SWEENEY & SEGOVIA

[2020] FamCA 476

FAMILY COURT OF AUSTRALIA

SWEENEY & SEGOVIA [2020] FamCA 476

FAMILY LAW – CHILDREN – Best interests – where it is agreed that the children live primarily with the mother – where the mother seeks to relocate the children to live with her in the United States of America – where the father opposes the relocation – where both parents were born in the USA and have family there – where the father has business clients in the USA – where the mother’s application for relocation is dismissed

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – where the husband made overwhelming financial contributions at the start of the parties’ approximately 13 year relationship – where both parties worked in the businesses – where the husband inherited property in the USA approximately 12 months before the separation – where the wife provided the majority of homemaker and parent contributions during the marriage and after separation – where the wife also made significant contributions to the businesses during the cohabitation – where the husband unilaterally withdrew approximately $765,000.00 from a loan facility with a ‘nil’ balance at separation and applied the vast majority of these funds for his own purposes – where the husband failed to comply with an order to pay spousal maintenance and an order to pay arrears of spousal maintenance – where the wife made the overwhelming financial contribution to the support of the children since no later than September 2018

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Banks v Banks (2015) FLC 93-637
Bevan & Bevan [2013] FamCAFC 116
Jones v Dunkel (1959) 101 CLR 298
McCall v Clark (2009) FLC 93-405
Mallet v Mallet (1984) 156 CLR 605
Stanford and Stanford (2012) 247 CLR 108
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT: Mr Sweeney

RESPONDENT: Ms Segovia

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 6482 of 2016

DATE DELIVERED: 11 June 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 16-17 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: MBA Lawyers

COUNSEL FOR THE RESPONDENT: Ms Bertone

SOLICITOR FOR THE RESPONDENT: Whitehead Payne

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hodges

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

Orders

IT IS ORDERED ON A FINAL BASIS THAT

1. All parenting plans and previous parenting orders are discharged.

IT IS ORDERED BY CONSENT ON A FINAL BASIS THAT

1. The children, X, born on … 2005 and Y, born on … 2015, live with the mother.

IT IS ORDERED ON A FINAL BASIS THAT

1. The mother’s application to relocate the children to live in the United States of America is dismissed.

2. The parents have equal shared parental responsibility for the major long-term issues relating to the children, including in respect of:

   (a)       the children’s education (both current and future); and

   (b)       the children’s religious and cultural upbringing; and

   (c)       the children’s health; and

   (d)       the children’s names; and

   (e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with or live with either parent.

3. The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and make a genuine effort to come to a joint decision.

4. Each parent shall have parental responsibility for day to day decisions about the care, welfare and development of the children whenever the children are in their care, pursuant to these Orders.

5. The children spend time with the father at all times as may be agreed by the parties in writing but, failing agreement as follows:

   (a)       during school terms:

   (i)each alternate weekend from after school Friday until before school Monday with the father to collect the children from school at the commencement of this time and return them to school at the conclusion of this time; and

   (ii)from after school each Wednesday until before school each Thursday, with the father to collect the children from school at the commencement of this time and return them to school at the conclusion of this time; and

   (b)for half of each school holiday as follows:

   (i)for the first half of the holiday in even numbered years; and

   (ii)for the second half of the holiday in odd numbered years.

   (c)from 9.00 am Christmas Eve until 12.00 pm Christmas Day in even numbered years and from 12.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years.

6. The children shall spend time with each parent on each of the children’s birthdays at such times as may be agreed between the parents, but failing agreement they shall spend time with the parent with whom they are not otherwise spending time pursuant to this Order, as follows:

   (a)if the birthday falls on a school day: from 5.30 pm that day until 8.30 am on the morning after the child’s birthday; and

   (b)if the birthday falls on a non-school day: from 1.00 pm that day until 8.30 am (or school) on the morning after the child’s birthday.

7. In the event that, pursuant to the terms of this Order, the children are not otherwise spending time with a parent on that parent’s birthday, they shall spend time with the parent whose birthday it is at such times as may be agreed between the parents, but failing agreement:

   (a)if the birthday falls on a school day: from 5.30 pm that day until 8.30 am on the morning after the parent’s birthday; and

   (b)if the birthday falls on a non-school day: from 1.00 pm that day until 8.30 am (or school) on the morning after the parent’s birthday.

8. Notwithstanding the operation of the other terms of this Order, the children shall remain in the care of their mother for the weekend on which Mother’s Day falls.

9. In the event that the children are not, pursuant to the terms of this Order, otherwise spending time with the father on the weekend on which Father’s Day falls, they shall spend time with him from after school Friday on the Friday immediately before Father’s Day until before school on the Monday immediately after Father’s Day, with the father to collect the children from school at the commencement of this time and return them to school at the conclusion of this time.

10. The children shall communicate with each of their parents by telephone, Skype and/or FaceTime at all times as may be mutually agreed between the parents.

11. Unless otherwise agreed between the parents:

    (a)changeovers that occur during school term will be from and to the children’s schools or after-school care;  and

    (b)changeovers on occasions which are not during school term will be from each parent’s residence, with the parent whose time with the children is starting to collect them from the other parent’s residence at the start of that time.

12. Each parent is at liberty to arrange for another person to collect the children at the commencement of their time with that parent, or to return them at the conclusion of such time, provided that any such person is known to the children.

13. Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and failing their compliance with such a direction shall remove the children from that environment immediately.

14. During the time the children are with either parent, that parent shall:

    (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

    (b)       speak of the other parent respectfully;

    (c)not denigrate or insult the other parent in the presence or hearing of the children;  and

    (d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

15. The mother and father shall:

    (a)keep the other informed at all times of a contact telephone number and an email address at which they can be contacted and advise the other of any change to the same within 48 hours of such change; and

    (a)notify the other at least twenty-one (21) days prior to relocating the general location of their residence; and

    (b)inform the other as soon as is reasonably practicable of any medical emergency involving the children;  and

    (c)keep each other informed at all times of the names and addresses of any educational facility at which the children attend; and

    (d)keep each other informed at all times of the names and addresses of medical practitioners upon whom, or medical practices at which, the children regularly attend.

16. By this Order, any medical practitioner, health care practitioner or hospital upon whom the children attend is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner or hospital may lawfully provide about the children.

17. By this Order, any educational facility at which the children attend is hereby authorised to provide to each party, at that party’s request and cost, all information about the children’s education, progress and participation in school or childcare related activities.

18. Each party inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.

19. Subject to the conditions imposed by the children’s schools, these Orders authorise both parents to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interview.

20. Each parent is permitted to remove the children from the Commonwealth of Australia for the purpose of holiday travel provided that, unless otherwise agreed by them, such travel occur during school holiday periods.

21. The children, X, born on … 2005 and Y, born on … 2015, are permitted to leave the Commonwealth of Australia for the purpose of international holiday travel with either of their parents as provided for in this Order and, in order to facilitate such travel, both children are permitted to have an Australian travel document as that term is defined in and for the purpose of the Australian Passports Act 2005 (Cth).

22. In the event that a parent wishes to remove the children from the Commonwealth of Australia pursuant to Clause (22), that parent shall provide the other with no less than sixty (60) days’ notice of the intention to travel overseas and shall provide details of the destination and proposed departure and arrival dates.

23. No less than thirty (30) days before date of departure from the Commonwealth of Australia, the travelling parent shall provide to the other:

    (a)a copy of a return ticket for the children, evidencing the date of departure and date of return to the Commonwealth of Australia; and

    (b)a copy of an itinerary which contains sufficient contact details to enable telephone or Skype communication between the non-travelling parent and the children to occur in the manner provided for in this Order.

24. The mother is entitled to possession of the children’s passports on the proviso that, in order to facilitate overseas holiday travel notified by the father in accordance with Clause (24) of this Order, she shall provide the same to the father no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.

25. In the event the father removes the children from the Commonwealth of Australia for the purpose of holiday travel, he shall return the children’s passports to the mother within seven (7) days of the children’s return to the Commonwealth of Australia.

AND IT IS FURTHER ORDERED THAT

1. Until these Orders are given full effect to the husband be restrained and an injunction issue restraining the husband from:

   (a)selling, encumbering or otherwise dealing in any way with the property situated at  B Street, C Town, D State in the United States of America and more particularly described as Lot … BLK 1 … Sub #2 #... (the D State townhouse) other than by causing the transfer of the same to the wife, if necessary to facilitate its sale;  and

   (b)selling, encumbering or otherwise dealing with his 50 per cent interest in the farming property situated at E Street, F Town, D State in the United States of America and more particularly described as … of Lots … INC and Lot … Sub (the farm).

2. The balance of the net proceeds of sale of the former matrimonial home in the sum of $342,682.00 and any interest which has accrued on the same be forthwith paid to the wife.

3. Without affecting any arrears of spousal maintenance due and owing, upon the payment to the wife of the net proceeds of sale, the obligation of the husband to pay the wife ongoing spousal maintenance pursuant to Order 1 of the Orders made in the Federal Circuit Court on 10 November 2017 registered in the Family Court of Australia on 11 April 2019 be discharged.

4. The wife shall retain absolutely, to the exclusion of the husband, her interest in the following:

   (a)       her jewellery valued at $20,350.00;  and

   (b)       her motor vehicle valued at $13,000.00;  and

   (c)       her superannuation entitlements valued at $8,313.00;  and

   (d)       any monies standing to her credit in any financial institution;  and

   (e)       all furniture in her possession valued at $2,500.00;  and

   (f)        her chattels and other personal items.

5. The wife shall be appointed as Trustee for Sale of the D State townhouse and:

   (a)the husband shall forthwith do all acts and things and provide all documents to the wife or her nominated solicitors or attorneys in D State, USA, as requested from time to time and within seven (7) days of his receipt to the same, so as to give effect to the appointment of the wife as Trustee for Sale for the D State townhouse and to cause the sale of the D State townhouse;  and

   (b)the wife shall, in her capacity as Trustee for Sale, engage an appropriately qualified real estate agent in D State, USA to sell the D State townhouse.

6. Upon the sale of the D State townhouse, the proceeds of sale be applied as follows:

   (a)first, in payment of all sales fees, marketing costs, real estate agents’ commissions, and legal fees in respect of the sale;  and

   (b)secondly, in reimbursement to the wife for the costs of the valuation of the property;  and

   (c)thirdly, in payment to the wife of the balance.

7. The husband shall retain absolutely, to the exclusion of the wife, his interest in the following:

   (a)       his motor vehicle 1 valued at $20,000.00;   and

   (b)the motor vehicle 2 valued at $16,000.00;  and

   (c)all jewellery in his possession, including his Rolex watch and his platinum wedding ring with diamonds valued at $5,000.00;  and

   (d)his interest in the company J Pty Ltd and M Inc., the latter valued at $21,124.00;  and

   (e)any funds owing to him by J Pty Ltd and M Inc., the former valued at $14,369.00; and

   (f)his superannuation entitlements valued at $13,234.00;  and

   (g)all funds in any bank accounts held in his own name;  and

   (h)all furniture and household items in his possession, valued at $4,767.50;  and

   (i)the motor vehicle, valued at AUD$5,104.00, he owns in the USA;  and

   (j)his interest in the farming property situated at E Street, F Town, D State in the United States of America and more particularly described as … of Lots … INC and Lot … Sub, valued at between AUD$201,714.00 and AUD$340,750.00.

8. Within fourteen (14) days of the date of this Order, the wife shall resign as Director of J Pty Ltd and shall transfer her shares in the company to the husband and shall sign such documents as provided to her by the husband in order to cause her resignation and the transfer of her shares.

9. The husband indemnify the wife, and keep her indemnified, in relation to all liabilities associated with J Pty Ltd and M Inc., including but not limited to any outstanding income tax liabilities.

10. The husband and wife be solely liable for and indemnify the other in respect of the liability encumbering any item of property to which that party is entitled pursuant to these Orders, and any liability whatsoever in the name of that party whether past, present or future.

11. Each party do all acts and things and sign all deeds and instruments necessary in order to give effect to the terms of these Orders, and if either party shall, within fourteen (14) days of being called upon by the other in writing, refuse or neglect to sign all necessary documents, then the Registrar of the Family Court of Australia at Brisbane and the Deputy Registrar of that Court are hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to sign all necessary documents and to do all acts and things necessary to give effect to these Orders.

AND IT IS FURTHER ORDERED THAT

1. Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.

2. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

3. All outstanding Applications are dismissed.

4. In the event that the wife and/or the Independent Children’s Lawyer seeks an order that the husband pay the costs of and incidental to the proceedings:

   (a)the applicant for an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today; and

   (b)the husband shall file and serve any brief written submissions in answer to the submissions filed and served by any applicant seeking costs within a further fourteen (14) days thereafter; and

   (c)the applicant for an order for costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by the husband, within seven (7) days of its service,

   and any such application for costs shall be considered in Chambers. 

5. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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 Sweeney & Segovia 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 BRISBANE

FILE NUMBER: BRC 6482 of 2016

Mr Sweeney

Applicant

And

Ms Segovia

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These proceedings involve the determination of those parenting orders which are in the best interests of fourteen year old X, who was born on … 2005 and five year old Y, who was born on … 2015. The Court is also asked to determine the terms of orders which are just and equitable to resolve the property settlement proceedings between the children’s parents.

Brief overview of relevant facts

1. Mr Sweeney,[1] who was born on … 1963, and Ms Segovia,[2] who was born on … 1982, were both born in the United States of America (USA). They met in K County, L State, where the father had lived for some twenty years. At the time they met, the father was living in a home he owned there.  He was engaged in his own business, operated through M Inc, an entity which he started in L State in 1989 and which he operated from L State until moving to live in Australia in mid-2005.

   [1] Who I will subsequently refer to as “the father” during my discussion of the parenting aspect of the proceedings and as “the husband” during my discussion of the property aspect of the proceedings.

   [2] Who I will subsequently refer to as “the mother” during my discussion of the parenting aspect of the proceedings and as “the wife” during my discussion of the property aspect of the proceedings.

2. The children’s parents started living together in July 2003 (according to the mother) or around 2004 (according to the father). Resolution of this minor difference is, I think, unnecessary other than to say that their cohabitation spanned no less than about 12½ years and no more than about 13 years. They married in N State on … 2004. They and the father’s then nine year old son Z (who was born on … 1994) moved to live in Australia in mid-2005. The father continued to use M Inc to engage with USA-based clients and subsequently used another company, J Pty Ltd for the work done for Australian-based clients. Both parents have tertiary qualifications; both were engaged in the business undertaken via M Inc and J Pty Ltd and, at least until the marital separation, the family was completely financially supported by their efforts in the same. The mother did not engage in paid employment outside the businesses operated through M Inc and, later, J Pty Ltd after the parents commenced their relationship. Since the marital separation, she has done some paid freelance work, whilst the father has continued to operate the businesses.

3. The children’s parents separated on a final basis on 1 March 2016 (according to the mother) or 1 June 2016 (according to the father). Resolution of this minor difference is, I think, unnecessary. They remained living under the one roof until the mother and children moved out of the former matrimonial home on 31 October 2017.  A divorce order was made on … 2019 and the same took effect on … 2019.

4. Now twenty-six year old Mr Z has his own children: G, who was born on … 2017 and H, who was born on … 2019. The children spend regular time with Mr Z and his immediate family during the time they see their father. It is accepted that, save for Mr Z and his immediate family, neither parent has any other extended family living in Australia.

5. The father, the mother and Mr Z are all Australian citizens, as well as citizens of the USA.

6. The father has re-partnered with Ms O, who was born on … 1980 in Country P and who moved to live in Australia in about 2007. She has no children. She and the father live in rented accommodation at Suburb Q in South-east Queensland.  The mother, who has not re-partnered, lives with the children in a property at Suburb R. It is accepted that the parental homes are about five minutes’ drive apart.

7. The terms of interim orders made by consent on 22 November 2016 provided that the children live with their mother and spend time with their father:

   a)from after school Wednesday until before school Thursday in each week; and

   b)from after school Friday until before school Monday each alternate weekend; and

   c)for half of each school holiday periods (as well as on other occasions as agreed between their parents).

8. It is uncontroversial that, after the mother and children moved out of the former matrimonial home in October 2017, the children continued to spend time with their father as prescribed by the November 2016 order. I accept that there were occasions when, as a consequence of the mother’s request, the children returned to her care on the Sunday evening rather than on the Monday morning. I also accept that, approximately four months before the December 2019 hearing, the parents agreed that the children spend weekend time with their father on the first, third and fifth weekends of each month. If this regime is implemented, it means that the children have the opportunity to spend four more weekends with their father each year than they would under an “alternate-weekend” regime.

9. Given the father’s proposal that the children continue to live primarily with their mother, she is, effectively, the unchallenged “custodian” of the children.[3]

   [3] As that expression is used in AMS v AIF (1999) 199 CLR 160 and, similarly, in U v U (2002) 211 CLR 238.

Parenting

1. The mother has wanted to relocate the children to live with her in the USA since about June 2016 when she told the father of that desire. The father opposed this then and continues to do so.

The proposals

The father’s proposal

1. The father proposed that he and the mother have equal shared parental responsibility for the major long-term issues relating to the children; that the children live with the mother in Australia and that he spend time with them:

   a)during the school term:

   i)from after school at 3.00 pm Wednesday until before school at 8.30 am Thursday each week; and

   ii)from after school at 3.00 pm Friday until before school at 8.30 am Monday on the first, third and fifth weekends in each calendar month; and

   b)for half of all school holiday periods (alternating between the first and second half of the same), as well as on special occasions as particularised in his Case Outline.[4]

   [4] Case Outline of the Applicant filed 13 December 2019 at 11-12

2. He also proposed that the children communicate with him by telephone/Skype between 6:30 pm and 7:00 pm daily and at such times as they request.

3. The father proposed that both parents be at liberty to travel with the children outside of Australia during those periods the children were spending time with them and that orders be made in the terms particularised in the Case Outline to facilitate and/or regulate such international travel.

The mother’s proposal

1. The mother sought that she and the father have equal shared parental responsibility for the major long-term issues relating to the children if the children continued to live in Australia. Whilst she initially sought, for what was advanced as practical reasons, that, if she was permitted to relocate the children to live with her in the USA, she be afforded sole parental responsibility for the major long-term issues relating to them, her Counsel advised during submissions that she would be content with an equal shared parental responsibility order in that scenario also.

2. The mother proposed that orders be made to permit the children to relocate to live in the USA with her from 1 July 2020 and that, following their relocation they thereafter spend time with their father:

   a)twice per year during the American school holidays: with the father to bear the costs of the children’s travel and subject to him providing her with three months’ notice of his intention to spend time with the children in Australia; and

   b)when the father travelled to the USA: subject to him providing her with six weeks’ notice of his intention to travel; and

   c)by telephone, Skype or FaceTime at all times as agreed by the parents.

3. If unsuccessful in her primary proposal to be able to relocate the children to live with her in the USA, the mother’s formal proposal was that they live with her and spend time with their father:

   a)each alternate weekend: from after school/kindergarten on Friday until before school/kindergarten on Monday; and

   b)during school holiday periods: at such times as agreed by the parents; and

   c)on special days: as agreed by the parents; and

   d)by telephone, Skype or FaceTime at all times as agreed by the parents.

4. However, when cross-examined by Counsel for the Independent Children’s Lawyer, the mother said that her intention, if the children were not allowed to move to live in the USA, was for the existing parenting arrangement (whereby the children also spend each Wednesday overnight with their father) to continue.

The Independent Children’s Lawyer’s proposal

1. The Independent Children’s Lawyer did not support the children’s relocation to the USA. Rather, she asserted their current best interests would be met by them continuing to live in Australia, primarily with their mother and spending time with their father as has previously occurred.

2. Counsel for the Independent Children’s Lawyer submitted that the Court would accord particular weight to: Mr S’s assessment that X’s preference was for his parenting regime to remain as it has been; that X enjoys his schooling, his friends and his lifestyle in Australia and the time he spends with his father, Mr Z and Mr Z’s family. It was also submitted, in essence, that the difference between the children’s current opportunities to spend time with their father and Mr Z and his family and the opportunity to engage with them if they lived in the USA was so significant that the Court would not be persuaded that it was in the children’s best interests to allow them to relocate to live in the USA.

The parents’ credit and conduct

1. There was nothing in the mother’s evidence which persuades me that she was not truthful in her evidence. She was, in one sense, quite blunt in some of her responses to questions asked of her about the potential impact on the father and his life of relocating to follow the children to the USA if they were permitted to relocate. However, I consider that her responses to those questions demonstrate no more than the strength of her view that the children’s best interests will be better met by moving to live in the USA than remaining in Australia; I also think it much more likely than not that these aspects of her evidence also reflect the degree to which she thinks it is “unfair” that, from her perspective, the father’s decisions  about what he will or will not do vis-à-vis returning to live in the USA impact on her desire to be able to relocate the children to live there with her.

2. In contrast, the father was, I consider, evasive and vague during much of his cross-examination. An example of his approach to answering questions can be seen in the manner in which he answered whether he had not provided an affidavit by Mr Z: he said “probably not” – even though it is obvious that he did not call Mr Z as a witness in his case. A further example of his unwillingness to make admissions about any action he thought likely to be adverse to his case and of the evasive way in which he gave his evidence can be seen in his answers to questions asked of him about his drawing down on the loan secured by mortgage over the former matrimonial home: when asked whether he had told the mother that he was going to withdraw $115,000.00 from that facility before he did so on 7 February 2017 (about eight months after the marital separation – at which time the facility had a “zero” balance), he said “probably not.” It is completely apparent that he did nothing at all to alert her about his intended actions on that occasion or subsequently.

3. A further example of the father’s evasiveness is that, when it was suggested to him that Mr Z had only been paid consultancy fees since the marital separation, his evidence was that he did not know when “it” started. Given that both J Pty Ltd and M Inc are entirely under his control and are, in essence, his creations and the vehicles through which he has conducted his business for the vast majority of his working life, I simply do not accept this evidence as truthful.

4. I accept the submission by Counsel for the mother to the effect that, when asked questions he perceived (often rightly, I consider) to have the potential to cause him difficulties in his case, the father also often took refuge in saying that he did not recall whatever contention had been raised with him.

5. A further example of the father’s approach to giving evidence (and also his conduct which directly effects the children) can be seen in the manner in which he answered questions he was asked about the information he had provided to the Child Support Agency (CSA).[5] When asked during his cross-examination whether he had told the CSA that he received a USA Government pension of  about USD$500.00/month, he said that it “could be” that he had told the CSA that he had a “nil” income. I accept that, as a result of telling the CSA that his income is “nil”, the father has been assessed as not being required to pay any child support for the children to their mother. I also accept that he has never paid her any child support, despite her always having been the parent responsible for the majority of their care after the marital separation.

   [5] As I have chosen to refer to that part of Services Australia which is responsible for assessing, collecting and transferring child support payments.

6. It is clear that, after 28 September 2018, the father failed to comply with the order to pay weekly spousal maintenance to the mother; it is also clear that this failure occurred despite him drawing very significant amounts of money from the loan facility secured against the former matrimonial home (about which more will be said later) and applying the same for his own purposes, including to pay his own legal expenses. It is also clear that, rather than apply funds to pay either the ordered spousal maintenance or to assist the mother to support the children financially when they were in her care, the father spent money on an unsuccessful attempt to have the Court discharge the arrears of spousal maintenance owing to the mother. It is also clear that, having failed in this attempt, he subsequently failed to comply with the order to pay the arrears of spousal maintenance, despite having drawn about $80,000.00 from the loan facility in the month this order was made.

7. The relevance of the father’s conduct about financial matters after the marital separation is not confined only to a consideration of the property settlement proceedings between these parents; it is also clearly relevant to the consideration of their parenting dispute.

8. As I remarked to Counsel for the Independent Children’s Lawyer during the course of his submissions – some might rhetorically pose:

   Do good parents, whatever gender, positively take actions to ensure that their children’s financial circumstances, whilst in the care of the other parent, are not what they could or should have been?

9. In this case, that is exactly what the father did when he drew down on the loan secured by mortgage over the former matrimonial home and applied the vast majority of those very significant funds to his own uses. I consider that he deliberately acted as he did because he simply decided to ensure that he retained financial control and that the mother received what he decided she should receive following the marital separation.

10. I also consider that when, on 28 September 2018, he stopped paying spousal maintenance to the mother in breach of the existing order that he do so, he had simply decided that the time had come for her to support herself financially – despite her continuing to bear the responsibility of having to meet most of the financial and other needs of their then nearly thirteen year old son and their three year old daughter – and not because he did not have the financial capacity (from whatever source) to continue to make these payments. I arrive at this conclusion because I accept that, between 1 October 2018 and 30 May 2019, the father drew $250,000.00 from the loan facility secured over the former matrimonial home.

11. When this $250,000.00 is added to the other amounts drawn down by the father between 12 July 2016 and 30 May 2019, it is clear that the total drawings he made amounted to $735,000.00: the consequence was that the amount owing to the bank went from “nil” on 1 July 2016 (the marital separation having occurred, on his contention, on 1 June 2016) to $756,124.00 as at 21 June 2019 and $773,404.00 when the former matrimonial home sold on … 2019.[6]

    [6] See: Exhibits 3, 4 and 8.

12. Whilst the mother received the benefit of some of the withdrawn funds – either by way of receiving the spousal maintenance that was paid until 28 September 2018 ($64,600.00) and the $200.00 paid by way of spousal maintenance after that date and the upfront payment of the costs of obtaining a Family Report ($2,750.00 of the $5,500.00 total) and the business valuation ($4,500.00 of the $9,000.00 total) and participating in an unsuccessful mediation ($2,500.00 of the $5,000.00 total) and the $30,000.00 paid to her by way of interim property distribution pursuant to an order made on 10 November 2017 – it is immediately apparent that her benefits were significantly less than those received by the father.

13. Given my conclusions about the father’s evidence, where his evidence and the mother’s conflict, I prefer the evidence given by the mother.

Principles

1. The statutory framework does not deal differently or specifically with cases involving a proposed relocation of children. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[7] and, subject to s 61DA, s 65DAB[8] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[9] 

   [7] s 60B of the Act.

   [8] Parenting plans.

   [9] s 65D of the Act.

2. In deciding whether to make a parenting order, I must regard X and Y’s best interests as the paramount consideration.[10] Such interests should not be viewed in the abstract or separate from the circumstances of X and Y’s parents[11] or their legitimate and competing interests. Further, the statutory exhortation to regard the children’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored – rather, where legitimate parental interests conflict with X and Y’s best interests, the former must give way.[12] That is, the determination of those orders which are in the children’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance. From a parent’s perspective, the outcome may not be optimal; in some circumstances, it may also not seem to be “fair”.

   [10] s 60CA and s 65AA of the Act.

   [11] See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.

   [12] Ibid.

3. The matters to be considered in determining those parenting orders which are in X and Y’s best interests are those prescribed by s 60CC of the Act. However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[13] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in X and Y’s best interests. I have considered all of the relevant considerations in arriving at my conclusion about those orders which are in X and Y’s best interests.

   [13] See: Banks v Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).

4. Before discussing the relevant statutory considerations, it is helpful, I think, to record my understanding of those occasions on which the parents, either together or individually, and the children have travelled to the USA since the parental relocation here in mid-2005.

Travel between Australia and the USA since mid-2005

1. The evidence reveals that, after moving to live in Australia in mid-2005, the mother, father and X travelled back to the USA in December 2006[14] and to the USA and Europe in about 2012.[15]

   [14] Affidavit of the mother filed 4 November 2019 at [33].

   [15] Affidavit of the mother filed 4 November 2019 at [65].

1. It appears that the mother and the children travelled to the USA for an unspecified length of time in about May 2016,[16] about August 2017[17] and in December 2018/January 2019.[18] On the father’s evidence, the mother also travelled to the USA in December 2017 and July 2018.

   [16] Affidavit of the mother filed 4 November 2019 at [62].

   [17] Affidavit of the mother filed 4 November 2019 at [116].

   [18] Case outline of the mother filed 13 December 2019.

2. It also appears that the father travelled back to the USA for an unspecified duration of time sometime from 1 March 2016,[19] for about three weeks in November 2016,[20] for an unspecified duration of time sometime in August 2017[21] and for most of December 2018.[22]  Given the mother’s evidence to the effect that the father regularly travelled to the USA for business, I think it more likely than not that at least some periods of these trips involved business activities.

The benefit to the children of a meaningful relationship with both parents[23]

[19] Affidavit of the mother filed 4 November 2019 at [62].

[20] Affidavit of the mother filed 4 November 2019 at [156].

[21] Affidavit of the mother filed 4 November 2019 at [195].

[22] Affidavit of the mother filed 4 November 2019 at [156].

[23] ss 60CC(2)(a) of the Act.

1. The Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life. The term ‘meaningful’ is not synonymous with the term ‘optimal’.[24]

   [24] See: Godfrey v Sanders (2007) 208 FLR 287 at 298 at [36]

2. In McCall v Clark,[25] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach.  That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that he or she has a meaningful relationship with both parents. Thus, the Court must consider and determine whether there is a benefit to the children in having a meaningful relationship with each of their parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent.

   [25] (2009) FLC 93-405

3. In this case, both parents agree that the children will obtain positive benefit from the opportunity to have a meaningful relationship with each of them. I accept, as Mr S assessed, that both children currently have meaningful relationships with both of their parents. I also accept that it is in each child’s best interests to be able to maintain their meaningful relationships with each parent.

The imperative of protecting the children from harm from being exposed or subjected to abuse, neglect or family violence[26]

[26] ss 60CC (2)(b) of the Act.

1. The father suggested that the children would be at risk of suffering harm from being “alienated” from him if they were permitted to relocate to live with their mother in the USA. Given my findings (expressed elsewhere in these Reasons) about the mother’s attitude to the children’s ongoing relationships with their father and her likely support of the same wherever she and the children live, I am not persuaded that this is likely.

The children: their views and the nature of their relationship with each of their parents and others[27]

[27] ss 60CC(3)(a), (b) and (g) of the Family Law Act 1975 (Cth).

1. Neither parent took issue with Mr S’s assessment, expressed in his February 2018 report, that the children have strong relationships with both parents.  Neither took issue with his assessment, as expressed in the December 2019 report, that both children have very positive relationships with each parent. I also accept that they have a positive relationship with the father’s partner and that X in particular has a strong relationship with Mr Z and his immediate family.

2. Further, it is uncontroversial that X has a good relationship with the maternal grandparents – as he does with all members of his family. During his cross-examination, the father noted that the children’s maternal grandparents are “nice” and “very good” people”.

The child X

1. X completed Grade 8 at R School in 2019. He has achieved very good results at school.

2. I accept that, when asked by Mr S in late January 2018 how important – on a scale of 1 to 10 (10 being the most important) – it was to him to maintain a relationship with his father, X put it at a “7”. I also accept that he felt it was more important to maintain a relationship with his mother and put that at an “8 – 9”.  I accept Mr S’s opinion that X’s comments indicated that he has a strong relationship with his mother.

3. I accept that, when interviewed by Mr S for the February 2018 report, X spontaneously told him that relocating to live in the USA “would be really hard for me” because it would mean leaving his father, Mr Z and his family and his school. I accept X remarked that the difficulty would be “because of people, not the place”.

4. I accept Mr S’s assessment that, in his comments, X seemed to be saying that he would have no difficulty adapting to living in the USA per se, but would miss his father, Mr Z and Mr Z’s family. I also accept – as Mr S reported – that, at the same time, X qualified his assertion by saying that he had family in the USA (including, in particular, his maternal grandparents and his mother’s sister). I accept Mr S’s assessment that X saw being able to see them (as well as his father’s aunt and her husband and other relatives) as being a positive aspect of relocating to live in the USA.

5. Mr S reported that X’s view was to the effect that staying in Australia appealed to him much more than moving to live in the USA. He noted that, whilst X felt that his mother was not trying to push him into relocating there, the child felt that staying in Australia would have the advantage that he would be able to spend time with both of his parents. Mr S opined that, if given the choice, X would most likely “opt to remain in Australia”; he also noted, though, that if the Court determined that X should relocate to live in the USA, the child had said that he would feel “sad but happy at the same time” as he would be able to see members of both his mother’s and his father’s family who live there.

6. Mr S opined in February 2018 that X’s expressed preference to remain living in Australia in order to maintain his relationship with his father and Mr Z and Mr Z’s family was such that, if “wishes” were the only consideration, he would support the father’s position ahead of that advanced by the mother.

7. I accept, as the mother did when interviewed by Mr S in October 2019 for the preparation of the updated Family Report (dated 4 December 2019), that X is attached to his friends in Australia.  As Mr S noted in the December 2019 report, when interviewed, X spoke very positively about his friendships. He thought that the operative parenting regime was working well and said he had good relationships with both of his parents. Mr S reported that, when asked about the potential relocation to the USA or remaining in Australia, X’s comments were similar to those made during the first interview.

8. Mr S reported that X indicated that his preference was to keep things the same; however, he seemingly understood why his mother wanted to be closer to family in the USA and why his father did not want to move there. Mr S reported that X felt he would adapt socially in either environment but the hardest thing would be leaving his father, brother and friends; he felt he had a good relationship with his father’s partner.

9. I accept Mr S’s assessment, as outlined in the December 2019 report, that X needs the decision about relocation to be made for him.

The child Y

1. I accept that, from about late 2018, Y attended day-care twice a week at a centre situated in Suburb Q; I also accept that she was due to commence Prep this year.

2. Given her age, Y has not been interviewed by Mr S.

3. I accept that, in the February 2018 report, Mr S expressed his concerns about Y being separated from her father at such a young age, especially given his assessment that she had then started to begin to develop a stronger attachment to him.

4. Mr S outlined in the February 2018 report that, whilst the relationship between Y and her father was meaningful, there was a risk of it becoming less so unless she had the opportunity to continue to spend regular and reasonably frequent time with him. Mr S also said that this could really only occur if Y remained living in Australia or, if the mother was permitted to relocate her to live in the USA, the father moved to live there also or travelled there relatively frequently to spend time with her.

5. There was nothing in Mr S’s December 2019 report to suggest that he had changed these views.

The likely effect on the children if the orders sought by their parents are made[28]

[28] ss 60CC(3)(d) of the Family Law Act 1975 (Cth).

1. In his February 2018 report, Mr S opined that, if the children were permitted to relocate to live in the USA with their mother, they would, in all likelihood, still be able to maintain a meaningful relationship with their father. He said he thought this would be easier for X than Y, given that she was still a very young child, whose memories of her father would not be as strong as X’s memories of him.  Mr S also said that the mother’s (alternative) proposal to relocate the children to the USA as late as August 2020 would allow Y more  time to establish a more meaningful and long-standing memory of her father, which he thought would serve to reinforce the strength of her relationship with him into the future. However, he still said that, even then, Y would still be a very young child when (implicitly assuming that the father would not relocate) she was separated from her father save for opportunities to spend time with him during school holidays and when he travelled to the USA.

2. I note that, in his February 2018 report, Mr S expressed his view that the simplest way to achieve the children maintaining a meaningful relationship with each parent (which he considered to be in their best interests) was for them to remain living in Australia. There was nothing in his December 2019 report to suggest that he had changed this view or any of those he had expressed in the February 2018 report.

3. In the December 2019 report, Mr S opined that, if relocation was permitted, X would experience some difficulties leaving his friends in Australia and would clearly be impacted if he was unable to spend regular time with his father and his father’s family.

4. I accept that, even if the children are permitted to relocate to live with their mother in L State, they will be unable to have daily interaction with members of their extended paternal family who do not live in that part of the USA; I also accept, though, that it is more likely than not that their opportunity to spend more time with members of both their maternal and external extended families will likely be greater if they live in the USA than if they remain living in Australia – by virtue simply of the significant distance between the USA and Australia and the lesser distance between L State and those parts of the USA in which the members of their extended paternal family, in particular, live.

5. I also accept, though, that if the children are permitted to relocate to live with their mother in L State they will have a significantly greater opportunity to spend time with their maternal grandparents, with whom the mother proposes they initially live. I accept that, in such circumstances, the mother would have the benefit of support from her parents to meet the children’s needs and that such support would likely assist her to retrain and return to work to earn a viable income with which to support the children.

6. I accept that, if the children are permitted to relocate to live with their mother in L State and their father does not return to live in the USA, their opportunity to spend time with him will be significantly diminished; in such a scenario, they will go from seeing him on a weekly basis to seeing him in Australia twice a year during school holidays and spending time with him in the USA on any occasion he travels there: on the evidence before me, this appeared to have historically been no more than once or, at best, twice per year. Whilst I consider it more likely than not that X’s relationship with his father would withstand such a significant diminution in face-to-face/in-person interaction, I am not persuaded that, at her current age, Y’s relationship with him would. I think it unlikely that, absent regular and relatively frequent opportunities to spend face-to-face time with him, Y’s relationship with her father would continue to be meaningful or would continue to develop into the meaningful relationship that Mr S assessed as having commenced.

7. I consider that, given his age, X’s relationship with his father would be able to be maintained and, perhaps, even nourished by communication between them via technological means (such as Skype or FaceTime). However, I am not persuaded, given her age, that such type of communication would sufficiently support Y’s relationship with her father to ensure that it did not wither from the meaningful relationship which Mr S assessed has started to develop. I consider that Y’s age is such that, in my view, electronic communication with her father is unlikely to be able to sustain her ongoing development of a meaningful relationship with him. Consequently, it seems to me that if Y was now permitted to move to live in the USA with her mother and her father remained living in Australia, such a move would likely prevent either the ongoing establishment of, or the maintenance of, a meaningful relationship between her and her father.

8. I arrive at these conclusions expressed in paragraphs [66] and [67] despite accepting that the mother would do all that she could to support and promote the relationship between Y and her father.

9. If the children relocated to live with their mother in the USA, there would be a significant curtailment in their opportunity to spend time with Mr Z, his partner and their children. Given X’s comments to Mr S about how much he enjoys this time, this would be a loss for him. Given the closeness in age between Y and Mr Z’s children, she would have less of an opportunity to develop her relationships with them as they all grow up.

10. It is also obvious that relocating to the USA would also require X to engage in a completely different education system and would involve him having to make new school friends. Whilst Y would also have to make new friends, her age suggests that any loss of friends may be less significant for her than for X.

11. I accept that, if the children are permitted to relocate to live with their mother in L State and their father chooses to return to live in the USA, there is every prospect that both of the children could maintain meaningful relationships with him. Whilst the father said that he would not relocate to live in the USA and that, if he did, he would not relocate to live in L State, he has previously lived in that area. I consider that, if the father wanted to relocate to the USA and wanted to ensure that the children could spend time with him on a weekly basis, he would be able to move to live somewhere close enough to where the mother proposes to live to make that happen.

12. Obviously enough, if the children and their mother remained living in Australia, the children’s relationships with their father could continue to be facilitated by a continuation of the regular and relatively frequent time they have spent with him (as prescribed by the November 2016 order) both before and after their parents ceased living in shared accommodation in October 2017. They would be able to continue to participate in the activities in which they have participated to date and X, in particular, would be able to continue to attend the school he has attended for some time: their lives would suffer no disruption. They would be able to see Mr Z and his partner and their children frequently and regularly and would have the opportunity to continue to develop their relationships with all of these people.

The parents: the children’s relationship with them; their involvement in the children’s lives; their capacity to meet the children’s emotional, intellectual and other needs; their attitude to the children and to the responsibilities of parenthood[29]

[29] ss 60CC(3)(b), (c), (ca), (f), (i) and (m) of the Family Law Act 1975 (Cth).

1. I accept that both parents have consistently been involved in the children’s lives.

The father

1. I accept that the father genuinely wants to continue to be involved in the children’s lives on a regular and frequent basis into the future.

2. However, given:

   a)his unilateral withdrawal of significant funds secured against the former matrimonial home (as discussed elsewhere); and

   b)his failure to comply, after 28 September 2018, with the order to pay spousal maintenance to the mother; and

   c)his failure to comply before the last day of the trial with the order that he pay the arrears of spousal maintenance; and

   d)that he has not paid any child support at all to the mother to contribute to the children’s costs whilst in her primary care,

   I consider the father’s attitude to the responsibilities of parenthood to be fundamentally flawed.

3. I also consider that the father’s determination, after 28 September 2018, not to provide financial support to the household in which he knew the children were primarily living and his prolonged implementation of that view – whilst at the same time accessing very significant funds and applying them for his own purposes – demonstrates that he has been incapable of prioritising the children’s needs above his own need to ensure that the mother did not receive more financially than he decided she should.

4. I accept the father considers that Australia has a lower level of violence – particularly that related to the use of guns – than the USA.

5. I accept that the father has said that he does not want to live in the USA and that he thinks it is not in the children’s best interests for them to live there; I similarly accept that the mother does not want to continue to live in Australia and that she thinks it is not in the children’s best interests for them to continue to live here.

6. The father said that, if the children were permitted to relocate to live in the USA, it would be difficult for him to accompany them because, amongst other things, there would be significant time and effort associated in relocating his businesses and this would have associated significant financial impacts on them and on Mr Z who works in them.

7. However, the evidence persuades me that the father would likely be able to maintain the businesses he operates through M Inc and J Pty Ltd if he moved to live in the USA – after all, M Inc was the entity through which he did business in the USA before moving to Australia in mid-2005 and through which he has continued to do business for clients based in the USA. Further, whilst J Pty Ltd is the entity through which he does business with clients based in Australia, there is nothing to suggest that such business could not continue and be supported electronically or by the father travelling from the USA to Australia when required – as he has previously done when he has travelled from Australia to the USA to see M Inc’s clients. I also note that, during his cross-examination, the father accepted that there was a lot of opportunity in the USA for the work his businesses did.

8. In any event, the father’s evidence was that neither M Inc nor J Pty Ltd have earned any income at all since the marital separation in mid-2016. Consequently, there seems to me to be little from a business perspective keeping the father in Australia: he could as easily earn nothing in the USA as he has here over the last few years. As he operates his business from home, he could just as easily operate it from a residence in the USA as he can from the rental premises in which he and his partner currently live. Whilst there may well be time and effort involved in relocating the businesses to the USA, the absence of return from them over the last few years suggests to me that, if the father wanted to, he would be able to find time to undertake whatever tasks are necessary. Whilst he may have to re-apply for various registrations, I consider he is highly likely to be able to achieve whatever is required for his businesses if based in the USA – as M Inc previously was and remains.

1. Whilst the father’s evidence was that, if he returned to live in the USA, he would live in C Town, D State – a significant distance from where the mother proposed the children live – he has previously lived, for twenty years, in L State; M Inc continues to have clients which are based in L State; there is nothing in the evidence to persuade me that C Town is the only place in which he could live (as opposed to the place he said he wanted to live). That the father has lived in Australia since mid-2005, with only the mother’s familial support until their mid-2016 separation, and that his primary wish is for the children to continue to do so, undermines the suggestion that, if he chose to return to live in the USA, he would need to live close to his family there for their support.

2. Whilst there would be distance and consequently time, involved in the children spending time with their father if they were permitted to relocate to live in the USA and he chose to relocate back to the USA and chose to live in C Town or L State or anywhere other than relatively close to the area in which the mother proposes the children live with her, such travel would be significantly less than if he chose to remain living in Australia if the children were permitted to relocate to the USA.

3. Additionally – and proceeding on the unlikely premise that it is relevant –  given that, in January 2017 (via W Pty Ltd) 25 year old Mr Z started his own business doing work that is not dissimilar to that undertaken by the father through M Inc and J Pty Ltd and also works in hospitality and as a groundskeeper and has a sideline business, any potential adverse financial impact on him resultant on the relocation of his father’s businesses is likely to be able to be offset by his own income-producing activities.

4. I consider it unlikely that the father made Mr Z apologise to the mother for writing, on a white board in the house which X could have read: “Get the leech off the email templates.” I accept that that sentence provides a clear demonstration of Mr Z’s attitude toward the mother – the person who assisted his father to care for him from when he was nine years of age. I also accept that when Mr Z told the mother –as I accept he did – that he hoped she got what she deserved – “zero” – he was referring to the property settlement proceedings between the parents.

5. I think that, given that X regularly spends time with him, it is quite possible that X may be exposed to Mr Z’s critical, demeaning and juvenile view of his mother. Given how strongly X regards his relationship with his mother (as evidenced by his comments to Mr S), exposure to such comments in the future is highly likely to cause him distress and may also impact negatively on his relationship with the maker of the same.

6. I consider that the father struggled to acknowledge what I consider clearly established on the evidence: namely that, after the marital separation, he dealt with financial matters vis-à-vis the mother in a manner that was predominantly unsupportive and which placed his needs above the children’s needs and certainly ahead of ensuring that the children’s acknowledged primary carer – their mother – was supported financially.

7. That he acted after the marital separation as he did is even more difficult to understand given that, during his cross-examination, the father said, when  asked whether he accepted that the mother was a good mother, “in many ways, yes”. Despite this assessment of her, he was clearly prepared to make her life as difficult financially as he could and, more importantly, to make the children’s financial lives more difficult than they needed to be.

8. The father accepted that, if the children were permitted to relocate to L State, they would be well looked after there by their mother; he accepted that their maternal grandparents would do anything they could to help the mother to care for the children, including if she sought employment; he also accepted that, if the children moved to live in L State, the mother would make appropriate choices about the schools they attended.

9. When cross-examined, the father also accepted that it was child-focused for the mother to have sought to remain at home caring for the children after the marital separation. However, given his established historical actions in ceasing to pay any spousal maintenance at all after 28 September 2018 (other than the $9,603.00 obtained by garnishee in February 2019) whilst at the same time drawing significant funds from the loan facility and applying them as he determined, I consider this aspect of his evidence to be entirely self-serving: had he in fact thought that the mother was acting in a child focused manner, he could easily have ensured that, just as he was living on the funds drawn down on the loan facility, she and the children (when in her care) continued to be supported from the same source. Instead, he simply decided that she was not going to receive any financial support from him after 28 September 2018. I also consider that, by deliberately depriving the children of access to the funds he was using to support himself, the father demonstrated a complete disregard for their well-being. His actions were the antithesis of those of a “good” father.

10. It is, I think, relevant to record that, during his cross-examination, the father accepted that, after he stopped paying the spousal maintenance in September 2018, he had wondered what the mother was living on: he said he assumed it was Centrelink and monies from work, although he did not then know anything about how much money (if any) she was receiving from work. His evidence included that, as at the beginning of 2019, he did not know whether the mother had funds to enable her to put bread on the table; he thought it would have stressed her to be in the financial situation in which she found herself. When asked why, given this, he did not help the mother financially, the father said that, if it was not for the proceedings and his legal advice, he absolutely would have rather seen the mother have the money and the children be safe – as he accepted they were in the accommodation the mother obtained for them. I do not accept the first part of this evidence; again, I consider it is a further example of the father’s self-serving approach when his clear deficiency in providing financially for the children whilst in their mother’s care was being highlighted.

11. I reject the father’s evidence that, after he stopped paying spousal maintenance to the mother, he did not think that this would cause a serious problem for her; I reject his contention that the mother’s “lifestyle” did not seem to be financially hindered by his decision to flout the terms of the November 2017 order. After all, she brought his attention to the impact of his cessation of financial support by bringing enforcement proceedings in the Court. I think the father simply did not care that the mother was left without the ongoing financial support he had agreed to provide to her when he consented to orders made on 10 November 2017 for the payment of $1,400.00 per week spousal maintenance. I also consider it much more likely than not that he considered that his deliberate withdrawal of financial support to the mother would, in essence, force her to obtain a job outside the home and relieve him of the on-going obligation to provide for her financial support.

12. A further basis for my complete rejection of the father’s evidence that, but for the legal proceedings and his legal advice, he would have preferred the mother to have received financial support arises from his evidence that, when the mother sought to enforce the terms of the operative order which required him to pay her $1,400.00/week spousal maintenance, he spent about $20,000.00 to defend the same rather than making any payment. Again, his actions belie his sworn evidence and make his protestations about wanting to ensure that the children were financially supported whilst in their mother’s care ring hollow.

13. The father accepted, when cross-examined, that, despite the order made in favour of the wife’s enforcement application and despite her being the recipient of a costs order in relation to the same (which remained unpaid), he had still not paid anything to her for the financial support of the children whilst in her care. He also accepted that, if what he had done financially for at least the two years prior to the hearing was used as a predictor of his future approach to providing financial support to the mother if she was in need, it was not very positive. In fact, the father’s past actions – which I regard as a complete abrogation of his parental responsibility to provide financial support for the children whilst in their mother’s primary care – make it abundantly clear to me that the mother is highly unlikely ever to receive any direct financial support for the children from him, whether they continue to live in Australia or relocate to live in the USA.

14. I also accept that, whilst the children were able to travel to the USA after the marital separation, the father’s attitude to this travel meant that the mother had to apply to the Court on both occasions in order for the children to be able to travel out of Australia.

15. I do not accept that the father did not recall that he asked the mother to drop her application for the payment of the arrears of spousal maintenance before he would sign documents to enable the children to travel to the USA in December 2018; I accept that this is exactly what he did.  I also accept that he acted as he did despite having earlier told the mother that he agreed to the children travelling from Australia.

16. I accept the mother’ s evidence to the effect that, from her perspective, these events were simply a further manifestation of the father’s attempts to control her life after their separation; I also suspect that his actions have contributed to her feeling – as she clearly does – that she is the parent being asked to make all the sacrifices associated with parenthood, whilst the father continues on his way and acts in a manner that is consistent with the view that he is the parent who will control matters such as where the children live and whether and when they can travel away from Australia.

17. During his cross-examination, the father’s position vis-à-vis returning to live in the USA appeared to firm up: he initially advocated that, whilst he wanted to be part of the children’s lives, he did not want to move to live in the USA and did not know how he could make that move; when pressed a little more to answer whether, if the children were permitted to live in the USA he would return to live there also, he said he did not think he would, as he did not see how he possibly could; he concluded by saying that he did not plan to relocate to live in the USA under any circumstances.

18. When cross-examined, the father said that, whilst he “hoped” to receive some income after the trial from work he had done before the trial, he did not “expect” to do so. When asked why he had not looked for paid employment given his evidence about how badly both J Pty Ltd and M Inc had performed in the two and a half years before the hearing, he said that such performance was not unusual historically. The tenor of his evidence was, in essence, that over the 19 years he had operated the businesses, he had received about $2,000,000.00 in total as a result of closing deals and that the most money he had received in any one financial year as a result of business that had been closed was about $550,000.00. Such evidence – if accepted – makes his decision to draw down about $735,000.00 from the loan facility in a period of about three years after the mid-2016 marital separation even more reckless than it would appear to have been at first blush.

19. I consider the father’s approach to financial matters and the intermingling of his personal affairs with those of J Pty Ltd and M Inc is demonstrated by his evidence about whether or not he had received any “income” from either company for the 12 months preceding the hearing; he was very careful in his terminology and initially deliberately and specifically confined his answers to questions about receiving money from the companies to him not receiving any “income”. When first asked whether he had received any payments, repayments of loans, dividend declarations or anything from either M Inc or J Pty Ltd, he said he had not; however, he later said that he had “probably” received funds from the company by making a transfer from a business account to his personal account; he also said that he was pretty sure that, at the end of the financial year, his accountant then caused either company to classify these amounts as “loans” to him.

20. Whilst the father certainly advanced that the continued operation of J Pty Ltd and M Inc was one of the reasons why he was unable to return to live in the USA if the children relocated to live there with their mother, his evidence about the absence of earnings from both businesses in the time between the marital separation in mid-2016 and the trial in December 2019 was unsupportive of that contention. That neither have earned anything since the marital separation seems to me to suggest that it may make more sense for the father to return to the USA, where M Inc retains clients and where he has family, rather than continuing to purportedly eke out an existence here.

21. Whilst relocating to the USA would inevitably impact on the father’s relationships with Mr Z and Mr Z’s partner, he is much more likely to be able to maintain an ongoing relationship with these adults from afar than he is with his own children; whilst his relationship with his grandchildren may well be significantly affected by a move to live in the USA, the law requires that priority be given to maintaining meaningful relationships with children. Whilst he said that he did not know about his partner’s status vis-à-vis moving to live in the USA, her comments to Mr S make it clear that she is prepared to follow him there if he relocated; further, there is no evidence to suggest that the father’s partner could not move with him to live in the USA if he chose to return to the country of his birth.

22. Whether Mr Z and his immediate family can or cannot afford to live in the USA is not, in my view, a factor that should be accorded determining weight in the consideration of whether the children’s best interests are met by relocating to live in the USA with their mother.

The mother

1. The accepted position that the children will remain living primarily with their mother renders detailed discussion of many of the relevant considerations unnecessary.

2. I accept that the mother is genuine in her desire to be able to relocate the children to live with her in L State, where the children’s maternal grandparents live. I accept that she seeks to be able to do so in order to be supported by members of her external family and close friends and so that the children will be afforded the opportunity to spend more time with these important people.

3. I accept that, when interviewed by Mr S in October 2019, the mother reported that she felt that she was the person supporting the life the father wanted to live in Australia; she said she felt “at the end of (her) rope” living here and, in particular, managing financially. She reported that she saw no reason to be in Australia other than for the children to attend school and spend time with their father; she said she left Australia during each school holiday period. When asked if she felt lonely, she said she tried not to think about it because, if she did, she thought she would “crawl into a corner and cry”.[30]

   [30] Affidavit of Ms S filed 11 December 2019 at [3.21].

4. That her case did not involve the assertion that she would not be able to parent the children adequately if she were not permitted to relocate them to live with her in the USA does not detract from the mother’s reported feelings, which I accept were truthfully and genuinely conveyed to Mr S.

5. Given the father’s actions after the marital separation – as discussed elsewhere -it is, I think, understandable that the mother gave some of the evidence she did when asked about the potential impact on the father and his life of a decision which permitted the children to move to live in the USA. For example, when  asked whether she assumed or expected that the father would leave Australia  at her behest to follow her (more accurately, the children) to the USA, she said that she expected him to follow the children – just as she had stayed in Australia for the children, even though, from her perspective,  her whole life was in the USA.

6. The mother’s position was that, if the children were permitted to relocate to live in the USA, the father should bear the costs of them travelling to Australia to spend time with him here twice a year: she said she had not offered to contribute financially to the costs of the children’s travel because it was their father’s choice to live in Australia. Such a comment may, in another case, have been regarded as dismissive and unsupportive of the children’s ongoing relationships with their father. However, given the likely impact on the mother of the father’s demonstrated absence of concerns about her financial situation after he stopped paying ordered spousal maintenance at the end of September 2018, I am not persuaded that this is the case.

7. In February 2018, Mr S assessed the mother as being a parent the Court could be “reasonably reassured” would likely do all that she could to facilitate and encourage the children’s relationships with their father to the extent possible if she was  permitted to relocate them to live with her in the USA. He also thought it reasonable to assume that she would adhere to Court orders and would support the child in maintaining their relationship with their father. I accept these assessments.

8. Given the father’s evidence that he and the mother have previously been able to agree variations to the November 2016 orders, which have resulted in the children having the opportunity to spend more time with him than provided for by that order, I concur with Mr S’s assessment of the mother’s attitude to the father’s role in the children’s lives; I also accept that it is much more likely than not that, whether she continues to live in Australia or is permitted to relocate the children to live with her in the USA, the mother will continue to promote and support the children in their ongoing and developing relationships with their father.

9. Lest it be raised at any future time, I note that, whilst the mother consistently advanced in her evidence that the father had been controlling of her during their marriage, she accepted that she had never filed an application in relation to family violence. Her failure to do so is, I think, completely explained by her response when asked, in essence, why she had not done so if that was the case: she said: “what does control have to do with violence?”

10. The mother was asked about the difficulties for the father in moving to the USA, given that there may be difficulties for his partner of two and a half years to join him there. Her response was blunt: she said, in essence, that that was the father’s problem as he had chosen to enter into a relationship ‘like that’. She clearly considered that whether either parent’s partner could or could not move to live in the USA was not relevant to determining what was right for the children.

11. Despite her responses to the questions asked of her about this issue, I accept the mother was genuine when she said that she found the father’s position – that he would remain living in Australia if she was permitted to relocate the children to live with her in the USA – to be “heartbreaking”.

12. I accept the thrust of the submission made by Counsel for the mother to the effect that the fact that the parents appeared to have been able to manage their co-parenting relationship effectively, and without displaying any conflict to the children, has been due mostly to the manner in which the mother had dealt with her financial circumstances as they resulted from the father’s decision to cease making the ordered spousal maintenance payments (whilst at the same time drawing on the loan facility for his own uses).

1. I also accept that, despite having withdrawn $190,000.00 from the loan facility between 21 February 2019 and 30 May 2019, the husband subsequently failed to pay the wife the $38,343.80 he was ordered by Senior Registrar Spink, on 28 May 2019, to pay her within seven days.

2. I accept that, when the husband attended at Court on 29 May 2019 for the hearing of the wife’s application to restrain him from causing any payments to be made to any of M Inc’s asserted creditors, he knew of the nature of her application. I accept that it is much more likely than not that he was aware of the substance of this application when, on 28 May 2019 – the day before it was heard – he caused a transfer of $10,000.00 to be made from the M Inc business bank account to V Lawyers.[64] The husband’s evidence that this transfer related to a new engagement (and not the asserted debts in respect of which the wife’s application for injunctive relief related) is completely unpersuasive and irrelevant in that he clearly knew that the underlying purpose of her application was to prevent the further dissipation of funds pending the trial.

   [64] Exhibit 10.

3. The conclusions reached above establish that, following the marital separation, the husband withdrew $765,000.00 from the loan facility secured by mortgage over the former matrimonial home and that, as a consequences of his actions, the amount repayable to the commercial lender went from “nil” on 1 July 2016 to $756,124.00 as at 21 June 2019. I also accept that, by the time the sale of the former matrimonial home settled on 14 October 2019, the total amount repayable from the $1,250,000.00 sale price was $773,404.88.[65]

   [65] Exhibit 4.

4. The husband said, when asked whether he drew down the funds as he had because he regarded the money as being “his” money, that he had regarded it as “our money.” However, the manner in which he applied the funds he drew and the manner in which he withdrew the same clearly establishes the falsehood of this response.

5. I accept that nearly all of the funds drawn by the husband from the loan facility after 28 September 2018 were used by him only to meet his own personal needs and paid only for his own personal benefit and not applied to meet the wife’s financial needs nor those of the children. To the extent that the wife received spousal maintenance payments from this source prior to this date, such payments benefitted the husband as they discharged his liability to pay the same.

6. Whilst the husband may well have been correct in his assertion that he used some of the funds he drew from the loan facility to meet interest which accrued on the same, it is clear that his actions were entirely responsible for causing that interest to accrue. I also accept that, despite continuing to cause J Pty Ltd or M Inc to pay Mr Z in August, September and October 2019, he ceased causing any interest payments at all to be made after about 25 July 2019. I consider that the direct consequence of his actions in this respect was to further reduce the funds available to the parties following the sale of the former matrimonial home – by way of example, the interest levied and unpaid in the period from 1 August 2019 until the 14 October 2019 sale of the home was $17,080.34[66] and a further $50.00 (contractual arrears fees) was levied.

   [66] Exhibit 8: the total of the interest charged from 1 July 2019 until 17 October 2019, less the $3,900.00 paid on 25 July 2019.

7. The husband’s evidence included that he used the $310,000.00 he drew down between 6 July 2018 and 22 February 2019 to pay “legal fees, mediators, court-appointed psychologist, court-appointed forensic accountant and basic living expenses”.[67]

   [67] Exhibit 5.

Amounts spent by the husband on legal fees

1. The husband has engaged a number of different legal firms to represent him during the course of these proceedings. I accept that he paid QQ Lawyers about $94,788.48.[68] I also accept that it appears that he paid RR Lawyers about $40,144.87 until 15 April 2019 and another $4,000.00 for Counsel in May 2019. It also appears that he may be indebted to RR Lawyers in the amount of about $19,000.00. His evidence was that he had not paid his current lawyers (MBA Layers) any money for their legal services as at the date of the trial and had not deposited any funds into their trust account.

   [68] Exhibit 12A: I have deducted $1,011.34 from the total of $95,799.82 because, whilst not deducted from the total, it was said to have been written off.

2. On the evidence, it seems to me that the husband has paid about $138,933.35 in legal fees to date, using funds drawn from the loan facility.

The costs of the mediator and experts

1. The Balance Sheet handed up by the husband’s Counsel on 18 December 2019 continued his claim that the wife should reimburse him for half of: the valuation fees; and the costs of obtaining the Family Report; and the marketing fees associated with the sale of the former matrimonial home; and the costs of the mediator engaged for the mediation in which the parties participated. The total sought to be “reimbursed” was $11,350.00.

2. Given that the husband paid these costs – and, I find, his own contribution to the same – from funds he withdrew from the loan facility, there is no proper basis for his request to be “reimbursed.” However, it is, I think, appropriate to record that I accept that the costs of these matters – which I find to have been $22,700.00 in total – were met using funds the husband withdrew from the loan facility.

Asserted expenditure on “living expenses”

1. Whilst it has been possible on the evidence to quantify, albeit roughly, the amounts of the funds withdrawn by the husband from the loan facility likely spent on legal fees, mediation, forensic accountant and Family Report preparation, the husband did not provide any further particularisation of his asserted living expenses: he simply asserted that he had used the balance of the very significant funds he withdrew from the loan facility to meet “living expenses”.

2. Counsel for the husband submitted that, given this, the state of the evidence was such that the Court was unable to determine exactly how much of the money withdrawn by the husband should be notionally added back for the purpose of determining the value of the property of the parties – I extrapolate that this submission would logically encompass that it was similarly impossible for the Court to determine the quantum of funds which the husband should be found to have prematurely distributed to himself[69], or which he may be found to have expended as part of a course of conduct designed to reduce or minimize the effective worth of matrimonial property or which have been expended as the consequence of his reckless, negligent or wanton action and which have resulted in the reduction of the value of the property of the parties.[70]

   [69] See, for example, Townsend & Townsend (1995) FLC 92-569.

   [70] See, for example, Kowaliw & Kowaliw (1981) FLC 91-092.

3. To the extent that such submission suggested that it was for the wife to prove what the husband had used the unilaterally withdrawn funds for, I reject it.

4. I consider that, given the well-known principles adverted to above and in order to resist the inevitable submission made on behalf of the wife (as summarised below), the evidentiary burden fell on the husband to establish, with more particularity than simply a bald assertion that they had been spent on “living expenses”, how he used the very significant funds he withdrew from the loan facility.

5. Counsel for the wife submitted that the Court would be persuaded to notionally add back all of the funds withdrawn by the husband from the loan facility other than those used to meet his legal expenses, as these were, in a sense, met or offset by the $100,000.00 the wife received, as a consequence of the consent order made on 29 May 2019, to pay her legal expenses. It was, predictably, submitted that the Court would regard the sums withdrawn by the husband – other than those used to meet legal fees – as constituting, effectively, a premature distribution by him, to himself, of an asset in which the wife had a legitimate interest.

6. There is much force in this submission. I consider that, in acting as he did, the husband simply determined to ensure that he received what he considered he should receive from the property of the parties following the end of their marriage; he caused a premature distribution by him, to himself, of an asset (the value of the former matrimonial home, unencumbered as at 1 July 2016) in which the wife had a legitimate interest.

7. In addition, given his evidence about the uneven nature of the receipt of income from his business, his actions in withdrawing the funds that he did from the loan facility were reckless and negligent in that he deliberately eroded the financial buffer then available to the parties (and their children) for their future financial support whilst awaiting the receipt of business income which he “hoped” would occur.

Payments the husband caused J Pty Ltd and M Inc to make to Mr Z

1. I accept that between 18 July 2017 and the second day of the hearing in December 2019, the husband deposited about $324,154.00 of the monies he drew from the loan facility secured over the former matrimonial home into a bank account held in the name of J Pty Ltd.[71]

   [71] Exhibit 13.

2. I accept that, despite reporting a downturn in the business he operated through J Pty Ltd and M Inc to Mr JJ, the husband said, when cross-examined, that Mr Z (who otherwise worked in hospitality, as a groundskeeper and was starting his own business with his wife and who had been appointed by the husband as “Vice-President” of both companies) had been very busy working for both entities during the previous 18 months, doing “strategic research”, emailing companies and looking for opportunities.

3. When it was suggested to the husband that Mr Z had only been paid consultancy fees since the marital separation, he said that he did not know when this practice started. I think I much more likely than not that this was the case.

4. I accept that, between 10 December 2018 and 17 September 2019, the husband caused J Pty Ltd to pay Mr Z a total of $33,210.75. I also accept that, between 21 May 2019 and 12 December 2019, the husband caused M Inc to pay Mr Z a total of $13,568.00.[72] Given the husband’s evidence that neither business received any payments during these periods, the funds drawn by the husband from the loan facility secured over the former matrimonial home were the funds used by J Pty Ltd and M Inc to pay Mr Z these amounts. That is, rather than comply with the order to pay the wife $1,400.00/week spousal maintenance, the husband used funds borrowed against the former matrimonial home to pay Mr Z.

   [72] Exhibit 7.

The $30,000.00 paid to the wife

1. Order 3 of the November 2017 Order specifically provided that, in the event the husband failed to meet his obligation to pay spousal maintenance pursuant to the order and the wife was required to use funds from the $30,000.00 interim property distribution made to her that day for her maintenance, she was at liberty to seek that the funds used for her maintenance not be classified at trial as constituting an interim property distribution.

2. Whilst it is clear that the husband failed, after 28 September 2018, to meet his obligation to pay spousal maintenance pursuant to the November 2017 order, it is not clear to me that the wife used the $30,000.00 or any part of it for her maintenance. Further, the husband caused her to be paid $58,459.25 on about the last day of the trial (18 December 2019) in discharge of the spousal maintenance then owing to her and she has the benefit of an order for costs, fixed in the amount of $10,850.68, which was payable by 30 January 2020 in respect of her application of an order for the payment of outstanding spousal maintenance.

How to treat the wife’s receipt of funds from the sale of the former matrimonial home?

1. Order 18.d. of the orders made by consent on 29 May 2019 provided that $100,000.00 from the proceeds of the sale of the former matrimonial home be paid to the wife, by deposit of the same into her solicitors’ trust account. I accept that, on about 14 October 2019, the sum of $100,000.00 was paid to the wife in accordance with the order referred to above.[73]

   [73] Exhibit 4.

2. I note that Order 19 of the May 2019 orders reserved the characterisation of this payment to the trial judge. It is obviously relevant to note the wife’s receipt of the same and I do.

Conclusions as to s 75(2) factors

1. Having considered the various matters discussed pursuant to s 75(2), I consider that the most appropriate and just way to record my conclusion at this stage in the particular circumstances of this case is to say no more than that the assessment of the same overwhelmingly favours the wife.

2. Noting the obligation not to make an order unless satisfied that, in all the circumstances, it is just and equitable to make the order, I turn to further discussion of the same.

What orders are just and equitable?

1. Counsel for the husband submitted that the Court would be persuaded that orders made to reflect the husband’s proposal would be just and equitable in the circumstances of this case; she also emphasised that the wife had received $72,800.00 by way of spousal maintenance payments (being the total paid until September 2018 and the amount obtained as a result of the garnishee action taken by the CSA).

2. I accept that, as a consequence of the husband’s unilateral actions after the marital separation, the debt secured over the former matrimonial home increased from “nil” on 1 July 2016 to the $773,404.88 repaid to the bank at the settlement of the sale of the same for $1,250,000 in October 2019.

3. I have already found that the actual amounts withdrawn by the husband from the loan facility after separation totalled $765,000.00. In addition to these drawings, he had sole use of $60,000.00 which I have found he received following his unilateral sale of the motor vehicle 3 motor vehicle: that is, as a result of his unilateral actions after the mid-2016 marital separation, the husband caused himself to receive a total of $825,000 from the value of property which existed at the date of separation, which amount he overwhelmingly applied for his own purposes and benefit.

4. Given that I think it much more likely than not that the costs of the mediator, Family Reports, business valuation and advertising costs relating to the sale of the former matrimonial home – which together totalled $22,700.00 – were paid using either funds drawn by the husband from the loan facility or funds received from the sale of the motor vehicle 3, it is appropriate to acknowledge that both the husband and the wife obtained an equal benefit from the same. Consequently, I notionally deduct this amount from the $825,000.00 referred to above.

5. I think it much more likely than not that the husband used funds he drew from the loan facility to meet his obligation to pay the wife spousal maintenance in the amount of $1,400.00/week. It is also likely that the loan was the source of the funds held by the husband in the bank account the subject of the CSA garnishee. In this way, the husband obtained the benefit of discharging his obligation to pay the wife the agreed spousal maintenance by drawing on the equity in the former matrimonial home – equity to which I consider she made significant direct financial contribution via her direct and vital contribution to the operation of the businesses during the parties’ approximately thirteen year cohabitation and her overwhelming parenting and homemaker contributions during the same period.

6. Consequently, whilst it is appropriate to note that it is more likely than not that the husband applied about $72,800.00 of the funds he accessed after the marital separation to the wife’s support to trial (in the manner outlined above)[74], it is not, in my view, appropriate to conflate her receipt of these spousal maintenance payments with, in essence, a partial property settlement.

   [74] Exclusive of the $58,459.25 he caused to be paid to her at about the end of the trial in order to discharge his then-outstanding spousal maintenance arrears.

7. Applying the conclusions expressed above to the total funds I have found the husband to have accessed after the marital separation means that, to the complete exclusion of the wife, he had about $769,500.00 available for his own uses and support.

8. As noted earlier, the husband simply asserted that he spent the funds withdrawn from the loan facility on meeting the costs discussed in paragraph [294], on paying his legal costs and on living expenses.  It is also appropriate to acknowledge here that the $30,000.00 paid to the wife as  consequence of the November 2017 order was, more likely than not, sourced from funds drawn by the husband from the loan facility.

9. I accept that parties do not go into an economic suspended animation following separation and that monies spent on reasonable living expenses after a marital separation ought not usually be notionally added-back; however, the husband’s failure to discharge the evidentiary onus of establishing the reasonableness of his asserted living expenses means that I am left to either regard him as having received the entirety of the balance of these funds after the adjustments outlined above without regard for an allowance for his self-support or to attempt to arrive at a determination of the amount I consider it reasonable for him to have spent on his self-support.

10. Even taking into account the submissions made on the wife’s behalf about the scepticism I should bring to bear in considering the husband’s evidence that the businesses have returned nothing since separation and even noting the husband’s failure to call Mr Z as a witness in his case, I am not persuaded that it is appropriate to simply ignore the highly likely reality that the husband likely used at least some of the funds withdrawn from the loan facility to meet his personal financial needs after separation.

11. Doing the best that I can on the evidence before me, I consider it reasonable for the husband to have applied about $1,000.00/week to meet his own financial needs.[75] Consequently, I consider it reasonable to notionally quantify $1,000.00/week from the date of the husband’s first withdrawal from the loan facility (7 February 2017) until 29 May 2019 (his last withdrawal from the facility) as being funds he applied to meet his financial needs: given the 120 weeks between these two dates, this results in the amount of $120,000.00.

    [75] Noting the amount he agreed to pay the wife by way of spousal maintenance and also that he continued to live in the former matrimonial home whilst she was required to rent premises suitable to accommodate herself and the children.

12. Applying the conclusion just reached means that the husband has already applied no less than about $619,500.00 (which I round to $620,000.00) for his own purposes and completely to the exclusion of the wife, despite the same being drawn against the equity in the former matrimonial home as at the marital separation.

13. On the husband’s proposal, he should retain property valued at $1,233,302.00[76] or at $1,372,338.00[77] and the wife should receive property valued at $514,345.60:[78] a result which would see him receive property valued at between about 70.57 per cent and 72.74 per cent of the value of the property of the parties[79] and the wife receive property valued at between about 29.43 per cent and 27.226 per cent of the value of the property.[80]

    [76] Using his asserted value for his interest in the farm in the USA and inclusive of his entitlement to superannuation and according the townhouse in the USA the value I have found it to have.

    [77] Using the wife’s asserted value for his interest in the farm in the USA and inclusive of his entitlement to superannuation and according the townhouse in the USA the value I have found it to have.

    [78] According the townhouse in the USA the value I have found it to have and recognising that the wife has received $130,000.00 already in total (being $30,000.00 as a result of the November 2017 Order and $100,000.00 from the nett sale proceeds of the former matrimonial home as a consequence of the 29 May 2019 Order).

    [79] Depending on the values used.

    [80] Depending on the values used.

1. Even taking into the husband’s overwhelming initial financial contributions, his contribution to the businesses and the family during the cohabitation, his inheritance received very late in the cohabitation and his care of the children after separation into account, I do not consider that orders to give effect to this result would be just and equitable – rather, they would fail to appropriately reflect the wife’s integral contribution to the businesses during the nearly thirteen year cohabitation, her overwhelming contributions during that time also as a homemaker and parent, her overwhelming contribution to the children’s financial support since the marital separation, her care and support of Mr Z, the fact that it is highly unlikely she will ever receive any direct financial contribution at all from the father in the future to assist her  to meet the children’s future financial needs whilst she continues to discharge her ongoing role as their primary care-provider and that his future financial position is likely to be significantly better than hers.

2. I consider that the orders which are just and equitable in the circumstances of this case, and which appropriately recognise and reflect the various contributions made by each party at the various times and in the varying ways that I have found and the relevant s 75(2) considerations I have found, are orders which will see the wife receive the townhouse owned by the husband in the USA in addition to the property which he proposed she receive.

3. The consequence of these conclusions is that the husband will retain property valued at $921,812.50[81] or $1,060,848.50[82] and the wife will receive and retain property valued at $825,835.10.[83]

   [81] Using his asserted value for his interest in the farm in the USA and inclusive of his entitlement to superannuation and the funds which I have found him already to have utilised for his own purposes to the exclusion of the wife.

   [82] Using the wife’s asserted value for his interest in the farm in the USA and inclusive of his entitlement to superannuation and the funds which I have found him already to have utilised for his own purposes to the exclusion of the wife.

   [83] According the townhouse in the USA the value I have found it to have and recognising that the wife has received $130,000.00 already in total (being $30,000.00 as a result of the November 2017 Order and $100,000.00 from the nett sale proceeds of the former matrimonial home as a consequence of the 29 May 2019 Order).

4. In all the circumstances of this particular case, I am satisfied that orders to give effect to these conclusions and as set out at the commencement of these Reasons are just and equitable and that it is appropriate that orders be made adjusting the existing interests of the parties in property in the manner particularised therein.

I certify that the preceding three hundred and seven (307) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 June 2020.

Associate: 

Date:              11 June 2020