NATHAN & WESTON

FAMILY COURT OF AUSTRALIA

NATHAN & WESTON

[2020] FamCA 541

FAMILY LAW – CHILDREN – Parenting – international relocation – where the mother seeks sole parental responsibility – where the mother seeks to relocate to the United States of America with the two children – where the father does not consent to the relocation – where the children live with the mother and spend time with the father – allegations of extensive family violence – best interests of the children – relocation permitted.

FAMILY LAW – PROPERTY – Relationship of approximately 11 years – significant initial financial contribution of Respondent – overwhelming homemaking and parenting contribution of Applicant.

Kennon & Kennon (1997) FLC 92-757
Goode & Goode [2006] FamCA 1346
Sayer & Radcliffe [2012] FamCAFC 209
M v S (2006) 37 FamLR 32
Godfrey & Sanders [2007] FamCA 102
Stanford & Stanford [2012] HCA 52
Chorn & Hopkins (2004) FLC 93-204
Beklar & Beklar [2013] FamCA 327

Family Law Act 1975 (Cth), ss 4AB(1), 4AB(2), 4AB(3), 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 90SF(3) and 90SM(4).

APPLICANT:

Ms Nathan

RESPONDENT:

Mr Weston

FILE NUMBER:

ADC

3285

2018

DATE DELIVERED:

9 July 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Mead J

HEARING DATE:

9, 10, 11, 12 and 13 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bowler of Counsel

SOLICITOR FOR THE APPLICANT:

Clelands Lawyers Adelaide Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr McQuade of Counsel and Mr Jordan of Counsel

SOLICITOR FOR THE RESPONDENT:

Jordan & Fowler Family Lawyers

Orders

That all previous parenting orders made herein be discharged.
That the mother have the sole parental responsibility for the children X born … 2010 and Y born … 2012.
That the said children live with the mother.
That as and from Saturday 29 August 2020 the mother be at liberty to relocate X and Y’s residence to the United States of America.
That pending the relocation of the mother and children to the United States of America X and Y spend time with their father as follows:
(a)On each alternate weekend from the conclusion of school (or 3.00 pm if a non-school day) on Friday to 4.00 pm on Sunday in accordance with the existing schedule;
(b)Each Tuesday from 4.00 pm to 7.00 pm during the school term;
(c)From 10.00 am Tuesday 14 July 2020 to 10.00 am Thursday 16 July 2020;
(d)From 9.00 am on Saturday 18 July 2020 to 3.00 pm on Sunday 19 July 2020; and
(e)In the event that the children are still resident in Australia during the September/October 2020 school holidays:
(i)From 10.00 am on 29 September 2020 to 10.00 am on 1 October 2020; and
(ii)From 10.00 am on 6 October 2020 to 5.00 pm on 8 October 2020.
That paragraphs 5(a) and 5(b) be suspended during all periods of school holidays.
That all handovers of the children between the parties shall take place at the mother’s home or such other location as the parties may agree in writing.
Upon the children commencing to reside in the United States of America the children spend time with the father as follows:
(a)       In 2020 and in each alternate year thereafter:
(i)During the Christmas school holidays from 9.00 am on the second day of such holiday period to 5.00 pm on the second-to-last day of the said school holiday period; and
(ii)For three consecutive weeks during the children’s mid-year school holiday period commencing at 9.00 am on the first day and concluding at 5.00 pm on the last day at times as agreed in writing or in default of agreement commencing on the second day of the said school holiday period and concluding 21 days later;
(b)       In 2021 and each alternate year thereafter:
(i)During the children’s school holiday period in March of each year from 9.00 am on the first day of such holiday period to 5.00 pm on the second-to-last day of such holiday period; and
(ii)In accordance with the terms of paragraph 8(a)(ii);
(c)       At such other times as may be agreed between the parties in writing.
That the time referred to in paragraph 8 hereof shall occur in the United States of America unless otherwise agreed in writing between the parties.
That the father provide to the mother not less than 42 days’ notice in writing of his intention to travel to the United States of America to spend time with the children in accordance with the provisions of paragraph 8 hereof together with a proposed itinerary.
That all handovers with respect to the time spending referred to in paragraph 8 hereof shall occur by way of the father collecting the children from and returning them to the mother’s residence SAVE AND EXCEPT as otherwise agreed in writing.
That the mother facilitate the children communicating with the father by WhatsApp Video and/or by telephone or any other type of electronic communication agreed between the parties with the father to contact the children by way of the agreed electronic communication:
(a)Between the hours of 6.00 pm and 7.00 pm (mother’s residence local time) on Sunday, Tuesday and Thursday of each week; and
(b)On Christmas Day and the children’s birthdays in any year when the children are not in the care of the father at 8.00 am (mother’s residence local time).
That in addition to the communication referred to in paragraph 12 hereof:
(a)The mother instigate and facilitate the children communicating with the father in the method referred to in paragraph 12 hereof such that the children communicate with the father at the earliest time possible on his birthday in each year taking into account the differing time zones between the mother’s and the father’s residences;
(b)During the school holiday periods referred to in paragraph 8 the father shall instigate and facilitate the children communicating with the mother in the method referred to in paragraph 12:
(i)On Sunday, Tuesday and Thursday between 6.00 pm and 7.00 pm (mother’s residence local time); and
(ii)At 8.00 am (mother’s residence local time) on Christmas Day in each year in which the children are in his care; and
(c)That the children be at liberty whilst in the care of one parent to communicate with the other parent by the means referred to in paragraph 12 hereof at any reasonable time upon their reasonable request so to do.
That the mother inform and keep the father informed at all times of the following:
(a)The address, contact telephone number and email address of the children’s residence;
(b)The name, address and contact telephone number of the school attended by the children; and
(c)Any emergency effecting the children’s welfare.
The father inform and keep the mother informed of the following:
(a)A contact mobile telephone number at all times the children are spending time with him;
(b)The name and address of the accommodation in which he and the children will be staying during any time the children spend time with him in the United States of America pursuant to the terms of paragraph 8 hereof; and
(c)Any emergency effecting the children.
That the father be restrained and injunctions are hereby granted restraining him from:
(a)Consuming alcohol for twenty-four (24) hours prior to and during all times the children spend with him pursuant to the terms of this order;
(b)Denigrating or criticising the mother or any member of the maternal family or the father’s step-aunt Ms C in the presence or hearing of the children or either of them or allowing any other person to do so; and
(c)Assaulting, harassing, threatening or intimidating the mother or allowing anyone else to do so.
That the mother retain possession of any passport currently held in the names of the children X and Y or either of them and be at liberty to renew any such passports from time to time.
That the father do all such things and sign all such documents as may be necessary from time to time to enable the mother to renew the Australian or American passports of the children X or Y or either of them as referred to in paragraph 17 hereof.
That in the event that the father refuses or neglects to sign any documentation necessary to enable the mother to renew the children’s Australian or American passports from time to time then and in such case the mother shall be at liberty to apply for the renewal of the relevant passport in circumstances where:
(a) she has sole parental responsibility for the said children; and
(b) where the father’s consent is not contained within the application.
That all applications for parenting issues be otherwise dismissed.
That within seven (7) days of today’s date the parties’ solicitors provide to the Associate to Justice Mead by way of jointly signed email correspondence a draft minute of order with respect to settlement of property encompassing the proposed orders referred to in paragraphs 473 to 488 respectively.

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 Nathan & Weston 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 ADELAIDE

FILE NUMBER: ADC 3285 of 2018

Ms Nathan

Applicant

And

Mr Weston

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Nathan and Mr Weston are in dispute both as to parenting orders and property settlement.
Ms Nathan (hereinafter referred to as “the Applicant”) was born in the United States on … 1970 and is aged 50 years.
Mr Nathan (hereinafter referred to as “the Respondent”) was born in Country S on … 1974 and is aged 45 years.
The parties commenced cohabitation in City R in mid-2007 (Applicant’s evidence) or late 2008 (Respondent’s evidence).
They have two children.
X was born on … 2010 and is aged 10 years. Y was born on … 2012 and is aged 7 years.
The Respondent returned to live in Australia in … 2017. The Applicant and the children came to Australia in early … 2017.
From July 2017 the parties cohabited with the children on a property at Suburb H in the M Region.
The parties separated in April 2018. Since separation the Applicant and the children have resided with the Respondent’s step-aunt Ms C, firstly at her property in Suburb C and, since March 2019 at rented accommodation at Suburb C.
The Respondent has remained in residence at the Suburb H property at G Street, Suburb H since separation.

Children’s Issues

Background

The parties met in City R in 2006 or early 2007 and commenced cohabitation (according to the Applicant) in mid-2007 or, (according to the Respondent) in late 2008. Cohabitation commenced at the Respondent’s rental apartment in City R.
Neither party was cross-examined as to the discrepancy in the dates they each deposed to as the exact date of commencement of cohabitation. I am satisfied that nothing turns on that matter in this case in any event.
At the commencement of cohabitation the Respondent was in highly paid employment in the finance sector in City R, working firstly for the T Company from late 2003 until 2009 and between 2009 and 2015 for V Company.
He had cash and stocks to the value of approximately USD$2 million with no liabilities. He was earning approximately USD$1.3 million per annum in his employment with the T Company.
The Applicant had assets to the value of approximately USD$25,000.00. After X’s birth she worked part-time at home. During her pregnancy with Y she was made redundant from her employment. Thereafter for the duration of the relationship she was engaged in fulltime home duties and caring for the parties’ children.
In 2010 the parties purchased a beach house at Location U, City R in the Respondent’s name. In 2011 an apartment was purchased in City R in the Respondent’s name. The beach house was sold in or about 2015 and the City R apartment sold in the later part of 2016.
The Respondent ceased his employment with V Company in or about January 2015. He has not been in formal paid employment since that time.
In or about 2016 the Respondent raised with the Applicant his desire to return to live in Australia.
The Applicant was initially resistant to that idea.
In January 2017 the Applicant advised the Respondent that she would not travel to Australia with the children.
The parties obtained rental accommodation in City R for the first six months of 2017, the apartment having been sold.
The Applicant first sought legal advice with respect to a possible separation in February 2017 in City R.
The Respondent travelled to Adelaide on 3 March 2017, returning to City R from South Australia on 7 June 2017.
In May 2017 the Respondent purchased, through the W Trust, the property at G Street, Suburb H, South Australia. The purchase price of the property was AUD$2.5 million.
The Applicant was advised rather than consulted with respect to the purchase of the property. The Respondent advised her that he intended to purchase the property notwithstanding her objection to same. She was still undecided about relocating to Australia with the children. The Respondent purchased the property. This evidence was not in dispute.
On 7 June 2017 the Respondent returned to City R.
On 2 July 2017 the Applicant, the Respondent and the children arrived in Adelaide.
The Applicant arrived in Australia on a Visitor’s Visa.
The parties and the children immediately moved into the Suburb H property.
The children commenced attending at D School in Term 3 2017.
In February 2018 the Applicant sought legal advice with respect to separation from the Respondent and emergency housing.
Separation occurred on or about 19 April 2018 when the Applicant and children left the Suburb H property and went to the house of the Respondent’s step-aunt Ms C, as invited by her. The parties have not lived together since then.
At the time the parties separated they had been resident in Australia together for nine and a half months.

Parties competing proposals with respect to parenting issues

The Applicant applied to the Court for sole parental responsibility for X and Y, for the children to live with her and, that she be at liberty to relocate their residence to the United States of America.
She proposed in her application that upon such relocation the children spend time with their father:
a)During 2020 and in each alternate year:
i)For 3 weeks in Australia or USA (including traveling time) between 1 July and 1 August [noting that the holiday time is 2 June until 12 August];
ii)For the Christmas break in either Australia or USA between 18 December 2019 and 3 January 2020;
b)During 2021 and in each alternate year;
i)For up to one week during the Spring Break in the USA between 13 March and 21 March;
ii)For 3 weeks in Australia or USA (including traveling time) between 1 July and 1 August [noting that the holiday time is 2 June until 12 August].
She further proposed that the children spend time with the Respondent at such other times as may be agreed between the parties in writing.
In cross-examination the Applicant was asked what she was prepared to offer with respect to the children spending time with the Respondent if she and the children were permitted to relocate to the United States. She replied that the summer vacation was some eight to nine weeks long and that the Respondent could spend three to four weeks with the children alternately in Australia and the United States and also spend time with the children each alternate Christmas.
In the Respondent’s Response filed 14 September 2018 the Respondent sought that the Applicant be restrained from removing X and Y from the Commonwealth of Australia save and except for holiday purposes as agreed between the parties in writing or ordered by the Court.
He further sought orders for the parties to share parental responsibility for X and Y and for the children to live with each party for equal time on a week-about basis.
In cross-examination the Respondent confirmed that the week-about equal shared care arrangement was still his position at trial but he thought that it was an arrangement that could be worked towards over a period of approximately 12 months.
In answer to a question from the Court the Respondent said that he did not have a formal proposal for time spending between he and the children if they move back to the United States. He said however that if the Court decided that the children should return to the United States he would like the opportunity to see them in alternate years over Christmas and New Year for about two weeks or longer – perhaps four weeks, in Australia. He said during the June/July US summer school holidays he could travel to the United States to spend time with the children in the United States.
He said that he thought that two trips per year for extended periods would be appropriate and the least disruptive option for the children and that the Christmas/New Year period could be extended as long as the children were available depending on school holidays.

Issues in dispute

The main issues in dispute were as follows:
·The Applicant’s allegations of family violence including physical, verbal, financial and emotional abuse perpetrated on her by the Respondent;
·The Applicant’s allegations as to the Respondent’s dependence on alcohol and the impact of same on his employment and behaviour;
·Whether it is in the children’s best interests for the Applicant to be permitted to relocate them to reside with her in the United States of America, in particular in the State of L;
·The time the children should spend with each of their parents if either they remain living in Australia or if they return to reside in the United States;
·The composition and quantum of the asset pool;
·The assessment of the parties’ contributions to the asset pool, including an assessment of the “Kennon”[1] adjustment sought by the Applicant based on her allegations of family violence.
[1]Kennon & Kennon (1997) FLC 92-757

Relevant legal principles with respect to parenting issues

Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the legislative framework within which the Court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards children’s orders, namely to ensure that the best interests of the children are met by:-
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the object are set out in section 60B(2) and provide that, except when it is or would be contrary to the child’s best interests:-
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The best interests of the child are the paramount consideration in determining whether to make a particular parenting order.[2] To determine the best interests of a child the Court must consider the factors set out in section 60CC(2) and (3) of the Act.
[2]Family Law Act 1975 (Cth) (as amended) s 60CA
Section 61DA of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility.[3]
[3]Family Law Act 1975 (Cth) (supra) ss 61DA(1), 61DA (2) and 61DA(4)
In the event that an order is made for equal shared parental responsibility the Court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur.[4]
[4]Family Law Act 1975 (Cth) (supra) s 65DAA(1)
If the Court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.[5]
[5]Family Law Act 1975 (Cth) (supra) s 65DAA(2)
The Act defines what is meant by substantial and significant time,[6] and specifies that the Court must have regard to certain issues when deciding whether orders are reasonably practicable.[7]
[6]Family Law Act 1975 (Cth) (supra) s 65DAA(3)
[7]Family Law Act 1975 (Cth) (supra) s 65DAA(5)
In this case the Applicant has applied to relocate the residence of the children to the United States, in particular the State of L.
Following upon the 2006 amendments to the Act after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 the Full Court considered at length and in detail the impact of those amendments on the process of determination by the Court of competing parenting cases.
In Goode & Goode [2006] FamCA 1346 the Court said at [72]:
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.
In 2012 the Full Court of the Family Court, in considering the issue of relocation of children in Sayer & Radcliffe [2012] FamCAFC 209 said at [47]:
It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act.
The relevant issues must therefore be considered against the backdrop of the requirement that any parenting order the Court makes must be in X and Y’s best interests, as determined in accordance with the provisions of section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.

Evidence and findings

It is convenient to deal with the areas of dispute in this matter by way of considering the parties’ proposals and evidence against the relevant provisions of the legislation.

Section 60CC(2) – Primary considerations

(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

The orders proposed by each of the parties contemplate the children having a meaningful relationship with the other of them.
It is clearly the case of the Respondent that this is more difficult to achieve if the place where the children reside for the majority of their time is a significant distance from his residence.
Nevertheless, it is important to remember that the Act refers to a “meaningful” relationship with both parents. The nature of this may be somewhat different than the nature of a relationship between a parent and a child where there is less geographical distance involved and where time spending can be more frequent.
Reference to the nature of a meaningful relationship has been made in numerous cases involving the relocation of children both within the Commonwealth of Australia and to other countries.
In 2006 Dessau J (as she then was) commented at [45] of her judgment in M v S (2006) 37 Fam LR 32:
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not in itself mean it cannot be meaningful…
In the next year Kay J also commented at [36] of his judgment in Godfrey & Sanders [2007] FamCA 102:
…Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Both parties proposals set out earlier herein involve the children spending substantial and significant time with the other parent.
The significant difference of course is that the Respondent, after a “building up period” of approximately 12 months seeks that the children’s time be shared equally between their parents which would include school term time as well as holiday time.
The Applicant’s proposal, because it is tied to her proposal for relocation with the children to the United States, involves the children spending block periods of time with their father during school holiday periods both in the United States and in Australia.
The Applicant was cross-examined as to her proposals for the children’s time spending with the Respondent if she was unable to relocate to the United States. She was reluctant to consider any increase in the children’s weekend time with their father or holiday time with the Respondent prior to her being satisfied that the Respondent had ceased what she considered to be his dependence on alcohol.
Even taking those matters into account it is inherent in the proposals of each of the parties that they acknowledge to X and Y that it is to their benefit to have a meaningful relationship with the other of them.
There is no doubt that the Applicant continues to have a high degree of concern as to the parenting capacity of the Respondent, particularly as to his ability to consistently abstain from alcohol use such that she can be confident that the children will be properly parented and safe in his care. Her proposals for time spending are not however subject to any particular requirements in that regard.
She was reluctant to concede that the children sought to spend more time with their father than they currently spend. I have little doubt that her proposals for the children to spend blocks of time with their father both in the United States and in Australia were made in circumstances where she was well aware that taking into account the distance and cost of travel, proposals for time spending in accordance with the current arrangements would be untenable.
In the report of Ms K, Psychologist dated 7 March 2019, she referred on page 19 to the children overall being emotionally connected with the Applicant and to having an established relationship with their father who she described as “a known and established figure in their world”. She further said that in her opinion it did not “present that either child relies upon him for their emotional wellbeing in the same way as they do Ms Nathan...”.
In the second report of Ms K dated 6 September 2019 she referred to each of the children describing an enjoyable relationship with each of their parents, with them both discussing activities they undertook with their parents.
Overall I am satisfied that both X and Y have a good relationship with each of their parents, that the relationship is meaningful and that it is to the benefit of the children for the meaningful relationship to continue.

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

As previously stated herein, the Applicant has made extensive allegations of family violence towards her by the Respondent both in the presence of the children and otherwise, and to his parenting capacity, employment and behaviour generally being significantly impaired by his dependence on alcohol.
No evidence was adduced at trial by the Applicant to suggest that since separation in April 2018, X or Y suffered from any physical harm arising from being subjected to or exposed to abuse, neglect or family violence by the Respondent.
It is her case however, to which I will return in detail in due course when considering any family violence involving the child or a member of the child’s family,[8] that the Respondent’s capacity to provide for the needs of the children including emotional and intellectual needs[9] has been and may continue to be impaired by the Respondent’s propensity for anger, family violence and dependence on alcohol.
[8]Family Law Act 1975 (Cth) (supra) s 60CC(3)(j)
[9]Family Law Act 1975 (Cth) (supra) s 60CC(3)(f)(ii)
When the parties separated the relationship between them was extremely tense. There is little doubt on the evidence of both parties that the children were certainly exposed to a high level of dispute between their parents. It is also common ground that on occasions, although far less frequently than as alleged by the Applicant, the disputes involved family violence.
The Applicant gave evidence that she is genuinely concerned about the wellbeing of the children if they are in the care of the Respondent at a time that he uses alcohol to excess. She is concerned this could expose them to, at the very least, abuse or neglect.
I find that it is preferable to consider this factor when considering the factors involving family violence and parenting capacity.
The Court is required, in accordance with the provisions of section 60CC(2)(a) of the Act to give greater weight to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence than to the benefit of the child having a meaningful relationship with both parents.

Section 60CC(3) – Additional considerations

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

X is aged 10 years and Y, 7 years.
The Court gains most objective assistance with respect to this factor from the reports of Ms K dated 7 March 2019 and 6 September 2019.
I have already referred to the children’s positive report to Ms K as to enjoying their relationship with each of their parents, as well as her opinion on page 19 of her report dated 7 March 2019 as to the children’s more significant emotional connection with their mother than with their father.
Ms K had an opportunity to interview both X and Y for the purposes of her report. Her summary of her discussions with X are contained on pages 5 to 8 inclusive of her first report and with respect to Y on pages 8 to 11 of that report.
On page 5 of the report Ms K noted that X told her if he had a magic wand “he would change where they all live, returning to America.” She described him as knowing that each of his parents wanted different things in terms of where they lived and that he wanted to change “what’s going on now” in which his parents want different things.
She reported that in her second interview with X when his father had brought him to the appointment he again spoke of “maybe” moving to America but also told her he would like to have a motorbike and live in a house where there was just he, his sister and his mother.
In his first interview with Ms K as reported on page 6 of her report he told her that he felt that the time he spent with his father twice a week was “enough” and she described him as “ambivalent” in relation to the question of a sleepover with his father.
She reported that in her second interview with him when brought to the appointment by the Respondent he said he would like “one hour more” with him each week but conversely reported that the seven hours that he was spending with him felt “long” to him.
Y was described on page 8 of the report as being aware that the Applicant wanted the children to live in America with her and the Respondent wanted them to live in Australia but that she was unsure as to where she would like to be.
Ms K said Y reported liking to see her father twice a week and to expressing that it would be “good” to have a sleepover at his house. She reported having enjoyed the visit to America with her mother and brother.
In Ms K’s second letter of report dated 6 September 2019 she described X as being consistent in his wishes for the current arrangement of care between his parents to continue and to vacillating between whether or not he was in favour of spending increasing overnight time with his father.
She described X as not wanting to express a view about living in Australia or America, with Y being likewise uncertain about the idea of living in America. She was described as expressing a wish for the current time spending arrangements with her father to continue and to being hesitant as to spending more overnight time with her father.
I find that this is a complex matter where X and Y are perfectly well aware that their mother wishes to move back to America to live with them and where their father wants them to remain living in Australia.
I find that taking into account the complexities of the matter and the young ages of the children, as well as their ambivalent views about whether they would prefer to live in America or in Australia, that the question of relocation is not one where the children’s views should be afforded any significant weight.
The children were however far more consistent over the three occasions they each spoke with Ms K as to their reluctance to spend significantly greater time with the Respondent than they currently spend as well, in particular in their first and second interviews, as to their greater emotional dependence on their mother.
In cross-examination Ms K expressed an opinion that she was not surprised that both children were cautious about expressing any opinion with respect to the question of relocation in circumstances where it was her view that they did not want to take sides.
When asked whether she was confident that if the children moved back to the United States with their mother they would have the resilience to cope with such a change, she expressed the view that whether the children relocated or not, they had the capacity to thrive.
She said in cross-examination that she did not think Y would fully understand what relocating to the United States would mean in the circumstances of such move being without her father. She agreed that if Y had been aware of that reality it may have influenced her views as to whether she wanted to live in the United States.
Indeed, Ms K went so far as to say that she did not believe either of the children fully understood that if they relocated to America with their mother their father would not be involved in their day-to-day lives.
This evidence adds to my view that this is a matter where understandably the children have been reluctant to express a view as to where they would prefer to live and in those circumstances, this is not a factor that I find will assist the Court in determining the best interests of the children.

(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child).

I have already referred to the evidence contained in the reports of Ms K which satisfies me that X and Y have a good relationship with each of their parents.
Nevertheless, Ms K reported on page 5 of her first report that X identified to her that if he needed help he would firstly ask his mother, then his father and then some more extended family members. He told Ms K that when he recently had issues in relation to the commencement of the 2019 school year, he had only spoken with his mother.
He was also described as giving the majority of positive incoming and outgoing messages and dependency messages “to his mother, a smaller number to his paternal great-aunt, and a few to his father.” He described being confident that his father could complete tasks with respect to day-to-day living that his mother helps him with and that he enjoyed playing sport with his father but “does not like it when his father does not listen to him (i.e. makes him eat food that Y wants but he does not).”
In the first report on page 5 he described that the time he spent with his father pursuant to existing court orders was “enough” and that he would miss his mother if he was to have a sleepover with his father, an issue about which he was described by Ms K as being “ambivalent”.
In his second interview with her X described to Ms K activities that he has enjoyed with his father over January 2019, as well as activities he enjoyed with his mother.
In Ms K’s updating report of 6 September 2019 she said on page 1 that X “was consistent in his wishes for the current arrangements of care between his parents to continue” whilst apparently still uncertain about the question of any overnight time with his father.
Ms K also described Y as identifying her mother, then her father and then extended family members as the persons to whom she would go if she needed help. She gave an example however to Ms K about a time recently when she had been sad and had only spoken about that with her mother.
Y also told Ms K at her first interview that she thought her father could help her with the tasks concerning day-to-day care that her mother helped her with and described her view that having a sleepover with her father would be “good”.
In contrast to X, Y apportioned incoming and outgoing positive messages amongst X and her parents with respect to a family relations test. Y told Ms K that she felt loved in the homes of each of her father and her mother but was consistent in wanting to have a sleepover at her father’s home.
X was a premature baby and experienced some developmental difficulties when he was young requiring physical and speech therapy. The therapy was facilitated by the Applicant in circumstances where in the early years of X’s life the Respondent was working very long hours. Nevertheless, he progressed well despite having some academic challenges at the time of trial.
He was described by Ms K on page 5 of her first report as a “quietly spoken, polite and gentle child”.
By contrast, Y who had clearly not had the same challenging start to life and development was described by Ms K on page 8 as presenting as a “gregarious, bright child”.
There can be no doubt that to the time of trial the children’s life experience was that they had primarily been cared for by their mother since birth and their reality was that they depended on her for all of their day-to-day needs. That evidence was not in dispute.
I am satisfied that such circumstances account for the children’s greater reliance on their mother both with respect to emotional and physical needs although both children were confident that their father could look after their day-to-day needs during the time they spent with him.
I find that although X and Y love both of their parents they have a stronger relationship with their mother in circumstances where for the entirety of their lives she has been their primary caregiver.

(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child.

I am satisfied that since separation until now there have been no significant major long-term issues to be decided with respect to the children.
The issue that now arises of course is the question of whether or not it is in the best interests of the children that the Applicant be at liberty to relocate with them to the United States. In the event that the Court determines the children’s best interests would be met by them remaining in Australia, there will also be issues of where the children will attend at school in the future.
I find that the Respondent has spent regular time with the children in accordance with existing orders of the Court, that the Applicant has complied with those orders and that regular communication has occurred between the children and both of their parents. In addition, the Applicant conceded that the Respondent regularly attended at the children’s school to assist with mathematics and reading lessons. The Respondent has also regularly attended at X’s sport activities.
I do not consider that this is a factor of particular significance in the determination of the parties competing claims in this matter.

(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

X and Y have been in the primary care of the Applicant since separation.
The Applicant conceded in cross-examination that although the Respondent did not make payments to her specifically for child support immediately post‑separation he did pay to her the sum of $850.00 per week commencing on 27 April 2018. The Applicant conceded this was initially intended as financial support for her and the children prior to the child support assessment.
The Applicant further conceded in cross-examination that at the time of trial the Respondent was paying child support as assessed and that post-separation the Respondent had made certain lump sum payments to her totalling approximately $112,000.00. She said that was expended mainly on legal fees, visa costs and travel to the United States.
On 27 September 2018 an order was made by Berman J that the Respondent pay to the Applicant the sum of $850.00 per week by way of interim spousal maintenance in addition to any child support assessment in respect of the children, and further that he pay the education costs for the children’s attendance at D School.
It was the Applicant’s evidence, in respect of which she was not challenged, that although a child support assessment was issued on 18 May 2018 the Respondent refused to pay child support until December 2018, at which time the child support debt was garnished from the Respondent’s bank account.
The Applicant filed a Change of Assessment Application with the Child Support Agency resulting in the child support assessment being increased as and from 1 March 2019.
The Applicant’s evidence in that regard was not challenged but I am satisfied that as at the time of trial the Respondent was complying with the child support assessment.
The Applicant was critical of the Respondent both in her evidence-in-chief and in cross-examination with respect to his financial support for the children and for her post-separation. This was particularly in circumstances where the Respondent had purchased a very expensive property upon his return to Australia which had generated little income by the time of trial.
It was the Applicant’s case that the Respondent’s lack of appropriate financial support for her and the children post-separation continued the pattern of financial control she alleged he had exerted over her during the period of the relationship whilst the parties and the children lived in the United States.
Post-separation the Applicant obtained employment at the children’s school and at a local winery earning a total of approximately $375.00 per week.
At the time of trial the amount of child support assessed and paid by the Respondent was $269.00 per week.
The Applicant conceded in cross-examination that the Respondent did not seek to decrease his liability for interim spousal maintenance notwithstanding the Applicant obtaining employment subsequent to the making of the order.
Taking those matters into account I find that this is also not a significant factor in the determination of the best interests of the children. I will address the issue of financial control when considering the allegations of family violence which included financial behaviour by the Respondent.

(d): The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

This is a very significant factor in the circumstances of this case.
In the event that the Applicant was to relocate to the United States with X and Y, it would be a very significant factor in their circumstances in terms of their ability to maintain frequent contact with their father.
Other than for relatively short periods of time during which the parties had brief separations or during which time the Respondent travelled to Australia prior to the Applicant and children travelling to Australia to live with him in July 2017, the children had lived in a household with both of their parents from birth.
The Applicant’s evidence was that from the time of the children’s birth she had been almost solely responsible for their day-to-day care. She said until January 2015 this was because of the Respondent’s long working hours and as a result of the Respondent’s frequent and long absences from home when socialising. In addition, it was her evidence that when the Respondent was at home he was frequently asleep and/or under the influence of alcohol and/or drugs such that he played little part in the day-to-day care of the children, even after he ceased employment in January 2015.
For the reasons to which I will refer at much greater length in a consideration of the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents and any family violence involving the children or a member of the children’s family, I accept that the Applicant had the overwhelming responsibility for the care of the children whilst the family resided in the United States and subsequent to the parties separation in Australia in April 2018.
I accept that between July 2017 and April 2018 the Respondent was certainly more physically present than at other times during the parties’ relationship, but also accept that it was the Applicant who continued to provide the majority of the day-to-day care for both X and Y.
In those circumstances it is hardly surprising that the expert Ms K, who was not shaken in this regard in cross-examination, provided an opinion on page 19 of her report of 7 March 2019 that:
Overall, the children present as being emotionally connected with Ms Nathan, understandably given her long-standing role as their primary carer. This was particularly the case for X who, as would be expected developmentally, holds more memories of their life in America and whose early challenges in life were supported primarily by Ms Nathan (e.g. therapies, as reported by her, not mentioned by Mr Weston).
Ms K went on to say in the same paragraph:
With regard to their father, it presented that Mr Weston is a known and established figure in their world. They both presented as having an established relationship with him. It did not, however, present that either child relies upon him for their emotional wellbeing in the same way that they do Ms Nathan, or that he engages as actively in providing them with emotional support.
I find that the children’s primary emotional dependence on their mother is reflective of the intensity of their day-to-day relationship with her since their birth.
Both X and Y spoke to Ms K about their memories of their parents fighting and the steps that they took to try and remove themselves from that arena, including going into different rooms, covering their ears or going outside. Ms K reports X and Y’s comments in that regard on pages 5 and 9 respectively of her report.
I am satisfied again for the reasons to which I will refer later that being exposed to such behaviour in the family household and having virtually all of their daily physical and emotional care provided by their mother would inevitably have resulted in the strong emotional attachment to her at the time of trial.
This of course does not mean that they do not love their father. Both children described to Ms K activities that they enjoyed doing with their father and their confidence in his ability to undertake day-to-day tasks in relation to their physical care.
X reported to Ms K that during his trip to America in late 2018 just prior to the commencement of the 2019 school year that he had missed his father.[10]
[10] Report of Ms K dated 7 March 2019 (“the first report”) – page 6
Neither child expressed to Ms K during the interviews for either her first or her second report a specific desire to spend more time with their father than they were doing at the time of trial. X in particular expressed to Ms K reluctance to spend overnight time with his father but Y, at the time of interviews for the second report, presented as being perhaps a little less cautious in that regard.
At the time of trial the children were spending time with their father in accordance with the order of the Honourable Justice Berman of 17 April 2019.
That provided for the children to spend time with him on each alternate weekend from the conclusion of school Friday to 4:00pm on Sunday, from 4:00pm to 7:00pm each Tuesday during school term and from 10:00am Tuesday to 10:00am Thursday in each week of all school holidays. The alternate weekend and Tuesday time was suspended during school holidays.
At trial the Respondent was seeking that over a period of approximately 12 months the children’s time with him gradually extend until they were living with each parent on a week-about basis.
On the face of that proposal, the change in the children’s circumstances would be significantly less than if the Applicant was to relocate to America with them.
In Ms K’s first report she concluded, as set out on page 21 thereof, that from a psychological perspective it was recommended that the Applicant be allowed to relocate to America with X and Y.
In that report she did not support a significant increase in the children’s time with their father pending any departure from Australia, over and above a move to alternate weekends and an evening after school. These were the terms of the order of Justice Berman of 17 April 2019, which hearing post-dated Ms K’s first report.
If the children were to move to America to live with their mother, the reality of their lives would be that they would remain primarily in her care and spend blocks of school holiday time either in America or in Australia with their father.
The Applicant was clear in her evidence that she remained to be convinced that what she considered to be the Respondent’s dependence on alcohol had decreased such that she was confident in his parenting capabilities.
Nevertheless, she conceded in cross-examination that she did not believe the children were in danger in the Respondent’s care. That was a concession that I find was made with reluctance.
I find that the Applicant’s proposals for the children to spend block periods of time with their father were made less with a genuine confidence that such an order would be in the best interests of the children but rather in circumstances where distance and cost of travel in reality would make any other proposal almost unworkable.
It was the Applicant’s case that if she was unable to relocate to America she would remain in or about the Adelaide Metropolitan area and continue her role as the children’s primary caregiver. She was not sure that she would remain living in the M Region and was unable to speculate exactly as to where she may end up residing with the children if she was unable to relocate.
Such a situation would certainly limit the change in X and Y’s circumstances dramatically.
There was nothing in the Applicant’s evidence that would suggest that the distance that she would move away from the M Region would be prohibitive in terms of the children spending regular time with their father although it may involve a proposal to change the school attended by the children.
The Respondent and the Applicant were at odds as to how well X and Y were progressing at D School, with the Respondent very happy with the progress of their education and the Applicant less so.
Nevertheless, there was no objective evidence to support a finding that the children were having any significant educational, emotional or social difficulties at their school.
The Respondent was adamant in his evidence, and particularly in cross‑examination, that the best interests of the children would be met by them remaining in Australia.
In paragraphs 113 to 121 of the Respondent’s Affidavit filed 5 September 2019 he set out his concerns regarding the Applicant’s likely accommodation, employment possibilities, the children’s contact with the maternal family, and the children’s educational and friendship opportunities in America as compared to what would be available to them in Australia.
The Respondent was even more forthcoming in cross-examination. He agreed that he was of the view that BA Town, the place where the Applicant proposed living with the children in the United States, was a retirement and holiday place for aging people and that Adelaide was much more exciting. He said in his view BA Town did not offer satisfactory schools, infrastructure or cultural festivals.
He agreed outdoor activities could be undertaken in BA Town but said that it was only a city of 22,000 people and although Suburb H was a small town, the children had loved living on the farm. He said that the reason he had lived in the United States between 2003 and 2017 was because of his career.
The Respondent agreed that he had achieved remarkable things with respect to his work through his determination and that he had established himself in new countries and across careers. He further agreed that he was confident and could adapt to major changes, but said he was tired of that kind of life and had always wanted to be back in Australia with the children for the rest of his life.
I was not satisfied on the evidence that Australia offered any better cultural or educational opportunities for X and Y than may be available to them in the United States. I am further satisfied that the Applicant would ensure that either in Australia or in the United States X and Y would have the best educational opportunities and cultural experiences as were economically available to them and further, that the Respondent would do likewise.
At the time of trial the Applicant and the children lived with the Respondent’s step-aunt Ms C. They had done so since separation in April 2018 and clearly the Applicant and Ms C have a close relationship. I also find that the children have a good relationship with Ms C although X did express to Ms K that he would be really happy if he and his sister and mother lived in a house on their own.
The Respondent, who apparently in previous times had a close relationship with Ms C had certainly, at least by the time of the parties separation, fallen out with her.
The Respondent’s extended family has a level of complexity but for the purposes of these proceedings I am satisfied that as at the time of trial the Respondent had little to no contact or relationship with any of his extended family in Australia and little with those overseas.
In comparison, the Applicant had maintained relationships with various of the Respondent’s family and when opportunity arose had arranged for the children to have some contact with paternal cousins. That was not on a regular basis. I accept the Applicant’s evidence that the Respondent’s family were in the main supportive of her.
The Respondent’s evidence in cross-examination was that at times the Applicant was manipulative as it related to his family members in Australia. It was his evidence that she definitely helped manipulate their attitude towards him but he conceded that the interfamily relationship difficulties he had may have arisen because family members formed their views after hearing him abuse the Applicant.
When he was asked whether he intended to take up Ms C’s offer to make amends as given by her in open court he replied that based on her actions he was cautious and thought the offer was questionable.
I am satisfied that X and Y’s only opportunity to mix with the paternal side of their family since they had been in Australia has arisen through the contacts their mother has maintained with the Respondent’s family. Such contact would of course be negligible in the event that the children resided in the United States even though the Respondent has some family living there.
If the children were to reside in the United States I am satisfied that they would continue to be cared for on a day-to-day basis and live with the parent with whom they have the greater emotional attachment. To that extent it would not be a significant change for X and Y’s circumstances.
I am satisfied that they would spend time on a reasonably regular basis with their maternal extended family in America, to the extent of the Applicant’s financial ability to maintain those relationships.
I find that the Applicant has close relationships with her parents and with her brother. I find that notwithstanding the Applicant’s reservations she accepts that the only way the children will be able to maintain a relationship with their father if she and they live in the United States is by spending block periods of time with him and that she will support that time.
I find on the evidence that the Applicant has complied with all orders of the Court with respect to the children’s time with their father from the time of separation to the time of trial.
I find that the Respondent’s complaints about the Applicant thwarting arrangements for his time with the children have all related to times outside of the orders and in circumstances where the Applicant has had genuine concerns as to the Respondent’s parenting capacity and the wellbeing of the children.
I find that the children are resilient and that they have, as the Respondent conceded in cross-examination, managed significant change in their lives in moving to Australia albeit that that was a move that involved living with both of their parents. I accept the Respondent’s evidence that the children are sad about their parents’ separation.
The Respondent conceded in cross-examination that the Applicant has not attempted to influence the children against him in any way since separation or spoken negatively to them about him. There is no evidence that would satisfy me she would do so in the future despite her own very negative attitudes towards the Respondent. I find on the evidence that she has been able to separate her feelings towards the Respondent from the children’s feelings towards him.
Taking all of those matters into account I am satisfied that if the children were to reside with the Applicant in the United States they would manage such change, they would be supported by the Applicant and her extended family at both an emotional and physical level and that the Applicant would be more than capable of making proper arrangements for their educational and cultural development.
X and Y are aware that their mother wants to move back to America with them and that their father wants them to remain here.

Ms K opined on page 20 of her first report that “parents function best in their roles when supported practically and emotionally to do so.” In circumstances where I find that such would be the circumstances of the Applicant if she was to return to live in the United States with the children, I find that the change in the children’s circumstances would be ameliorated by the Applicant feeling that she had greater accessible emotional and physical help for the children such that she in turn became more emotionally and physically available to the children to help in their transition.
These of course are children who were born in the United States and lived for the first seven and a half and five years respectively of their lives in the United States. They have only been resident in Australia since July 2017. They have already been subjected to significant changes in their circumstances firstly by moving to Australia and then by their parents separating. Although both parents facilitated the move to Australia I find the Applicant did so reluctantly.
For all of those reasons I find that even though the children moving back to the United States would create a significant change in their circumstance with respect to the physical availability of their father and perhaps with respect to the development of their emotional relationship with him, such a change in circumstance would not of itself be contrary to their best interests.

(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

There is no doubt that if the Applicant was to relocate with the children to the United States there would be considerable practical difficulty and expense involved in X and Y spending time with their father.
I am not convinced that there would be any significant practical difficulty and expense involved with communication between the Respondent and the children taking into account modern technology.
The Applicant gave evidence that it was on occasions hard to have the children communicate with the Respondent by way of Skype while they were on holiday in America. In circumstances however where I am satisfied on the evidence of both parties that the Applicant has at all times complied with orders of the Court with respect to the children’s time spending with the Respondent, she would likewise comply with any order with respect to communication.
The Respondent spent many years living in the United States and is well acquainted with travel between Australia and the United States.
Prior to January 2015 he had an extremely successful career and a capacity to earn significant income in his employment in the United States. There was no evidence that would suggest his capacity to earn significant income has diminished, notwithstanding his lack of undertaking any paid employment since January 2015.
Although travel for both he and the children would be expensive I find that the Respondent would have the capacity either from his capital resources or from income from employment to pay those costs. There was no evidence from the Respondent that he had made meaningful efforts to obtain employment either in the United States or in Australia since January 2015.
In addition, as the children grow older the Applicant may well return to paid employment and be able to contribute to travel costs. She worked prior to X’s birth, for a short time after and more recently in Australia.
It was clear from the evidence of the Respondent in cross-examination that he had no desire whatsoever to return to live in the United States and that he found the quality of life generally in Australia to be infinitely better to that of life in the United States.
Nevertheless, in the event that the children were to reside in the United States I was not convinced on the evidence of the Respondent that he would be unable to either reside in the United States or at the very least spend significant time in the United States if he so wished.
In cross-examination the Respondent conceded that an E3 Visa would still be available to him if he wanted to return to the United States so long as he could gain employment, but that would mean he would probably be forced back into the financial industry. That was of course the industry in which the Respondent worked for many years in the United States and in respect of which he was very successful.
Taking all of those matters into account I find that although the distance between the Respondent and the children would be significant if the Applicant was to relocate to the United States with them, the cost of travel would not prohibit X and Y’s right to maintain personal relations and direct contact with both of their parents albeit, that it is likely that would be achieved by way of the children spending greater block periods of time with their father rather than spending time with him on a regular basis for lesser periods as is currently the case.
I am also satisfied that in the event that the Respondent so desired, his many years of experience working at a high level in the finance industry in the United States would be likely to stand him in good stead if he wished to return to reside there himself in order to maintain more regular face-to-face contact with the children.

(f) The capacity of:

(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs.

I am satisfied, reported as confirmed by both X and Y in their discussions with Ms K, that each of the Applicant and the Respondent can attend to the day-to-day physical needs of the children.
I find as is conceded by the Applicant, that at least since the parties’ separation the Respondent has regularly attended at X and Y’s school and assisted with activities such as reading and mathematics. There is no doubt that prior to the parties separation such input was almost the exclusive preserve of the Applicant, even during the time that the parties resided in the United States and after January 2015 when the Respondent ceased engaging in paid employment.
I find that each of the parties is interested in the children’s educational and intellectual needs, that they have both been involved and interested in the children’s sporting development, particularly that of X, and that they have both broadened the children’s general education with respect to wider cultural activities.
There is little evidence of the Respondent having been interested in these pursuits whilst the parties lived in the United States and there have certainly been instances where the Respondent has been far less enthusiastic than the Applicant with respect to activities involving the children, such as his attitude to attendance at Y’s kindergarten graduation day on 5 December 2017 as referred to later herein under the consideration of issues of family violence and his declining to attend at a Thanksgiving Day parade on 25 November 2016 with the Applicant and children, also referred to later herein.
The matter however that concerns me most is the capacity of the Respondent to provide for the children’s emotional needs. I have already referred at some length to this issue when considering the nature of the children’s relationship with each of their parents.
I find that both of the children, but in particular X, depend almost solely on their mother for their emotional support. Both children clearly expressed to Ms K their memories of their parents fighting and their reactions to that by trying to avoid hearing or seeing the conflict between their parents.
Having had the opportunity of seeing both of the parties in the witness box and listening in particular to cross-examination, I am satisfied that both parties have the capacity to engage in verbal conflict. I find however that in the main that conflict arose because of frequent totally unacceptable behaviour on the part of the Respondent and the Applicant’s reaction to such behaviour. I refer to this behaviour in more detail later herein.
I am satisfied that the children were exposed to that behaviour on the part of the Respondent on numerous occasions and to the contrary, have always experienced their mother as a protective and emotionally available parent, resulting in their closer emotional attachment to her and their clearly expressed views of wanting to spend the majority of time in her care.
I find that although the children love their father there is a level of insecurity in their relationship with him, particularly with respect to the relationship between X and his father. At the time of interview with Ms K that manifested itself in a wish on the part of both children to spend more time with their mother with whom they feel more confident and emotionally secure. That is not to say that they do not enjoy their time with their father.
Taking all of these matters into account I find that the Applicant is best able to provide for the emotional needs of both of the children and that she takes that responsibility very seriously.
There is no doubt that the Applicant has been primarily responsible for the care of both X and Y since their birth. Other than her work at the children’s school since moving to Australia and the small amount of work she has undertaken at a local business she has otherwise been a dedicated fulltime parent.
The Respondent makes no criticism of the Applicant’s care of the children and conceded in cross-examination that she has not attempted to undermine the children’s relationship with him. I consider this to be an important element in ensuring the stability of children’s emotional needs when parents separate. Likewise, the Applicant conceded that the Respondent has not undermined the children’s relationship with her.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

X and Y are both still young. They have much to gain by having an opportunity to spend time with each of their parents to enjoy the lifestyle, culture and traditions of their Australian father and American mother.
Both children have spent the majority of their life to date in the United States but have now had an opportunity to experience more of their father’s Australian culture and way of life in the almost three years they have lived in this country.
During that time they have had the opportunity to travel back to America and enjoy that lifestyle not only with their mother but with extended members of the maternal family. It is to the benefit of X and Y that these opportunities with both of their parents continue.

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

I am satisfied on the evidence that both parents love X and Y dearly.
For reasons to which I will refer at length under a consideration of the issue of family violence, I find that on many occasions, particularly whilst the parties resided together, the Respondent’s overall derogatory attitude to the Applicant resulted in many occasions when the children were exposed to abuse and family violence that was not in their best interests.
I further find again for reasons to which I will refer later herein that behaviour exhibited by the Respondent towards the Applicant, often in the presence of the children, was not reflective of the Respondent exhibiting a responsible attitude towards parenthood.
I find that since the parties separated the Respondent has made some effort to ameliorate his behaviour and seek assistance for his alcohol dependence, but I accept the Applicant’s position that such a course of action primarily came about because of it becoming clear to the Respondent that unless he did so his opportunity to spend time with and communicate with the children would be limited by the Applicant.
The mother is the Applicant in these proceedings. Until she filed her application the Respondent made no complaint about her insistence on all time spending between he and the children being supervised by her. It was only in filing his Response that he sought to have unsupervised time with the children.

(j) Any family violence involving the child or a member of the child’s family.

Family violence is defined in section 4AB of the Act.
Sections 4AB(1), 4AB(2) and 4AB(3) are in the following terms:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
The Applicant made extensive and specific allegations as to violence perpetrated upon her by the Respondent during the period of the parties’ relationship, frequently but not always in circumstances where the Respondent had been drinking alcohol to excess. She also alleged to him exerting financial control over her after she ceased earning her own income.
The Applicant also made numerous specific allegations as to the Respondent’s regular and excessive consumption of alcohol, and to the impacts of same on his employment and behaviour.

Allegations of family violence in America

The Applicant alleged the first incident of violence towards her by the Respondent occurred on 14 October 2010. She alleged that he hit her on her face, threw her to the ground and kicked her. This followed upon her questioning the Respondent as to the identity of “Ms BB” whose telephone number and name were on the Respondent’s mobile phone.[11]
[11] Applicant’s Trial Affidavit filed 15 August 2019, paragraph 22
She alleged that the child X, at that stage aged approximately 9 months, was present.
The Applicant alleged that she called police but did not press charges.[12]
[12] Applicant’s Trial Affidavit (supra)
In cross-examination the Respondent denied that he had been out until sunrise on that occasion but conceded he had come home in the evening drunk.
He agreed he may have met “Ms BB” but denied he had spent the night with her and said she was with a group of friends where he was socialising.
He denied that he had hit, thrown or kicked the Applicant and said that he was “absolutely” in a state where he could remember that incident.
He conceded that the Applicant had made an outgoing call to “Ms BB” from his phone.
In paragraphs 24 and 25 of her Trial Affidavit the Applicant alleged the beginnings of the Respondent’s financial control over her during the period of the relationship. She alleged to it commencing after she ceased working outside of the home at which time she said the Respondent opened an account for her with the BC Bank.
She deposed to him saying that it was her role to stay home and look after the children and that he would transfer money into the account monthly for her use. She said that in fact he rarely did so but rather taunted her, humiliated her and made her beg for money which caused her distress and embarrassment.[13]
[13] Applicant’s Trial Affidavit (supra), paragraph 24
She deposed to often not having any money in the account to purchase groceries, do the laundry, purchase nappies or purchase school supplies, shoes and clothing for the children. She also deposed to she and the children often not being able to attend social gatherings that occurred at their school or other children’s birthday parties.[14]
[14] Applicant’s Trial Affidavit (supra)
She deposed to the Respondent never providing her with a credit card, to all bank accounts save as to that at the BC Bank being in the sole name of the Respondent and to properties, motor vehicles and other assets also being registered in the sole name of the Respondent.[15]
[15] Applicant’s Trial Affidavit (supra), paragraph 25
In cross-examination the Respondent said that the Applicant had access to her own bank account during the relationship and that it was the account into which he placed funds. He agreed the account was opened in her name and further that she had no access to his accounts. He agreed that approximately USD$1 million or thereabouts was paid into his accounts each year.
The Respondent agreed that the Applicant did not have a credit card and it was put to him that he had “drip fed” the Applicant with monies into the BC Bank account in her name and that she had to try and live on those funds. The Respondent denied that proposition in cross-examination and said he had made regular deposits into the account and further, that he found it offensive that it was being suggested he was mean. He said rather he had provided for the Applicant an expensive lifestyle including houses, concerts and restaurants and that she had accounts with laundry and cleaning facilities, by way of online supermarket shopping and that he also arranged for her to have an Amazon facility linked to his credit card. He said the Applicant had access to his AMEX card for online purchases.
When it was put to him that that was only in circumstances where she had his permission to do so he replied that he thought it was good for a relationship to make decisions together. Further allegations were made by the Applicant with respect to the Respondent’s financial control over her which are referred to in more detail later herein.
The Applicant further alleged that on 7 June 2013 at Location U the Respondent chastised her about how she was feeding X, called her a “piece of shit”, a “cow” and told her to “go back under the rock you crawled out from” and that “X is a mama’s boy, a wuss”. She alleged he threw a book at her head, smashed her iPhone and dragged her out of the house in the rain and locked her out with no phone, money or coat.[16]
[16] Applicant’s Trial Affidavit (supra), paragraph 26
She alleged the Respondent’s half-sister Ms BD was present as was the paternal grandfather.[17]
[17] Applicant’s Trial Affidavit (supra)
In cross-examination the Respondent conceded that he recalled the incident but said he was unable to recall the exact words that were used. He said he recalled that the argument caused him to be embarrassed in front of his family.
He said he was unable to recall whether he was sober or drunk, and when asked if it was common for him to abuse the Applicant when he was drunk he said that it was not common but that it had happened. He said that what he meant by that was that he had on occasions got into arguments with the Applicant and had used similar words on some of those occasions.
When asked what other occasions, he said that the most recent had been at Christmas time in 2017 and was ashamed to say he had fallen over a coffee table when he had been drinking, smashed a glass and had to go to the BF Hospital for treatment for his injuries. He said that on his return home from the hospital he had entered into an argument with the Applicant and called her a “fucking cunt”.

The Applicant was, as I have previously stated, almost the sole care provider for the children during the period of the parties’ cohabitation from the date of their birth to the date of separation. There was no serious challenge to that evidence from the Respondent nor any suggestion that she had not made a substantial and valuable contribution in that regard.
I find however that it falls short of the test established in Kennon & Kennon and followed to the present date. In those circumstances I do not intend to make any specific adjustment with respect to contribution in favour of the Applicant in the “Kennon” context.
There is no doubt that the Respondent made a much greater direct financial contribution to the acquisition, conservation and improvement of the property of the parties to these proceedings. That direct contribution came from funds available to him at the time the parties commenced cohabitation and the significant income that he earned between that time and January 2015.
I find that although the direct financial contribution made by the Applicant at the commencement of and during cohabitation was minimal as compared to that of the Respondent, she contributed to the welfare of the parties and their children including in her capacity as homemaker and parent at an exceptional level. That contribution was often made in difficult circumstances but not diminished or adversely affected by those circumstances to which I have referred at length.
It was common ground that during the time from X’s birth in … 2010 until January 2015 the Applicant was effectively the sole homemaker and parent in circumstances where the Respondent worked extremely long hours and frequently socialised away from the home. Even after the Respondent ceased employment in January 2015and at least until the parties and the children moved to Australia in July 2017, he was frequently absent from the home. When the Respondent was at home, he played little role in the parenting of X and Y and was frequently abusive and/or drunk.
Taking all of those matters into account, I would allow a 30 per cent adjustment in favour of the Respondent on account of his direct financial contributions. I find that there should be a 15 per cent adjustment in favour of the Applicant on account of her very significant contribution to the welfare of the family in particular in her capacity as homemaker and parent.
Overall I find that the parties’ contributions should be assessed as 65 per cent to the Respondent and 35 per cent to the Applicant.

Section 90SF(3)

The Applicant is aged 50 years and the Respondent is 45 years old.
There was no evidence to suggest that either party suffers ill health or that they are not physically or mentally capable for appropriate gainful employment.
I accept that post separation both parties have sought therapeutic assistance, with the Applicant seeking assistance in relation to her psychological wellbeing. This arose out of the long-term effects on her of the domestic violence and the abuse she suffered at the hands of the Respondent as well as needing to remain strong as the primary caregiver for the children in circumstances where the relationship broke down some seven months after the parties and the children moved to Australia where she understandably felt isolated.
I have already referred to the determined nature and resilience of the Applicant and find that notwithstanding the difficulties she has faced, she has been able to obtain such limited employment as was available to her and that she will be both physically and mentally capable of appropriate gainful employment in the future.
The Respondent has sought therapeutic assistance with respect to, in particular, his dependence on alcohol. Notwithstanding the significant concerns of the Applicant in relation to the Respondent making real progress with respect to abstaining from excess alcohol, I am satisfied on his evidence that at least by the time of trial there had been some significant improvement in that regard.
Although he left his high paying employment in America in January 2015 and on his evidence has worked at a fairly minimal level since his return to Australia in mid-2017, I do not find on the evidence that he is either physically or mentally incapable of appropriate gainful employment.
It was the Applicant’s evidence that she had been asked by her parents to take over their CC Business with approximately 60 clients if she could return to the United States. This business would allow her the flexibility to work from home and be available for the children.
It was the evidence of the Respondent that he would make it a priority to earn more money following upon the conclusion of the trial although other than his evidence that he did as much as he could himself on the property at Suburb H, there was no evidence as to his future intentions with respect to employment.
The Applicant did not work outside of the home from the time of X’s birth in January 2010 until April 2019, some 12 months after the parties’ separation. At that time she commenced working at a business in CD Town on a very limited basis earning approximately $67.00 per week and thereafter at the D School earning approximately $308.00 per week.
In her Financial Statement filed on 15 August 2019 she deposed to income of $1,494.00 per week comprising the amounts to which I have referred from her employment, as well as:
·$850.00 per week by way of spousal maintenance pursuant to the order of Berman J to which I have referred previously; and
·the sum of $269.00 per week by way of child support.
She deposed to owning property to a value of $11,651.00 comprising:
·$4,151.00 worth of furniture; and
·$7,500.00 by way of funds in the ANZ Bank.
She deposed to having no superannuation entitlements or other financial resources.
In the Financial Statement filed by the Respondent on 6 September 2019 he deposed to average weekly income of $2,088.00 comprised of:
·investment income of $300.00;
·benefits from his business estimated at $750.00; and
·$1,038.00 by way of repayment of a loan.
He deposed to owning property to the value of $4,155,500.00 comprising:
·$18,000.00 in bank savings;
·$1,275.00 by way of investments;
·$75,000.00 by way of a 12.5 per cent interest in BW Pty Ltd;
·$85,000.00 by way of life insurance policies;
·a vehicle with a value of $30,000.00;
·interest in a business namely W Trust with a total value of $2,611,000.00;
·monies owed to him in the sum of $41,500.00; and
·household contents to a value of $20,000.00.
He also deposed to having a superannuation plan in the United States with an estimated value of $575,000.00. The only liability deposed to by the Respondent was for legal fees estimated at $45,000.00.
I am satisfied on the evidence that the employment history of both parties would strongly indicate that the Respondent has the capacity to earn a significantly higher income than the Applicant.
Following upon separation and at the time of trial, the Applicant had the care and control of both of the children X and Y now aged 10 and 7 years respectively.
At the time of trial the children were spending time with their father on alternate weekends from the conclusion of school Friday to 4:00pm on Sunday, on Tuesday’s from 4:00pm to 7:00pm during school term time and from 10:00am Tuesday to 10:00am Thursday in each week of all school holiday periods. The alternate weekend and Tuesday times were suspended during school holidays.
As is clear from my reasons with respect to parenting issues, henceforth it is likely that the children will be spending the majority of their time in the care of the Applicant, unless of course the Respondent returns to reside in the United States.
At the time of trial the Applicant’s evidence was that her financial commitments necessary to enable her to support herself and the children totalled $1,633.00 per week, being $500.00 per week by way of rent and $1,133.00 by way of weekly expenses as set out in Part N of her Financial Statement filed 15 August 2019. Her evidence was not challenged in that regard.
The Respondent’s evidence, likewise unchallenged, as contained in his Statement of Financial Circumstances filed 6 September 2019 was that the financial commitments necessary to support himself and the children totalled $2,079.00 per week including $275.00 for life insurance policies, $1,119.00 (comprising $850.00 by way of spousal maintenance and $269.00 by way of child support) payable to the Applicant and, $685.00 by way of Part N weekly expenses.
Neither party has a responsibility to support any other person and neither party deposed to being entitled to or being eligible for a pension allowance or benefit under any Commonwealth, State or Territory Law or superannuation scheme.
Prior to separation the parties enjoyed a very comfortable standard of living both in the United States and in Australia. At the time of separation they were living in a property in the M Region which provided very comfortable accommodation for the parties and the children and subsequent to separation, the Respondent remained living in that property.
Upon the parties separation the Applicant and the children moved to live with the Respondent’s step-aunt Ms C. They initially lived with Ms C for some 11 months at her property in Suburb C and thereafter in another property at Suburb C rented by the Applicant and Ms C.
There is no doubt that the standard of living enjoyed by the Respondent post‑separation was significantly superior to that of the Applicant and the children. Nevertheless, the Applicant was able to accommodate herself and the children with the assistance of Ms C and the payment of spousal maintenance to her by the Respondent. In addition, it was common ground that the Respondent paid $15,000.00 towards the costs of the Applicant and the children holidaying in the United States at the end of the 2018 school year and further, after some initial disagreement, child support was also paid by the Respondent to assist the Applicant in being able to provide for herself and the children a standard of living that in the circumstances was reasonable whilst proceedings were pending.
The Applicant deposed in paragraphs 144 to 147 of her Trial Affidavit to her anticipated costs of living if she and the children were permitted to return to live in the United States. She deposed in paragraph 145 to school fees being based on property taxes paid by the parent annually with an additional fee of $300.00 per child per year.
She deposed her wish for the children to be covered by private health insurance if living in the United States at an average cost for both children of $180.00, although she did not depose to what period that cost covered. She deposed to anticipating the costs of reasonable accommodation in a three-bedroom rented home in a planned development being USD$4,000.00 per month.
I am satisfied taking into account the size of the asset pool in this matter that both parties will retain sufficient assets to enable both them and the children to enjoy a standard of living that in all of the circumstances is reasonable.
The Applicant’s uncontested evidence was that she has been primarily responsible for the care of the children since their birth, and it was clear from her evidence with respect to the nature of her possible work if she was able to return to the United States that she was intending to continue her role as a parent.
There was no doubt that at the time of trial the Respondent was paying child support as assessed. Although under the terms of the order I propose to make with respect to parenting issues, that the children and the Applicant will be at liberty to reside in the United States, I am satisfied that the Respondent loves his children dearly and would contribute towards their financial support as required.
Prior to January 2015 the Respondent had earned a very high annual income for many years. That income was earned in the United States. I am satisfied on the evidence that he could earn significant income in that country if he chose to do so. Nevertheless, he was clear in his evidence that he had no wish to return to the high pressure of the finance industry and that he preferred to remain living in Australia.
At the time of trial the income the Respondent earned from the farming operation was minimal. The evidence of the Applicant contained in paragraphs 121 to 123 of her Trial Affidavit was that after the Respondent’s provisional income initially being assessed at $49,071.00 shortly after separation, she lodged a Change of Assessment Application. This was based on her argument that the Respondent’s income, property and financial resources made the child support assessment unfair. The new assessment for the period 1 March 2019 to 28 February 2020 then adjusted the Respondent’s taxable income to $83,865.00. It was that assessment that resulted in the payment of child support of $269.00 per week which was the position as at the date of trial.
Although the Respondent suffered a significant alcohol addiction for many years during the relationship to which I have already referred at length, his evidence was that by the time of trial he was not taking any medication or receiving treatment for alcohol dependence, that he only consumed alcohol on a social basis and never when the children were with him. He further deposed to looking for opportunities and that he expected to have some form of employment or self‑employment income in the future. Further, he expected the farming property at Suburb H to become profitable.
Although the future of the Respondent’s employment opportunities were very unclear at trial, I do not find on the evidence that there should be an adjustment in favour of the Applicant with respect to the issue of future child support. I am also mindful that the terms of the order that I intend to make with respect to parenting issues will inevitably be costly to implement as they will involve the Respondent incurring travel costs for himself as between Australia and the United States as well as accommodation costs for himself and the children whilst spending time with them in the Unites States.
Section 90SF(3)(r) requires the Court to take into account:
any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;…
I referred earlier herein to this being the relevant factor to consider with respect to the issue of whether the Applicant’s legal fees should be “added back” to the asset pool and then deemed by the Court to have been a premature distribution of assets in favour of the Applicant as argued by the Respondent’s Counsel.
Both parties’ legal fees as at the date of trial had been paid from funds that existed at separation. Taking into account the findings I have made with respect to the contributions of both parties to the acquisition, conservation or improvement of any of their property, I find that both parties can be seen as having an interest in those funds.[35]
[35]Beklar & Beklar (supra) at [141]
The Applicant’s legal fees as at the date of trial were $74,026.90 and the Respondents were $50,229.53. Of the $74,026.90 expended by the Applicant, her evidence was that $30,000.00 was from the litigation funding provided to her by the Respondent pursuant to the order of Berman J to which I have previously referred with $40,000.00 coming from the Court ordered partial property settlement. In total, $124,256.43 of the parties’ funds that existed at separation no longer existed at the time of trial as a result of the payment of both parties legal fees to that date.
In exercising my discretion as to how to treat the funds used to pay those costs, I reject the submission of Counsel for the Respondent that the Applicant’s legal fees should be “added back” to the asset pool and then deemed to be assets retained by the Applicant upon separation. I find that justice and equity would be better served by excluding legal fees paid by each of the parties to the date of trial when identifying the asset pool, and do not intend to make any further adjustment in that regard. I am mindful that the result of that determination is that the Applicant had the benefit of an additional $24,000.00 of legal fees being paid on her account from the parties joint assets.
Taking all of those matters into account I find:
·that the Applicant is five years older than the Respondent;
·that she will have the sole care of the children pursuant to the terms of the parenting orders I intend to make for the majority of their time and intends to continue her role as a parent for the foreseeable future in preference to high paid employment;
·that she did not work outside of the home for some nine years after the birth of X; and
·that the capacity of the Respondent to earn significant annual income is far greater than that of the Applicant.
In those circumstances I find that an adjustment of 15 per cent should be made in favour of the Applicant on account of section 90SF(3) factors.

Conclusion

For the reasons set out in my assessment of the parties’ contributions and the section 90SF(3) factors, I find that the parties’ assets should be divided equally.
The nett asset pool inclusive of superannuation is $4,767,658.00. An equal division would result in each party retaining assets to a value of $2,383,829.00.
There was no evidence before the Court as to the particular structure of the Respondent’s BZ Brokers Investment Fund or how the superannuation entitlement accrued by him in the Super Fund 1 may be able to be “split” between the parties as was proposed in the Respondent’s case outline.
In those circumstances I am satisfied that justice and equity would be better served by the Respondent retaining both the BZ Brokers investment and his United States superannuation interests, and a cash payment being made to the Applicant as part of the overall settlement reflective of the value of both of those funds.
In circumstances where pursuant to the terms of these orders the Applicant and the children will be at liberty to return to reside in the United States and where I have already found that the Respondent has a capacity for employment at a higher rate of pay than is likely for the Applicant, I find that the Applicant will be better assisted in providing a standard of living for the children and herself that in all the circumstances is reasonable by way of having cash available to her now rather than at some time in the future. In addition, the Respondent is five years younger than the Applicant and in the usual course of events will have a longer working life ahead of him during which he has the capacity to accumulate greater superannuation benefits.
As at trial as specified in paragraph 396 hereof the Applicant had assets in her possession or control to a value of $37,500.00 comprising the Motor Vehicle 2 registered in the name of the Respondent but in the possession of the Applicant and her savings of $7,500.00.
An equal division of the parties’ assets would result in each party retaining assets to a value of $2,383,829.00.
Taking into account the assets referred to in the preceding two paragraphs, an equal division requires a payment by the Respondent to the Applicant in the sum of $2,246,329.00. That includes the sum of $287,500.00 attributable to her share of the Respondent’s superannuation.
I am mindful however that in ordering, for the reasons given, that the Applicant receive a cash adjustment now on account of the Respondent’s superannuation interest (agreed at $575,000.00) there is a benefit to her in being able to utilize funds which may otherwise be “split” to her nominated superannuation account and preserved for some time.
I find that justice and equity would be served by a reduction of $87,500.00 in the calculation of the total payment sum such that the overall payment to her would be $2,258,829.00.

Taking these two additional adjustments into account the Applicant will retain assets to a value of $2,296,329.00 representing approximately 48.2 per cent of the nett asset pool.
The Respondent will retain assets to a value of $2,469,647.00 representing approximately 51.8 per cent of the nett asset pool.
I find that it would be appropriate for payment to be made to the Applicant in terms of the proposed orders referred to herein within seven weeks of the date of this order.
I find further that in the event that payment is not made to the Applicant in accordance with the terms of this order then the Respondent should pay interest on such amount as shall remain outstanding to the Applicant as and from the date on which payment is due namely 27 August 2020 at the rate of 5 per cent per annum and further, that should the default extend for a period greater than 28 days after the date on which payment is due then the property at Suburb H shall be sold with the Applicant to receive any amounts due and owing to her inclusive of interest pursuant to the terms of these reasons from the nett proceeds of such sale and the Respondent to receive the balance.
In circumstances where neither party provided any specific detail as to the details of the registered ownership of the property at G Street, Suburb H, South Australia nor the Respondent’s BZ Brokers Account, CB Life Insurance fund, Super Fund 1 account or the registration details of the Motor Vehicle 2 it will be necessary for the parties’ legal representatives to draft the order for settlement of property in accordance with the terms of these reasons. An order to that effect will be made contemporaneously with the delivery of these reasons.
For these reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding four hundred and eighty-eight (488) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 9 July 2020.

Associate:

Date: 9 July 2020

[2020] FamCA 541

9 July 2020

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Consent