SPENGLER & THOMAS - [2017] FamCA 747

FAMILY COURT OF AUSTRALIA

SPENGLER & THOMAS

[2017] FamCA 747

FAMILY LAW – CHILDREN – Final orders – Relocation – Where wife seeks to relocate with the child from Darwin to Country V – Whether relocation is in the child’s best interest – Consideration to the proposals of the parties – Where the Court is satisfied that both parties will promote a meaningful relationship with the other party – Where consideration is given to the mental wellbeing of the wife as the primary carer if ordered to remain in Australia – Where it is in the best interests of the child to relocate to Country V

FAMILY LAW – CHILDREN – Final orders – Relocation – Time spent – Where in the event that the wife is permitted to relocate to Country V the husband sought orders that the child spend all school holidays with him in odd numbered years and all summer school holidays and Christmas school holidays in even numbered years – Where the husband is willing and able to assist in the financial cost of international air travel – Where the family consultant recommended that the father spend time with the child on two extended periods per year

FAMILY LAW – PROPERTY – Final orders – Where each of the parties seek a division of property – Where the husband is a partner in the business – Consideration of expert valuation of business – Where property is determined to be owed by husband and not the business – Adjustment of property interest in favour of the husband.

FAMILY LAW – PROPERTY – Spousal Maintenance – Where the wife seeks a continuation of spousal maintenance in the sum of $250 per week until her departure to Country V.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79

AMS v AIF (1999) 199 CLR 160
Beckham v Desprez [2015] FamCAFC 247
Blanding v Blanding [2016] FamCAFC 21
C & C (2005) FLC 93-212
Chorn & Hopkins (2004) FLC 93-204
Commonwealth v Milledge (1953) 90 CLR 157
Godfrey v Sanders [2007] FamCA 102
Lenehan & Lenehan (1987) FLC 91-858
McF & McF [2004] FamCA 1309
MRR v GR (2010) 240 CLR 461
Stanford v Stanford [2012] 247 CLR 108
Starr & Duggan [2009] FamCAFC 115
Waters & Jurek (1995) FLC 92-635
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Mr Spengler

RESPONDENT:		Ms Thomas
FILE NUMBER:		DNC	79	of		2015

DATE DELIVERED:

22 September 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Berman J

HEARING DATE:

15, 16, 17, 18 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Farmer

SOLICITOR FOR THE APPLICANT:

Withnalls Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Barry

SOLICITOR FOR THE RESPONDENT:

Darwin Family Law

Orders

That the parties have equal shared parental responsibility for B born … 2011 (“the child”).
That the child shall live with the wife.
As and from 2 January 2018 the wife be permitted to relocate the residence of the child from Australia to Country V in Europe but more particularly C Island.
That the child spend time with the husband in Australia as follows:-
a.      For a period not less than eight (8) weeks during the European summer holidays;
b.      For a period of not less than two (2) weeks during the Christmas holidays provided that in even numbered years the period shall include Christmas Day;
c.      Such further and other times as the parties may agree.
That the wife, the husband at his election, or by agreement a member of the wife or husband’s extended family shall accompany the child in transit between Country V and Australia.
That for the purpose of travel to Australia to give effect to paragraph 4, the wife shall book and pay for all airfares for the wife and the child and the husband shall reimburse the wife as to one half of the accompanying parent and child’s airfare costs within twenty one (21) days of receipt of the airfare itinerary and tax invoice evidencing payment.
That the child spend time with the husband in Country V as follows:-

a. Should the husband be visiting Country V for fourteen (14) days or less for all of that period;
b. Should the husband be visiting Country V for more than fourteen (14) days, after the first fourteen (14) days THEN equal time; and

c. Such further and other time as may be agreed.

That if the husband and the wife are in the same location when the husband is spending fourteen (14) days or more block time with the child, unless otherwise agreed between the parties the wife may:-
a. Spend twenty four (24) hours each fourteen (14) days with the child and unless otherwise agreed the time shall be from 9.00 am Wednesday to 9.00 am on the following Thursday commencing on the first Wednesday after the husband has spent fourteen (14) days with the child.
Such further or other time as the parties may agree.
That the parties will:-

a.Communicate by text or email except in the event of an emergency when communication will be by telephone;
b.Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email addresses and Skype details and will inform the other of any change to any of these details within seven (7) days of any such change;

c.Advise each other of any medical or other emergency involving the child whilst in their separate care.

That each party shall be entitled to obtain copies of the child’s healthcare records and to discuss matters with the child’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure the information can be freely disclosed to each parent.
That each parent shall sign all such documents and do all things necessary to ensure that the child maintains a valid passport with the passport to be retained by the wife.

That the wife will provide to the husband the child’s passport not less than twenty eight (28) days prior to any notified overseas travel and the husband shall return the child’s passport to be held by the wife after the conclusion of travel and immediately upon return.

That upon the wife and child leaving Australia to take up residence in Country V the orders made 14 March 2016 are discharged.

That in full and final settlement of all claims that either party has against the other by way of property settlement pursuant to the provisions of the Family Law Act 1975 (Cth) (as amended)(“the Act”):-

a. That on or before forty five (45) days from the date of this order the husband do pay to the trust account of Darwin Family Law for and on behalf of the wife the sum of TWO HUNDRED AND ONE THOUSAND EIGHT HUNDRED AND FIFTY THREE DOLLARS ($201,853,) (“the settlement sum”);
b. That the husband forthwith transfer to the wife his interest in the Japanese motor vehicle;

c. That the husband retain free from any claim by the wife the following:-

i.All equity, interest and title in D Street, Suburb E NT;

ii.The motor van;

iii.All monies standing to his credit in any bank account, credit union or financial institution;

iv.All partnership benefit and interest in the construction business known as Spengler Partnership;

v.All superannuation member entitlements in Ausfund Superannuation number …;

d.That the wife retain interest in the following:-
i.All monies standing to her credit in any bank account, credit union or financial institution;
ii.Her interest in F Town, Country V;
iii.The bond for the premises at G Street, Suburb H, NT;

e. That should the husband fail to pay the settlement sum either in whole or in part by the due date and should the default continue for fifteen (15) days THEN the husband shall forthwith do all things necessary to list for sale by public auction or private treaty the property situate at D Street, Suburb E, Northern Territory upon such terms and conditions as may be agreed between the parties but in the absence of agreement as may be ordered by this Honourable Court and from the net proceeds of sale the wife is to receive so much of the settlement sum as shall be outstanding and unpaid together with interest at the rate of ten per centum (10 per cent) per annum with the balance if any to be paid to the husband.

That by way of spousal maintenance the husband shall cause to pay to the wife the sum of TWO HUNDRED AND FIFTY DOLLARS ($250) per week PROVIDED that upon the wife’s relocation to Country V the order for spousal maintenance shall be discharged.
That forthwith upon receipt of the settlement sum the wife will place the sum of TWENTY FIVE THOUSAND DOLLARS ($25,000) into an interest bearing account (“the account”) to be used (if required) to ensure the payment of the wife’s obligation to contribute to the costs of travel of the child and the wife as provided for in paragraph 6 herein subject to the following:-
(a) The wife be restrained and an injunction granted restraining her from withdrawing funds from the account for any purpose other than in compliance with paragraph 6;
(b) The wife will provide a copy of the bank statement in respect of the said account to the husband every six (6) months.

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 Spengler & Thomas 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 ADELAIDE

FILE NUMBER: DNC 79 of 2015

Mr Spengler

Applicant

And

Ms Thomas

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Amended Initiating Application filed 21 June 2017, Mr Spengler (“the husband”) seeks parenting orders in respect of B born in 2011 (“the child”) and settlement of property.
By Amended Response filed 2 August 2017, Ms Thomas (“the wife”) opposes the orders sought by the husband.

DOCUMENTS RELIED UPON BY THE HUSBAND

a)Amended Initiating Application filed 21 June 2017.
b)Trial Affidavit of husband filed 21 June 2017.
c)Affidavit of husband in reply filed 15 August 2017.
d)Financial Statement of Husband filed 21 June 2017.
e)Affidavit of Mr I Spengler (husband’s brother) filed 15 August 2017.
f)Affidavit of Mr J (forensic accountant) filed 15 August 2017.

DOCUMENTS RELIED UPON BY THE WIFE

a)Amended Response filed 2 August 2017.
b)Trial Affidavit of wife filed 2 August 2017.
c)Financial Statement of wife filed 2 August 2017.
d)Affidavit of Mr K Thomas (wife’s father) filed 2 August 2017.
e)Affidavit of Ms L (wife’s aunt) filed 2 August 2017.
f)Affidavit of Mr M (wife’s cousin) filed 2 August 2017.
g)Affidavit of Mr N (linguist) filed 2 August 2017.

ORDER SOUGHT BY THE PARTIES

The wife seeks orders as set out in a proposed draft order tendered to the Court as part of final submissions made on her behalf.
Notwithstanding that there were some amendments as contained in the draft minute of order that were supplementary or additional to the orders as set out in the case outline document, having established that appropriate notice had been provided to the husband’s counsel of the proposed orders and there being no objection taken, leave was given for the wife to rely upon the proposed amended orders.
The orders sought by the wife can be summarised in the following terms:-
a)That the parties have equal shared parental responsibility for the child;
b)That the child live with the wife;
c)That the wife be permitted to relocate the residence of the child from Darwin in the Northern Territory to C Island in Country V.
d)That if the child is permitted to relocate then the child will spend time with the husband as follows:-
i)Each year for a period of 12 weeks in Country V or in Darwin but to coincide with the extended July school holidays, with the husband to pay the child’s travel costs and the wife to pay her own costs;
ii)At the election of the husband, for two weeks during the Easter holiday period and for two weeks during the Christmas holiday period in even numbered years.
e)That until the child attains 10 years of age, the wife will accompany the child to and from Darwin and for the purposes of travel to and from Darwin;
f)That after the child attains 10 years of age, then members of the husband’s family will be permitted to accompany and chaperone the child in circumstances where the wife or the husband are not able to do so;
g)That providing three months’ notice is given, then during the long European summer holidays the wife shall accompany the child to and from Country V at her expense but on one occasion only;
h)That if the husband would wish to spend time with the child in Darwin during either the Easter school holidays or the Christmas school holidays in even numbered years then the husband shall pay for and arrange for the flights of the child;
i)That in addition to the time as provided for, the husband shall spend time with the child on any visit of his to Country V up to 14 days with the child and if the husband stays longer than 14 days then equal time;
j)That if the child spends more than 14 days with the husband in a block then subject to the husband travelling with the child away from the wife’s location, the child shall return to the wife’s care for a 24 hour period each seven days;
k)That from any settlement of property the wife shall set aside $15,000 as security for the costs of her travel as may be required to accompany the child to travel back to Darwin;
l)That if the parties and the child shall be in the same location, the party with whom the child is not otherwise spending time shall spend time with the child as follows:-
i)1 pm to 8 pm on the child’s birthday and name day;
ii)1 pm to 8 pm on each of the parties respective birthdays;
iii)With the wife on Mother’s Day commencing 6 pm on the Saturday prior to the day to 8 am the following day;
iv)With the husband on Father’s Day commencing 6 pm on the Saturday prior to the day to 8 am on the following day;
v)In odd-numbered years the wife will spend time with the child from Christmas Eve to 2 pm Christmas Day and in even-numbered years from 2 pm Christmas Day to 2 pm Boxing Day;
vi)In even-numbered years the husband shall spend time with the child from 12 noon Christmas Eve to 12 noon Christmas Day and in odd-numbered years the husband shall spend time with the child from12 noon Christmas Day to 12 noon Boxing Day;
vii)In odd-numbered years the child will spend Friday and Sunday of the Country V Easter with the husband and the Thursday and Saturday with the wife;
viii)In even-numbered years the child shall spend time with the wife on Friday and Sunday of Country V Easter and the Thursday and Saturday with the husband.
m)That during any period when the husband is spending time with the child the wife may Skype or telephone the child at 5 pm each day with the wife to instigate the telephone call;
n)That the parties shall advise the other immediately of any emergency, illness or medical concerns in relation to the child and if there are any matters of an urgent nature then the party in whose care the child remains will notify the other parent immediately;
o)That each parent shall be entitled to obtain copies of the child’s health records and that there be appropriate authorities to enable the parties and each of them to confer with the child’s medical practitioners and specialists;
p)That each party will keep the other informed of their residential address, postal address, landline telephone number, mobile telephone number and email address at all times;
q)That either party may travel overseas or interstate with the child during any period of time spent provided that a copy of the itinerary including details as to the destination and accommodation if at all possible are provided to the other parent;
r)That the parties do all things and sign all such documents as are necessary to ensure that there is a valid passport maintained for the child with the passport to be retained by the wife;
s)That the wife will provide to the husband the child’s passport not less than 28 days prior to any notified overseas travel and the husband shall return the child’s passport to the wife immediately after the conclusion of any travel;
t)That if the child is not permitted to relocate to Country V then the wife seeks the following orders:-
i)That the parties have equal shared parental responsibility;
ii)That the child lives with the wife;
iii)That during school terms the child spend time with the husband each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday and in the alternate week from after school Wednesday to before school on the following Thursday.
u)That unless otherwise agreed the wife may take the child to Country V departing on the second to last Friday of term 2 and returning to Darwin on the Sunday prior to the commencement of the second week of school holidays (a total of 5 weeks) with the husband to pay the return fare of the child and further should the husband be in Country V during that period, he may spend up to 2 weeks with the child;
v)That except when the wife is travelling to Country V with the child as provided for herein, school holidays shall be shared as follows:-
i)The holidays at the end of term 1 are shared as per the school term;
ii)The holidays at the end of terms 2 and 3 are shared equally;
iii)That any period that the wife is overseas she shall facilitate communication between the child and the husband each Monday, Wednesday and Friday at 5 pm Central Standard Time with the wife to instigate and arrange the call.
w)That subject to the parties being in the same location:-
i)For not less than four hours with each of the parties on the child’s birthday, name day and birthdays of the parties;
ii)With the wife on Mother’s Day from 6 pm Saturday prior to the following Monday;
iii)With the husband on Father’s Day from 6 pm Saturday prior to the following Monday.
x)That over Christmas in odd-numbered years the child to spend time with the wife from Christmas Day to Boxing Day and in even-numbered years from Christmas Eve to Christmas Day and in even-numbered years with the husband from 12 noon Christmas Day to 7 pm Boxing Day and in odd-numbered years from 12 noon Christmas Eve to 12 noon Christmas Day;
y)The parties will also share Easter arrangements with the child spending time with the husband on Friday and Sunday of Country V Easter in odd-numbered years and with the wife on Friday and Sunday in even-numbered years;
By way of settlement of property the wife seeks that the net asset pool be divided 55:45 per cent in her favour and subject to her retaining her interest in the property at F Town, C (“the C property”) and some personalty of modest value. She seeks that within 45 days of the orders the husband pay the settlement sum to her solicitors;
The wife seeks spousal maintenance in the sum of $500 per week for a period of 5 years, but if permitted to relocate to C then the amount she seeks is a continuation of the current order namely, $250 per week until her departure.
The orders that the husband seeks are summarised as follows:-
a)That the parties have equal shared parental responsibility for the child;
b)In the event that the child is not permitted to relocate to C, Country V the child shall live with the wife and following the expiration of four school terms during which the child shall spend increasing time with the husband, the ongoing care of the child shall be shared equally between the parties;
c)That there be specific arrangements in respect of the child spending time with each of the parties on the birthday, the birthday of the parties, Mother’s and Father’s Day and if the parties are in the same geographic location arrangements over the Christmas period and Country V Easter;
d)In the event that the child is permitted to relocate to C Island then the child will spend time with the husband in odd years for all of the first school holidays and all of the summer school holidays and in even years for all of the summer school holidays and all of the Christmas school holidays;
e)That for the purpose of school holiday travel the wife shall pay at first instance for all of the airfares for the child and the accompanying adult and upon production of an itinerary and receipt for payment the husband shall reimburse the wife as to one half of the accompanying parent and child’s airfare costs within 21 days of the documents having been provided;
f)That the wife will facilitate Skype and Facetime communication between the husband and the child on two occasions each week being Tuesday and Saturday;
g)That the parties will exchange contact details and the child’s school and medical or other health professionals will be authorised to provide each parent with copies of school reports and other school-based materials and any medical reports and other information concerning the child’s health;
h)That by way of settlement of property the husband and wife each retain such items of personalty and realty as shall be in their separate possession, power and control;
i)That within 60 days of the date of any orders the husband will pay a settlement sum to the wife and such sum shall be calculated on the basis of 27.5 per cent of the superannuation and non-superannuation assets of the parties;
j)That the wife shall reimburse the husband one half of all joint single expert expenses presently in the sum of $14,367;
k)That within 28 days of the date of the orders the husband will transfer all of his right, title and interest in the Japanese motor vehicle to the wife;
l)That each party indemnify the other as against any liability in respect of any item of property to which that party is entitled pursuant to the orders.

Background

The husband was born in O Town and lived with his family on C Island until their relocation to Darwin in 1997.
The wife was born in Darwin but moved with her family to reside permanently on C Island.
Both parties have extended family on C Island. In Darwin the husband’s family consists of his parents and four siblings. After leaving school in year 11 the husband commenced an apprenticeship and then a certificate course. The husband, his two brothers and his father commenced a business and following its expansion in 2010 the partnership commenced a further business under the partnership name of Spengler Partnership.
Upon his arrival in Australia the husband undertook an intensive English as a second language course.
In the home of his parents and whist the parties were together Country V was the preferred spoken language.
The parties met in Country V in 2008, were married on C Island the following year and then lived together in Darwin from 2009 to March 2014. This was the first occasion since birth that the mother had returned to Darwin.
On 19 March 2014 the wife and the child returned to C Island and remained until January 2015. The husband contends that the date of departure represented the date of separation, whereas the wife considers that she went on an extended holiday with the clear expectation that she would return to Darwin and to the marriage.
The wife expressed surprise at the parties separation notwithstanding that she agreed there had been arguments and frequent angry exchanges.
Following separation the husband spent time with the child pursuant to orders made on 16 March 2015 which was increased by consent on 14 March 2016 to five nights per fortnight and half school holidays.
Notwithstanding the obvious differences between the parties neither complains that the orders have not been complied with.
There is a high level of co-operation between the parties.
The wife accepts that the child has a close relationship with the paternal family. The husband works long hours in the family building business. School collections are undertaken by the paternal grandmother during times the child spends in the husband’s care.
The parties agree that their communication has been civil and for the last twelve months there has been an absence of acrimony.
There is a level of flexibility in the arrangements in respect of the child spending time with the husband and passing between the parties.
The husband is able to attend the wife’s premises to collect and return the child and they are able to interact without rancour or argument.
A significant issue in the proceedings is the wife’s struggle with the English language. The wife is not fluent in English and whilst she has enrolled in a course targeted at improving her English comprehension and language skills it seems uncontroversial that her English is faltering at best.
In the wife’s home she only converses in Country V with the child. In the husband’s home the husband speaks to the child in both English and Country V but acknowledges that any communication with the paternal grandparents is in the Country V language.
Whilst the parties disagree as to the extent of the child’s proficiency in English, the best that can be said is that at present English is still her second language but as would be expected her linguistic development is credible.
The child’s school reports highlight that her academic performance is at present hampered by her lack of proficiency but it is reasonable that it is likely that the child’s attendance at school will promote rapid development.
Each of the parties has extended family on C Island. During a recent return visit in June and July 2016 by the wife, the husband also arrived on C Island at the same time. Arrangements were made for the child to spend time with the husband and his family members.
The wife is unhappy in Darwin and asserts that she has few friends and family in Australia.
She considers that she would have extended family support in Country V and whereas her employment prospects in Darwin are poor, on C Island she considers that she would have no difficulty in obtaining employment.
She considers that the husband’s financial position is secure and his family have a long history of frequent travel to C Island. One of the husband’s siblings currently resides on C Island.
The husband argues that the child is not yet of an age to form a view as to whether she would prefer her life to be based on C Island or in Australia. He is not irreconcilably opposed to the child’s relocation but rather considers that there is significant benefit to the child to be gained by her remaining in Darwin for the foreseeable future.
To the extent that the husband recognises the importance of the child maintaining a close connection both geographically and culturally with C Island he argues that the child can holiday in Country V on a regular basis. The husband is of the view that the child can maintain the cultural advantages of frequent holiday travel to C Island but gain the advantage of the superior educational opportunities in Darwin together with a more reliable healthcare system. He also doubts whether the child’s proficiency in English will continue to develop away from an English speaking environment.
There are also practical difficulties in the wife’s proposal in terms of the cost of travel and what he considers to be the unrealistic proposal that the wife could return to Darwin for a three month period each year.

Parties financial position

At the commencement of cohabitation the husband had interests in various parcels of real estate, motor vehicles and his partnership interest in the family tiling business which was the precursor to the home building business.
The wife had a one half interest with her brother in a property at F Town on C Island comprising of six self-contained units under construction.
During the course of cohabitation the parties initially resided in the home of the paternal grandparents whilst building works were undertaken in a house property situate at D Street, Suburb E (“the D Street property”).
The husband concedes that the wife was the child’s primary carer and he does not contest her contribution as a home marker but considers that his financial consideration as reflected by his long hours was necessary to advance the family finances.
The parties have generally kept their finances separate during the relationship. It is not argued by the wife that the husband was financially controlling. Monies were placed into the wife’s account.
The husband acknowledges that the wife did not ever engage in paid employment or indeed any continuous employment.
The husband is a licenced tradesman and has the position of project manager and licenced holder for the family partnership.
Currently the husband pays spousal maintenance of $250 per week and pays the expenses in respect of the wife’s motor vehicle but not petrol.
By agreement the husband has paid some of the outgoings in respect of the wife’s current rental accommodation.
In addition, the husband is subject to a child support assessment. There are no proceedings either for a review or a departure in respect of the child support paid. For the assessed period being 1 December 2016 to 28 February 2018 the monthly rate is $1,249.67.

Parties legal fees

At the commencement of the proceedings a schedule of costs and disbursements was provided on behalf of each of the parties. The documents now comprise exhibit “3” in the proceedings.
The total legal fees for the wife including the estimated costs of trial are $105,346 of which some $5,099 has been paid.
The total costs and disbursements of the husband are $138,959.84 of which $129,962.94 has been paid. The estimated legal fees for the anticipated costs of the trial are between $10,000 and $12,000.
The wife has also agreed to reimburse the husband one half of the valuation fees and other litigation disbursements in the total sum of $28,813.30. The wife agrees that he should receive $14,406. An issue remains with the payment of the family consultant’s fees.
The pool of property available for division is at best modest and the fees incurred by the parties represents a significant percentage of the property available for division.

The evidence

The husband

The husband relied upon his trial affidavit and financial statement filed 21 June 2017 and his affidavit in reply filed 15 August 2017.
The husband agreed that he received significant benefit from his business. His evidence was that the business paid for his child support, taxation, motor vehicle and other expenses and his contribution towards the outgoings as a result of him residing at his parents’ home.
He was asked to consider the information contained in his financial statement and in particular the reference to income from the partnership business estimated to be in the sum of $1,000 per week.
Paragraph 58 of the husband’s trial affidavit sets out his income from the tiling partnership and the home construction partnership but excludes rental income on the D Street property is as follows:-
a)2010 - $17,936 (gross);
b)2011 - $51,918 (gross);
c)2012 - $90,442 (gross);
d)2013 - $163,368 (gross);
e)2014 - $212,600 (gross);
f)2015 - $178,906 (gross);
g)2016 - $258,235 (gross);
The husband agreed that there was clearly an error but was not able to explain the difference.
He was shown his financial statement filed on 20 February 2015 which repeated his income as being the sum of $1,000 being the total salary or wages (not shown as income from the partnership business), a rental benefit of $700 and the rent received from the D Street property.
The importance of the accuracy of the 2015 financial statement was that it provided the relevant financial information upon which the wife was to consider her application for financial support. The husband agreed that the figure in 2015 should have been $3,000 per week.
The husband had not yet prepared his personal income tax returns for 2017 and whilst he was unable to provide any accurate information as to his likely taxable income I am entitled to find that the 2017 financial year will be similar to income received in 2016.
The husband was asked whether in respect of his disclosure of property in his current financial statement he had an interest in property of value greater than $10,000.
The import of the question was designed to highlight that in his 2015 financial statement he recorded that he held a 25 per cent interest in a property situate at P Street, Suburb Q (“the P Street property”).
It appears in the 2015 financial statement as a property in which the husband holds a 25 per cent interest and in the revised and amended valuation report prepared by Mr J (“the single expert”) to value the interests of the husband in the building and construction partnership. The executive summary provides that the value before taxation and realisation costs is $244,970 and after deducting realisation costs of $54,325 the net value of the husband’s interest is purported to be $190,645. Adopting a capitalisation of earnings method and bringing to account the adjusted book value the assets and liabilities surplus to the operation of the business includes the P Street property valued at $615,000.
The issue of contention raised in cross examination was whether the P Street property should have been included in the business valuation or whether it should have been considered as personal to the husband.
The husband was referred to his personal tax return for 2014. By reference to the rental property schedule the husband brought to account deductions totalling $36,577 in respect of the P Street property. The schedule refers to the husband’s ownership as 100 per cent.
His income for the 2014 was by way of distribution from the partnership in the sum of $195,840 and taking into account deductions (predominantly in respect of a net loss attributable to the P Street property) the husband’s net taxable income was $149, 364.
The title search for the P Street property corroborated the details as set out in his income tax return.
The husband provided his 2016 tax return which showed an income of $246,472 with various deductions but in particular a net loss in respect of expenses exceeding income for the D Street property of $6,623. There is no reference to the P Street property.
As discussed the P Street property appears in the husband’s financial statement filed 20 February 2015 (albeit as to a 25 per cent share) but does not appear in the 2017 financial statement.
The husband was not able to explain any aspect of the status of the P Street property. His evidence was unimpressive. The certificate of title does not indicate a recent transfer from the husband to the partnership. The husband clearly obtained a substantial taxation benefit for the years of ownership of the P Street property up to at least 2014 and having regard to his 2015 financial statement net rental losses were claimed for the property for the 2015 financial year.
In the absence of any evidence to suggest otherwise, I find that consistent with the certificate of title, the husband is the sole registered proprietor of the P Street property.
Paragraph 35 of the husband’s trial affidavit refers to the “assets of significance and/or liabilities” held by the husband and wife at the date of commencement of cohabitation.
The husband refers to the D Street property as land formally owned by his father who had purchased it on 29 March 2007 and transferred the property to the husband on 15 May 2009. The husband intended as an owner/builder to construct a home on the property and he says that he borrowed $480,000 from the TIO. The loan was insufficient to complete the construction and the husband’s parents obtained a further loan of $210,000 against a property at R Street, Suburb S.
Whilst the husband’s father paid conveyancing expenses and stamp duty associated with the transfer, it is the husband’s evidence that he did not pay any money to his father for the land.
The husband was asked to consider a document which records the various transactions in respect of the D Street property. It records that the husband’s father purchased the property in 2007 for $99,000 and transferred the property to the husband for $130,000.
It was put to the husband that he had tried to hide the money that he paid to his father.
The husband conceded that of the $480,000 borrowed from TIO, $130,000 was used for the purchase of the D Street property. The balance of $350,000 was the sum used to commence the house construction.
The husband’s evidence was unimpressive. Whilst little may turn on the circumstances relating to the acquisition and development of the D Street property, the cumulative effect of the husband’s evidence is that in the absence of other evidence that confirm and corroborates the details, the court is unable to place any significant weight on the accuracy of the husband’s 2015 and 2017 financial statements either as to income or in respect of any interest he may hold in property.
The husband confirmed that the financial information as set out in the 2015 and 2017 financial statements is inaccurate. He does not know what his current income is.
Exhibit “7” in the proceedings is a drawings ledger for the husband’s drawings from 1 July 2014 to 10 August 2017. The drawings are considerable but the husband’s evidence is that he does not know how the drawings are brought to account and to what extent they are reflected in his income.
A perusal of the drawings schedule reveals that the husband was in the general habit of withdrawing about $1,000 per week with a range of other personal expenses including child support, income tax and his solicitors’ fees.
The husband conceded that he would consent to the wife and child travelling to Country V for four weeks at the end of each year and for some period mid-year but perhaps to alternate such travel each year.
Neither party appears to have any concern in respect to the child travelling between Country V and Australia. The husband accepts that it is not the intention of the wife to alienate the child from him and whether the child is in Country V or more particularly C Island or Darwin the parties seem to be able to agree arrangements for the child to spend time with the husband.
A significant thrust of the wife’s case is predicated on her unhappiness at remaining in Darwin. The husband accepted that the wife presents as being unhappy and agrees that she is the subject of social isolation.
There is some evidence that the husband intervened where members of the Country V community sought to denigrate the wife.
The husband acknowledges that whilst he was against the wife taking the chid to C Island he did contribute $5,000 towards the costs of travel.
A feature of the husband’s evidence is his frank admission that the wife promotes and encourages his relationship with the child and his confidence that if the child was in Country V there would be no difficulty in ensuring that he would spend time with her.
It was also revealed that the families of the parties are related and accordingly the parties themselves are distantly connected.

The wife

The wife’s evidence was assisted by a skilled interpreter. I am satisfied that whilst the wife has some English language skills, they fall far short of that which would be necessary for her to participate in the proceedings without the assistance of an interpreter.
The wife relied up her trial affidavit and financial statement both filed on 2 August 2017.
The wife was questioned as to the source of funds used by her to pay her solicitor in May 2016. She conceded that she had deposited the sum of $5,099 into her solicitors trust account in part to obtain a private valuation report in respect of the husband’s interest in the building and construction partnerships.
She considered that most of the money had come from her but that she was helped to some small degree by her father.
The wife was asked to produce bank statements. Apparently the last discovery of bank statements was August 2016.
The wife agreed that in anticipation of the travel by her and the child to Country V in 2016, the husband provided $5,000 which was used to book airline tickets. The return tickets were purchased for $4,200.
She was asked to consider the cost of air travel between Darwin and C Island. She agreed with a figure that had been promoted by the husband namely about $5,400 for two people to travel return.
The wife’s proposal is for the child to return to Darwin for an extended period up to three calendar months each year and in even numbered years an additional two week period during the Christmas school holidays provided that until the child is aged 10 years, she will accompany the child. The husband is to pay the costs of the child’s travel whereas the wife will pay her costs.
The wife accepted that if she is not able to accompany the child to and from Country V then there would be no difficulty in another person being involved, whether from the wife’s family or the husband’s family.
To some extent the wife’s evidence was predicated upon her belief that there is considerable travel between Darwin and C Island by members of the parties’ extended families. She expressed some confidence that such is the extent of travel that it is likely that the requirement for there to be an accompanying adult would present little difficulty.
Whilst there is no certainty as to the ready availability of an accompanying adult other than the husband and the wife, her evidence again further demonstrates what she considers is a respectful relationship that she has with the husband and his family.
The wife also conceded that the child could return to Darwin each alternate Christmas period and for Easter in each year. Whilst conceding the possibility the wife’s response was that the husband is keen to travel to Country V as is his family. They have a house on C Island. Some members of the husband’s immediate family now reside on C Island. The child could spend time with the husband in Country V during these periods.

The wife was challenged as to her proposal to return the child to Darwin during the northern hemisphere summer. This also represents the peak tourist period from April to October. The summer holidays are from June to September.
The wife’s proposal is that if she is able to relocate the child to C, she will find ready employment in the hospitality industry in particular the wife relies upon the evidence of her aunt (and her godmother) namely Ms L. Apparently Ms L owns a hotel on the island of C comprising 61 rooms. The bookings are heavy for approximately six months of the year but from November to March the hotel is closed. She employs about 15 people and her evidence is that she will employ the wife.
The wife was challenged as to how she would maintain employment during the tourist season when her proposal provides that she will be in Australia for up to three months at the same time. The wife’s evidence that she would manage either in her aunt’s hotel or some other establishment was unconvincing.
The wife was required to undertake an English proficiency course in order to retain her Centrelink entitlement. The course is extensive, requiring 800 hours of attendance. It can be undertaken on a part-time or full-time basis. At present the wife has completed about 125 hours and given her rate of progress, it is likely that the course would be completed in about one year.
The wife was challenged as to why she could not undertake a full-time course in circumstances where she is not otherwise employed. Her response was to highlight the general parenting considerations in respect of the child notwithstanding that the current orders provide for the child to be in the husband’s care for five nights per fortnight.
The child is also enrolled in full-time primary education.
I do not consider that a finding could be made that the wife was deliberately thwarting any attempts to improve her English skills.
I am satisfied that the poor level of English proficiency is a significant issue for the wife. She considers that the child’s first language is Country V and whilst at times the husband may speak to the child in English, it is likely that the child’s first language will remain Country V.
The wife concedes that she’s not able to assist the child with her English homework but I accept that the wife recognises that it is of both importance and advantage to the child to improve her English language skills.
The child presently spends five days per fortnight with the husband. In the event that the wife and child are not permitted to relocate, the wife’s proposal is to reduce the current time by one night per fortnight. The proposal is that the child would spend time with the husband each alternate Friday to Monday and overnight between Wednesday and Thursday of the intervening week.
The wife concedes that the husband is a positive influence on the child and acknowledges her understanding of the husband’s proposal namely to increase his time with the child to equal time. The wife does not consider that equal time is in the best interests of the child.
Whilst the parties have a reasonable relationship and communication is possible, the principal concern of the wife is that the child is too young and she perceives the needs of her daughter as not being served at this stage by spending equal time in the homes of the parties.
Whilst adopting that position she further conceded that if the child is required to remain living in Australia then whilst the husband’s formal time would be reduced by one night per fortnight he can see the child effectively whenever he wants.
Much of the wife’s proposal in respect of travel to and from Country V is predicated on her ability to pay for the costs of travel.
The wife’s proposal is that if the child is permitted to reside on C Island then she and the child would return once per year for an extended period but in terms of Country V Easter and Christmas holidays that would be on the basis of the husband seeing the child on C Island. It is not intended by the wife that there would be a further trip to Darwin unless paid for by the husband.
When asked to further consider the proposed 12 week period in Australia she agreed that the child would need to come back to her care for one night per week.
At present when the child spends time with the husband for three days the wife says that the child asks for at least one telephone call to her.
On the wife’s current proposal the maximum time that the child would be able to spend with the husband would be six days. The wife concedes that this would not be enough time for the husband to take the child for an extended holiday and she agreed that there would be no difficulty in an agreement being reached for a longer period of time.
The wife did not agree that if the child was in Country V it would lessen her relationship with the husband. It was a feature of the wife’s evidence that whilst required to present a clear proposal, the details were unimportant given her view that she would promote the child’s relationship with the husband and his extended family whether that be in Country V or Australia.
The wife was challenged as to the date of separation. The wife strongly disagreed with the proposition that she knew the parties had separated prior to her extended holiday in Country V. Whilst little turns on the point, the wife’s evidence is convincing that she did not promote the parties separation and was surprised by the husband’s refusal to consider reconciliation.
The financial aspects of the wife’s proposal were challenged. If the court did not require the husband to pay for the child to return to C Island then the wife conceded that she would not be able to pay.
At the time of separation the relationship between the parties was poor but the wife considers that it is now better and she has some confidence that it will remain so.
The wife presently is in receipt of a sole parent pension. As the child gets older it is likely that the extent of the pension entitlement will reduce and she will be required to find work. Given her poor English, any work available would be menial, poorly paid and unreliable.
Her current accommodation is expensive and whilst she acknowledges that an application for public housing could have been made by her, she was reluctant to do so given her view that public housing would be of a poor quality and in an undesirable area.
The wife confirmed that she communicates by Skype daily with her friends and family. Whilst she acknowledges that there is no impediment to this arrangement continuing, she did not agree that electronic communication is a panacea for actually being present in their company.
The wife has her own accommodation on C Island that she can afford whereas in Darwin that is unlikely to be the case. She also has the advantage of extended family and the connection with the husband’s family in particular his siblings.
Whilst the wife had a troubled and difficult relationship with her brother who resides in Darwin she now accepts that he is supportive and they have reconciled their differences. She remains close to her cousin who also resides in Darwin.
The wife was cross examined as to the extent of her interest in the six units in the apartment block owned jointly with her brother. The wife’s evidence is that she knows little about the day-to-day management of the units. Her father has taken on that role. She agreed that there were six apartments but some of them are shops and some of them are used by members of the family with no rent charged. One half of the units are still under some form of construction.
The wife was shown some photographs taken by the husband’s brother.
She agreed that they identified the apartments and that from time to time people do occupy the units. Whilst I accept that the wife has a valuable interest in the units, its importance is to corroborate the wife’s evidence that she has secure accommodation on C Island rather than evidence of a significant financial resource by way of rental income available to her.

Mr N

The evidence of this witness is contained in his affidavit filed 2 August 2017.
He is a linguist and an educator and I accept that he holds high qualifications in the area of English competency and interpreter training.
The wife was assessed by the witness in March 2016 and then by Skype in July 2017. The purpose of the interview was to assess her level of “oral communicative proficiency (i.e. in listening and speaking)” in the English language.
By reference to a widely accepted scale for assessing proficiency of English as a second language, he assessed the wife’s proficiency as level 2 (basic social proficiency).
Her English proficiency would enable the wife to satisfy basis social needs and to engage in “linguistically undemanding vocational fiends”.
In terms of employment the witness considered that her English was such that she would be able to serve at a cash register or behind a counter selling a limited range of goods (such as in a Country V delicatessen) but not to the proficiency required of a sales consultant if subject to customer query or discussion.
The witness agreed that there had been an improvement from a level 1+ in 2016 to her current level.
The witness was impressive.

Mr M

The witness relies upon his affidavit of 2 August 2017. He is the cousin of the wife and resides in Darwin. He is kindly disposed towards the wife and they have a close family relationship.
He observed that the demeanour of the wife following separation was withdrawn, sad and despondent.
He spends significant time with the wife and the child and if the court permits the child to relocate to C Island then he offers his accommodation to the wife when she proposes to return to Darwin in the mid-year holidays.
I accept that the witness will continue to support the wife.
It is his observation that the child is better able to express herself in the Country V language rather than in English.

Mr K Thomas

The witness relies upon his affidavit filed 2 August 2017. He is the wife’s father and lived in Australia from 1968 until 1986 when he returned to his home on C Island.
He confirms the wife’s evidence of a large family on C Island with significant family support.
The witness agreed that if the wife and child remained in Darwin then he would be prepared to visit on a regular basis. His commitments are such that he would be able to travel for a few months at a time and there is no period in the year that is better or worse for him.
He denied that there was any ongoing rental arrangement in respect of the property at F Town, C Island. When asked who was at the premises at 10.30 pm on 11 August 2017 he denied that any of the units were occupied by tenants but rather that he was present until midnight.

Ms L

The witness relies upon her affidavit of 2 August 2017. The witness is the wife’s aunt and corroborates the wife’s evidence that she has a business in Country V and would be prepared to employ the wife.
The evidence is that the business operates during the tourist season but is closed for six months of the year. Given that the wife intends to return to Darwin during the mid-year break the obvious question was the extent to which the wife would be available for employment notwithstanding that she has a capacity to do so.
The witness did not answer the question but gave evidence generally that she is supportive of the wife’s proposal and in particular of the child maintaining a relationship with the father and she would provide flexible employment arrangements with the understanding that the wife may well return to Darwin with the child for extended period during the high season.

Family consultant

Mr T (“family consultant”) has published reports dated 1 September 2015 (‘the first report”) and 5 December 2016 (“the second report”).
The first report was prepared in order to assist the court in determining the future parenting arrangements. At the time of the first report the child was aged four years and nine months. The interim orders provided for the child to live with the mother and spend time with the father from Saturday 1 pm until Sunday 5 pm each week as well as each Wednesday from 5 pm until 9 pm.
The father sought orders for equal shared parental responsibility with the child to live in the primary care of the wife. His orders were consistent with significant and substantial time and it was important to the husband that the child has the opportunity to have and build a strong relationship not just with him but with his extended family. He sought that ultimately the child spend equal time in the care of each party.
The family consultant considered the issues in dispute being:-
a)The extent of time that the child should spend with each of the parties;
b)The level to which the wife’s intention to travel with the child overseas to Country V should be accommodated.
At the time of the assessment the wife’s position was that she would wish to travel to Country V every one to two years in the months of June and July to see her family. It was not her intention during the course of the first assessment to relocate the child’s residence to C Island.
The wife considered that there was a significant level of animosity directed at her by the paternal grandparents. She considered that they disliked her and were actively working to undermine the parties’ post-separation relationship.
The recommendations in the first report supported the agreement of the parties that there be equal shared parental responsibility, that the child live primarily in the care of the mother but spend significant time with the father. Importantly, the recommendation of the family consultant was to permit the child to travel to Country V every two years for a period of no longer than six weeks.
The second report was by way of update in order to assist in the future parenting arrangements.
The wife had altered her position in respect of relocation since the first report. It is recorded that she complained of isolation, loneliness and given her linguistic difficulties considered that she had little prospect of employment.
The family consultant noted that the child had a “positive and loving relationship with both parents”.
At the time of the second family assessment and as a result of orders made in March 2016 the child spent significant time in the care of the father notwithstanding earlier misgivings by the wife in respect of the paternal grandparents.
The family consultant was “inclined to view the mother’s proposal to relocate with [the child] to [C Island] as possibly consistent with the promotion of [the child’s] best interests”. The family consultant considered that it would be potentially detrimental to the child’s wellbeing if the wife remained both isolated, unhappy living in Darwin and not able to adapt.
The impediment to the implementation of the wife’s proposal was the extent to which it was viable. That question was to be considered by reference to the financial circumstances of the parties and the ongoing costs of the wife’s proposal.
It was an important consideration to the family consultant that there should be two occasions that the child could spend time with the husband per year whether that is in Country V or Australia.
The family consultant agreed that the child had a very positive relationship with the parties and the extended family. She did however present as a shy child and not without signs of some stress.
The principal reason for the family consultant supporting the wife’s relocation proposal was his acceptance of her lack of financial resources, family support, cultural isolation and unhappiness. Obviously if this changed then that would be a relevant factor.
The family consultant had not seen the parties or the child for 11 months. When asked to consider the current school reports it was his opinion that the child should be performing at a higher level given that the parents are bright. Whilst he could not form a conclusion as to why this might be, the obvious factors might be that the child is unsettled and possibly held back by lack of English language proficiency.
The family consultant was asked to consider whether one visit per year in accordance with the wife’s proposal would alter his recommendations given they were based upon the child spending time with the husband on two extended periods per year. On consideration, the family consultant considered that a 12 week period would be sufficient, but not ideal, to ensure that a meaningful relationship between the child and the husband is maintained.
In terms of the wife’s proposal to reduce the husband’s time with the child if she is not permitted to relocate with the child to Country V, the family consultant had no understanding of why that should occur and there were certainly no indicators of any difficulty in the relationship between the husband and the child.

Principles relevant to parenting orders

Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration. The test of what is in the child’s best interest is to be considered by the application of s 60B(1).
I bring to account the primary and additional considerations of matters as set out in s 60CC(2) and s 60CC(3) of the Act. There are no allegations that the child is at risk from the behaviour of either party.
I propose to adopt the following approach:-
a)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
b)To have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);
c)To have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
d)To have regard to the primary considerations under s 60CC(2) namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
e)To have regard to the additional considers under s 60CC(3);
f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be considered to one or more of the matters raised then it must be the subject of delineation and comment.
Section 61DA of the Act requires the Court to consider whether to apply to presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In the circumstances of this case, each of the parties seeks an order of equal shared parental responsibility regardless of whether the child remains in Australia or orders are made permitting the child to relocate to Country V.
In circumstances where the parties seek an order of equal shared parental responsibility and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. In MRR v GR (2010) 240 CLR 461 it was said that the considerations of whether equal time was feasible required a “practical assessment”.
Following the remarks of Finn J in Blanding v Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham v Desprez [2015] FamCAFC 247 there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.

The principles applicable to relocation cases

In AMS v AIF (1999) 199 CLR 160 Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
[216] An important, probably essential, step in the inquiry into who shall have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the court to decide where the custodial parent may live: that decision is to be made by the parent.
…
[218] To translate the question into this form – has the wife shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the wife. But that is not the proper focus of inquiry. The proper focus is whether it is better for the child – to be in the custody of the father ... or to be in the custody of their wife ... That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the wife’s custody ...

The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the co-existence principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC. The approach is not meant to be rigid such that:-
[38] ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals, in this case the wife’s application that the child relocate her residence to Country V.
Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities both international and local and summarised the position as follows:-
[47] All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow & Callinan JJ said in U v U:
...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
[48] “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)

Parenting considerations

Meaningful relationship

The child has a close and affectionate relationship with each of the parties. Whilst she lives primarily with the wife, she currently spends five nights a fortnight and extended periods during school holidays in the care of the husband and his family.
Each of the parties understands the importance of the child maintaining a meaningful relationship with the other. There is no suggestion by the husband that the wife has taken any steps to alienate the child. It is the wife’s clear position that the husband is able to attend at her premises at any time to see the child. The lines of communication are open and I am satisfied that even when the wife and child were on C Island she made an effort to ensure the child spent time with the husband’s extended family and when he was present, with him.
Despite the inabilities of the parties to reconcile their personal differences there is little by way of complaint by each of them against the other.
To date court orders have been complied with and there is not suggestion that it would not occur into the future.
In Godfrey v Sanders [2007] FamCA 102, Kay J said:-
[36]…Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
An important consideration is whether on the evidence I have confidence that wherever the child may be living, the wife will promote and foster the child’s relationship with the husband.
It is not suggested by the husband that the wife bears any malice towards him or that her conduct in respect of arrangements for him to spend time with the child have been adversely impacted by malice or disruptive conduct.
The family consultant considered that the wife’s presentation was genuine both in terms of action and motivation and that he could have some confidence in her returning to Australia with the child from holidaying in Country V and in the second report if the child was permitted to reside in Country V that the wife would ensure contact was maintained for an extended period in Australia and on other occasions either in Australia or in Country V.
The family consultant considered that the period of time that the wife was proposing namely about 12 weeks together with other time would be adequate to ensure that the relationship between the child and the husband was not lost.
The issue for the family consultant was not the gravamen of the wife’s proposal but rather whether the mechanics were beyond the financial capacity of the wife.
His recommendations providing some support for the wife’s proposal was entirely predicated upon the child being able to spend an extended period of time with the husband and if possible on two occasions in each year.
It seems therefore that the child will be able to maintain a meaningful relationship with the husband in terms of the broad proposal of the wife subject to it being reasonably practicable.
The proposal of the husband is that if the child is not permitted to relocate then orders should be made which would transition the child to spend equal time with each of the parties.
Given the strength of the relationship with the child and the parties there is nothing in respect of the husband’s proposal that would in any way diminish the relationship that the child would have with the wife.

The child’s wishes

The child is currently six years and seven months of age. There is no evidence as to the views as expressed by the child. The last opportunity for that to occur was the assessment in preparation for the second family report. That occurred one year ago.
Whilst each of the parties makes reference to certain utterances of the child, I do not propose to afford them any weight.
Whilst I accept that the child is genuine in respect of any display of love and affection for her parents, there is nothing from the child that would assist in terms of the wife’s proposal for relocation or the husband’s proposal for his time to increase to equal time.

Involvement of the parties in the child’s life

The child has been in the primary care of the wife but has spent substantial time with the husband and his extended family.
I accept the husband’s evidence that he wishes to remain engaged in all aspects of the child’s life and to some extent this has been made necessary by his preparedness to assist the wife in the appointments and interviews in respect of the child where her English is not sufficiently developed.
Generally it is the wife who has provided the primary care for the child and I accept the evidence of the family consultant that the wife has the stronger emotional attachment to the child. She is more attuned to the needs of the child and when the child requires comfort she goes to the wife.
The husband’s evidence is to concede that the wife’s parenting of the child has been exemplary in circumstances where his work commitments were onerous and the duties of the primary parent and homemaker fell predominantly to the wife. In respect of the wife’s proposal whilst it will be more difficult for the husband to have direct input into the day-to-day issues affecting the child, I consider that he is likely to spend time with the child whether it is in Australia or in Country V.
The parties each seek an order of equal shared parental responsibility. Whilst it may initially be counterintuitive in circumstances where the parties and the child may be geographically distant, nonetheless the evidence of communication between the parties is surprisingly good.

The extent to which the parties have maintained the child

There is no complaint by either party that the other has failed to maintain the child or to undertake the obligations of parenting. The wife is the primary caregiver and the husband makes no complaint in respect of her conduct or the discharge of her proper obligations.
For her part the wife is respectful of the husband’s relationship with the child and recognises that it is of significance and benefit to the child that the relationship continues and is maintained.
Whilst the wife has some concern as to the potential malice by the paternal grandparents, nonetheless she recognises the advantage to the child of maintaining the relationship with the husband’s extended family.
The unusual feature of this family is that each of the parties have extended family both in Australia and in Country V.
There is no complaint made in respect of the husband’s financial commitment. He pays child support as assessed and at an appropriate level and for the present he pays spousal maintenance.

Like effect of the change in the child’s circumstances

If permitted to relocate there will be a clear change in the child’s circumstances. The mother’s proposal is that the child would reside on C Island and spend time with the father on at least one extended return visit to Australia each year.
The husband may well travel to C Island and spend time with the child in addition to the wife’s proposal.
That arrangement is a clear departure from the current situation which sees the child spending five nights a fortnight and significant periods during school holidays with the husband and his family.
The immediate potential adverse consequences are that the child will interact with the husband and his family less frequently. When she does spend time with him the periods will be much longer according to the wife’s proposal.
The husband’s proposal will also present as a challenge for the child. Whilst she currently spends substantial time with him now, the extension of that time to shared care or equal time would change the parental dynamics. At present the evidence suggests that the child is more strongly grounded in the wife’s home and considers her mother’s care to be the more secure environment.

The practical difficulty and expense of the child spending time with each of the parties

The wife’s proposal provides for the child to return to Australia for one extended period in the middle of each year and further time in Country V with the husband to coincide with Country V Easter and Christmas.
The wife acknowledges that the child will need to be accompanied for travel until she is at least 10 years of age and she proposes to return to Australia with the child at her cost but that the husband should pay for the cost of the child’s return travel. Any costs involved in the husband travelling to C Island will be borne by him.
Whilst subject to variation, the evidence is of an approximate cost of $5,400 for the wife and the child to travel to Australia and return to Country V. The cost of travel per person is about $2,700.
The wife’s financial resources are limited. Other than the interest that she has in the C Island real estate she has an entitlement to property settlement.
The wife has an offer of employment on C Island but it is acknowledge by her aunt (and prospective employer) that her income will be adequate but not substantial.
The husband contends that if the wife is permitted to relocate the child’s residence to C Island then the child spend time with him in odd years for all of the first school holidays and all of the northern hemisphere summer school holidays and in even years for all of the summer school holidays and all of the Christmas school holidays.
For the purpose of school holiday travel the mother is to pay airfares for the accompanying adult whether it be her or another person, shall book and pay for all airfares and the father shall reimburse the mother as to one half of the accompanying parent and child’s airfare cost within 21 days of receiving the itinerary.
Accordingly on the father’s proposal in the event that the child is permitted to relocate there would be the costs of return flights for the child and the accompanying adult on four occasions in odd years and on two occasions in even years.
As I understand the husband’s proposal, the wife would only be required to pay one half of the cost of the accompanying parent on four occasions in odd years and on two occasions in even years. On present indication the cost to the wife would be approximately $10,000 in odd years and $5,000 in even years.
The wife has significant family support and her own proposal is that she would quarantine $15,000 from any settlement sum paid by the husband to her to guarantee an adult accompanying the child on the return trip to Australia.
Whilst the wife’s proposal seeks that the requirement for an accompanying adult cease at age 10 there is no concession that such a proposition represents airline policy nor is there evidence to whether the child would be comfortable travelling on her own in those circumstances.
I propose to ignore that aspect of the wife’s proposal. If relocation is determined to be in the child’s best interest then a point will be reached where the parties will agree that an accompanying adult is no longer required or necessary.
It is also relevant that the husband and members of his family travel frequently to C Island, that the husband has extended family including siblings on C Island and that there is a family home in which he could reside.
There also exists the possibility that the child may well be accompanied not by the wife but by other members of the families’ of the parties.
Were it not for the proposal of the husband, the wife may well have experienced significant financial difficulty in managing the cost of travel between Country V and Australia. The proposal of the husband in circumstances where it is otherwise considered in the best interests of the child that she relocate, assists in determining that the proposals of the parties are practicable.
The financial circumstances of the husband are such that his proposal is realistic.

The capacity of the child’s parents to provide for the child’s emotional and intellectual needs

The gravamen of the wife’s case is that she is isolated, lonely and culturally dislocated.
I accept the wife’s evidence that following the breakdown of the marriage she has experienced an increasing level of unhappiness, anxiety and distress.
Whilst she has re-established a relationship with her brother that had been troubled and accepting that she has the strong support of her cousin, so obvious is her present distress that the husband recognises she is inconsolably unhappy.
Her English is perfunctory at best and without the financial support of the husband in terms of spousal maintenance and child support her circumstances would be desperate if not destitute. She is not able to obtain meaningful employment and her language proficiency has prevented her from engaging in the normal aspects of the child’s life. She is not able to easily attend a medical practitioner or other health professional. She requires the assistance of the husband to communicate with the child’s teachers and school staff. She is in need of psychological counselling and intervention but is not able to afford the costs of an interpreter to assist her in the process and the counselling sessions.
She is satisfied at present in her rental accommodation but the evidence suggests that there has been some challenge to the longevity of her lease and the prospect of public housing does not relieve her anxiety.
The husband also accepts that she has been culturally isolated from the C Island community even to the point where the husband has had to intervene on her behalf.
The evidence of the family consultant is that on present indications the wife is the child’s primary care figure and is the person with whom the child has the primary emotional attachment. The wife is clearly attuned to the child’s needs.
There is evidence that the wife’s distress and unhappiness has affected her ability to provide appropriate parenting for the child.
Whilst there has been some improvement in her language skills consistent with the wife having now obtained a level 2 status from a level 1+ status, nonetheless the progress is slow and frustrating for her.
The husband however is also able to provide for the child’s emotional and intellectual needs but is only able to do so by relying heavily upon his family but in particular his parents. At present the husband does not reside alone and it is difficult to separate the extent to which he provides from the child’s needs as opposed to other members of his family.
It is important to this child’s best interest that there is consistency of primary care and the wife’s wellbeing is therefore integral to the ongoing development of the child.

Cultural background and traditions of the child

The parties are proud of their Country V heritage. Notwithstanding that the child was born in Australia, English is her second language. The child has been inculcated into her Country V heritage and culture. She is strongly supported by the parties and their extended family both in Australia and in Country V. The child identifies with her Country V heritage and in particular with her grandparents, aunts, uncles and cousins.
The cultural aspects of the child’s live will be promoted upon either party’s proposal.

Conclusion

In the circumstances I consider that the wife’s proposal for the child to relocate to C Island is in the child’s best interests. It is important to preserve the primary relationship with the wife and it is unlikely that her position and wellbeing if required to remain in Darwin will do otherwise than deteriorate.
The wife’s proposal is for the child to return to Australia to spend time with the husband and his family on one occasion per year. The husband’s proposal is more extensive. The evidence of the family consultant is that two extended periods per year would be ideal and one period per year would be adequate.
The evidence of the wife is that two occasions may well be beyond her financial capacity. The proposal of the husband to financially assist in the costs of travel significantly ameliorates that consideration.
Whilst I do not consider that it would be practicable or indeed even possible for the wife to return with the child to Australia on four occasions as sought by the husband in odd years, I consider that it is both appropriate and practicable for the wife to return with the child on two occasions each year to coincide with the northern hemisphere mid-year holidays and the Christmas holiday period.
The husband considers that the wife’s proposal of 12 weeks whilst generous is too long. He argues that it is too long for the child to be away from the wife. He is not able to suspend employment for that period of time and the wife’s own position is that periods longer than two weeks should require the child to be returned to her care for at least one night.

It is clearly a matter for the parties in terms of how they would wish to agree the circumstances of the child spending time with the husband but I find that the minimum period should be eight weeks and thereafter it remains for the parties to agree such further or other time.
The parties have agreed to have equal shared parental responsibility and I have given careful consideration to the proposal of the husband which seeks a transition to equal time. That proposal is not practicable nor in the child’s best interests in circumstances where I have decided the best interests of the child are served by permitting the proposed relocation to Country V.
Whilst not able to be the subject of order the evidence suggests that it is more likely than not that the husband and members of his family will travel regularly to C Island and spend time with the child.
I am also able to find that the parties’ ability to communicate will enable them to give effect to the consensus necessary to ensure that major issues affecting the child are the subject of discussion and agreement.

Property settlement

The husband seeks orders that the Court should adopt a one pool approach which includes the husband’s superannuation entitlement with the other non-superannuation interests of the parties. By reference to that proposition it is not opposed by the wife. The husband seeks an adjustment of property represented by 72.5:27.5 per cent in his favour. Each party would retain such interests in realty and personalty that they currently hold and the only formal transfer of interest that is to occur is the transfer of the husband’s interest in the Japanese motor vehicle to the wife.
In respect of any settlement sum that is required to be paid by the husband to the wife to give effect to the adjustment of property that he seeks, that sum needs to be adjusted to bring to account the wife’s obligation to pay one half of the single expert valuation costs and disbursements.
The wife seeks orders not dissimilar to those of the husband save that she seeks a division of the property of the parties as to 55:45 per cent in her favour.

Legal principles to be applied

Both parties seek that there should be an alteration of their respective interests in property and I take into account that the parties are no longer living in a marital relationship and will not have the benefit of common or shared property.
Section 79(2) of the Act provides:-
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.
“Property” is defined in s 4(1) of the Act as meaning:-
…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion…
In Stanford v Stanford [2012] 247 CLR 108 the majority held:-
[35] It will be recalled that s 79(2) provides that "[t]he 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"…
Importantly, the Court found at [39]:-
…whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist…
I am satisfied that in the circumstances of this case and where the parties both seek an alteration of property interests that it is just and equitable for the Court to embark upon an adjustment of the property interests of the parties. The marriage is of significant duration and the parties each made a mutual commitment to each other.
At the commencement of the proceedings counsel tendered a joint balance sheet setting out the assets and liabilities of the parties. That document is exhibit “1” in the proceedings.
There is agreement in respect of the identity and value of the following interests of the parties:-
a)D Street, Suburb E (husband)  $690,000
b)F Town (wife’s 50 per cent interest)  $122,669
c)ANZ account …49 (husband)  $        18
d)ANZ account …22 (husband)  $    1,131
e)ANZ account and online saver …33 (wife)  $    1,000
f)Van motor vehicle (husband)  $    4,600
g)Japanese motor vehicle (wife)  $ 14,400
h)Household contents (wife)  $    1,000
i)Bond paid by husband (wife)  $    2,000
j)Ausfund superannuation (husband)  $        49
k)ATO unclaimed superannuation (husband)  $      848
The parties are not agreed as to the treatment of the agreed valuation of the husband’s interest in the home construction partnership valued by the single expert at $157,454. The parties are not agreed as to the treatment of the payment by the parties and their current indebtedness for legal fees.

Husband’s interest in the Spengler Partnership

The parties jointly instructed a single expert forensic accountant to undertake a valuation of the husband’s interest in the Spengler Partnership.
The single expert had the advantage of financial accounts in respect of the partnership entity up to 31 May 2017.
He issued a draft report on 2 June 2017, a first final report dated 18 July 2017 and a revised final report dated 14 August 2017.
The principal underlying asset of the business is its interest in various properties. Obviously, the real estate held by the business changes as properties are sold and new properties are purchased.
The single expert had the advantage of a real estate valuation report for the properties held by the partnership as at July 2017.
The balance sheet of the partnership records 10 properties with a total value of $7,090,000. As discussed one of the properties is the P Street property with an agreed value of $615,000. It is also agreed that there is an outstanding liability in respect to this property agreed at $533,611.
A summary of the property held by the partnership and the loan balance forms exhibit “5” in the proceedings. The short summary is that the total value of the properties is $7,090,000 with an outstanding loan balance totalling $5,933,925.
The single expert considered the valuation methodology by reference to capitalisation of future maintainable earnings and a cross-check by reference to net asset value.
Annexure “2” to the valuation report annexed to the affidavit of Mr J filed 15 August 2017 sets out the net assets of the partnership.
The total net assets are in the sum of $979,881 which is determined by the following:-
Partner account   $1,021,645
Less re valuation adjustment   ($41,764)
Interest in partnership  $   979,881
The husband holds a 25 per cent interest in the partnership and accordingly his interest is valued at $244,970. That figure is further reduced by the realisation costs of $54,325 with a final valuation figure representing the value of the husband’s interest in the partnership at $190,645.
During the course of the proceedings I raised with counsel the partnership loan accounts as described in annexure “4” to the valuation document. That document raised an adjustment for construction cost for the P Street property of $60,273 for each partner with what appears to be a credit loan account in favour of the husband in favour of $167,895.
During the course of the hearing the single expert was asked to review his report and it was agreed that the husband’s interest in the Spengler Partnership was $157,454. I was not told of the basis upon which the single expert has revised his valuation of the husband’s interest. The single expert was not called to give evidence and in particular I am not assisted by the lack of evidence from the husband as to the status of the P Street property.
The preponderance of the evidence comprising the husband’s 2013 and 2014 taxation returns, his 2015 financial statement, the certificate of title in respect of the property and what I consider to be the unimpressive evidence of the husband on the topic supports the finding that the P Street property should not be included in the valuation of the husband’s partnership interest but rather on the husband’s side of the ledger.
In Lenehan & Lenehan (1987) FLC 91-858 the Full Court said at page 76,142:-
A trial judge, as part of his ultimate responsibility under sec 79 or otherwise, is normally required to determine a number of issues. Some of those issues may properly attract the evidence of expert witnesses. In appropriate circumstances, their opinions are admissible to assist in the determination of such an issue. It is the responsibility of a trial judge to take into account the opinion of such witnesses; however, the ultimate duty of the judge is to determine the issue on the whole of the material before him including such opinion. The expert evidence is called to enable the judge to form his own independent judgment on the matter by application of the appropriate principles.
Further at page 76,142 and considering what the High Court said in Commonwealth v Milledge (1953) 90 CLR 157:-
The problem is not to eliminate the idiosyncrasies of the individual opinions; it was to form an estimate which really satisfied his Honour’s mind as being the value of the property to the plaintiff on the material date.
I am not able to easily determine the basis for the most recent downward revision of the value to be attributed to the value of the husband’s interest in the partnership.
There is agreement however that the net value of the P Street property is $81,388. 25 per cent of that figure is $20,347. I propose to reduce the agreed value of the husband’s interest in the partnership of $157,454 by $20,347 thereby reducing the value of the husband’s interest to $137,107 but to return the husband’s 100 per cent interest in the P Street property to the balance sheet.

Legal costs

Exhibit “3” annexes the statement of legal costs for each of the parties. As at the date of commencement of trial the husband had incurred total costs and disbursement of $138,959 of which $129,962.94 had been paid. The wife was in a very different position. As at the date of commencement of trial she had incurred costs of $105,346 of which only $5,099 had been paid. Accordingly the wife was indebted for approximately $100,000 whereas the husband’s level of indebtedness was about $9,000.
The husband seeks that each party deal with their legal costs separately and that they not be brought back to account. The wife seeks that the extent to which the husband has paid his legal costs should be added back into the balance sheet.
In Chorn & Hopkins (2004) FLC 93-204 the Full Court considered the approach to legal fees incurred (and paid) by parties in the following paragraphs:-
[55]This decision appears to confirm the principle that where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to addback those costs as a notional asset. It also confirms the principle that where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. The decision also supports the proposition that where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account.
[56]In summary, we consider that the abovementioned decision of the Full Court established that, while the treatment of funds used to pay legal costs remain ultimately a matter for discretion of the Trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
[57]If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the parties, who has had the benefit of them.
[58]If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the party. Funds generated from assets or businesses to which the other party has made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
[59]Outstanding legal fees themselves are generally not taken into account as a liability.
[60]If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.
There is evidence to assist in determining how the husband has been able to pay his legal fees, costs and disbursements. It is not self-evident from his trial document but exhibit “7” tendered by the wife’s counsel is the general ledger setting out the husband’s drawing accounts for the period 1 July 2014 to 10 August 2017.
A perusal of the exhibit shows regular payments made from the partnership account to the husband’s solicitors.
It is difficult to determine the manner in which the husband’s drawings have been brought to account. Clearly the husband has been able to pay his legal fees as and when they fall due. Whether the payment is ultimately reflected as part of the husband’s income or is dealt with in a different manner in the books of account for the business is not known. It is also a relevant consideration that the financial statements as annexed to the report of the single expert valuer are at least suggestive of a substantial credit loan account in favour of the husband.
I consider it an appropriate exercise of my discretion that the legal fees paid for by the husband should be brought to account as a notational asset. There is no liability that needs to be taken into account and I will add back in to the balance sheet the sum of $129,962 less the sum of $5,099 being the amount paid by the wife as contribution towards her legal fees being the net sum of $124,863.

Assets and liabilities of the parties

The following list of assets and liabilities are to be considered:-
ASSETS
F Town (wife’s 50 per cent interest)  $ 122,669
D Street, Suburb E  $ 690,000
P Street, Suburb Q   $ 615,000
Money in bank (wife)  $     1,000
Money in bank (husband)  $     1,000
Van motor vehicle (husband)  $     4,600
Japanese motor vehicle (wife)  $    14,400
Interest in Spengler Partnership (husband)  $ 137,106
Household contents (wife)  $     1,000
Rental bond (wife)  $     2,000
Legal fees added back (husband)  $ 124,863
Ausfund Superannuation (husband)  $        897
TOTAL         $1,714,535
LIABILITIES
Mortgage on D Street property  $   428,652
Mortgage on P Street property  $   533,612
TOTAL  $   962,264
BALANCE  $   752,271

Contributions of parties

Each of the parties has made a valuable contribution to the acquisition, conservation and improvement of property.
The husband considers that he had made the greater financial contribution and refers to his interest in property situate at U Street, Darwin purchased on 6 November 2006, his interest in the D Street property transferred from the paternal grandfather to him in May 2009 and his interest generally in the family tiling partnership as a precursor to the home and construction partnership. The wife promotes her contribution in respect of her 50 per cent interest in the C property.
Neither of the parties produced evidence as to the value of their separate interests as at the date of commencement of cohabitation.
The wife accepts that notwithstanding the confusing evidence of the husband as to the manner in which the U Street property was purchased, whether consideration was paid by him to his father for the D Street property and the retention by the husband of a shed at Winnellie, NT, his contribution should be considered as superior to that of the wife and represented by an apportionment of 65:35 per cent in his favour.
In final submissions the husband’s counsel did not seek to argue a different outcome.
Whilst the percentage adjustment is significant and made more so when considering the differential argument namely that at the stage of the consideration of the parties separate contributions there is a difference of 30 per cent as between them, any consideration of a percentage adjustment must be measured against the pool of property. It is the dollar outcome that is the proper measure in the consideration of either the contributions of the parties and factors pursuant to s 75(2) of the Act.
I propose to fall in with the submissions made by counsel.

Section 75(2) factors

Section 79(4)(e) requires a consideration of s 75(2) of the Act. The parties are of similar age. There are no issues in respect of medical health.
The orders that I propose to make in respect of the ongoing care arrangements of the child will see the wife and the child being permitted to return to Country V. She will incur the overwhelming financial obligation in respect of the care of the child. Whilst I accept the evidence of the wife and her aunt that there will be employment made available to her, the evidence is that it will be modest although not necessarily ungenerous when considered against the lower day-to-day level of expenses in Country V.
Whilst there is some uncertainty as to the husband’s income the clear evidence is that it is substantial.
The husband’s most recently filed taxation return for the 2016 financial year (exhibit “6”) discloses a taxable income of $246,742 and the husband agrees that whilst he has not filed his 2017 return, it is reasonable to assume that his taxable income will be similar to previous years.
I do not ignore the complexity that can arise when considering the extent of an adjustment made to give effect to s 75(2) factors arising from income generated from the retention of a business interest that has been valued and brought to account. Whilst it was not argued before me, I do not ignore that the husband’s interest in the building and construction partnership has been determined to have a value of $137,106.
In McF & McF [2004] FamCA 1309 the Full Court considered the point as follows:-
[18]The profit making capacity of the business was already factored into the valuation, and I perceive there is an element of double dipping, paying attention to the income it earnt. If the wife sold the business, she lost her greater earning capacity. Accordingly, whilst its value was appropriately included in the pool of divisible assets, the fact that she will be required to buy out the husband's half share immediately compensates him for that difference, while increasing her outgoings by borrowings necessary to finance the purchase. Once that factor is recognised, there is really very little difference between the parties' positions.
In C & C (2005) FLC 93-212 the Full Court made the following point:-
[20]Section 79(4)(e) directs the Court to take into account the matters referred to in subsection 75(2) in so far as they are relevant. There are no restrictions on the manner in which the Court may have regard to such matters other than the restriction in section 79(2) that the Court shall not make an order unless it is satisfied in all the circumstances that it is just and equitable to do so.
In Waters v Jurek (1995) FLC 92-635 the Full Court considered the discretion that can be given to s 75(2) factors:-
The Court can only apply one or more of the paragraphs of the provision where it is satisfied that that step is relevant to arriving at a just and equitable result. Once that primary issue is determined the weight which a particular judge gives to one or more of the factors so identified has long been recognized as subjective and capable of review on appeal only when the Appeal Court is satisfied that the conclusion falls outside a reasonable range or, as Brennan J said in Norbis v Norbis (1986) FLC 91-712 at p 75,178; (1986) 161 CLR 513 at 540 outside the ‘generous ambit within which reasonable disagreement is possible’.

The husband’s interest in the partnership has been valued by reference to a methodology that considers capitalization of future maintainable earnings and then an asset backing valuation. The latter was ultimately the linchpin of the valuation process. It is arguable that in an asset backing valuation the husband’s income is not a relevant consideration to the valuation process.
The issue in C & C (supra) and the relevance to this case is apparent from the following discussion:-
25.While the trial Judge focused upon the income differential of the parties in determining an appropriate adjustment, his Honour seemingly overlooked the fact that for the husband to maintain the income differential represented by the business’s profits he had to keep invested $160,000 from his half share of the assets invested in the business whilst the wife has available to her an equivalent sum to invest as she sees fit….
Whilst significant recognition was given to the husband in respect of his interest in the business at the commencement of the relationship, nonetheless I approach the weight that should be given to the husband’s income with caution. No evidence was presented as to the extent of the husband’s income by way of a benchmark wage common within the industry. It is however a reflection of the husband’s general capacity.
The husband clearly has a significant skill set and the success of the partnership business is a reasonable indicator of the husband’s general ability. Irrespective of the husband’s interest in the partnership business, the husband’s ability to generate income will be superior to the wife.
There is some evidence from the husband and referred to in the report of the single expert valuer that there may be a downturn in the home construction industry in the Northern Territory.
The husband is none the less a resourceful individual. He has a clear skill base as a tradesman and holds the position within the partnership business as the project manager.
The wife will obtain employment in the hospitality industry. Her availability for employment will be limited by the obligation arising from her proposal to spend significant time in Darwin with the child.
The preponderance of factors pursuant to factors of s 75(2) fall in favour of the wife. I consider that the weight that should be given generally to those factors should be reflected by an adjustment of 12.5 per cent in her favour.
Accordingly the overall apportionment of the properties of the parties should be an adjustment to equality.
The wife is to retain the following property;
a)F Town (wife’s 50 per cent interest)  $122,669
b)Wife’s money at bank  $    1,000
c)Japanese motor vehicle (wife)  $ 14,400
d)Rental Bond paid by husband (to be refunded to wife)     $    2,000
$140,069
Given that the total net value of the pool is $752,271 the wife’s entitlement at 47.5 per cent is $357,328 and taking into account she retains property totalling $140,069 the settlement sum to be paid by the husband is $217,259.

Outstanding disbursements

Exhibit “2” reflects the disbursement costs paid by the husband in the sum of $28,813. The parties are agreed that from any settlement sum to be paid the sum of $14,406 should be deducted and retained by the husband.
The only area of contention relates to a payment of $2,000 for the fees to be charged by the family consultant. The basis of opposition is that the husband sought to have the family consultant instructed on the basis that he would meet 100 per cent of those fees.
I have heard the evidence of the family consultant and in the circumstance of this case I consider his evidence was germane to the proceedings and of considerable assistance.
I can see no good reason why in circumstances where the wife relied heavily upon the evidence of the family consultant that the parties should not equally bear the costs incurred.
Accordingly on the basis that the family consultant has rendered a further account of $2,000 the wife will be responsible of further $1,000.
The figure to be deducted from her settlement sum is to be increased by $1,000 to $15,406.
Given the sum involved it is reasonable that the husband be allowed 45 days to pay to the wife her settlement sum of $201,853.

Spousal maintenance

The wife seeks a continuation of the spousal maintenance order until such time as she leaves with the child for Country V. I consider that to be reasonable. There is no evidence to suggest that the wife’s circumstances will change between now and early 2018.
The wife however seeks to increase the husband’s obligation to $500 per week. I am not satisfied on the evidence as presented that such an order should be made. The husband presently pays $250 per week and in addition is subject to a child support assessment.
By reference to Part N of the wife’s financial statement she claims $620 in respect of her average weekly expenses.
No evidence was assisted to assist in how those figures have been calculated and I assume that they are based upon an estimate with the wife doing the best that she can.
I consider however that a number of the expenses are excessive particularly given that the period between now and the time that the child is able to depart is confined. The wife does not seek an order of spousal maintenance once she leaves Australia for Country V. I propose to make the following deductions:-
a)Food – claimed $150 – allowed $100
b)Telephone – claimed $40 – allowed $20
c)Petrol – claimed $100 – allowed $50
d)Holidays – claimed $100 – allowed $nil
e)Gifts – claimed $25 – allowed $nil
The total of reduction in expenses is $245.
The husband’s total weekly income is $2,630 being a total annual income of $136,760. His personal expenditure is set out in his financial statement of $1,321 per week. Even on his own figures there is a significant surplus available to the husband.
Moreover it is likely that the husband’s income is consistent with his 2016 tax return being a taxable income of $246,472 or about $4,700 per week.
I consider that a reasonable increase in the current level of spousal maintenance of $ 250 per week should continue until such time as the wife leaves Australia.

Conclusion

I have determined that it is in the best interests of the child that she remain in the primary care of the wife and orders should be made that would allow the residence of the child to relocate from Australia to Country V.
The child is currently engage in year two at school. Her English is improving and I regard it as an important benefit to her that she be permitted to complete the 2017 academic year. This will not only have the benefit of completing her current year but also reinforce the child’s improved proficiency in English.
It is part of the wife’s case that if possible the child should spend time with the father over the Christmas period. The family consultant considered that the best outcome taking into account the practicalities of the wife’s proposal is for the child to return to Australia for two periods to coincide with mid-year holidays in the northern hemisphere and Christmas holidays. I propose to make an order in those terms noting that the husband sought there be four occasions in each year but two occasions in even numbered years.
It would be in the child’s best interests to remain in Australia until after Christmas at which time the wife is able to leave Australia with the child at her discretion.
Given that the wife would be responsible for between $5,000 and $6,000 per annum as her contribution to the accompanying parent’s cost of travel it is reasonable for the husband to have certainty that the child will be able to return to Australia on two occasions in each calendar year for a period of five years after which consideration will need to be given as to whether the child is able to travel unaccompanied.
I propose to quarantine the sum of $25,000 to be used to pay one half of the costs of the wife accompanying the child from Country V to Australia and return on two occasions per year commencing 2018.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and thirty-five (335) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 September 2017.

Associate:

Date: 22 September 2017