Netis & Kipling
[2018] FamCA 703
•12 September 2018
FAMILY COURT OF AUSTRALIA
| NETIS & KIPLING | [2018] FamCA 703 |
| FAMILY LAW – CHILDREN – Relocation – Where mother seeks to relocate with the child to the United States of America and spend block time with the father in holiday periods – Where the father opposes relocation and seeks the child should live with the mother and spend substantial and significant time with him – Where the greatest risk of harm to the child is the exposure to parental conflict – Whether the mother’s parenting capacity will diminish if she is not permitted to relocate – Where the mother’s parenting capacity would not be so adversely affected if she were not permitted to relocate – Where it is reasonably practicable for the mother to remain living in Australia – Where relocation would not shield the child from the parental conflict – Where relocation is not in the child’s best interests – Where the child is to spend equal time with the parties – Where the parties’ communication and conflict would not support equal shared parental responsibility – Where the mother is to have sole parental responsibility. FAMILY LAW – PROPERTY – Interim Orders – Where wife seeks partial property settlement of $50,000 to be paid to her – Where this sum is not conservative and no order is made for partial property settlement – Where the husband seeks a reduction in the embargoed sum he is restrained from accessing – Where order is made for the reduction of the embargoed sum from $70,000 to $50,000 – property proceedings adjourned until after husband receives disability payment. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 79 |
| Netis & Kipling [2017] FCCA 3418 | ||
| APPLICANT: | Ms Netis | |
| RESPONDENT: | Mr Kipling |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Meehan |
| FILE NUMBER: | TVC | 809 | of | 2015 |
| DATE DELIVERED: | 12 September 2018 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 1, 2, 3, 6, 7 and 8 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Mayes |
| SOLICITORS FOR THE APPLICANT: | Roberts Nehmer Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Raeburn |
| SOLICITORS FOR THE RESPONDENT: | Rennick Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Lyons |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | M Meehan |
Orders
That all previous parenting Orders be discharged.
PARENTAL RESPONSIBILITY
Subject to Orders 4 and 21-24, that the mother have sole parental responsibility for the major long term issues for the child X, born … 2011, (“the child”) including:
(a)any medical or health matter concerning the child;
(b)matters relating to the education of the child including, but not limited to, the choice of school and curriculum and school other than with respect to routine or administrative matters;
That in the exercise of her sole parental responsibility the Mother will ensure that:
(a)She informs the Father of the long term decision to be made within 7 days in writing;
(b)The Mother takes into account any views of the Father provided to her in writing prior to making the long term decision
(c)The Mother informs the Father of the ultimate decision made within 7 days of the decision being made.
The child be known as X and the parents be restrained from changing the child’s name.
Each parent will keep the other informed of:-
(a)their residential and postal address and shall notify the other 48 hours prior to any change;
(b)their mobile telephone number within 48 hours of the change occurring;
(c)the names and addresses of treating medical or other health practitioners who treat the children;
(d)as soon as reasonably possible of any serious medical condition or significant health issue or significant injury suffered by the child or by the parents that significantly impacts on their respective capacity to parent the child.
That in relation to parental responsibility, if there are any decisions that the parents need to make, the parents will communicate with each other via the Talking Parents website and will make a genuine effort to reach agreement.
That each parent shall have the sole responsibility for the child’s day-to-day care, welfare and development during such times as the child is in the respective parent’s care.
LIVE WITH ARRANGEMENTS
Unless otherwise agreed, that the child lives in B Town on the following basis:
(a)With the Father from the commencement of school or 8.30am on each alternate Friday to the commencement of school or 8.30am on the next Thursday;
(b)Otherwise with the mother.
HOLIDAYS
That the living arrangements prescribed in Order 8 be suspended during school holidays and that the child spend the school holidays (applicable to the school that the child is attending) with each parent agreed or in default of agreement, as follows:
(a)With the Mother for all of the Easter school holidays in even numbered years;
(b)With the Father for all of the Easter school holiday period in odd numbered years;
(c)With the Mother for the July/July school holidays in even numbered years;
(d)With the Father for the July/July school holidays in odd numbered years;
(e)With the Mother for the September school holidays in odd numbered years;
(f)With the Father for the September school holidays in even numbered years;
(g)Commencing 2018 and in each even numbered year thereafter that the child spend time with the Mother for the entire Christmas school holidays;
(h)Commencing 2019 and in each odd numbered year thereafter that the child spend time with the Father for the first half of the Christmas school holidays and with the Mother for the second half unless the Father intends to travel overseas, in which case such travel is subject to the provisions of Order 17 and the length of the travel shall not exceed the length of the school holiday period;
(i)All school holidays will be deemed to commence at the conclusion of school on the last day of term and conclude at the commencement of school on the first day of the following term.
SPECIAL DAYS
Unless otherwise agreed between the parties, there will be no orders for the child to spend time with either parent on special days.
ELECTRONIC COMMUNICATION
The children shall communicate with the parent with whom he is not residing each Wednesday between 6 pm and 6.30 pm and at all such times as the child reasonably requests.
CHANGEOVERS
Unless otherwise agreed between the parents, changeover will occur at the child’s school if it is a school day or at The B Town Children’s Contact Centre if it is a non-school day.
MEDICAL AND ALLIED HEALTH
That the parties do all things reasonably required of them by the child’s psychologist including complying with the child psychologist’s written recommendations including facilitating the child’s attendance at such sessions as may be recommended by the child psychologist.
Unless in an emergency, the child will attend upon the B Town clinics of JCU Health for medical care and Minding Family, for psychological care or as recommended by those clinics.
EXCHANGE OF INFORMATION & AUTHORITIES
For the purposes of these Orders and pursuant to s 121 of the Family Law Act 1975, the parents be at liberty to, and must provide a copy of the following documents to, the Mother’s, Father’s and child’s general practitioner and treating mental health practitioner(s):
(a)Family Reports dated 26th February, 2015 and 15th May, 2017;
(b)Affidavit of Dr D filed 23rd September, 2018;
(c)These Orders and the reasons for them.
That this Order be sufficient authority to any school that the child attends to give each parent information about the child’s progress and other related activities and pursuant to s 121 of the Family Law Act 1975, the parents are authorized to provide a copy of this Order to each of the child’s schools.
INTERNATIONAL TRAVEL & PASSPORTS
That either parent be permitted to travel internationally with the child upon the provision of 60 days’ notice in writing and for the purposes of this Order the travelling parent must provide:
(a)A copy of the itinerary
(b)Evidence of the return flights
(c)A contact number whilst the child is overseas so that the travelling parent can facilitate a call to the child once a week whilst overseas or at all times as the child reasonably requests.
That all passports in the name of the child (currently issued by Australia, United Kingdom and United States of America) be held in the B Town Registry of the Family Court of Australia, only to be released on the joint instructions of the parents or by order of the Court.
The passports of the child are to be returned to the B Town Registry of the Family Court of Australia within seven (7) days of the child’s return to Australia.
That the parties shall:
(a)Keep the other parent informed at all times of their postal address;
(b)Keep the other parent informed of any treating medical or other health practitioner who treat the children and authorize that practitioner to provide the other parent with information that they are lawfully able to provide to the child;
(c)Inform the other parent as soon as reasonably practicable of any significant health issue or illness suffered by the child or by the parent that significantly impacts on the parent’s capacity to parent the child.
EDUCATION & EXTRA CIRRICULAR ACTIVITES
Unless otherwise agreed in writing by the parties, that the child be enrolled and remain enrolled in AA School, B Town, for his primary school education.
That the child be permitted to play one team sport and one individual sport and to undertake not more than two cultural activities in each year. The sport or cultural activities shall be decided as follows:
(a)In even numbered years the Mother, in consultation with the child, will prepare a list of not more than three options in each category, and the Father, in consultation with the child, will select the sports or cultural activities that the child will undertake for that year;
(b)In odd numbered years the Father, in consultation with the child, will prepare a list of not more than three options in each category, and the Mother, in consultation with the child, will select the sports or cultural activities that the child will undertake for that year.
Each respective parent will be responsible for taking the child to the activities during the week that the child is living with that parent.
INJUNCTIONS, PRIVACY & NON-DENIGRATION
That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent and parent’s partner respectfully;
(c)Not denigrate or insult the other parent or parent’s partner in the presence or hearing of the child and use their best endeavors to ensure that the child does not remain in the presence of third parties who denigrate/insult the other parent or parent’s partner;
(d)Not discuss any part of the Court proceedings or evidence with the child.
(e)Not record the electronic communication between the child and the other parent.
(f)Provide a quiet and private place for the child to make/receive electronic communication from the other parent.
(g)Not physically discipline the child nor allow any other person to physically discipline the child.
(h)Not record changeovers, either by video or audio recording.
Pursuant to s68 B of the Family Law Act 1975, the Mother and the Father are hereby injuncted and restrained from:
(a) approaching the other parent and/ or the child when the child is in the other parent’s care; or
(b) remaining within a distance of 100 meters of the other parent and/ or the child when the child is in the other’s parent’s care.
SECTION 65L
Pursuant to s65 L the parents attend upon a Family Consultant for parenting education as directed by the Family Consultant and for the purposes of this Order the parents will comply with all such things reasonably required of them by the Family Consultant including but not limited to attending when directed and implementing any plans for a period of one (1) year from the date of this order.
That the appointment of the Independent Children’s Lawyer is to continue for a period of one (1) year from the date of these orders.
That the Independent Children’s Lawyer has liberty to apply on giving each parent seven (7) days’ notice in writing.
FINALISATION OF PARENTING PROCEEDINGS
That otherwise all extant applications for parenting orders be dismissed.
DISPUTE RESOLUTION
That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a) Either attend counselling or mediation with an organization recognized under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
(b) Participate in family dispute resolution with a Family Relationship Centre or a person authorized under s.10G of the Family Law Act 1975 (as amended).
INTERIM PROPERTY
(31) That order 1 of the orders made by Justice Tree on 8 May 2018 be varied by:
(a)The figure of $70,000.00 being replaced with a figure of $50,000.00.
(32) That the Respondent forthwith do all things necessary and continue to forthwith do all things necessary to progress and complete his claim for Total and Permanent Disability (“TPD”) payment with Y Super.
(33) That the Respondent shall immediately authorise his solicitors (Organic Legal) to keep the Applicant’s solicitors informed of the progress, finalisation and payment of the Respondent’s claim for his TPD payment from Y Super and to answer any reasonable queries from the Applicant’s solicitors regarding such claim.
(34) That any payment of the Respondent’s claim for a TPD payment from Y Super will be deposited into Organic Legal’s Trust Account and remain in that account pending agreement between the parties in writing or an order of this Court.
(35) That otherwise the further hearing of the parties’ property proceedings stand adjourned.
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 Netis & Kipling 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 TOWNSVILLE |
FILE NUMBER: TVC809/2015
| Ms Netis |
Applicant
And
| Mr Kipling |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to both the parenting arrangements for the parties’ only child, X (born in 2011 and hence presently 7 years of age) (“the child”), and the division, if any, of their property.
For her part, Ms Netis (“the mother” or “the wife”) seeks orders that she have sole parental responsibility for the child, who should live with her in the United States, and spend block periods of time with Mr Kipling (“the father” or “the husband”) both in the United States and Australia. In the event that relocation was not permitted, she sought that the child live with her in Australia, and spend a block of four nights per fortnight with the father.
For his part, the father opposed the mother being permitted to relocate with the child to the United States, and, as ultimately formulated, accepted that there should be sole parental responsibility given to her, save that there should be some exceptions to that in relation to specific issues. As to the child’s living arrangements, he accepted that he should primarily live with the mother, but contended that the child should spend substantial and significant time with him, comprising a total of six nights per fortnight.
By and large, by the end of the trial, the orders which he proposed broadly aligned with those contended for by the Independent Children's Lawyer, although in her version of orders proposed filed, at my direction, seven days after the trial, the Independent Children's Lawyer changed her position so as to seek equal shared parental responsibility, save as to matters relating to the child’s health and wellbeing, which should solely lie with the mother.
As to property, during the course of submissions, both parties agreed that final orders should be stood over until a substantial payment, which shall shortly be made to the father, is received by him. However both contended for interim orders; the mother said that there should be an interim payment to her in the sum of $50,000.00, whereas the father sought that an injunction which presently restrains him from permitting an investment fund under his control to drop below $70,000.00, be varied so that the sum is reduced to $50,000.00.
On 8 August 2018 I reserved my judgment in the proceedings. This is that decision and the reasons for it.
THE FACTS
The father
The father was born in B Town in 1969, and hence is presently 48 years of age. His parents separated when he was a few months old, and he remained living with his mother who re-partnered. The father apparently flourished academically at school, but when he was aged 13, his step-father was shot by his sister’s boyfriend. Although he remained living in B Town with a nanny, his mother and step-father moved to C Town, seemingly in response to the shooting. The father told Dr D, a psychiatrist who examined the parties for the purposes of these proceedings, that after his step-father’s shooting, he grew up a lot, and “I wasn’t a kid anymore.”
The father had always had an interest in sport, and at age 14 he became a champion. Also at around this time the father developed an interest in firearms. He started using and collecting guns as soon as he was legally able to, and that interest still continues, as I shall detail later.
The father’s half-sister (his father’s daughter to a subsequent relationship) was later killed in a motor vehicle accident.
In due course the father attended university, initially in B Town, but later in Brisbane. He graduated with a Bachelor degree, and then returned to B Town, where he completed an Arts degree. He qualified as a professional, being in June 1994, and initially worked for the public service. He then obtained employment with in the community sector in B Town, where he worked for three years. It was whilst in that employment, when aged 27, that the father suffered a serious panic attack while at work. Dr D reported that this was a great shock to the father, although he did seek appropriate psychological and medical help.
Later that year, the father moved to the UK. He obtained employment in the finance sector.
Between 1998 and 2000, whilst living in the United Kingdom, the father enlisted and served in the armed forces. Then in 2000, he married his first wife, which marriage lasted for 10 years. Also in 2000, he commenced studying a Masters and ultimately graduated with that degree.
At some stage the father and his first wife returned to Australia, and although the father believed that the purpose of doing so was to start and raise a family, it transpired that his wife did not want children. The marriage broke down, apparently over that issue.
The father then obtained further employment in the UK. It was two days before he was due to leave to take up that employment when, in August 2009 at age 39, he met the mother. They kept in contact, and in due course the mother travelled to the UK in October 2009, and commenced to cohabit with the father.
The mother
The mother was born in the US in 1974, and hence is presently 44 years of age. When she was four, her father murdered her mother. In due course, her father was convicted of the murder and jailed, which meant that the mother effectively lost both her parents. She and her elder and younger brothers were placed in the care of a paternal aunt and uncle (seemingly because her mother had no family in the United States, having come from South America). However her uncle was rough and abusive, and her aunt did not adequately protect her from him. She told Dr D that she “learnt to manage” coping with her uncle’s explosive behaviour, including a physical beating that he gave her as a 13 year old.
Notwithstanding her difficult background and home environment, she performed well at school, and thereafter attended college. She told Dr D that, whilst at college, she started to get nightmares about her time at home.
In due course the mother attended university in E State, where she lived for about 10 years. She obtained a Masters Degree in 1999, and thereafter worked in a professional occupation. Whilst there, at the age of 28, she had a panic attack, and saw a counsellor and was given some medication to help her cope with anxiety.
In about 2005 she moved from E State to F State, but returned to E State in 2007. Apparently her intention was to commence studying a doctorate there. However in May 2007, her younger brother committed suicide. Dr D noted that this suicide “stopped her plans” of further study in E State, and, because of her research interests she decided to undertake a PhD in B Town instead.
In 2008 she relocated to Australia to commence doctoral studies at G University. It was whilst in the first year of her PhD study that she met the father, when she was 35 years of age.
The relationship
The parties first cohabited in the UK in October 2009, however in January 2010 they both relocated back to B Town, and after a short time commenced to live together. Also in January 2010, the mother was offered a full scholarship to complete her PhD.
Upon return to B Town, the father took up a role with Company H. Initially that was an administrative position, but in 2011 he moved to a unit within that company, where he was involved in dealing with large clients, principally those engaged in significant industries.
In about October 2010, the mother became pregnant with the child. Upon finding out that she was pregnant, the mother ceased taking the anti-anxiety medication that she was then on, withdrawing from it “cold turkey.”
The parties were married in in the United States in 2011. Later that same year the child was born. Whereas up until then it appears as though the parties’ relationship was not particularly problematic, the mother says that, from about that time, the parties began experiencing serious problems in their marriage.
In part that seems likely to have been related to the fact the father started to experience inter-personal difficulties in his employment with Company H. A detailed history of those difficulties is contained in the report of Dr J, a psychiatrist, dated 17 April 2014. The conflict caused the father to suffer symptoms of disturbed sleep, anger, irritability, panic attacks and ruminating thoughts fixated about the stressors at his work.
The father later told his psychologist, Ms K, that he began taking out his anger and frustration on the mother at home. He now greatly regrets having done so, and accepts that his behaviour contributed to the ultimate breakdown of the relationship. At some stage, perhaps as early as 2012, the mother began keeping a journal of the father’s behaviour. In August 2012 she retained solicitors to advise her in relation to the possibility of separation, particularly as to her prospects of being able to leave Australia with the child.
By July 2013 the father’s mental health had significantly deteriorated. By then he was seeking medical assistance, and was certified unfit for work. He has not returned to work since then, and has, as I understand it, remained on antidepressant medication thereafter. He has also, since April 2013, continued to see Ms K, who gave evidence in the father’s case, and whose notes in relation to the father were in evidence before me.
Although not working, the father began to concentrate more upon a small business. However the mother was becoming increasingly concerned about the father’s lax approach to securing weapons, and particularly that, although there was a gun safe in the parties’ home, the father would nonetheless leave weapons unsecured, including in the living room.
By March 2014, the parties were no longer regularly sharing a bedroom, with the father sleeping on a couch. On about 23 March 2014, the father had accessed a shotgun, but because (he says) he was locked out of the bedroom (which gave access to the room in which the weapons safe was located) when he went to sleep, he simply put the shotgun, which was in a case, underneath the couch. In the morning he still did not place it in the safe, and the mother took the opportunity to take the shotgun and hide it. She says she did so to, in effect, teach the father a lesson about weapons security, however I have difficulty accepting that, as she recorded an ensuing exchange with the father, during which the father repeatedly asked her if she knew where the shotgun was, and she continually denied it. Although she says that she was not then seeking to generate and record evidence, I am well satisfied that was her plan.
By at least 9 May 2014, the mother had engaged again with lawyers. Notes of her attendance with them were in evidence before me.[1] It is plain that the mother was intending to seek to relocate with the child to the United States. It is also clear that she had been told in that conference that, if she were to secure a temporary Domestic Violence Order against the father, it would affect, in the sense that it would “remove,” his weapons licence and guns.
[1] During the course of the trial I ruled that the mother’s conduct in relation to her notes of those consultations had effected a waiver of privilege.
The mother says that on 22 July 2014 she and the father spoke about separation. She contends that on that date the parties separated, albeit they remained living under the one roof. The father disagrees, and says that separation occurred on 6 October 2014. Certainly it is agreed that after 6 October the parties have not lived together. The father says he left the home on that day because he found, on a computer which both of the parties used, records of the mother’s attendance upon her solicitors, and particularly a note of the mother’s dated 15 January 2014, which suggested that she had been, in effect, planning to leave him for over two years. Further, he located what purported to be the fifth draft application for a protection order, to which he was the named respondent. In his trial affidavit the father says “I was shocked and horrified. I literally felt like my whole world had fallen out from under me and I was stunned.” Later he said that he was “shocked, horrified and amazed at the level and extent of [the mother’s] deceit over such a lengthy period of time, and the extent of [the mother’s] planning and coordination to not only leave me, but to contrive to take my son away from me as well.”
He says that he then realised the marriage was over, and moved his possessions into his parents’ house that day, and went to live there.
It is unnecessary for me to determine whether separation occurred in July or October 2014 for the purposes of these proceedings. On any view, by 6 October 2014, the parties were separated.
Post-separation
Much of the trial, and particularly cross-examination of witnesses, focussed upon the parties’ dysfunctional interaction post-separation. However it is unnecessary to traverse it in any detail in these reasons. That is because ultimately both parties accepted that their current relationship is toxic and dysfunctional, and their communication – perhaps more accurately described as attempts at communication – is frequently intemperate and ineffectual. The level of dysfunction is best typified by the fact that neither of the parties have spoken a word to each other since November 2014. From time to time there have been mutual applications for Domestic Violence Orders, not infrequently the police have been involved in the parties’ dealings with each other, the mother has made notifications to the Department of Child Safety, and has reported to police her belief that the father is negligently and inappropriately using and storing firearms. The mother concedes that at one point she downloaded and placed onto the father’s phone a tracking App, she says due to a concern that he may take the child away.
The child has not been protected from exposure to this conflict. It is not necessary to traverse the very sad details of his ordeal; suffice to say the child has been in counselling since early 2015, when he was only three years of age.
The notes of that counselling were in evidence, and make disturbing reading. A consistent theme is the child’s report to his counsellor of helplessness and hopelessness, together with anger, aggressive behaviour, anxiety, bed wetting and nightmares. He has indicated that he believes it is his fault for his parents’ separation and their subsequent conflict, that he has fears of “being taken” by family members, is in a game of tug-of-war, and is reported as having said “you just have to keep going” and “it’s not the end of the world.” Let me emphasise: this child has only recently turned 7 years of age.
In about mid-2015, the mother commenced a relationship with Mr L. She and the child later moved into his house on 10 April 2016, although they moved out again in March 2017. Notwithstanding their non-cohabitation, the relationship continues.
On 10 August 2015 the mother commenced these proceeding.
On 17 May 2016, common law proceedings which the father had brought against Company H settled for a gross sum of $500,000.00, of which it appears $324,965.41 was his net entitlement, although a Medicare refund of nearly $70,000.00 followed in due course.
The father has also successfully concluded claims against his three superannuation providers for, as I understand it, total and permanent disablement entitlements. Only one claim remains outstanding, although apparently the father’s entitlement is accepted, leaving only the quantum of the payment to be determined.
On 5 December 2016, consent interim orders were made by Judge Coker. They provided for the parties to have equal shared parental responsibility, and for the child to live between the parties’ households. That arrangement was complex: in week 1, the child lived with the father on Thursday, Friday, Saturday and Sunday nights, but then in week 2, with the father on Tuesday and Wednesday nights. Why the parties required the child to go into the mother’s care for the Monday night in week 2 was not explained in the evidence.
Notwithstanding that the orders were made by consent, the father did not adhere to them, and on 10 April 2017, the mother commenced contravention proceedings. On 18 October 2017, for reasons delivered on that day,[2] Judge Coker found 7 of the mother’s alleged contraventions were established. Most of these related to the father’s failure to comply with the requirements of changeovers of the child, although other established breaches related to restraints on communication, and the deposit of the child’s passports with the court.
[2] [2017] FCCA 3418.
In the course of his Honour’s reasons, Judge Coker traversed some of the parties’ email communication, and referred to what he described as the father’s “sense of entitlement” when dealing with the mother: he said “it is dictatorial, overbearing and reflective generally of my assessment of the father’s behaviour in relation to this matter.”
Current situation
As at the time of trial, both parties remained living in B Town. The child primarily lives with the mother, but pursuant to the orders made on 5 December 2016, spends a total of six nights per fortnight with the father.
The mother is employed at G University. She works four days a week and earns approximately $80,000.00 per annum. Her contract concludes on 31 December 2020.
As I have indicated, the mother remains in a relationship with Mr L, however does not cohabit with him (although it appears as though they spend some overnights together). She remains suffering from anxiety. Over the years she has had a variety of diagnosis of her condition, including major depression, and post-traumatic stress disorder. However it is plain that whatever terminology is used, anxiety is a core problem for her.
For his part the father also continues to struggle with mental health issues, although again the diagnoses have varied. In her report dated 23 July 2018, his present psychologist, Ms K, did not cavil with a psychiatric diagnosis in March 2016 that the father suffers from major depressive disorder and generalised anxiety disorder, whereas as I understand his evidence, Dr D seemed to lean toward a diagnosis of adjustment disorder in remission. Again it does not really matter what terminology is deployed; the father continues to grapple with anxiety issues, and these may be compounded by his personality, in that Dr D thought that the father had narcissistic traits.
The father is in a relationship with a woman who lives in Sydney, and apparently spends time with her each alternate week. He is not in employment, and is precluded from obtaining Centrelink benefits until 20 July 2020. He has, in effect, been living off the various payments that he has received arising from his workplace injury, although he concedes that he will shortly need to resume employment, perhaps on a part-time basis. He continues to operate his business, but it does not appear to be particularly profitable.
The child is presently completing year one at a private school in B Town. In her affidavit, the mother reports:
[The child] had difficulties with confidence and focus but he is currently making progress. His most recent semester reported that [the child] is working at a satisfactory level, and in her notes, [Ms M] [presumably the child’s teacher] stated “he is a capable learner, however sometimes his lack of confidence and his own abilities inhibits his ability to engage in learning tasks and produce the standard of work or which he is capable.” He enjoys and excels at maths and his teacher reports that he often raises his hand to answer questions in class.
The child has not travelled overseas since he was six months old, and has not spent face-to-face time with any of his United States relatives since then.
The father has been assessed for child support, but has never voluntarily paid it. It has only ever been paid by garnishee, including on the eve of trial, when a sum of nearly $20,000.00 was taken from his investment account. There is ongoing litigation between the parties in relation to child support, with the father intending to appeal an unfavourable ruling from the AAT to the Federal Court.
THE ISSUES
With the assistance of the parties at the Trial Management Hearing, I identified the following as being the issues in this case, in that their resolution is likely to substantially inform the ultimate exercise of my discretion as to parenting orders.
1.What is the nature of the relationship between each parent and child;
2.What risk, if any, does each parent/parent’s household pose to the child, and what, if any, means are available to adequately mitigate such risk;
3.Would the child benefit from a meaningful relationship with each parent and their respective families, and if so, how might it best be facilitated;
4.Is it reasonably practicable for the mother to remain living in B Town, and if so, what effect would it have upon:
(a)Her emotional and financial circumstances; and
(b)Her parenting capacity.
5.What benefits would relocation to the United States of America have for the mother, particularly in relation to:
(a)Her financial circumstances;
(b)Her family support and hence emotional circumstances;
(c)Her parenting capacity.
6.Is it reasonably practicable for the father to relocate to the United States of America, and if so, what effect would doing so have upon:
(a)His emotional and financial circumstances;
(b)His parenting capacity.
7.Would each parent facilitate a meaningful relationship between the other parent and child.
8.If the mother and child relocate, but the father does not, is it reasonably practicable for the father to spend time with the child in the United States of America, or for the child to spend time with him in Australia.
9.What would be the likely effect on the child of each party’s proposal.
10.Could the parties’ communication adequately support equal shared parental responsibility.
Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of the residually relevant s 60CC factors, I will address those issues and then proceed to determine the appropriate parenting orders in this case.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a 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).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[3]
[3] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
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 persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
Relocation
The application of these provisions in the context of relocation cases has been discussed by many authorities. In the relatively recent decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paragraphs 79 to 81, where her Honour said as follows:
79. In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Nothing in that extract is inconsistent with the High Court’s later decision in MRR v GR (2010) 240 CLR 461. Further, I am mindful that the points enumerated by Boland J are not to be employed as some kind of checklist: Deiter & Deiter [2011] FamCAFC 82.
More recently in Zahawi & Rayne [2016] FamCAFC 90 the Full Court said (footnotes omitted):
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[4]
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation.[5] And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
[4] U v U (2002) FLC 93-112, at [92].
[5]See, for example, the comments of Kirby J in AMS v AIF; AIF v AMS (1999) FLC 92-852, at [77]–[78].
ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN CHILD AND BOTH PARENTS
Ultimately this issue did not prove to be controversial. The Family Report writer, Ms N, gave unchallenged evidence that the mother has a very close relationship with the child, from which he derives comfort, nurture and support. As to the father, although Ms N’s evidence was that the child loves him, she was troubled that she was not able to evaluate their relationship in a home environment, but rather undertook her observation at an ice cream parlour. She described that as being an “artificial environment,” which made observation of the relationship between the father and the child more difficult, however she nonetheless concluded that the child was close to the father. She found it difficult to form a view as to the father’s commitment to the child, but even in the environment where she observed his engagement with the child, formed the view that he was caring.
She thought, on the material that she had been provided with, that the father provided nurture to the child, but queried his support of him, referring to an occasion when the father had travelled to the UK to attend a friend’s wedding, but did not communicate with the child during that absence. She thought that the child had “played up” when unable to communicate with the father then, although that in itself was evidence that the child had a strong bond with the father, and wanted to have regular contact with him.
Her evidence was that, on the whole, the mother was more child focussed than the father, and more in tune with his emotions. That would seem to be borne out in other evidence, for example, the mother’s commitment to the child attending counselling to help him deal with, at least initially, recurrent nightmares when he was three years old, compared with the father’s seeming ambivalence, or even opposition, to such a course.
Ultimately I am satisfied that the child has a good relationship with each parent, albeit differing, as described by Ms N.
ISSUE 2 – RISK POSED BY EACH PARENT
Ultimately neither party argued with any vigour that the orders for which they contended were materially informed by questions of any risk posed by the other parent. That had not always been the case. For instance the father led evidence that the mother’s partner had on several occasions physically disciplined the child, however in cross-examination Mr L denied that, and the evidence would not permit me to conclude that he had physically disciplined the child, or indeed disciplined the child at all.
Likewise, at one stage it appeared as though the mother was arguing that the father’s unsafe storage of firearms posed a risk of harm to the child, but again, not only was it not pressed with any real fervour, but more, the evidence could not possibly permit me to conclude that the father presently does not properly or safely store or handle the weapons in his possession.
Similarly, although the mother emphasised the father’s psychiatric diagnosis, and particularly the fact that he suffers from hypersomnia (a condition which causes excessive sleeping) the evidence of the father’s psychologist, Ms K, under cross-examination, made it clear that the father can nonetheless be roused by an alarm, and otherwise the effect of hypersomnia on him is only to make him feel tired. As to the father’s psychiatric illness generally, Ms N’s view was that it did not of itself create a risk to the child, albeit that it did cause the father to suffer from distorted thinking. However she empathised that the mother’s psychiatric condition likewise created distorted thinking in her.
Leaving aside those risks, there was one risk which was identified by all parties, however it was posed by both households, namely the risk of continued exposure of the child to parental conflict.
As to the mother, Ms N emphasised that her distorted thinking, arising from her anxiety, may cause her to respond poorly when she encounters the father when the child is in her care. She illustrated this by reference to an incident which occurred when the mother and child were on the street in B Town, and the child saw the father on the balcony of his unit, waving to them. The mother said that she felt that the father was encroaching upon her time with the child. There then followed a long period of the father and child waving to each other; Ms N said that the appropriate response on both parties would have been to have moved away, so as to dissolve the tension, but neither did so.
As to the father, Ms N was of the view that the child has been exposed to examples of conflict when in the father’s care, and indeed the evidence amply supports that.
Ms N identified changeovers of the child between the parents as being a source of tension, of which the child was aware. She therefore recommended that one means of reducing his exposure to the conflict would be to have changeovers effected without the parents being directly involved, for instance, for one parent to drop the child at school and the other to collect the child at the end of the school day. Indeed she was so strongly of the view that both parents should not be present at changeovers, that she thought that this may be one of those cases where parents could not share special events, such as birthdays, Christmas and Easter, because it would require changeovers where both parents were present.
She thought that the mother’s relocation to the United States, whilst not solving the parental conflict, might reduce the mother’s anxiety at the prospect of meeting the father inadvertently in B Town, and to that extent provide some mitigation to the conflict.
One of the real difficulties which the parties’ conflict gives rise to is their poor communication from time to time. Whilst in his trial affidavit the father annexed some relatively recent examples of moderate, and even child focussed, communication, it became apparent by reference to material annexed to the mother’s affidavit, that he had been highly selective, and during the same period, there had been instances of appalling communication between the parties. As to that, the father asserts that he uses a business like tone in his communications, but that is not the view of others, and indeed even his own psychologist has counselled him to consider his correspondence from the point of view of the recipient. Ms N thought the father’s correspondence was directive in nature, and caused an adverse response in the mother, accepting that her anxiety does lead to distorted thinking and perceptions.
Given the problematic written communication between the parties, and the fact that they have not – even in anger – spoken to each other since November 2014, during the course of the trial, the parties engaged with one of the court’s in-house family consultants, Ms P. The purpose of that engagement was to see whether or not there was any prospect of the parties being able to communicate in a better way than they do. Ms P then gave evidence before me. She said that she found the mother quite reflective and child focussed, and she still has hope of moving forward in repairing her communication with the father. However the mother reported that she had not observed any change in the father’s behaviour since the contravention proceedings.
As to the father, Ms P was of the view that he was not as reflective as the mother, and was focussed upon the history between the parties. Although he protested to her that he was not being denigratory of the mother, he would nonetheless go on to express matters critical of her, stating words to the effect, “but that’s just the way it is.” To Ms P, the father rejected that his communication style was directive, but insisted that it was business like. Ultimately she concluded that the father has an entrenched, directive style of communication.
Against that background I inquired of Ms P whether there was any prospect that the parties could be counselled to a better style of communication. She thought that there was a possibility that something akin to relationship counselling for a couple, accepting that the parties are no longer a couple, might work. She thought the role of the counsellor would be both one of referee and coach to the parties, and the counsellor would provide feedback in relation to the quality of each individual’s communication, and make suggestions as to how it might be improved.
Under cross-examination by counsel for the father, Ms P’s evidence was that the father needed to undertake serious reflection as to his communication style, and needs to be supported to improve it. She thought that the father only superficially demonstrated insight as to the impact of his poor communication on the child, and lacked full insight of the impact of the ongoing entrenched conflict upon the child.
Under cross-examination by counsel for the mother, Ms P noted that although the father was the person whose communication style was most problematic, and it was he who needed to change, nonetheless the mother needed to be ready to receive any changed communication style, if it occurred. She agreed that, from her conversation with the father, there was no indication that he perceived a need to change, and that informed the likelihood that he would not readily do so. However she nonetheless was a strong advocate for some form of joint counselling of the parties.
Although Ms N was not enthusiastic about that sort of counselling, she did recommend that, if an appropriate person could be found, the father’s communication be scrutinised and vetted, and if needs be modified, before being sent to the mother. She said that she herself had undertaken such a role in the past, although that experience left her unwilling to do it again. She said it was very time intensive and difficult, but nonetheless useful for the person concerned.
Although not with any great enthusiasm that I could detect, Ms K indicated that she could perhaps be of assistance to the father in this respect, particularly given their existing therapeutic relationship, which is now of long standing.
I assess the father’s communication with the mother as being a significant problem in their ongoing co-parenting relationship. I accept that, if the father were able to find someone to robustly critique proposed communications with the mother, and to modify them where required, that would likely be of great assistance in mitigating the mother’s adverse response to them, and hence the perpetuation of the parental conflict. However no attempt at such a moderation has been made, and the extent to which the father would be willing to adjust his communication style is hence unclear, and very difficult to predict.
Ultimately I am satisfied that the greatest risk which the parties pose to the child is a continuation of their exposure of him to their parental conflict. The means available to mitigate it are limited, and the prospects of those mitigatory measures succeeding is unclear.
ISSUE 3 – BENEFIT FROM MEANINGFUL RELATIONSHIP WITH EACH PARENT AND BEST MEANS OF FACILITATION
There was no dispute between the parties that the child would benefit from a meaningful relationship with each of them and their respective families. Likewise, there was, as I understand it, no dispute that the best means of facilitating that relationship would be for the child to regularly spend face-to-face time with each parent, who should be emotionally available during that time with the child, and for the parents to share in the child’s life – both its joy and its commiserations. Of course, all of that was predicated upon the child not thereby being exposed to parental conflict.
However Ms N’s evidence also considered how the meaningful relationship might be adequately maintained, rather than optimally. As to that, she thought that if the child and mother were living in the United States, the meaningful relationship could be adequately maintained by regular communication between the father and child using either Skype, or another means of visual communication, although she noted that to maintain an adequate relationship using that means would place considerable demands on both parents and the child, particularly given that the time difference between the eastern seaboard of the United States and Australia. She thought that such a regime would be labour intensive, and the mother would need to ensure that the child is available and can interact engagingly with the father. She further said that spending block periods of time with the father, both in Australia and United States, would be adequate to maintain the meaningful relationship, although far from ideal.
She was not seriously challenged in relation to this evidence, and I accept it.
ISSUE 4 – REASONABLE PRACTICABILITY OF MOTHER REMAINING IN B TOWN AND EFFECT UPON HER OF DOING SO
This case was a little unusual in that the mother did not say that it was impossible for her to continue living in B Town. Indeed her position, in the event that relocation were not permitted, was not to articulate a so-called “fall-back” position, but rather to positively advance an alternative proposal.
The facts would not permit me to conclude that the mother is incapable of continuing to live in B Town. She is presently in employment at G University on a salary of $80,000.00 per annum, on a contracted position that will not expire until 31 December 2020. She has a history of post-separation employment in B Town, and although jobs suitable for her may not be as plentiful in B Town as in the United States, I did not understand the mother to go so far as to say that there was no prospect of her again obtaining suitable employment after 2020.
Further, the mother is in an intimate relationship with Mr L, and has been for the last two and a half years. Whilst they no longer live together, it does not seem that this change has diminished either that relationship, or the support which the mother derives from it. Moreover the mother has friends in B Town, including one close friend who has been of great support for her in the last 10 years, and indeed, attended court most days to support the mother through the hearing before me.
Although in part relying upon the limited prospects of employment after 2020 in B Town, really the mother’s case was principally founded upon her anxiety associated with living in B Town, and particularly the residual anxiety that she always has at the prospect of inadvertently running into the father, which can occur quite easily. On the occasions when she does run into the father when the child is in her care, her anxiety spikes, to the point where it can, in the moment, diminish her parenting capacity, because of her response to the father. As to that, the mother’s counsellor, Ms O, opined that in those moments, the mother would either “flee, fight or freeze.”
As to the residual anxiety at the prospect of running into the father, Ms N’s evidence was that it did not impact upon the mother’s parenting capacity generally, but rather there was only an adverse impact on the occasions when she did indeed run into the father.
Ultimately I am satisfied that remaining in B Town will perpetuate the mother’s residual anxiety, but not adversely impact upon her parenting capacity unless and until she has the child in her care and encounters the father unexpectedly, but even then, any diminished parenting capacity will only be fleeting.
As to her financial circumstances, I am satisfied that she is presently reasonably remunerated, and there is some prospect of her continuing in employment from 2021 forward in some capacity.
There are two additional observations I should make. The first is that, without outside assistance of third parties, the mother has been able to fund this litigation, which she conceded has been enormously expensive. With the conclusion of this litigation, that drain on her financial circumstances will hopefully terminate.
The second is that during an emotional time of her evidence, the mother indicated that her desire to go to the United States was really to break the present impasse between the parties, which she believes is significantly adversely affecting the child. She believes that she is unable to properly protect the child from the conflict in Australia, and it is that, rather than some diminished parenting capacity, which motivates her to want to leave B Town. However that does not mean that it is not reasonably practicable for her to continue living there.
Therefore combining those matters, I am satisfied that it is reasonably practicable for the mother to remain living in B Town, and doing so is unlikely to, in any material way, diminish her parenting capacity.
ISSUE 5 – BENEFITS TO MOTHER OF RELOCATION
The first benefit which the mother says she would obtain from relocation, albeit perhaps not first in time, is financial. Her evidence was that, if she were to obtain full-time work in her field in the US, her salary would increase substantially, to about $204,975.00 (AUD). Further, she says that there are far more opportunities to obtain employment in her field in the US, than there are in B Town.
This evidence was not challenged in any material way. That said, the mother conceded that, at least initially, her focus would be on helping the child settle into his new environment, rather than her employment, and hence the increased financial benefits might be deferred.
Nonetheless, there would be a degree of financial stability immediately available to her, in that she proposes to live with her 88 year old aunt (who raised her and who she refers to as her mother) in what sounds to be a comfortable home in Q Town. It is the home she grew up in. The uncle who beat and abused her is now dead, and she denies that living again in that house would be traumatic or disturbing for her.
An affidavit of the aunt was read into evidence, without her being required for cross-examination. She says that she is willing to provide a home free of charge to the mother and the child for as long as they wish. She said it is a low set, four bedroom, two bathroom home, with plenty of space, and a backyard with ample play area.
The mother says that she would not only have the emotional support of her aunt in New York, but that she would also have the benefit of a tight knit church community, including people that she has known since birth. That said, it appears as though the mother has not lived there since 1992 (ie some 26 years) and it is not suggested that she has an established circle of friends that she could simply move back into. Moreover, I note that her aunt is now of advanced years, although she is in good health and the mother says still quite active.
Ms N opined that the real benefit to the mother of a move to the United States would be the reduction of her anxiety at the prospect of inadvertently coming into contact with the father. She thought that this might improve her parenting capacity, although the degree of any improvement was not explored with her.
I am satisfied that relocation would provide significant financial benefit to the mother, both in the form of free housing and improved employment opportunities and remuneration, and some improvement in her emotional circumstances, both from having her aunt close by, and from the reduction of her anxiety at the prospect of meeting the father unexpectedly. There is some prospect that her parenting capacity may therefore improve, but I am unable to predict to what extent, if at all.
ISSUE 6 – REASONABLE PRACTICABILITY FOR FATHER TO RELOCATE
The father is a UK citizen, having relinquished his Australian citizenship some years ago. He is not a United States citizen, and although the mother contended that he could conduct his business from there, the reality is that his ability to obtain a visa which would permit him to enter and remain in the United States indefinitely is doubtful. The mother did point to the fact that she and the father are still in fact married to each other, but I accept Ms N’s evidence, that using that as the means for obtaining residence in the United States, would be akin to fraud. Plainly the marriage is no longer intact, even if the legal status continues.
I am not satisfied that it is reasonably practicable for the father to relocate to the United States.
ISSUE 7 – WOULD PARENTS FACILITATE MEANINGFUL RELATIONSHIP BETWEEN OTHER AND CHILD
As the case ultimately evolved, it was only the capacity of the mother to facilitate a relationship between the child and the father if relocation were permitted, that loomed as an issue. Interestingly, the father did not place any real emphasis upon this in his case, but nonetheless it is a matter of some moment.
Ms N’s unchallenged evidence was that the mother has a higher capacity to facilitate a relationship between the father and the child, than he has to facilitate a relationship between the child and her. She described it as the mother being “ahead in the race.” She said that the mother was more emotionally aligned and focussed on the child’s needs.
However Ms N did emphasise the practical difficulty, and somewhat onerous nature, of the task that would fall to the mother. There is the difficulty of the time difference, which she thought would require the father to communicate with the child early in the morning Australian time, so as to be speaking with the child in the afternoon. Additionally, she noted that it would require the mother to provide regular updates in relation to the child to the father, so as he could maintain engaging conversations with him. Further, although the child is now of an age where he could operate the communications equipment himself, there would still be the task of reminding him and encouraging him to initiate or engage in the calls.
Ultimately I am persuaded that, although the mother is plainly the better equipped to facilitate a relationship between the child and father, she is untested in facilitating a relationship long distance, and there are some practical issues which may make the facilitation problematic.
ISSUE 8 – REASONABLE PRACTICABILITY FOR FATHER TO SPEND TIME WITH CHILD IN UNITED STATES OR CHILD IN AUSTRALIA
The father is presently not in employment, although he does conduct his business. There is therefore presently no restriction on his time. Moreover he seems willing to travel to Sydney every fortnight to spend time with his partner, and has lived and travelled overseas in the past. That said, as shall be seen when reviewing the property situation, he is no longer financially well off, having spent a considerable sum of money in the last few years. Moreover, his employability may be reduced in view of his psychiatric history and condition, although the father did concede that he will likely have to shortly re-engage in employment, albeit perhaps part-time. In the event that he were to regain employment, that would likely place some practical restrictions on the amount of time which he could take off to spend time with the child.
Ms N conjectured that an ideal scenario, if relocation were permitted, would be for the father to spend time with the child in the United States during school terms, so as he could be involved in the child’s education and get to know his teachers. That, however, would require him to obtain appropriate accommodation within a reasonable commuting distance of the child’s school, and the cost of that was not explored in evidence before me. Further, the presence of the father in the mother’s neighbourhood may unnerve her, in the way that she is anxious at the prospect of running into the father in B Town.
Certainly it is clear that the father would be eligible for temporary visas to spend time in the United States, and nothing in his history would see him likely ineligible to travel regularly to the United States.
Upon balance, I am satisfied that, if the mother and child were permitted to relocate, it would be reasonably practicable for the father to spend time with the child in the United States and Australia, albeit likely less than ideal in terms of duration and frequency.
ISSUE 9 – EFFECT ON CHILD OF PARTIES’ PROPOSALS
Unfortunately, both parties’ proposals changed towards the end of the trial, and particularly after Ms N’s evidence had concluded. At the time that Ms N was questioned in relation to this issue, the mother was proposing a ten week period of time between the father and the child, including a block of six weeks in Australia during the United States Summer, and the father was proposing equal time in Australia. However Ms N was highly critical of the mother’s proposal, and said that the child presently could cope with two weeks away from the mother, and perhaps three, but certainly not six. She explained it on the basis that children can be kept “on the go” for about two weeks when aged seven, but thereafter they start to reflect upon the missing or absent parent. Ms N thought it would lead to the child being of low mood, irritable, and seen as “cranky.” That would lead to him, perhaps, experiencing diminished enjoyment when spending time with the father. She thought that a child of 10 years would be sufficiently resilient to withstand a six week block, but certainly not a seven year old.
That caused the mother to revise her proposals more in line with Ms N’s recommendations. However there are still some practical difficulties which the future may hold. Principal amongst those is the likely concern which the mother may have, if sending the child half way around the world to spend block time with the father, as to his then state of mental functioning and health. I can readily foresee that, in the event that the mother has concerns about the father’s mental health, she would be reluctant – and justifiably so – to send the child into potential danger. On a practical level, if the block time did not occur, that is likely to significantly adversely affect the relationship between the father and the child.
Counsel for the father cross-examined Ms N by reference to the likely impact on the child, if relocation were permitted, of being absent from the father. She agreed that there would be a reduction in time, and that there was a risk the child may blame himself for that. However she went on to say that the child’s response would likely depend on how the change in circumstances was explained to him. If both parents supported the child relocating, it would likely not unduly burden him, but if the father were to blame the mother, and the child were aware of that, then problems would develop. She thought that perhaps the best person to explain any relocation to the child might be his counsellor.
She was further cross-examined about the connections which the child has in B Town, in the way of his school, circle of friends, and grandparents, but Ms N emphasised that children are able to cope with changes in their arrangements, and many children each year change their communities.
I am satisfied that the effect of relocation would be to diminish the quality and frequency of the relationship which the child has with the father, and in the short term the child is likely to experience a degree of confusion, and be upset. I regret to say that I doubt the father would be able to shield the child from his devastation, because he does not have a demonstrated history, or perhaps even capacity, of shielding the child from his views in relation to other matters adverse to the mother. Moreover I am comfortably satisfied that, on occasions when the child is leaving the father’s care after block periods of time, the father is likely to be visibly upset and perhaps tearful. That is likely to adversely affect the child, albeit perhaps only for a short period of time.
As to the father’s proposal, unless and until the parties can improve their communication, and learn to shield the child from the parental conflict, it is likely that the child will still experience the troubling distress which he has consistently reported to his counsellor for some years. Although Ms N’s evidence was that the child may presently be emotionally able to cope with week about care, she was troubled that there was little alignment between the two parents’ households. She described what she referred to as the “wet towel” test. By that she meant that if a child was expected to pick a wet towel in one household, he should be expected to pick it up in the other. Of course there are far more significant things than towels that need to be aligned, for instance bedtime and homework routines, but it is clear that these parties are unable to communicate with a view to ensuring a smooth alignment between their households. Ms N opined that this is a common problem in high conflict parents, where one parent can even deliberately defy the other by having a different regime, simply to prove a point.
That said, one of the unusual features of the regime of orders that prevailed at the time of trial, was that the father’s six nights were not in a block, but rather in two blocks, separated by one night where the child returned to the mother. I am well satisfied that arrangement has unduly burdened the child with changeovers, and hence exposure to the parental conflict. I am satisfied that a reduction in changeovers, as the father’s and Independent Children's Lawyer’s proposals contemplates, will be of benefit to the child, and may reduce his experience of the “tug-of-war” between the parents.
After the High Court’s decision in Stanford v Stanford[6] it may be taken as commonly accepted that the first step requires the identification of the parties existing legal and equitable interests in property, and thereafter, it is incumbent upon the court at the outset to determine whether or not it is just and equitable to make an order altering the interests of the parties in that property. However as the Court itself indicated in Stanford, in many cases that step will be uncontroversial: for instance, if there is jointly owned property which is impracticable for the parties to jointly enjoy consequent upon separation, such as the former matrimonial home.
Interim property division
[6](2012) 247 CLR 108.
The law relating to interim property applications such as these is settled by the Full Court authorities of Harris & Harris (1993) FLC 92-375, as modified by Strahan & Strahan (interim property orders) 2011 FLC 93-466. Particularly, it is no longer necessary to establish compelling circumstances for there to be an interim order, but rather, the court only needs to be satisfied that it is appropriate to exercise the undoubted power to make an interim division. However, if such a power is exercised, it must be performed within the section 79 parameters and because it is necessarily imprecise, must be exercised conservatively.
Add-Backs
In Bevan & Bevan (2013) FLC 93-545 at [79], Bryand CJ and Thackray J said:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
An earlier Full Court decision in Omancini & Omancini (2005) FLC 93-218 said:
30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-816 the Full Court said at 85,262:
11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
“In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.”
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec.79.
31. As the Full Court said in Browne and Green (1999) FLC 92-873 at 86,360:
“44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction – a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.”
However reasonable living expenses should not be added back, unless they are found to be extravagant: Wilde & Wilde [2007] FamCA 1044 at [184-[185].
Personal injury and other related claims
The proceeds of a claim for damages for personal injury is to be treated as a contribution by the party who suffered the injury, but not considered in isolation, as all contributions must be weighed and considered at the same time: Aleksovski & Aleksovski [1996] FamCA 111.
However a payment in respect of disablement made under a policy of superannuation maintained in respect of the employment of a party during the course of the relationship, is to be considered differently, in that the other party may have indirectly contributed to that superannuation interest: Perrin & Perrin(No 2) [2018] FamCAFC 122 at [39].
The pool
From the parties’ written submissions filed after the trial had otherwise concluded, it now appears the parties have agreed the identity and value of their assets and liabilities, as follows:
Asset
Husband
Wife
R Street, Suburb S
$325,000
KCL
$10,000
Motor vehicle
$5,500
4WD
$2,000
Antiques/Memorabilia
$25,000
Shares
$71,324
Watch
$3,000
Total Assets
$439,824
$2,000
Liabilities
ANZ Overdraft
$9,206
CBA Home Loan
$378,492
Student Loan
$116,611
T Bank Credit Card
$9,568
U Bank Credit Card
$16,782
ANZ Credit Card ending #70
$13,181
ANZ Credit Card ending #97
$739
NAB Credit Card ending #78
$5,649
NAB Credit Card ending #62 (Rennick Lawyers)
$8,000
V Street Fees
$2,100
$2,100
Total Liabilities
$443,717
$118,711
TOTAL NON-SUPER:
($3,893)
($116,711)
Superannuation
W Super (H)
$11,981
Y Super (H)
$71,290
Z Super (W)
$41,556
Total Superannuation:
$83,271
$41,556
TOTAL (INCLUDING SUPERANNUATION TREATED AS VESTED)
$79,378
($75,155)
A number of observations about that table need to be made. The first is that although at trial the mother contended that the liabilities should be assessed as at the date of separation, rather than at the date of trial, she now appears to no longer press that. Consistent with that, she had identified the value of her student loan as being only $97,000.00, whereas in fact it presently stands at something in excess of $116,611.00. However for some reason, the father has maintained in his written submissions the figure of $97,000.00 for that liability. Perhaps it is a mistake; certainly there is no basis I can discern for so treating it.
The next difficulty relates to the mother’s claim, (assuming it is still pressed) that the father’s personal injury claim settlement proceeds and TPD payments totalling over $400,000.00, should be added back into the pool, on the grounds that the husband’s expenditure of much of that sum was wastage. A number of observations need to be made, however. The first is that the shares of $71,324 are derived from those payments, so not all of the $400,000.00 has been spent. The second is that the husband was entitled to spend those monies to meet his reasonable living expenses, although I do not know what they were. Nonetheless, plainly the whole of the difference between what he received, and what remains, cannot simply be added back, and otherwise the quantum of any add-back cannot be determined. I would not exercise my discretion to add-back an unknown sum. However I am provisionally satisfied that the largely unexplained dissipation of the father’s fund can be sufficiently accommodated by dividing such assets as remain, cognisant of that expenditure, but also mindful that source of the bulk of those funds must be treated as a contribution by the husband.
Next, the husband contends that the wife’s United States student loan should not be treated as a live liability, as he says that its recovery is unlikely to ever be pursued by United States authorities. The wife disagrees, and says she has to regularly arrange for the present forbearance to continue. However that, to an extent, begs the question of how long that forbearance can last. Plainly it has been outstanding for many years, albeit presumably accruing interest. The circumstances in which it would become actively pursued by the authorities was not canvassed in any real detail in the trial.
Certainly it does not seem that actual repayment shall be required in the short term, and perhaps medium and even longer term either.
The final difficulty is that which led to both parties contending that only interim property orders should be made, namely that there is a sum of perhaps as much as $169,000.00, which will be shortly payable to the husband arising out of a claim that has been accepted under one of his superannuation policies. They only reached that position during the course of submissions. Up until then the mother had been seeking orders that would attach to that payment when it became available, whereas the father was contending it should be simply treated as a financial resource. Wisely, in my view, the parties agreed that, given its apparent imminence, the final determination of property proceedings’ determination should await its receipt.
Based upon the above observations, I am provisionally satisfied that the present value of the net pool is $4,223.00, but that it will shortly be augmented by perhaps as much as $169,000.00 arising from the husband’s superannuation claim. However it is likely that the sum will prove to be less than $169,000.00, to take into account the solicitors’ fees incurred in obtaining the payment. Nonetheless one could legitimately expect the sum received to at least exceed $100,000.00.
However, and to my mind this is significant, leaving aside the imminent payment, and acknowledging that the parties’ superannuation is protected, their net position is overwhelmingly one of debt to the extent of $120,604.00.
Just and equitable to alter interests at all?
The husband contends that it is not just and equitable to make any order adjusting the parties’ property interests whatsoever. He points particularly to the fact that the parties maintained separate finances during the course of the relationship, and that there are no jointly owned assets. However I am not presently persuaded by those arguments. Particularly I am satisfied that at least in relation to the husband’s total and permanent disability payments, they arise from, at least in part, his employment during the course of the marriage, and triggered by his work injury. They are conceptually therefore different to a personal injuries payment, although they share some characteristics. Further, the wife will have the primary care of the child, who is only 7 years of age. I am therefore satisfied that, on the present evidence, this is a case where it will be just and equitable to adjust the parties’ property interests.
Contributions
At paragraph 431 of his trial affidavit, the husband set out what he asserts to have been the initial financial contributions which he made to the relationship, which showed a net asset position of $21,000.00, together with $12,000.00 in superannuation. For her part, at paragraph 320 or her trial affidavit, the wife identified what she says she brought into the relationship, albeit that is different to what she asserted in an earlier affidavit. It is impossible to determine, given that conflict, what the wife in fact brought into the relationship, but I am satisfied that it was positive in terms of value, and probably at somewhere about the same level as what the husband brought in.
I therefore provisionally assess the initial financial contributions as roughly equal.
Thereafter, it is clear that the husband was earning substantially more than the wife, and hence his subsequent financial contributions during the course of the relationship exceeded the wife’s. Moreover, post-separation he has received his personal injury claim settlement, together with significant TPD payments. A further TPD payment is imminent.
It is not possible to determine from the personal injuries settlement what component of it is in relation to the husband’s future economic loss, but I infer it was likely to have been at least a substantial component of the claim.
I do not overlook the fact that for the last four years, the wife has been in employment, and has from those funds contributed to the costs of the upkeep of the child, but it does not appear as though that income has translated into assets.
It is plain that the husband has made an overwhelmingly greater financial contribution to the present pool of the assets of the parties.
As to non-financial contributions, the husband asserts that they were equal, but I reject that claim. During the course of the relationship, the husband was in full-time work until July 2013, and thereafter was disabled. Whilst I do not accept that he made no contribution to the household post July 2013, I find that, firstly, his contribution in that respect was likely reduced, and secondly, that his condition made the wife’s contribution – both before and after July 2013 – more difficult in the circumstances. I accept that therefore the wife made greater non-financial contributions.
Section 75(2) factors
As to s 75(2) factors, both parties have problematic mental health, although Dr D thought that the husband’s condition was in remission.
Neither party has any financial resource (accepting that the remaining TPD payment will be property by the time of any final order) and the wife is, as I have indicated, in receipt of an $80,000.00 per annum income. The husband presently only has the income earned on the $71,324.00 investment fund, and any profit he can earn from his business.
Plainly the wife is physically and mentally capable of appropriate employment, but a question mark hangs over the husband in that respect. Dr D thought that the husband could presently return to work, and the fact that he had not was not so much explicable by reference to his mental health, but rather reflective of some avoidant behaviour, perhaps the result of fearfulness of rejection or suffering further injury in a workplace. Therefore whilst I am not persuaded that the husband has no capacity for appropriate gainful employment, the extent of that capacity remains untested.
Under the orders which I have made in relation to parenting, the mother will have the primary care of the child for eight nights per fortnight.
As I understood her argument, the wife contends that the husband’s considerable expenditure in the last few years is a factor which should be taken into account. I do so, but I note that the funds which he has expended were principally derived from his personal injury payment, which the authorities say must be taken to be a contribution by him. Therefore, in a sense, his expenditure has been of funds contributed by him, although to the extent that they were superannuation related TPD payments, there has likely been some indirect contribution to at least some of those by the wife.
Ultimately it seems to me that, at least at present, the s 75(2) factors weigh slightly in favour of the husband.
Just and equitable
Turning then to the question of what is a just and equitable division of the parties’ property, unless and until the pool is settled, that cannot presently be undertaken with any certainty. That is because the remaining TPD payment almost inevitably will be far and away larger than the net balance of the pool as I have provisionally found it. It is presently therefore not possible to ascribe a percentage value to contribution based entitlements, as the quantum of that payment will necessarily effect that determination.
Interim orders
The wife asserts that $50,000.00 should be paid to her by way of interim property settlement. I have already observed that the authorities make it plain that interim property settlements need to be conservative, and I need to be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or on a practical level, be able to be reversed.
The difficulty is not knowing the likely quantum of the TPD payment. One assumes that it is likely to be in excess of $100,000.00, but there is no guarantee of that, at least on the evidence. If it were to be $100,000.00, then as has been seen, I would assess the value of the net pool at $104,223.00. Given:
·the parties’ roughly equal initial financial contributions;
·the father’s greater financial contributions during the course of the relationship;
·the disproportionate homemaker parent contribution in favour of the wife;
·the slightly more favourable weighing of s 75(2) factors to the husband;
·the question mark in respect of the ultimate likelihood of the wife’s student loan being actively sought to be repaid;
·the fact that the parties’ position, putting superannuation to one side, is one of net debt;
it is difficult to conclude that a $50,000.00 interim payment is conservative. I am not presently satisfied that it is, and I decline to make any order for an interim property settlement in the sum of $50,000.00 at this time. The wife did not contend that, if I were not satisfied the $50,000.00 was appropriate, I should for myself determine some other appropriate amount.
That then leaves the husband’s application to lower the sum restrained from being expended by him from $70,000.00 to $50,000.00. I did not understand that, ultimately, to be strongly opposed by the wife, as she appeared to concede that the likely payment of the outstanding TPD claim would be sufficient to accommodate that reduction. I am so satisfied. The father has no present income other than that derived from the $71,324.00 share investment, and plainly has some costs associated with his day to day living. Other than further increasing credit card balances (and it is unclear whether he has that capacity) his living costs must come from his personal injuries payment or TPD claims, as he is ineligible for social security. It is not really to the point to say that, having made his choice to expend large sums of those funds in recent years, he therefore should wear the consequences of it. That is but one of the matters to be taken into consideration. I am satisfied that there should be a reduction in the embargoed sum from $70,000.00 to $50,000.00, and will so order.
Final orders
Otherwise I will adjourn the property proceedings on the terms agreed by the parties, which require the husband to prosecute the TPD claim with all reasonable expedition, and to preserve those funds once they are received. The matter can then be relisted for further evidence and/or submissions.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 12 September 2018.
Associate:
Date: 12 September 2018
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