Panneton & Delauder

FEDERAL CIRCUIT COURT OF AUSTRALIA
Panneton & Delauder [2020] FCCA 3137

File number(s): BRC 10322 of 2018

Judgment of: JUDGE MIDDLETON

Date of judgment: 18 November 2020

Catchwords: FAMILY LAW – Parenting – Property – where there is one child of the relationship – where there was a relationship of approximately 3 years – where the mother seeks to relocate internationally – whether it is just and equitable to adjust the parties property interests.

Legislation: Family Law Act 1975 (Cth) pts VII, VIIIAB, ss 60B, 60CA, 60CC, 65DAA, 79(2), 90SF(3), 90SM, 90ST.

Cases cited:
Anastasio & Anastasio (1981) FLC 91-093

Bushby & Bushby (1988) FLC 91-919

McMahon & McMahon (1995) FLC 92-606

Godfrey v Saunders (2008) FLR 287

Goode & Goode (2006) FLC 93-286

Taylor & Barker (2007) FLC 93-345

Morgan & Miles (2007) FLC 93-343

Mulvaney & Lane (2009) FLC 93-404

McCall & Clark (2009) FLC 93-405.

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GR [2010] HCA 4

Sayer & Radcliffe [2012] FamCAFC 209

Stanford v Stanford [2012] HCA 52

Number of paragraphs: 185

Date of last submission/s: 3 September 2020

Date of hearing: 25, 26 and 27 May and 20 July 2020

Place: Brisbane

Counsel for the Applicant: Mr Linklater-Steele

Counsel for the Respondent: Mr Drysdale

Solicitor for the Applicant: Naughton McCarthy Family Lawyers

Solicitor for the Respondent: Hopgood Ganim Lawyers
ORDERS

BRC 10322 of 2018

BETWEEN:
MR PANNETON

Applicant

AND:
MS DELAUDER

Respondent

ORDER MADE BY:

JUDGE MIDDLETON

DATE OF ORDER:

18 NOVEMBER 2020

THE COURT ORDERS:
Parenting
1.That until such time as the mother produces evidence of the registration of the filing of the parenting orders made herein, in a competent court exercising family jurisdiction in City B, USA such that the orders made are enforceable by such court, the child shall not travel outside of the Commonwealth of Australia.
2.In this order;
(a)Child means X born in 2016.
(b)School holidays means any day that is not during a school term.
(c)School term means the period commencing on the first day of the school term as published by the child’s school and concluding on the final day of the school term as published by the child’s school, including any public holidays and pupil free days.
(d)School year means the period commencing on the first day of the first school term as published by the child’s school and concluding on the final day of the Summer school holidays as published by the child’s school, including any public holidays and pupil free days.

3.That the parents have equal shared parental responsibility for the child and that the parents make a genuine attempt to come to a joint decision in respect of major long-term issues in relation to the child, which include but are not limited to;
(a)Hospitalisation, surgery, medical, dental, optometry, counselling or any other major health issue concerning the child that requires specialist medical treatment;
(b)Attendance by the child at childcare, kindergarten and schooling of the child including decisions about the type of childcare, kindergarten and schooling and the childcare centre(s), kindergarten(s) and school(s) at which the child will attend.
(c)The child’s citizenship; and
(d)All other matters that may be mentioned as long-term issues in the Family Law Act 1975 (Cth) as amended from time to time.
(e)That in the event that the father fails to make a genuine attempt to come to a joint decision with the mother in respect of an issue within 28 days of the mother communicating her position in writing to the father, then the mother is at liberty to exercise parental responsibility and in respect of that issue.

4.That prior to 19 December 2021 the child live with the mother in Brisbane Australia and orders 5 to 14 apply.
5.That the child spend time with the father at all times as agreed between the parents in writing and failing agreement as follows;
(a)Until 23 January 2021
(i)Each weekend from 8:00am on Sunday until the commencement of day care or 8:00am on Tuesday; and
(ii)Each alternate Thursday evening from the conclusion of day care or 4:30pm until 7:00pm.

(b)Between 24 January 2021 and 29 May 2021 in a two week cycle as follows;
(i)From the conclusion of kindergarten or 5:30pm on Monday until the commencement of kindergarten or 8:00am on Tuesday in the first week; and
(ii)From 8:00am on Saturday in the first week until the commencement of kindergarten or 8:00am on Tuesday in the second week.

(c)Between 30 May 2021 and 18 September 2021 in a two week cycle as follows;
(i)From kindergarten or 5:30pm on Monday until the commencement of kindergarten or 8:00am on Tuesday in the first week; and
(ii)From the conclusion of kindergarten or 8:00am on Tuesday in the second week

(d)Between 19 September 2021 and 11 December 2021 each alternate week from the conclusion of kindergarten or 5:30pm on Thursday until the commencement of kindergarten or 8:00am on Tuesday.
(e)From the conclusion of kindergarten or 5:30pm on Monday 13 December 2021 until the commencement of kindergarten or 8:00am on Tuesday 14 December 2021.

6.That notwithstanding any other order the child will spend time with the parents on special occasions as agreed between the parents in writing and failing agreement as follows;
(a)On the child’s birthday if the child is not already spending time with the father, with the father as follows;
(i)If on a weekday from the conclusion of day care or 4:30pm until 7:00pm; and
(ii)If on a weekend from 1:00pm until 7:00pm.

(b)On each of the parent’s birthdays, if the child is not already spending time with that parent with that parent from the conclusion of day care or 5:30pm on the day prior to that parent’s birthday until the commencement of day care or 8:00am on the day following that parent’s birthday.
(c)On Easter in 2021 if the child is not already spending time with the father, with the father from 4:30pm on Easter Saturday until 8:00am on Easter Monday.
(d)On Christmas day in 2020 if the child is not already spending time with the father, with the father from 11:00am until 7:00pm.
(e)On Mother’s Day if the child is not already spending time with the mother, with the mother from 5:30pm on the day prior to Mother’s Day until the commencement of day care or 8:00am on the day following Mother’s Day.
(f)On father’s Day if the child is not already spending time with the father, with the father from 5:30pm on the day prior to Father’s Day until the commencement of day care or 8:00am on the day following Father’s Day.

7.That unless otherwise agreed between the parties in writing, changeovers occur in the following locations and manner:
(a)On the days the child attends day care/kindergarten, changeover will occur at the day care/kindergarten in which the child is enrolled; and
(b)Otherwise changeover will occur at McDonalds Suburb C and the mother is at liberty to cause a third party to attend on her behalf to conduct changeover.

8.That the child remain enrolled in D Early Learning Centre for day care and kindergarten.
9.That pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother be at liberty to travel overseas with the child provided;
(a)That the mother provides at least 28 days written notice to the father of her intention to travel overseas with the child, including:
(i)The approximate departure and return dates;
(ii)The name of the persons who will be accompanying the child; and
(iii)The country or countries the child will be travelling to.

(b)That at least 14 days prior to the departure date the mother must provide to the father:
(i)A copy of the child’s itinerary which must include return airfare ticketing;
(ii)The dates on which the child will arrive and depart each country;
(iii)A telephone number and address at which the child can be contacted in each country.

10.That paragraph 9 prevails over paragraph 5 of these orders (ordinary time) provided that the period of travel be no more than two weeks and not more frequently than twice per year. For clarity this paragraph does not prevail over time on special occasions unless otherwise agreed between the parties in writing.
11.That the father provide to the mother 14 days’ notice in writing of any period that he is unable to spend time with the child in accordance with these orders.
12.That should the father give notice to the mother that he is unable to spend time with the child on a day designated as a special occasion in accordance with these orders, then pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother be at liberty to travel overseas with the child on such special occasion provided that the mother provide to the father the information referred to in paragraph 9(a) and (b) as soon as practicable after the father gives notice to the mother under this paragraph and no less than 24 hours prior to travel.
13.That pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother be at liberty to travel overseas with the child in the event of an emergency, including but not limited to a significant health event or death of a family member or friend of the mother provided that the mother provides the information referred to in paragraph 9(a) and (b) as soon as practicable to the father and no less than 24 hours prior to travel. This paragraph 13 prevails over paragraphs 5 and 6 (ordinary time and special occasions) provided that the period of travel be no more than two weeks.
14.That while the child is overseas the child will communicate with the father by telephone, mobile or FaceTime at all times as may be agreed in writing and failing agreement on each Wednesday and Saturday for a 30 minute window provided that the call be no longer than 10 minutes at such times as may be agreed in writing between the parties having regard to their respective time zones with the mother to facilitate such communication.
15.That on and from 19 December 2021 the mother be permitted to relocate with the child to City E, United States of America and upon such relocation the child live with the mother and paragraphs 16 to 32 apply.
16.That the child spend time with the father during the summer school holidays at all times as agreed between the parents in writing and failing agreement as follows;
(a)The father may spend time with the child over a period of up to 6 weeks of the summer school holidays.
(b)The father may nominate no more than 2 separate periods with a minimum of 4 weeks between periods if applicable.
(c)Prior to the child be able to travel unaccompanied internationally the child is to spend time with the parents during the summer school holidays as follows:
(i)Prior to the child attaining 8 years of age with the father for periods as nominated by him with each block being no more than 14 nights and with changeovers occurring at 3:00pm.
(ii)After the child attains 8 years of age with the father for periods as nominated by him with each block being no more than 28 nights and with changeovers occurring at 3:00pm.
(iii)After the child attains 12 years of age with the father from 3:00pm on the first day of the relevant period until 3:00pm on the final day of the relevant period.
(iv)If elected by the father in accordance with paragraphs 20 and 21 the mother will travel or cause a member of her family to travel with the child to either London, United Kingdom or Brisbane, Australia and the following applies;
A.The duration of the period is to be no more than 12 days and no more than once per year.
B.The mother is responsible for the costs of:
i.Flights for her and the child; and
ii.Accommodation for her and the child while the child is in her care; and
iii.Any other travel costs of the mother and child.

C.The father is responsible for the costs of if applicable:
i.Flights for him; and
ii.Accommodation for him and the child while the child is in his care;
iii.Any other travel costs of the father.

And the father will provide a copy of any flight and accommodation bookings to the mother within 48 hours of receipt.

(v)In respect of time commencing and concluding in City E, United States of America the father is responsible for:
A.Flights for him; and
B.Accommodation and flights, if applicable for him and the child while the child is in his care; and
C.Any other travel costs of the father and child.

And the father will provide a copy of any flight and accommodation bookings to the mother within 48 hours of receipt.
(vi)Changeover will occur as follows;
A.In respect of time commencing and concluding in City E, United States of America, at the McDonalds closest to the mothers residence;
B.In respect of the time commencing and concluding in Brisbane, Australia, at McDonalds F Street;
C.In respect of time commencing and concluding in London, United Kingdom, at G Street railway station, London, United Kingdom.

(d)After the child is able to travel unaccompanied internationally, the following applies:
(i)The mother and the father will be responsible for the costs of the child’s economy return flights on each alternate occasion that the child travels, provided that if the child is travelling to a location other than Brisbane, Australia, the maximum cost that the mother is responsible for is the average costs of the child’s four previous economy return flights to Brisbane, Australia and the mother is not obliged to make a flight booking until the father pays an amount to the mother to an account nominated in writing by the mother in respect of any additional flight cost.
(ii)When booking the child’s return flights the relevant parent will ensure that the child departs City E, United States of America no earlier than the first day of the summer school holidays and returns to City E, United States of America no later than the day that is 3 days before the conclusion of the summer school holidays.

17.That the child spend time with the father during the school holidays other than the summer school holidays at all times as agreed between the parents in writing and failing agreement as follows;
(a)The father may spend the following holidays with the child:
(i)In odd years, mid-winter break and spring break: and
(ii)In even years, two of the following school holidays nominated by the father:
A.Christmas break:
B.Mid-winter break;
C.Spring break.

(b)Prior to the child being capable of travelling unaccompanied internationally the following applies:
(i)The child is to spend time with the father during the relevant school holidays from 8:00am on the first day of the school holidays until 4:30pm on the last day of the school holidays.
(ii)Changeover will occur at the McDonalds closest to the mother’s residence.
(iii)The father is responsible for:
A.Flights for him; and
B.Accommodation and flights, if applicable for him and the child while the child is in his care;
C.Any other travel costs of the father and child.

And the father will provide a copy of the flight and accommodation bookings to the mother within 48 hours of receipt.

(c)After the child is capable of travelling unaccompanied internationally the following applies:
(i)The mother and the father will be responsible for the costs of the child’s economy return flights on each alternate occasion that the child travels, provided that if the child is travelling to a location other than Brisbane, Australia, the maximum cost that the mother is responsible for is the average costs of the child’s four previous economy return flights to Brisbane, Australia and the mother is not obliged to make a flight booking until the father pays an amount to the mother to an account nominated in writing by the mother in respect of any additional flight cost.
(ii)When booking the child’s return flights the relevant parent will ensure that the child departs City E, United States of America no earlier than the first day of the relevant school holidays and returns to City E, United States of America no later than the second last day of the relevant school holidays.

18.That the child spend time with the father in City E, United States of America during the school term at all times as agreed between the parents in writing and failing agreement as follows;
(a)The father may spend time with the child over a period of up to 4 weeks at a time during the school term.
(b)The time between visits during school term may be no less than 8 weeks.
(c)The child is to spend time with the parents during the 4 week period referred to in paragraph (a) above during school term as follows:
(i)Prior to the child attaining 8 years of age each week from the conclusion of school to 4:30pm on Monday until 4:30pm on Saturday; and
(ii)After the child attains 8 years of age in a 2 week cycle from the conclusion of school to 4:30pm on Monday in the first week until the commencement of school or 8:00am on Friday in the second week.

(d)The father is to cause the child to attend school and extra-curricular activities in which the child is enrolled which occur during his time with the child.
(e)Changeover will occur at the child’s school if possible or otherwise at the McDonalds closest to the mother’s residence.
(f)The father is responsible for:
(i)Flights for him; and
(ii)Accommodation for him and the child while the child is in his care;
(iii)Any other travel costs of the father.

And the father will provide a copy of the flights and accommodation booking to the mother within 48 hours of receipt.

19.That for the purpose of the parents alternating the child’s economy return flight costs in accordance with 16(d)(1) and 17(c)(1);
(a)The first economy return flight for the child will be the mother’s responsibility; and
(b)Each occasion of travel under both paragraphs is to be alternated such that neither parent is responsible for the cost of two consecutive occasions of the child’s travel notwithstanding the paragraph under which the travel arose.

20.That the father provide to the mother no later than 1 month prior to the conclusion of each school year written notice in respect of his time with the child during the following school year, including:
(a)Which school holidays the father nominates in accordance with paragraph 17(a) if applicable;
(b)The periods he will spend with the child during the summer school holidays in accordance with paragraph 16;
(c)Is applicable, whether he nominates for the mother to cause the child to travel to Brisbane, Australia or London, United Kingdom in accordance with paragraph 16(c)(3) and if so the period in which the time will occur.

21.That the father provide to the mother in writing at least 12 weeks prior to each occasion he will spend with the child, the following:
(a)The precise dates on which his time with the child will commence and conclude; and
(b)The telephone number and address at which the child can be contacted during the time the child will spend with the father.

22.That notwithstanding any other order the child will spend time with the parents on special occasions as agreed between the parents in writing and, failing agreement if the days set out below fall in a period in which the child is spending time with the father or the father is in City E, United States of America then as follows;
(a)On the child’s birthday with the parent with whom the child is not already spending time as follows:
(i)If the child’s birthday falls on a weekday, from the conclusion of school or 4:30pm until 8:00pm; and
(ii)If the child’s birthday falls on a weekend, from 1:00pm until 8:00pm.

(b)On the father’s birthday if the child is not already spending time with the father, with the father from 5:00pm on the day prior to the father’s birthday until 8:00pm on the father’s birthday;
(c)On the mother’s birthday if the child is not already spending time with the mother, with the mother form 5:00pm on the day prior to the mother’s birthday until 8:00pm on the mother’s birthday;
(d)On Father’s Day if the child is not already spending time with the father, with the father from 5:00pm on the day prior to Father’s Day until 8:00pm on Father’s Day;
(e)On Mother’s Day if the child is not already spending time with the mother, with the mother from 5:00pm on the day prior to Mother’s Day until 8:00pm on Mother’s Day;
(f)In respect of the Fourth of July, in even years with the mother from 5:00pm on the Friday prior to 4 July until 8:00am on 5 July.
(g)In respect of Thanksgiving with the mother from the conclusion of school or 5:00pm on the day prior to Thanksgiving Day until 5:00pm on the Sunday following Thanksgiving Day.

23.That in respect of changeovers occurring other than at the child’s school or by the child’s unaccompanied international travel, the mother is at liberty to cause a third party to attend on her behalf to conduct changeover.
24.That, in respect of changeovers occurring by the child’s unaccompanied international travel, each parent will deliver the child to the relevant airport at the conclusion of their time with the child for the child to commence his travel.
25.That prior to the child having a phone of his own the child will communicate with the parent with whom he is not spending time by telephone, mobile, or FaceTime at all times as may be agreed in writing and, failing agreement, on the following days (in the time zone of the child);
(a)Each Wednesday and Saturday;
(b)The special occasions set out in paragraph 22 if the other parent is not spending time with the child for such special occasion;

With the parent with whom the child is spending time to facilitate such communication, at the following time:
(c)If the parents and the child are in the same time zone, 6:00pm in that time zone;
(d)If the child is in Brisbane and is contacting the mother in the United States, 9:00am Australian Eastern Standard Time;
(e)If the child is in the United State and is contacting the father in Australia, 6:00pm Eastern Standard Time or Eastern Daylight Time (as the case may be).

26.That upon the child having a phone of his own, each parent be at liberty to contact the child directly at all reasonable times and the parent with whom the child is spending time will encourage the child to communicate with the other parent regularly.
27.That subject to paragraph 28 the child attend H School, City E, United States of America from kindergarten to grade 8.
28.That should the mother provide written notice to the father that she cannot afford to meet her share of the fees for H School, then the child attend the public school in the catchment in which the mother resides.
29.That pursuant to section 65Y of the Family Law Act 1975 (Cth) the parents be at liberty to travel internationally with the child provided as follows;
(a)That the travelling parent provides at least 28 days written notice to the other parent or his or her intention to travel overseas with the child, including;
(i)The approximate departure and return dates;
(ii)The name of the person who will be accompanying the child;
(iii)The country or countries the child will be travelling to.

(b)That at least 14 days prior to the departure date, the travelling parent must provide to the other parent;
(i)A copy of the child’s itinerary which must include return airfare ticketing;
(ii)The dates on which the child will arrive and depart each country;
(iii)A telephone number and address at which the child can be contacted in each country.

(c)That the child will only travel to countries which have acceded to the Hague Convention on the Civil Aspects of International Child Abduction and are a convention country for the purpose of regulation 10 of the Family Law (Child Abduction Convention) Regulations 1986 at the time of the child’s travel.
(d)That the child will only travel providing his travel is consistent with any recommendations or travel advisory warnings that may issue by the relevant government department in the United State of America such that the child will not travel if any of the following warning (or the equivalent) are in place at the time of his travel;
(i)Level 2: exercise a high degree of caution;
(ii)Level 3: reconsider your need to travel; or
(iii)Level 4: do not travel.

30.That, pursuant to section 65Y of the Family Law Act 1975 (Cth), the parents be at liberty to travel internationally with the child in the event of an emergency, including but not limited to a significant health event or death of a family member or friend of that parent, provided the travelling parent provides the information referred to in paragraph 29(a) and (a) as soon as practicable to the other parent and no less than 24 hours prior to travel. This paragraph prevails over paragraphs 16 to 17 (ordinary time), provided that the period of travel be no more than two weeks.
31.That, for the purposes of the child’s travel in accordance with paragraph 29 or 30:
(a)the child is capable of travelling unaccompanied internationally in accordance with the policy of the particular airline with which the child will travel; and
(b)the parents will cause the child to travel unaccompanied internationally where possible, subject to written agreement between them.

32.That, whilst the child is overseas, the child will communicate with the other parent by telephone, mobile, or FaceTime at all times as may be agreed in writing and, failing agreement, on each Wednesday and Saturday, for a 30 minute window provided that the call be no longer than 30 minutes, at such times as may be agreed in writing between the parties having regard to their respective time zones, with the travelling parent to facilitate such communication.
33.That each parent facilitate any reasonable request of the child to contact the other parent, including by FaceTime or by telephone.
34.That any communication in respect of the child occur through the website “Our Children” (with the parties to meet their own subscription fees), except in the case of emergencies where communication is to occur by text message.
35.That the parents keep each other informed of their respective residential address, email address and telephone number and each parent is to notify the other parent within 24 hours of a change.
36.That the parents keep each other informed of their respective residential address, email address and telephone number and each parent is to notify the other parent within 24 hours of a change.
37.That each party is to keep the other informed as to any illness, accident, hospitalisation or medical condition with respect to the child while he is in that party’s care (including providing the name of the child’s treating specialist) and keep the other informed of any medication to be taken by the child.
38.That neither parent denigrate the other, their family, their partner, or their friends, to, in front of, or within the child’s hearing or to any day care or school of the child, and each parent will direct third parties to refrain from such denigration, and failing their compliance, will remove the child from that environment immediately.
39.That, in respect of the child’s passports:
(a)the child’s passports are to be held by the mother,
(b)for the purposes of the child’s international travel, each parent will ensure that the child’s passport(s) necessary for the travel accompany the child, provided that the father will return all the child’s passports in his possession at the conclusion of his time with the child to the mother.

40.That the parties do all acts and take all steps necessary to ensure the child’s passports remain valid with an expiry date no less than 6 months validity at all times with any renewal costs to be shared equally between the parties.
41.That these orders serve as any necessary authority to the child’s treating doctors, schools, extra-curricular activities and the like to the effect that either parent be able to communicate with the same and be advised of the child’s treatment and/or progress and obtain reports, newsletters, school photographs and the like.

Property
42.That the applicant shall retain as his sole property and to the extent necessary, the respondent shall transfer to him all her right, title and interest in and to the following:
(a)The balance of all bank accounts (including any credit card liabilities) in his sole name;
(b)His superannuation entitlements;
(c)His interest in the J Trust and K Pty Ltd;
(d)The beneficial interest in all and any life insurance policies in his name;
(e)His shareholdings, including his employee share scheme entitlements;
(f)All and any personal liabilities (including but not limited to taxation liabilities) in his name;
(g)His personal effects, household items and furniture in his current possession and control.

43.That the respondent retain as her sole property and to the extent necessary, the applicant shall transfer to her all his right, title and interest in and to the following;
(a)The balance of all bank accounts (including any credit card liabilities) in her sole name;
(b)Her Motor Vehicle 1;
(c)Her superannuation entitlements;
(d)Her shareholdings and brokerage portfolio;
(e)The beneficial interest in all or any life insurance policies in her name;
(f)All and any personal liabilities (including taxation liabilities) in her name; and
(g)Her personal effects, household items and furniture in her current possession and control.

44.Except as otherwise provided in these orders, the applicant and the respondent shall each be solely liability for any debt in their respective sole names as at the date of these orders and shall indemnify the other and keep the other indemnified with respect to those liabilities.
45.That the parties will do all acts and things and sign all documents necessary to give effect to these orders and in the event that either party refuses or neglects to comply with any direction in these orders requiring him or her to execute a deed or other instrument, a Registrar of the Brisbane Registry of the Family Court of Australia is hereby appointed to execute the deed or other instrument in the name of the defaulting party and to do all acts and things and sign all documents necessary to give validity and operation to the deed or other instrument under section 106A of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment under the pseudonym Panneton & Delauder is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MIDDLETON
Introduction

This is a property and parenting application involving parenting arrangements for X born in 2016.
X’s parents began living together in 2014 and separated on a final basis on or about April or May 2018 when the applicant father left the former matrimonial home. A relationship of approximately 3 years.
The applicant father is currently 39 years of age and is a permanent resident of Australia.
The respondent mother is currently 35 years of age and is a citizen of United States of America, currently ordinarily resides in Australia under a 457 Visa sponsored by her employer, Employer L.
An initial family report written by Mr M was filed in the court on 6 November 2018. In that report Mr M provides the following opinion:
“X’s relationship with his father has been restricted since separation by virtue of the patently dysfunctional relationship between the parents, allegations of family violence made by the parents against each other and the mother’s concerns that the father lacks the skill and patience to care for X adequately.”
In explaining the parents relationship Mr M said this:
“what marked the relations and remained a theme throughout the history, was the level of emotional intensity and volatility. The pattern which they relate is often enmeshed dysfunctional relationship which lurched between explosive conflicts for the slightest reasons, arguments which could last for hours or days, and reconciliations which were equally intense and at the opposite end of the scale.”
The trial ran over four days with the last hearing day being 20 July 2020. Both parties filed written submissions with the applicant father to file his submissions last on 25 August 2020.
The parent’s relationship remained highly dysfunctional and had deteriorated significantly since Mr M’s report was filed on 6 November 2018.
The applicant seeks orders that the child remain living in Australia and that the child’s time with the father incrementally increase so that from 19 September 2021 the child would live in a week about arrangement between the parents. In relation to property orders the applicant seeks an order that each party retain property in their possession and control, effectively that there be no adjustment pursuant to section 90SM(1) of the Family Law Act 1975 (Cth) (The Act).
The respondent seeks an order that she be permitted to relocate with the child to City E in the United States of America and if permitted to do so seeks orders consistent with annexure A to her case outline filed on 18 May 2020.
In the event the mother is not permitted to relocate to the United States then she seeks orders consistent with annexure B to her case outline filed on 18 May 2020.
In relation to the property aspect of the case the mother sets out her two proposals, dependent upon whether she is permitted to relocate or otherwise, at annexure C to her case outline filed on 18 May 2020. In short she seeks that the respondent pay her a cash amount and that there be a superannuation split from the respondent’s superannuation to hers.
The Issues
The issues for determination are as follows:
(a)whether the child and mother be permitted to relocate to City E in the United States;
(b)what parenting arrangements are in the best interests of the child if the mother is permitted to relocate;
(c)what parenting arrangements are in the best interests of the child in the event the mother and child remain living in Australia;
(d)whether an order for equal shared parental responsibility should include a provision that if “the father fails to make a “genuine attempt to come to a joint decision with the mother in respect of an issue within 28 days of the mother communicating her position in writing to the father, then the mother is at liberty to exercise parental responsibility and in respect of that issue’;
(e)whether there should be an adjustment to the legal and equitable property interests of the parties pursuant to section 90SM(1) of the Act;
(f)if it is considered just and equitable to adjust the parties property interests what is a just and equitable division.
The Material
The applicant relied upon the following material:
(a)Amended Initiating Application filed 21 February 2020;
(b)Reply to Property orders filed on 1 November 2019;
(c)Financial Statements filed on 1 November 2019 and 25 May 2020;
(d)Notice Of Risk filed 7 September 2018;
(e)Affidavit of Mr M filed 5 November 2018;
(f)Affidavit of Mr M filed 12 July 2019;
(g)Affidavit of the father filed 27 March 2020;
(h)Case Outline filed on 19 May 2020;
(i)Written Submissions filed 25 August 2020.
The respondent relied upon the following material:
(a)Affidavit of Mr M filed 5 November 2019;
(b)Affidavit of Mr M filed 12 July 2019;
(c)Affidavit of Ms N filed 29 March 2020;
(d)Affidavit of Mr O filed 29 March 2020;
(e)Affidavit of Ms P filed 1 April 2020;
(f)Affidavit of Ms Q annexing unsigned affidavit of Ms R filed 1 April 2020;
(g)Affidavit of the mother filed 3 April 2020;
(h)Affidavit of Ms S filed 8 May 2020;
(i)Case Outline filed 18 May 2020;
(j)Written Submissions filed 24 August 2020.
The Law
In relation to children’s proceedings Part VII of the Act applies. Guided by the objects and principles contained in section 60B and having regard to the fact that it is the best interests of the child is my paramount consideration (section 60CA) I must consider the parties proposals and make orders that are in a child’s best interest.
In determining what is in the child’s best interest I must consider and make findings in relation to the provisions of section 60CC. As both parties seek an order for equal shared parental responsibility if I make such an order the provisions of section 65DAA apply.
Notwithstanding that this is an international relocation case I must be guided by and bound by the legislative pathway in the Act. (Sayer & Radcliffe [2012] FamCAFC 209). That is there is nothing contained within the Act to suggest that a different approach is necessary in relocation cases.
Having regard to the amendments to the Act in 2006 it is now well-established that there is a legislative intent in favour of substantial involvement of both parties in a child’s life. (Goode & Goode (2006) FLC 93-286; Taylor & Barker (2007) FLC 93-345, Morgan & Miles (2007) FLC 93-343, Mulvaney & Lane (2009) FLC 93-404 and McCall & Clark (2009) FLC 93-405.)
Furthermore the Full Court of the Family Court when considering an appeal in relation to a relocation case in Taylor & Barker said this:
“the preferred approach when dealing with relocation cases has been not to deal with that change, or relocation, as a separate or discrete issue but rather as just one of the proposals for the child’s future living arrangements, at least insofar as the approach is possible (see U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen [2005] FamCA 458; (2005) FLC 93-224.”
In relation to the property aspect of this case as these parties never married Part VIIIAB of the Act applies.
Importantly unless I am satisfied that, in all the circumstances, it is just and equitable to make an order I must not do so. (section 90SM(3); Stanford v Stanford [2012] HCA 52.
If I am satisfied that it is just and equitable to make an order that I must consider those matters contained within sections 90SM(4) and 90SF(3). Having considered and made determinations in relation to those matters I must then consider whether the order I propose is just and equitable in all the circumstances.
Consideration and Findings
Parenting
The mother’s proposal will involve a very significant change to the living arrangements for this child. This child has not yet turned four years of age and if I were to make orders consistent with the mother’s proposal the child would be leaving Australia, and as a result his father, shortly after he turns five years of age.

As is often the case in these types of matters the father seeks orders that would ultimately see this child living on an equal basis with each of his parents.
Primary considerations
The history of this child’s relationship with his father reveals that the child’s ability to form a close secure and meaningful relationship with his father has been affected by the parental dispute.
Between May 2018 and 6 June 2018 both the mother and father put numerous proposals to each other with regards to arrangements for the child to spend time with the father. The father was spending time with the child unsupervised at that time.
On 7 June 2018 the mother travelled to the United States of America with the child and returned on 20 June 2018. On 2 July 2018 and 11 July 2018 the father sought to spend unsupervised time with the child for three hours each Monday, Wednesday and Friday with a gradual increase in time to overnight time.
In response to that request, it seems the mother filed an Application for a Protection Order in the Brisbane Magistrate’s Court on 12 July 2018. The father then filed an Application for a Protection Order on 30 July 2018. Temporary orders were made in relation to both applications with both parents being in receipt of protection orders protecting them against the other parent.
On 1 August 2018, in response to the father’s proposals to spend time with the child the mother then alleges that the father is suffering from mental illness, has behavioural and anger issues, is a habitual drug user and will expose the child to drug use and has failed to provide a safe environment for the child.
The father filed his Initiating Application in the Federal Circuit Court on 7 September 2018 and the parties attended interviews with Mr M on 16 October 2018. On 5 November 2018 Judge Turner made orders in respect of the child’s time and communication with the father.
The child did not spend time with his father between 6 June 2018 and 11 November 2018.
On 22 November 2018 cross protection orders were made on without admissions basis protecting both parties and remain in place until 21 November 2021.
The orders made by her honour Judge Turner on 5 November 2018 required that changeovers occur with the assistance of the Brisbane Children’s Contacts Centre. That changeover service was cancelled by the service on 29 March 2019.
Thereafter the parents engaged again in negotiations relating to where changeover shall occur. On 8 April 2019 the mother made a request to travel with the child to the United States and the father consented.
On 19 April 2019 the child spent time with the father prior to the mother’s departure to the United States of America.
On 7 May 2019 the mother returned from the United States of America with the child and once again the child spends no time with the father because the parties cannot agree upon changeover arrangements.
Between May 2019 and June 2019 the father travelled to the United Kingdom to visit his ill father.
On 26 June 2019 the parties attend upon Mr M for an updating family report and on this occasion the father spends time with the child briefly during interviews.
On 12 July 2019 the updated family report is released. On 18 September 2019 the child spends time with the father, on 20 October 2019 the child spends overnight time with the father and on 26 October 2019 child spends overnight time with the father.
On 7 November 2019 there was an interim hearing before me and on 13 December 2019 I delivered my judgement and made further orders with respect to the child’s time with the father. (See decision dated 13 December 2019).
It is important to note that Mr M in both of his reports recommended that this child have the opportunity of forming a meaningful relationship with both of his parents. Furthermore at paragraph 64 of the family report filed on 12 July 2019 Mr M said this:
“An issue of concern which arose markedly in this assessment was Ms Delauder’s characterisation of X’s attachment with his father is negligible, with reliance upon obtuse references for a child of his age, such as his lack of references to his father (in his absence), his apparent preference for her friends, and a habit of quickly passing over photographs of his father in an album. Whilst Ms Delauder was under stress on the day of the assessment, her views as expressed here do not convey discernible support for the value of the relationship between X and his father.”
It is this aspect of the mother’s presentation and the difficult history relating to the child’s time with his father that the father relies upon heavily to support his proposal that the child remain living in Australia. As I understand his argument, it is that unless the child remains living in Australia the opportunity for this child to continue to maintain a meaningful relationship with his father would be lost.
In relation to what is a meaningful relationship the Full Court of the Family Court in McCall & Clark [2009] FamCAFC 92 said this at [118] and [119]:
[118]- “it appears to us that there are three possible interpretations of s. 60cc(2)(a):
a) one interpretation is that the legislation requires a court to consider the benefit of the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based upon that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents ( “the presumption approach”); and
c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
[119] - we conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s. 60CC(2)(a) is “the prospective approach ”although, depending upon factual circumstances, the present relationship approach may also be relevant…..”
The definition of meaningful was considered by Justice Brown in Mazorski & Albright [2007] FamCA 520 at [26] when he said:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one….”
The Full Court in McCall & Clark accepted as appropriate the interpretation of meaningful relationship as set out by Justice Brown.
Justice Kay noted in Godfrey v Saunders (2008) FLR 287 at 298:
“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.” (Cited with approval by the Full Court in Moose & Moose (2008) FLC 93-375.)
The proposal of the mother is consistent with a view that it is in the child’s best interest for him to have a meaningful relationship with the father and is also consistent with her case outline at 5.6 filed on 18 May 2020.
It was not surprising that the mother was cross-examined in relation to her view. When asked when she formed her view that it was important for the child to have a meaningful relationship with his father she stated she had always held the view. I do not accept that.
It was put to her that her view had changed and the mother conceded that her view had evolved over time.
The mother is clearly anxious and in my view the dysfunctional relationship between herself and the father has impacted upon her ability to find merit in the father having a relationship with the child particularly from the date of separation until December 2019.
Upon my determination in December 2019 it seems the parents have been able to ensure that this child continues to have a meaningful engagement with his father despite the difficulties.
Having watched the mother give evidence I am satisfied that she now has developed the insight to put her dispute with the father to one side in understanding that this child will benefit from a meaningful relationship with both of his parents.
In coming to the decision, I rely upon the mother’s oral evidence when being cross-examined where she said she has formed her current view over time noting that the child has grown up and that the difficulty between the parents at changeover is now managed by her au pair assisting with changeovers.
Furthermore whilst she acknowledged that some of her concerns relating to the father’s capacity to appropriately parent are still present she acknowledged that those concerns arise out of her experience with the father during their relationship which is her only evidence but she stated “it”, being the relationship, “is largely irrelevant now.”
The mother also acknowledged that she will continue to need to work on her ability to provide the child with opportunities to communicate with and spend time with the father.
I am satisfied on the evidence that it is in this child’s best interests for him to have a meaningful relationship with both of his parents and accordingly I must frame orders to ensure the child has a meaningful relationship with both parents.
Both parents have made counterclaims against the other relating to family violence. Indeed as I previously said there are cross protection orders in place until 21 November 2021.
The father was cross-examined considerably in relation to his drug use. He did provide a hair follicle test which showed the presence of an illicit drug. Subsequent to the return of that test he undertook a further test which proved negative to illicit drugs.
A report from Dr T was prepared and he gave evidence at the trial. Ultimately Dr T’s oral evidence was that with respect to cocaine the tests likely revealed probable use although he could not be certain and with respect to MDMA the level detected was so low that it was likely contamination. I accept that evidence.
The mother also asserted that the father smoked cannabis on regular occasions. Although she acknowledged that her current concern regarding this was based upon her experiences when living with the father.
The evidence of Mr M revealed that this child displayed affection and closeness to both the mother and father. There were no indications that the child was fearful of either parent.
The mother gave oral evidence that she was satisfied that the child loves his father and perhaps more importantly that the child is well cared for by the father.
In light of all of the evidence I am satisfied that the family violence that occurred was limited to situational couple family violence. The lack of trust and the inability for either parent to communicate effectively post separation saw each of them make further allegations against the other none of which were substantiated.
There is no evidence to support a finding that this child will be exposed to family violence in either parent’s home in the future. I am satisfied on the evidence that if this child was exposed to family violence whilst the parties were living together it has had little to no impact upon the child. In those circumstances I am not satisfied that this child is in need of protection as a result of issues relating to family violence.
The allegations relating to drug use go to whether there is a need to protect this child from neglect as a result of the father’s drug use. The evidence does not support a finding that this child has been neglected by his father. I say again the evidence of the mother is that the child is well cared for by the father and that her concerns relating to drug use are largely based on her history when living with the father.
The father gave evidence that he had not used marijuana since 2018 and that he is required to provide random drug tests for his employment and that he never failed a drug test in over two years. I accept that the father does not present a risk to this child as a result of drug use.
Additional Consideration
The child was too young to provide a view.
The child has a primary attachment to the mother and a close and secure bond with his father. Mr M in his report filed on 12 July 2019 at paragraphs 46 to 49 provides information relating to the interactions between the child and both parents. That information satisfies me of those matters I referred to.
Since those interviews and up until the date of trial the child was spending significantly more time with his father and both the father and the mother together with at least one of the au pairs noted that X thoroughly enjoyed his time with the father, was excited to see his father and loved his father.
That additional evidence satisfies me that the child’s relationship with his father has continued to develop and become more significant.
The maternal grandparents have also played a role in this child’s life and they along with the mother provide evidence that the child engages with them through the use of facetime and that he is inquisitive as to where they may be from time to time. I am satisfied on the evidence that this child knows his maternal grandparents and enjoys seeing them and engaging with them. Furthermore the maternal grandparents provide evidence that the child is affectionate and warm with them when they see him face to face.
There was no evidence as to the relationship between the child and the paternal grandparents and as such I cannot form a view as to the nature of the child’s relationship with them.
It is clear that the father has been attempting to be as involved with the child as much as possible and equally clear that those attempts were frustrated from the date of separation until December 2019.
The father seeks to sheet home the blame for this disruption directly to the mother however I am satisfied that both parents played a part in that disruption due to their inability to make reasonable concessions with each other.
Both parents seek an order for equal shared parental responsibility and both provide evidence that their ability to reach agreement is negligible. Both parents acknowledge that they will have to try harder to remain child focused when discussing different opinions as to progress of important matters in the child’s life.
There was no suggestion that either parent had failed to fulfil their obligation to maintain the child and in those circumstances nothing turns on this aspect.
Both parents’ proposals would see a significant change in the child’s circumstances. The mother’s proposal would of course see that the child would be living in the United States of America and would be separated from his father unless his father moved to the United States of America.
The obvious disadvantage of the child living in the United States of America with the father living in Australia is that the child would not be able to spend regular and consistent substantial and significant time with his father.
The mother’s proposal provides for the father to spend time with the child both during school holidays and school terms however this time really amounts to block periods of time rather than substantial and significant time on an ongoing basis.
The best interests of the child is not met by the quantity of time per se but rather by ensuring that there is sufficient quality in the relationship so as to maintain a meaningful relationship between the child and his parents.
The mother proposes that the child spend time on a regular basis with the father (see proposed order 24 and 25 of the mother’s proposal if she were permitted to relocate and orders 28 through 33 of her proposal in the event she is not permitted to relocate).
The mother and her parents provide evidence that the child is using FaceTime to communicate with and engage with maternal grandparents for quite some time. Their evidence is that he derives benefit from this communication and has developed a relationship with maternal grandparents through this medium.
As at the date of trial there have been only one, perhaps two, occasions when the child had communicated with his father via FaceTime.
The evidence supports a finding that the child would benefit and have the potential to continue to develop a meaningful relationship with his father if he were living overseas via the use of FaceTime on a regular basis. It is not optimal but nevertheless in my view this form of communication would continue to support a meaningful relationship.
The mother’s proposal in relation to the child’s time with the father should she remain living in Australia is consistent with the recommendations of Mr M in his second report. That is; the child would live with the mother predominantly and spend five nights per fortnight with the father and ultimately share holiday time between the parents.
I am persuaded by Mr M’s evidence and find that such an arrangement should the child remain in Australia would support a meaningful relationship with the father and would therefore be in his best interests as well.
The father’s proposal would see the child’s time progressing until as at 19 September 2021 the child would live with each of his parents in a week about arrangement.
Much has been written about how shared care arrangements work best. It is generally well accepted that these types of living arrangements for children work best when parents live within close proximity to each other, they have a cooperative co-parenting relationship, there is mutual trust, both parents can be flexible with each other and a consistency in parenting approaches.
The evidence at trial from both parents was that they try to avoid each other as much as possible and most of their communication is through an online platform. Indeed changeovers are facilitated with the assistance of the mother’s au pair due to the difficulty the parents have with communication.
Furthermore it was clear to me that the mother becomes very distressed about communicating with the father and finds it difficult to co-parent with him.
In those circumstances a shared care parenting arrangement is contraindicated and in my view would be disadvantageous to the child and not in the child’s best interests.
Clearly there would be a benefit to the child in remaining in Australia in spending substantial and significant time with his father provided that to remain in Australia the mother’s ability to parent was not compromised.
The mother was cross-examined at length in relation to her anxiety. Her evidence is that she sees a counsellor at U Counselling to assist her in coping currently. She does not take medication and she does not see a psychologist.
The mother obtained a medico legal report from Ms S. Ms S was of the view that the mother suffered from anxiety and that this was brought on as a result of the highly dysfunctional relationship she had with the father. It was her view that the mother was suffering post-traumatic stress type symptoms.
At paragraph 13.7 of the report filed 8 May 2020 she gives this opinion:
“if Ms Delauder is required to remain in Brisbane with X, she would likely experience an increase in post-traumatic stress symptoms. This would likely occur as a result of increased interaction with Mr Panneton, the possibility of him attending functions or activities X’s kindergarten when she is present, and is involved in X’s schooling.”
In relation to how the move to the United States might impact upon the mothers anxiety, at paragraph 14.8 and 14.9 Ms S provides this opinion:
14.8 -“Ms Delauder would still need to consult with Mr Panneton in matters pertaining to parental responsibility, as well as facilitate communication between X and Mr Panneton on an ongoing basis. This is likely to have a negative effect on Ms Delauder’s mental health. However, the additional social support from extended family members and friends, would likely act as a buffer against any anxiety or stress she experiences in relation to Mr Panneton. This is a favourable prognostic sign for Ms Delauder’s future adjustment,
14.9 “if Ms Delauder is permitted to relocate with X, she would likely experience an improvement in her mental health. Daily interactions with Mr Panneton would be reduced, she would have access to extended family support, improve employment prospects and school opportunities for X.”

It is clear that Ms S’s opinions are based upon the mother’s self-reporting. The mother conceded in cross-examination that she does not seek professional assistance from a psychologist or from her General Practitioner.
It must be noted that the mother brought an application for a further updated family report and that application was dismissed by me. The mother thereafter sought out Ms S and obtained the medico legal report I have referred to.
I am urged to give little weight to the report of Ms S by the father. It is asserted by him that I could not place much weight on the report because Ms S was not provided with relevant information. Indeed Ms S opines that the mother might be suffering from post-traumatic stress disorder as a result of hearing the mother’s reports of family violence within the home. Ms S has not been made aware of any other supporting information in relation to family violence.
Ultimately Ms S opines that the mother is anxious and that she would benefit from some psychotherapy. She notes that the mother is very anxious about interactions with the father.
Having watched the mother give evidence, I am satisfied that the mother is very anxious about her interactions with the father and in those circumstances the physical reactions reported by Ms S at paragraph 14.3 were consistent with my assessment of the mothers physical reactions at times when giving evidence about the father.
There is no evidence to suggest that the mother is otherwise an anxious person. Indeed it is submitted on behalf the father that the mother has been able to cope with living away from the United States of America and her family at various times for long periods of time.
I am satisfied that the mother suffers anxiety when she is presented with the necessity to engage with the father on a regular basis. I note that she does not attend changeover because of her discomfort but nevertheless on a regular and consistent basis is required to think about the father and this causes her difficulty.
In those circumstances I give some weight to the opinions of Ms S and I am satisfied that the mother’s level of anxiety would diminish it she were living in the United States of America, supported by her parents and other relatives and having less frequency of dealings with the father.
It is submitted on behalf the father that there is no evidence to suggest the mother is not coping as a parent currently in Australia. I accept that as a proposition however I also accept the mother’s own submissions where she states that she is able to effectively remain strong because there is a glimmer of hope she will be permitted to relocate United States.
The other important aspect when considering likely effect of any change is whether the father has the ability to move to the United States.
He was asked on a number of occasions under cross-examination whether he would move and he repeatedly stated that he would have to “cross that bridge” in the future and that he would like to discuss any move with the mother.
Currently the father is engaged in primary industry. He has a good deal of experience within the industry. His evidence is that he has great potential in his current project in Australia.
The mother gives evidence as to how she suggests the father could move to the United States. It would require a change to work within his industry. There is no evidence that the father has any experience in that aspect of the industry.
The mother is also of the view that the father would likely gain permanent residency. I am not satisfied that there is any foundation for that view. Accordingly I cannot make that finding.
The father makes no proposal in relation to his time with the child in the event the mother is permitted to relocate United States. His evidence is clear however that he wants to spend as much time as possible with the child whether the child lives in the United States or remains in Australia.
When it was put to him that spending as much time as possible with the child would include him moving to the United States the father responded that he would like to discuss this with the mother. The father gave evidence that he had concerns that if he moved and could not find work then he would not be able to support his son.
I am satisfied on the evidence that the father is committed to spending as much time as possible with this child and that he would make any and all attempts necessary to remain living in close proximity to the child in order to fulfil this commitment.
I am not satisfied on the evidence that the father would not move to the United States. His answers in cross-examination were consistent in my view with a finding that he would move and that when the time came he would discuss such a move with the mother.
Having made those findings I am satisfied that the mother’s proposal to relocate to the United States of America although having some disadvantages to the child is nevertheless the proposal that would meet the best interests of the child.
I am not satisfied that it is in this child’s best interests for there to be an equal time arrangement. I am also not satisfied that it is in this child’s best interests for there to be substantial and significant time between he and his father in Australia in circumstances where that time would be impacted upon the ongoing level of anxiousness present in the mother.
I am satisfied that the mother would become less anxious in her dealings with the father, even if he were to move to the United States of America, because she would have the benefit of close family supporting her on a day-to-day basis.
If the father’s proposal were adopted there would be no practical difficulty and expense that would eventually affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Clearly if the mother were permitted to relocate to the United States of America with the child this would create not only a practical difficulty but also increased expense which has the potential to substantially affect this child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Both parents earn a very reasonable income and have the capacity to meet those expenses associated with international travel. Obviously by virtue of the fact that the child would be living in another country the opportunity for the child to spend time with his father on a regular basis would be limited unless of course the father were to move to the United States of America.
Whilst the mother continued to raise some concerns about the father’s capacity to appropriately provide for the needs of this child the evidence does not support a lack of capacity. Indeed the mother conceded that her concerns were primarily based on historical data available to her at a time when she was in a relationship with the father.
Importantly the mother gave oral evidence that she believed the child was well cared for by the father.
The father submits that there is no evidence to suggest that the mother has a limited capacity to care for the child for any reason but in particular due to any anxiety she may be suffering and I accept that.
I am therefore satisfied on the evidence that both parents have the capacity to provide for the needs of this child.
I am not persuaded on the evidence that there is any aspect of either parent lifestyle maturity or background which would have a negative impact on this child’s life. I am satisfied that both parents have a very positive attitude to the child and to their responsibilities as a parent and that they have been able to demonstrate that since at least December 2019.
I am satisfied that the parents dysfunction brought about the strained and difficult relationship the child initially had with his father post separation and until December 2019.
As I previously stated I am satisfied that there was family violence on occasion by both parents against the other during the relationship and that the family violence is limited to situational couple violence present during the time they lived together.
There is a protection order in place protecting each of the parents against the other and that will remain in place until November 2021. I note that the protection orders were consented to on a without admission basis. The orders I have made are not inconsistent with those protection orders.
I do have concerns that if I were to make orders consistent with the father’s proposal due to the parents’ limited co-parenting relationship it would likely bring the parents into conflict and as a result most likely lead to further litigation. I am not of the view that the same would be true if the mother’s proposal regarding relocation were accepted.
The child currently is supported in the mother’s home with an au pair. The mother has employed a number of different au pairs since separation. It is the mother’s case that she would live in City E and work in City B and that the care of the child would be supported by the maternal grandparents and other members of the maternal family.
The maternal grandparents gave evidence that they would be heavily involved in the day-to-day care of the child whilst the mother worked full-time in the United States. As I previously said I am satisfied that the child has a relationship with the maternal grandparents but more importantly I am satisfied that the support of the maternal grandparents would be of great benefit to this child.
It is relevant to consider that the mother’s proposal to relocate does not take effect until December 2021. As a result the child’s relationship with his father will further develop.
The father argues that the mother does not facilitate the child’s relationship with him however both the mother and the father and indeed the au pair all provide evidence that this child has a very good relationship with his father. This relationship has developed despite the dysfunctional nature of his parent’s relationship.
The fact that the mother is willing to postpone her relocation to the United States and allow this child’s relationship to further development is evidence in my view that supports a finding that the mother does accept that the child should have a meaningful relationship with his father as assessed by Mr M and that she will do all things reasonably necessary to ensure that that meaningful relationship is fostered and nurtured moving forward.
The mother also gives evidence that she would be in a far better financial position in the United States due to an increase in her wage, a lessening of her expenses and cheaper private schooling. Based upon the mother’s evidence I accept that to be the case and that this will have an added benefit to this child.
The father seeks an order that the orders I make be registered in City B. The mother agreed that she would take all steps necessary to register the orders in City B.
The father seeks an order that until such time as the mother produces evidence of the registration of the filing of the parenting orders made in a competent court exercising family jurisdiction in City B, USA such that the orders made are enforceable by such court, the child cannot travel outside of the Commonwealth of Australia.
The father has consented to the child travelling to the United States previously upon the mother’s undertaking to return the child to Australia. This child does not need any further conflict in his life and to that end I am satisfied that it is in his best interests that the orders I have made be registered in City B as soon as possible. I have therefore made an order that the mother must register the orders I have made within 28 days.
Parental Responsibility
Both parents seek an order for equal shared parental responsibility. However the mother’s proposed order provides the following caveat:
“provided that if the father fails to make a genuine attempt to come to a joint decision with the mother in respect of an issue within 28 days of the mother communicating her position in writing to the father, and the mother is at liberty to exercise parental responsibility in respect of that issue.”
There is ample evidence to support a finding that at times both the mother and father have simply ignored communications from each other and that as a result arrangements for the child have been impacted.
Indeed the most recent failure to communicate related to the mother’s attempts to engage with the father about private schooling in Brisbane. The father’s oral evidence on this issue was that he did not see the point in communicating with the mother about that because she wished to move to the United States. As a result the parents were not able to agree on a private school should the mother remain in Brisbane with the child.
This child is very young, currently four, and there will be a necessity to make important long-term decisions for him for some considerable period of time. A failure to communicate effectively between his parents could have a major impact on this child’s life particularly with regards to schooling and his health care.
As a result of the orders I have made the child will predominantly live with his mother. Whilst I accept that both the mother and father are desirous of improving their co-parenting relationship the evidence as it currently stands does not give me much confidence that they will not fall into dispute again the future.
In those circumstances one of the parents should be given the opportunity to make an important decision if agreement cannot be reached. As the child will be living predominantly with his mother that responsibility should fall to the mother in my view. Accordingly I have made an order consistent with the mother’s proposal.
As I have made an order for equal shared parental responsibility the provisions of section 65DAA are triggered.
In MRR v GR [2010] HCA 4 at [13] the High Court held:
[13] “Section 65DAA (1) is expressed in imperative terms. It obliges the court consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination is a question of fact that it is reasonably practicable that equal time he spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2) (a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
This child has always lived primarily with his mother. He is a young child who has had limited time with his father for the reasons previously mentioned but who is also gradually increasing his time with his father.
The father through his proposal acknowledges that it is too soon at this stage for the child to live on an equal shared care basis. It is the father’s proposal however that the child live in a shared care arrangement by September 2021. At that time the child will be four years and nine months old.
As I previously set out this child’s parents have a significantly dysfunctional relationship. It is in this context that Mr M supports a gradual increase in the child’s time in six monthly increments that would ultimately culminate in the child spending five nights per fortnight with his father. That is Mr M does not support an equal time arrangement.
As I said previously equal time arrangements are best supported where parents have very effective co-parenting relationships and can be flexible with each other. These parents do not have that type of relationship nor can they be flexible with each other, indeed it seems they are incredibly inflexible with each other. Furthermore the mother is quite clearly very anxious around her dealings with the father.
In those circumstances the evidence does not support a finding that it is in the best interests of this child for him to live in an equal time arrangement.
As to whether such an arrangement would be reasonably practicable one must have regard to section 65DAA(5). Currently the parents live within close proximity to each other. The evidence establishes that they have struggled to implement an arrangement for the child spending time with each parent and they struggle to communicate effectively for the benefit of the child. Furthermore the impact of an equal time arrangement would see these parents interacting with each other on a more frequent basis and having regard to their current relationship this would be most disadvantageous to the child.
For these reasons an equal time arrangement is not reasonably practicable.
Mr M supports an arrangement whereby this child would be spending substantial and significant time with both of his parents, living with his mother and spending time with his father.
As I said previously I am satisfied that such an arrangement is in the best interests of this child. I am satisfied on the evidence that the mother’s capacity to support such an arrangement if she were to remain in Australia is impaired and that this would have a negative effect on the child.
With appropriate support, a strengthened financial position and less anxiety the mother could no doubt support such an arrangement in the future. I am satisfied that the mother would be better supported and have a strengthened financial position if she were to live in the United States and in those circumstances should the father move to the United States I am satisfied that it is in the child’s best interests for him to spend substantial and significant time up to and including five nights per fortnight and half holiday time with the father. Indeed the mother gave evidence that she would support such an arrangement in the event the father moved to the United States with sufficient proximity to the child’s residence.
In my view such an arrangement would be reasonably practicable in the United States but not in Australia. In Australia the arrangement would be negatively impacted upon the continued anxiety the mother would suffer due to her lack of support, more strained financial position and the overall unhappiness in Australia.
With appropriate familial support I am satisfied that the mother’s overall anxiety would reduce and as a result the parent’s ability to communicate would be positively affected such that a substantial and significant involvement in the child’s life by the father would be reasonably practicable.
For these reasons I am satisfied that the orders the mother seeks at annexure A to her case outline filed on 18 May 2020 in relation to her permitted relocation to the United States of America are in the best interests of the child.
PROPERTY
This was a very short relationship of approximately 3 years with some separations during that time. The parents did not purchase any joint property during relationship nor did they have a joint bank account.
The parties moved into the mother’s flat at the commencement of cohabitation and used the mother’s furniture. Upon separation there was no distribution of any assets.

Annexure C to the written submissions filed on behalf of the applicant is a balance sheet. Annexure “-11” to the mother’s affidavit filed of April 2020 is the mother’s balance sheet. There are some differences in the balance sheets however it is apparent that the major asset of the parties is their respective superannuation. The applicant asserts that the net assets and super total approximately $274,706 and the respondent asserts that the net assets including super is approximately $293,500.84.
On page 2 of the respondent mothers tender bundle is a joint balance sheet. That provides evidence that the applicants estimation of the net pool inclusive of super is $240,446.93 and the respondent’s estimate of the net pool including super is $274,935.14.
On page 56 and 57 of the applicant’s tender bundle is another schedule of net assets and superannuation wherein the applicant estimates the net assets and superannuation at approximately $256,758.
There was absolutely no cross examination of either party in relation to the assets or liabilities. What is clear is that the non-superannuation assets of both parties relate primarily to cash in bank accounts, shares and chattels of limited value.
Both parties seek to include loans owing to friends and family. Again neither party was cross-examined in relation to these loans. The only evidence relating to any of the loans comes through Mr O, the maternal grandfather who says he has provided approximately US$80,000 to his daughter and that he would like that repaid from any property settlement received by his daughter or if that is not possible he will require his daughter to repay the amounts over time. In light of the limited evidence relating to the alleged loans I am unable to make any finding as to whether the loan exists or not.
As a result of the numerous balance sheets that are before the court and the lack of any cross-examination in relation to the balance sheets it is impossible for me to make a finding as to the legal and equitable interests either party has in relation to property except where values are agreed. However as the agreed values vary across the difference balance sheets I cannot make a finding with any precision.
The evidence establishes that the parties shared expenses along the way but does not establish that either party made any contribution to any asset owned by the other. In short they contributed to their day-to-day lives at various levels from time to time.
The applicant asserts that he had approximately $100,000 in cash and shares at the commencement of the relationship. He conceded in cross-examination that he had approximately $38,000 in one bank account but nevertheless maintained his assertion that he had approximately $100,000 in cash and shares at the commencement of the relationship.
The respondent had limited assets at the commencement of the relationship again consisting mainly of chattels, a modest motor vehicle and some cash in bank accounts.
The evidence does not satisfy me that either party has made any meaningful impact upon the assets or liabilities of the other as a result of this relationship.
In Stanford v Stanford [2012] HCA 52 the High Court said:
[36] “the expression “just and equitable” is a qualitative description of the conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. And while the power given by s 79 is not “to be exercised in accordance with fixed rules, nevertheless, three fundamental propositions must not be obscured.”
[37] “ first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interest of the parties in the property. So much follows from the text of s 79 (1) (a) itself, which refers to “altering the interests of the parties to the marriage and the property”. The question posed by s 79 (2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order”.
[38] “second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion……………
[39] “Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable”to make the order is not to be answered by assuming that the parties rights to or interests in marital property are or should be different from those that exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “community of ownership arising from marriage has no place in the common law. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons were not spouses”. The question presented by s 79 is whether those rights and interests should be altered.”
[40] “third, whether making a property settlement order is “just and equitable”is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79 (4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable”only because of and by reference to various matters in s. 79 (4), without a separate consideration of s. 79 (2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”
It is difficult to make a finding as I said in relation to the first of those three fundamental propositions. I accept that neither party has a right to the property of the other.
I also accept what their Honours said at [42]:
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of a choice made by one or both of the parties, the husband and wife are no longer living in marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express in implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship……”
In this matter the parties were not married they were in a de facto relationship. Section 90SM(3) is couched in identical terms to section 79(2). In those circumstances the decision of Stanford applies equally to de facto matters.
At the end of this de facto relationship the applicant left the home in which he had been residing with the respondent. There was no property owned by them together. The applicant retained his property and the respondent retained her property.
The parties contributed to each other’s living expenses only. They did not contribute to any property held by either of them. It is appropriate having regard to the very short duration of this marriage to have a closer examination of the party’s financial contributions but in doing so they should be examined with reference to any item of property that they own.
In very short relationships it is often the case that the parties retain the assets with which they came and nothing more. (Anastasio & Anastasio (1981) FLC 91-093; Bushby & Bushby (1988) FLC 91-919 and McMahon & McMahon (1995) FLC 92-606).
Neither party contributed to the other’s asset in either a positive or negative way. They simply lived together for a short period of time and then separated.
The evidence establishes that they have both been able to continue on with their lives as if the relationship did not occur in the sense of their ability to support themselves financially. Indeed the mother has continued to engage an au pair post separation and provides evidence that if she relocates to America she will be in an even stronger financial position.
The applicant seeks an order that each party retain the property in their possession and control. The respondent seeks an order that if she were permitted to relocate to the United States she receive a cash sum of $143,000 within 30 days or in the alternative a superannuation splittable payment in the sum of $143,000.
There is no evidence that the mother has contributed to the father superannuation.
I am not satisfied that it is just and equitable to make an order under section 90SM(1) and accordingly I will not make the order sought by the respondent.
I am required pursuant to section 90ST to make such orders as will finally determine the financial relationship between the parties to the de facto relationship. The orders sought by the applicant will achieve that purpose and accordingly I make orders consistent with the orders sought by the applicant as set out in his case outline filed 25 August 2020.

I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Middleton.
Associate:
Dated: 18 November 2020

[2020] FCCA 3137

18 November 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Costs

File number(s):	BRC 10322 of 2018
Judgment of:	JUDGE MIDDLETON
Date of judgment:	18 November 2020
Catchwords:	FAMILY LAW – Parenting – Property – where there is one child of the relationship – where there was a relationship of approximately 3 years – where the mother seeks to relocate internationally – whether it is just and equitable to adjust the parties property interests.
Legislation:	Family Law Act 1975 (Cth) pts VII, VIIIAB, ss 60B, 60CA, 60CC, 65DAA, 79(2), 90SF(3), 90SM, 90ST.
Cases cited:	Anastasio & Anastasio (1981) FLC 91-093 Bushby & Bushby (1988) FLC 91-919 McMahon & McMahon (1995) FLC 92-606 Godfrey v Saunders (2008) FLR 287 Goode & Goode (2006) FLC 93-286 Taylor & Barker (2007) FLC 93-345 Morgan & Miles (2007) FLC 93-343 Mulvaney & Lane (2009) FLC 93-404 McCall & Clark (2009) FLC 93-405. Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Sayer & Radcliffe [2012] FamCAFC 209 Stanford v Stanford [2012] HCA 52
Number of paragraphs:	185
Date of last submission/s:	3 September 2020
Date of hearing:	25, 26 and 27 May and 20 July 2020
Place:	Brisbane
Counsel for the Applicant:	Mr Linklater-Steele
Counsel for the Respondent:	Mr Drysdale
Solicitor for the Applicant:	Naughton McCarthy Family Lawyers
Solicitor for the Respondent:	Hopgood Ganim Lawyers

ORDER MADE BY:	JUDGE MIDDLETON
DATE OF ORDER:	18 NOVEMBER 2020