SIMONSON & MOCHTAR

[2017] FamCA 344

FAMILY COURT OF AUSTRALIA

SIMONSON & MOCHTAR [2017] FamCA 344

FAMILY LAW – CHILDREN - Best interests – where one parent relocates overseas indefinitely

Family Law Act 1975 – ss 75(2), 79

APPLICANT: Mr Simonson

RESPONDENT: Ms Mochtar

FILE NUMBER: CAC 577 of 2017

DATE DELIVERED: 25 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: RMB Galland Elder

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

Children orders

1. That the father have sole parental responsibility for the children, B, born … 2007, (“B”) and C, born … 2013, (“C”) (“the children”).

2. That the children will live with the father and spend time with the mother as agreed by the parties.

3. That each party:

   (a)Keep the other advised at all times of their current residential address and telephone number for the children;

   (b)Advise the other immediately in the event of either of the children suffering any serious illness or injury or requiring emergency medical and dental treatment;

   (c)Advise any medication the children are to take whilst they are in the other parent’s care including dosage requirements;

   (d)Authorise any medical practitioner upon which the children may attend from time to time to communicate with the other parent in respect of their medical condition and / or requirements; and

   (e)Authorise all schools, kindergartens and childcare centres at which the children may attend to:

   (i)Provide the other parent, at the expense of the other parent, copies of all reports, notices and photographs in relation to the children;

   (ii)Communicate with the other party either by telephone, in writing or by personal attendance in respect of the children’s progress; and

   (iii)Subject to any school/kindergarten policies allow the other parent to attend all functions to which parents are normally invited.

4. The children are permitted to travel internationally with the father or his nominee and the mother will do all acts and things necessary to have a passport or travel document issued to the children within 7 days of receiving a request from the father. 

5. The father will make the children available to spend time with the mother at a time and place of his choosing in Asia or Australia for seven consecutive days each calendar year, with the mother to provide two months written notice of the week and the location that the children are to spend time with her pursuant to this Order.

6. Any time the mother spends with the children pursuant to Order 5 is to be supervised by the father.

7. The father agrees to pay for the mother’s return flights from Asia, to Sydney, Australia, once every six months and pay the wife’s reasonable accommodation costs up to an amount of $250 plus Consumer Price Index (CPI) for four weeks provided the mother is not accompanied by any male person.

Property

1. I refuse to make the consent orders in respect of property and direct that the matter be relisted for further directions on 8 June 2017 at 9:30am.

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 Simonson & Mochtar 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 CANBERRA

FILE NUMBER: CAC 577  of 2017

Mr Simonson

Applicant

And

Ms Mochtar 

Respondent

REASONS FOR JUDGMENT

1. This matter concerns an application for consent orders made by the husband and wife.  It involves a relationship that commenced in 2004 with the final separation in 2014.  There are two children of the relationship, B, aged 10, and C, aged 5.  Until recently the parties lived in D Town, New South Wales.  However, the mother is from Asia and has now returned there indefinitely.

Orders in respect of the children

1. The parties have filed terms for consent orders to be made.  The mother, in her affidavit in support of the consent orders, asserts that it is in the best interests of the children to remain in Australia in circumstances where she is moving indefinitely to Asia.  She agrees that the father should have sole parental responsibility.  This is under circumstances where he is to have the practical sole care of the children.  They have particular health needs and, for the foreseeable future, while the mother is in Asia, her level of involvement with the children is likely to be severely limited.  The circumstances of the geographical separation of the parties mean that provided the mother is given proper information about the children (which the orders provide to occur) it is appropriate that the father have sole parental responsibility.  It is in the children’s best interests that he be unhindered in his capacity to make decisions for their long-term care and welfare where he is acting as their sole carer, with the mother having severely limited involvement with the children. 

2. The balance of the orders dealt with arrangements for the mother to spend time with the children.  The orders were explained by the solicitor for the father as being designed to facilitate the relationship between the mother and the children.  Her move to Asia means that it is difficult to now maintain that relationship.  Her material indicates little capacity on her part to be able to do so from Asia.  The orders provide for arrangements where the father will travel with the children to Asia once each year and fund a trip for the mother from Asia each six months.  The funding of such trips is to be made by the father save under circumstances where the mother elects to travel to Australia in the company of a male person.  Under those circumstances the father would not have the responsibility of funding her travel and accommodation.  The travel with a male person would not act as a barrier to the mother spending time with the children, but would determine whether or not the father would bear those expenses.

3. These arrangements to facilitate time between the mother and the children have been agreed to by the mother. 

4. As to the issue of the father supervising the children spending time with their mother in Asia, this is a consequence of a number of threats made by the mother to take the children to Asia under circumstances where the father would never be able to find them.  That is, the supervision component is directed to a risk of flight.  I note that the country in Asia where the Mother is living is not a Hague Convention country.  The supervision by the father does not give a full protection in the context where the relevant country  is not a Hague Convention country.  However, the arrangement for supervision strikes a proportionate balance between maintenance of the relationship between the mother and protection against the mother absconding with the children in Asia.

5. These are unusual circumstances.  The orders promote the relationship between the mother and the children under circumstances where there is now a significant geographical separation between the mother and the children.  Under the particular circumstances of this case the orders promote the best interests of the children.  They provide for the father to be able to properly parent and make decisions for the children, while keeping the mother properly advised, under the circumstances of the geographical separation.  This occurs under circumstances where the mother agrees that the father is to be the primary carer.  The orders further facilitate the relationship despite a distance now between the mother and the children.  Under the circumstances where the orders are agreed to by each of the parties, and there is an evidential basis to explain the unusual characteristics of the orders being proportionate to the unusual circumstances faced by the parties, the orders are in the children’s best interests and will be made. 

Property

1. The parties have jointly sought orders to be made for the division of property.  The primary asset of the relationship is the family home at E Street in D Town which is owned jointly by the parties.  They had been in a relationship for approximately 10 years, commencing 2004 and ending in 2014.

2. The property, or at least the substantial aspects of the property held by the parties, is as follows:

   a)The family home at E Street, D Town, which is worth $275,000 and for which there is currently $28,000 owing.

   b)A Motor vehicle 1, owned by the husband and worth approximately $5,000.

   c)A Motor vehicle 2, owned by the husband worth $25,000 but with $28,000 owing pursuant to a novated lease arrangement. 

   d)Superannuation held by the husband to the value of $175,000 being an accumulation interest.

3. The parties have identified the contributions that each brought to the relationship.  In terms of financial contributions, the husband’s contributions far outweighed those of the wife.  He brought $40,000 worth of Commonwealth Bank Unit Trust shares which were used towards the purchase of E Street, D Town.  Further, in 2006 he received a bequest from his grandfather, the fruit of which saw the sale of the bequest for $218,000.  This was used to purchase another property which in turn was sold and used to pay out $195,000 in respect of the E Street mortgage. 

4. The parties agree that they contributed the same in terms of non-financial contributions and in terms of their contributions as home-maker and parent as set out in their Application for Consent Orders document.

5. The husband currently earns $1,920 gross weekly.  The wife has no earnings.

6. The husband anticipates that he will have the sole care and support of the children of the relationship, along with a foster child that he cares for.  He also anticipates spending approximately $10,000 towards expenses to allow the children to spend time with their mother. 

7. The split that the parties seek would see the wife receive a sum of $10,000 which would enable her to start a business in Asia.  The husband would receive the balance of the property.  This equates to a split of approximately 94 per cent to the husband and 6 per cent to the wife. 

8. The cooperation and sharing of resources and contributions that it may be expected that the parties previously relied upon has come to an end with the end of their relationship.  That change in status of the parties and an examination of various contributions which the parties have made indicates that it is just and equitable to make a division of the property.  The parties agree that there should be a division of the property.

9. An order pursuant to s 79 of the Family Law Act 1975 requires that the Court form a view that the orders are just and equitable. In this case there are strong factors that indicate contributions by the husband in a financial sense far outweigh those of the wife. The agreement of the parties is that otherwise their contributions have been equal. Additional to that, the future prospects of the parties indicate that the husband will have the bulk of the care and responsibility for the children and will be incurring significant costs to enable the wife to spend time with the children. However, as far as can be ascertained, his current prospects in terms of income far outweigh those of the wife. She has no income, whereas he has a significant weekly income.

10. Despite these factors, which weigh heavily towards a division of property favouring the husband, when the ss 79 and 75(2) factors are taken into account, I cannot be satisfied that the proposed division is just and equitable in all the circumstances.

11. I gave the husband the option of relisting the matter for further hearing in the event that I came to such a conclusion rather than simply dismissing the proceedings.  The husband has indicated that he will take up this option.  Accordingly I refuse to make the consent orders in respect of property and direct that the matter be relisted for further directions on 8 June 2017 at 9:30am.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 25 May 2017.

Associate:     

Date:  25 May 2017