NIELSEN & SPRINGER - [2019] FamCA 667

FAMILY COURT OF AUSTRALIA

NIELSEN & SPRINGER

[2019] FamCA 667

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – Where the wife seeks to relocate to Northern New South Wales with the children – Where the husband opposes – Where the children have special needs and have medical conditions requiring ongoing management and therapy – Where the parties are not able to communicate effectively – Where the wife seeks sole parental responsibility – Orders

FAMILY LAW – PROPERTY SETTLEMENT – Where each party seeks an order for property settlement – Where it is just and equitable to make an order – Contributions – Property acquired before marriage – Superannuation – Percentage adjustments – Orders

FAMILY LAW – SPOUSAL MAINTENANCE – Lump sum – Where the wife seeks spousal maintenance for a defined period following settlement – Where the period of maintenance would be shorter if permitted to relocate and more extensive if not permitted to relocate – Where the husband asserts he does not have the financial capacity to meet an order for spousal maintenance – Where an existing order exists for spousal maintenance – Where the husband is not able to meet the payments from his income – Orders

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 75(2), 79

AMS v AIF (1999) 199 CLR 160
Beckham v Desprez [2015] FamCAFC 247
Bevan & Bevan [2013] FamCAFC 116
Blanding v Blanding [2016] FamCAFC 21
Bulow & Bulow [2019] FamCAFC 3
Clauson & Clauson (1995) FLC 92-595
Godfrey & Sanders [2007] FamCA 102
Mazorski & Albright [2007] FamCA 520
Pierce v Pierce (1999) FLC 92-844
Stanford & Stanford (2012) 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Strange v Hybinett (1988) VR 418
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Nielsen

RESPONDENT:

Ms Springer

FILE NUMBER:

ADC

1483

2017

DATE DELIVERED:

17 September 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

27 - 30 May 2019 and 18 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

CG Family Law

COUNSEL FOR THE RESPONDENT:

Mr Bowler

SOLICITOR FOR THE RESPONDENT:

Georgina Parker Lawyers

Orders

That the wife have the sole parental responsibility for B born … 2008 (“B”), C born … 2010 (“C”) and D born … 2012 (“D”) (collectively “the children”).
That the children live with the wife.
That the children spend time with the husband as follows:-
(a)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday and if Monday is a public holiday or pupil free day THEN the children spend time with the husband to the commencement of school on Tuesday;
(b)For one half of each of the short end of term and Christmas school holidays at times to be agreed between the parties but failing agreement for the first half of the school holiday period in 2019 and in each alternate year thereafter and for the second half of the school holiday period in 2020 and in each alternate year thereafter;
(c)For such other times as the parties may agree.
That the children spend time with the parties as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i)Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the children will spend time with the wife;
(ii)Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the children will spend time with the husband;
(b) On the children’s birthdays each year:-
(i)If the child’s birthday falls on a day that is not a school day and the husband would not otherwise be spending time with the child THEN the children will spend time with the husband from 2.00 pm until 7.00 pm;
(ii)If the child’s birthday falls on a day that is not a school day and the husband has the care of the child THEN the children will spend time with the wife from 2.00 pm until 7.00 pm;
(iii)If the child’s birthday falls on a school day and the husband would not otherwise have the care of the child THEN the children will spend time with the husband from the conclusion of school until 6.30 pm;
(iv)If the child’s birthday falls on a school day and the wife would not otherwise have the care of the child THEN the children will spend time with the wife from the conclusion of school until 6.30 pm.
That for the Christmas period the children will spend time with the parties as follows:-
(a)With the husband from 3.00 pm on 25 December 2019 to 3.00 pm on 26 December 2019 and each alternate year thereafter PROVIDED HOWEVER that the said children shall be with the wife from 3.00 pm on 24 December 2019 to 3.00 pm on 25 December 2019 and each alternate year thereafter;
(b)With the wife from 3.00 pm on 25 December 2020 to 3.00 pm on 26 December 2020 and each alternate year thereafter PROVIDED HOWEVER that the said children shall be with the husband from 3.00 pm on 24 December 2020 to 3.00 pm on 25 December 2020 and each alternate year thereafter.
That the husband’s time as set out in order (3)(a) herein shall be suspended during all periods of school holidays.
That the parties be at liberty to attend the children’s kindergarten and/or schools for parent/teacher meetings, concerts and all functions to which parents are usually invited.
That the parties shall be at liberty to receive copies of the children’s kindergarten and/or school reports, school photographs and other information usually provided to parents.
That the wife shall provide the husband with reports with respect to the health and special needs of each of the children as may be requested by the husband and he shall be at liberty to contact the children’s therapists, general medical practitioners or specialist medical practitioners or allied health professionals PROVIDED such contact and/or communication shall be at the husband’s expense.
That each party shall be at liberty to take the children on an overseas holiday at least annually PROVIDED:-
(a)The party requesting the holiday time shall provide forty two (42) days written notice to the other party;
(b)Both parties consent in writing to the holiday occurring if some or all of the proposed period does not coincide with school holidays;
(c)That in the Christmas school holiday period commencing 2019 and each alternate year thereafter the wife at her election can seek the children’s time with her be extended to thirty (30) days;
(d)That in the Christmas school holiday period commencing 2020 and each alternate year thereafter the husband at his election can seek the children’s time with him be extended to thirty (30) days.
When giving notice of any intended holidays each party shall provide the other with the following information:-
(a)       An itinerary;
(b)       Flight and accommodation details;
(c)       Contact details for the duration of overseas travel.
That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty eight (48) hours of such change occurring.
That the husband sign all such documents as may be required by the Australian Federal Police to enable the children to travel outside the Commonwealth of Australia.
That within seven (7) days of documents being presented to the husband, he shall sign all such documents as may be required for the children to obtain an Australian citizenship and to maintain both their Country Z passports and when approved their Australian passports.
The wife shall retain the children’s Country Z passports in her possession.
The husband shall retain the children’s Australian passports in his possession.
That the husband pay to the wife by way of lump sum spousal maintenance the sum of EIGHT THOUSAND SIX HUNDRED AND FORTY DOLLARS ($8,640).
That the wife receive fifty (50) per cent of the husband’s entitlement to the Country F pension to be calculated for the period from the date of cohabitation in January 2007 until the date of the parties divorce order being 18 May 2018.
That in full and final settlement of all property issues as between the parties:-
(a)The husband pay to the wife the settlement sum of FORTY FIVE THOUSAND NINE HUNDRED AND NINETY EIGHT DOLLARS ($45,998) on or before twenty one (21) days of the date of this order NOTING that the settlement sum does not include the amount by way of lump sum maintenance.
Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) the wife is entitled to be paid the base amount of ONE HUNDRED AND THIRTY SIX THOUSAND NINE HUNDRED AND FOUR DOLLARS ($136,904) from the husband’s interest in G Super, member number 14014865.
In accordance with s 90XT(1)(a) of the Act whenever a splittable payment becomes payable with respect to the husbands interest in G Super, the Trustee shall pay to the wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount referred to in paragraph 20 herein and there shall be a corresponding reduction in the entitlement the husband would have had but for this Order.
Paragraph 20 shall take effect from the operative time, being the beginning or end of the fourth business day after the date of these Orders.
Having been afforded procedural fairness the Trustee of G Super shall be bound to observe the provisions of paragraph 20 herein, the Act and the Regulations.
Within seven (7) days of the date of this order the wife shall:
(a) Serve a copy of this order upon the Trustee of G Super; and
(b) Give notice in writing to the Trustee of G Super pursuant to s 72 of the Regulations.
Each party and the Trustee has liberty to apply on not less than three (3) business days’ notice in respect of the implementation of the superannuation splitting orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nielsen & Springer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1483 of 2017

Mr Nielsen

Applicant

And

Ms Springer

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between Mr Nielsen (“the husband”) and Ms Springer (“the wife”) relate to settlement of property and the future parenting arrangements for B born in 2008 (“B”), C born in 2010 (“C”) and D born in 2012 (“D”) (collectively “the children”).
The matter was listed for trial on 27 May 2019. Following the conclusion of the trial on 30 May 2019, judgment was reserved.
On 21 June 2019 the wife filed an urgent Application in a Case seeking to enforce orders for spousal maintenance made 15 February 2018 and seeking that the husband provide statements for each account held in his name in Country F.
By Response filed 1 July 2019 the husband seeks that orders 2 and 5 of the orders made 15 February 2018 be discharged. Order 2 relates to the ongoing payment of spousal maintenance to the wife in the sum of $240 per week. Order 5 is an injunction prohibiting the husband from dealing with the monies in any overseas bank account save for the sum of $20,000.
On 5 July 2019 following submissions by the solicitor for the wife and the husband appearing on his own behalf, orders were made that the wife receive $2,400 of monies held in trust which is to be characterised as part of any settlement sum payable to the wife. The parties were given leave to adduce further evidence in respect of the trial which concluded on 30 May 2019 and the matter was listed for 18 July 2019.
The husband filed an Application in a Case on 8 July 2019 seeking that orders 2 and 5 of the orders made 15 February 2018 be discharged.

Background

The husband was born in Country F in 1970 and is 49 years old. He is employed as an academic.
The wife was born in the Country Z in 1970 and is 48 years old. She is not presently employed but holds a Master’s Degree in Science and has some experience as a health and fitness instructor. In late 2018 the wife attended training to obtain a qualification to work as a consultant.
The parties commenced cohabitation in 2007 in Country F and were married in 2009 in Country Z. They separated under the same roof on 28 August 2016.
The parties relocated from Country F to Adelaide in January 2012 following the husband’s successful application for an academic position.
In 2013 the wife founded a health and fitness practice known as “J Centre” and taught classes. She says she has not worked since 2017 due to “the demands of caring for the children”.
The children were each diagnosed with Autism Spectrum Disorder. The family received National Disability Insurance Scheme (“NDIS”) funding for the children to receive therapy. The children are engaged in Applied Behavioural Analysis (“ABA”) therapy which requires a significant commitment to training by the parents.
The wife re-partnered with Mr K in late 2016. Mr K lives in Town L, NSW and they have been engaged in a long-distance relationship since early 2017.

Documents relied upon

The husband relies upon the following documents:
·Amended Initiating Application filed 26 February 2019;
·Husband’s Trial Affidavit filed 26 February 2019;
·Financial Statement filed 26 February 2019; and
·Affidavit in Reply filed 16 May 2019.
The wife relies upon the following documents:
·Further Amended Response filed 8 May 2019;
·Wife’s Trial Affidavit filed 4 May 2019;
·Affidavit of Mr K filed 3 May 2019; and
·Financial Statement filed 10 May 2019.

Orders sought

By his Amended Initiating Application the husband seeks the following orders:
·That orders 2 and 5 of orders made 15 February 2018 be discharged.
·That the husband pay to the wife $45,000 less half the cost of mediation and valuation fees paid by him.
·That there be a splitting order to provide an equal distribution of the combined superannuation of the parties.
·Equal shared parental responsibility for the children.
·That the children live with each of the parties on a week about basis with provisions for special occasions.
The wife seeks orders in her Further Amended Response summarised as follows:
·Sole parental responsibility for the children.
·The children live with her and spend time with the husband each alternate weekend and during holidays and special occasions until December 2019.
·Permission to relocate with the children to Town L, NSW at the commencement of the 2019 Christmas school holidays.
·The children to spend time with the husband once a month in northern NSW and in Adelaide once per school term and for half of holidays, noting that the wife proposes that the children’s airfares should be shared equally by the parties when the children travel between Adelaide and NSW.
·Liberty to travel to the Country Z with the children for a maximum of 30 days per year.
·That if permitted to relocate, until December 2019 the husband pay spousal maintenance of $300 per week and the cost of the children’s private health insurance. If not permitted to relocate she seeks that the proposed payments continue until December 2021.
·A division of the property and superannuation of the parties as to 80 per cent in her favour.

Evidence

The husband

The husband relies upon his Trial Affidavit filed 26 February 2016 and his Affidavit in Reply filed 16 May 2019.
The husband opposes the wife relocating the children’s residence to Town L.
He highlights that the children have been diagnosed on the Autism Spectrum. Whilst there is no assessment as to the severity of the disorder and noting that it varies as between the children, the family consultant considered that the children may be described as moderate or high functioning.
The parties appear to have been able to cooperate as to the ongoing needs of the children. The husband considers that the parties’ communication was such that if the wife considered the children’s behaviour to be challenging or she had a commitment that needed her attention, the relationship between the parties was such that the wife would seek the husband’s assistance.
There is some contention between the parties as to the extent of the husband’s involvement in the children’s ABA therapy.
The preparedness of the wife to leave the children in the care of the husband was such that he considers this should be a reflection of her “absolute confidence” in his relationship with the children and ability to look after them.
The examples of the additional care provided by the husband are set out at [58], [60], [62], [67], [69] and [70] of his trial affidavit.
The husband’s assertion of additional care supplements the current parenting orders made 25 September 2017 that:-
a)The children live with the mother.
b)The children spend time with the father:-
i)On alternate weekends from the conclusion of school on Friday to the commencement of school on Monday; and
ii)During the intervening week from the conclusion of school on Thursday to the commencement of school on Friday.
The husband’s time was extended pursuant to orders made 8 February 2018 to coincide with school holidays.
Whilst there has been significant exploration of the financial affairs of the parties and in particular a detailed tracing exercise as to the assets of the parties (principally comprising the balance of monies held by the husband at the commencement of cohabitation), there is broad agreement that the approximate total of money available for distribution is $77,506.
In terms of the property settlement aspect of the proceedings, I suspect that following the payment of legal fees by the wife and the repayment of a loan taken by the husband on account of outstanding legal fees, neither party will be significantly advantaged.
The husband agreed that there had been relatively extensive national and international travel for the period 2012 to 2018 as set out in [23] of the wife’s trial affidavit.
It appears that the husband’s travel commitments in 2019 are more truncated comprising of nine days only in January.
The husband was challenged as to his recollection of the children’s involvement in playgroup, early learning and primary school, the implication being that his lack of recollection was corroboration of his more minor involvement in the early years of the children’s lives.
The husband denied the tenor of the wife’s assertion and gave evidence of his involvement with the children when they attended kindergarten, early learning and primary school.
He conceded that he did not attend most school functions, but that could be explained by the logistics of the children needing to be cared for whilst the wife attended school functions and teacher interviews.
The husband’s evidence was that he has significant flexibility in his current University commitments and was able to take the children to their commitments on two to three days in each week. He conceded that his work commitments kept him away from the home, but when he was present the wife was largely absent. He highlights that for an extended period of time the parties had the advantage of a sitter funded by NDIS to attend the home and assist with the children.
The husband acknowledges the wife’s involvement with the children but highlights that the children’s behaviour was at times difficult and often upon his return home from work the children and the wife would be distressed.

The husband often put the children to bed which was stressful and time consuming.
The extent and nature of each of the parties’ involvement in the parenting of the children is clearly a source of ongoing contention.
It is likely that the primary care of the children devolved to the wife, but the husband was not an absent parent and did the best he could to assist with the care of the children and some of the domestic duties.
B found reception in 2014 to be difficult. He was referred to a speech pathologist and at age six years and one month was diagnosed with Autism Spectrum Disorder (“ASD”).
Thereafter, the child engaged in weekly speech therapy and engaged in therapeutic assistance on a fortnightly basis.
The extent to which B’s education was adversely affected by ASD was considered by an assessment in August 2015.
In that year C also experienced behavioural difficulties at kindergarten and the wife’s evidence is that C’s behaviour was extremely challenging.
The wife refers to an assessment prepared by an occupational therapist in August 2015 as follows:-
C presents with a sensory processing disorder which is resulting in his very busy and on-the-go behaviour. This results in difficulties in play with siblings at home and means that his sustained attention to task is so compromised that he is unable to attend the task for long enough to master them, thus his skill delays (namely self-care, gross motor and possibly fine motor) appear to be secondary to the sensory processing disorder.
Related to his sensory processing challenges are difficulties with regulation that are seeing C having difficulty changing his activity levels and/or behaviour according to different environmental demands. This not only makes achieving the daily chores of life difficult but also slows the development of the necessary skills in readiness for school in 2016.[1]
[1] Wife’s Trial Affidavit filed 4 May 2019 [41].
In August 2015 an assessment was made that D was presenting with ASD.
The children engaged in ABA therapy which was considered the “gold standard of care” for ASD.
The wife’s trial affidavit is detailed in relation to the construct and implementation of the therapy, but it requires therapeutic application both at home and at school.
It is an important adjunct to the success of the program that the parents become skilled in the application of ABA therapy and that there is a cooperative approach undertaken by those who have extensive involvement in the children’s lives.
I am left in no doubt that whatever was the extent of the husband’s involvement in the ABA program and its application to the children, the driving force for its implementation and therefore the positive presentation of the children was the wife.
The ability of the husband to interact with the children and in particular involve himself with their therapists was largely curtailed as and from March 2017 to mid-2017. Orders made on 23 May 2017 were such that the husband saw the children each Sunday and on each alternate Friday from 3.00 pm to 6.00 pm.
A further practical difficulty arose in that the NDIS funding which covered the costs of therapists was paid to the wife.
The relationship between the parties was such that agreement on the transfer of funds by the wife to the husband for therapeutic fees rarely occurred.
The husband conceded that since April 2018 he had not attended any ABA sessions.
The parties each allege that during the period of cohabitation there was aggressive interaction. Between 2016 and 2017 the husband reported the wife to the police. However, she was never charged. The husband asserts that the wife was the perpetrator of family violence and that he had photographs showing injuries occasioned by the wife’s aggressive behaviour.
The wife denies any allegation of aggressive conduct.
The consequence of the breakdown of the relationship between the parties was that since 2016 the husband refuses to speak to the wife face to face but communicates via email, text message and on occasion by telephone if it cannot otherwise be avoided. The husband does not disagree with the wife’s assertion that attempts to minimise the impact of the fractured communication between the parties by highlighting that the children’s handover is usually undertaken in the absence of the wife.
There have been recent telephone conversations between the parties to discuss children’s issues.
In November 2018 the wife travelled to Country Z. The children remained in the husband’s care for seven days.
The wife apparently gave C one of her shirts by way of a comfort item on the advice of C’s psychologist.
The husband did not allow C to bring the wife’s shirt into the husband’s bed. He was asked to explain the basis of his opposition and the response was that the shirt smelt of the wife.
The husband was candid in his assessment of the behaviour of the children but in particular C and B. At times their behaviour was oppositional and confronting.
The evidence supports a finding that each of the parties were at times frustrated and uncertain as to how to assist the children when their behaviour was at its most florid.
On 22 February 2019 B ran away from the husband’s home. The husband followed the child to the wife’s home. The husband conceded that B was angry with him for restricting his use of an electronic device by way of a punishment.
Each of the children have run away from the parties from time to time.
I do not draw any adverse conclusion against either the husband or the wife. The husband’s evidence highlights the difficulty in properly managing the children, but in particular the boys and their special needs.
The difficulty experienced by the children is exacerbated by the increasingly fractured relationship of the parties. Their communication is functional but perfunctory.
The parental lines are drawn such that the wife is invested with ongoing obligation of managing the therapeutic needs of the children with little assistance from the husband.
For his part, his involvement is restricted to the time that the children spend with him and any involvement with the children’s therapists and other health professionals is limited by both opportunity and the inability of the parties to make appropriate financial arrangements.
The parties are generally agreed that notwithstanding each of the children hold or are entitled to hold Country F and Country Z passports, there is agreement that the parties will do all things necessary for an application to be made for the children to obtain Australian Citizenship.
The husband is not concerned about overseas travel for the children and each of the parties would seek to take the children from overseas from time to time.
The children are fortunate to have a connection via the parties to both Country F, the Country Z and now Australia.
The wife seeks an order that the husband complete an application form to enable her to receive a payment of a percentage of a Country F Pension Entitlement for the period commencing at cohabitation in January 2007 until the date of divorce on 18 May 2018.
The husband agrees that the wife has an entitlement for the period of cohabitation, but not thereafter.
His evidence is that the wife’s pension entitlement should be calculated on the period of cohabitation but not the period between the date of separation and the date of divorce.
By reference to the application for superannuation (Exhibit “8”), the correspondence forwarded to the wife from the Pension Fund Administrator calculates that at 50 per cent of the pension entitlement, the wife would receive €2,602.81 EUR gross per year.
The documents provide no assistance as to the criteria to determine the relevant period, but I am satisfied that the commencement date would be January 2007 and at its most generous the maximum payment would be up to the date of divorce.
The husband was not able to explain why he considered an earlier date would be appropriate. The application form suggests that the parties are able to agree a lesser period than the date of divorce, but it seems to me that no good reason exists to arbitrarily pick a date if the pension requirement is not predicated on the date of separation but rather the date of divorce.
In re-examination, the husband confirmed that he had paid $89,000 in legal fees with more than $80,000 being drawn directly from the Country F accounts.
There was considerable focus on establishing the extent of the monies held in the Country F accounts at the commencement of cohabitation and what has happened to those monies during the course of cohabitation and post separation.
The husband’s evidence was satisfactory in respect of the use of his savings and investments and what is apparent is that it is unlikely the amount that remains available for division between the parties will be of significant assistance to either of them after legal fees and other expenses have been brought to account.

The wife

The wife relied upon her Trial Affidavit filed 3 May 2019.
The wife proposes to relocate the children to Town L from the conclusion of the fourth term in 2019. She has re-partnered with Mr K and has commenced what she describes as a long-distance relationship with him in 2017.
Mr K has lived in the Town L area since 2012. He is the father of four children who reside with their mother in northern New South Wales. Mr K is a qualified tradesman and I accept that he is connected to the area not just by employment but also his need to be proximate to his children.
The wife holds qualifications as a health and fitness instructor having studied between 2004 and 2007. She has not taught to any significant level since 2017.
The wife’s proposal for the relocation of the children to Town L is also underpinned by her belief that the Town L area is unique in that the local population is supportive of alternative therapies.
She has considered a range of schools that would provide education specific to the needs of the children.
An important consideration for the wife is that she has made contact with an ABA consultant that could take over the therapeutic and management needs of the children.
Mr K has also undertaken instruction in the application of ABA therapy.
The wife was questioned as to why she has not sought employment as a health and fitness instructor in Adelaide. Despite setting up a website, the wife has not earned any appreciable income from either fitness instruction or employment as a consultant.
At [158] of the wife’s trial affidavit she refers to the demands of caring for the children and its impact on her ability to develop her business as an instructor. Under cross examination and challenge by counsel was the contention that in Town L the circumstances would be such that the wife would have sufficient respite to be able to promote her career.
Whilst I accept that the wife has a genuine belief that Town L may present a far greater potential for the wife to develop her health and fitness instruction and therefore be more financially secure, it is speculation on her part.
Mr K does not present a financial position that he is able to assist the wife financially and whilst there remains some uncertainty as to the extent of the hours that he will be required to work, the likely outcome is that she will have less respite from the parenting and management needs of the children than currently is the position taking into account the time the children spend in the care of the husband.
That is not to suggest that the integrity of the wife’s proposal should be the subject of unnecessarily detailed scrutiny.
I do not consider that the wife’s proposal to relocate the children to Town L is any way confected, but I do not consider that the state of the evidence is such that a finding can be made on the balance of probabilities that a move to Town L will have the beneficial financial outcome that the wife considers is likely.
The wife holds significant concerns as to the extent of the relationship between the husband and the children. She has particular concerns in respect of the husband’s ability to manage D, holding a belief that the husband focusses on the boys and leaves D to her own devices.
In the assessment with the family consultant, the wife complained that the husband remains unable to wash D’s hair and that he struggled to consider their emotional needs.
She advised the family consultant that on occasion C would “call 15 times a day” to reach her. On occasion the husband has blocked the home phone, thus allowing the children to call their mother only using his phone.
She was also concerned at the poor state of the children’s health when they return from his care. She spoke of C developing “cold sores” and suffering from “nervous picking and scratching”.
Whilst there was some allegation that the wife had physically struck the children, this was denied and there is no evidence to suggest that either party presents as a physical risk to the children. The orders that each of the parties seek are not suggestive of any apprehension of risk.
The wife’s financial position appears parlous. Her primary income is by way of Centrelink Benefit, Family Tax Benefit and a Child Support Assessment supplemented by the current order of spousal maintenance.
She has substantial outstanding fees and a debt to the Country Z Government for her university degree prior to coming to Australia.
The wife currently struggles with the payment of her rent, motor vehicle loan, her debt to American Education Services and the substantial average weekly expenses for both her and the children.
The total of her outstanding liabilities are about $250,000 including her outstanding and anticipated legal fees.
The wife’s proposal if the children are permitted to relocate is that the parties would share equally in the anticipated air travel costs for the children between Town L and Adelaide. The wife’s estimate is that the total costs for four visits per year would be $6,224. The wife would need to find one half of this sum on her own proposal and she concedes that from time to time this may present as a difficulty, although some relief might be obtained by utilising frequent flyer points.
The wife would welcome the husband’s travel to Town L on one occasion in each calendar month. She agrees that her proposal is predicated upon the husband having the financial ability to travel to Town L and pay for the costs of accommodation, although once the arrangement settles down, the wife considers that there may be the possibility that a motor vehicle and accommodation could be provided to him.
It was put to the wife that her relationship with the husband is poor.
The communication between the parties is toxic and there is little evidence of either improvement or the potential for improvement.
The wife’s most recent assessment of the children’s presentation following their time with the husband is that they return anxious and distressed. It is the wife’s evidence that the children are reluctant to spend time with the husband. Whilst the wife’s position was the subject of contention, she was not convincing as to how the children residing in Town L would have the potential to improve their relationship with the husband.
The wife agreed that the focus of ABA therapy is underpinned by routine and the ability of the children to have advance notice of intended activities.
A change in the children’s school is likely to be a significant stressor.
The wife accepted that at present the children are doing well at their school. Whilst the parties dislike for each other was palpable during the proceedings, the wife conceded that the occasions she asked the husband to look after the children as set out in [67] of his trial affidavit, are accurate. For his part, the husband asserts that he arranged his work hours to enable him to better care for the children and to participate in their various activities. The wife agreed that the relationship between the parties is appalling. When in the same room together they will not look at each other or recognise the presence of the other.
The wife was asked to consider the extent to which she has managed the shortfall between income and outgoings of $532 per week.
At present the wife borrows money on her credit card and from members of her family.
I found the wife to be a truthful witness and clearly invested with the children’s care.
She also presented as being overwhelmed by her personal and financial circumstances.

Mr K

Mr K and the wife have been in a long-distance relationship since early 2017. In 2017 and 2018 Mr K travelled to Adelaide to visit the wife once or twice per month and the wife travelled to Town L on three occasions while the children were with the husband.
Mr K has four children from a prior relationship and their ages range from approximately 8 to 13 years old.
Mr K first moved to Australia in 2003 with his wife and children. He separated from his wife in June 2016. He has an informal arrangement that he sees his children on each alternate weekend and during school holidays.
He is a qualified tradesman and he established his own business in 2012. He decided to “scale back” the business in 2016 and he handed his clients over to a former employee. He presently intends to resume operating his own business and anticipates that he will work at least 50 hours per week, including some weekend work in this pursuit. He is confident that it will not be difficult to re-establish the business in Town L.
He received a job offer from a prospective employer on 4 March 2019. If he accepted the position, he would commence employment on a part time basis for 30 hours a week as of 3 September 2019. He says he was not able to take up this position due to the pending Family Court proceedings.
Mr K presently lives in a property that is owned by his prospective employer. If the wife is permitted to relocate, it is his intention “to rent a home … which is large enough for all of our children to be present at the same time”.
If the wife is not permitted to relocate he is not sure what his position would be.

The family assessment report

Ms P (“the family consultant”) completed a family report dated 20 May 2019. The purpose of the assessment was to assist the Court in understanding the family dynamics and how the separate proposals of the parties would impact upon the children, in particular in terms of their relationship with each of the parties.
The family consultant accurately set out the current parenting arrangements noting that the children spent four nights a fortnight with the husband.
If permitted to relocate the residence of the children to the Town L region, then the wife’s proposal is for the children to spend one weekend each calendar month in New South Wales at the husband’s expense and one weekend per term in Adelaide.
The costs of the children spending time with the husband in Adelaide are to be shared between the parties.
The family consultant understood that the husband opposed the wife’s application.
The family consultant properly recognised risk factors and issues in dispute. Whilst not necessarily reflected in the current parenting arrangements, but clearly evident in the poor relationship between the parties are their mutual allegations of extensive family violence including physical and verbal abuse.
The wife contends that the husband struggles to prioritise the children’s parenting and is not sufficiently attuned to their needs taking into account that they present with ASD.
For his part, the husband alleges that the wife’s capacity to care for the children is adversely affected by her anxiety and chronic depression.
Other issues identify the inability of the parties to quarantine the parental conflict from the children and their clear inability to communicate at any appropriate level.
The husband presented to the family consultant with a concern that the wife wanted to separate him from the children.
The concern of the family consultant was that the husband did not fully appreciate the particular needs of the children.
The husband properly conceded that the wife managed the children’s therapy.

Consistent with the parties’ evidence, they were not able to agree as to the extent of the children’s day to day management. The husband considered that the children’s behaviour was challenging and whilst he recognised that the wife bore the majority of the parenting given his fulltime employment, when he returned home he cared for the children.
Both parties informed the family consultant of what they considered to be the family violence perpetrated by the other party in the home.
The husband described B as very independent and intelligent but had a limited capacity to communicate and to “show empathy”.
C was “hyper-intelligent”, was easily bored at school and displayed his unhappiness by being oppositional in class. Unlike her brothers, D was considered to be a happy child who had made good friends at school notwithstanding an initial reluctance to engage with her peers.
The husband was also concerned as to the extent that the wife may have involved the children in the litigation. He reported that the children’s knowledge of Court proceedings and in particular the emphasis on property settlement and financial issues suggested that the children had either overheard the wife in conversation with others or she had informed them directly.
The husband’s belief that the wife had discussed relocation with the children centred upon the children discussing with him a move to Town L and C’s attempt to reinforce the proposed relocation by aggressive conduct towards the husband.
The family consultant considered that the wife “appeared child-focused in her approach” and was clearly invested in the children’s care and management.
The wife agreed that the relationship with the husband had been “tumultuous”. The children were clearly affected by the conflict and her principal concern was the inflexibility of the husband in dealing with her. She corroborated the husband’s evidence that the parties were able to communicate only at a perfunctory level. The husband appeared steadfast in his refusal to recognise and/or engage with the wife.
The wife considered that B was now coping well in mainstream schooling. He engaged in a number of extracurricular activities and appeared musically orientated but also with an ability to build and construct. The wife identified her principal concern with B’s presentation is his reluctance to attend the husband’s home. The wife considered that the husband did not provide emotional support for B and as such struggled to manage his, at times, challenging behaviour.
C was described as an intelligent child who enjoyed chess and outdoor sports but was easily bored in class. He had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and is currently receiving Ritalin medication.
C also struggled with spending time at the husband’s home.
D was described as a happy child who was content to play on her own.
Each of the parties considered that the other may have mental health issues. For her part, the wife acknowledged that she was anxious and had been prescribed anti-depressants and anti-anxiety medication to help her sleep. The wife considered that her main stressor was the unresolved Court proceedings.
B was asked to consider the parenting difference between the parties. B recognised that the parties had a seeming inability to reach any agreement. Each pressed an opposite view and opinion. B considered that the husband was more aggressive and could be “over the top with anger” whereas the wife was “more chilled”.
B express wish was to remain in the primary care of the wife and to relocate to New South Wales for his secondary school years.
C presented as more conflicted in the future parenting arrangements proposed by each of the parties. It was apparent that the wife had engaged C in detailed discussions about moving to Town L.
C remained uncertain about his future and was clearly more closely connected to the husband than B. Like his older brother, C also expressed a wish to move to Town L and see the husband “every couple of months”.
Given D’s age, her assessment was less sophisticated than her older brothers. She reported a happy relationship with the husband and some reticence towards Mr K, particularly when he attempted to impose discipline.
In the observed interactions, the family consultant considered that the observations of the children with the wife raised “minimal parenting concerns”, whereas the husband had difficulty in engaging with the children and distracting them when their behaviour was defiant.
The family consultant received input from Ms M, the ABA therapist.
Ms M was complimentary of the wife and it is likely that this reflects her more significant involvement in the ABA therapy and its administration. The husband had not been involved given the dispute as to how the NDIS funding could be utilised.
The family consultant was concerned as to the report by each of the parties of family violence. Her concern is summarised at [156] as follows:-
Firstly, it appeared that both parties alleged family violence perpetrated by the other party with it noted that [the husband] reportedly called the Police on [the wife] during an altercation. Whilst the issue of family violence between [the wife] and [the husband] remained a matter for the Court to assess, of note to the writer was that both parties acknowledged that the children had been in the home during these arguments and had been exposed to their conflict. Moreover, in his interview, B acknowledged the “fighting” between his parents, noting that this resulted in his parents sleeping in separate rooms.
The family consultant was concerned that the challenging needs of the children were not appreciated by the husband, nor was he able to adequately manage their behaviour in circumstances where he had not undertaken the instruction necessary to better understand their disabilities.
The family consultant had little hesitation in recommending that the children should remain in the primary care of the wife.
The family consultant was less certain as to the benefits to the children of the wife’s proposed relocation to Town L.
Whilst she accepted that the children’s relationship with the husband could be supported by “twice a term contact visits and increased time during the school holidays”, relocation should only occur if appropriate “local therapeutic interventions and educational services for the children” were able to be put into place.
The obvious issue for the family consultant was that presently the children’s therapeutic needs were well catered for and they were settled in their present schools.

Principles applicable to relocation cases

In AMS v AIF (1999) 199 CLR 160 Hayne J highlighted that the focus of the court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216.An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father … or to be in the custody of the mother … That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody…
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the coexistent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Family Law Act 1975 (Cth) (“the Act”). The approach is not meant to be rigid such that:-
38.[I]t is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals, in this case the wife’s application for the children to relocate with her to Town L.
Whilst there is no specific principle or procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parties, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities, both international and domestic, and summarised the position as follows:-
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 & 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.
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. 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.
(Footnotes omitted)

Parenting considerations

The husband seeks an order for equal shared parental responsibility and the wife seeks sole parental responsibility.
Following the remarks of Finn J in Blanding v Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham v Desprez [2015] FamCAFC 247 there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3). I am mindful of the directions contained in s 60CC(2A) and in particular the focus by the wife on what she considers to be the potential emotional and psychological harm to the children by the attitude of the husband towards her and its potential to undermine the children’s relationship with the wife should they remain in the primary care of the husband.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the children’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit to the children of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.

Meaningful relationship

It is fundamental to the Act that I regard the best interests of the child as the paramount consideration.
The aims and objects of the Act are to ensure that the best interests of a child or 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.
In Mazorski & Albright [2007] FamCA 520, Brown J considered the definition of “meaningful” and observed:-
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …
A consideration of the importance of a meaningful relationship to a child is no more starkly exemplified and highlighted than in the circumstances in which the subject children find themselves.
The husband’s proposal is that he remain in Adelaide. He has secure and rewarding employment. He is held in apparent high regard by his employers.
I am not entitled to be critical of either the wife for her intention to relocate to Town L, nor the husband for his intention to remain in Adelaide. The conundrum for the children is that if the wife is permitted to relocate inevitably their relationship with the husband will suffer significant insult.
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with the children to be, where possible and in their best interests, substantial and significant.
In Godfrey & Sanders [2007] FamCA 102 Kay J considered the requirements of the legislation in relation to the promotion of a meaningful relationship in the following terms:-
36.… Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The issue of the effect of the proposed relocation of the children on their relationship with the husband is not to be conflated with the view expressed by the family consultant that the children’s best interests would be served by living primarily with the wife.
It is not in issue that the children would not be able to maintain an “optimal” relationship with the husband if they relocated to Town L. There would be a “diminution of the quality of the relationship” that they have with the husband.
The husband is concerned that the wife is not properly invested with maintaining the children’s relationship with him and that the tyranny of distance and the strained financial circumstances of the wife would not simply diminish the current level of relationship but might cause it to be extinguished.
The children present with special needs consistent with their placement on the Autism Spectrum, albeit high-functioning. The wife’s complaint in respect of the husband’s capacity to parent the children is that he pays only “lip service” to the parenting needs of the children and in particular their management, emphasising that regularity, routine and predictability are important components of the ABA intervention therapy.
There is some contention between the parties as to the preparedness of C and B to spend time with the husband. The wife asserts that the children are defiant, whereas the husband considers that when they are with him there is a close attachment and a reluctance on their part to return to the wife’s home.
The wife’s financial position is parlous. One of the reasons that underpin her proposal for relocation to Town L is the belief that the alternate lifestyle focus of the residence of Town L will be more conducive to the wife’s qualifications as a health and fitness instructor and a consultant. The wife does not present evidence of that contention but I accept that she holds a reasonable belief to that effect.
As discussed, I have some misgivings as to the extent that a relationship between the wife and Mr K will be to her financial advantage.
In summary, if the evidence supports the reasonable prospects of a meaningful relationship being maintained then that would be a factor in favour of the mother’s proposal involving relocation, whereas if it was considered that the move would adversely impact upon the children’s relationship, then this would be considered a significant disadvantage to the children.

Are the children at risk?

Each of the parties raise allegations of family violence. The husband contends that the wife has smacked the children, whereas the wife considers that the husband has neglected the children’s needs and would verbally abuse them.
The husband considers the wife has anxiety and depression and this impairs her capacity to care for the children. For her part, she considers that the husband lacks appropriate emotional attachment to the children and his lack of acceptance of the children’s diagnosis of Autism places them at risk.
The mutual allegations of family violence are matters that must be considered seriously.
The difficulty for the parties is that notwithstanding their allegations against each other and their clear dislike of the other, the orders that they seek are not in any way tempered by considerations of family violence.
It was not difficult to observe the enmity between the parties. The husband was not able to look at or address any matters to the wife directly. The wife was more willing to engage but it could not be said that there are promising indicators that the parties would be able to reconcile their differences easily.
That issue alone creates a consideration that cannot be ignored. Proximity of the children to each of the parties may be considered as a counterfoil to the potential that whether deliberate or otherwise, the children are not likely to get a sense that their relationship with the other parent is supported.

I bring to account the issues raised by each of the parties in respect of matters of family violence, abuse and child safety and wellbeing but do not consider that they would speak against the orders that each of the parties seeks.

Wishes of the children

The boys have expressed a view that they are prepared to relocate to Town L. D is not so certain. The family consultant was not able to present evidence that the children, or each of them, have a concept of what a relocation to Town L would mean in terms of their father. Nor was evidence presented as to how their diagnosis of ASD would impact upon their relationship with the husband given what could be lengthy periods between physical contact.
I am not confident that the wife’s evidence provides a foundation for her preparedness to pay for or at the very least share in the cost of the children’s travel between Town L and Adelaide.
The wife would not be able to meet that financial obligation now and in circumstances where I am likely to find that there is no evidence that a move to Town L would be financially remunerative, the situation could easily arise that the wife would not be able to contribute and/or pay for the children’s return with the likely outcome that subject to the husband travelling to Town L, his time with the children would be restricted to school holidays. There is no evidence as to how these children are likely to view their father following long periods of absence in circumstances where on the wife’s case the children are already averse to spending time with their father.
I am obliged to afford some weight to the views of the children, but against the background of the paucity of evidence as to the level of insight that each of the children possess, their views should be considered as a factor but not determinative of the issues in dispute.

The nature of the relationship of the child with the parties and others

The evidence of the wife’s involvement with the children is persuasive of a finding that she has the children’s primary emotional attachment. That is not to suggest that there is not a strength in the relationship between the husband and the children, but the wife’s attendance to the children’s needs is comprehensive and their first recourse for comfort and assistance is to her and not to the husband.
The wife contends that Mr K has gained the children’s trust and has taken active steps to better understand the ABA therapy administered to the children.
The evidence of the relationship between the children and Mr K is scant but I, nonetheless, accept that it is positive. There is no evidence that suggests the children’s relationship with Mr K is in priority to the relationship that they have with their father. He is an appropriate and interested participant who is kindly disposed to the children and their needs. He is significant but not of critical importance.

The extent to which each of the child’s parents has taken or failed to take parenting opportunities

There is difficulty in the parties reaching consensus and/or participating in decision making about major long term issues.
The children live in the primary care of the wife and spend significant and substantial time with the husband.
Whilst the wife would strongly suggest that the children’s relationship with the husband is fractured, I find that any difficulties that the children have with him is largely to be considered as sequelae of the highly conflicted relationship between the parties.
It is not seriously suggested that the children do not have a relationship with the husband nor that a meaningful relationship will not benefit them.
Each of the children present with different needs. B and C are more assertive in their behaviour than D.
The husband has taken the opportunity to spend time with the children and to communicate with them. The parties’ ability to participate in decision making concerning major issues in relation to the children is poor. They have no ability to interact at a personal level, although the evidence suggests that face to face contact is more problematic for the husband than the wife.
I find that the wife is more involved in the children’s extra-curricular activities and their ongoing therapeutic and health management. Whilst the husband may well consider that the wife is over-zealous in her adoption of the ABA therapy, the evidence is strongly in favour of the children’s continued involvement in the program. There has been significant improvement in the children’s presentation. As considered, the husband has failed to engage in the program to the extent that he has not taken up the opportunity to involve himself with the therapist because he will be financially responsible for any one-on-one time spent with the therapist.
I accept that the financial circumstances of the parties are poor and the wife is advantaged by NDIS funding. Nonetheless, whilst opportunity exists, the husband has not availed himself of the open invitation to engage with the children’s therapy.

The extent to which each of the child’s parents have fulfilled, or failed to fulfil the parent’s obligations to maintain the child

The husband is in full-time employment as a university professor. His income is substantial although he has little surplus income following his fixed and discretionary expenditure. A significant component is the child support and spousal maintenance payments currently the subject of assessment and order.
For her part, the wife is unemployed although she hopes to be able to promote her business being that of a health and fitness instructor and consultant.
I find that each of the parties have demonstrated a preparedness to maintain the children to the best of their ability and have evinced an intention to do so into the future.

The likely effect of any changes in the child’s circumstances

The most significant change for the children arises from the wife’s proposal that she relocate with the children to Town L.
The wife intends to cohabit with Mr K and to promote her business as a health and fitness instructor and consultant which she contends is more likely to occur in the Town L environs than in Adelaide.
The obvious consequence of the wife’s proposal is that the current parenting orders would need to be discharged and orders made that would provide for the children to spend time with the husband during school holidays and at times when the wife is prepared to bring them to Adelaide, or the husband attend Town L.
The advantages to the children of the wife’s proposal is that they would remain in her primary care an in circumstances where she would be able to better provide for their financial support.
I accept that the children have a reasonable relationship with Mr K and this cannot be seen as a disadvantage.
The wife would argue that the boys have expressed their wish to live in Town L.
The disadvantages centre upon the inevitable reality that they would spend substantially less time with their father.
The test is not that the relationship should be optimal, but it should be meaningful.
The clear disadvantage is the potential that the children will feel less connected to their father and given the potential for the boys to exhibit oppositional behaviour, the husband is concerned that they may resist reasonable efforts by the wife to comply with the orders.
It is not controversial that the husband would not be able to engage in any material way with the children’s education and their extra-curricular activities.
A meaningful relationship requires more than an order that would keep the children aware of their father and minimally connected with him. The exigencies of life and the mundane aspects of parenting are relevant components of a meaningful relationship and these would not be able to be undertaken by the husband.
The behavioural factors affecting the children are such that continuity of engagement should not be easily set aside without evidence which would demonstrate the children’s relationship with the husband would not be materially affected.

The capacity of the parties and any other person to provide for the needs of the children including emotional and intellectual needs

Each of the parties are invested with the ongoing care, welfare and development of the children. The evidence supports that the wife has undertaken the role of primary caregiver and the evidence of the family consultant supports the children’s strong emotional attachment to her. She has invested considerable time and energy in ensuring that the children will develop to the best of their abilities.
The husband is also able to provide for the children’s needs. In particular, he has a strong focus on education. The children, whilst on the Autism Spectrum, are high functioning and no doubt gain significant benefit from the intellectual stimulation provided by the husband.
For her part, the wife has a history of high achievement and holds the qualification of Bachelor of Science. The children’s education is a matter of importance to her. To the extent of Mr K’s involvement with the children, he appears kindly disposed towards them and the evidence of the family consultant is that the children have an appropriate relationship with him.

Family violence

I do not ignore the allegations made by each of the parties in respect of family violence, however, they were not the subject of evidentiary emphasis by the husband or the wife and neither sought to craft or promote orders predicated upon a finding of family violence or future risk.

Any other fact or circumstances that the Court thinks is relevant

It is not an uncommon tension between a desire of one party to relocate for personal reasons which involves the relocation of the children and the lessening or diminution that the relocation would cause to their relationship with the other party.
I am not confident and do not consider that the evidence supports a finding that the wife’s proposal will enable a meaningful relationship to be maintained. I accept that it is likely to support a relationship, but I suspect that it will be diminished in terms of quality and nature that it may no longer be considered as “meaningful”. The real concern is that the children’s relationship with the husband would become perfunctory. He would have no ability to engage with the children either therapeutically, academically or in any extra-curricular capacity. I do not have confidence that the wife is committed to maintaining the children’s relationship with their father, nor do I consider that she necessarily values the children’s relationship with him.
The husband’s desire to maintain a relationship with the children does not of necessity speak to his ability to parent the children such that equal time and shared care would be in their best interests. I do not consider that it would be. The husband did not impress as to his preparedness to engage with the children’s ABA therapy and was clearly motivated by the cost of his involvement with the therapeutic process rather than an understanding of the benefits that would inure to the children were he to so engage.
The wife’s management of the children’s needs was impressive and unlikely to be replicated by the husband. Ordinarily there would be significant latitude in what might be considered appropriate parenting, but taking into account the children’s special needs, more is required of the husband. The interests of the children would not be served by their time being shared between the parties in circumstances where the husband is incapable of setting aside his differences and his apparent mistrust and dislike for the wife.
Whilst I consider that the children would not be well served by the wife’s proposal involving a relocation to Town L, equally, I do not consider that there would be any advantage to them in their care being shared equally between the parties.
As such, the current parenting arrangements should be maintained.

Parental responsibility

Parental responsibility is to be informed by what is in the best interests of the children. The wife has clearly been invested in looking after the children’s needs and managing their therapy, health and other activities. I am not satisfied that the parties are able to communicate at an appropriate level. As discussed, with children exhibiting special needs the obligation on the parties is heightened. In this case the parties are not able to satisfy that higher standard.
The children require stability and certainty. That is only likely to be achieved with the wife having sole parental responsibility. To do otherwise would expose the children to the risk that their needs would at times be subsumed by the internecine dispute and conflict between the parties.
The parties appear in general agreement as to the advantages to the children of overseas travel and I propose to make orders broadly in keeping with the orders sought by the wife.

Property settlement

Each party seeks an order for property settlement.
The wife seeks 80 per cent of the parties’ assets and superannuation entitlements.
The husband proposes to pay the wife a settlement sum of $45,000 less half of valuation and mediation fees paid by him, and that the parties’ superannuation be the subject of a splitting order to provide an equal distribution of the combined superannuation of the parties.
On 5 July 2019 following application made by the wife an order was made in the following terms:
… by way of partial property settlement the wife is to receive $2,400 on condition that the sum so received shall form part of any settlement sum payable to the wife irrespective of whether the money remains or has been spent.
On 31 May 2017 orders were made that the husband pay the wife spousal maintenance of $300 per week and a lump sum payment of $25,000 in the following terms:-
That within 30 days of the date of this order the husband transfer to the wife from the monies presently held in Country F the sum of $25,000 which will be characterised as spousal maintenance or part of the final property settlement as determined by the Court.

Is it just and equitable to alter the property interests of the parties?

The parties both consider that it is just and equitable for the Court to make an order pursuant to s 79 of the Act.
In Stanford & Stanford (2012) 247 CLR 108 the majority held:-
35It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
In Bevan & Bevan [2013] FamCAFC 116 the Full Court considered at [73] that the decision of Stanford could be reduced to three fundamental propositions:-
i)The Court needs to consider the existing property interests of the parties and to identify those interests (by reference to common law and equity); and
ii)The discretion must be exercised in accordance with legal principles and not in respect of any assumption that the parties interests should be different from those determined by common law equity; and
iii)Section 79(2) cannot be conflated by reference to matters in s 79(4).
I consider that it is just and equitable for an order to be made pursuant to s 79.

Assets and liabilities

There is broad agreement between the parties as to the current asset pool.
There is some contention between the parties as to the value that should be brought to account for their separate motor vehicles and their furniture and effects.
No valuations have been provided and accordingly I propose to do the best I can to ascribe a value to those assets currently in dispute by reference to the trial affidavits of the parties, their financial statements and case outline documents.
The wife considers that her motor vehicle is valued at $14,000. Whilst the husband considers that it should have a value of $15,000, I propose to bring to account the wife’s estimate as set out in her financial statement.
Utilising the same approach and by reference to the husband’s financial statement, I bring to account his motor vehicle at $10,000.
In the absence of any valuation of the furniture and effects currently held by the parties, I bring to account the household contents of the wife at $2,500 and of the husband at $7,000.
The husband alleges that the wife entered his property and removed a substantial quantity of furniture. In the absence of any valuation evidence or any cross examination of the wife as to his assertion that she removed furniture and effects and the wife’s denial of same, the evidence does not support a more precise determination.
A significant emphasis during the cross examination of the husband was whether he had made full and frank disclosure in respect of his overseas bank accounts.
The concern of the wife did not appear to relate to the current status of the husband’s accounts but rather to the value of the Country F accounts as at the date of separation and the dispute between the parties as to how those monies have been disbursed.
Some difficulty has arisen in the fluctuating exchange rate as between the Euro and the Australian dollar.
I accept that there has not been a clear audit trail presented, but in the absence of expert evidence I am not able to find that the wife is unreasonable in her inquiry, nor can I find that the husband has lied about his conduct in transacting the accounts since separation as was asserted by the wife’s counsel.
Caution should always be exercised before it is alleged that a party has not told the truth. In Strange v Hybinett (1988) VR 418 at 422 Murphy J cited the following passage from Lord McMillan’s book “Law and Other Things”:-
It is no small responsibility which the State throws upon a lawyer in thus confiding to this discretion the reputation of the citizen. No enthusiasm for his client’s case, no specious assurance from his client that the insertion of some strong allegations will coerce a favourable settlement, no desire to fortify the relevance of his client’s case, entitles the advocate to trespass, in matters involving reputation, a hair’s breadth beyond what the facts as laid before him and duly vouched and tested will justify.[2]
[2] Page 191 – 192.
Accordingly, the assets of the parties are as follows:-

Savings in Australia (husband)

$ 4,900

Balance of Country F accounts

$20,500

Balance of funds held in husband’s former solicitors trust account

$52,106

Husband’s motor vehicle

$10,000

Wife’s motor vehicle

$ 14,000

Husband’s furniture

$ 7,000

Wife’s furniture

$ 2,500

Total

$111,006

Should the money received by the wife be added back?

The husband seeks the sum of $25,000 provided to the wife pursuant to the order of 31 May 2017 be “added back”.
Whilst there is some relevance in determining whether the money should be categorised as spousal maintenance or partial settlement of property, there is little utility to the exercise in circumstances where the wife sets out with precision how the money received was spent. By reference to [202] of the wife’s trial affidavit, I find that the money was spent on the exigencies of life. It could not be said that the money was spent frivolously, nor was there any challenge to the wife’s explanation as to how the money was disbursed.

Contributions

It is conceded that at the commencement of the relationship the husband had interest in real property subject to a mortgage and that the wife did not bring any property of significant value into the relationship. The wife’s position is that given the marriage was for more than 10 years no additional weight should be given to the husband’s pre-marital contribution.[3]
[3] Wife’s “draft outline of case” document - page 8.

The wife owes a debt to the Country Z government for student loans. She says that at the commencement of the relationship she owed approximately $10,000 USD but that the current balance is approximately $134,210 USD. She is required to make repayments of a minimum of $300 AUD per month on the loans whether she is employed or not.
The husband acknowledges that the wife has made significant non-financial contributions and the wife acknowledges that the husband has made significant financial contributions.
When considering the weight to be given to the separate contributions of the parties I must have regard to a dollar value that is the outcome of any application of a percentage adjustment.
In Clauson & Clauson (1995) FLC 92-595 the Full Court was faced with the fact of the husband’s substantial initial contribution followed by a 10 year period of cohabitation where the parties made direct and indirect contributions over what was described as “10 busy years”. At 81,910 the Full Court considered the husband’s initial financial contribution as follows:-
The circumstance that the significance of the initial contributions may be eroded over the passage of time because of the other contributions which the parties make over the duration of the marriage is, we think, not a matter of controversy…
(citations omitted).
This must be considered with the remarks of the Full Court in Pierce v Pierce (1999) FLC 92-844 at 85,881:-
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the original contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home.
(citations omitted).
The parties are agreed that at the commencement of cohabitation the husband had the following assets:-

Home

$454,742

Overseas savings

$257,150

Furniture and effects

$24,366

Total

$736,258

Less mortgage in respect of husband’s home

$366,302

Balance

$369,956

The husband concedes that he did not add to his pre-cohabitation savings and accounts and as at the date of separation (and at present) the overwhelming proportion of the current assets are to be traced back to the husband’s pre-cohabitation savings. Since separation, the parties have continued to make both direct financial contribution in terms of the husband’s continued employment and income and indirect contribution by reason of the wife’s primary care of the children and her fulfilment of the role of homemaker.
As discussed, significant focus was upon the extent of the husband’s savings and accounts at the date of cohabitation and the manner in which those funds were subsequently dissipated.
The husband contends that at the date of separation in January 2017 the assets of the parties was in the sum of $215,687 with his overseas savings being the single largest component at approximately $160,000 AUD. The wife disagrees with the husband’s evidence and she contends that as at the date of separation the value held by the husband in overseas accounts was approximately $191,643 AUD.
What is not in dispute is that what is left can be traced back to the pre-cohabitation assets of the husband.
There was no attempt by the wife to give effect to her assertion that between separation and trial, on her calculation, there is a discrepancy of about $30,000 AUD.
The wife concedes that the parties did not acquire any further assets during the course of their relationship and taking into account the separate contributions of the parties the Court should consider that they are adjusted to equality.
I do not ignore the substantial contributions of the parties during the period of cohabitation. The wife concedes that the husband was in fulltime employment and received substantial remuneration. Whilst the husband sought to lessen the wife’s contribution as a homemaker, but in particular in respect to the care of the children, the evidence supports a finding that she was the primary consultant and given the special needs of the children her efforts should not be undervalued.
I do not consider that adopting the wife’s position of equal contribution provides any recognition for the extent that the current pool of assets can be traced directly to the husband’s pre-cohabitation accounts.
It is not an arithmetical exercise and were it to be so the consequence would produce an outcome where the husband would have been considered to have made a contribution as to 100 per cent of the current pool. That would be unacceptable and not properly reflective of the very nature of the relationship between the parties and the ebb and flow of their separate contributions.
In respect of a net pool of $111,006, each five per cent represents $5,550. I consider that there should be apportionment between the parties to reflect their separate contributions of 65/35 in favour of the husband. The differential is 30 per cent and is reflected in the sum of $33,300.
I consider that it strikes a reasonable balance between the overwhelming contribution made by the husband in respect of his pre-cohabitation accounts and the significant contribution by each of the parties in respect of a period of cohabitation of 10 years but involving the high care needs of the children.

Section 75(2) factors

The parties are not dissimilar in age.
The husband is in secure full-time employment earning approximately $180,000 gross per annum.
The wife is not in employment. While she maintains a web domain for “J Centre” it is her position that she is not able to work due to the significant health needs of the children. While the children attend at school on a full-time basis the wife’s evidence is that her day is occupied by preparation ahead of their return.
If she is permitted to relocate she will have the full-time care of the children. Mr K intends to provide assistance, but his evidence was that he intends to work up to 50 hours a week in pursuit of re-establishing his business. It is not clear from the wife’s evidence that her circumstances will be significantly different and that the children will require less attention to their significant health needs in Town L than in Adelaide.
The wife’s position is that if she is not permitted to relocate she will have difficulty establishing a successful health and fitness or alternative therapy business in Adelaide and will instead need to retrain to obtain employment.
It is her intention to apply for an adjustment to child support on the basis that the costs of raising the children are significantly affected because of their special needs. She accepts that the husband may be eligible to apply for an adjustment for the cost of travelling to spend time with the children if she is permitted to relocate with the children.
The overwhelming factor between the parties is their income disparity.
Whilst I do not accept the wife’s view that she is not able to obtain employment in her chosen areas of interest in Adelaide and irrespective of whether her employment or work prospects would be enhanced in Town L; the wife’s income is likely to be modest.
There is no suggestion that the husband does not pay an appropriate level of child support. He does not resile from the assessment and whilst that should not be a factor in his favour pursuant to s 75(2) of the Act, it is acknowledged that the Child Support Assessment is substantial and enables the wife to better utilise her own resources where a greater proportion of the children’s expenses are covered by the child support paid.
The orders made do not allow the children’s relocation to Town L. I am uncertain as to the status of the wife’s relationship with Mr K but I have assumed that he considers his life to be in Town L and I do not bring to account his financial circumstances or any ability that he has to financially assist the wife.
An unfortunate consequence for the parties has been the significant extent of their legal fees when compared to the modest extent of assets that are available for division. The proceedings have been ruinous for the parties and the legal fees are likely to exceed any funds that the parties may receive by way of settlement of property.
The wife seeks an adjustment of 15 per cent in her favour although there is some uncertainty as to the overall percentage adjustment sought by the wife. Given the extent of the pool and by reference to earlier the earlier calculation I consider that the adjustment is modest and does not properly reflect an appropriate consideration of the relevant s 75(2) factors. I consider that there should be a 25 per cent adjustment.
Accordingly, the property of the parties should be adjusted as to 60/40 in favour of the wife. The wife should receive $66,603. However, she retains the following assets:-
·Motor vehicle $14,000
·Furniture and effects $2,500
The balance is $50,103 less one half of mediation fee $1,705 leaving a total of $48,398.

Superannuation

The wife seeks that the parties’ superannuation entitlements be split as to 80 per cent in her favour. The husband agrees that there should be a split of the parties’ superannuation entitlements but it is his position that the split should be to equality.
In her financial statement the wife reports that she has no superannuation and records an estimated debt to her brothers of $15,000. In her Affidavit filed 5 May 2019 she says at [217]:-
With respect to my “superannuation” in Country Z, at the date that I ceased employment with the Country Z Government in 2006, the balance of my superannuation was transferred to a low risk investment account. In 2016 the balance of the investment account was US$11,929.00. My brothers lent me the equivalent amount to pay legal fees plus payment of credit debt in my name. I now owe my brothers an amount equivalent to the balance of the investment account in 2016.
In his Financial Statement filed 1 July 2019 the husband places the value of his superannuation at $228,174. The interest is an accumulation interest and a defined benefit interest.
In Bulow & Bulow [2019] FamCAFC 3 the Full Court considered the nature of the parties’ superannuation interests and considered the different considerations that need to be applied to a defined benefit interest and an accumulation interest. Their Honours considered the differences in the following paragraphs:-
18.Those differences include the method by which the ultimate benefit is calculated; the risk to the member inherent in each and, very importantly, the effect of a s 90XT(1)(a) order (an order which allocates a base amount to the non-member spouse). Each and all of those differences can, and very often do, have a dramatic impact upon the justice and equity of a proposed splitting order and, in turn, its place within just and equitable orders for settlement of property.
19.The [Family Law Act] provides, relevantly, for splitting orders to be made with respect to when splittable payments become payable — that is, when the member spouse satisfies a condition of release. The [Family Law Act] does not provide for the underlying superannuation interests themselves to be split. That work is left, in the more usual course, to Part 7A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“SIS Regulations”). The SIS Regulations allow the creation of a new superannuation interest in the name of the non-member spouse such that their interest is separated from the interest of the member spouse within the fund. Finality in the financial relationship of the parties, as required by s 81 of the [Family Law Act], occurs through a combination of both the [Family Law Act] and the SIS Regulations.
20.Crucially, however, defined benefit funds[4] are not regulated by Part 7A of the SIS Regulations.[5] It is therefore fundamental to a consideration of any proposed splitting order that the Court consider the governing rules of such funds contained within their specific trust deeds. It is those rules which will determine the effect of any splitting order on the underlying interest within that particular fund. As an example, within a defined benefit fund the fund’s rules can dictate that a splitting order has significant effects on the formula by which a member’s ultimate entitlement is calculated.
(Footnotes omitted).
[4] See, definitions contained in the SIS Regulations reg 1.03AA; and the Family Law (Superannuation) Regulations 2001 (Cth) reg 5.
[5] See, reg 7A.04 of the SIS Regulations.
Their Honours considered that a judicial determination in respect of a splitting order must be just and equitable.
The parties agree that there should be a superannuation split. They are not agreed as to the extent of the adjustment. The wife seeks an adjustment of 80 per cent whereas the husband seeks an adjustment of 50 per cent.
The Court is assisted by the affidavit of Ms N filed 27 May 2019.
Mr N is a qualified Actuary and is highly regarded for his opinion as to the value of superannuation entitlements and the effect of a splitting order on a Defined Benefit component.
Mr N obtained his instructions by letter from the wife’s solicitors dated 16 May 2019. He was instructed to provide an opinion as to the value of the husband’s superannuation interest including the Defined Benefit component and to provide comment as to the effect of the proposed splitting order. Mr N had confirmed that he was aware of the recent decision of the Full Court in Bulow & Bulow (supra).
The value of the husband’s superannuation interest as at 12 April 2019 was $228,174. Approximately $35,000 (or around 15 per cent) relates to the accumulation portion of the total interest.
As such, the majority of the superannuation interest is as a Defined Benefit interest.
Mr N was hampered in his ability to advise as to the adjustment that would be made to the husband’s Benefit Service in respect of any specific splitting order or amount, but he describes the impact of a payment split in respect of both existing and ongoing benefits as follows:-
As a result of a specific payment split, a calculation is undertaken to determine the portion of Benefit Service which is to be reduced as a result of the payment split. This is a one off adjustment and effectively results in a period of “lost” service as a result of the payment split. The reduced Benefit Service will result in a reduced accrued benefit multiple at the current date, and the accrued benefit multiple will continue to increase on a year by year basis based on the standard factors and part-time/full-time adjustment.
The benefit of a split to the wife is that the payment split “will form the initial balance of an accumulation interest in the name of the spouse”.
Thereafter, the wife will have the following options:-
·If she is an existing member of G Super, she can elect to transfer the payment split amount into her existing accumulation account, or
·Otherwise she may elect to become an accumulation member of G Super and retain the resulting interest in a newly created accumulation account, or
·Elect to rollover the payment split to a nominated superannuation fund which is already in place, or
·If the payment split amount can be paid as an immediate lump sum to the wife (as a result of its preservation status or the wife’s own preservation status enabling this payment), she may elect to receive payments of the split amount as a lump sum benefit.
It is likely that the husband may be advantaged by the Defined Benefit component increasing in value by reference to the husband’s salary and an increase in the accrued multiple by reference to years of service.
I propose to treat considerations of superannuation as a separate pool.
The husband and wife will satisfy a condition of release at about the same time. Whilst there has not been any calculation of same, it is likely that the Defined Benefit component will attain a greater value than the accumulation component that would be split to the wife.
The husband has a significant advantage by reason of his well-paid employment.
The parties came to Australia with no superannuation entitlement. What has accrued is as a result of the husband’s employment. He gains significant advantage over the wife by being able to access a superannuation entitlement which is calculated by reference to a Defined Benefit component.
Whilst I have brought to account the husband’s superior income for the purposes of a s 75(2) adjustment, it is not double counting to recognise that the husband’s income is one of the variables in calculating the superannuation value.
The wife’s care of the children and her contribution as a homemaker has allowed the husband to pursue his career resulting in him attaining a professorial qualification.
The contributions of the parties are equal in respect of the husband’s superannuation entitlement. However, I consider that there should be an adjustment of 10 per cent in favour of the wife for s 75(2) factors that arise because the husband is entitled to a substantial benefit that is not able to be enjoyed by the wife.
Accordingly, there should be a superannuation split of 60/40 in favour of the wife.

Spousal maintenance

Judge Young made an order on 31 May 2017 that the husband pay spousal maintenance of $300 per week to the wife.
Following an application made by the husband orders were made on 15 February 2018 that the amount of spousal maintenance was reduced to $240 per week.
If the wife is not permitted to relocate she seeks an order that the husband pay spousal maintenance of $300 per week and the cost of the children’s private health insurance until December 2021.
If the wife is permitted to relocate she seeks that the husband pay spousal maintenance of $300 per week and the cost of the children’s private health insurance until December 2019. She is confident that she will be able to establish a health and fitness business in Town L and will be financially successful.
Whether an order should be made for ongoing spousal maintenance requires consideration of the following four factors as highlighted by Coleman J in Saxena & Saxena (2006) FLC 93-268 at 80,551:
(1)To what extent can the applicant support themselves?
(2)What are the applicant’s reasonable needs?
(3)What capacity does the respondent have to meet an order if made?
(4)If the three previous steps are decided in favour of the applicant, then what order is reasonable, having regard to s 75(2) factors?
The applicant must establish that they are unable to adequately support themselves. Whether the applicant is unable to support themselves “adequately” is “not to be determined by reference to any fixed or absolute standard”, but by reference to the matters in s 75(2) and in particular the following paragraphs:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
…
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
…
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
…
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties…[6]
[6]Mitchell & Mitchell (1995) FLC 92-601 at 81,995.

The wife’s income of $1,625 per week is comprised of a Centrelink Carer’s Allowance of $650 and Family Tax Benefit of $142, Child Support of $593 paid by the husband for the benefit of the children and spousal maintenance of $240. Her personal expenditure of $2,157 far exceeds her income.
In Bevan & Bevan (1995) FLC 92-600 the Full Court considered that an award of spousal maintenance should not necessarily be at a “subsistence level” but rather, a level that is reasonable, in all the circumstances, giving proper regard to the relevant s 75(2) factors.[7]
[7]Bevan & Bevan (1995) FLC 92-600 at 81,980-81,981.
The husband says his financial position is now precarious and that he is not in a position to meet any ongoing order for spousal maintenance. He has ceased making the payments required by the existing order.
His ability to pay must be considered in light of all of the circumstances, including mental and physical resources, money at his disposal, capital position and current necessary expenditure.[8]
[8]In the Marriage of Vartikan (1984) FLC 91-334 at 79,738 (Gee J).
The husband’s Financial Statement filed 26 February 2019 in anticipation of trial provides his income as $3,478 and his expenditure as $3,847.
The husband’s Financial Statement filed 1 July 2019 following the wife’s Application in a Case updates his weekly income to $3,530 and total expenditure to $4,286. His additional expenditure arises from the repayment of an ING Loan at $220 per week, rates or other levies of $62 and the payment of $63 per week toward a credit card.
The husband makes contributions to a G Super account of $247 per week.
The wife acknowledges that as time passes she has an increasing capacity to provide for her own needs.
She concedes that if she had been able to relocate to Town L then the husband’s spousal maintenance obligations should expire at 31 December 2019. If not, then the husband should pay spousal maintenance until December 2021 or about 16 months. The concession by the wife is based upon her belief that she will obtain employment sooner or later.
The wife did not present evidence either that she would readily find employment in Town L or that she is not easily able to find employment or generate income if she remains in South Australia.
A further complication is the extent to which she will remain in a relationship with Mr K.
If he were to move to Adelaide there is some reasonable argument that the wife’s spousal maintenance should cease or at the very least should be considered by reference to Mr K’s financial circumstances.
No further evidence was presented to the Court in respect of the wife’s financial position. I also accept that by reason of monies borrowed for the purposes of litigation funding, the husband’s ability to support a long-term order for spousal maintenance is significantly compromised.
I accept that his weekly expenditure effectively equals his income.
Whilst it is modest, I consider it is appropriate to consider the property of the parties to explore whether spousal maintenance should be paid by a lump sum.
I consider it reasonable that the wife should have an opportunity to reassess her financial position and to either energetically pursue remuneration in her chosen fields of health and fitness instruction and as a consultant. I propose to order that the husband pay spousal maintenance to the wife of 36 weeks at the rate of $240 per week to be paid as a lump sum from the property to be retained by the husband in the sum of $8,640.

Conclusion

Accordingly, the wife is receive the following:-

Settlement of property

$48,398

Lump sum spousal maintenance

$ 8,640

Less money received pursuant to Orders made 5 July 2019

$ 2,400

Balance

$54,638

The husband is to pay the sum of $54,638 comprised of the settlement sum of $45,998 and the lump sum spousal maintenance sum of $8,640 to the wife within 60 days of the date of this order.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and forty (340) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 17 September 2019.

Associate:

Date: 17 September 2019

Savings in Australia (husband)	$ 4,900
Balance of Country F accounts	$20,500
Balance of funds held in husband’s former solicitors trust account	$52,106
Husband’s motor vehicle	$10,000
Wife’s motor vehicle	$ 14,000
Husband’s furniture	$ 7,000
Wife’s furniture	$ 2,500
Total	$111,006

Home	$454,742
Overseas savings	$257,150
Furniture and effects	$24,366
Total	$736,258
Less mortgage in respect of husband’s home	$366,302
Balance	$369,956

Settlement of property	$48,398
Lump sum spousal maintenance	$ 8,640
Less money received pursuant to Orders made 5 July 2019	$ 2,400
Balance	$54,638