PEERS & HEMSLEY

FAMILY COURT OF AUSTRALIA

PEERS & HEMSLEY

[2020] FamCA 25

FAMILY LAW – CHILDREN – Parenting Orders – International Relocation – Where the mother, father and children live in Australia – Where the mother seeks to relocate with the children to New Zealand – Where the father and Independent Children’s Lawyer oppose relocation – Where the mother’s application to relocate the children’s permanent place of residence is dismissed

FAMILY LAW – PROPERTY – Property Orders - Superannuation Splitting Order –husband’s superior income mandates a significant adjustment to wife’s contribution-based entitlement to property

Family Law Act 1975 (Cth), ss 60B, 60CC(2), 60CC(3), 65AA(5), 75(2)

Ferraro & Ferraro [1992] FamCA 64
Goode v Goode [2006] FamCA 1346

Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-145

Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275

APPLICANT:

Mr Peers

RESPONDENT:

Ms Hemsley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

5215

2017

DATE DELIVERED:

24 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

26, 27, 28, 29 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Giacomo

SOLICITOR FOR THE APPLICANT:

Burridge & Legg Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Clifton

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

All previous parenting Orders are discharged.
The mother’s application to relocate the primary residence of the children X born ... 2011 and Y born ... 2003 is dismissed.
The parties have equal shared parental responsibility for the children.
The children live with the mother for three weeks out of four and with the father for the fourth week and at other times as agreed.
The children spend one half of each school holiday period with the parties, being for the first half with their father in 2020 and each alternate even year thereafter, and with their mother the first half in 2021 and each alternate odd year thereafter.
Both parties do all acts and sign all documents necessary to cause the children to obtain a New Zealand citizenship and a New Zealand passport forthwith.
Both parties do all acts and sign all documents necessary to ensure the children’s Australian and New Zealand passports are maintained and updated.
The father to retain the Australian passports and the mother to retain the New Zealand passports.
The mother is permitted to holiday with the children when they are in her care on any occasion she so desires to New Zealand by giving the father 28 days’ notice in writing of her intention to travel to New Zealand, together with a copy of the travel itinerary and return air flight tickets, passports the children are travelling with, and that that such travel must not interfere with the children’s school unless the father so consents.
The parties may travel out of the Commonwealth of Australia during any period of school holidays when the children are in their care provided they provide to the other parent 42 days’ notice of their intention to travel overseas, a copy of the itinerary and return air flight tickets, and passports the children are travelling on.
The parties may by agreement provide for the children to spend Mother’s Day and Father’s Day, respectively, in the care if they are not already living with them on those weekends.
In relation to the children’s birthdays, the parent with whom the children are not living may spend time with the children, on a school day, from after school to 8 pm and on a weekend or non-school day from 12 noon to 5 pm.
In relation to the parents’ respective birthdays, if the children are not living with that parent they are to telephone the parent as agreed and neither parent will unreasonably withhold the children from spending time with the other parent on their birthday.
The children to have Skype, FaceTime or telephone communication with the father as agreed and failing agreement between the hours of 6.30 pm to 7.30 pm on Tuesdays and Thursdays, with the father to instigate such calls. The mother is to provide the children with privacy on those calls and is not to restrict where the children make those calls.
Both parties are to do all acts and things to ensure no third party denigrates either parent in the presence of or hearing of the children.
The father is to continue to provide his work roster to the mother within 12 hours of it having been received by him.
In so far it is necessary both parents are at liberty to attend any of the children’s school functions to which parents are invited.
Each parent is entitled to receive at their expense copies of school notices, information newsletters, school reports and the like directly.
In the event the children are suffer any emergency treatment the other parent is to be notified forthwith.

Property Orders

The husband pay to the wife the sum of $33,000 within three calendar months of today’s date less the sum of $6,162 being the wife’s share of the Independent Children’s Lawyer’s costs and thereafter he is entitled to all assets in his name including, but not limited to, the boat, Boat 1.
The wife execute all documents necessary to cause any interest she has in the business known as B Pty Ltd to be transferred to the husband at the same time as the husband pays the wife pursuant to Order 20.
The wife to sell the business licence in her name within three calendar months of today’s date, and upon sale the net proceeds of that sale are to be divided 70% to the wife and 30% to the husband
The husband pay the Independent Children Lawyer’s costs in the sum of $6,162 at the same time as he pays wife her entitlement to property pursuant to Order 20.
In relation to Superannuation entitlement of the parties:
(a)A base amount of $150,000 is allocated, as required by s 90XT(4) of the Family Law Act 1975, to the wife out of the interest of the husband’s Superannuation Fund.
(a)In accordance with section 90XT(1)(a) of the Family Law Act 1975, the Trustee of the Fund (“the Trustee”):
(i)Creates an entitlement on the part of the wife to be paid into her nominated superannuation fund in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
(ii)The husband’s entitlement in the Fund (or the entitlement of such other person who becomes entitled to receive a payment out of the father’s superannuation interest) is correspondingly reduced;
(iii)Whenever the Trustee makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 24(a) of this Order in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and
(iv)Orders effect from the operative time and the operative time is four business days after a certified copy of the sealed Orders are served on the Trustee.
The wife to retain the unit at K Street, Suburb J where she and the children currently reside, and retain her two motor vehicles, being the Motor vehicle 1 and the Motor vehicle 2.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5215 of 2017

Mr Peers

Applicant

And

Ms Hemsley

Respondent

REASONS FOR JUDGMENT

The matter of Peers & Hemsley is an application by a mother for both property settlement and to remove the parties’ children, X, born in 2011, and Y, born in 2013, to New Zealand to live in City D, where the mother’s family live and where she was born. The father objects to the relocation.
The parties agreed that in the event I did not permit the mother to relocate, the current regime of time the children have with their parents, being one week with their father in each of week three of his roster and one week in each of week five of his roster continue and, otherwise, the children live with their mother. The parents agreed to share parental responsibility no matter the outcome of these proceedings.
Ms Giacomo of Counsel acted for the applicant father, Mr Clifton of Counsel acted for the mother, and Ms Messner of Counsel appeared as Independent Children’s Lawyer. At the conclusion of the hearing, the Independent Children’s Lawyer submitted that the mother not be permitted to relocate to New Zealand with the children.
The mother, father, maternal grandmother, the mother’s sister, Ms A, the paternal grandfather and Dr E, were all cross-examined at trial.

DOCUMENTS RELIED UPON

The evidence I read was as follows. For the father:
a)Initiating Application, filed 11 August 2017;
b)Affidavit, filed 28 August 2019;
c)Financial Statement, filed 28 August 2019;
d)Affidavit of the paternal grandfather, Mr F, filed 23 January 2019;
e)Affidavit of the paternal grandmother, Ms F, now deceased, filed 23 January 2019; and
f)A case outline.
For the mother:
a)Amended Response, filed 20 March 2018;
b)Notice of Risk, filed 26 September 2017;
c)Affidavit, filed 31 October 2019;
d)Affidavit of the maternal grandmother, Ms C, filed 19 October 2019;
e)Affidavit of the maternal aunt, Ms A, filed 22 October 2018;
f)Affidavit of the maternal father was not relied upon; and
g)A case outline.
The exhibits were as follows. For the father:
a)Father’s exhibit 1, a letter from his solicitors in relation to his legal costs which are mercifully a modest sum of $45,000, dated 25 November 2019.
For the mother:
a)Mother’s exhibit 1, a print out from the web in relation to travel costs to New Zealand.
b)The mother tendered a minute of order in the trial. That was not marked as an exhibit but was relied upon at the hearing.
c)Mr Clifton’s costs notice was not tendered at trial, however a copy was emailed to my Associate on 2 December 2019.
For the Independent Children’s Lawyer:
d)ICL Exhibit 1, a costs memo. The Independent Children’s Lawyer seeks payment of their costs in the sum of $12,324.80 to be equally paid by each in the amount of $6162.40;
e)ICL Exhibit 2, proposed Minute of Order; and
f)An agreed balance sheet was tendered at trial however was not marked as an exhibit.
A Report was prepared by Dr E, dated 27 February 2019, together with an addendum to that Report, dated 27 February 2019. The Report and the addendum was marked court exhibit 1.

RELEVANT CHRONOLOGY

The father was born in 1972, aged 47.
The mother was born in 1974, aged 45.
In 1999, the father established a business known as B Pty Ltd.
The mother came to Australia in April 2000.
The parties commenced cohabitation in 2008.
X was born in 2011 and Y was born in 2013.
The parties separated on 4 May 2017.
In about 2009, the father commenced working for G Pty Ltd, initially in Melbourne and then in Sydney after X’s birth in addition to running his own business.
The father’s roster was explained at the trial. He works two weeks, has a week off, works for two weeks and then has three weeks off. The weeks off are not free time.
The parties purchased their former matrimonial home at H Street, Suburb J (“H Street property”) in 2010.
The father sold assets he had acquired prior to the relationship and the mother mortgaged her unit at K Street, Suburb J (“K Street property”) to fund the purchase of the property together with a mortgage.
The mother ceased work when X was three months of age and she commenced working in the marine business with the father. The mother carried out the bookings, organised charters, made sure that what was required for a charter was available and otherwise ran the financial end of the business. The father rather more attended to the boating side of the business.
The parties purchased a boat called the “Boat 2” for $120,000 in July 2011 and spent about $80,000 upgrading it for business charter purposes. The money needed to fund this project was borrowed and secured over H Street property.
In 2015, the company purchased by way of shares Boat 1 for $386,000, and again, money was borrowed using H Street property as security to fund the purchase.
On 1 April 2019, Boat 2 was sold for $43,000, the parties having spent $200,000 on its purchase and upgrade. Boat 1 has been valued at $205,000 despite the parties having purchased it for $386,000 in 2015.
It is clear their business flourished under the mother’s management combined with the father’s skill set. However, post-separation when the parties were no longer each working in the business, the business income and value has diminished and it no longer produces the income it did during the marriage.
In December 2014, the father’s friend takes his life which has a deep impact upon the father, and he has at times drank alcohol to excess. On one occasion, he did not come home all night and the mother called the police. He and was found under a tree. At this time the mother had two young children and the father, due to his emotional distress, was not available to her and indeed made her parenting and business contributions role even harder.
On 26 April 2015, the maternal grandmother visits from New Zealand and again in August 2015, October 2015 and March 2016. I accept the mother needed her mother’s support at this time given the father’s emotional state.
In April 2017, the mother leaves for New Zealand to attend a funeral and left the children in the care of the father and his mother.
The parties separate on 4 May 2017.
The mother commences work on a part-time basis with L Organisation in July 2017.
In 2017, the mother’s health is significantly impacted from pneumonia and psoriasis, no doubt due to the marriage breakdown, the financial stress both parties were suffering at that time and her general anxiety. Her health has now recovered.
In October 2017, the father carries out a foolish act and enters the former matrimonial home without notice to the mother. This, combined with him having removed cameras which had allowed the mother to see who was entering the property, has caused her significant concern. His actions have resulted in the mother no longer trusting the father, such that she would not let the children have FaceTime with their father unless they were sitting in front of a blank wall as she did not want the father to see the home she was living in, being her pre-marriage owned apartment. The mother said in evidence that her home is her sanctuary.
The mother complains that the father did not have life jackets on the children and brings a Contravention Application on 20 April 2018. That application was dismissed by Her Honour Justice Rees on 2 August 2018.
On 1 April 2019, Boat 2 was sold for $43,000, the parties having spent $200,000 on its purchase and upgrade. Boat 1 has been valued at $205,000 despite the parties having purchased it for $386,000 in 2015.
The former matrimonial home was sold on 9 April 2019 for $1.45 million which discharged loans in respect of the two vessels, Boat 2 and Boat 1, together with the mortgage on the home, leaving a shortfall of $16,000 on the sale which the father negotiated to nil.

Property

I will deal with the property application prior to the parenting application in relocation matters. No matter what Order the Court makes one party will be bitterly disappointed with the outcome of the proceedings.
The parties’ assets are as follows:
a)The parties agree the mother’s unit at K Street, Suburb J is worth $662,500. This property was purchased by the mother prior to the marriage and she and the children currently reside at that unit.
b)There is a vessel called “Boat 1”, worth $205,000.
c)The value of the parties company B Pty Ltd, is of nil value.
d)The mother has a Motor vehicle 1 worth $9,500 and a Motor vehicle 2 worth $10,000.
e)I have taken the father’s Motorcycle out of the balance sheet as the debt in relation to that bike is almost its value.
f)The mother has a business AA licence, the value of which is unknown, however I will order her to sell that license and the proceeds to be divided in accordance percentage division of the property as a whole that I determine.
g)There are M Bank shares worth $319 as at November 2019 in the mother’s possession.
h)Otherwise, all other assets in the balance sheet are monies and bank accounts acquired post-separation and I will not have regard to those sums.
i)The gross assets amount to $887,319
j)Liabilities:
a)Mortgage over the Suburb J property of $313,280.
b)Otherwise, all other liabilities in the balance sheet are the party’s debts acquired post-separation or, for example, the mother’s legal fees which no matrimonial money was used to fund.
This is a net asset pool of $574,039.
There is some $515,919 in superannuation of which the father has $406,938, and the mother has $108,981.

THE FATHER’S WORK AND ROSTER

The father has the first week off and the second three weeks off in his 8 week roster. However, he father must be on call 24 hours a day during 3 of those weeks, must be no more than two hours from work, must not have consumed alcohol and the like, and must be ready to be called in to work.
In one of these four weeks, he is not on call. However, if there was an emergency, he may be called in if there was insufficient staff on call to fulfil his company’s obligation to the government agency in relation to emergency services.
The father took me to his work schedule attached to his exhibits. In an eight week cycle his work timetable is as follows:
a)The days/weeks marked “flexi 1” are days/weeks where he is assigned as team one. These are his on call days/weeks and he can be called to work at any time on two hours’ notice.
b)The days/ weeks marked “flexi 2” are days/weeks where he is assigned to team two and he must be on standby around the clock on those days/weeks.
c)The days/weeks marked “flexi 3” are days/weeks where he is assigned as team three, which are again days in which he can be called in at any time around the clock.
d)The days/weeks marked with an “X” are weeks of leave and these days/weeks are clear for him.
Although the father has much downtime from his work, he is on call for three of those downtime weeks. Effectively, he has one week off in each month and that is the week he has the children in his care. This is the arrangement the parents have come to and by all accounts this is working well for the children. Additionally, the father has recently begun to assist the mother to collect and deliver the children to and from school to assist her with her work in his on call weeks, and each parent reported at the trial that this was working well.

THE MOTHER’S EVIDENCE

The mother has two part-time jobs. She works for L Organisation and carries out building maintenance at Suburb O, earning a modest income approaching $1,000 per week.
The father has a good income. He earns $3,736 gross per week. His income is four times that of the mother. The father pays child support and continues to pay child support in the assessed amount, and this varies according to his income.

Child support is sometimes $325 a week, sometimes it is $400 a week, and currently is about $365 a week.
It is clear that at the commencement of the relationship, the parties had somewhat equal assets and the mother, to her credit, conceded the father’s assets may have been more because he had a boat which was sold. It is also clear that during the relationship, these parties equally contributed by way of providing income for the family. The father with his work at G Pty Ltd, the mother with her income as an email marketing manager for N Group, both parents in their combined work with B Pty Ltd. Shortly after the birth of the children, the mother left her full-time job and carried out the bulk of parenting and homemaking contributions.
I find that consistent with people who are wanting to get ahead, a fact the paternal grandfather gave evidence about, these parents worked extremely hard and, perhaps, pushed themselves to a point which caused a fracture in their relationship. However, there was nothing other than an equal contribution of effort by each during their relationship to their assets.
In relation to the K Street property, that unit was owned by the mother prior to the relationship, and the father’s contribution to the current value of that property has been limited in that, I accept the property was rented out during the relationship and outgoings were paid from that rent.
I accept at times there was a shortfall of necessary outgoings over income. Neither parent could quantify this figure and this lack of evidence lay at the feet of the mother given it is a property in her name. I accept the father’s evidence that it was not always tenanted, and the mother agreed and that the parties made up the shortfall. A hot water system needed to be replaced, the father purchased and installed it at the unit and there was other maintenance work which the father carried out on the property.
Thus, I find the father has made a contribution to this asset during the marriage, and the benefit of there being sufficient equity in it to enable the parties to raise money to put towards the purchase of the former matrimonial home, and that it is a matrimonial asset, however, his contribution is of small compass.
In relation to the parties’ business, I find there has been an equal contribution to the value of that business as each worked in their various roles in that business to maximise its income.
The wife has made significant contribution to the husband’s current employment and supported him to obtain this much sought after position.
The mother is justifiably dismayed, and this dismay is shared by the father at their current modest pool of assets.
The former matrimonial home was sold on 9 April 2019 for $1.45 million which discharged loans in respect of two vessels, Boat 2 and Boat 1 and the mortgage on the home still leaving a shortfall of $16,000 on that sale. The husband negotiated that debt to nil.
The parties had purchased Boat 2 for $120,000 in July 2011 and spent about $80,000 upgrading it, and in 2015 the company purchased shares in Boat 1 boat at a cost of $386,000.
On 1 April 2019, Boat 2 was sold for $43,000 and Boat 1 was valued at $205,000 despite the parties having purchased it for $386,000 in 2015. Thus, one can clearly see the cause of the rapid diminishing of the parties’ asset pool.
There is no doubt that the diminution in the value of Boat 2 was due to water leakage into the boat, the boat nearly submerging in heavy rain in 2018, and the batteries not being charged which resulted in the bilge pump not working and thus water was not pumped out of the hull. This was the father’s evidence and was accepted by the mother and they agreed at sale it was in a very poor state of repair. The issue for the mother was who was responsible for this state of affairs.
Similarly, with Boat 1, this vessel has not been maintained as it was whilst the parties’ relationship was on foot and its condition has also deteriorated. In relation to Boat 1, the father was prepared to accept it was worth $350,000 prior to the trial. The mother said it was worth $450,000. A valuation was ordered, and it was valued at $205,000.
The mother says the deterioration of Boat 2 was due to the father simply letting things go and not maintaining it. There may be a grain of truth in this in that it was fairly clear to me the father did very little maintenance work on Boat 2 from his own evidence. However, the reality is that both these boats had been maintained by an employee of B Pty Ltd when the parties were operating the company. The employee had carried out that job well and that the boats were in good condition, or as good a condition as a boat can be when it is on a swing mooring. Subsequent to separation, the wife no longer worked in the business, the charter business no longer being as well managed as it had been, charters and income being lost, the husband being unable to carry out all the aspects of the business including maintaining the boats and his employment as a specialist manager, the vessels were let go, and necessary and regular maintenance was not carried out.
The mother says the father is solely responsible for this diminution in the value of Boat 2 and that I should in some way sheet that home to him.
The issue about the business and the responsibility if any for its downfall was fraught for me. The father said he had to cut the mother off at a point in time because she was sabotaging the business, and having seen the mother in the witness box, it is clear she could do that as she has a keen business mind and likely ran rings around the father when it came to managing the business.
I accept the mother did make comments to potential customers that she was no longer involved in the business and they would have to contact the father and that he was left unable to manage the totality of the business. The father did not appear to have a deep understanding of the books of account and like for the business, whereas the mother clearly did.
I see this is one of the reasons the business failed. The parties were no longer running it together, each using their specific and important skill set to maximise the turnover and income produced by the business. I cannot see on the evidence that either the father or the mother are more to blame if that be the appropriate word for the current state of their business and that the significant downturn in the business has been a consequence of their marriage breakdown.
That is why this business failed. Their marriage and their relationship broke down. When a boat sits on its moorings for two years, as Boat 2 was, it will deteriorate if it is not maintained. I accept it was not maintained due to insufficient income to pay the person who had maintained the business previously. The parties were in a vicious cycle and I accept the father could not maintain his job, solely maintain the boats, solely run the business and spend important quality time with his children without the invaluable assistance of the mother.
On the evidence I have formed the view that B Pty Ltd was a joint endeavour of the parties. Whether the father, as the mother says, cut her out of the business or not, it was clear from her Affidavit and evidence, that she was no longer going to be involved in the business as she had been.
The mother agreed in cross-examination that just before separation she had wanted out of the business and told the father this. Her post-separation conduct bought her wish into effect and she now seeks to sheet home to the father the diminution in the value and income of that business.
It became clear in cross-examination that the mother knew full well both boats needed repairs and the father had told her via email he could not afford the repairs. The evidence was that for Boat 1 repairs were some $14,450. The mother’s response was, “He got money for an insurance claim of $23,000. He should have spent it on that.” However, at this time the mother was no longer involved in running the business and it is clear from his evidence he was in a very difficult financial position, supporting all the mortgages, maintaining the former matrimonial home as best he could, and paying child support. The father’s Affidavit speaks of having his father assist him to run the office part of the business however that was insufficient as well.
There was an offer to purchase Boat 2 after separation in about July 2017 for $250,000 and the deal fell through. The father said that because the mother wanted $50,000 for the business AA licence and she was adamant on this point yet it had only been purchased for $8,000. When cross-examined on this, the mother said the father had told her a business AA licence was worth $1,000 per person and given the capacity of Boat 2, this licence was worth more than $8,000. This is an example of why the business failed. The parties could not agree and it would have been very much to their benefit to have sold Boat 2 for $250,000 in 2017 and the business AA licence for whatever they could have got for it and it is perhaps the mother who is to blame for this.
Much of the maternal grandmother’s evidence went to how unfair the father had been asking the mother to assist him with the business. For example, she said he rang her and asked her to get parts for a boat, which she did when she had two young children to care for, and that this was unfair and disruptive to the children, particularly when he later told the mother he did not need the parts. This description is consistent with the paternal grandfather’s evidence of how hard the parents worked and that their business was fairly onerous. Thus, it is not surprising that when separation occurred, and neither parent could work in the business as they had previously been able to as they were no longer supporting each other that the business suffered downturn.
Further, it was apparent from the father’s Affidavit and oral evidence that without the mother running the back office operations, organising charters and maintaining the books of accounts, he simply could not manage the business even with the assistance of his father. This is further support for the argument that it was a combination of the marriage breakdown and both parties’ actions and conduct that resulted in the diminution business and not a particular act on one party’s behalf.
Additionally, as I see the evidence, the mother has been quite difficult at times. There was an offer to buy Boat 1 with the business BB licence, and the mother was the one who did not accept that particular offer. The mother cancelled the business BB licence unilaterally for Boat 1, because she was concerned that due to changes to the law she would become responsible for any breaches of regulations. The mother took this action after having asked the father to transfer the licence to himself. The mother said she asked him to do this over a period of two months. She had no reply and she took that action knowing what it meant.
The father had to take action to have the business BB licence restored to Boat 1 and that conduct disrupted the business as well. I do not see on the evidence that she was justified at all in the action she took it was pre-emptory and caused the father further difficulty in running and maintaining the jointly owned business.
The business AA licence was purchased for $8,000 for Boat 2, and I find that is likely to be its sale price.
The father said he went on the boats once a month to check and maintain them, but clearly did not carry out much maintenance work as Boat 2 nearly sank in October 2018. I accept that the father was under extreme financial pressure at this time. He was paying a mortgage of $1.45 million, the mother was making no contribution to this debt, and he was paying child support. This was a very difficult time, and the mother showed little understanding of this and continued to maintain that the father in some way designed this situation to cause her maximum distress, when the reality is he simply did not have the money to do what he had done when the parties lived together and their business was producing an income.
The mother’s argument that the father has minimised his income to minimise his child support is disingenuous. During the marriage the parties quite properly used the vehicle of B Pty Ltd to minimise the tax they pay. The father has continued in this vein, thus it is simply unfair of the mother to now criticise the father’s continuing conduct which they both enjoyed the benefit of during the relationship.

THE LAW

Consistent with decisions such as Hickey & Attorney-General for the Commonwealth of Australia[1] and Ferraro & Ferraro[2], there is a four stage approach the Court must engage in to determine the parties’ contribution-based entitlement to their property as set out in section 79 of the Family Law Act 1975 (Cth) (“the Act”).
[1]Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-145.
[2]Ferraro & Ferraro [1992] FamCA 64.
The first stage is to identify the value, nature and species of the pool of assets for division.
The second stage is to ascribe to each party their contribution-based entitlement to the property expressed as a percentage having regard to their direct financial and non-financial contributions, indirect financial and non-financial contributions, and the role of parent and homemaker.
It is may also be important to determine whether one party has made a superior contribution post separation to the assets of the parties or to either of them or the family.
Finally, the Court determines whether there ought to be an adjustment to either party’s contribution-based entitlement for their past contributions having regard to their future needs, often referred to as the 75(2) factors.
Going to the contribution-based entitlement of the parties.
I will deal with the property on a two pool basis. Given the age of the parties, it is many years before they can access the superannuation.
I find that both the mother and father let the business deteriorate to the level it is today and that this is an exigency of a marriage breakdown and a fact that unfortunately does occur to businesses and to parties properly when relationships break down. Therefore, I will not sheet home any greater responsibility for the diminution of this asset to the father than to the mother.
I formed the view that although each parent has made an equal effort to their current assets, the mother has made a superior contribution to the current asset base for the following reasons.
Firstly, the mother owned the K Street property prior to the relationship and there was minimal input of the parties’ joint funds into the ongoing maintenance of that property, although I accept that the father did some minor maintenance work on the property and there were times it was not rented and joint funds met the mortgage.
Secondly, there is no doubt that the mother assisted the father to obtain his current position and supported him in this role as she was the primary parent an homemaker allowing the husband to focus on his career.
Thirdly, her contribution to the business was also made in circumstances where she was the primary parent and homemaker.
These three factors, her significant contribution to the success of the joint business, her initial interest in the K Street property and use of that interest in funding the purchase of the former matrimonial home, her superior parenting and homemaking role and supporting the husband obtaining his current position, have resulted in my finding she has a superior contribution-based entitlement to that of the father. I assess her contribution based entitlement to the current assets at 55%.
Post separation, I do not see either has made a superior contribution over the other.
Going now to the parties’ future needs.
The father earns four times the mother’s income. The mother is 45 and has been out of the workforce in her chosen career for eight to ten years. The father’s career has blossomed during the relationship. He has gone from being a manager to being a specialist manager at G Pty Ltd, a highly skilled, sought after job, for which he is well remunerated and his significant free time which, to his credit, he uses to spend with his children and to assist the mother to care for them at other times.
The mother may never approach the father’s income, no matter what she does, and her income-earning capacity has been significantly impacted by the relationship and her ongoing primary care of two young children, and further the father’s very difficult work roster and him being simply unable to be a full-time parent or even a half-time parent. He now parents the children to the maximum he can manage to do, having regard to his work roster.
In those circumstances, I assess the mother’s 75(2) factors at 15% and I accept the position of her Counsel that her entitlement to property is 70%.
The liquid assets for division prior to the business AA licence being sold is $574,000 70% of that figure is some $401,800 to the mother and $172,200 to the father.
The father has in his control Boat 1 boat, worth $205,000. If he wishes to retain that boat he must pay the mother $33,000 otherwise it is sold and the mother receives $33,000 and the balance to the father.
In relation to the business AA licence, the mother has given a value of $6,000 and the father says $50,000. It is clearly not worth $50,000 as the mother tried to sell it for that amount when they had an offer to sell Boat 2 for over $200,000 in 2018 and that did not eventuate. I will order the business AA licence to be sold by the mother within three months of delivery of this judgment, and upon sale the net proceeds of that sale are to be divided 70% to the mother and 30% to the father.
In relation to the superannuation entitlement of the parties I find that they are entitled to an equality of superannuation and therefore there will be a super splitting order in the father’s superannuation trust to provide for an equal division of the current superannuation as between them which will be an adjustment of $150,000 to the wife.
The father’s evidence was clear he needs a boat with the capabilities of Boat 1 to maintain his business charter licence. I have given the father the opportunity to retain that boat.
These Orders will provide for the mother to maintain her property at Suburb J where she and the children live, her two motor vehicles worth $20,000 and a 70% split of the net proceeds of sale of the business licence.
The father will upon payment to the mother of $33,000, retain Boat 1 otherwise it is to be sold.
The mother will transfer any interest she has in B Pty Ltd to the father forthwith.
The parties will have an equal amount of superannuation as at today’s date. I find in all the circumstances, these Orders are just and equitable having regard to their contribution-based entitlement and their future needs.

Parenting

Going now to the vexed issue of the parenting matter. There is no doubt that the mother’s application to move to New Zealand has substance and such a move is of benefit to her. In moving to New Zealand, she will have the support of her family, she asserts that she will be able to buy accommodation more suitable than a two bedroom unit at Suburb J for herself and the children. Further, she contends that given she will have the support of her family, she will be able to look to obtaining one full-time job. There is no doubt that parenting the children as the mother does for, at times, three weeks straight solely in the absence of family support is a difficult and taxing task, and although she has a good circle of friends, a circle of friends does not match the support of parents for a full-time working sole parent.
Consistent with the principles in Morgan & Miles,[3] for matters concerning relocation, be it international or within Australia, I must weigh up the parties’ competing proposals in relation to the relocation and then, having weighed up those proposals consider the factors under sections 60CC(2) and (3) of the Act and apply those factors to the evidence in the parties respective proposals to determine which order is an order in the children’s best interests, for a relocation matter is not a particular species of a parenting application. It is but a parenting application but has the overlay of significant loss for one or the other parent and for children. Relocation to another country is not merely reordering or changing time a child spends with a parent, it is a significant and potentially life-changing experience for children if the order is granted or not.
[3]Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-34, (2008) 38 Fam LR 275.

The mother’s proposal is not frivolous or without merit and the basis of the mother’s application to move to New Zealand with the children permanently is well understood by the Court.
The mother’s proposal is that she move to New Zealand with the children; that the father to visit up to ten times per year; that the children spend 21 days of long school holidays in Australia with the father; that the father come to New Zealand on any occasion, and is able to spend time children together with telephone calls Skype and telephone communication. The mother also seeks a raft of additional parenting Orders, including Orders for overseas travel Orders whether she is permitted to relocate or not. I will deal with those additional Orders later.
The father’s proposal is that the children remain in Australia and that the current regime of time continue. In the event the children moved to New Zealand, his evidence was that the best he could manage was two trips per year and that by arrangement with his work he could have the children for 21 days in the long school holidays. He also seeks a raft of additional Orders which I will deal with later.
At the conclusion of the trial, the Independent Children’s Lawyer submitted that the mother not be permitted to relocate, and that the current regime of time the children spend with the mother and father be maintained, together with a raft of additional Orders that I will deal with later.
One matter that appears to be agreed is that the children obtain both New Zealand citizenship and a passport as well as maintaining their Australian citizenship and passports, and I will make those Orders.
The parents agree that no matter what Order I make, they will equally share parental responsibility for the children.
After having heard all the evidence and in particular the oral evidence of Dr E, the expert in this matter, the factors which I find have weighed upon me in relation to this decision in which the mother asks I permit her to move on with her life, as she sees it, live in the country where her family live and be supported by her family are as follows.
The first significant tranche of evidence was that of Dr E’ oral evidence, particularly in relation to Y. I had not appreciated upon my initial reading of his Report how vulnerable Dr E had concluded Y was, based upon his acting out. It was Dr E’ oral evidence which brought home the reality of Y’ vulnerabilities, and these vulnerabilities were referred to at paragraphs 37, 143, 145 and 7 of his Report.
Dr E was asked what was Y’ ability to adapt to being away from the father. He replied:
…Y is at risk of acting out and his behaviour may deteriorate … there are issues around change for Y and conflict and change and conflict for Y would exacerbate his acting out … he needs a contained environment with an absence of conflict … he is a male child and male children who act out are more effectively managed by a male role figure who can contain them and who acts in an appropriate fashion.
Dr E agreed that the father was providing that role model for Y at present. On the other hand, Dr E opined:
…if the mother is not happy living in Sydney, this is not conducive to the containment of his behaviour, either.
Dr E found that Y was the most vulnerable child, whilst X could adapt to living New Zealand.
The mother’s proposal is that if she was permitted to move to New Zealand, she would not sell her apartment immediately to ensure that if the move to New Zealand was not working out she would have a home for herself and children to return to in Sydney.
Although I had formed the view this was a child-focused and appropriate course the mother had chosen, this caused Dr E real concern:
X will adapt to New Zealand, and will establish new friendships there. Returning her to Australia would disrupt her yet again, she already having been disrupted from the first move.
Dr E said such a move was also contraindicated for Y as well. However, I formed the view this was not the mother’s intention, rather, she had been child-focused and thinking about whether this would work for her children. In any event, I have no power to stop the mother from returning to Australia even if I permit her remove the children to live in New Zealand.
Dr E said that Y was probably still attaching to his father and other people around him, and that it may not be until he was eight or ten, that this process may stop. I asked Dr E, “Would this mean that I delay the mother going to New Zealand until Y is, say, X’s age, age eight?” Dr E said, “That may have less risks for him than going to New Zealand now.” Dr E said that he believed the mother could manage living in Sydney if she was unable to relocate. His interview with her and the testing she provided him indicated she is a resilient woman, and he accepted that she had been unwell in 2017 but there has been no recurrence of that illness since that time.
Dr E was asked if the father had presented to him as he presented in Court, which was defeated, grieving and very sad. Dr E said no, and that the father was still undergoing the grieving process of the loss of his mother only one month prior to this final hearing. This was an important piece of evidence from Dr E as I had not seen the father in March 2019 when the father’s mother was still alive and Dr E had.
Dr E also opined that if I ordered a relocation now, this would be a double blow for the father, and he would have a multiple loss, causing him significant grief. The father was clear and I accept his evidence he will not be able to maintain regular face to face time with his children if they move to New Zealand.
He said that the mother’s proposal he come to New Zealand over 10 times a year is not feasible. It is not feasible on his income. It is not feasible for his work. It is not just travelling and flying to New Zealand that is costly, it is accommodation, hiring a car, and the costs associated with having the children in his care. No parent, unless independently wealthy and/or not needing to work, could afford financially or workwise that level of travel per year, and neither the mother or father are in a position to do so.
The second seminal piece of evidence from Dr E’ oral evidence was that if the hostility that was evident in the maternal family continued, the children’s relationship with their father would deteriorate. If there was no hostility and they were in a nurturing and a positive environment about their father, it would not deteriorate as much. This factor has been an overwhelming factor in this matter and the mother’s proposal to relocate.
There was an issue that the mother said she did not say to Dr E that the children would not miss their father if they moved to New Zealand. Dr E was clear at paragraph 17 of his Report, where he said the mother had said that the children would not miss their father much on the move to New Zealand and was very clear in his oral evidence.
Dr E’ oral evidence was compelling. He said, “I would not have put that in my report if she had not said it “. I prefer Dr E’ evidence on this matter of contest. This is an indicia of the negative attitude the mother still has in relation to the father, which was reflected in her sister’s evidence, and, in part, in her mother’s evidence, to which I will refer to later.
Dr E was asked of his opinion of the mother’s evidence in which she said the father did not pay the mortgage on the former matrimonial home to spite her, that he let the boats deteriorate to minimise her property settlement, that he was “mean” to her in relation to money, that the maternal grandparents were not involved with the children, that he was not focused on the children and, for example, did not fix the air-conditioner, and that these were all current views the mother held of the father. Dr E said if the maternal family, including the mother, continued to voice a lack of respect for the father, then we have a problem, and their negative view of the father may leak through to the children.
Dr E was surprised when he heard that the mother had been asking the children to sit against a wall when on FaceTime with their father so he could not see the inside of her property, and opined this was further evidence of the negative view the mother had of the children’s relationship with their father. The mother had said in cross-examination she would now have to let that go, however, did not appear to understand the impact on the children of her request on this issue.
Ms Giacomo put to Dr E that the mother did not appreciate the significant disruption to the children of them living in New Zealand on their relationship with the father. Dr E agreed that the mother’s comment that the father had not done much with them previously, whilst acknowledging he was doing more now, for which she was grateful, that they would not miss him as much as the father said they would supported this opinion and Dr E agreed that this was the mother’s position.
In his oral evidence and to Dr E in the Family Report, the father talked about what it would mean for him and the children if they went to New Zealand, that he would miss them, that he loved them, and in particular, Y would miss him as he and Y have a close bond. This was confirmed by Dr E and the evidence is that the father is providing that all-important appropriate male role model for his children, and in particular his son. The father spoke very much from the heart and about the emotional issues for the children if they went to live in New Zealand.
This was in contrast to the mother’s evidence when she was asked in cross-examination, “Well, how would you effect a positive view of the father in the children? How would you encourage the children to talk about their father? How would you keep the memory of the father alive in New Zealand?”, the mother’s response was about physical things, such as letting him know what school events are on, showing him awards, letting him contact the school, and having the children Skype and speak to him.
It was difficult for the mother to engage in the emotional impact for the children of living in New Zealand and not having their father’s presence in their lives as they currently do. The children live with him one week each month, he collects them from school at times if the mother is unable to in her time, he may give them an evening meal, return them to their mother that night or perhaps to school the next day, and he is endeavouring to assist the mother in the care of the children in his on-call weeks. The father attends the children’s school events that he can attend, despite the mother’s criticism of him.
The children would miss out on all these activities if they lived in New Zealand, and the mother was simply unable to either understand this issue from the children’s point of view or acknowledge that this would be an issue for the children. Whatever the reason, it demonstrates a significant deficit in her capacity to promote a positive view of the father for the children and acknowledge their feelings of loss and grief.
This is something the mother did not grasp during the trial: the emotional toll on the children of not having their father in their life on a regular basis. This caused me concern as to her real view of the value of the father in the children’s life.
There is evidence that in the 1980’s the father’s brother, Mr P, may have been sexually abused by people the paternal grandfather knew and who came to his home. The grandfather ran a radio club. These allegations come to light in 2004 and the mother was made aware of them in 2009. The father says his brother Mr P is troubled, has extreme anxiety, is a heavy user of cannabis and he has nothing to do with them.
The mother turned the allegation of Mr P having possibly been sexually abused and Mr P’s messages to the mother and the father that he was molested and abused, to the children now not being safe in the paternal grandparents’ care. Her position was the only way the children could spend time with the paternal grandparents was at a supervised contact centre.
This caused significant difficulty for the paternal family and the father and placed him under significant stress. However, he agreed to such an undertaking and records from Q Group would indicate the three occasions the children spent with their grandparents went extremely well.
Dr E’ Report of 27 February 2019 was clear. There was no risk of sexual harm, whatsoever, for the children being in the presence of their paternal grandparents care. Yet, despite this clear opinion that what may have happened to Mr P resulted in no risk to the children in the paternal grandparents’ care, the mother maintained this position. Her position has resulted in the children’s relationship with their only grandparents in Australia being significantly curtailed and as their paternal grandmother is now deceased this is a double loss for the children.
The mother was still seeking this Order up to the trial and it became clear no such Order would be made after hearing the paternal grandfather give evidence.
The paternal grandfather was a sharp man, with a clear mind and a clear opinions, and I formed the view he would have never permitted any harm to occur to his grandchildren. Further that, he and his deceased wife had acted appropriately in 1980 and had banned two people from their home after Mr P alleged he had been inappropriately sexually approached. The paternal grandparents were clearly aware of Mr P’s initial allegations in the mid-1980s, which were somewhat vague but concerning, and it was not until 2004 that the full extent of Mr P’s allegations became known.
For the mother to have used this to limit the time her children spent with their paternal grandparents is non child-focussed and was simply mean.
I accept the criticism levelled at the mother in her maintaining her claim that time with the paternal grandparents needed to be supervised at a Contact Centre because of something that may have happened to the father’s brother in the mid-1980’s, which had only been revealed in 2004 and for which, in the mid-1980’s, the grandparents had taken, what I regarded as appropriate action.
Dr E and Q Group had both been clear, and the mother should have agreed forthwith, pronto, that the children spend as much time with their grandparents as their father was able to effect. That opportunity has now been missed with the paternal grandmother.
The mother maintained the father manipulated his income to minimise child support paid to her and that is incorrect. The mother says the father let the children have too much screen time. Dr E said when promoting a relationship with children from a long distance, it must be supported by the people around the children, and in particular, not just the mother, but also the maternal family.
This is the third significant factor militating against the mother’s application to remove the children to New Zealand permanently as being an Order in their best interest, the view her family have of the children’s father.

THE MOTHER’S WITNESSES

The mother’s sister, Ms A, in cross-examination, referred to the father’s intoxication when she and her family visited. To drive home her point, she said that she would not allow someone that intoxicated near her children and that her ex-husband, Mr A, was wonderful, a clear inference that the father was not. I formed the view that the father will be compared to Mr A in New Zealand, and he may be found wanting, and this would be a disaster for his children.
Ms A reiterated throughout her cross-examination that as a school teacher, she knew the importance of children having a relationship with both parents. The difficulty with that statement was that she said nothing positive about the father and her only comments about him were negative. Ms A described poor treatment by the father of her sister, that he was more interested in his mobile phone than the children, and that he has a significant problem with alcohol. This behaviour was confirmed by the grandmother.
When pushed on her view of the father, Ms A went back to statements about how wonderful her ex was and what a good relationship they had. Her platitudes that their family would ensure that they spoke positively of the children’s father as her family did of Mr A, did not satisfy to me that this would in fact occur.
The maternal grandmother’s attitude was a little softer, but she also raised issues about the father not repairing an air‑conditioner, his unfairness in having the mother get a part for a boat which necessitated taking the children with her and then telling her he did not really need it, was disruptive and in her opinion her daughter had not been supported by the father.
These criticisms related to events which occurred many years ago, when both parties were working extremely hard in their business, parenting two young children and trying to make good of their relationship. I detected no support for the children’s all-important relationship with their father from the mother’s family, and this finding, coupled with the mother’s, at best lukewarm opinion of the importance of the father in the children’s lives, has been a compelling factor in my decision.
The mother told Dr E at paragraph 15 there were multiple problems in the paternal grandparents having any interaction with the children. That was mischievous and incorrect. The mother was particularly negative about the father saying he drank to excess. Dr E opined that from his observations, interviews and testing that the father had no problem with alcohol.
At paragraph 28, the mother told Dr E she viewed the father as using money to cause her distress, and that he failed to pay the mortgage to inconvenience her. Again, this was incorrect and although the mother may have believed this to be the case, it is simply not factually based.
Dr E said if there is a climate of negativity about the absent parent, it will allow the children to become more concerned as to what they are missing out on at home rather than what they will gain by travelling a long distance, such as from New Zealand to Australia to spend time with the other parent. The evidence, he said, was that once litigation ceases, a cooperative approach recommences, but it takes about five years for such a relationship to develop. He further opined that such a cooperative approach could also be extrapolated to the extended family, but that five years would be too long a time for X, because she would be approaching teenage years and perhaps the damage would be done.
At paragraph 123 of his Report, Dr E said children benefit from a strengthening bond with both parents, and he confirmed this was particularly so for Y. A good relationship with his father and the role modelling his father provides will assist him in containing and controlling his behaviour. As Dr E said, Y has behavioural issues that make him a more vulnerable child.
Both the parents reported Y as being aggressive, and Dr E could not engage with him or get him to speak to him at all. He said at paragraph 39 that Y falls into the at-risk category for behavioural problems such as externalising disorders, and it is imperative he has a positive male role figure in his life, and that there is a risk Y’ behaviour might become openly defiant if a resolution to the tension he currently experiences does not occur. Both parents report he is doing better such as at school and that may be because his parents are cooperating and because he sees the father regularly, at times in the mother’s weeks when he has been assisting the mother with collecting and delivering the children to and from school and the like.
Although both parents view Y as adaptable, it is clear from Dr E’ evidence he is at risk of developing a significant behavioural disturbance. Dr E referred to Y as the vulnerable child. A child who does not cope with change well. A child who will not cope with being absent from a male role model figure and Dr E confirmed his father is providing this positive role male figure.

The four principles distilled by her Honour are set out at paragraph 80:
The child’s best interests remain the paramount but is not the sole consideration
The parent wishing to move does not need to demonstrate compelling reasons.
The judicial officer must consider all proposals and make himself or herself be required to formulate proposals in the child’s best interests
The child’s best interest must be weighed in balance with the right of the proposed relocating parent’s freedom of movement.
At paragraph 81, her Honour went on to say that the legislation requires a Judge to consider the parties’ competing proposals against the criteria set out in sections 60CC(2) and (3) informed by section 60B of the Act.
Further, generally speaking, findings in relation to the section 60CC factors must be applied to findings in relation to the consideration of equal time or significant and substantial time.
Following the pathway set out in Goode & Goode[15] as this is a necessary step in determining what Order I should make in the child’s best interests.
[15] Above, note 13.
In determining what is in a child’s best interests, a Court must consider the matters set out in sections 60CC(2) and (3) of the Act.
The primary considerations in section 60CC(2) of the Act are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The additional considerations in section 60CC(3) of the Act are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

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

to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;

(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

Both children benefit from a meaningful relationship with each of their parents and they have not been subjected to abuse neglect or family violence in either parent’s home. However, they have been exposed to parental conflict.
The wishes of the children in this matter are not an issue for me having regard to the age and their inability to understand what a permanent shift to New Zealand would mean for them and their relationship with their father. I accept they are familiar with New Zealand and have family in that country with whom they have an excellent relationship, including cousins of similar ages.
The mother has been the children’s closest emotional attachment and she was clearly the primary parent and homemaker. However, as Dr E observed, the children have a close and beneficial relationship with their father and enjoy spending time with him.
I am concerned that the mother has a deficit in her capacity to promote the children having a positive relationship with their father over a long distance given her view of him and that she effectively lays responsibility at his at his feet for the financial position they find themselves in. I accept the mother now has a more positive view of the father than perhaps even at the time of Dr E Report, but her position was clear in oral evidence he was not interested in the children, he let the business deteriorate and he is the responsible party in their difficult financial position. This is concerning because I formed the view that the maternal family in New Zealand have little if any capacity to provide a positive view of the father to the children and the children will be living in that environment without their father’s presence as they currently enjoy on a regular and defined basis. Long-distance relationships are difficult to maintain, are particularly difficult for young children and where there is not continued positive reinforcement of the absent parent, rather negativity, there could be a significant fracturing of the current beneficial and meaningful relationship the children have with their father.
Each parent has a capacity provide for the emotional, psychological and educational needs of their children and I was impressed by the father’s insight into the emotional consequences for the children of living in New Zealand without him. The mother has parented the children to a very high standard and she is a confident, capable and caring parent, as is the father, who I accept in the past did not always put the needs of his family before his own needs.
Y is a child with significant psychological vulnerabilities including acting out, and he needs a strong positive role model in his life and will do far better with such a role model. This was the clear opinion of Dr E. Additionally, Dr E confirmed his father was providing this role model at present and he was concerned of the consequences for Y of the absence of that role model. Having said that, Dr E also opined that the mother being unhappy having to live in Sydney against her wishes, was not optimal for containing Y’s potential to act out either.
Both parents take their responsibility of parenthood seriously and the father has since separation maximised his time with his children. The mother agreed at trial that he is now assisting her when he can with the children, picking them up from school and the like, to assist her with her work as she parents these children solely three weeks out of four each two months.
The mother’s proposal will be a significant upheaval for the children. They will be living permanently in a new country, which I accept they are familiar with given their visits there and their family, attend new schools, be involved in a different education system, lose old friends and make new friends, live in a different environment, and most importantly will not have the presence of their father on a regular basis in their lives. The consequences of this change for the children are unknown. Dr E was of the view that X would cope but was most concerned as to Y’ capacity to cope with such a significant change. The father’s proposal is that the children’s current lives remain the same.
The move to New Zealand will impose a significant cost on the father travelling to New Zealand as frequently as he can, which he said at best was twice a year, and will have the consequence of the father no longer being able to attend the children’s school functions, collect and deliver them to and from school as he currently does. The children will simply no longer have regular contact with their father or their paternal family.
The concern I have after hearing the evidence of the mother’s mother and sister, is their difficulty, and in particular for Ms A her incapacity to support the children having a positive view let alone relationship with their father if they were living in New Zealand. The maternal aunt may sabotage the relationship unwittingly given her view that as a school teacher she is far better placed to understand the needs of children in a separated family than most other people, including experts such as Dr E. The grandmother would do her best, but I am not sure she could control herself on all occasions. Despite the mother saying in the witness box that the father’s now engagement with the children is good, she harbours significant and deep-seated resentment towards him and blames him solely for the position she finds herself in today, yet her position is as a result of her choices as well as the father’s choices.
These factors, combined with the evidence of Dr E, of the importance of a child like Y with behavioural issues, having a strong male role model in his life coupled with the imperative that the children’s relationship with their father must be as supported by not only the mother but those that the children have a relationship with, namely the paternal family over such a long distance as Australia to New Zealand, have been for me the overwhelming considerations.
After hearing Dr E’ evidence, given that I am confident that the mother will be able to continue her excellent parenting of the children in Australia, has work and by my property orders accommodation for herself and the children in Australia, that the parents relationship is improving, and that father is assisting the mother in the care of the children, I find that the mother’s application to relocate the children’s permanent place of residence to New Zealand is not an Order in the children’s best interests and therefore her application is dismissed.
I will make the agreed Orders for the parenting of the children which is that the parents have equal shared parental responsibility, the children live with their father one week each month in accordance with his work roster and at other times as agreed. The effect of this Order is that the father will spend seven consecutive days with the children in each of week three and week five of his roster.
Going now to the raft of additional Orders sought, I will Order the following.
Both parties to do all acts and things necessary to cause the children to obtain a New Zealand citizenship and a New Zealand passport forthwith.
Both parties to do all acts and sign all documents necessary to ensure the children’s Australian and New Zealand passports are maintained and updated.
The father to retain the Australian passports in the mother the New Zealand passports.
The children to spend one half of each school holiday period with their parents being for the first half with their father in 2020 and each alternate even year thereafter and their mother the first half in 2021 and each alternate odd year thereafter.
The mother is permitted to holiday with the children when they are in her care on any occasion she so desires to New Zealand by giving the father 28 days’ notice in writing of her intention to travel to New Zealand together with a copy of the travel itinerary and return air flight tickets, passports the children are travelling with, and that that such travel must not interfere with the children’s school unless the father so consents.
That the children have telephone or Skype or FaceTime communication with the father as agreed and failing agreement between the hours of 6.30 pm to 7.30 pm on Tuesdays and Thursdays, with the father to instigate such calls. The mother is to provide the children with privacy on those calls and is not to restrict where the children make those calls.
Both parents may travel out of the Commonwealth of Australia during any period of school holidays when the children are in their care provided they provide to the other parent 42 days’ notice of their intention to travel overseas, a copy of the itinerary and return air flight tickets, and passports the children are travelling on.
The parties may by agreement provide for the children to spend Mother’s Day and Father’s Day, respectively, in the care if they are not already living with them on those weekends.
In relation to the children’s birthdays, the parent with whom the children are not living may spend time with the children on a school day, from after school to 8 pm and on a weekend or non-school day from 12 noon to 5 pm.
In relation to the parents’ respective birthdays, if the children are not living with that parent they are to telephone that parent as agreed and neither parent will unreasonably withhold the children from spending time with the other parent on their birthday.
Both parties are to do all acts and things to ensure no third party denigrates either parent in the presence of or hearing of the children.
The father is to continue to provide his work roster the mother within 12 hours of it having been received by him in so far it is necessary both parents are at liberty to attend any of the children’s school functions to which parents are invited and are each entitled receive at their expense copies of school notices, information newsletters, school reports and the like directly.
In the event the children are suffer any emergency treatment the other parent is to be notified forthwith.
I will not make the Orders the mother seeks in relation to not sleeping on board a vessel wearing lifejackets and the like. I trust the father with the care of the children.
Further, I will not make the Order in relation to the father not consuming alcohol. Dr E was clear he could see no evidence that the father has currently a difficulty with alcohol.

Independent Children’s Lawyer’s Costs

The Independent Children’s Lawyer has made an application for the costs paid by each of the parties in the sum of $6,162 each.
I find that application has merit. This was an international relocation it was imperative that an Independent Children’s Lawyer be appointed and the sum sought is but a fraction of the costs of the Independent Children’s Lawyer in this matter.
The husband has a good income. The wife is receiving a sum of money from her property settlement and I will order that the husband pay her share of Independent Children’s Lawyer’s cost of $6,162 from her entitlement to property settlement prior to him paying her entitlement and that he is to pay his share of the Independent Children’s Lawyer’s costs in the sum of $6,162 within 90 days of today’s date.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 24 January 2020.

Associate:

Date: 24 January 2020

[2020] FamCA 25

24 January 2020

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