Olson & Currie
[2025] FedCFamC2F 784
•13 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Olson & Currie [2025] FedCFamC2F 784
File number(s): MLC 15181 of 2023 Judgment of: JUDGE GLASS Date of judgment: 13 June 2025 Catchwords: FAMILY LAW – PARENTING – where the mother will relocate with the children to Melbourne – where the father will retain the family home in Town B – where relocation will improve the mother’s capacity to provide for the children’s needs – where relocation will not negatively affect the children’s relationship with their father – where the children’s best interests are not so adversely affected so as to justify interference with the mother’s right to freedom of mobility.
FAMILY LAW – PROPERTY – where the paternal grandparents gave the father two loans towards purchasing the family home – where one loan is considered a liability and the other is considered a contribution – where the paternal grandfather’s will revokes a prior note bequeathing an asset to the father – where taxation liabilities incurred while parties were living separately under the one roof ought be shared
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DAA, 90SF, 90SM, 90ST, 106A Cases cited: Adamson & Adamson (2014) FLC 93-622
AMS v AIF (1999) 199 CLR 160
Asher & Wilkinson (2020) FLC 93-945
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
KB & TC (2005) FLC 93-224
Browne v Dunn (1894) 6 R. 67
Canh & Canh (2021) FLC 94-058
Cornett & Hext (2021) FLC 93-067
DJM & JLM (1998) FLC 92-816
Franklyn & Franklyn [2019] FamCAFC 256
Gosper & Gosper (1987) FLC 91-818
Heaton v Heaton (2012) 48 Fam LR 349
Hofer v The Queen (2021) 274 CLR 351
Jurchenko & Foster (2014) FLC 93-598
Kessey & Kessey (1994) FLC 92-495
Kramer & Anor & Ward (2017) FLC 93-817
Malcolm & Monroe & Anor (2011) FLC 93-460
Morgan & Miles (2017) FLC 93-343
Pascoe & Larsen (2022) FLC 94-087
Preston & Preston (2022) FLC 94-108
Prince & Prince (1984) FLC 91-501
Rickaby & Rickaby (1995) FLC 92-642
Russo & Wylie (2016) FLC 93-747
SCVG & the Estate of KLD (No 2) (2023) FLC 94-148
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
U v U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 172 Date of hearing: 26 – 29 May 2025 Place: Melbourne Counsel for the Applicant: Ms Mallett KC Solicitor for the Applicant: Coulter Legal Counsel for the Respondent: Mr Puckey KC Solicitor for the Respondent: Lopes Family Law ORDERS
MLC 15181 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS OLSON
Applicant
AND: MR CURRIE
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
13 JUNE 2025
THE COURT ORDERS THAT:
Parenting
1.The parties have joint decision-making responsibility for major long-term issues for X, born in 2012, and Y, born in 2016.
2.From the conclusion of Term 2 2025, the children live with the mother within 20 kilometres of Suburb C, Victoria, or such other suburb as agreed between the parties in writing.
3.Unless otherwise agreed between the parties in writing, the children spend time with the father:
(a)during school terms:
(i)each alternate weekend from after school Friday (or 9.00 am if a non-school day) until 7.00 pm Sunday;
(ii)upon the father providing two weeks’ advance notice to the mother, each Tuesday from after school (or 3.30 pm if a non-school day) until 7.00 pm, or the commencement of school on Wednesday in the event the father is able to accommodate the children proximate to Suburb C;
(b)during term school holidays:
(i)from 7.00 pm on the conclusion of the last day of the school term to 7.00 pm on the second Sunday of the school term holidays in odd years; and
(ii)from 7.00 pm on the second Sunday of each of the school term holidays until 7.00 pm on the Sunday of the following week during each of the school term holidays in even years; and
(c)during summer school holidays for four weeks (28 days in total) the timing and length of each block of time to be agreed between the parties in writing and if not agreed, for four weeks starting 10.00 am the first Saturday of the holidays.
4.Notwithstanding any other Orders and unless otherwise agreed between the parties in writing, the children spend time with each of their parents as follows:
(a)with the mother from 10.00 am on 24 December until 5.00 pm on 26 December in odd years;
(b)with the father from 10.00 am on 24 December until 5.00 pm on 26 December in even years;
(c)with the mother from after school on Maundy Thursday until 7.00 pm Easter Monday in even years;
(d)with the father from after school on Maundy Thursday until 7.00 pm Easter Monday in odd years;
(e)on the Mother’s Day weekend, with the mother from 5.00 pm Saturday until 7.00 pm Sunday;
(f)on the Father’s Day weekend, with the father from 5:00pm Saturday until 7.00 pm Sunday;
(g)with the mother each Country D Independence Day weekend from 10.00 am Saturday until 5.00 pm Sunday;
(h)with the father on the annual extended family celebration weekend in Town E, South Australia from collection from school Friday until 5.00 pm Sunday;
(i)with the parent the children are not in the care of on each of the children’s birthdays (if that parent so elects) from after school until 8.30 pm if the birthday is on a school day and from 10.00 am until 2.00 pm if the birthday is on a non-school day; and
(j)in the event the children are not in the care of a parent on the parent’s birthday (if that parent so elects) from after school until 8.30 pm with the parent having the birthday if the birthday is on a school day and from 10.00 am until 7.00 pm if the birthday is on a non-school day.
5.Unless otherwise agreed between the parties in writing, changeover shall occur as follows:
(a)at the children’s school/s at school times;
(b)at the mother’s residence when changeover is on a Monday, Tuesday, Wednesday or Thursday during school terms at non-school times; and
(c)otherwise at F Service Station, G Highway.
6.The parties shall communicate with each other in relation to the children through email or SMS text message, save and except for time sensitive or urgent matters in which the parents shall communicate by telephone.
7.The children be permitted to contact the parties at all reasonable times when they are not in their care and the parties to facilitate such communication occurring and if necessary to assist the children to initiate the telephone calls as requested.
8.The parties shall communicate with the children by video call (or telephone call if video call is not available) as agreed between the parents in writing and in default of agreement each day at all reasonable times when the children are not otherwise in their care with the parent whose care the children are not in to initiate the call to the other parent and/or the children.
9.Unless otherwise agreed between the parties in writing, the parties shall do all such acts and things necessary to cause X to be enrolled at H School and Y to be enrolled at J School and thereafter H School.
10.The parties shall keep the other advised of their current residential address and mobile telephone number and notify the other in writing no less than 14 days prior to any change of residential address and within 48 hours of any change of their mobile telephone number.
11.The parties shall be permitted to liaise with the children’s school/s to obtain information about the children’s progress and obtain copies of reports, photographs, newsletters and all other documents usually provided to parties, at their own expense.
12.The parties shall be at liberty to attend any school or extra-curricular activity to which parents are ordinarily invited, including but not limited to school events and concerts, sporting events, parent teacher interviews, and volunteering days such as classroom assistance days and working bees regardless of whether the children or either of them is in the other’s care.
13.The parties shall be authorised to provide a copy of any Orders made to the children’s school/s.
14.The parties shall inform the other as soon as practicable of any serious illness or injury sustained by the children whilst they are in their respective care and further provide any particulars of any treatment received by the children or either of them together with the name and address of the treatment provider and/or location at which the children or either of them is a patient and other parent be permitted to attend.
15.The parties shall be permitted to liaise with the children’s treating medical practitioners to obtain information about the children’s medical care and to obtain copies of any relevant documents at their own expense.
16.The parties shall be authorised to provide a copy of any Orders made to the children’s treating medical practitioners.
17.Without admitting the necessity for the same, the parties, their servants and/or agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, intimidating, harassing or otherwise denigrating the other parent to or in the presence or hearing of the children or any of them and permitting any other person to do so;
(b)passing messages through the children to the other parent;
(c)discussing parenting disputes and/or issues with or in the presence of the children or any of them without first discussing the matter between the parents;
(d)discussing any Court proceedings including with or in the presence or hearing of the children or any of them and permitting any other person to do so; and
(e)allowing the children to have access to any documents relating to the parties’ separation and/or Court proceedings including any ancillary proceedings.
Property
18.Within 60 days (the Date) the father pay the mother the sum of $360,839 (the Payment).
19.Contemporaneously with the Payment:
(a)the mother transfer all of her right, title and interest in the property situate at and known as K Street in Town B being the whole of the land more particularly described in Certificate of Title Volume … Folio … to the father; and
(b)the father indemnify the mother against all rates, taxes and like apportionable outgoings of the Town B property and against all and any liability associated with the loan of the parties payable to his father’s Estate and/or his mother.
20.Pending the Payment:
(a)the parties continue to each have sole use of the property for the periods detailed in the Interim Orders dated 10 May 2024 until the conclusion of Term 2 2025;
(b)the father have sole use and occupancy of the Town B property after the conclusion of Term 2 2025;
(c)the father be liable for all instalments pursuant to the rates and taxes, insurance, and like apportionable outgoings of the Town B property and ensure that all payments are made as and when they fall due;
(d)the father indemnify the mother against all claims, demands, proceedings and judgements in respect of liability pursuant to the rates and taxes, insurance and like apportionable outgoings of the Town B property of whatsoever nature and kind and ensure that all payments are made as and when they fall due;
(e)the parties maintain the Town B property, including but not limited to keeping the real property in a good, reasonable and presentable condition and state of repair;
(f)the parties hold their respective interests in the Town B property on trust pursuant to these Orders; and
(g)neither party encumber or further encumber the Town B property, save as to otherwise comply with these Orders.
21.In the event that the whole of the Payment has not been made by the Date, the parties shall do all such acts and things necessary to cause the Town B property to be listed for sale within 21 days of the Date on the following terms and conditions:
(a)the parties shall appoint a selling agent as agreed between the parties in writing and in default of agreement such selling agent as shall be appointed by the President of Real Estate Institute of Victoria or his nominee (the selling agent);
(b)the parties shall appoint a conveyancer/solicitor as agreed between the parties in writing and in default of agreement such conveyancer/solicitor as recommended by the selling agent;
(c)the parties cooperate with the selling agent including but not limited to making the Town B property available for inspection by prospective purchasers;
(d)the reserve and sale price of the Town B property be set at $1,150,000.00 unless otherwise agreed between the parties in writing and in default of agreement as reasonably recommended by the selling agent;
(e)the method of sale be as agreed between the parties in writing in consultation with the selling agent and in default of agreement as reasonably recommended by the selling agent; and
(f)the contract of sale shall provide for a settlement period of no longer than 60 days unless otherwise agreed between the parties in writing.
22.Upon settlement of the sale of the Town B property, the proceeds of sale be applied as follows:
(a)firstly, to pay the commission, conveyancing fees and any agreed expenses of the sale;
(b)secondly, to pay the loan of the parties owing to the Estate of the father and/or his mother;
(c)thirdly, to pay such of the payment plus interest calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to the mother; and
(d)fourthly, to pay the balance to the father.
23.The father shall be solely liable for and assume responsibility for, pay and forever keep the mother indemnified against any and all liability past, present and future payable:
(a)to the father’s late father and mother and/or their estates, including, but not limited to, any monies owing pursuant to the Loan Agreements dated 15 August 2017 and 30 August 2020; and
(b)pursuant to any assessment of taxation in the father’s sole name payable to the Australian Taxation Office.
24.The chattels of the Town B property be divided as follows:
(a)each party retains their own personal possessions;
(b)any chattel purchased by the parties since separation is retained by the party who purchased the item;
(c)the mother retains the following:
(i)sofa lounge from living room;
(ii)dining table and chairs;
(iii)large glass vases;
(iv)refrigerator;
(v)food processer;
(vi)cake mixer;
(vii)electric juicer;
(viii)air-fryer;
(ix)SodaStream;
(x)frying pan;
(xi)camping Esky;
(xii)framed ‘…’ painting;
(xiii)framed photograph landscape print (being the Mother’s photograph);
(xiv)Nintendo Switch;
(xv)Beach umbrella and chairs;
(xvi)Camping gear including tent, stove and chairs;
(xvii)White market stall gazebo/marquee;
(xviii)indoor plants;
(xix)her Surfboard;
(xx)her bicycle;
(xxi)X’s bed and desk;
(xxii)Y’s desk and shelf; and
(xxiii)such other and further chattels and possessions agreed between the parties.
(d)the father retains the remaining chattels.
25.Orders 26 to 30 inclusive of these Orders are binding on Super Fund 1 (the Trustee) in its capacity as the Trustee of the Super Fund 1 (the Superannuation Fund) - Member Number: ….
26.The base amount to be allocated to the Applicant out of the interest of the Respondent in the Superannuation Fund is $36,020 (the base amount).
27.Pursuant to Section 90XT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the interest of the Respondent in the Superannuation Fund, the Applicant shall be entitled to be paid an amount calculated in accordance with Part 7 of the Family Law (Superannuation) Regulations 2025 (Cth) using the base amount and there be a corresponding reduction in the entitlement of the Respondent.
28.Order 27 has effect from the operative time.
29.The operative time for the purpose of these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the Superannuation Fund.
30.Until the happening of any of:
(a)the establishment of a separate account in the applicant’s name in the Superannuation Fund; or
(b)the transfer or “rolling over" into another superannuation fund of the payment split which was created by Orders 24 to 28 of these Orders; or
(c)the applicant satisfying a condition of release and is paid the payment split which was created by Orders 25 to 29 of these Orders; or
(d)the applicant executing a waiver or rights within the meaning of Section 90XZA of the Family Law Act 1975 (Cth) in relation to the payment split created by Orders 25 to 29 of these Orders;
the respondent be and is hereby restrained by himself, his servants, or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a "non splittable payment" within the meaning of the Family Law (Superannuation) Regulations 2025 (Cth).
31.The mother, without admission as to the necessity for the same, forthwith:
(a)delete and destroy all emails and copies of emails and text messages copied or downloaded from the father’s computer, including copies stored on external devices; and
(b)request in writing that any third parties who she has provided with copies of emails and text messages downloaded from the father’s computer, including on a computer or external storage device, delete and destroy any such copy/copies of any email/s or text message/s.
32.Unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses in action), superannuation and financial resources in the name and /or possession (or to which they are each entitled) of that party as at the date of these Orders;
(b)any monies standing to the credit of the parties in any bank account are to be retained by the party in whose name the account appears;
(c)each party retain all superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to each of them respectively to the exclusion of the other and each hereby forego all claims of whatsoever nature and kind to such benefits entitlements and the like retained by the other;
(d)all insurance policies are to become the sole property of the named owner;
(e)each party be solely liable for and indemnify the other against any liability, including any credit card liability, encumbering any item of property to which that party is entitled pursuant to these Orders and in their respective names; and
(f)any joint tenancy of the parties in any real or personal property is hereby expressly severed.
33.All extant applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS
Ms Olson and Mr Currie commenced cohabitation in 2011 and separated in July 2023.
They have two children, X and Y, aged 13 and eight years old respectively.
Arising for determination are competing applications for parenting and property settlement orders.
The parties rely on the documents identified in their Outlines of Case and the documents tendered into evidence during the hearing. Each propose that orders be made as particularised in their Outlines of Case, as amended orally during the hearing.
PARENTING
After the parties’ separation, they continued to live under the one roof. Pursuant to an interim agreement reached between the parties in May 2024, the children currently reside in the parties’ former family home in Town B. Each parent spends an almost equal amount of time in the home across the fortnight in what is sometimes described as a nesting arrangement. It is common ground that this arrangement will come to an end.
Ms Olson proposes to establish a new home with the children in or near Suburb C, a suburb in Melbourne, approximately one and half hours from Town B. It is common ground that Mr Currie will have the opportunity to retain the former family home, and he intends to reside in it. It is common ground that if the parties live in their desired locations, it will be impracticable for the children to continue to spend equal time with each of their parents.
Ms Olson proposes that the children live with her within 20 kilometres of Suburb C and spend time with Mr Currie each alternate weekend for two nights and half school holiday periods. She also proposes that the children spend each Tuesday evening with Mr Currie, extending to overnight time in the event that he can accommodate them suitably proximately. She proposes the children be enrolled at H School and that Y complete her primary schooling at J School.
Mr Currie proposes that both parties have joint responsibility for making major long-term decisions for the children and that they live with the parties on a week about basis in the Town B region. Alternatively, he proposes that should Ms Olson move to Suburb C, the children live with him and spend two nights each alternate weekend with their mother, along with an additional weekend every two months, and up to four hours each Wednesday, provided such time occurs in the Town B area. In the further alternative, he proposes that if the children live with Ms Olson in Suburb C, the children spend time with him each alternate weekend for two nights, for up to six hours on any day he nominates on two weeks’ notice, and for four weeks during the summer school holiday periods.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part.[1] X and Y’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
The Act does not treat “relocation” cases as being in a special category.[3] Although each party’s proposal and the reasons for it are properly part of the inquiry, Ms Olson need not establish compelling reasons for the move.[4]
[3] Morgan & Miles (2017) FLC 93-343 at [72]; B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,194.
[4] Malcolm & Monroe & Anor (2011) FLC 93-460 at [83] and the cases there cited.
Ms Olson concedes that if the children are to remain living in the Town B region, she will not herself move away. It is nevertheless impermissible to proceed on the basis that she is prepared to continue living in or near Town B.[5] To treat her refusal to abandon her children and her expression of willingness to stay in or near Town B as an alternative proposal impermissibly requires her to show “good” or “compelling” reasons to move.[6] Contrary to a suggestion on behalf of Mr Currie, I do not accept there is any relevant distinction to be drawn between cases where a concession to remain in the location of a party’s children is given in cross-examination and where, like here, it has long been a feature of Ms Olson’s case.
[5] Jurchenko & Foster (2014) FLC 93-598 (“Jurchenko & Foster”) at [104].
[6] Jurchenko & Foster at [100] adopting U v U (2002) 211 CLR 238 at [144] per Kirby J.
The proper approach is to weigh the competing proposals, having regard to the relevant statutory considerations and other relevant factors, including Ms Olson’s right to freedom of movement. The ultimate decision must be one that is in X and Y’s best interests.[7]
[7] KB & TC (2005) FLC 93-224 at [72]; Pascoe & Larsen (2022) FLC 94-087 at [36].
In closing address, Mr Currie articulated that his primary proposal is that the children live with him in Town B in the event Ms Olson moves to Suburb C. Mr Currie’s alternative proposal for equal time is premised on Ms Olson’s concession that she will not move without the children. Despite the framing of his Orders Sought initially appearing to suggest that Ms Olson would be required to live within 30 kilometres of Town B, he disavowed any suggestion that she would be compelled to do so. Mr Currie’s alternative proposal accordingly relies on Ms Olson’s concession that she would not abandon her children. Ms Olson’s fall-back position is to be considered only if her primary proposal is not accepted and is not to be treated as if it were a primary proposal.[8]
[8] Asher & Wilkinson (2020) FLC 93-945 at [100].
Mr Currie nevertheless submits that his primary proposal of the children living with him would never arise because Ms Olson has made it clear she would not relocate without the children. He also submits that Ms Olson has effectively eliminated his primary proposal because of that concession. He accordingly essentially focused on the benefits to the children of living in an equal time arrangement with each of their parents in Town B. With respect, there is a significant risk in that approach of elevating Ms Olson’s concession to the status of a proposal and failing to adequately evaluate her proposal.[9]
[9] Heaton v Heaton (2012) 48 Fam LR 349 at [32], quoted in Jurchenko & Foster at [109].
By the conclusion of the hearing, it was common ground that the parties would make joint major long-term decisions for the children. Although Ms Olson did not consent to an order to do so, she did not seek to be heard against Mr Currie’s application for an order to that effect. In that circumstance, I consider it unnecessary to resolve the miscellany of complaints that were made by Ms Olson of failures in effective communication between the parties. Whilst some such failures were more significant than others, I am not satisfied that they are relevant to the determination of any issue now arising for determination.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X and Y and each person who has care of them (whether or not a person has parental responsibility for the child)
Ms Olson contends in her Outline of Case that “the arrangements sought by her would better promote the Children’s best interests in terms of exposure to harm in two respects”.[10]
[10] Ms Olson’s Outline of Case filed 21 May 2025, page 8.
Firstly, Ms Olson contends that she will be rendered homeless upon transfer or sale of the family home. She nevertheless conceded twice in cross-examination that she will not be left homeless at that time. Her submission to the contrary is not supported by the evidence and I find it to be exaggerated. I am not satisfied that Ms Olson will be homeless after the conclusion of the proceedings.
Secondly, Ms Olson contends that the children “have been and continue to be negatively affected by the tensions between the parties, their significantly different parenting approaches and in particular to their exposure to these when having to live in the home with both parents post-separation.”[11] I also reject this submission. The final aspect of it is inapplicable to considering future harm in circumstances where it is agreed that the children will not now continue to live in the family home with both parents.
[11] Ms Olson’s Outline of Case filed 21 May 2025, page 8.
The single expert Family Report writer, Mr L, opines that:
Both [X] and [Y] stated quite clearly that they have accommodated to the nesting arrangement, that they had become used to it, and that they manage it reasonably well. It may be that in her overall assessment, [Ms Olson] has engaged in confirmation bias, that is, seeing in the children's behaviour that which supports her central concerns regarding the existing arrangement, and them not being primarily in her care.[12]
[12] Affidavit of Mr L filed 20 May 2025, Annexure MRL1 (“Second Family Report”), paragraph 54.
Mr L’s opinion is supported by other aspects of his report. X told him that the nesting arrangement had been “a bit annoying, but ultimately, she got used to it, but referred to her parents having very different rules, allowing her to do different things, and their differences were just annoying, although she could not provide to [him] any specific examples.”[13] X also reported that “she has gotten used to the family situation, that her parents coming and going has become easier, that she has just accommodated, and she considers herself to have managed well.”[14]
[13] Second Family Report, paragraph 34.
[14] Second Family Report, paragraph 37.
Y’s comments to Mr L also support his opinion. She told him that “nesting had worked out well, that she got used to it, that it was good to be able to see her parents for the same amount of time, and that she particularly liked that their coming and going meant that they were no longer exposed to the conflict.”[15] She reported that “she and [X] were doing really well”.[16] She perceives herself to be “coping well, that she is managing her parents’ separation comfortably, living with both her parents in the current arrangement is fun, that there was nothing about the current arrangements that she did not like.”[17]
[15] Second Family Report, paragraph 38.
[16] Second Family Report, paragraph 39.
[17] Second Family Report, paragraph 41.
Mr L does not consider any guilt that Y reported experiencing when enjoying time with each of her parents is attributable to the factors identified in Ms Olson’s submission. Y told Mr L that her advice to her parents was for them “not to get so worried all the time, especially her mother”.[18] Y went on to identify “her mother as more of a worrier”, and Mr L opines that “it may be that her mother’s level of anxiety infuses into [Y] contributing to her own anxiety”.[19]
[18] Second Family Report, paragraph 39.
[19] Second Family Report, paragraph 39.
Mr L supports a continuation of an equal time arrangement in the event the parties live proximate to each other. I accept Mr Currie’s submission that Ms Olson’s contention that the children are adversely affected by such an arrangement offends the rule in Browne v Dunn.[20] Ms Olson did not challenge Mr L’s evidence in cross-examination. Although Mr L was clearly aware of Ms Olson’s contention by virtue of her representations to him during her interview, his independent expert assessment contradicted it. In the absence of any challenge to Mr L’s expert evidence, I find myself unable to reject it. As an independent clinical psychologist, his unchallenged expertise to assess the impact on the children of the shared care arrangement significantly exceeds Ms Olson’s capacity to do so.
[20] (1894) 6 R. 67; Hofer v The Queen (2021) 274 CLR 351 at [36].
A finding that no questions of safety arise for the children is consistent with Y’s report that she “felt equally safe and confident in the care of both parents.”[21] It is also consistent with Mr L’s unchallenged evidence that “it is clear that both [X] and [Y] feel safe, secure, loved and confident in the company of their parents, notwithstanding the current discord that exists within the family.”[22]
Any history of family violence, abuse or neglect involving X or Y or a person caring for the children (whether or not the person had parental responsibility for them)
[21] Affidavit of Mr L filed 28 August 2024, Annexure MRL1 (“First Family Report”), paragraph 47.
[22] First Family Report, paragraph 49.
Ms Olson submits that “following separation she was subjected to financially controlling behaviour by the Father”.[23] Apparently seeking to particularise the financial circumstances and control she experienced, Ms Olson deposes that Mr Currie added her and the children to his health insurance policy after separation. She avers to withdrawing $40,000 from the parties’ joint account on 10 July 2023. She deposes to Mr Currie telling her she needed to pay half the mortgage repayments and other expenses for the former family home despite knowing she was receiving a nominal and then no income. She deposes to paying for household expenses and activities for the children. She also deposes to Mr Currie failing to respond to her proposal that he pay half the children’s school expenses and half of Y’s gymnastic fees of $331, but agreeing to pay half the out of pocket expense for the children’s psychologists, and subsequently paying for Y’s gymnastic and swimming lessons.
[23] Ms Olson’s Outline of Case filed 21 May 2024, page 14.
Ms Olson’s evidence does not establish to my satisfaction that Mr Currie has behaved in a way that has coerced or controlled her or caused her to be fearful. I am accordingly unable to conclude that he has perpetrated family violence.[24]
[24] Family Law Act 1975 (Cth), s 4AB.
Any family violence order that applies or has applied to X and Y or a member of their family
It is not suggested that any such order has or does apply.
Any views expressed by X and Y
In the absence of any challenge to the expert evidence of Mr L, I will focus on the views expressed by the children to him, and particularly those expressed most recently to him. I do so despite Ms Olson’s oral evidence that the children only had limited time with Mr L and the according reservations expressed by her as to whether the children’s views were comprehensively expressed.
Unsurprisingly from the children’s perspectives, their focus was on the differing anticipated realities of their lives were they to remain living in Town B or move to Melbourne. X expressed her understanding of her parents’ dispute as “the Melbourne and [Town B]” thing.[25] Consistent with the parties’ forensic focus, the children appeared to conceptualise the available alternatives as either living in close proximity to both parents in Town B or living primarily with Ms Olson in Melbourne.
[25] Second Family Report, paragraph 32.
Mr L reports that:
When asked about her thoughts in relation to the competing proposals, [X] told me that she would prefer to live in Melbourne, that she thought it would be easier to do so, that she would still be able to maintain her friendships in [Town B], but most importantly, she felt a move to Melbourne would be the better outcome because it would be easier for her mother to do so. [X] went on to explain that her mother has family with whom they could live, that it would be easy for her to attend school, that living in Melbourne would provide to her mother greater employment opportunities, that there would be greater financial security, that they would be living near her cousins with whom she is very close, that she anticipated would assist enormously with transition to a new school and general family support.[26]
[X] told me that she thought it would be better for her to reside in Melbourne because it would entail a fresh start. When asked about her friendship group and the impact of the move on her relations with these people, she told me that her friends “… were good but could also make her feel pretty shit.” She told me that in contrast, she is very close with her cousins, that she is confident that she will make new friends, that she will be able to see her old friends on alternate weekends, and that while she would obviously miss her father, that she will still see and speak with him regularly. [X] acknowledged that she and her father have conflict, but she was quick to add that she has conflict with both her parents, but she thought that she would easily maintain a good relationship with him and that she would obviously miss him.[27]
[X] told me that she was good at making friends, that she is very close to her cousins, one of whom she described as her best friend, and that she thought she would be able to maintain her connection to her group of friends if she visited each alternate weekend.[28]
[X] is confident about the support that will be provided by her extended family, believes that she will settle easily and quickly into a new school and that the move if allowed will occur well.[29]
[26] Second Family Report, paragraph 32.
[27] Second Family Report, paragraph 33.
[28] Second Family Report, paragraph 36.
[29] Second Family Report, paragraph 52.
Mr L nevertheless concluded that X’s views were equivocal, because:
When asked her reaction to a decision that required her to remain living in [Town B], she told me that she would be fine with it, and especially so if her mother could live close and that way things could be even. When asked what her actual preferences were, [X] told me that her preference was to live with each of her parents for a week at a time and if this was not possible to move to Melbourne.[30]
[30] Second Family Report, paragraph 36.
Importantly, X thereby expressed a view that was premised on the impossibility of living with each of her parents for a week at a time. In that event, her preference was to “move to Melbourne”.[31] She explained that:
I would be more than okay to live in [Town B], but Melbourne is my preference … It would just be that much easier for mum and maybe there would be more opportunities for me in a different school program.
… the lifestyle in Melbourne would be different and [I] would like the opportunity to experience that.[32]
[31] Second Family Report, paragraph 36.
[32] Second Family Report, paragraph 36.
Mr L also reports that X “thought she was closer to [her] mother, and that her mother better understood how she feels”[33] He considers that description to be unsurprising “given during adolescence, children tend to identify with the parent of the same sex, and this in and of itself should be considered normal”.[34]
[33] Second Family Report, paragraph 35.
[34] Second Family Report, paragraph 52.
In April 2024, X had told Mr L that she “she wished she could still live in [Town B] but that she knew that living in Melbourne would be better for her mother, that her mother would be able to complete studies, that it would be much easier for her financially and professionally, and that if she were to move, [X] was certain that she would cope.”[35]
[35] First Family Report, paragraph 43.
Mr Currie sought to emphasise that a primary reason for X’s expressed views relate to her mother’s circumstances. This is supported by Mr L’s opinion that X’s wishes are “primarily driven by doing what she believes will be best for her mother, and that entails a relocation.”[36] That opinion finds support in Mr L’s report that:
[X] clearly understands that a move to Melbourne will make things significantly easier for her mother. She told me that she thought she was closer to mother, and that her mother better understood how she feels. She explained that the best outcome was probably to move to Melbourne and to see her father frequently, and suggested that the move was probably the best compromise for all concerned.[37]
[X] is acutely aware of the real pressures that exist upon her mother and seems to have an understanding that if required to share the care of the children and to live closer to [Town B], that her mother will struggle and significantly so.[38]
[36] Second Family Report, paragraph 52.
[37] Second Family Report, paragraph 35.
[38] Second Family Report, paragraph 52.
However, X’s preference to live with Ms Olson in the event her parents do not live in the same area was informed by multiple considerations other than simply what would be easier for her mother. Those include X’s own educational opportunities, lifestyle opportunities, being closer to her mother, her mother understanding her better, and having the support of her extended family. I am not satisfied those views are attributable to Ms Olson’s influence as appeared to be suggested by Mr Currie.
Y presented to Mr L “clearly anxious about the prospect of relocation”.[39] He reports that:
Even though she told me that she thought that it would be fun to live in Melbourne, that it would be hard not having her friends, that she would not get to see them as often, that she would not be able to go to her same school, and that whilst her cousins are nice, they are not her age.[40]
… [Y] told me, " .... I would like to live in [Town B] so I can be with my friends, and I do not want to leave them .... If the judge decides that I have to move to Melbourne that will be fine, I will have to go to a new school and make new friends and that would be okay, but I prefer my old friends and my old school, but it would be okay."[41]
[Y] has stated clearly over both interviews that she does not want to move, that she wants to remain at the same school, that she is close with her father, and that she enjoys the time spent with him.[42]
[39] Second Family Report, paragraph 39.
[40] Second Family Report, paragraph 39.
[41] Second Family Report, paragraph 40.
[42] Second Family Report, paragraph 53.
In distinction to X, Y expressed to Mr L that “she felt that her father better understood how she feels”, that he “better understands her feelings, that he is able to help her calm down but so does her mother.”[43]
[43] Second Family Report, paragraph 41.
Mr Currie emphasised Y’s expressed views against moving to Melbourne. However, it is clear that Y was conceptualising the two options in terms of either continuing to live in Town B with both of her parents as opposed to living in Melbourne with her mother. This is evident from Mr L’s report that she “wants both parents equally involved”,[44] and “wants both parents actively and meaningfully involved in her life, she wants less change not more change”.[45] Y “has stated clearly and unequivocally she does not wish to relocate, that she wants things to remain the same, feels equally close to both her parents, and does not want to lose a relationship with either.”[46] Y’s preference for things to remain the same entails living with both of her parents in or near to Town B.
[44] Second Family Report, paragraph 61.
[45] Second Family Report, paragraph 53.
[46] Second Family Report, paragraph 54.
In determining the weight to be accorded Y’s views, it is important to recall that she is currently 8 years old. I accept Mr L’s unchallenged evidence that “[Y], by virtue of her age and stage does not have the same capacity to reflect upon the broader issues as they impact on her mother, including financial, emotional, the need for family support, and the future areas of stress and difficulty that [Ms Olson] fears, but rather, she is very focused on the here and now and upon her own needs.”[47] That lack of capacity is evident in the absence of any reflection by Y, in her interviews with Mr L, on the pressures that would be visited upon Ms Olson by requiring her to live in or near Town B.
[47] Second Family Report, paragraph 53.
Significantly, as Mr Currie concedes, Y did not express a view as between the parties’ two primary proposals. In other words, she did not express a view as to with which parent she sought to live in the event her parents could not live proximately to each other.
The developmental, psychological, emotional and cultural needs of X and Y
In the unchallenged opinion of Dr M, paediatrician, X suffers from some Attention Deficit Hyperactivity Disorder symptoms, oppositional defiant symptoms, anxiety and sleep difficulties. She describes her as having “a long history of emotional dysregulation, with meltdowns lasting up to an hour”.[48] Dr M nevertheless considers X to be generally doing well academically, observing that she is one of the top students in reading and writing and “demonstrates good attention span when engaged in subjects she enjoys”.[49]
[48] Affidavit of Dr M, filed 26 March 2025, page 7.
[49] Affidavit of Dr M, filed 26 March 2025, page 7.
To the credit of both Ms Olson and Mr Currie, they have co-operated to obtain recommended psychological treatment for X. Consistent with my earlier findings, Dr M does not believe that either child is “at risk in the care of either parent, provided that both parents continue to offer emotional, financial, and stable support for their children”.[50]
[50] Affidavit of Dr M, filed 26 March 2025, page 8.
Mr L considers it likely that X will “settle, adapt, integrate into a new school and make friends” should she move to Suburb C. He notes that X is “confident she will settle into a new school and especially so given the physical and emotional support of her cousins with whom she is extremely close”,[51] and that she “believes she will settle easily and quickly into a new school and that the move if allowed will occur well.”[52] Mr L nevertheless emphasises that this likelihood needs to be factored against a background that X is currently “happy at school, has friends, is doing well”.[53]
[51] Second Family Report, paragraph 52.
[52] Second Family Report, paragraph 52.
[53] Second Family Report, paragraph 52.
The expert evidence does not support a conclusion that one party’s proposal, or the other’s, is preferable to directly serve X’s psychological needs. I do not consider that conclusion is impeached by Mr L’s reference to the protective factors identified by Dr M of X “having a strong group of friends, a supportive school environment, and supportive teachers”,[54] given his confidence she will settle and adapt were she to move.
[54] Second Family Report, paragraph 44.
Y is experiencing stomach aches for which she has received recent medical treatment. The evidence before me does not enable me to reach any conclusions about their aetiology. I do not accept that they can be attributed to her not coping with the shared care living arrangement as theorised by Ms Olson. Again to the parties’ credit, Y is engaged with a psychologist and school counsellor as well as other medical professionals.
More generally, I accept Mr L’s unchallenged conclusions that:
It is also likely that should the relocation be allowed that it will not adversely impact on the children's emotional, physical, educational, or mental health, and that any access to mental health medical services will be provided by both parents regardless of the decision.[55]
The reality for both [X] and [Y] is that in the event that things change or stay the same, that they will likely adapt.[56]
Neither of the girls experience such vulnerabilities that those vulnerabilities should in and of themselves support or not support the relocation.[57]
The capacity of each person who has or is proposed to have parental responsibility for X and Y to provide for their developmental, psychological, emotional and cultural needs
[55] Second Family Report, paragraph 62.
[56] Second Family Report, paragraph 63.
[57] Second Family Report, paragraph 66.
I find both Ms Olson and Mr Currie to have the capacity to provide for all of their children’s needs. In Mr L’s unchallenged opinion, they are “interchangeable”,[58] which I take to mean that both have all of the necessary capacities to provide for the children’s needs. I do not consider that tensions that have arisen at various times between the children and each of their parents suggest that, as a general proposition, one parent has a greater capacity to provide for X and Y’s needs. Nor do I consider that prior conflict between the parties or difficulties in their communication generally impeaches their parenting capacities.
[58] First Family Report, paragraph 61; Second Family Report, paragraph 66.
Nevertheless, the parties’ future capacities to provide for their children’s needs will be significantly affected by the outcome of these proceedings. In particular, Ms Olson’s capacity to do so will be enhanced by the opportunity to live in Suburb C, and negatively impacted by living in or near Town B. As Mr L opines, there “is no doubt that should the relocation occur that there will be significant benefits to [Ms Olson], that she would benefit from the support of her family, that there will be a lessening of the financial burden felt by her, that her employment opportunities may improve, and that generally, life for her will be significantly less burdensome.”[59] These are matters of significance and impact on Ms Olson’s capacity to provide for the children.
[59] Second Family Report, paragraph 52.
The less burdensome life prognosticated by Mr L is significant in light of Ms Olson’s mental health. She has already been referred to a psychologist for treatment for depression and anxiety. She reports worry and anxiety about the “financial strain related to future housing for herself and children and future job opportunities.”[60] She has described feeling like she is in a prison, being required to choose between the children and her sanity.
[60] Affidavit of Ms O filed 24 March 2025, page 10.
Ms Olson gives evidence that she has greater employment opportunities in her areas of qualification and experience in Melbourne. That evidence was unchallenged and I accept it.
Mr Currie deposes that should Ms Olson reside proximate to Town B, she could work in the area and earn between “$90-110K per annum”.[61] Inconsistently with a finding that she has such an earning capacity, Mr Currie concedes that he earns more than Ms Olson and that historical reality is a likely indicator of the parties’ future earnings. Mr Currie deposes to an income based on his earnings in the Financial Year ending 30 June of 2024 of approximately $56,000 and a lesser income for the current Financial Year. Mr Currie’s expressed optimism about Ms Olson’s earning capacity does not satisfy me that Ms Olson presently has, or is likely to have in the near future, a capacity to generate a significant income. As his King’s Counsel submits, “whatever it is, it won’t be a great deal of money”.
[61] Affidavit of Mr Currie filed 8 April 2025, paragraph 44.
Ms Olson deposes that:
Economically I simply cannot afford to remain in [Town B], regardless of whether I wanted to or not. I cannot afford to house myself in [Town B] and have no real employment prospects while I live there.[62]
[62] Affidavit of Ms Olson filed 25 March 2025, paragraph 111.
Mr Currie put to Ms Olson in cross-examination that she had managed to work in Town B for a number of years. Ms Olson’s evidence is that she had obtained part time and casual roles in the area for periods of time. Her deposition that her work in the area has been “unreliable and limited” was not impeached in my determination.[63] Despite the suggestion to her that City N is a “large regional city”, Ms Olson’s evidence that she has no real employment prospects while living in Town B was not successfully impugned. I find that Ms Olson’s employment prospects are significantly compromised by any requirement to live in or near Town B.
[63] Affidavit of Ms Olson filed 25 March 2025, paragraph 150.
For reasons previously given, I reject Ms Olson’s submission that she will be homeless if required to live in or near Town B. However, I am satisfied her that her capacity to provide for her children’s needs over the long term would be significantly compromised in that event. Mr Currie put to Ms Olson that, after payment of her legal fees, she would be able to deplete the majority of the capital he proposes she receive by renting in Suburb P, at a higher cost than Suburb C, over a period of ten years. Although Ms Olson concedes that she will likely be renting in the medium term, Mr Currie’s suggestion effectively deprives Ms Olson of any future capacity to acquire her own property using the capital she is now entitled to. Ms Olson gave unchallenged oral evidence that she “will never be able to afford to buy a home in [Town B]”, even if, she conceded, properties in Suburb C are priced similarly to those in Suburb P.
Mr Currie’s suggestion that Ms Olson deplete her capital to pay the additional rent required to live proximate to him also ignores the immediate reality that Ms Olson is currently in receipt of income of only $665 per week and has expenses of $872 per week, without currently incurring any accommodation costs. Contrary to Mr Currie’s suggestion that she would be required only to deplete capital to pay the difference between rent near Suburb C and rent in Suburb P, she can now only pay any rent from her capital. Ms Olson’s proposal resolves that initial dilemma by intending to live at her parents’ home near Suburb C until she can afford to rent.
Ms Olson is currently studying which she commenced in March 2024. It requires attendance on campus in Melbourne three days each week. She expects to complete it in November 2025. Were she required to remain living in or near Town B, Ms Olson would be faced with the stark choice of either depleting her capital to pay for rent or cease studying to obtain full-time employment in an effort to preserve her capital resources. As Ms Olson said in cross-examination, she would “obviously have to get full-time work” in order to rent.
I consider the financial uncertainty attendant upon the proposal for Ms Olson to live in or near Town B will have a significant impact on her capacity to provide for the children’s needs, both in the short, medium, and long term. Further, her unchallenged evidence is that she does not have a support network in Town B to care for the children either regularly or in an emergency.
The corollary is that if Ms Olson is able to relocate to Suburb C, she will have an improved capacity to provide for the children’s needs. As Mr L opines, in that event, “the children will experience greater economic security at least on behalf of their mother, and it is likely that [Ms Olson] will experience greater household stability, feel more supported, and better able to manage whilst at the same time, the children will still have contact with their father.”[64] Whilst Mr L opines that “it is difficult to conclude that a move of such magnitude will have the same direct benefits to the children of similar proportions”,[65] that conclusion does not detract from indirect benefits to the children of Ms Olson having financial security and an improved capacity to provide for their needs.
[64] Second Family Report, paragraph 57.
[65] First Family Report, paragraph 66.
Consistent with a finding there are significant benefits to Ms Olson of her proposed move, Mr Currie gave oral evidence that a move would offer Ms Olson emotional support, more in the way of cultural connection, both for herself and the girls, allow her to reside with her parents with the benefit of extended family support, and allow her greater access to employment prospects.
Ms Olson’s parents live approximately 10 minutes from Suburb C. Ms Olson’s sister lives approximately 15 minutes from Suburb C. She and her husband have three children who are approximately the same ages as X and Y. Ms Olson’s sister and parents have offered to help with care of the children if she obtains employment that makes it difficult to collect the children from school.
In assessing the parties’ relevant capacities to provide for their children’s needs, I accept Mr L’s unchallenged evidence that should the children live with Ms Olson in Suburb C, she will “generally support ongoing contact for the girls with their father” and that “her proposal is not directed at reducing that connection but rather, to enhancing the quality of life she envisions for herself”. [66] I also accept his opinion that “the history does not suggest a negative gate-keeping attitude by Ms [Olson] that would adversely impact on his relationship with the girls and it is likely that, in the event that the relocation is granted, that [Ms Olson] will comply with Court Orders that the girls spend time with [their] father, see him regularly”.[67] Mr Currie gave oral evidence that he believes Ms Olson when she says that she will support his relationship with the children if she moves. Despite Mr Currie’s submission that there are “significant concerns raised by the mother’s material about her capacity to promote the father’s role in the children’s lives”, the evidence does not satisfy me there is any impairment in Ms Olson’s capacity to support X and Y’s relationship with their father.
The benefit to X and Y of being able to have a relationship with their parents, and other people who are significant to them, where it is safe to do so
[66] Second Family Report, paragraph 62.
[67] Second Family Report, paragraph 60.
Typically, “relocation” cases involve an inherent tension between separated parents being able to establish new homes wherever they like and their restraint from living too far apart to avoid any impingement of the children’s ability to maintain a meaningful relationship with both parents.[68] Put another way that avoids the adjective “meaningful” which is no longer a feature of the statutory provision, a central issue is whether the relationship between the children and the father would be undermined by a reduction of time on the proposed move.[69]
[68] Franklyn & Franklyn [2019] FamCAFC 256 at [27].
[69] Canh & Canh (2021) FLC 94-058 at [25] and the cases there cited.
I accept Mr L’s unchallenged opinion that the children “have at the very least, a good enough relationship with each of their parents”,[70] and that they “have a strong and secure attachment to both parents”.[71] I also accept his opinion that:
From a purely practical perspective, the relocation proposal does not bring with it insurmountable challenges. Whilst there is an inconvenient amount of travel, it is not so onerous that the children's relationship with their father will be so significantly and adversely affected. The amount of travel will not impact on the children adversely, and it can be easily negotiated and managed moving forward. Should the relocation be allowed, [Mr Currie] could still have regular, frequent and significant contact with the children, he would still be able to maintain a meaningful relationship with them…[72]
[70] Second Family Report, paragraph 59.
[71] Second Family Report, paragraph 59.
[72] Second Family Report, paragraph 60.
Consistent with Mr L’s evidence, I also find that in the event of Ms Olson living with the children in Suburb C:
The geography of this dispute is such that regardless of the outcome, [X] and [Y] will be able to maintain a meaningful relationship with both their parents.[73]
[T]hey will see their father with such frequency predictability and quality, that their relationship with him should be confidently preserved.[74]
[T]here will not be such a rupture to the children's relationship with their father that it will be irreparable.[75]
[73] Second Family Report, paragraph 62.
[74] Second Family Report, paragraph 66.
[75] Second Family Report, paragraph 66.
Unlike a more typical “relocation” case, X and Y will continue to spend alternate weekend time with each of their parents. What is compromised by Ms Olson’s proposal is their capacity to spend mid-week time with Mr Currie. On the unchallenged expert evidence, that compromise is not such as to negatively effect, or undermine, the children’s relationship with him. I accept Mr L’s conclusion that “relocation will not so significantly impact on the relationship with their father that it should not be allowed”.[76]
[76] Second Family Report, paragraph 67.
Mr L’s evidence also supports the conclusion that were the children to remain living in or near Town B, the “same considerations around time, relationship and involvement would apply, and the children would still be able to maintain a connection with their mother, notwithstanding that [X]’s stated preference is to reside with her mother because she feels closer to her mother.”[77] He considers that, were the children to live exclusively in their father’s care, that “whilst they [would] obviously struggle with the absence of their mother in their lives, that they [would] have a stable and secure attachment to both parents and in this regard [Mr Currie] and [Ms Olson] are interchangeable.”[78]
[77] Second Family Report, paragraph 61.
[78] First Family Report, paragraph 61.
Ms Olson’s proposal would afford the children the opportunity to spend more time with their extended maternal family, who live in close proximity to Suburb C. It would also result in the children living closer to their paternal family who live in regional Victoria.
Anything else that is relevant to the particular circumstances of X and Y
Ms Olson’s cultural heritage is Country D. Living in Suburb C will afford Ms Olson greater opportunity to involve the children in their mother’s cultural and linguistic heritage. It will afford them the opportunity to attend face to face language school, something unavailable to them in Town B.
Parenting Conclusions
Primary Proposals
Mr Currie’s primary proposal is that the children live with him in Town B and spend time with Ms Olson for two nights each alternate weekend, for an additional weekend every two months, and on four occasions per month for up to four hours midweek (assuming Ms Olson moves to Suburb C).
In support of that position, his submissions highlighted Mr L’s unchallenged opinion that the parents are interchangeable, and the following two equivalent conclusions reached by Mr L:
When trying to envisage what the future would look like should the relocation occur or not occur, it is not difficult to conclude that the children will likely do well if they reside with their mother, have the benefit of family support, if [Ms Olson] is able to pursue her education and her career and therefore the responsibilities of parenthood to their fullest, knowing with certainty and confidence that the children are cared for, have access to an extended family network, exposure to important cultural inferences, nestled within the security of their primary relationship with her while still having significant and unrestricted contact with their father.[79]
It is equally not difficult to conclude that if the children reside with their father, that their lives will, for the majority, remain unchanged, that they will continue to enjoy the existing benefits of school, friendship groups, community support networks, that they will continue to live in the place that has been their home, that they will have had imposed upon them less change not more change, and that they will still have regular contact with their mother, be it on an equal or an unequal basis, and will benefit from the relationship with their mother's extended family in the same manner that they do currently.[80]
[79] Second Family Report, paragraph 55.
[80] Second Family Report, paragraph 56.
To highlight the effective equivalence in Mr L’s opinion between Ms Olson’s proposal and Mr Currie’s primary proposal does not satisfy me that, as between those two proposals, Mr Currie’s is to be preferred.
X has expressed a clear view in the event that she is unable to reside equally with each of her parents, her preference is to live with Ms Olson. Whilst Mr L described X as “equivocal about the prospect of a move”,[81] there is no equivocality about her preference in the event her parents are unable to live proximately to each other.
[81] Second Family Report, paragraph 52.
Given the reasons expressed for that preference, which include a multitude of factors other than simply what would be easier for Ms Olson, I place considerable weight on those views expressed by a 13 year old X. I note that Y was not invited to, and did not, express a view in the event her parents were living a significant distance apart from each other.
Given what is opined to be the interchangeability of the parents, I determine that X’s views ought be given effectively decisive weight in preferring Ms Olson’s proposal over Mr Currie’s primary proposal.
Mr Currie’s capacity to move
I am required to consider whether Mr Currie can realistically also move to the outer suburbs of Melbourne. It is inadequate to simply accept his refusal to do so.[82] Mr Currie deposes that moving to suburban Melbourne “is not something [he] would do” because:
· he would “lose the benefit of the lifestyle [the children] can have” with him in Town B “in terms of outdoor activities of all kinds, swimming, [sporting] and a myriad of other outdoor activities” whilst in his care;
· he is “not a city person” and “cannot change that”;
· he is “very happy in [Town B], [outdoors activities], […], and enjoying the community, friendships and lifestyle that regional […] living provides”; and
· although he is “going to have to go in a new direction with [his] work” because his industry is unreliable and is “going to have to transition to a different field”, it “will be easier for [him] to do that, in an area [he is] familiar with; and without having to relocate, with all that brings”.[83]
[82] Jurchenko & Foster at [102]-[103] and the case there cited.
[83] Affidavit of Mr Currie filed 8 April 2025, paragraph 47.
The proposition that it will be easier for Mr Currie to transition to a different field of work in an area he is familiar is with is a conclusory statement unsupported by facts which might enable me to be satisfied of the conclusions.[84] He adduces no evidence of the field of work he proposes to move into or the availability of work in his local area. The evidence does not support a conclusion that it is necessary, or even preferable, for Mr Currie to remain in the Town B region for reasons of employment. Mr Currie gave oral evidence that he now may be able to remain in his current field of occupation, but it is clear from his evidence that he has been focused on the resolution of the proceedings ahead of exploring his employment options.
[84] Kramer & Another & Ward (2017) FLC 93-817 at [10].
Although Mr Currie is in a relationship with Ms Q who lives and works in City N, they are intending to continue to live in separate residences.
Mr Currie submits that the parties have put down roots in Town B to the extent of buying a home. That is not factor upon which I place significant weight absent satisfaction that Ms Olson can afford to live there.
In cross-examination, Mr Currie accepted that:
· there are no employment ties that mean he can’t move to Melbourne;
· there are no hurdles to him obtaining employment in Melbourne;
· he has considerable financial resources available to rehouse in the outer Melbourne area; and
· he would be closer to his sister and the paternal family in outer Melbourne as opposed to being in Town B.
I am satisfied on the evidence that Mr Currie can relocate to or near Suburb C should he choose to do so. I do not accept that “it is not possible for him to move”, as had been apprehended by Mr L.[85]
[85] Second Family Report, paragraph 58.
Mr Currie nevertheless refuses to move to the suburbs of Melbourne. Ms Olson did not seek to compel him to do so. No orders are proposed that are premised on Mr Currie relocating contrary to his express choice.
Ms Olson remaining in the Town B area
Mr Currie’s alternative proposal is for Ms Olson remain living in or near to Town B and for the children to live equally with each of them. Implicit in that proposal is a requirement for Ms Olson to live in a place not of her choosing. Ms Olson’s rights to live and work where she chooses and to freedom of mobility “only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify that interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.”[86] It is only where the children’s welfare would be adversely affected that a parent’s right to freedom of mobility defers to the paramount consideration of the children’s best interests.[87]
[86] Adamson & Adamson (2014) FLC 93-622 at [65]-[66].
[87] Franklyn & Franklyn [2019] FamCAFC 256 at [28] and the cases there cited.
Unremarkably, Mr L opines that in the event Ms Olson remains living in or near Town B, “the children’s normal routines and lifestyle will be maintained, existing peer relationships will be supported, and so the greater likelihood that there will be less emotional disruption and change”, and there “would be an obvious benefit to the girls were their parents able to live in close proximity.”[88]
[88] Second Family Report, paragraph 58.
Considering the desirability for the children of stability in remaining in their local area cannot be divorced from practical reality that, as Mr L opines, it “may simply not be viable” for Ms Olson to live in or near Town B.[89] Mr L observes that:
It is equally not difficult to foresee that if the relocation is not allowed, that [Ms Olson] will experience considerable financial and emotional hardship, that she may not be able to pursue her career or gain employment in the manner that she hopes, that she will not have immediate family support and access, that there will be, potentially, a significant financial burden, and that she may not be able to live in such close proximity to [Town B] to make an equal care arrangement viable.[90]
… that same decision will bring with it significant financial instability, potential crisis of housing, may limit [Ms Olson]'s future employment opportunities as envisaged by her, removes the immediate access to family support, and the likelihood flow on effects to [Ms Olson] of the emotional and cultural aspects of her application.[91]
[89] Second Family Report, paragraph 66.
[90] Second Family Report, paragraph 55.
[91] Second Family Report, paragraph 64.
Mr L’s use of the verb “may” cannot be read as him reaching a conclusion that it will be unviable. Nevertheless, a lack of viability for Ms Olson being able to live in or near to Town B is a fundamental problem for the alternative proposal advanced by Mr Currie. As Mr L says, “[i]t is simply not possible to ignore the associated stressors and pressures that form the lynchpin to [Ms Olson]'s application”.[92]
[92] Second Family Report, paragraph 68.
Consistent with Mr L’s opinion that significant financial instability, a potential crisis of housing, and emotional impacts attend Ms Olson remaining in or near Town B, she gave oral evidence that it would be a “real struggle financially and emotionally”. Mr Currie conceded in oral evidence that it would be “very difficult” for Ms Olson to live in Town B.
With respect, Mr Currie’s emphasis of Mr L’s conclusion that the least uncertain alternative would be to remain in Town B with both parents ignores the pre-condition attached by Mr L to that conclusion, namely the removal of “the financial, employment and housing considerations”.[93] These considerations cannot be ignored and have not been addressed to my satisfaction by the alternate proposal now advanced by Mr Currie. I am not satisfied that the accommodation and employment options available to Ms Olson in the Town B region are satisfactory.
[93] Second Family Report, paragraph 68.
Whilst I am unable to conclude that Ms Olson will be homeless in the way asserted in her Outline of Case, the reality is that she will need to make extraordinary compromises to live in a place where her employment prospects are limited and where she cannot afford to live without depleting the relatively modest capital she will retain from the property settlement.
The practical considerations that underpin Mr Currie’s alternative proposal cannot be viewed as simply considerations that impact upon Ms Olson. Should her proposal be acceded to, Mr L opines that “in relation to their mother, it will most definitely provide greater security and financial stability, and on this basis alone, would most likely have a positive impact on the children as would their mother enjoying an overall, improved emotional state.”[94] The corollary of that unchallenged opinion is that should Mr Currie’s alternate proposal be adopted, Ms Olson’s lack of security and financial stability would likely negatively impact on the children, as would her deteriorated emotional state.
[94] Second Family Report, paragraph 63.
For reasons that I have already expressed, I find that a requirement for Ms Olson to live in or near Town B will significantly negatively impact upon her capacity to provide for the children’s needs. None of the same practical impediments exist in relation to Mr Currie moving proximate to Suburb C.
I am not satisfied that the children’s best interests would be so adversely affected by moving to Suburb C with Ms Olson so as to justify an interference with her right to live where she chooses to. The children will not be deprived of a significant and meaningful relationship with both parents. As Mr L opines:
…. in all likelihood the children will manage well; they have family support, they will enjoy the benefit of cultural immersion, both children are likely to make friends in a new school environment, and could still maintain contact to their old friendship groups by regular and substantial visitation with their father.[95]
[95] Second Family Report, paragraph 67.
I conclude that Ms Olson’s proposal for the children to live with her in Suburb C is in their best interests.
Other Parenting Conclusions
Mr Currie proposes that the parties be required to make joint decisions for major long-term issues affecting the children. Ms Olson does not consent to the proposal but does not oppose it. She submits that the parties will in effect make joint long-term decisions for the children regardless. Whilst there is no statutory presumption that an order sought by Mr Currie should be made, in circumstances where Ms Olson does not oppose it, and intends to comply with its obligations in any event, I am satisfied that the order sought by Mr Currie is in the children’s best interests. It will ensure both parties are jointly involved in significant decision making for their children, consistent with their past practice.
Mr Currie expressed a clear intention for the parties to be bound by the obligations imposed by section 61DAA of the Act. I will slightly modify the wording of the proposed order to more consistently reflect the statutory provision.
Ms Olson proposes an order in these terms:
The Children live with the Mother within 20 kilometres of the suburb of [Suburb C] in the State of Victoria, or such other suburb as agreed between the parties in writing, the Mother being permitted to relocate with the Children at the conclusion of School Term 2, 2025.[96]
[96] Ms Olson’s Outline of Case filed 21 May 2025, page 27.
It is unclear to me why it is that she proposes to effectively be confined to living in a relatively small geographic area unless otherwise agreed between the parties. Nevertheless, in the absence of any suggestion that she should not be so limited, I consider myself bound to impose the suggested restraint. As anticipated by her King’s Counsel, I eschew the notion of her being “permitted” to relocate.[97]
[97] AMS v AIF (1999) 199 CLR 160 at [188] and [217].
It is common ground that in the event the children move to Suburb C, they will spend time with Mr Currie from after school Friday until Sunday evening. Ms Olson proposes that changeover occur at 5.30 pm whereas Mr Currie proposes that it occur at 7.00 pm. It is agreed that changeover on Sunday evenings will occur at a mid-point between the parties’ residences. I prefer Mr Currie’s proposal which will afford the children the maximum opportunity to participate in activities with him on Sundays.
Ms Olson proposes that the children spend time with Mr Currie on Tuesdays from after school to 7.00 pm, extending to Wednesday morning should Mr Currie be able to accommodate the children proximately. Mr Currie proposes that the children spend time with him:
For up to six hours on any day that [Ms Olson] nominates, with two weeks notice, when he is able to spend time with the children in or around Melbourne or it’s surrounds, including the [Region P] area.[98]
[98] Mr Currie’s Outline of Case filed 20 May 2025, page 19.
Whilst I would not wish to limit the time the children are able to spend time with Mr Currie during the school week, the order he proposes could literally enable him to spend six hours with the children on every school day of the year. Whilst that appears very unlikely on the evidence before me, I am not satisfied it is in the children’s best interests for such an open order to be made. I am satisfied that the order proposed by Ms Olson affords an appropriate degree of certainty for the children, emphasising that she proposes the Tuesday afternoon and evening only if the parties are unable to otherwise agree. The evidence satisfies me that Ms Olson will co-operate in facilitating reasonable requests by Mr Currie to spend time with the children mid-week.
Mr Currie emphasised the difficulties attending him both spending mid-week time with the children and accommodating them overnight. In that circumstance, I will adopt his proposal of requiring two weeks’ advance notice of his intention to spend mid-week time with the children during school terms.
No submissions were advanced with respect to the parties’ respective term holiday proposals. Mr Currie proposes the children spend the second half with him in even years and the first half with him in odd years. Ms Olson proposes the reverse. Given Ms Olson proposes to move with the children after the conclusion of the current school term in an odd year, I prefer Mr Currie’s proposal, which will afford the children the opportunity to settle into their new residence immediately prior to commencing at their new schools. I will nevertheless adopt the greater specificity in terms of changeover times proposed by Ms Olson’s proposal, save that I determine changeover should occur at 7.00 pm, consistent with Sunday changeover times.
Ms Olson proposes that the children spend alternate weeks with each of their parents during summer school holiday periods. Mr Currie proposes that the children spend four weeks with him during those periods. Neither party advanced any submissions with respect to the respective proposals. It is clear from the evidence before me that the children have substantial connections to the Town B region where their father is residing, including social networks. Given they will have reduced access to those connections while primarily living in Suburb C, I consider Mr Currie’s proposal to be in the children’s best interests.
It is agreed that changeover will occur at school at school times, Ms Olson’s home on Monday to Thursday at other times, and otherwise at a service station in Suburb Q.
Ms Olson proposes that orders be made for the children to attend H School for their secondary schooling, and that Y attend J School for the balance of her primary schooling, subject to any other written agreement between the parties. Mr Currie submits that there “is no evidence before the court of how or why the school the Mother proposes caters for each of the children’s individual needs, and why it might be better for them” than their current schools.[99] However, he made no contrary proposal in terms of the children’s schooling were they to live in Suburb C, nor did he advance any submission as to why the schools proposed by Ms Olson were not in the children’s best interests.
[99] Mr Currie’s Outline of Case filed 20 May 2025, page 5.
I accept Ms Olson’s unchallenged and uncontradicted evidence that X has spoken positively about attending H School with her cousins, and that her proposed schools are comparable in terms of curriculum and achievement levels to the children’s current schools.
I am satisfied that it is in the children’s best interests to attend to the schools proposed by Ms Olson. Given it is proposed that the children will move to Suburb C at the conclusion of the current school term, I will make the order sought by Ms Olson.
By the conclusion of the hearing, the parties had reached agreement about the configuration of special occasion time for the children, communication between them and the children, the provision of relevant information, and attendance at schooling and extra-curricular activities. I am satisfied that 7.00 pm is an appropriate time for special occasion time to conclude given the agreed location of changeovers.
PROPERTY
Ms Olson proposes that Mr Currie pay her the sum of $601,500. Mr Currie proposes that he pay Ms Olson $342,732.
It is agreed that Mr Currie will retain the parties’ real property in Town B and that there will be a superannuation split from Mr Currie’s superannuation interest in the amount of $36,020 to equalise the parties’ superannuation interests.
Pursuant to section 90SM of the Family Law Act 1975 (Cth), I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[100] If I am so satisfied, I am required to consider the matters prescribed by subsection 90SM(4) of the Act and by the device of paragraph 90SM(4)(e), relevant matters referred to in subsection 90SF(3) of the Act.
[100] Family Law Act 1975 (Cth), s 90SM(3).
Property interests
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[101] For reasons that follow, I find those interests to comprise the following:
[101] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset O'ship Value K Street, Town B Jt $1,150,000 Less loan to Mr Currie’s parents Jt ($345,748) Personal possessions M $2,150 Add-back of legal fees paid from joint funds M $21,700 NAB Platinum Visa card M ($5,526) Motor Vehicle 1 F $17,750 Motor Vehicle 2 F $800 R Bank accounts #...54 and #...76 F $2,818 NAB account #...13 F $548 S Company Shares F $29,397 Personal possessions F $27,900 Artwork F $3,500 Add-back of legal fees paid from joint funds F $12,253 Add-back of funds withdrawn from NAB #...13 F $2,428 Taxation liability F ($15,656) Total non-superannuation interests $904,314 Super Fund 2 M $2,285 Super Fund 3 M $22,552 Super Fund 4 F $96,876 Total superannuation interests $121,713 Total property interests $1,026,027
Mr Currie contends that the parties are liable for a loan of $345,748 to his parents. It is uncontroversial that Mr Currie’s parents advanced funds to the parties in order to purchase the Town B property in December 2016. Ms Olson nevertheless contends that the purported loan of $345,748 should be disregarded in these proceedings.
A loan agreement dated 15 August 2017 signed by both parties and Mr Currie’s parents describes that two loans were advanced:
· a “First Loan” of $200,000; and
· a “Second Loan” of $360,000.[102]
[102] Exhibit R11, Annexure MRC17, page 170 of 257.
Ms Olson contends that because the $200,000 is not being treated as a liability of the parties, neither should the $360,000. I reject the submission. It is tolerably clear that the two advances were always intended to be treated differently.
The terms of the 2017 loan agreement, and a subsequent loan agreement signed by the same parties in August 2020, provide for the First Loan to be repaid only in the event the Town B property is sold or transferred within 10 years of the date of the agreement and for no interest to be payable upon it. The same agreements provide for the Second Loan to be repayable three years after the making of the agreements. Both provide for the payment of interest at a specified monthly rate.
Ms Olson cross-examined Mr Currie about the fact that no loan agreement was in place at the time the funds were advanced to the parties. He accepted that the loan agreement could have been drawn up earlier.
Ms Olson effectively contends that because the principal owing under the Second Loan was not called in at the expiry of the periods specified in the agreements, the loan should be disregarded. I also reject that submission. At the conclusion of the three year term of the first agreement, a new loan agreement was signed. The fact that the formal term has expired does not mean that Mr Currie’s mother has waived her rights under the agreement. Such a finding would be inconsistent with the express term that:
The Lenders shall be in no way deemed to have waived their rights with respect to a breach by the Borrowers of their obligations hereunder by any act or omission whatsoever and without limiting the generality of the foregoing, in particular the Lenders shall not be deemed to waive their rights with respect to any such breach through any delay or hesitation in the serving of a Notice of Termination.[103]
[103] Exhibit R11, Annexure MRC18, page 175 of 257.
The intention of Mr Currie’s parents to require repayment of the disputed loan is reflected in their wills of August 2022. Both wills include a specific term that provides for the amount owing under the loan agreements to be repaid to their estates unless none of their children and grandchildren survive them.
The funds advanced for the Second Loan were borrowed by Mr Currie’s parents from the National Australia Bank. That loan was serviced from an offset account in the name of Mr Currie and his father. The parties made regular fortnightly payments into the offset account to cover the repayments of the loan. The payments debited from the offset account were initially interest only and became principal and interest in or around January 2024. I am satisfied that change is readily explained by the expiry of the interest only periods of the bank loan.
Ms Olson put to Mr Currie in cross-examination that on occasion the parties’ payments into the offset account exceeded the interest being charged, which proposition he accepted. He also accepted in cross-examination that there was a period when the parties stopped making deposits into the offset account in 2020. He explained that there was a period in that year when the bank put a moratorium on repayments. I accept that evidence, which is consistent with the relevant bank statements in evidence.
To the extent there are discrepancies between the timing of the execution of first loan agreement and the advancing of funds, or the absence of any caveat being lodged as authorised by the second loan agreement, they are entirely unsurprising. Obligations between family members commonly comprise an “unclear mixture of legal and moral obligations and informal accounting through adjustments to bequests.”[104] Mr Currie gave unchallenged evidence that the parties had:
… a moral obligation, and an intent, to make regular standard repayments on a loan like anybody else would. It just happened that we weren’t able to get a loan, so someone else got one for us, and we made those payments for 10 years.
[104] SCVG & the Estate of KLD (No 2) (2023) FLC 94-148 at [112].
Consistent with that intention, the loan taken out by Mr Currie’s parents, has been serviced by the parties. Also consistent with that practice and intention, Ms Olson offered to fulfil the parties’ “mortgage obligations” after separation should Mr Currie vacate the former family home.[105] Whilst the parties did not have direct mortgage obligations, the representation clearly indicates an intention by Ms Olson to continue to service the bank loan.
[105] Exhibit R2.
In circumstances where the parties undoubtedly received the relevant funds, have serviced a bank loan obtained for the purpose of the advance, have signed loan agreements and where Mr Currie’s parents have specifically referred to the calling in of the loan in their wills, I am not satisfied there are sufficient uncertainties to lead to a conclusion that it should be disregarded.[106]
[106] Prince & Prince (1984) FLC 91-501 at 79,076 and the cases there cited.
I find the parties to be liable for a loan in the amount contended for by Mr Currie.
Ms Olson contends that Mr Currie has an asset worth $170,000 comprising “Funds owing from the Estate of” Mr Currie’s late father.[107] She relies on a handwritten note signed by Mr Currie’s father and mother in July 2021 in the following terms:
In the cash trust of A/C N.R. [Currie], there is $170,000 which belongs to [Mr Currie] which came from inheritance from [Mr T]. This money should be paid out to [Mr Currie]before other disbursements to [Ms U], [Ms V] & [Ms W] of $100,000 each as per my will. This has been discussed with [Ms Z] & [Mr Currie].[108]
[107] Ms Olson’s Outline of Case filed 21 May 2025, page 15.
[108] Exhibit A2, Annexure MSO16, page 85 of 146.
The note has the words “[Ms U], [Ms V] & [Ms W] of $100,000 each as part of my will” crossed out with an annotation “Will changed Aug 2022”.[109]
[109] Exhibit A2, Annexure MSO16, page 85 of 146.
Mr Currie’s father executed a will in August 2022. Paragraph 1.1(a) of that will revokes “all former wills and other testamentary acts made by me”.[110] To the extent that the handwritten note constituted a testamentary act, it was clearly revoked by Mr Currie’s father’s subsequent will.
[110] Exhibit R11, Annexure MRC19, page 180 of 257.
Mr Currie’s father passed away in 2024. Mr Currie’s mother was appointed as executor and trustee of his estate. Her unchallenged evidence is that the “$170,000 is not included in the Will”.[111]
[111] Affidavit of Ms Z filed 9 April 2025, paragraph 26.
In effect, Ms Olson’s contention relies on a finding that Mr Currie’s father’s will of August 2022 can be revoked, at least in part, to revive the intention expressed in the handwritten note dated July 2021. She did not articulate any legal basis for the contention.
I am not satisfied that Mr Currie has any legal or equitable interest in funds from his father’s estate contrary to the testamentary disposition in his will.
It is common ground that $2,428 ought be added back on account of funds withdrawn by Mr Currie from joint funds held by the parties at separation. Ms Olson contends that a further sum of $11,496 ought be so characterised.
Add-backs are exceptional, and reasonably incurred expenditure does not usually come within accepted categories of addbacks.[112] Mr Currie accepted Ms Olson’s proposition in cross-examination that he had not made similar withdrawals prior to separation. He gave oral evidence that he could not recall the reason why he made those further deductions, other than that it was for “day-to-day stuff”. The evidence does not satisfy me that the expenditure was unreasonably incurred by Mr Currie. I am not satisfied the circumstances are exceptional warranting the add-back of a further $11,496, as contended for by Ms Olson.
[112] Cornett & Hext (2021) FLC 94-067 at [48]; Trevi & Trevi (2018) FLC 93-858 at [27] to [30].
Mr Currie asserts that he has a taxation liability of $15,656. He deposes to believing that it relates to the Financial Year ending 30 June 2023. As further documents were produced during the course of the hearing, it is now clear that his current liability to the Australian Taxation Office amounts to $18,507.30. At the date of separation in July 2023, he had a total debt of approximately $1,171. Subsequent liabilities have essentially arisen because of PAYG instalments that have been levied.
Ms Olson contends that the taxation liabilities ought to be disregarded. The result would be that Mr Currie would be solely responsible for them. Absent evidence on how taxation liabilities are incurred, it is generally appropriate for them to be treated as part of the vicissitudes of the economic life of the parties and a debt to be shared between them.[113] Whilst I accept the taxation debt is attributable to the period after separation, it is to be recalled that the parties initially lived separately under the one roof and have been continuing to use the family home for their “nesting” parenting arrangement. Absent suggestion that Mr Currie has recklessly or wantonly expended his income, I am satisfied that the taxation liability ought to be shared between the parties.
[113] DJM & JLM (1998) FLC 92-816 at [10.6].
The identity and value of the parties’ other assets, liabilities and superannuation interests is agreed.
Justice and equity
Both parties seek an alteration of their property interests in order to finally determine the financial relationships between them.[114] It is implicit in both parties’ requests that the Court make orders that it is accepted the making of an order would be just and equitable.[115] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[116] Further, it is necessary to make orders to sever the parties’ joint interest in the Town B property.[117]
[114] Family Law Act 1975 (Cth), s 90ST.
[115] Russo & Wylie (2016) FLC 93-747 at [54].
[116] Stanford at [42].
[117] Preston & Preston (2022) FLC 94-108 at [38].
Contributions
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[118] I am also required to take into account the parties’ contributions to the welfare of the family.[119]
[118] Family Law Act 1975 (Cth), s 90SM(4)(a-b).
[119] Family Law Act 1975 (Cth), s 90SM(4)(c).
At the commencement of the parties’ relationship, Ms Olson owned a motor vehicle of modest value, had savings of approximately $10,000 and some superannuation entitlements. Mr Currie then owned a motor vehicle of modest value and had accumulated superannuation entitlements of approximately $19,000.
Both parties were initially employed part-time or casually. They commenced living together in Mr Currie’s parents’ property in Suburb AA. Mr Currie’s evidence that the parties paid less than one third of the market rent for the property for four and a half years from late 2010 was not challenged. Ms Olson deposes to rental payments being reduced while Mr Currie undertook his studies from 2011.
Ms Olson ceased work in 2011 while pregnant with X. She has subsequently undertaken various part time roles. She commenced tertiary studies in 2014 on a part time basis.
In either 2013 or 2015, Mr Currie received an inheritance of approximately $50,000 from his late grandmother’s estate. In July 2014, Ms Olson’s parents gifted the parties the sum of $20,000.
In September 2014, Mr Currie retained funds totalling approximately $22,000 from his father which were applied to the purchase of some financial investments.
In 2015, Mr Currie retained approximately $100,000 from the estate of his late uncle.
In May 2015, the parties moved to live in rental accommodation in Town B. Mr Currie obtained full-time employment as a retail worker.
In December 2016, the parties purchased the Town B property for $695,000. It is common ground they applied the following funds to the purchase:
· $100,000 from Mr Currie’s late uncle’s inheritance;
· $200,000 effectively gifted to them by Mr Currie’s parents;
· $20,000 gifted by Ms Olson’s parents in July 2024; and
· $360,000 by way of loan from Mr Currie’s parents.
Ms Olson deposes to the remaining balance coming from the parties’ joint savings. Nevertheless, she did not challenge Mr Currie’s evidence that a further $125,000 came from his parents. In the absence of any cross-examination on the topic, I prefer Mr Currie’s evidence in circumstances where he clearly identified the relevant transactions underlying his calculations. Ms Olson did not articulate how the parties could have saved such extensive funds in circumstances of the parties’ modest incomes.
In 2019, Mr Currie was gifted $10,000 from his grandmother’s second husband, which was applied to his musical interests.
In February 2021, Mr Currie received $60,000 from one of the financial investments purchased in September 2014.
Mr Currie otherwise received sums totalling $64,000 from his parents between July 2016 and March 2023, including $22,000 for the purchase of a new motor vehicle in March 2023.
Mr Currie has generally been the primary breadwinner since X was born, and Ms Olson has generally been the children’s primary caregiver. After separation, the parties have essentially been equally responsible for providing for the children’s care and both have contributed to outgoings for the Town B property.
The funds advanced by Mr Currie’s family that cannot be characterised as loans should be treated as a contribution made by or on his behalf.[120] The provision of accommodation on a reduced rent basis is also a contribution made on behalf of Mr Currie.[121]
[120] Kessey & Kessey (1994) FLC 92-495 at 81,149 to 81,150.
[121] Rickaby & Rickaby (1995) FLC 92-642 at 82,488, citing Gosper & Gosper (1987) FLC 91-818.
Ms Olson submits that contributions ought to be assessed as favouring Mr Currie in the proportions of 62% to 38%. Mr Currie contends that contributions ought be assessed in his favour at between 65-70%. I infer from the way both parties put their case that their contentions relate to non-superannuation assets.
As Mr Currie submits, without the generosity of his family, the parties would essentially have no property of value to distribute. Ms Olson accepts that the parties could only manage to house themselves in Town B because of the “generosity and largesse of the paternal grandparents”. I determine that the parties’ contributions to their non-superannuation assets ought to be assessed in favour of Mr Currie in the proportions of 67.5% to 32.5%. That finding reflects a differential between the parties’ contributions to non-superannuation assets in dollar terms of $316,510.
I infer from the agreed position in relation to superannuation that the parties have equally contributed to their relatively modest interests. I agree.
Paragraphs 90SM(4)(d)-(g) and subsection 90SF(3) factors
Ms Olson is 50 years old. She suffers from depression and anxiety for which she receives treatment.
Mr Currie is 51 years old. He suffers from Attention Deficit Hyperactivity Disorder for which he receives treatment.
Ms Olson is almost entirely reliant upon income by way of government benefits. She is currently studying and has not generated significant income for an extended period of time. She will be required to repay her parents funds borrowed for her legal fees of approximately $200,000.
It is common ground that Mr Currie has a full-time earning capacity of approximately $70,000 per annum plus commission. He has also historically generated additional income as an educator.
Mr Currie’s mother has paid his legal fees and does not expect any repayment of same. Mr Currie gave oral evidence that his mother will provide him with whatever funds I require him to pay Ms Olson. As he describes it, his mother “will give it to [him] to settle”. Accordingly, Mr Currie will retain non-superannuation assets worth approximately $886,000 irrespective of the amount he will be required to pay Ms Olson.
More generally, Mr Currie gave oral evidence that he will have access to financial support from his mother if needed. He accepted that he had previously received $10,000 from his parents for a taxation liability.
I do not consider the financial circumstances of Mr Currie’s relationship with his new partner to be relevant in the absence of their current, or intended, cohabitation.
Pursuant to my findings in relation to parenting matters, Ms Olson will be primarily responsible for the care of the children.
Ms Olson proposes an adjustment in her favour of 10% on account of the relevant factors, which would equate to an adjustment from the contributions findings relating to non-superannuation assets of $180,863. I am satisfied such an adjustment is warranted on account of the relevant factors.
Implicit in their mutual proposals to equalise their superannuation interests is a concession that no adjustment is warranted in relation to that class of asset. I agree.
Property Conclusions
I conclude that it is just and equitable for Ms Olson to retain 42.5% of the value of the parties’ non-superannuation assets and for Mr Currie to retain 57.5% of that value. In dollar terms, that amounts to Ms Olson retaining assets worth $384,333 and Mr Currie retaining assets worth $519,981 from the parties’ existing non-superannuation interests.
It is agreed that Mr Currie will be afforded an opportunity to make payment to Ms Olson in order to achieve that outcome. She currently has assets with a net value of $18,324, and so needs a payment to her of $366,009 to achieve the outcome I have found to be just and equitable. Mr Currie proposes that payment be reduced by disbursements previously ordered to be paid by Ms Olson. In the absence of any submission to the contrary, I am satisfied it is just and equitable to reduce her payment by the amounts of $4,620 for Mr L’s second Family Report, and $550 for a valuation. The final payment to be made accordingly amounts to $360,839.
Ms Olson proposes detailed orders for the sale of the Town B property in the event the payment is not made within the agreed 60 days. I am satisfied those orders are just and equitable to minimise the risk of further enforcement proceedings. I prefer the orders proposed by Mr Currie for the distribution of the proceeds of any default sale, given their provision for the repayment of a loan I have found to be extant. I will provide for the parties’ continued joint use of the property until the conclusion of Term 2, which is when Ms Olson has proposed to move to Suburb C. I agree with Ms Olson that Mr Currie should be responsible for the outgoings for the Town B property from today’s date given he intends to retain it. I also accept Ms Olson’s position that Mr Currie ought indemnify her in relation to funds owing to his parents and the taxation liability, absent any contrary suggestion from Mr Currie.
I am satisfied the agreed distribution of the parties’ chattels and the agreed orders providing for a superannuation split from Mr Currie’s superannuation interest are just and equitable.
Mr Currie proposes that Ms Olson delete copies of documents and request third parties to delete emails and text messages downloaded from his computer. Ms Olson made no submission with respect to the relief sought. In the absence of any explanation as to why she should retain such documents, I am satisfied that the order sought is just and equitable.
I consider that the general order proposed by Mr Currie sufficiently addresses the parties’ retention of their existing assets and liabilities without needing to specify other particular items each party is to retain.
I find no warrant at this stage to make an order pursuant to section 106A of the Act as sought by Ms Olson.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 13 June 2025
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