PERRY & NESBIT
[2011] FMCAfam 1195
•11 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PERRY & NESBIT | [2011] FMCAfam 1195 |
| FAMILY LAW – Parenting – whether children and parents should relocate from [A] to Melbourne – consideration of views of children. FAMILY LAW – Property – 20 year marriage – division of assets held as property in the United States and property in Australia – majority of assets held in overseas accounts (including superannuation). |
| Family Law Act 1975, ss.60B, 60B(1)(a) and (b), 60CA, 60CC, 60CC(2), 60CC(2)(a)-(b), 60CC(3), 60CC(3)(a)-(m), 61DA, 65DAA(1), 79, 79(2), 79(4), 75(2) |
| A & A: Relocation approach (2000) 26 FamLR 382 KB & TC [2005] FamCA 458 SHL & EHL [2006] FamCA 1287 Franklin & Franklin [2010] FamCAFC 131 Hickey & Hickey [2003] FamCA 395 Illidge and Norton [2008] FMCAfam 1255 Malcolm, Monroe and Another (2011) FLC 93-460 Morgan and Miles (2007) FLC 93-343 Russon & Duane [2009] FMCAfam 464 U v U (2002) 29 FamLR 74 Vigano & Latimer [2010] FMCAfam 660 |
| Applicant: | MS PERRY |
| Respondent: | MR NESBIT |
| File Number: | MLC 10044 of 2010 |
| Judgment of: | Whelan FM |
| Hearing dates: | 9, 10 & 28 June 2011 4 July 2011 |
| Date of Last Submission: | 4 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 11 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Dr Alexander |
| Solicitors for the Applicant: | Hogg & Reid |
| Counsel for the Respondent: | Ms Conlan |
| Solicitors for the Respondent: | Duffy & Simon |
PARENTING ORDERS
The parties have equal share parental responsibility for the children [X] born [in] 1997 (“[X]”) and [Y] born [in] 2001 (“[Y]”) (collectively “the children”).
The children live with the Wife.
The Wife be permitted to relocate with the children to the [E] area after the conclusion of the 2011 school year.
In the event that the Husband finds and moves into suitable accommodation in the [E] area or a suburb close by, the children spend time and communicate with the Husband as follows:
(a)Each alternative week from Friday after school until the following Friday after school;
(b)By telephone at all reasonable times; and
(c)As otherwise agreed between the parties.
In the event that the Husband is unable to find suitable accommodation in the [E] area or a suburb close by, or until the Husband finds suitable accommodation in the [E] area or a suburb close by, the children spend time and communicate with the Husband as follows:
(a)Each alternative weekend from after school on Friday until 5.00pm on Sunday night;
(b)Half of the school term holidays which, unless otherwise agreed, shall be the first half in holidays commencing in odd numbered years and the second half in holidays commencing in even numbered years;
(c)Half of the long summer school holidays which, unless otherwise agreed, shall be the first half in holidays commencing in odd numbered years and the second half in holidays commencing in even numbered years;
(d)By telephone at all reasonable times; and
(e)As otherwise agreed between the parties.
For the purposes of (5)(b) and (c) herein, the school term holidays are deemed to have commenced at 9.00am on the day following the conclusion of the Victorian gazetted school term.
Changeover
Pursuant to paragraph (4) herein, unless otherwise agreed between the parties, changeover shall occur as follows:
(a)During school terms, the children are to be collected after school and returned to the school at the conclusion of time; and
(b)During school holiday periods, the parent who is to spend time with the children should collect the children from the other parent’s residence; or
(c)As otherwise agreed between the parties.
Pursuant to paragraph (5) herein, unless otherwise agreed between the parties, changeover shall occur as follows:
(a)During school term periods, the Husband is to collect the children after school and return the children to the Wife’s residence at the conclusion of time; and
(b)During school holiday periods, the Husband is to collect the children from the Wife’s residence and return the children to the Wife’s residence at the conclusion of time; or
(c)As otherwise agreed between the parties.
Special occasions
Notwithstanding any Order made in paragraph (4) and/or (5):
(a)The children shall spend Father’s Day with the Father and Mother’s Day with the Mother if they would not otherwise be spending time with them on that day. Unless otherwise agreed, the time will commence at 5.00pm on the Saturday of the relevant weekend and end at 5.00pm on the Sunday;
(b)In odd numbered years commencing 2011, the children spend from 5.00pm Christmas Eve until 3.00pm Christmas Day with the Wife and from 3.00pm Christmas Day until 5.00pm Boxing Day with the Husband;
(c)In even numbered years commencing 2012, the children spend from 5.00pm Christmas Eve until 3.00pm Christmas Day with the Husband and from 3.00pm Christmas Day until 5.00pm Boxing Day with the Wife;
(d)The children spend time with the Wife from 10.00am until 8.00pm during the Hindu celebrations known as the Festival of Lights and the Festival of Colours if the children would not otherwise be with the Wife at those times.
(e)On each of the children’s birthdays the children shall spend time with the parent in whose care they would not otherwise be from 4.00pm until 8.00pm unless otherwise agreed.
(f)On each of the parents’ birthdays, if the children would not otherwise be spending time with that parent as follows:
(i)Between 4.00pm and 8.00pm on weekdays;
(ii)Between 10.00am and 5.00pm on weekends;
unless otherwise agreed.
Miscellaneous
The children and parties are to actively participate in what school the children shall attend for the 2012 school year.
The parties attend upon a doctor to be agreed between the parties (other than Dr F) to obtain a referral for the child [Y] to attend upon a psychologist in relation to the phobias demonstrated by [Y].
Both children are to continue to attend upon counsellors until such time as agreed by both parties that it is appropriate for the counselling sessions to cease.
Each party be at liberty to take the children to medical practitioners as and when necessary when the children are in the care of that party.
Each party keep the other party informed about the children’s attendances upon any medical practitioners pursuant to paragraph (13) herein.
If either child needs specialist medical attention, each party advise the other as soon as practicable about such referral, to invite the other party to the specialist appointment and the specialist will be advised that both parties are to be kept informed about the progress of the child’s condition.
That the parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the said children, and from permitting any other person so to do.
Pursuant of section 13C of the Family Law Act 1975 the Respondent Husband:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other party or their solicitors.
PROPERTY ORDERS
The Husband indicate to the Wife’s solicitors whether he wishes to retain the property situate and known as Property A, [A] and being the whole of the land more particularly described in Certificate of Title Volume [omitted] (“the [A] property”) within 21 days of the date of this Order.
In the event that the Husband wishes to retain the [A] property:
(a)the Husband pay to the Wife an amount of $170,824.50 AUD and a further sum of $526,579.50 USD within 30 days; and
(b)the Wife do all things and sign all documents to transfer to the Husband at the expense of the Husband all of her right, title and interest in the [A] property contemporaneously with the payment.
In the event that the Husband does not wish to retain the [A] property:
(a)the [A] property be sold and the proceeds applied as follows:
(i)Any costs, commissions and expenses associated with the sale;
(ii)Secondly, to discharge the mortgage (if any) and any other encumbrances affecting the [A] property;
(iii)50% of the sale proceeds then remaining to each party; and
(b)The Husband pay to the Wife the following:
(i)an amount of $23,324.50 AUD within 30 days; and
(ii)an amount of $526,579.50 USD within 30 days.
The Husband pay to the Wife an amount of $43,980.00 USD, which is to be paid into the Wife’s [H] account.
Otherwise, all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Perry & Nesbit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10044 of 2010
| MS PERRY |
Applicant
And
| MR NESBIT |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by the Applicant Wife MS PERRY (“the Wife”) in relation to parenting arrangements for the two children of the marriage [X] born [in] 1997 (“[X]”) and [Y] born [in] 2001 (“[Y]”) (collectively “the children”), and orders with respect to property.
The Wife proposes four different arrangements to which she gives an order of preference; three of which would involve her relocating from [A], where the family have lived since March 2009, back to the Melbourne metropolitan area.
The Respondent Husband MR NESBIT (“the Husband”) wishes to continue the current parenting arrangements, whereby the children live with each parent in [A] on a week about basis, except he seeks that changeover occur on Fridays after school rather than on Mondays. He also proposed that should the Wife relocate to Melbourne, the children live primarily with him. During the course of the proceedings the Husband indicated that, should the Court consider that it was in the best interests of the children to relocate to Melbourne, he would wish to retain the existing equal time arrangement and would rent premises near the Wife in order to facilitate this.
Ms T, who prepared the Family Report, gave oral evidence stating:
you’ve got two parents who, by and large, are competent, effective parents, and the children are attached to both of them, and those relationships needs to be sustained and maintained and strengthened.[1]
[1] Transcript of 28 June 2011, page 248 at lines 17-20.
In her view, the key criteria were that the children stay together and have equal access to both parents. On a second rung was the issue of where the family was located.[2]
[2] Transcript of 28 June 2011, page 250 at lines 2-21.
I found Ms T’s evidence to be insightful and useful in determining my approach to this matter.
Background
The parties were both born in India, the Husband [in] 1962 and the Wife [in] 1972. They are therefore now respectively 49 and 39 years of age. They were married [in] 1990, the day after the Wife turned 18. The Husband shortly thereafter moved to Alaska to study and the Wife joined him there in April 1990 after finishing school in India. She completed high school in Alaska and later went on to complete a certificate qualification in early childhood development while working part-time.
In 1992, the parties moved from Alaska to Seattle where the Husband obtained full-time employment with [M]. The Wife completed a diploma in [omitted] and also worked part-time. Between June 1994 and June 1995 the Wife worked full-time but ceased employment due to restrictions on her ability to work arising from visa conditions. The parties decided to start a family and [X] was born in May 1997.
In 1998, the parties applied to migrate to Australia. They returned to India in the same year and the Husband continued to work for [M] there until early in 2000. There is some dispute as to whether he was retrenched or whether he resigned. He left [M] with accrued bonuses of $1,000,000.00 USD in [M] shares. These funds have remained invested in the Husband’s name in the United States and have provided income to the family since then.
In 2000, the parties moved to Australia and took up residence in the suburb of [omitted] in Melbourne. Apart from a short period during 2003 when the Husband was employed as a part-time [omitted], the Husband has not engaged in paid employment since arriving in Australia. He made some attempts to establish business ventures but none of these came to fruition in any real sense.
In April 2001, [Y] was born. The Wife remained at home with the children until September 2005 when she commenced full-time employment in the [omitted] industry. In September 2006, she reduced her hours to suit the children’s school hours. During 2006, the parties attended marriage counselling for the first time. They again attended marriage counselling during 2007 and 2008.
In March 2009, the parties purchased a property at Property A, [A] by cashing out some of the Husband’s [M] shares. The balance of $1,000,000.00 USD remains invested in the United States.
After moving to [A], the Husband established ‘[D]’ (a [omitted] business[3]) and also [N] (intended as a business [omitted][4]). The second of these has never traded and the first, on the Husband’s evidence, has produced income of approximately $2,000.00 (as at June 2011).
[3] Affidavit of Respondent Husband filed on 30 May 2011, page 5 at paragraph 32.
[4] Affidavit of Respondent Husband filed on 30 May 2011, page 6 at paragraph 39.
The parties attended marriage counselling in [A] but separated under the one roof in April 2010. In that month, the Husband withdrew $60,000.00 from his US account to purchase a [business vehicle omitted] for $21,000. The balance thereafter remaining, he says, was used for household expenses.
After moving to [A], the Wife attempted to find employment in the [omitted] industry but between March 2009 and June 2011 had only obtained relief work on five occasions. In September 2010, the Wife withdrew $4,000.00 from their joint account and the Husband then withdrew the remaining $6,000.00. The parties attended Family Dispute Resolution but were unable to reach any agreement.
In February 2010, the child [X] commenced counselling with [omitted] and in July 2010, the child [Y] also commenced counselling with [omitted].
In October 2010, the Wife commenced proceedings in this Court. Interim orders were made on 12 November 2010 providing for shared care of the children, the Wife to move out of the marital home, $100,000.00 from the Husband’s account to be released to the Wife and $75,000.00 to be released to the Husband. In December 2010, the Wife moved in to rental accommodation in [A] and the children commenced living with each party on a week about basis.
The Wife
The Applicant Wife married the Husband at a young age and almost immediately left her family to live with him in Alaska. It was her evidence that decisions about where they should live and what they should do were made by the Husband and she just went along with his decisions. She worked while studying for her [omitted] qualifications and while, clearly during the eight years that the Husband worked for [M] he contributed significantly to the family income, she worked when she was able to and contributed to the family’s finances.
There was increasing tension between the parties going back to 1998 because of the different attitudes towards what the Wife described as the Husband “crossing the marital boundaries”.[5] She nonetheless attempted to keep the marriage alive by accessing relationship counselling and supporting the Husband’s various ventures.
[5] Transcript of 9 June 2011, page 41 at lines 35-36 & 45.
I accept the Wife’s evidence that the move to [A] was essentially the Husband’s idea and was designed to enable him to explore his dreams. Life in Melbourne provided the Wife with much greater support because of the existence of an Indian community there where she was able to find friends and had access to cultural and religious activities. She was also able to find suitable employment.
The Wife described the Husband as being emotionally abusive, controlling and manipulative. Despite his evidence that she had access to money, he clearly did control the family’s resources as their primary source of income – being the United States based investments – was solely in his name. It is also clear from his reaction to her removing $4,000.00 from the joint account that she had never during the marriage accessed any large sums of money by herself.
The Wife commenced seeing Dr O in May 2010. She was diagnosed by her as suffering from ‘Reactive Anxiety and Depressive Disorder’ which Dr O considered to have arisen out of the way she was treated by the Husband during the marriage. Dr O described the Wife as having changed a lot over the period since the parties commenced living separately and having gained in confidence, improving her feelings of self-worth and becoming better at making decisions for herself.
The Wife is ambitious for her children and believes them to be bright. She considers them to lack challenge or extension in their current schools and has stricter views about adherence to routines and homework than the Husband. She is a much more directional parent. She was described by Ms T in her Family Report as “controlling”[6] although in her oral evidence Ms T ameliorated this assessment somewhat and described the Wife as someone with “firmly held convictions”.[7]
[6] Family Report, page 16 at paragraph 58.
[7] Transcript of 28 June 2011, page 252 at line 38.
In terms of her attitudes towards the children, the Wife impressed as perhaps somewhat over protective, particularly of [Y], in her concerns about incidents of bullying and her general health and well-being. Her main concern about [X] seemed to be that he was taking on too much in terms of extra curricular activity at the expense of his academic studies and was often tired.
While the Wife’s wish to relocate to Melbourne is in part motivated by the fact that there is little for her in [A] in terms of social, cultural or work activity, I accept that she also genuinely considers that Melbourne has much more to offer the children in terms of choice of schools and extra curricular activities that do not involve long hours of driving.
She was able to acknowledge that [A] was a peaceful and scenic place and that both the Husband and the children had been able to make some friends there. She also accepts that [X] is happy and wants to stay there.
The Husband
The Husband is almost ten years older than the Wife whom he married when she was quite young. I have no difficulty in accepting that he could be quite patronising towards her and belittling of what he considered to be her rather simplistic religious views in contrast to his intellectual and logical approach. His views about marriage and fidelity also seemed to conflict with those of his wife.
The Husband seemed to have little commitment to Hindu practices or culture or to miss being able to mix with members of the Indian community in Melbourne. Indeed I gleaned from his evidence that at least part of his conflict with the Wife about the children’s education arose from his own experience of social pressure being placed on him as a child to succeed academically.
The fact that the Husband has been able, since he was 38, to avoid working except to the extent that he wished to dabble in various ventures, has, I am sure, given him the freedom to indulge in his own pursuits both intellectual and otherwise. He has fitted comfortably into a more leisurely paced country life style and found a range of things to occupy his time. While the venture he has engaged in seems to be designed to be money making, he appears not to have been able to devote the type of energy and attention needed to create a successful business.
The Husband appears to genuinely care about the children and he was the instigator of counselling for [X] when his behaviour became unacceptable while the parties were separated under the one roof. He also participated in reading programs at the school and had initiated two projects, a leadership program and ‘[H]’, a program designed to encourage critical thinking, at both of the children’s schools. These projects clearly went beyond an involvement with his own children and indicate a broader interest in education.
The Husband professed to be concerned about [X]’s academic progress but did not appear to have done anything to instil in his son the type of commitment to his studies required by his teachers. He appeared to be proud of [X]’s sporting activity and his achievements but only addressed [Y]’s need for stimulating extra-curricular activities when prompted by others to do so.
The Husband seemed to expect the children to be self-directed and to consider that they should essentially be allowed to make decisions and follow their own passions. He down-played [Y]’s negative school experiences and seemed unable to admit that she may have been bullied.
One of the issues in this case concerned an email sent by the Husband to the Wife during 2008 when they were having marriage counselling. The Wife saw the email as an admission by the Husband that many of the problems they were having were of his making. It was important to her in believing that he was committed to change.
It was put to the Court on behalf of the Husband that the email was an exercise by the Husband in trying to put himself in the wife’s shoes[8] and telling her what she wanted to hear. He finally conceded in his oral evidence that the list of characteristics contained in the email was a combination of how he saw himself and how his wife saw him.[9]
[8] Transcript of 10 June 2011, page 179 at line 43 & page 180 at line 7.
[9] Transcript of 10 June 2011, page 181 at lines 25-32.
I have no trouble in accepting from my observations of the Husband that he could be superior and patronising and have difficulty in accepting the values of others. I also accept from his own evidence that he uses “long, tedious arguments”.[10] I also think that he had difficulty in conceding that anything the Wife said had validity while readily agreeing to proposals put to him if he considered it to be in his interest to do so. His reaction to the actions of the Wife in opening her own bank account, removing money from the joint account and making medical appointments for the children without first seeking his consent indicate that in relation to major decisions concerning the family he saw himself as the primary decision-maker.
[10] Transcript of 10 June 2011, page 174 at line 4.
The son, [X]
[X] is now 14 years old and is in Year 8 at [A] School. He is involved in numerous extra-curricular activities including [omitted]. He told
Ms T that he played sport every Saturday and Sunday as well as training twice a week. He also goes to [omitted] practice once a fortnight and to [omitted] classes.
[X] indicated to Ms T that he considered Information Technology (“IT”) and Physical Education to be his best subjects. This was consistent with [X]’s school Progress Report which shows that his work in IT was “up to date” and he “does his best in class”.[11] Other subjects however indicated that he was poorly organised, failed to submit work, rarely completed tasks, misplaced homework sheets, rarely handed homework in on time and needed to make more effort.[12] It was concerning that while he was clearly behind in English and rarely handed in homework on time, he was allowed to skip English lessons in order to attend the Husband’s ‘[H]’ classes.
[11] Exhibit A1
[12] Exhibit A1.
For some time, particularly while his parents’ relationship was deteriorating and prior to the Wife moving out, [X]’s relationship with the Wife was not good. To his credit, the Husband sought assistance with this from the school counsellor and was referred to a counsellor with [omitted]. [X] commenced seeing her in February 2010 and has continued to do so on an ongoing basis since that time.
It would seem that [X]’s main issue with his Mother was that she did not listen to him or give proper consideration to his views. He also felt that she favoured his sister [Y].
[X] is closer to his Father than his Mother although his relationship with his Mother, on all accounts, has improved greatly since the parents have become settled in two separate households. His statement to his counsellor, that he gets on with his Dad as he feels that his Dad talks reason and has logical ideas, appears to reflect the Husband’s description of himself. It is not unusual that a 14 year old boy should identify more closely with his Father. Given a choice between living in [A] with the Husband and in Melbourne with the Wife, he would clearly choose the former.
The daughter, [Y]
[Y], on the material before me, found the move to [A] much harder than her brother and particularly during the first 12 months had some negative school experiences. While I feel that the Husband downplayed these and the Wife placed too much emphasis on them, I accept that [Y] was bullied and that she found it hard to make friends. I also accept that things have improved for [Y] as she has been able to make some friends and she obviously performs well at her school work.
Unlike her brother, for whom the sporting orientation of country social life is an attraction, [Y] has significantly less opportunity to find social activities that suit her. She was involved in [omitted] in Melbourne, neither of which are available to her in [A]. Even taking [omitted] lessons involves driving to [omitted] to see a teacher.
[Y] is very torn both between the parties and between staying in [A] and returning to Melbourne. She has clearly felt that her only choices were to stay in [A] with her Father or go to Melbourne with her Mother. Both choices meant separation from one parent which she clearly does not want.
[Y] also suffers from various phobias and has shown symptoms of anxiety, such as “dizzy tummy, headaches” and so forth.[13] She commenced counselling with [omitted] in July 2010 and continued until October 2010. She returned to counselling again in April 2011.
[13] Transcript of 9 June 2011, page 38 at line 45.
A major issue for [Y] appears to have been her view that she needed to decide between her parents and the pressure she felt from both of them about this. At the same time, Ms T considered that [Y] wanted to keep both of her parents happy.
Ms T saw [Y] as a very sensitive little girl not nearly as robust in terms of managing as her brother. She described the Husband to Ms T as someone “who goes by logic and does not believe in superstition”.[14] I found this an odd description for a ten-year-old, but very similar to [X]’s description of the Husband and also the Husband’s views of himself.
[14] Family Report, page 13 at paragraph 43.
Other evidence
Evidence was also given in the proceedings by Ms D, who has a son who attends school with [Y] and a daughter at [A] School. She raised concerns about bullying at both schools and her view that the schools did not adequately address these issues.
Ms S, a friend of the Wife’s who has known the family since 2000, also gave evidence in this matter. Their children had spent time together and the parents had also socialised. She gave evidence of how the family had lived prior to the move to [A]. She has maintained her contact with the Wife.
Ms T provided both a written report and gave oral evidence. She felt that both parents were equally motivated by what was best for the children. Neither of them was a bad parent but they had very different parenting styles and held different values. Ms T, in her oral evidence, did not favour the children staying in [A] or moving back to Melbourne. She acknowledged that [X]’s preference was to stay in [A] but did not go so far as to say that it was in his best interests to do so. She was very clear that where the children lived should not be a matter of their choice but a decision for the Court. Her strongest recommendation was that the children not be separated and that they spend equal time with each of their parents.
DR O is the Wife’s psychiatrist. She has been seeing her regularly since May 2010. She described the Wife as suffering from reactive depression which she attributed to marital conflict and feeling powerless. She did not consider the Wife to be controlling or pedantic but trying to do her best to give her children a good cultural and scholarly education. She considered that cultural stability and identity more important for the Wife and that she was trying to give the children the best opportunities in life. She explained that Indian music and dance were an important part of the Indian psyche.
Dr O considered that the children were more likely to align themselves with the powerful person in the family because they felt safer doing so and that in Indian families the Husband has the power. She stated the physical chastisement of children was common in Indian families.
The applicable legal considerations
The starting point in considering any parenting applications lies in the provisions of s.60CA of the Family Law Act 1975 (Cth) (“the Act”), that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.
Parental Responsibility
Further, s.61DA of the Act sets out that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.[15]
[15] Family Law Act 1975 s.61DA(4).
Neither party in this matter seeks to rebut the presumption that there should be equal parental responsibility for the children.
Equal time spent with each parent
Section 65DAA(1) of the Act requires that where a parenting order has been made for equal shared parental responsibility, the Court is to consider the reasonable practicality of the children spending equal time with each parent and whether it would be in the children’s best interests.
While it is not the Wife’s preferred position to remain in [A] or the Husband’s preferred position to return to the Melbourne metropolitan area, both parents would be prepared to put their own interests aside in order to spend as much time as possible with the children.
The Wife seeks that the children spend more time with her than with the Husband. The Husband only seeks that the children spend more time with him if the Wife leaves [A].
The Wife argues that the children need one stable home base with a consistent, disciplined and predictable routine for the children. She submits that she is able to provide home-cooked and nutritious meals and is better equipped to supervise the children’s grooming and hygiene and to ensure that they are organised for school and have a balance of extra curricular activities.
The Husband argues that he is the more suited parent to be their primary caregiver because the children have a close relationship with him and he has demonstrated his capacity to care for the children’s needs and to guide and assist them in achieving their full potential.
The major obstacles to a shared care arrangement for these children are the issues of where the parents live and the difficulties that the parents have in communicating with each other. The children are however of an age where they are able and have been able to deal with the challenges of being between two houses.
The issue is therefore what parenting arrangement will best meet their needs.
The law in relocation cases
Counsel for both parents made submissions on the issue of relocation. From those submissions, the following approach can be taken.
The Act provides no legislative assistance or framework in relation to the issue of relocation. However, prior to the amendments to the Act in July 2006,[16] the Full Court in A & A: Relocation approach (2000) 26 FamLR 382 suggested three steps that should be followed by a Court in a relocation matter:
(1)Identify the relevant competing proposals;
(2)Consider the proposal and evidence in the terms of the relevant factors set out in the Act which the Court must consider in determining the best interests; and
(3)Explain why one particular proposal is to be preferred in terms of the best interests of a child.
[16] Family Law (Shared Parental Responsibility) Act 2005.
The High Court of Australia then, in U v U (2002) 29 FamLR 74, ameliorated the strict approach in A v A and in KB & TC [2005] FamCA 458, another subsequent case, the Full Court said:
U v U
has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant
s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.[17]
[17] at [79,699].
Following the amendments to the Act in 2006, it appears that the general principles in relocation cases remain valid. In Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343, Boland J stated that:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.[18]
[18] At paragraph 80.
It should also be noted that the parent does not need to show compelling reasons for relocation (see AMS v AIF (1999) 199 CLR 160, 179; and U v U [2002] HCA 36; (2002) 211 CLR 238, 259-260) and, as held by the Full Court of the Family Court in Malcolm & Monroe and Anor [2011] FamCAFC 16 (2011) FLC 93-460:
Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.[19]
[19] At paragraph 83.
Further, it would appear that the Full Court’s decision in Malcolm & Monroe and Anor holds that Court should consider the competing proposals against the criteria now in s.60CC informed by s.60B. As held by McGuire FM in Russon & Duane [2009] FMCAfam 464,[20] it would appear that a proposed relocation is a matter that the Court is to consider, together with numerous other considerations, in making an order which is in the best interests of the child. Such is considered below.
Primary considerations
[20] At paragraph 25.
Section 60CC factors
Section 60CC(2) sets out the primary considerations which the Court must consider in determining the best interests of the children. Section 60CC(2) is based on the objectives of ss.60B(1)(a) and (b) which is to ensure that the best interests of the children are met by determining that the children have the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence.
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents
The children have a close relationship with both parents. [Y] is possibly closer to the Wife and [X] to the Husband but that is not unusual given the children’s ages and genders.
Both parents exhibit negative views about the other. The Wife holds the Husband responsible for the breakdown of the marriage and considers his behaviour during the marriage to be controlling and domineering. The Husband has an attitude of intellectual superiority towards the Wife; while he may not have done so consciously, this is likely to have fuelled [X]’s challenging and disrespectful behaviour towards the Wife at times.
Both parents will need to deal with these issues and show more respect for each other if they are to build on the meaningful relationships they already have with the children and not seek to alienate them from the other parent. As Ms T has commented, neither of them is a bad parent. The fact that they have different views and values does not make one set of views and values better than the other.
The Wife needs to learn how to give the children more freedom of choice and to give weight to their wishes. The Husband needs to match the reality with the rhetoric when it comes to encouraging [X] to commit to his studies and supporting [Y] in finding suitable social outlets.
Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The children have been exposed to considerable conflict between the parents. While there is no issue of violence or neglect, such conflict can have negative effects on the children and their development. Already both children have required counselling and are likely to continue to do so.
To her credit, the Wife has sought counselling for herself and has also done a post-separation parenting course. While the Husband sought some counselling at the time of the marriage breakdown, he has not continued with this. He would also benefit from a post-separation parenting course.
Both parents have in the past physically chastised the children. The Husband contends that the Wife continues to do so. The children are of an age where other methods of modifying their behaviour are clearly available and appropriate.
Additional considerations
Section 60CC(3)
Section 60CC(3) deals with the additional considerations to which the Court must turn its mind in dealing with parenting matters.
Section 60CC(3)(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
[X] is now 14 years old and has expressed a wish to stay in [A] and live primarily with the Husband. This is understandable. He has found social outlets for himself in the local [omitted] teams. He is more involved in sporting and musical pursuits than in his academic work, which is suffering. Probably because of what he now sees as negative pressure placed on himself to succeed academically, the Husband seems reluctant to push this issue with [X]. [X] may suffer for that.
[X] will have to make some choices about his priorities in the next few years and it is not clear that his current high school will be able to provide for his needs.
[Y] is ten years old. She is more ambivalent about what she wants. She feels a loyalty to both her parents and does not wish to disappoint either of them. She found it much more difficult to settle into [A] and has still not found many outlets for herself in extra curricular activity. She tends to go along with [X]’s activities as an observer rather than a participant.
Ms T described her as a rather sensitive child and I have no doubt that she has experienced teasing and other negative behaviours at school. She, more than [X], appears to have retained friends in Melbourne and a connection with her life there.
Section 60CC(3)(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)
The children have a close relationship with both parents although [X] and the Wife experienced difficulties in their relationship around the time that the marriage was disintegrating. The children see the Husband as the more relaxed parent and the Wife as the more directive.
The children are the only siblings and they have no grandparents in Australia. The Wife has a brother living in Melbourne and he has two children of similar ages. The families spent a lot of time together when the parties lived in Melbourne. This has been less possible since the move to [A]. The Husband has also fallen out with his brother-in-law.
Section 60CC(3)(c): The willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The Husband, to his credit, sought counselling for [X] when the situation between him and the Wife became conflicted. Both parents have tried to influence [Y] in relation to choosing which parent she would wish to primarily live with. The Wife is of the view that the children are better off living primarily with her although she described the Husband as a “good” parent when talking to Ms T.[21]
[21] Family Report, page 8 at paragraph 15.
The Husband has supported a shared care arrangement although both he and the Wife have difficulties in agreeing on matters such as the children’s health and needs. Both parents do, however, recognise that the children need to have a close and continuing relationship with the other parent.
Section 60CC(3)(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 children, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Neither parent wishes to be separated from the children. While both have put up proposals which would have the effect of the children being separated from the other parent – if the Wife moved to Melbourne with them or the Husband stayed in [A] with them – it is clear that both parents would change their own plans in order to stay in close proximity to the children. This is to both of their credit and shows an understanding of the children’s needs and a willingness to put those needs first.
The Wife did put forward the option of [X] staying in [A] with the Husband and [Y] moving to Melbourne with her. This proposal was not supported by either of the children or by Ms T.
The children have been through significant upheaval over the past few years. After living in [suburb omitted] for nine years, they relocated to [A] at the beginning of 2009. They experienced the breakdown of their parents’ marriage, a very difficult time when the parents were separated but still living in the same house, and a period now of some nine months of living in two separate households in [A].
Moving back to the Melbourne metropolitan are, more particularly to the [E] area, would represent another change for them and further period of adjustment.
On the other hand, such a move may offer greater educational opportunities for both children. [X] is likely to be able to pursue his sporting and musical interests wherever he is located and may also find other activities which stimulate him. He appears to have made friends easily in [A] and is likely to do so again.
[Y] is more likely to be able to access suitable activities such as dance, music and gymnastics without the needs for extensive travel and to reconnect with her old friends in the Indian community. She is also likely to experience a more multi-cultural environment in which to make friends.
[A] is a pretty little country town but due to its size and location it has fewer opportunities for young people. If [X] is to engage in any post-secondary education, he would have to leave the area.
Section 60CC(3)(e): The practical difficulty and expense of the 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
If the family remains in [A], there are no practical difficulties in the children spending time with each of the parents. There are practical difficulties associated with the travel required to take the children to different activities, particular if the timing of these clash.
If the Wife relocates to [E] area, the Husband has indicated that he would also find premises in the area although he appears to wish to maintain a residence in [A]. Such a solution would be expensive.
Section 60CC(3)(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
Despite the fact that for nearly all of [Y]’s life and most of [X]’s the Husband has not been engaged in gainful employment, I accept that prior to the separation the Wife was their primarily care giver. As previously stated, the Wife has been perhaps over protective especially of [Y] in terms of her health and well-being. This contrasts with the Husband’s somewhat dismissive attitude towards what might be described as [Y]’s more emotional problems. It is also of concern that he was giving out-of-date Ventolin to [X] and giving Ventolin to [Y] when she did not need it.
The Husband encouraged [X] in his sporting and musical activities but appears to have taken less interest in [Y]’s needs or suggested activities which are not really meeting her needs; the singing group was overwhelmingly adult and his solution to the Indian dancing was to suggest a TV program. His last minute organisation of [omitted] lessons in [omitted] appeared to be geared towards the imminent Court case. Equally, the Wife’s visit to Dr F appeared to be less about dealing with [Y]’s anxieties and more about reinforcing her concerns.
The Wife is looking to the children’s future and how their needs can be pre-empted and met. The Husband seems to consider that his role is to respond when the children come up with their own suggestions. He does not seem to be concerned about the limits which [A] may have in meeting those needs.
Section 60CC(3)(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
Both parents are Indian. The Wife is a Hindu and follows that faith. The Husband’s background is Hindu but he appears to have his own personal beliefs which were not clearly explained. The Wife wishes the children to be involved in cultural and religious activities including attending Hindu temple and ceremonies, learning Indian dance, music and culture. Melbourne has a large Indian community and the Wife appears to have links and friendships there. The children were also involved with other Indian families in Melbourne.
The Husband appears to pay lip service to the cultural and religious aspects of Hinduism and, to a degree, appears to have no need to be connected with the Indian community. [A] is essentially a mono-cultural community. This does not seem to concern him.
Section 60CC(3)(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
Section 60CC(3)(h) is not applicable in these proceedings.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents love the children and have been actively involved in their care. They take their responsibilities as parents seriously although they would probably see those responsibilities differently. The children are clearly not neglected; they attend school regularly and are generally healthy.
Section 60CC3(j): Any family violence involving the child or a member of the child’s family
Both parents accuse the other of being controlling and domineering. The Wife has strong views and is clearly disappointed that the Husband does not share her views or values. The Husband has clearly in the past controlled the family finances and made the decisions where the family would live and how the money would be spent.
The parents have had an unhappy marriage for some time. The children are aware of their parents’ unhappiness and conflict. They also appear to have picked up on the Husband’s belittling views of the Wife.
Section 60CC3(k): Any family violence order that applies to the child or a member of the child’s family, if (i) the order is a final order; or (ii) the making of the order was contested by a person
This section is not applicable.
Section 60CC(3)(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
The children have lived with a period of uncertainty since their parents decided to separate. They now need some stability and certainty that will enable them both to finish their schooling with some comfort that what ever order is made there will be continuity for them and a consolidation of their relationships with both parents.
Section 60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.
The parents migrated to Australia in 2000 primarily because the Wife had a brother here. They lived in Melbourne until the beginning of 2009. There is no suggestion that the children were unhappy in that environment. The Wife was able to find work and the family had connections with the broader Indian community.
The Husband has essentially been unemployed of his own choice for the last ten years. He is well qualified and previously worked for a large multi-national company. He has investigated various business options but not I expect with great vigour. It was his dream to live in the country and pursue a business venture there which led them to [A].
The Husband is content with his life there. He became involved in a couple of education projects and a local [omitted] venture. These are small scale and essentially non-remunerative. While he clearly has a preference to stay there, he could do what he is doing anywhere.
The Wife wishes to engage in paid employment and to improve her qualification by engaging in further study. She has not been able to find suitable employment in [A], except for sporadic relief work [omitted], and is unlikely to do so. Living in [A] also makes it more difficult for her to attend any training institute because of the hours of travel necessary to do so.
The Wife has not found it so easy to make friends in [A]. There is no-one who shares her religious or cultural beliefs and values. She is not able to regularly attend temple or religious or cultural ceremonies. Because of [X]’s sporting commitments on the weekends, it is not easy to take the children to visit relatives or friends in the Indian community in Melbourne.
The Wife submits that it is in both the long and short term interests of the children to move back to the city. She proposes that this occur at the end of the 2011 school year. She has already investigated both primary and secondary (including selective) schools in the [E] area and provided material to the Court about them. She plans to use the funds from the property settlement to purchase a home.
The Husband submits that the children are now settled in [A] and have supports there. There is nothing to prevent the Wife from undertaking training online or spending more time in Melbourne when the children are with the Husband. Any change is likely to be opposed by [X] and may cause a deterioration in his attitude to school and to the Wife.
Both parties referred the Court to cases on relocation including Vigano & Latimer [2010] FMCAfam 660, Morgan and Miles (2007) FLC 93-343, Illidge and Norton [2008] FMCAfam 1255 and Malcolm & Monroe and Anor [2011] FamCAFC 16 (2011) FLC 93-460. I have considered these cases.
Conclusions on parenting
No single factor is determinative in considering the appropriate parenting arrangements for the children in this matter and where they should live. While there are conflicting views and values which the parents in this matter will need to accommodate, I am satisfied that both children need the involvement of both parents in their lives, the different things both parents offer and the balance which they can provide.
It is in the best interests of these children that they live together and I am also satisfied that they need to be able to maximise the time they spend with each of their parents. As they become older they also need the flexibility to move between their parents with each child having their own time with each parent as well as the time they spend together. These things can best be achieved by the parents being in close proximity to each other.
There does not need to be compelling reasons for a parent to relocate. I am satisfied however that the Wife has shown very good reasons why it is both in her interests and the interests of the children that they move back to the city.
The Wife is motivated to work and to study. She wants the children to have a choice of schools which are suited to their needs and activities and a choice of extra-curricular activities that are accessible. She also wants them to experience the cultural and religious opportunities of being able to access a Hindu temple and a vibrant Indian community.
There are dangers that the children may find a move dislocating and take time to find their feet in new schools and make new friends. If both parents are aware of these things and the children have access to counselling and other support, these obstacles are not insurmountable.
The Husband has indicated a willingness to make himself available to share the care of the children with the Wife should she relocate to [E]. He is not engaged in paid employment and can operate [D] from any location, particularly as he has indicated that his function will primarily involve organisation and planning and not [omitted]. He can continue to engage in activities in and around [A] when the children are not with him and may well find that [omitted] and other activities are also available in the [E] area.
I am therefore satisfied that the Wife should be allowed to relocate to the [E] area at the end of 2011. Provided the Husband also finds suitable accommodation in the same area then the children should continue to spend equal time with each parent with the changeover occurring on a Friday after school. [Y] should be taken to a child psychologist for treatment for her phobias and anxiety and both children should continue to have counselling. Both parents and the children should be involved in choosing the schools they attend in 2012.
Property and spousal maintenance
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters that the Court must take into account when considering what orders should be made for the alteration of the interests of the parties in property.
The Court must also address any relevant s.75(2) factors.
The usual course in determining an alteration of property interests pursuant to the Act was set out in the case of Hickey & Hickey [2003] FamCA 395, which stated at paragraph 39:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
Step One: Assets, liabilities and financial resources
The agreed assets of the parties are:
ASSETS
Property A, [A] in joint names
AUD $295,000.00
Husband’s [T] shares
AUD $3,200.00
Proceeds from [vehicle omitted] (joint)
AUD $3,200.00
Husband’s [business vehicle omitted]
AUD $17,500.00
CBA account – [D]
AUD $1,200.00
[omitted] Family Trust account
AUD $320.00
[N] account
AUD $3,500.00
Total AUD Real Assets
AUD $323,920.00
Husband’s Investment in [F]
USD $94,227.00
Husband’s shares with [S] (as at 31.3.2011)
USD $835,524.00
Husband’s shares with [C] (as at 31.3.2011)
USD $123,408.00
Total USD Real Assets
USD $1,053,159.00
I note that the interim payments of $75,000.00 to the Husband and $100,000.00 to the Wife have been excluded by agreement.
The parties have not disclosed any liabilities.
In relation to superannuation, I have outlined the parties’ entitlements in the table below. The Wife has $13,909.00 AUD in her [H] superannuation fund, while the Husband has superannuation entitlements in both Australian and overseas funds (with his [U] Super fund totalling $3,820.00 AUD and his [M] superannuation fund totalling $107,959.00 USD).
No submissions were made in relation to the proposition that the overseas interest was not a superannuation interest as defined by s.90MD of the Family Law Act 1975. The parties appear to have proceeded on the basis that the overseas superannuation interest is to be treated as if it is property and included in the pool of assets just as an Australian based superannuation interest might be. There was no information provided to the Court in relation to the overseas superannuation entitlement other than that it existed. Neither party seeks that a splitting order be made in respect of any of the interests.
Following the approach set out in SHL & EHL [2006] FamCA 1287, I have not included the overseas superannuation as property for the purposes of the asset pool to be divided between the parties. It will be defined as a financial resource only. The Wife and the Husband’s Australian based superannuation interests have however been included in the asset pool.
SUPERANNUATION
Wife’s superannuation with [H] (as at 14/6/2011)
AUD $13,909.00
Husband’s superannuation with [U] Super
AUD $3,820.00
Husband’s superannuation with [M] (as at 31/12/2010) (not part of the pool)
USD $107,959.00
TOTAL SUPERANNUATION (part of the asset pool)
AUD $17,729.00
TOTAL SUPERANNUATION (not part of the asset pool)
USD $107,959.00
It appears that the asset pool is as follows:
ASSETS
TOTAL AUD REAL ASSETS
AUD $323,920.00
TOTAL USD REAL ASSETS
USD $1,053,159.00
TOTAL SUPERANNUATION
AUD $17,729.00
NET REAL ASSETS PLUS SUPERANNUATION
USD $1,053,159.00
AUD $341,649.00
Step Two: Identify and assess contributions
The Wife submits that the pool of assets represents a 20 year accumulation contributed to by the joint efforts of the parties. It is contended by the Husband that he earned much more than the Wife during the marriage, particularly during the time that he worked for [M]. The Wife contends that he was able to concentrate on his career because she performed all of the household duties and looked after the children as well as studied and worked. She continued to engage in employment until they moved to [A] and to seek employment after they moved there.
The Husband accumulated his wealth while working for [M] from 1992 to early 2000, and he has essentially retired from the workforce since. The investments and savings are primarily in his name.
The Wife contends that she has been the primary care giver for the children and did most of the housework until the parties’ separation in December 2010.
The Husband contends that his financial contributions during the marriage and until he resigned from [M] were far greater than any contribution by the Wife. He supported her while she obtained her qualifications and, when the parties lived in India, the Wife did not work and the Husband employed staff to assist her. The Husband’s work for [M] has effectively enabled the family to be financially independent since 2000. Since moving to Australia, both parties have engaged in some part-time work and shared the care of the children.
The Husband submits that the disparity in financial contributions should be recognised by some adjustment in his favour. He cites the case of Franklin & Franklin [2010] FamCAFC 131 in support of that submission.
I am satisfied that the contribution of the parties to the assets of the marriage should be assessed as equal. Over a 20 year marriage, the Husband made a substantial financial contribution for eight or nine years which has enabled the family to live since 2000 without him engaging in full time employment. The Wife however worked part-time for most of the early years of the marriage while also studying and taking care of the domestic tasks. She worked full-time for one year in Seattle but was unable to continue to do so for visa reasons. After moving to Australia, she took care of the children and re-entered the workforce when [Y] was four years old. I am satisfied that prior to the separation the Wife was the primary caregiver.
Step Three: Identify and assess section 75(2) factors
The Wife is 39 years of age. Currently, the Wife is in receipt of Centrelink benefits. Although qualified to work as a [omitted], she has found it difficult to find any employment in the [A] area. Even if she obtains employment in Melbourne as a [omitted], the work is not well-paid. She wishes to improve her employability by upgrading her qualifications; such retraining will also involve expenditures on her part.
If, as proposed, she undertakes a three-year training course, she will have over 20 years of working life to look forward to. She proposes to spend any funds from the property settlement in purchasing suitable accommodation for herself and the children.
The Husband is 49 years of age and has tertiary qualifications in [omitted] and experience in Australia as a [omitted]. He has not engaged in paid employment for several years but I am satisfied that he could do so. While he has less prospective years of employment than the Wife, his potential earning capacity is however greater than hers.
The Husband has established a business which he intends to be an income generating concern. So far it has not proved to be so. He is asset rich but income poor.
However, as previously referred to, the Husband has a significant financial resource, being his overseas superannuation fund totalling $107,959.00 USD. I assume that this interest does not become available for some time and that the Husband does not therefore have immediate access to this fund (although no information was provided as by Counsel).
The Wife also seeks spousal maintenance. She cites the need to re-establish herself in a new home and to undertake further training to improve her employability. She refers to her lost opportunities to advance her own career while she supported the Husband’s ventures and to the fact that he is unlikely to be assessed as liable to pay child support because of his lack of income.
The Husband seeks a property split of 65/35% in his favour based on his greater contribution and future needs. The Wife seeks a property split of 65/35% in her favour (inclusive of a 5% adjustment by way of capitalised spousal maintenance) of all assets except superannuation and a 50/50 split of the superannuation assets.
Step Four: Effect of the orders and what is just and equitable
Both parties will need to re-establish themselves as a result of the parenting orders I intend to make in this matter. Both parents, in my view, are immediately employable although both would also benefit from additional training in order to maximise their employment opportunities. These are decisions for them to make.
The Wife should not be penalised by the Husband’s desire to retain the unencumbered family home in [A] but neither should the Husband be penalised by the Wife’s desire to undertake a course of study rather than seek employment for which she is currently qualified.
The parties’ assets and superannuation are currently held in both Australian and US dollar equivalents. If the parents share equally the care of the children including the payment of any medical, school and extracurricular activities then their liabilities in this regard will be equal.
I am satisfied in all the circumstances that the appropriate property division of assets is a 50/50 split. Given the difficulties in equating the value of assets in Australian dollars and those in US dollars. I have dealt with the property assets as two separate pools. In my view, this is the most appropriate approach. Further, given the relative positions of the parties and the fact that the Husband is not currently employed, I make no allowance for spousal maintenance.
If the Husband wishes to retain the home in [A], the Husband will need to pay to the Wife an amount of $170,824.50 AUD and a further sum of $526,579.50 USD.
In relation to the Australian superannuation, the Wife currently has superannuation in Australia which is about $10,000.00 more in value than the Husband’s Australian superannuation. Given the small amount, it is not desirable to make a splitting order with respect to the Australian superannuation. In relation to the Husband’s US superannuation fund, as a splitting order cannot be made with respect to the Husband’s American superannuation in the sum of $43,980.00 USD, an additional amount of $43,980.00 USD should instead be added to the sum to be paid to the Wife. This amount should be paid into the Wife’s [H] superannuation account.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 11 November 2011
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