defence Force has capability in. He does not have experience in the specific types of vehicles they operate, so he could not get a direct transfer. If it did happen, it would include a substantial pay cut, 50 per cent of his current remuneration package, and his seniority will be lost. He might be deployed away and wouldn’t have the stability he now currently enjoys, 20 years with the Australian Defence Force. I accept that is likely to happen, but there was absolutely no evidence on this issue other than what he said and the father did not take a step to obtain objective evidence to bring to the Court, to show what he believes is the truth, and neither did the mother.
The father agreed with the mother’s proposal for the school she has put forward that the children attend in New Zealand. The father wants to be able to ring the children any time he wants. I indicated to him that is not an Order I would make, but the children can ring him any time they want, and I satisfied the mother will ensure this happens.
The father said he would help the mother financially and consider paying $23,000 towards her education, help her costs towards her permanent residency, but, at this stage, to use his words, he is drowning under debt.
There were some concerns about messages the father had sent about the mother needing to harden up when disciplining the children and give them a good smack, that she had never been properly able to smack the kids or the dogs, and he was clearly exhorting her in that email of 2016 when he was in City W, to be physically violent towards the children and he cannot escape that meaning.
I find the father has a much firmer, more direct approach, while the mother is gentle and passive person, somewhat like Ms L. He said that the mother was gentle, and he agreed it wasn’t in her nature to smack the children. I accept the submission by Mr Tockar that the father significantly underestimated his behaviour in the past towards his children and the mother.
Although I do not find that there has been family violence at a level that I would have regard to under the Act, there have been, at times, significant differences in the parties’ treatment of the children, and it is clear the father has believed in physical and corporal punishment in the past.
The father has acted in what I regard as a very self-focused way in many aspects and he would not agree that on many occasions in the marriage, he pursued his own interests, and the children were left with their mother. It is clear he did this and he could not have risen in the ranks as he has if he did not do it. This is not a criticism but a reality he would do well to accept which has had consequences.
The father did not attend X’s swimming carnival on 5 February 2019. His evidence was, “I did not know parents could attend children’s swimming carnivals. I thought I couldn’t”. I asked him, “Is there a school App?” The father said he did not know about the school App. These statements support the mother’s position and the clear evidence that she has been the children’s primary carer.
Happily for the father he is now playing catch-up however he has recreated the history of their married life and likened it to what is happening now when it is clear the mother did the lion’s share of parenting and homemaking, while he pursued his very important and impressive career. He is a wonderful father, and no one is taking that away from him, but you cannot change the history of a relationship.
Insightfully, the father said he could not imagine how bad it would be for his children if their mother left them in Australia and he did not know how the children would deal with that level of trauma and he is correct. Both parents agreed that they would seek professional assistance to explain to the children the consequences of whatever decision is made.
The father was asked how he would encourage a relationship with the mother and the children if she was in New Zealand. He said he would Skype and telephone the mother regularly, share daily experience with the mother, let the children share their daily experiences, create a social media page with their mother, and send videos. He apparently recently sent a video of X water-skiing to the mother. The father also said that he would be flexible with the mother if she came to Australia so she could see the kids. He had photographs of the mother in the home for the children. This was impressive evidence.
The father gave me a history of what he had achieved in the Defence Force. In 2010, he achieved an A-category instructor. When the parties were together, he was operating specialty vehicles. He told me:
There’s only 10 of us in Australia and only five on the [vehicle I operate]. Therefore, they’re not going to move me around because they’d be wasting the resource they have put money into.
I accept this evidence. He was a Captain initially and is now an Instructor. He has had two years of sea time, been an Instructor, trained in the rocket system. He went to America on the last occasion before the Super Bowl to train in the use of the equipment on the vehicles. He says, “There’s maybe only two of us in Australia at this level”.
One does not achieve that level without putting significant commitment into your workplace and ipso facto, if he’s doing that, the mother is caring for the children. The father’s failure to acknowledge the significant support the mother gave him to achieve this impressive qualification did him no credit.
Ms L was very nervous when giving evidence, most concerned at being thrown into this awful melee. I found her nothing other than a kind, compassionate, and gentle woman who would always care for the parents’ children, and it is a significant pity that the mother does not like Ms L or Ms L does not like the mother because the fly in the ointment is the father, and not the women in his life.
CROSS-EXAMINATION OF THE EXPERT REPORT WRITER
On the last day of the trial, the Expert was cross-examined on her report marked Court exhibit 1. She confirmed, under cross-examination from Mr Tockar, that the children have a good and close relationship with both their parents, however, importantly, she added:
The children would struggle to be away from their mother for lengthier periods, for two weeks, and the like.
She agreed that a meaningful relationship was not necessarily dependent upon time, but whether it was important, of consequence, and significant to a child, and there is no doubt that the relationship these children have with their father is important, of consequence, and significant to them.
I find that if the mother had not supported these children having the important, of consequence, and significant relationship with their father, they would not have that relationship, and they would not enjoy five nights a fortnight in his care, half of the school holidays and additional time by agreement by the parents.
It is clear from case law that it is a wrong conclusion to draw that the only way a meaningful relationship can be maintained is if the parents are physically proximate. The recent Full Court decision of Rochford & Fitzhugh[10] was an Appeal by a mother of a Federal Circuit Court Judge’s decision to not permit her to relocate. The mother claimed his Honour erred in proceeding on the basis that a relationship which is something less than optimal cannot be meaningful. For there is no doubt, and it was conceded by the mother that if she removes the children to New Zealand, they would be upset, perhaps traumatised for a period of time, and their relationship with their father would change.
[10]Rochford & Fitzhugh [2019] FamCAFC 218.
Similarly, if the children remained in New South Wales with their father, and their mother was in New Zealand, the exact same circumstances perhaps even more profound, given the report writer’s evidence would ensue. It is not the Court’s task to strive to ensure by Order that children have an optimal relationship with their parents, rather, a meaningful relationship, and using the words of their Honours in Rochford & Fitzhugh[11] the majority decision:
Assessing what is developmentally ideal for a child in terms of their relationship time with the parent, and that which might be less so, but adequate, and the practicalities of life are addressed.
[11] Above note 9 at [37].
This is the dilemma. I am satisfied that the wife’s desire to move to New Zealand is sincere, profound and has been a long-term desire of hers since her relationship with the husband broke down. The submission by Mr Ford on behalf of the husband that the mother is holding this Court to ransom is not accepted by me. I accept her need to live in New Zealand surrounded by the support of her family is clear and apparent, and this was the position the Independent Children’s Lawyer also took.
The basis of the father’s case as to why there ought not to be a relocation, appears to be that if the children were to move to New Zealand, there will not be, or there is a very high likelihood, there will not be a meaningful relationship between him and the children.
In the matter of Rochford & Fitzhugh, the child was two and a half years of age, the mother had managed to maintain a relationship with her older child with his distant father, there was a consistent track record, and their Honours were of the view that his Honour erred significantly in not allowing the mother to relocate. The law does not mandate an optimal relationship, but a meaningful one, as discussed in the decisions of Champness & Hanson[12] and Godfrey & Sanders.[13] The term meaningful is reflective of the particular circumstances in each case, and the Court held his Honour fell into error by effectively saying this could only occur if the parties lived in geographical proximity.
[12] Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96.
[13] Godfrey & Sanders (2007) 208 FLR 287;[2007] FamCA 102.
In this matter, the Family Consultant went on to say and agreed that, given the age of the children, and the mother’s proposal that they spend long periods of time with him, all the school holidays, and the like, that although the time is much less frequent than it currently is, their relationship with him will still be maintained.
The Family Consultant’s position was that the significant and substantial time, the time the children currently enjoy with their father, is still the best for the children, and that it is the optimal outcome. To achieve this the mother must remain Australia or the father live in New Zealand and both parents have been clear they will not be taking up those options.
This recommendation ignores the now practicalities of the matter. I accept the mother will be moving to New Zealand even if I make an Order the children are not permitted to relocate, and that is a practicality and a factor I must have regard to under the case law. It was clear that at the time of the Expert report, the mother was not saying she would go to New Zealand without the children, and that this is a position the mother has now come to. However this option should have been explored with the mother by the Expert.
The Expert agreed that it was very difficult for the mother living in G Town, it has caused her to stress, and she hoped over time she and it would get better yet it has not. In fact, it has worsened. Z has told Ms L on one occasion that she did not want to go to the shops with her as she was worried she would bump into the mother, and noted that the mother doesn’t like Ms L. Clearly, that is still an ongoing issue for the mother. The Expert agreed that it would likely to be that her stress would be exacerbated if she was required to remain in G Town or felt she had to remain in G Town, and this would have a negative impact on her parenting.
The mother said she is moving to New Zealand no matter what, and if she does move without the children, they live with their father. The mother conceded there was no risk of harm to the children in their father’s care, however that if she moved to New Zealand without them, they would suffer trauma and harm.
The mother had conceded if the children and she went to New Zealand, they would suffer trauma, and they would miss their father.
The Expert was asked to make a series of assumptions which were the actual facts of the matter by Mr Ford as above namely the likely scenarios and the mother’s concessions as follows:
Knowing these are the facts, do you hold to your recommendation, on balance?
This recommendation is at paragraph 19 which is as follows:
Whilst there is merit to Ms Monro’s proposal, in terms of her own psychological wellbeing, it’s not clear that a move, at this point, would be in the best interests of the children, and that they should remain in the G Town area in the primary care of their mum, but spending substantial and significant time with their father.
Even in light of the mothers’ evidence that she would not remain in Australia the Expert maintained her recommendation.
I found this adherence irreconcilable with her evidence to Mr Tockar that the children would struggle to be away from their mother, for two weeks or more, and that in adhering to her recommendation, the report writer was putting the father’s position, to optimise his relationship with his children, or for the children to have the benefit of an optimal relationship with their father as her paramount consideration, and this is only aspect of what I am to consider. I must, weigh up all the evidence, the consequences of the parties’ competing proposal, apply the law and the Act to the facts in order to determine what is an Order in the children’s best interest.
It is contradictory, to me, to agree or make voluntarily a statement that the children would struggle to be away from their mother for more than two weeks, and then make a positive finding that it is an Order in the children’s best interest that they remain in Australia in the absence of their mother to enable their relationship with their father to be optimised.
The reality now is, the only way the children can spend significant and substantial time with their father and not be away from their mother for more than two weeks is if he removes himself to New Zealand with the mother and the children. The father is implacably opposed, and put forward very little, if any, evidence of his capacity to move to New Zealand at any point in time, being currently or into the future.
I accept his hard-fought for position in the Australian Defence Force and his years of service, and his seniority and his income are very important, and the children benefit from that with child support. But he made no inquiries whatsoever to assist me to understand what it would mean for him and if he could transfer to New Zealand. This was not an unreasonable expectation if his priority be the benefit to the children of a meaningful relationship with him, no matter what.
I accept as the Expert opined that as the children became older, and if they were living in New Zealand, it would be harder for them to come to Australia for significant periods of time in school holidays because they would have their own friendships. That is an issue which may result.
The Expert agreed that the fact the parents had been able to reach an agreement for the children to spend five nights a fortnight with their father and other additional time augured well for the future.
Further, as the children were unaware of the dispute between their parents this too augured well for the children, and this was very impressive parenting from both of them.
It was also agreed by the Expert that the father’s capacity to care for the children full-time if the mother went to New Zealand without them was very much dependent on he and Ms L’s relationship continuing.
It was put to the Expert that the father’s Application, namely, the children live with him being a consequence of the mother removing himself to New Zealand would result, in what I regard as an absurdity, namely the children living in Australia with their father and Ms L, and all their family, including their primary carer, living in New Zealand.
The Expert had not considered this absurdity even when the mother’s changed position had been put to her.
Similarly the fact that the mother at present is soon to be homeless, does not have a job, was not considered by the report writer as a factor outweighing the father’s relationship with the children staying as it is. Yet this is an intolerable situation for her to be in in a small town, when they are both exceptional parents.
The Independent Children’s Lawyer submitted the following options: that the mother relocate to New Zealand with the children; that the mother leave for New Zealand without the children; and that they remain in Australia with their father.
The Independent Children’s Lawyer submitted the latter option was fraught with difficulty, and the mother and the father to be fair could not really see it working when they were pressed on this.
The mother could not see how the children would manage without her, the father’s evidence was consistent on this point and the report writer in reality agreed with this given her evidence of the children not being able to be away from her for more than two weeks at present.
Another option generated during the hearing, was that the mother would move away a little distance from G Town, the father would pay her $1,000 towards her permanent residency, and when this was obtained she would be able to get permanent work, at least, as an educator, if not, what she wanted as a specialist educator.
Given that the cost of the residence application is about $7,500 to $10,000, that is not a practical or realistic scenario, on the offer the father made. Although this was the preferred position of the Independent Children’s Lawyer, they could not support it, given the paltry amount of money the father agreed to pay.
In final submissions, the father said he would now agree that an amount of money sufficient to pay for the mother’s specialist degree and permanent residence application, an amount of some $33,000, could be set aside from the property settlement.
However the father seeks to retain the home. He tells me he is drowning in debt. I cannot see how he can raise another $33,000 to fund these costs and buy the mother out.
His desperate position put at the conclusion of submissions is fraught with difficulty and results in each contributing equally to these costs and neither the Independent Children’s Lawyer nor the mother were able to respond. This is a matter the father should have dealt with some time ago not at the end of the trial.
Ultimately the Independent Children’s Lawyer proposed the mother and the children relocating to New Zealand is the only Order which would allow the mother to continue her role as primary carer for the children during their younger years, provide a stable and permanent job for herself and have the financial and emotional support of her family in New Zealand.
The Independent Children’s Lawyer submitted that this was not an equal time case and this was supported by the Expert report writer.
There was no support from the Independent Children’s Lawyer or Expert for more time with the children and their father than is current even if the mother continued to live in Australia with the children. Given the father’s work this could mean that for much of that time the children would be in Ms L’s care.
I find that the mother has supported the children’s relationship with the father, and as Mr Ford submitted to me, the past informs the future. I am well satisfied that the mother will continue on this trajectory for two reasons; first, that she is a devoted, competent, caring parent, who wants only the best for her children, and second, to not promote the children’s relationship with their father would rebound on her fiercely. Her children would never forgive her.
The father lacks insight into the needs of his children. The way he introduced Ms L to the children, bringing Ms L to the home in April 2018 when they had not yet separated, and his lack of knowledge of being able to attend the children’s swimming carnival indicates he had very little to do with their education, as the mother said was the case prior to separation. Post-separation, he stepped up to the mark.
Ms Karagiannis was most concerned that the father’s relationship with Ms L was very young, or was in its infancy, and although Ms L is a delightful young woman, competent and caring, their relationship has not been tested, and neither of them, has had the full-time care of three young children, something the mother has experience of since their birth.
The children’s view is that they wish to stay in Australia, however, given the evidence that they do not even know there is a dispute about where they are to live, and their age, I will take no note of their views.
Ms Karagiannis was critical of the report, as was I. The report writer failed to identify the competing applications that the parties were proposing at that time and this is essential in a Family Report concerning a relocation. Despite Mr Ford’s submission that this was not a sustainable criticism, I disagree. Particularly in a relocation matter an Expert needs to know what it is the parents propose, what other possibilities exist so she can ask the appropriate questions and make the appropriate recommendations and inform the Court the evidence she has based her opinion on.
The Expert did not ask what the mother’s position would be if the Court did not make an Order that she be able to relocate with the children. This is a fundamental question to ask of both parents in an international relocation.
Further there was little exploration of the strength and depth of Ms L and the fathers’ relationship rather an acceptance of it when Ms L’s’ support is crucial to the father being able to care for the children full-time.
Additionally, her recommendations were predicated on the father making substantial contributions to the mother in relation to her permanent residency to enable her to stay in Australia when his best effort was $1,000 or that it be paid jointly from the property settlement. I formed the view that he could only met his own offer if the home was sold. The father told me he was drowning in debt, so how he could refinance the home and pay half of the money needed and the wife’s entitlement to her share of the property, escaped me.
The Independent Children’s Lawyer’s submissions were as follows. That the mother’s application to relocate with the children to New Zealand is an Order in their best interests. That the mother should have one holiday period in New Zealand with the children, and the father have four weeks with the children in Australia each year, alternating over the Christmas period and then the January period. That there be specific Order with the paternal grandparents to have time with the children. That the Independent Children’s Lawyer will, in consultation with Ms O, X’s therapist, explain the consequences of the Order to the Court. They additionally sought costs.
Mr Tockar for the mother submissions were as follows. That the mother relocate to New Zealand with the children. That the children spend school holidays at the end of Term 1 with their father, in Term 2 one week with the mother, one week with him, in Term 3 one week with her, one week with him, alternating, and given that X’s birthday is in the September holidays, this is an important alternating holiday to have. That the father to have weekend time with the children in New Zealand if he’s able to come to New Zealand, limited to no more than four weekends, and other times during the year, including taking them to and from school, if he’s able to find accommodation in City P, that that also be limited so that there is not too much disruption.
Mr Tockar also submitted that the parents share the cost of travel to and from New Zealand, for example the mother pays for flights to Australia and the father the return flights or vice versa; and that both parents be able to travel with the children overseas travel overseas.
The mother agreed for an Order that the paternal grandparents have one weekend with the children each school term.
Mr Tockar emphasised how hard it had been for the mother with three young children, the husband overseas and the home being renovated. To use the maternal grandmother’s words, the home was “gutted” and yet the father would make no such concession.
That the mother cannot face or endure the prospect of staying in G Town. Her pointed evidence, “I have to go home” supports this strong emotion. She feels trapped, helpless, and hopeless and I accept that this is the case and her evidence at paragraphs 184 to 190 of her Affidavit, and confirmed orally was compelling that this is how she feels.
The Expert accepted that she had difficulties living where she lived, and although she hoped it would get better with therapy, it had not and cannot with the father living in the former matrimonial home with his partner and the children attending a local public school. The mother is from her perspective trapped.
That Australia has nothing for her, and the father’s decision to stay in the home, bring his new girlfriend to live there, and not support her obtain her permanent residence, as soon as he knew it was an issue has had consequences.
I accept Mr Tockar’s submission that the strong attachment these children have with their father will not be broken. It may change in nature, it may diminish at some levels but it will not be broken. It will not be severed, and they will still benefit from the meaningful relationship with their father, because of the strong bond they have with him, and the quality time they have spent with him since separation. This finding is consistent with the principles set out in Rochford & Fitzhugh.[14]
[14] Above note 10.
Mr Ford ‘submissions for the father were that primarily the mother remain in Australia however I accept she will not do so. The father then says the children should live primarily with him so that they maintain their all-important relationship with him, that he is the parent best placed to support the children’s relationship with their mother and that he and Ms L can provide a home for them. Living with him in Australia in the absence of their mother will mean they maintain their stability by living in an area they know well and attend their known schools and maintain their friendships and extracurricular activities.
Now, the question for me is, given the Experts position that the best Order is for the children to have significant and substantial time with their father and given that the parents have agreed on equal shared parental responsibility, is such an Order reasonably practicable. At one level, this is an otiose enquiry as I accept the mother’s evidence that she will move to New Zealand no matter what order I make concerning where the children are to live. However it is essential that I explore all the options that are available and were at the time of the report.
Significant and substantial time can only be practicable, if the father lives in New Zealand, or the mother lives in Australia. What is the consequence for the children of these two options?
The consequences for the children of the mother continuing to live in Australia to enable them to have this important time with their father are poor. Her functioning will continue to deteriorate. She will struggle to find work. She has to move to new accommodation, I accept her lease has run out, and life for the children with their mother will be not stable, and will be significantly diminished because the mother is living in a country which offers her few opportunities.
As the father has told me he will not move to New Zealand at all, the only practicable way the children can continue to enjoy the benefits of significant and substantial time with their father, is if their mother remains in Australia. That option is not practicable or beneficial for the children as it will have serious consequences for the mother’s functioning, which will then have a negative impact on her hitherto exemplary parenting of the children and I accept she will not remain living in Australia. To use the words in U & U of Hayne J at paragraph 176:[15]
It is now recognised as self-evidently true that apart from some cases of abusive relationships, children benefit from the development of good relationship with both their parents. The right to know and be cared for by both parents, and the right of contact on a regular basis with both parents are set to be the principles underlying the objectives of Part 7 of the Act. If effect is to be given to those principles, it must not be assumed that one parent, the father, cannot move, and that the mother must in every case subordinate her ambitions and wishes, not to the needs of the child, but the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the needs of one of them.
[15] Above note 2 at [176].
The evidence of the father’s inability to move was sorely lacking. I accept that he would lose seniority. I accept he may lose his significant income, and the other benefits that go with being a highly valued member of the Australian Defence Force with seniority. However, that does not mean with his high level of skill, training, Expertise and experience, he is unable to move and obtain a job in New Zealand with their Defence Force for example, and he failed to satisfy me that he cannot move.
It is not in his best interest for him to move, but it is not that he cannot move, as I see the evidence. Quoting from Gaudron J in U v U at paragraph 38:
In the present case, the need to give proper consideration to the wishes of the parent was not the only reason why each of the proposals had to be separately evaluated. Rather, in a context in which each of the proposals involved some disadvantage for the child, as the trial judge acknowledged, a determination could only be made as to what was in her best interests by separately evaluating each of them.
The best interests of the children is a paramount consideration, however as Boland J said in Morgan & Miles,[16] it is not the only consideration.
[16] Above, note 1.
The children living with their father in Australia, in the absence of their mother, will drastically impact on their emotional health. The Expert said they cannot be away from her for more than two weeks. It is inconceivable that this outcome could ever be in the children’s best interest, given that they will be separated from their mother, their primary carer, a person they could not be separated for more than two weeks, their entire extended family who all live in New Zealand, and living with their father, and cared for by Ms L, a wonderful, caring woman, who is not their mother. If Ms L and the father’s relationship does not continue, then the father will have little capacity to parent these children solely, and he simply never has.
The mother has the runs on the board in relation to sole parenting of the children and fostering a relationship for them with their father at times over distance. The father is untested in these two vital areas impacting on the children’s welfare.
I have formed the view on the evidence that even if the mother did not intend to move to New Zealand without the children, and merely put forward her first position, which is that she be permitted to relocate with the children to New Zealand, I would still make that Order as an Order in the children’s best interest for all of the above reasons.
I have evaluated the competing proposals of each of the parties including the mother remaining in Australia.
I found the consequences for the children of not being in their mother’s primary care is the overwhelming consideration rather than the impact on their relationship with their father if they live in New Zealand.
This is also the position the Expert came to as her recommendation was the children continue to have significant and substantial time with their father and the corollary of that is they must primarily live with their mother and I find they must no matter where their mother lives. This position, coupled with her oral evidence that the children cannot spend more than a couple of weeks away from their mother, cemented for me what the overwhelming consideration was after analysing all of the proposals.
It is a necessity for these children to be with their mother, and if so her functioning must be at its highest, otherwise, as the Expert said her reduced functioning will have a negative impact on her parenting, and therefore a negative impact on the children, for it is clear she is desperately unhappy living in Australia.
For those reasons, the mother’s application to move to New Zealand with the children permanently is the Order I find that is in the children’s best interests.
Property
Going now to property.
Given the age of the parties they cannot access their superannuation for many years. The superannuation in the husband’s name is by far their greatest asset and thus I will do a two-pool approach.
The assets that I have included in the matrimonial pool for division are as follows:
a)F Street, G Town, $800,000.
b)The father’s Motor Vehicle 1, $7,000.
c)The father’s Motor Vehicle 2, $8,750.
d)The mother’s Motor Vehicle 3, $10,800.
e)The father’s boat, $20,000.
f)Household effects, for the mother, $5,000, and for the father, $10,000.
g)I will not take account of monies in parties’ bank accounts. They have been separated approaching three years. That is their money, not matrimonial money. However I accept that the mother is entitled to any monies in the joint account which is to be closed.
h)The amount of $2,572 that is held in trust for the children by the father is their asset, and is not a matrimonial asset, and will be taken out of the pool.
i)This amounts to a gross asset pool of $861,550.
Liabilities:
a)Mortgage on the G Town property of $491,474.
b)I will add back the $9,760 that the husband withdrew on the mortgage to pay his legal fees.
c)Net liabilities amount to $501,234.
d)Therefore, there is a net asset pool of $360,316, with a superannuation pool of $856,868.
e)All other debts are all the parties’ personal debts, and not matrimonial debts.
I find that the mother has made a superior contribution to the current asset base for the following reasons.
I accept the father had more cash at the commencement of the relationship, however, the mother sold a property owned prior to the marriage netting $110,000, which went towards the purchase of the first home at S Town.
Secondly, a significant contribution has been the mother’s contribution as parent and homemaker, whilst also earning income, and at times as a sole parent while the father was overseas, working at night et cetera, and obtaining his qualifications.
Thirdly, the mother has made a superior contribution to the father’s current qualifications in circumstances where she cared for the three children of the marriage at a young age, renovated the home with three children in her care, whilst he was overseas.
Fourthly the husband has lived in the former matrimonial home to the exclusion of the wife post separation
I find the mother’s contribution-based entitlement to be 55 per cent, and the father, 45 per cent.
Going now to the factors under section 75(2) of the Act.
The father earns three times her income, the best income she was ever able to earn in Australia. It may be a little less than three times of the best income she will earn in New Zealand of some $74,000. He earns around $190,000.
The length and period of the marriage has seen his career blossom, and it has had the reverse effect for the mother.
The mother will have the three children in her care, be primarily responsible for those children, and will never reach the dizzy heights of the husband’s income or superannuation, given his superior and impressive qualifications and capacity.
I find her needs under section 75(2) of the Act to be 10 per cent giving her 65 per cent adjustment of the liquid assets, and for the husband 35 per cent. This is a net payment to the wife of $234,205, and to the husband, $126,000.
The father is desirous of buying the mother out of the former matrimonial home, and I will give him the opportunity to do so. The mother has, in her possession a Motor Vehicle 3 worth $10,800 and household effects of $5,000. That is a total of $15,800. Her entitlement must be reduced by $15,800 to $218,405.
The father is to pay that sum to the mother within three months of today’s date, otherwise the property will be placed on the market for sale, and the mother to receive the sum I have determined together with interest calculated to commence three months from the date of these Orders.
In relation to the superannuation, the husband’s significant superannuation benefits have accrued during the marriage. Given the contribution the wife has made to the husband’s career, I find an appropriate adjustment is as for the liquid assets and that the wife is entitled to 65 per cent of the total superannuation pool of $856,868.
65 per cent of $856,868 is $556,964 to the wife and $299,903 to the husband. The wife has $63,000 in superannuation and deducting that from her entitlement is a splittable payment to her from the husband’s military superannuation of $493,964.
I find these Orders are just and equitable in the circumstances, and I will so Order.
I certify that the preceding two hundred and sixty-six (266) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 4 March 2020.
Associate:
Date: 4 March 2020
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