Taraska & Taraska
[2021] FCCA 1746
•30 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Taraska & Taraska [2021] FCCA 1746
File number(s): ADC 5671 of 2019 Judgment of: JUDGE BROWN Date of judgment: 30 July 2021 Catchwords: FAMILY LAW – children – best interests of the child – residence and relocation – application to move child interstate – where mother proposes to move to Melbourne – where mother and father currently reside in City B – parenting orders – where mother has underlying mental health issues – property – property settlement – superannuation – splitting order – financial contributions – modest asset pool – contributions during the marriage – assessment of contributions – considerations of justice and equity Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 75, 79 and 117
Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth)
Cases cited: A v A: Relocation Approach [2000] FamCA 751
Adamson & Adamson (2014) FLC 93-622
AMS v AIF; AIF v AMS (1999) 199 CLR 160
B v B [2006] FamCA 1207
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Bevan & Bevan [2013] FamCAFC 116
Biltoft & Biltoft (1995) FLC 92-614
Brickley & Lidcombe [2012] FMCAfam 301
Bright v Bright (1995) FLC 92-570
C & S [1998] FamCA 66
Clauson & Clauson (1995) FLC 92-595
Elbers & Elbers [2019] FCCA 3748
Ferraro v Ferraro (1993) FLC 92-335
Fox v Percy (2003) 214 CLR 118
Fragomeli & Fragomeli (1993) FLC 92-393
Godfrey & Sanders (2007) 208 FLR 287
Goode & Goode [2006] FamCA 1346
H & W (1995) FLC 92-598
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Omacini (2005) 33 Fam LR 134
In the Marriage of Townsend (1994) 18 Fam LR 505
Jurchenko & Foster (2014) FLC 93-598
Keane & Keane (2021) 62 Fam LR 190
Lee Steere v Lee Steere (1985) FLC 91-626
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR v GR (2010) 240 CLR 461
Oswald & Karrington (2016) FLC 93-726
R & R: Children’s Wishes (2000) 25 FamLR 712
Russell & Russell & Anor [2009] FamCA 28
Sampson & Harnett (No 10) (2007) FLC 93-350
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Taylor & Barker (2007) FLC 93-345
Trevi & Trevi [2018] FamCAFC 173
U v U (2002) 211 CLR 238
Vernon & Buckley [2012] FMCAfam 638
Wardman & Hudson (1978) FLC 90-466
Waters & Jurek (1995) FLC 92-635
Watson & Ling [2013] FamCA 57
Wilburn & Wilburn [2019] FCCA 2131
Zahawi & Rayne [2016] FamCAFC 90
Other:
Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Australian Oxford Dictionary
Number of paragraphs: 598 Date of last submission/s: 11 May 2021 Date of hearing: 16-17 February and 12 March 2021 Place: Mount Gambier and Adelaide Counsel for the Applicant: Ms James Solicitor for the Applicant: Mahony’s Lawyers Counsel for the Respondent: Mr Richards Solicitor for the Respondent: John Finlayson Lawyers ORDERS
ADC 5671 of 2019 BETWEEN: MR TARASKA
Applicant
AND: MS TARASKA
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
30 JULY 2021
THE COURT ORDERS THAT:
In relation to all parenting applications:
1.The parties have equal shared parental responsibility for the child X born in 2011 (hereinafter referred to as ‘X’).
2.X live with the mother, Ms Taraska (hereinafter referred to as ‘the mother’ or ‘the wife’).
3.The application for the mother to relocate the residence of X from City B to Melbourne is granted.
4.X spend time with the father, Mr Taraska (hereinafter referred to as ‘the father’ or ‘the husband’) as agreed in writing between the parties and failing agreement:
(a)During school terms:
(i)In City B on the second and sixth weekend, with handovers to occur at City D McDonalds or such other location as may be agreed between the parties, during each school term as follows:
A.On the second weekend during the school term, time is to commence at 6:30 pm on Friday until 3:00 pm on Sunday;
B.On the sixth weekend during the school term, time is to commence at 6:30 pm on Friday until 3:00 pm on Sunday;
C.If the weekend immediately before or after the second or sixth weekend is a public holiday in Victoria or a non-school day on the Friday and/or the Monday then such time shall be substituted to the long weekend and time shall be extended to include the extra day(s);
(ii)In Melbourne on the fourth and eighth weekend, with handovers to take place at Suburb E McDonalds or such other location as may be agreed between the parties, during each school term as follows:
A.From the conclusion of school on Friday (or at such other time that may be nominated and agreed to between the parties in writing) until 6:00 pm on Sunday; and
B.Such time to take place at the home of the father’s sister or any other suitable location in Melbourne as may be nominated and agreed to in writing between the parties.
(iii)For such further and other periods of time as the parties may agree as communicated in writing by text message or email.
(b)During school holidays, with handovers to take place at City D McDonalds or such other location as may be agreed between the parties, which shall for the purpose of these orders commence at the conclusion of school on the last day of the school term and resume at the commencement of school on the first day of the following school term:
(i)For one half of each of the short school holidays at times to be agreed between the parties in writing, and in default of agreement, the father will spend time with X from 12:00 pm on the middle Sunday until 3:00pm on the final Sunday of the school holidays;
(ii)For one half of the long summer school holidays in each year at times to be agreed between the parties in writing and in default of agreement:
A.For the 2021/2022 school holidays – on a week about basis commencing at 12:00 pm on the day after the last day of the school term such that Christmas Day shall fall within a week where X is in the care of the mother;
B.For the 2022/2023 school holidays – on a week about basis commencing at 12:00 pm on the day after the last day of the school term such that Christmas Day shall fall within a week where X is in the care of the father;
C.From 2023/2024 – in each alternate year thereafter from 12:00pm on the middle Sunday of the long summer school holidays until 12:00 pm on the day prior to school resuming in Term 1; and
D.From 2024/2025 – in each alternate year thereafter from 12:00pm on the last day of the school term until 12:00 pm on the middle Sunday of the long summer school holidays.
(iii)For such further and other periods of time as the parties may agree as communicated in writing by text message or email.
5.Each party be responsible for the cost of their own, or their agent’s travel to collect/deliver X at handovers.
6.In any year where it is necessary, the parties are to swap weekends to ensure that X spends the Father’s Day weekend with the father, and the Mother’s Day weekend with the mother.
7.Should the father be visiting Melbourne at any time and upon giving the mother reasonable written notice in advance of him doing so, the father to spend time with X at such times and at such places to be agreed between the parties in writing.
8.Should either party wish to travel with X during any period that she resides in the mother or father’s care from outside his or her (as the case may be) “home state” that party shall give the other party at least four (4) weeks written notice thereof, including as to applicable details for flights, accommodation and contact details.
4.The parties each facilitate communication by telephone, email, text message, Skype or FaceTime between the child and her other parent and/or grandparent(s) at any reasonable time that is agreed between the parties as may be requested by the child, the other parent or grandparent(s). In default of agreement, X is to communicate by Skype or FaceTime on each Wednesday and Sunday at 4:30 pm local time for X, with the party whom X is not being cared for at the time to initiate the Skype or FaceTime call.
5.X be enrolled to attend at a Primary School during 2021 in Melbourne to be agreed between the parties after the mother and X relocate to Melbourne for the entirety of her primary education unless the parties agree in writing otherwise and the parties do all such things and sign all such forms necessary to enrol X in such Primary School to be agreed between them in writing.
6.The mother and father do all things reasonable to ensure that the other is kept informed in a timely manner of any issues relating to the wellbeing, health, education and care of X whilst in the care of the respective party.
7.The mother and father inform the other forthwith by telephone call to the other’s mobile telephone in the event of any accident, serious injury or serious illness suffered by X and of all and any medical or other treatment received by X. In the event the other party does not answer the call then the informing party shall notify the other party by text message.
8.Both parties be at liberty to attend X’s sporting and extra-curricular activities and all school functions routinely attended by parents in respect of the child, obtain copies of the child’s school reports and school photographs and any other school related information in respect of the child.
In full and final settlement of all applications for the settlement of matrimonial property:
9.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth) there be a splitting order, in the sum of THIRTY SIX THOUSAND SIX HUNDRED AND NINE DOLLARS AND EIGHTY TWO CENTS ($36,609.82), made in the wife’s favour of the funds currently standing in the husband’s superannuation fund, with the husband to bear the costs associated with such superannuation split.
10.The trustee of the husband’s superannuation fund is to do all things necessary to give effect to order (10) hereof and within twenty eight (28) days of the making of this order to rollover the sum to be split in the wife’s favour to the superannuation fund nominated by the wife.
11.That out of the proceeds of settlement for the sale of C Street, City B SA (hereinafter referred to as ‘the C Street, City B property’), the wife receives the sum of EIGHTY FIVE THOUSAND SIX HUNDRED AND FORTY DOLLARS AND TWENTY NINE CENTS ($85,640.29).
12.That out of the proceeds for the settlement of the C Street, City B property, the husband receives the sum of TWENTY FIVE THOUSAND FIVE HUNDRED AND EIGHTY EIGHT DOLLARS AND SIXTY NINE CENTS ($25,588.69).
13.That within twenty eight (28) days of the date of this order the wife surrender to the husband the Motor Vehicle 1 currently in her possession with the husband to be at liberty to sell the vehicle and retain any and all of the proceeds of sale for his sole use and benefit and absolutely free from any further claim or demand of the wife.
14.Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a)the furniture and furnishings in his possession, power and control;
(b)any motor vehicle in his possession;
(c)all savings, shares and investments in his name;
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in his name subject to order (10) hereof;
(e)his personal effects; and
(f)any other real and/or personal property and/or financial resources of the husband or in the husband’s name and/or possession not otherwise specified herein.
15.Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:
(a)the furniture and furnishings in her possession, power and control;
(b)any motor vehicle in her possession, subject to order (13) hereof;
(c)all savings, shares and investments in her name;
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits, standing in her name;
(e)her personal effects.
(f)any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.
16.The husband is ordered to indemnify the wife with respect to any liability of the husband either personally or jointly with the wife in respect of any debt asserted to be owed to the husband’s parents.
17.There be no order as to costs.
18.All outstanding applications are dismissed and the proceedings are finalised.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Taraska & Taraska is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment are directed towards resolving controversies that arise from the care of a child and issues surrounding the settlement of property following a marriage of around seven years.
The parties concerned are Mr Taraska (‘the husband’ or ‘the father’) and Ms Taraska (‘the wife’ or ‘the mother’). Their much loved and cherished child is X born in 2011.
The parties are not wealthy people. Their major asset is the proceeds of sale of their former family home at C Street, City B SA. The sum concerned is just over $121,000.00.
Otherwise, the parties own motor cars of modest value and the items which currently furnish their respective homes. The husband has superannuation of around $116,000.00.
The wife has less superannuation, which is currently around $38,000.00, and was recently reduced by $20,000.00, as a consequence of the superannuation withdrawal concessions, authorised by the Australian Government as part of its pandemic response.
Notwithstanding their modest financial circumstances, the parties have each allocated considerable funds towards legal fees relating to the conduct of this case. This is because the issues, relating to X’s care, are insoluble, so far as each of them is concerned and, as such, incapable of compromise.
The practical reality is that there will be little or no actual funds remaining for either of them, as their moneys will have to be allocated to pay their lawyers’ fees. In these circumstances, the wife seeks to be awarded all of the proceeds of sale and for the parties’ superannuation to be equalised.
The basis of the wife’s position is that she will have responsibility for the majority of X’s care and she will be able to live with the child in Melbourne, some distance from where the parties and X have hitherto lived in City B.
The husband agrees that it would be just for the parties’ superannuation to be equalised. However, it is his position that the parties’ property should be divided, in his favour on a 60/40 percent basis to reflect what he asserts have been his greater financial contributions.
The more significant area of dispute, between the parties, centres on care arrangements for X. To his credit, Mr Taraska does not dispute that Ms Taraska has been X’s main provider of care and he does not seek to disturb this arrangement.
However, he wishes the Court to make what can be summarised as a coercive order which would prevent the mother from leaving City B with X, and would compel her to remain indefinitely in the town, if she wished to continue as the child’s primary carer.
The rationale for such an order is that X is well-settled in City B. The father is also not in a position to leave the town. More importantly, such an outcome would enable X to continue to enjoy the best possible relationship with him and her paternal family.
In addition, he contends that there are implicit risks, so far as X’s emotional and physical safety are concerned, relating to issues surrounding the wife’s mental health, if a situation came about whereby the child is cared for in an environment far away from her father.
The mother does not dispute that she has suffered compromised mental health over many years. She attributes her poor psychological health to the fact that she feels deeply unhappy and unfulfilled in City B, as she has no friends and family support, in the town and there are limited employment opportunities for her there.
In these circumstances, it is her case that the Court can readily anticipate that, if she is able to move to Melbourne, she will become a much happier person and will be better placed to parent X to the full extent of her capabilities.
She asserts that such an outcome will be the preferable one for X, given the concession made by Mr Taraska in respect of her primary care, which he does not seek to challenge other than that she should be X’s primary carer, in the location of his preference, at his tacit direction.
Essentially, if she is able to parent X in a location of her choice this will be better for X. In contrast, to compel her, against her will, to parent the child in a place where she feels unhappy and unfulfilled is unlikely to be in X’s best interests.
Each party has a proposal for the child to maintain relations with her father if the move occurs, or if it does not. In this context, the mother concedes that the distance involved is significant but not insuperable.
It is the wife’s case that the father has relatives in Melbourne and should be able to visit the city from time to time whilst the cost and distance of travel between City B and Melbourne are not so great as to prevent X spending time with her father and paternal family in school holidays.
The parties’ individual level of expenditure, on legal fees, which they each can ill afford, is a testament to their respective level of commitment towards X and their desire to achieve what each thinks will be the best outcome for her. Sadly, for axiomatic reasons, the parties vehemently disagree as to what that outcome should be.
The case is what lawyers commonly refer to as a ‘relocation matter’. Relocation cases arise when one parent, very often for compelling personal reasons, wishes to move, with a child, away from the other parent concerned, who for equally valid reasons feels unable to move in tandem with the child.
Inevitably, the consequences of such a case, whatever its outcome, must have significant implications for the emotional well-being of the child concerned (and indeed for each of the parents), in terms of the frequency and quality of child/parent interaction with the parent proposed to be left behind.
The wife has powerful reasons for wanting to live in Melbourne. It is where her mother, other relatives, and some old friends live and which has positive connotations for her. In addition, she has been offered accommodation and employment by an old family friend. Consequently, she feels her mental health will be better supported in Melbourne.
On the other hand, the husband has secure and long standing employment in City B, which is his home town. The prospect of either him leaving the town to start again somewhere else, or X doing so, fills him with dread.
He fears that he may be removed as a living presence in the day to day warp and weft of X’s life and she will grow up with a sense that she does not have a loving and engaged father and this, for self-apparent reasons, cannot be considered to be in her best interests.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both parents, in the now changed circumstances of the parents’ separation.
In addition and significantly, Australia is a free country, whose citizens have an entitlement to live how and where they choose. This principle of freedom of movement is relevant, when consideration is given to one of the primary purposes of the Family Law Act 1975 (Cth) (‘Family Law Act’), which is to finalise both parenting and financial issues between individuals whose marital or de facto relationships have ended.
Both the father and mother, at the end of their marriage, have some level of entitlements to decide what they each will do with the remainder of their lives and where they will live. It would be a derogation of the principles of freedom and autonomy if separated parents had to live in close proximity to one another ad infinitum.
The relationship between Mr Taraska and Ms Taraska has come to end. They now wish to lead lives of their individual preference. This is their right. However they remain linked as X’s parents and their individual choices raise controversies between them, so far as her care is concerned.
Given their circumstances, arrangements also need to be made to sever the parties’ financial connection with one another. In addition, their separation, which has been protracted and traumatic for each of them, must have implications for their relationship with one another as X’s parents, which inevitably must change as their circumstances have changed.
Regrettably, the parties themselves cannot decide the fair terms related to the settlement of their financial affairs and, more significantly, what should be the on-going topography of their parenting relationship, so far as X is concerned.
As such, a civilised society, governed by the rule of law, must provide a mechanism for deciding the appropriate living arrangements for X in these difficult circumstances and what property orders should be made. This heavy responsibility falls to courts, such as this one, exercising jurisdiction under the Family Law Act.[1]
[1] See U v U (2002) FLC 93-112 at [97] (Kirby J).
Although the temptation is to consider that the dilemma thrown up by this case is one which deserves its own specific characterisation and individuated response, the Full Court has indicated that there is no special species of case known as a relocation case. As such, as with all parenting cases, the specific determinant of a case, with a relocation element, is the best interests of the child concerned.
Accordingly, in deciding the present case, the Court must determine what it considers is the best possible outcome for X. It is acknowledged that it is clearly not in X’s best interests that the Court takes on this task, in place of her parents at their great expense, both in financial terms and in respect of their capacity to parent consultatively in future.[2]
[2] See Zahawi & Rayne [2016] FamCAFC 90 at [47] (Thackray, Murphy and Austin JJ).
This process must involve a close and delicate analysis of both the advantages and disadvantages of each possible permutation arising in the case from the perspective of X’s best interests. I must carefully apply the statutory criteria provided by the legislation in Part VII of the Family Law Act, and consider the judicial commentary and guidance provided by superior courts to reach the outcome that is most likely to provide the best outcome for the child.
However, when undertaking this exercise, the Court cannot ignore the legitimate interests and expectations of others, who will inevitably be affected by the ultimate decision which must be made.
Chief amongst those will be X’s parents – the mother who will feel resentful if she is not able to lead the life of her choosing in the place of her preference; and the father who will be bitter if the mother is able to relocate X far away from the place where the child was born and where he and his family have happily lived.
In conducting this invidious task, I must recognise that every case involving a relocation aspect – as with this one – is unique in its factual and emotional circumstances. Inevitably, each of the parties concerned can mount powerful arguments in favour of their respective positions.
In making the necessary decision, I am well aware of the impact for each of the parents concerned, and especially, the child whose best interest I must strive to promote. Sadly, I am well aware that it is impossible for me to achieve an outcome that is satisfactory to all concerned, and obviously in X’s best interests.
Unavoidably, at least one of the parties (and those associated with them) will be bitterly disappointed at the outcome, and as a result feel hard done by and unheard by the Court. In addition, the resolution of the case must create deficits for X herself, the extent of which may only become apparent in hindsight.
In short, the case is incapable of having a wholly satisfactory outcome for all concerned. The various permutations available cannot be twisted, like the surface of a Rubik’s cube, to achieve a perfect result, of which all will approve.
I hope that, notwithstanding this state of affairs, the outcome of the case does not deepen the rift between the parties, and they will each be able to adjust to it, as time unfolds, so that the potential detriments for their child can be minimised and managed. This is important to ensure that she can maintain a loving and close relationship with each of her parents, despite the challenges arising from the fact that they now have different aspirations as to where they wish to live and work.
These reasons for judgment are directed towards resolving these difficult controversies regarding future arrangements for X’s care, and ending the parties’ financial relationship with one another. Pursuant to the relevant legislation under Part VIII of the Family Law Act, the Court must not make any property order unless persuaded that it is just and equitable to do so. As previously indicated, the lodestone, so far as orders in respect of X are concerned, is the service of her best interests.
Background
The husband was born in 1983. He has a Country F background but has lived his entire life in City B, in the South East region of South Australia.
The father’s parents, Mr and Mrs Taraska senior married in Town J when they were in their early twenties, in 1974, and continue to live in the district. Neither the husband, nor his parents have any desire or plan to move away from the South East.
The parties themselves met in City B in 2007. The wife had moved to the town in 2005. She had come with her mother, Ms K and her brother Mr L. Ms K had been offered the store franchise at the City B branch of Company M. At the time, the wife was around 28 years of age, having been born in 1979.
Mr L left City B, for Melbourne, in 2013. Ms K left in 2014 to pursue tertiary studies in health care at N University. As such, the wife no longer has any close family or, on her case, friends living permanently in City B.
Ms Taraska has a long standing history of compromised mental health and is of the view that her remaining in the town will be deleterious for her level of psychological functioning. In this context, she has been consulting a clinical psychologist, Dr O, since early 2020. Dr O is based in Melbourne.
Dr O has diagnosed Ms Taraska with Post-traumatic Stress Disorder (‘PTSD’) and Generalised Anxiety Disorder. Ms Taraska concedes that she had a difficult childhood and her psychological issues are longstanding. Dr O was a witness in the case and her evidence is central to its disposition, in the wife’s submission.
It is also the wife’s case that her relationship with Mr Taraska was one characterised by aspects of coercion and control which exacerbated her condition through re-traumatising her. This has resulted in her developing negative connotations of City B, which is unlikely to change in the future.
Mr Taraska fervently denies that he ever behaved in an inappropriate manner towards Ms Taraska, certainly not in a way which would fall within the definition of family violence pursuant to s 4AB of the Family Law Act.
Rather, it is his position that the mother’s mental health issues render it all the more essential that both she and X remain living in City B. This is so he can ensure that X is kept safe from any dramatic deterioration in the mother’s condition and that he can intervene if an emergency arises, to assume X’s care. In his affidavit material, Mr Taraska has described the wife as suffering from ‘significant mental health issues and being quite often paranoid.’[3]
[3] See husband’s affidavit filed 23 July 2020 at [27].
Ms Taraska has made it clear that she will not concede X transitioning into her father’s care so that she (the wife) can move to live in Melbourne to gain the familial and other support which she desires and which she asserts is largely unavailable to her in City B. She will not move to Melbourne without X. I have no reason to doubt the sincerity of this sentiment.
In any event, the husband does not presently seek any change in X’s predominant living arrangements, other than the mother continue to live in City B, in close proximity to him and his family, so they can continue to engage with X regularly.
As the father is not prepared to move to Melbourne because of the dislocation it would occasion to his life, this must mean, in order to achieve his preferred outcome, that the mother is restrained from leaving City B with X. In legal jargon, this is characterised as a coercive order.
However, at the same time, the wife contends that her being compelled to live in City B, ostensibly at the husband’s direction, when he is not himself prepared to move, must have implications for her parental capacity, particularly so far as her ability to be the best possible parent, for X, she can be.
In effect, she will be compelled to parent X in a place where she is deeply unhappy and feels personally unsupported, while the husband is able to lead the life of his preference. In her submission, this must have implications for X’s well-being, given, on the husband’s own case, she is X’s primary carer, rather than him.
The husband is employed as a retail worker by Employer P. This business sells industrial products to industry and the general public in the City B region. He has been in the same job for the whole of his adult life.
At this stage, it is difficult for Mr Taraska to contemplate any change in his employment or the prospect of moving away from City B. I mean Mr Taraska no disrespect, but my impression of him is that he is not a person who deals easily with change in his life.
The parties began living together in 2009 at a unit in City B, which was owned by the wife and Mr L, and was located at Q Street. After Mr L moved out, the property was transferred to the wife in her sole name. The parties married, in City B, in 2010. At the time the parties began their relationship the wife was working as a retail worker at Company M.
Mr Taraska owned a unit at R Street in City B at the commencement of the parties’ relationship. It was subject to a mortgage. The parties agree that after Mr L moved out of Q Street the husband moved in. Mr Taraska contends that he contributed in equal measure, to the wife, in respect of the mortgage on the property, whilst continuing to pay his own mortgage on the R Street unit, which was rented.
The wife sold the property at Q Street, in City B, in 2012 netting approximately $30,000.00. Thereafter, the parties purchased land on which their former family home – at C Street, City B – was later constructed in 2013. The parties moved in when X was about two years of age. In the period beforehand, they lived in the R Street unit.
As previously indicted, Ms Taraska accepts that she has a longstanding history of receiving treatment for anxiety and depression, which have been attributed to difficulties experienced by her in her childhood. Her father was a violent person and her parents separated when she was a child.
Ms Taraska was first diagnosed with depression when she was 23 years of age. Her move to City B, in tandem with her mother, was in large part, an attempt to secure a new start.
In these circumstances, the wife has been previously prescribed anti-depressants but she ceased taking the prescribed drugs when she was attempting to fall pregnant with X. Both parties had long hoped to begin a family.
The wife suffered postnatal depression following X’s birth. She experienced difficulties in breast feeding X and was admitted to hospital, on psychiatric grounds, for five days in the period following the birth. She resumed her medication regime.
It is the wife’s case that she does not have an easy relationship with her mother-in-law, the paternal grandmother, Mrs Taraska, who she describes as being hyper-critical of her capacities as both a mother and a homemaker. It is her case that the husband echoed the paternal grandmother’s comments. In this context, the wife deposes as follows:
“The husband’s mother continued to voice her criticisms of my parenting skills in the presence of the husband. He would never ask her to stop or defend me. I can recall an occasion when I expressed my concern that X was not gaining weight. The paternal grandmother’s response was to say words to the effect that it was my fault and my breast milk was ‘sick’.
The comments about my parenting made by the husband and his mother, but particularly my husband, left me feeling highly anxious and deeply inadequate. I feel that nothing I did as a mother or by way of domestic duties would ever satisfy their high standards.”[4]
[4] See wife’s affidavit filed 10 November 2020 at [73]-[74].
This is a significant issue in the case. From the mother’s perspective, the difficulties in her marriage and with the husband’s family have heightened her desire to live away from City B. The husband concedes that there is currently no communication between the wife and his parents.
For his part, Mr Taraska accepts that his mother was at time unduly intrusive into the family’s affairs but she was essentially well meaning. It is his position that there were rights and wrongs on both sides. He denies being critical of the wife himself.
In 2012, the wife returned to work, on a part-time basis, at Employer M. X began to attend child care regularly. Around this time, both her mother and Mr L had left City B and Ms Taraska was bereft of family members in City B.
It is the clear import of her case that she did not feel supported by the paternal aspects of X’s family. In these circumstances, it is her evidence that she travelled regularly to Melbourne to see her mother. Ms K continued to own a house, at S Street, City B, which she rented out.
It is Ms Taraska’s case that her only friend, in City B, left the town in 2014. During much of 2014 and 2015, she accessed psychiatric support through the City B Hospital and continued to take medication for depression. It seems clear that the marriage between the parties became increasingly fraught with difficulties and tensions and they agreed to separate under the one roof of the C Street, City B property at some stage in 2015.
My impression of this period, from the evidence provided by each of them, is that this was an extremely stressful time. They ate separate meals and rarely conversed together. Mr Taraska has deposed that the parties never argued in front of X, but she was acutely aware of the difficulties between her parents.
It also seems apparent that there was disputation about financial issues, particularly about who would pay for what. It is the wife’s case that she continued to provide the large proportion of care for X. The wife was resentful that the husband extended the parties’ joint home loan so he could purchase a motor vehicle for himself for $18,111.00.
However, it would seem to be the case that, whilst the parties were separated under the one roof and as each of them was in paid employment, they each contributed equally to their home mortgage and other outgoings. There were no formal child support arrangements.
It was necessary for X to commence kindergarten at the start of 2016 and primary school at the start of 2017. The primary school selected was T School.
The degree to which each of the parties has contributed to the fees incurred is controversial. All these major transitions occurred whilst the parties were separated under the one roof. Also in 2016, the husband sold the R Street property netting approximately $20,000.00, which was utilised to pay down the mortgage related to the C Street, City B property.
It seems self-apparent to me that the parties’ joint occupation of the family home, in these circumstances, with X, was untenable in the longer term. Neither seems to have been willing to break the impasse. In this respect, the parties seem to share a common attribute in stubbornness, coupled by a shared reluctance for confrontation or rocking the boat. However, this unfortunate situation was also driven, to a significant degree, by financial necessity.
The husband moved out of the C Street, City B property in November of 2017. He moved into a unit owned by his parents in City B. X spent time with her father on weekends, being collected and returned from the C Street, City B property.
There can be no doubt that X has a close relationship with her paternal family. She regularly spent extended overnight periods with her paternal grandparents from mid-2014 onwards. During the parties’ separation at the C Street, City B home, it was common practice for X and her father to spend the weekends at the paternal grandparents’ home in Town J.
This continued after the physical separation of the parties. In this context, the husband has no criticisms that the wife has not supported X having a relationship with her paternal grandparents, notwithstanding her long estrangement from them.
Following the parties’ final physical separation and notwithstanding the ongoing tensions between them, neither saw any necessity to formalise the financial aspects of their relationship or to put in place any legal regime in respect of X’s care. I suspect each preferred to bury their head in the sand.
The wife’s description of this period in her life is one of increasing feeling of isolation and a perception that she was an outsider in City B, who was subject to the unofficial surveillance of the husband’s family and workmates, all of whom knew her and, in her view, gossiped about her situation.[5]
[5] Ibid at [100]-[101].
Whether there is any objective truth to the wife’s perceptions or indeed whether she herself had a heightened and unreasonable view in respect of her situation at the time, is not clear to me. I accept her evidence, however, that she had no firm friends in City B and felt personally unhappy and isolated there.
In November of 2017, the parties agreed on a private child support regime for X. In June of 2018, the husband ceased to contribute towards the mortgage on the C Street, City B property. The wife also alleges that the husband ceased to assist with X’s school fees around this time.
From Ms Taraska’s perspective, this was an increasingly difficult and stressful period of her life. I accept that it was so. It also coincided with her experiencing significant difficulties in her workplace at Employer M, which at the time employed around sixty people from the City B community.
Whether her perception was correct or not, Ms Taraska felt herself to be the subject of gossip at her workplace. She felt that she was the subject of harassment and bullying at her work. In November of 2018, she felt unable to continue her employment and went on sick leave for her depression and anxiety.
Thereafter, she filed a claim for worker’s compensation, which was ultimately rejected, it being found that her medical condition was caused by social isolation and financial pressures. In October of 2019, Employer M terminated her employment. She received approximately $7,000.00 for the dismissal, and $5,000.00 in accrued long service leave, which sums she utilised to support herself and X. At this stage, she was receiving child support in a sum of $77.98 per week.
I accept Ms Taraska’s evidence that her dismissal from Employer M had grave consequences for her sense of self-worth. She had been involved with the company, in one form or another, for around fourteen years. It was against this background that she decided to move, with X, to Melbourne. She left City B on 26 November 2019. She acknowledges that she did not have Mr Taraska’s prior approval to relocate X away from City B.
This event was the catalyst for Mr Taraska commencing proceedings, in this Court, on 24 December 2019. On an interim basis, he sought a recovery order in respect of X and, on both an interim and final basis that the child live with him. He also raised property issues. In his supporting affidavit, he conceded that, following separation, X had lived primarily with her mother and spent times with him on weekends.[6]
[6] See husband’s affidavit filed 24 December 2019 at [7].
He raised concerns about the wife’s mental health, as well as the psychiatric health of Ms K and Mr L. In this context, he expressed concern that X was then living in Mr L’s home, given that it was his understanding Mr L had been diagnosed with schizophrenia. He further alleged that Ms Taraska had a history of verbally abusing members of his family.
Ms Taraska formally responded to this application on 28 January 2020. On both and interim and final basis, she sought orders that would enable X to live with her in Melbourne. Her position, at this stage, was essentially the same as it is now. She had felt bitterly unhappy and isolated in City B for some time and had extremely limited capacity to provide for her financial support in the town.
The stressors in her life had become more pronounced since the parties’ separation and had culminated when she had been dismissed from Employer M. She had family support, particularly in the form of her mother, in Melbourne and had firm offers of employment in that city.
These offers being from a family friend, Ms U, to work in Ms U’s business in an administrative capacity, or for a company based in Suburb V. Ms Taraska expressed herself as feeling stifled whilst living in City B.
I was called upon to determine the parties’ competing applications, in the context of a truncated interim hearing, on 31 January 2020. As I explained to the parties at the time, such a limited hearing, based on incomplete evidence, did not allow me to resolve satisfactorily the various factual disputes arising between them.
I attempted to explain the legal complexities surrounding what are characterised as unilateral relocations – that is the movement of a child by one parent, a significant distance away from the other parent, without prior discussion or consent. Factors which were clearly relevant to their matter.
As a general rule, the Court cannot condone a parent taking things into his or her own hands unless there is some special feature of emergency or risk, pertaining to the family concerned, which justify the ratification of such unilateral action after it has occurred.
More usually, given the complexity, both in emotional and child developmental terms, which surrounds relocation cases, it is more appropriate for the Court to restore the status quo ante which existed before the relocation and try, as best it can, to expedite the final hearing of the case concerned.
In January of 2020, I accepted that Ms Taraska had found herself in an extremely difficult financial situation. However, I did not consider that her unilateral relocation of X could be otherwise justified.
On this basis, I ordered the child’s return to City B within fourteen days. I further ordered that Mr Taraska pay X’s school fees and the mortgage fees, on the parties’ former family home, as they fell due. The intention being to provide Ms Taraska with some financial latitude. I further ordered that the father spend time with X on each weekend from midday Saturday until 6.00pm the following Sunday.
The parties attended a Conciliation Conference to attempt to resolve the financial aspects of proceedings. However, this was unsuccessful. Given the relocation aspect of the case, it was allocated an expedited final hearing in the Court’s circuit to Mount Gambier, on 20 – 22 May 2020 and a Family Report was ordered.
Regrettably, these interventions coincided with the onset of the pandemic crisis, which curtailed both the Court’s capacity to conduct face to face hearings and complete Family Reports involving the observed interactions between parents and children. In these circumstances, the May trial dates were vacated and fresh dates in August were allocated.
The task of compiling the Family Report was assigned to Ms W, a social worker by profession and a Family Consultant of around eight years standing. Ms W also has extensive experience in the field of child protection. Ms W released a preliminary report in mid-May of 2020. This report was limited because Ms W was unable to travel to City B and observe each of the parties with X.
Ms W was able to complete the report writing process and interview and observe X, whilst in City B, in August of 2020. However, it was not possible for the trial to proceed as earlier scheduled, as the wife had recently changed her solicitors and it had not been possible for her to instruct her new solicitor, based in suburban Melbourne, adequately in the days prior to the trial.
In these circumstances, the case was re-fixed for final hearing in the November circuit to City B. However, on 20 August 2020, the parties agreed to place the C Street, City B property on the market. As indicated above, the property has now settled and its proceeds are the major item of property to be divided between the parties.
For obvious reasons, Ms W is an important witness in the case. She described Ms Taraska as being tangential and circuitous in the presentation of her history, to such an extent that Ms W found it difficult to get a clear sense of what had been Ms Taraska’s experience during the parties’ relationship.
This was relevant to Ms W’s assessment as to whether there was any legitimacy to Ms Taraska’s complaints that she had been subject to family violence by Mr Taraska. Ms W indicated that she struggled to accept the wife’s view that she was a victim of family violence.
Ms W also sought information from X’s school, particularly in respect of her progress there during 2020. School authorities described Ms Taraska as being anxious which had impacted on X’s ability to separate from her at the start of the school day.
The relationship between mother and child was described as being intense and Ms Taraska herself preoccupied with past events. Away from her mother, in the class room setting and with her peers, X was described as being a confident and resilient child.Ms W queried whether Ms Taraska’s self-acknowledged traumatic childhood experiences had a detrimental impact on her relationship with X and caused her to be unduly protective and emotionally intrusive of the child.
Ms W assessed Mr Taraska to be a child focussed parent who was responsive to X’s emotional needs. She did not accept the wife’s view that he had been disinterested in pursing his relationship with X in the past or who had appeared to be controlling in his approach to litigation, given that he had only commenced proceedings in the light of Ms Taraska’s unilateral relocation of X.
Ms W also noted that Mr Taraska presented a balanced view of the involvement of his own mother in the family dynamic. In this context, Mr Taraska described the paternal grandmother as lacking in tact in the expression of her opinion but as being basically well-intentioned and very loving towards X.
Ms W noted that it was not currently asserted by either of the parties that Ms Taraska’s mental health was an impediment to her discharging her parental responsibilities for X. Overall, in summation, Ms W considered that Ms Taraska expressed strongly negative views about the husband, which were not congruent with her (Ms W’s) own impression of him.
In these circumstances, Ms W was of the view that Ms Taraska’s actions in moving X to Melbourne could not be justified on the basis of safety concerns and, by necessary implication, could not be considered child focussed in nature. Ms W further conjectured as to whether Ms Taraska’s own childhood experiences had caused her to view the husband through a skewed lens, which also had implications in the difficulties apparently shown by X in separating from her mother at school.
In these circumstances, Ms W was not in favour of X being moved to live in Melbourne. She indicated as follows:
“…if X did relocate to Melbourne it would reduce exposure to her father’s balanced world view and his apparently child-focussed and emotionally attuned parenting stance … rather the Consultant supported the father’s position of X living in City B with her mother and spending significant time with him, alternate weekends and intervening overnight.”[7]
[7] See Preliminary Family Report dated 15 May 2020 at [82].
One of the obvious deficits of this initial report was that it was based on parental interviews only and Ms W herself had had no opportunity to actually observe how X interacted with each of her parents. In these circumstances, arrangements were made for her to update the report in August of 2020, prior to the November hearing.
Ms W conducted an interview with X, at City B, on 30 July 2020, when X was aged 9 years and 1 month of age. She was described as shy in her demeanour. X spoke positively of her father and mother to Ms W. X indicated that she did not want any changes to the current arrangements for her care.
Significantly, she was moved to tears when asked to reflect upon her move to Melbourne and when asked about the reason for her distress, indicated it was arose from ‘not seeing Dad, mostly’ and because her mother had told her she would be only able to see her father ‘in the holidays’.[8]
[8] See Updated Family Report dated 3 August 2020 at [7].
Ms Taraska spoke positively to X about Mr Taraska during the observed interaction and the mother and child engaged in a warm and physically intimate way although Ms W considered that, at one stage, Ms Taraska was unduly intrusive seeking cuddles from X, which she (Ms W) thought might be more prompted by the mother’s need for comfort rather than the child’s.
X was obviously delighted to see her father and was led by him during the interaction in warm child-focussed play. The two were observed to be physically engaged and the conversation between them intimate and spontaneous. However, overall, Ms W did not consider that X was an emotionally robust child.
Accordingly, at the conclusion of the family report compilation process, Ms W remained opposed to X’s relocation to Melbourne given the strength of her relationship with her father; her distress arising from her previous experience of moving away from City B; and her overall level of satisfaction with current arrangements.
Ms W did not endorse any move of X away from her mother’s primary care, as she considered that there were grave risks arising for X of changing such a longstanding care arrangements, the consequence of which would likely to be largely adverse. Given Ms W’s assessment, I do not consider X to be an emotionally robust child. Clearly any change of primary care would cause her unnecessary distress and almost certainly X would confront major issues in adjusting to a new primary carer.
Given these factors, Ms W suggested that there may be merit in the Court considering the adoption of a pathway to a shared care regime, which would be fully implemented when X was aged 10, in order to achieve an outcome which saw her having, “balanced opportunities for a relationship with each parent”.[9]
[9] Ibid at [18].
Mr Taraska endorses Ms W’s opinion and its implicit recommendation that the Court should make a coercive order preventing Ms Taraska from providing X a predominate place of residence anywhere other than in the City B region.
On the other hand, counsel for Ms Taraska, Mr Richards, submits that Ms W has failed to consider the deleterious psychological impact it would have on Ms Taraska if she was compelled, against her will, to remain living in City B where she is unhappy at the implicit direction of Mr Taraska.
Once again, issues related to the pandemic crisis intervened to prevent the November trial going ahead. As I recall, metropolitan Adelaide was placed under a sudden lockdown and counsel, including interstate counsel, whom the mother had proposed to retain, were not freely able to cross the border. These issues led to the re-fixing of the case on 16 and 17 February 2021 in Mount Gambier.
Regrettably, the time the case was anticipated to take proved to be inadequate. The parties themselves, the paternal grandmother and Dr O, by telephone were able to give their evidence in City B, although Ms Taraska’s evidence was not complete.
Thereafter, the case was adjourned for completion, in Adelaide, on 12 March 2021, where Ms Taraska completed her evidence and Ms W, Ms K, Ms U and another potential employer of the mother, Ms Y, gave evidence.
Accordingly, well-meaning efforts to expedite the hearing process proved fruitless. In addition, time constraints dictated that the parties should each provide written submissions, which were concluded on 27 April 2021 (so far as the wife’s submissions) and 10 May 2021 (so far as the husband’s brief reply submissions). Each party was also directed to provide an estimate of legal costs incurred in the trial process to date.
The parties’ respective proposals
In A v A: Relocation Approach,[10] the Full Court provided some guidelines to be applied to the determination of cases involving a relocation aspect, which can be summarised as follows:
·The best interests of the child concerned remain the paramount but not the sole consideration;
·As such, a parent wishing to relocate a child need not demonstrate compelling reasons to justify the move; and
·Rather the Court should identify the competing proposals of the parties concerned and evaluate them each against the relevant criteria contained in the Family Law Act for determination of a child’s best interests.
[10] A v A: Relocation Approach [2000] FamCA 751 at [108] (Nicholson CJ, Ellis and Coleman JJ).
More recently, in U v U,[11] the High Court has outlined that because proceedings regarding the best interests of a child are not to be approached as strictly adversarial proceedings, the Court was not bound by the proposals of the parties alone. Rather, the Court is able to consider other outcomes that might best serve the interests of the child concerned.
[11] U v U (2002) 211 CLR 238, 260 [80] (Gummow & Callinan JJ).
The classic example of such an outcome is the Court’s consideration of a parent moving in tandem with the relocating parent or moving closer to that parent, which might not have been a result advocated by the parties concerned.[12] Mr Taraska has made it clear that this is not an outcome he would consider, as he does not believe that it would be viable for him to live away from City B.
[12] Ibid.
In this context, it is now appropriate that I set out the parties’ competing parenting proposals, so that after a further evaluation of the evidence, these proposals may be measured against the various factors requiring consideration under the relevant provisions of the Family Law Act.
The husband’s seeks the following parenting orders:
·The parties have equal shared parental responsibility for X;
·X live with her mother;
·X spend time with the father, as follows:
oDuring school terms, on an alternate weekly basis, from after school (or 3.00pm) on Thursday until before school (or 9.00am) the following Monday;
oFor half of each school holiday period; and
oOn designated special occasions at time to be agreed between the parties;
·X communicate liberally with each parent, via Skype, telephone or appropriate electronic means and at least on Monday, Friday and alternate weekends between 5.00pm and 6.00pm;
·The parties keep each other informed of all relevant details concerning X’s education and medical requirements and their own personal contact details;
·X continue to attend at T School or such other school as the parties may agree upon.
These orders are the husband’s preferred outcome. Necessarily they depend upon Ms Taraska continuing to live in the City B area indefinitely. In this context, the husband seeks the following injunctions:
·The parties each be restrained from moving X away from City B (or the South East region of South Australia);
·Changing X’s school enrolment; and
·Discussing the proceedings with her.
Essentially, Mr Taraska does not seek to challenge with whom of her parents X should predominantly live – he concedes this should be her mother. Rather, he seeks to dictate the location of where that should occur.
However, he is alive to the possibility that this may not be the outcome arrived upon by the Court and it will be determined that X can live with her mother in the location of Ms Taraska’s preference – Melbourne. In these circumstances, he appears to seek the following orders:
·He spend time with X one weekend per month, in City B, from 5.00 pm Friday until 5.00 pm the following Sunday;
·For half of all school holiday periods;
·On designated special occasions, such as Easter, Father’s Day and birthdays, at times to be agreed between the parties;
·Handovers to occur at McDonalds in City D.[13]
[13] These proposals are taken from the husband’s Case Outline document as the final written submissions.
In addition, these proposed orders also envisage the possibility of the parties sharing the costs of X flying between Melbourne and City B on the basis that Ms Taraska would make the necessary bookings and payments and the husband would later reimburse her one half of the costs involved.
This was not an issue which received a great deal of attention during the trial of the matter. In particular, there was no examination of the level of cost likely to be involved and the overall logistics of the arrangements involved, including whether X would require a chaperone for the flight.
The wife seeks that the Court make one of three possible permutations of parenting orders, depending on whether she and X move alone to Melbourne; the whole family moves there; or she is compelled to continue to live in City B, with X.
As previously indicated, she will not contemplate moving to Melbourne without the child. Whatever scenario is adopted, like Mr Taraska, she proposes that the parties have equal shared parental responsibility for X and the child live with her.
If she is authorised to move to Melbourne, with X, she proposes the following orders:
·The husband spend time with X on the second and sixth weekend of each school term in City B with a mechanism to swap to any long weekend falling in reasonable proximity;
·The husband spend time with X on the fourth and eighth weekend of each school term in Melbourne;
·Handovers to occur at a McDonalds in either Suburb E or City D as appropriate or at the home of the husband’s sister;
·For half of each school holiday, with the long school holiday to be week about;
·Weekends to be re-arranged to ensure X spends Father’s Day/Mother’s Day with the appropriate parent;
·Liberal electronic communication with the husband and other paternal relatives; and
·She be authorised to enrol the child at Suburb E Primary School.
One of the problems with this regime is that the proposed orders, other than handover locations, do not provide details regarding the logistical issues of X moving backwards and forward between City B and Melbourne. It is approximately 430 kilometres between the two locations and takes around five hours to drive.
The two locations are joined by a daily air service which takes one hour and five minutes to complete. No details have been provided as to the cost, which may be difficult, if not impossible, to predict over the course of the next ten years or so. At present both Qantas and Rex operate the service but whether this will continue is also uncertain.
In the event she is not able to leave City B, Ms Taraska proposes during school terms alternate weekend time from the conclusion of school on Friday until the commencement of school the following Monday; and in the other week of each, from the conclusion of school Wednesday until the commencement of school the following Thursday.
In respect of school holidays, she proposes an equal division with arrangements to ensure X spend time with each parent on special occasions equally. Handovers to occur at City B McDonalds and an order made for Mr Taraska to pay the child’s school fees. How this would fit with any existing child support assessment has not been sketched out.
Ms Taraska’s proposal, in the event Mr Taraska elects to move in tandem with her and X to Melbourne, is essentially the same as if she remains in City B. However, given Mr Taraska has made it clear he will not move to Melbourne, this proposal appears otiose.
Accordingly, it would seem that the case presents only two realistic alternatives:
·The wife and X move to Melbourne and arrangements are made for the child to spend time with her father during school terms and holidays; and
·An injunction is made and the mother is unable to move to Melbourne and, in this situation, X spend defined substantial and significant time with her father.
One of the central issues of contention between the parties is the adequacy of any time spending proposals advanced by each of them (including arrangements for X to maintain her relations with her grandparents) and the logistical considerations which arise therefrom. These considerations will focus on the nature of the relationship which will be able to be supported, particularly whether it can be considered to be meaningful in nature.
The application of the first alternative turns on considerations of what follows from the application of the presumption of equal shared parental responsibility created by s 61DA and what follows as a consequence of s 65DAA. In this context, it is noteworthy that Ms W opined that a week about arrangement was one which she would view favourably given her assessment of the nature of X’s relationship with each of her parents. Necessarily, this could only occur in City B if Mr Taraska remains steadfast in his refusal to move to Melbourne.
The application of the second alternative involves the potential exercise of what has been characterised as a coercive power – essentially the Court directs a parent that he or she has to live in a particular location if he or she wishes to continue to be a custodial parent.
The intellectual (and indeed ideological) difficulty with this outcome is why should Ms Taraska be subject to such a restriction, in respect of her legitimate desire to pursue her personal and career aspirations, but Mr Taraska not. Such an outcome runs the risk of being perceived as being inherently sexist and unfair.
In U v U, Gaudron J (who was in dissent) said as follows, in respect of the dilemma created by such a situation, particularly from the perspective of a mother:
“A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.”[14]
[14] See U v U (2002) 211 CLR 238, 248 [36] (Gaudron J).
In the same case, Hayne J commented in respect of the level of consideration to be given to the prospect of the parent whose preference is to remain in the original location moving in tandem with the other parent. He said as follows:
“[I]t must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.”[15]
[15] Ibid 266 [176] (Hayne J).
From Mr Taraska’s perspective, I accept that the prospect of having to move to Melbourne and give up his familiar and long standing living and working arrangements, which include being close to his parents, fills him with dismay. For understandable reasons, he wishes to have the closest and most meaningful level of relationship with X, whom he loves deeply.
However, this does not mean that the Court is not required to give earnest consideration to Ms Taraska’s idiosyncratic interests and preferences, regarding how she wishes to lead her life, notwithstanding the fact she is a separated parent.
It will be necessary, in due course, for me to detail, with a greater degree of particularity, the competing considerations which apply to a case involving a relocation aspect. Warnick J has described the various considerations relevant to such cases as being, ‘a delicate interplay of concepts’ as well as, ‘an imbroglio of principles.’[16]
[16] See B v B [2006] FamCA 1207 at [1] (Warnick J).
This is because, in relocation cases, the best interests of any child concerned are not the only consideration relevant because the Court must also have regard to ‘the right to freedom of movement of a parent’. As Kirby J pointed out in AMS v AIF; AIF v AMS (‘AMS’), the facts surrounding every relocation case are unique and therefore each such case requires a ‘careful and delicate analysis’.[17]
[17] AMS v AIF; AIF v AMS (1999) 199 CLR 160, 207 [143] (Kirby J).
Before turning to the legal principles applicable, it will be useful to set out the parties’ competing proposals in respect of the division of property. The husband earns $1,500.00 per week and pays child support assessed at $90.00 per week. The wife is currently in receipt of social security but hopes to be able to work for Ms U, at her business in Melbourne, and earn up to $1,200.00 per week.
The wife calculates the parties’ pool of non-superannuation assets to be approximately $136,628.00. However, the husband had calculated this figure to be approximately $169,477.00 which includes add backs relating to the wife’s termination package from Employer M and two drawdowns from her superannuation.
The husband’s position is that this pool should be divided 70/30 percent in his favour to reflect his superior financial contributions both during and after the parties marriage.
The wife’s position is that, given the modest extent of the pool and her significant prospective needs, she should retain all the proceeds of sale of the former family home and the items of property currently in her position. The wife disputes the validity of any add backs asserting that the sums in question have been utilised in her living expenses or in respect of payment of her legal fees.
Some minor disputes arise in respect of the value of a motor vehicle, which the wife asserts is not driveable. The parties agree that their modest superannuation totalling $149,857.00 should be equalised.
LEGAL CONSIDERATIONS
The legislative pathway in children’s cases
Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order, the Court must have regard the best interests of any child concerned as the paramount consideration.[18]
[18] Family Law Act1975 (Cth) s 60CA.
The matters which the Court must take into account, in deciding how a child’s best interests are to be served, are set out in the Family Law Act at s 60CC.
Section 60CC creates two categories of considerations which apply to the Court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations and additional considerations.
There are two primary considerations, which are set out in s 60CC(2)(a) and (b), namely:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of the decisions of the Family Court, as ‘twin pillars’, the importance of which depends on the circumstances of the case concerned.[19]
[19] See Keane & Keane (2021) 62 Fam LR 190, 206 [69] (Alstergren CJ, McClelland DCJ and Benjamin J); Mazorski & Albright (2007) 37 Fam LR 518, 519 [3] (Brown J); Elbers & Elbers [2019] FCCA 3748 at [80] (Neville J);
However, as a result of the insertion of s 60CC(2A) into the Family Law Act, the Court is now directed, in applying the primary considerations, to give greater weight to s 60CC(2)(b), which is the primary consideration relating to ‘the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence’.
Family violence is defined by s 4AB(1) of the Family Law Act. It means:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in s 4AB(2) of the Family Law Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
Although Ms Taraska reported to Ms W that she had been subject to coercive and controlling family violence during the parties’ marriage, this is no longer a strong theme in her case. Rather it is her case that she felt, at times, disparaged and unsupported by her husband, whom she perceived was, at times, mean in respect of the financial aspects of their relationship.
Significantly, it is her case that neither party presents a risk in respect of the exposure of X to family violence, neglect or abuse.[20] It is the husband’s case that Ms Taraska’s ongoing and longstanding mental health issues pose a risk to X and that she may suffer some form of emotional neglect or abuse, if she lives far from him in the mother’s sole care.
[20] See wife’s written submissions at page 14.
In the overall application of Part VII, it is necessary to consider s 60B(1) of the Family Law Act, which sets out the principles and objects of the legislation that relate to children. They include the following:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin these objects, are set out in s 60B(2) and are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
From Mr Taraska’s perspective, if X lives in Melbourne, it will prevent him from having a daily presence in X’s life, and, as such, it will create an outcome out of kilter with these principles and objectives. The child will not have the benefit of having him involved in her life to the maximum extent possible. He will be precluded from being able to discharge his parental responsibility for her to the maximum extent, as he currently has been integrally involved in every aspect of her life.
Other criteria, relating to how a Court is directed to consider how the best interests of any child concerned may be served by any order which the Court makes, are set out in s 60CC(3). These criteria are categorised as additional considerations.
There are fourteen criteria, including, pursuant to s 60CC(3)(m), the Court is empowered to have regard to any other fact or circumstance which it considers relevant. This is to ensure that the infinite variety of individual children’s circumstances may be addressed in any order which the Court makes.
Although the Court is directed to consider many factors, in discharging its duties under Part VII of the Family Law Act, the best interests of the children concerned remain paramount. The Court’s duty is to deliver individual justice for the child affected in every case.[21]
[21] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755.
In this sense, the Court’s inquiry is a ‘positive one tailored to the best interests of the particular children and not children in general’.[22] As such the various factors in s 60CC are inclusive but not exclusive of one another.[23]
[22] Ibid at 84,220.
[23] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J.
The additional considerations include such matters as any views of any child concerned, subject to maturity; the parental insight of the parties concerned; the effect of any change in the circumstances of the child concerned; the practical implications of proposed contact arrangements; and the capacity of the parents to supply the educational and emotional needs of any relevant child. All these considerations are germane in the present matter and will receive further evaluation in due course.
The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the Family Law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the Court is to determine, bearing in mind all the considerations contained in s 60CC, and bearing in mind the overarching goals and principles contained in s 60B, what is the best outcome for any child concerned, both now and in the future.
Because of the importance the legislation places on both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child.[24] The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
[24] Family Law Act 1975 (Cth) s 61DA.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[25]
[25] Ibid s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned.[26]
[26] Ibid s 61DA(4).
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions – so long as this involvement is commensurate with protecting children from harm.
It is significant that, in the current matter, both Mr Taraska and Ms Taraska agree that the presumption should apply to their future parenting of X and it is not rebutted by any consideration relating to family violence, neglect or abuse, or is not otherwise in her best interests.
This mutual concession, in my view, represents a tacit acceptance, on both their parts, that each has much to offer X and, as such, each is to be considered a properly motivated parent.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by s 65DAA.
By application of s 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the Court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the Court rejects equal time, it is then required to consider the child spending ‘substantial and significant’ periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression ‘substantial and significant time’ is defined in the Family Law Act at s 65DAA(3). It means time that allows a child to spend time with a parent on both weekends and holidays and days during the working or school week.
More significantly, it is time that enables a parent to be involved in a child’s daily routine and in occasions and events, which have particular significance to the child. Again, the aim of the legislation is to enhance the parent/child relationship through mechanisms that enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by s 65DAA(5). The Court is required to consider how far apart the parties’ homes are; the parties’ current and future capacity to implement shared care arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from ss 65DAA(1) and (2) of the Family Law Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).
I have already voiced concerns at the wife’s disruptive action in unilaterally moving X to Melbourne in November 2019 which disrupted her on-going education in City B.
Ms W was also concerned at the accounts provided by the authorities at X’s school of the difficulty that Ms Taraska had of separating from X, which might be indicative of some degree of emotional enmeshment between the two, which would not be helpful to X.
One of the significant responsibilities of a parent is to support and encourage a strong relationship between any child concerned and the other of their parents. In this respect, I accept that Ms Taraska was found wanting by her actions of November of 2019.
Ms Taraska has also demonstrated some feckless conduct in respect of other issues relating to X’s care. The most striking of which is her failure to arrange alternative accommodation for herself and X following the settlement of the sale of the parties’ former family home.
However, I also accept that X perceives herself to be much loved by both her mother and her father. In this fundamental sense, each of her parents is able to meet her on-going emotional needs.
In this context, although Mr Taraska is not likely to accept it as a proposition, I accept that Ms Taraska will be better placed to meet X’s emotional needs, if she is able to parent her in the location which she feels is the one most conducive to supporting her own emotional needs. Necessarily, this must be Melbourne.
Both parties seem equally committed to ensuring that X receives the best possible education available for her. This is evident by the choice of a private school for her. There is no suggestion that Ms Taraska has not ensured that X attends school regularly or that she has otherwise neglected salient aspects of X’s education.
X’s most recent school report is satisfactory and she is described as a ‘friendly and happy member of class and who has continued to show excellent growth and become more confident at school.’[84]
[84] See Exhibit B at 38.
g) The child’s maturity, sex, lifestyle and background
Regardless of where she lives in the future, it is likely X will be in an environment commensurate with her maturity, sex and background. The one major deficit being that she will have less exposure to the Country F aspects of her background, in the form of her paternal grandparents, if she lives in Melbourne. But as indicated above, a move to Melbourne will not result in the permanent excision of the child from this aspect of her cultural inheritance.
h) Aboriginality
This is not a relevant consideration in the case.
i) The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the parties
In my assessment, both parties aspire to being the best possible parents for X. At times in the past, particularly when they were separated under the one roof, their aspirations in this regard may not always have been fully realised, but at the end of the day, in my assessment, they are each good parents who want the best for X and who will never shirk their responsibilities in this regard.
j) Family violence
This is not a relevant consideration in this matter. Neither party has made allegations about the existence of family violence, nor there being any risk of X being exposed to harm.
k) Any family violence order
There are no applicable family violence orders in these proceedings. For reasons already outlined, this is not a case concerned with the children’s exposure to any aspect of family violence, neglect or abuse.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
I am not strictly bound to the competing proposals of the parties concerned in respect of the outcome of the case. In this sense, at least in theoretical terms, it is open to me to delay Ms Taraska’s potential relocation from City B until such time as X is older and therefore it is to be assumed her relationship with her father is more resistant to the vicissitudes of distance.
Such an outcome could also conceivably assist Ms Taraska to become more forgiving towards City B and more open to seeking opportunities in the town, which might make it more palatable to her. However, in my view, this is highly improbable. More likely is that she would continue to fret and grieve under a restriction she regarded as inherently unjust and unfair.
In these circumstances, difficult though it may be, it seems more preferable that the litigation between X’s parents be brought to a conclusion sooner rather than later to prevent these proceedings from being likened to a tin can, and metaphorically kicked up the road.
In this case, both parties have committed very significant resources to this case. They cannot be regarded as wealthy individuals. From my perspective, this is testament to the importance of this issue from each of their perspectives. A moratorium would not be helpful to either of them or X. The case would remain a daily preoccupation for each of them.
In my view, the nettle represented by the relocation issue must be grasped now and cannot be deferred. If Ms Taraska is compelled to remain living indefinitely in City B, it seems more likely than not that she will commence more litigation at some stage in the reasonably foreseeable future, given the significance of the issues raised in the case to her.
In my view, the outcome least likely to lead to the institution of further proceeding is that the relocation issue is determined, in Ms Taraska’s favour to allow her and X to move to Melbourne, and definitive orders are made for Mr Taraska to spend time with X. To make a coercive order, in respect of Ms Taraska, seems an inevitable harbinger to further litigation.
m) Any other fact or circumstance
Ms Taraska wishes to leave City B because she wants to move on with her life, for family, employment and personal reasons. She wishes to be closer to her family and friends. She also wants to put her old life in City B behind her because she is and has been unhappy there. These are understandable human aspirations, which cannot be easily dismissed.
Ms Taraska’s personal happiness is important not only to her, but also to X. If Ms Taraska is happy and content, she is likely to parent X effectively. These considerations, abstract though they are, are of fundamental relevance to the best interests of X.
I am not at liberty to ignore Ms Taraska’s legitimate expectations that she is entitled to live how and where she chooses, notwithstanding that she remains in a parental relationship with Mr Taraska, whose personal preference is to remain living in City B. His aspirations are not to be given greater weight than those of Ms Taraska.
There is no requirement that her preferences, because she is the primary carer of the child concerned, are to be subordinate to those of the other parent concerned. Authority requires that her aspiration are to be given a proper level of consideration.
Most significantly the personal relationship between the parties, as spouses, has ended. As a consequence, the parties are now entitled to lead separate lives, subject only to the ‘moral and legal obligations of parenthood’.[85]
[85] See Wilburn & Wilburn [2019] FCCA 2131 at [86] (Judge McNab); Brickley & Lidcombe [2012] FMCAfam 301 at [39] (McGuire FM); Vernon & Buckley [2012] FMCAfam 638 at [56] (Burchardt FM).
In this context, although X’s best interests are the paramount consideration for the Court, they are not the only consideration. Ms Taraska’s interests, and indeed those of her mother, are inextricably bound up with what is best for X. In my view, it is clear that Ms Taraska will be a better parent for X if she is able to live in an environment in which she feels happy and supported. The evidence indicates that this location is not City B.
CONCLUSIONS
In purely theoretical terms, I accept that it would be in X’s best interests, given the application of the presumption of equal shared parental responsibility, for the child to live in an equal time regime, particularly as there are no issues of family violence or abuse arising in the case. However such an outcome could only be achieved by the complete abrogation of Ms Taraska’s constitutional right to freedom of movement.
Given the structure of the applicable legislation and the decision of the Full Court in Taylor & Barker,[86] the Court is required to give earnest consideration to – firstly, an equal time arrangement; and secondly, a substantial and significant time regime for the care of the child.
[86] See Taylor & Barker (2007) FLC 93-345.
However, as the High Court has established in MRR & GR,[87] both these regimes depend on a positive answer to two equally important questions – firstly, are these arrangements in the best interests of the child; and secondly, are they objectively feasible to implement, in all the circumstances of the case.
[87] MRR & GR (2010) 240 CLR 461, 466-8 [13], [15] and [19] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
In the words of the High Court itself, in determining the answer to the second limb, the Court is directed to consider the ‘reality of the situation of the parents and child’.[88] One limb is not more important than the other. In purely theoretical terms, given the structure of the Family Law Act and what follows from the application of the presumption, the best outcome for X is one in which her equally devoted parents share responsibility for her, and X sees both her father and mother regularly in an unforced environment.
[88] Ibid 467 [15].
However, in practical terms, this option would come at a price which would entail some potential blow back for X. It would be open only if Ms Taraska is restrained, possibly indefinitely in City B, resulting in her unhappiness and the probable deterioration of her mental health. Inevitably, she would be rendered bitterly disposed towards Mr Taraska whom she would regard as her gaoler. This would not be helpful to any form of effective cooperative parenting evolving between them.
After a great deal of heartache, I have come to the conclusion that is it not reasonably practicable to restrain Ms Taraska in this way. Necessarily, she would be increasingly resentful at such an outcome, and her resulting dissatisfaction is likely to have adverse implications for X.
In my view, effective parenting is not usually posited on the restraint of one of the parents concerned. A handcuff, even a softly padded one, remains a handcuff. In this case, Ms Taraska is not likely to adjust and adapt to being restrained in a place which has only unhappy connotations for her. She would fret and ruminate with significant implications for the welfare of X.
As these very lengthy reasons for judgment indicate, I have found this to be a particularly difficult matter, in an area of the jurisdiction which is known for its difficult cases. The difficulty stems from the fact that each parent has much to offer X and each is to be regarded as an essentially decent person, who has obvious reasons for wanting to live in the place of their preference.
The factors which tip the case in favour of Ms Taraska are that she is X’s undisputed primary carer and has been since the parties separated; her mental health will be subject to the risk of significant compromise if she is compelled to live in a location which she finds unpalatable; and, although not without its logistical challenges, she has offered a viable proposal for X to maintain a significant level of relationship with her father, albeit not one with the same scope for immediacy and intimacy which would arise if she and her mother lived in City B.
For these reasons, I have reached the conclusion that I should make orders in the form advanced by counsel for the wife, Mr Richards.
PROPERTY
a) Step One – the pool of assets
As previously indicated, the pool of property available to be divided between the parties is an extremely modest one which will have been much reduced by the costs of these proceedings. In real terms, it consists of the proceeds of sale of the C Street, City B property and the Motor Vehicle 2 retained by the husband.
Counsel for the husband, Ms James, submits that it is just to increase the pool by adding back in a number of items which have been utilised by the wife. These include her termination payment received on leaving Employer M and her government approved withdrawal of $20,000.00 from her superannuation.
In Watson & Ling, Murphy J described such add back as ‘the exception rather than the rule’.Add backs come into play in circumstances in which, but for the conduct of one of the parties, the asset pool would be significantly greater and therefore considerations of justice and equity require “the unfairness inherent” in such circumstances be taken account in some way. [89]
[89] Watson & Ling [2013] FamCA 57 at [32]-[35] (Murphy J).
However, following separation, parties to a marriage are not required to keep their finances in a state of suspended animation. Necessarily, depending on the circumstances prevailing, each will have to defray monies to provide for personal support or to pay legal costs. Each case must be examined individually according to principles of justice and equity.
The termination payment was $12,819.00. It was received by the wife in October of 2019. She has not been in paid employment since whilst the husband has been so employed. In the difficult financial circumstances confronting Ms Taraska in the period since the receipt of the sum in question, the money has not translated into any currently identifiable asset. Rather, it has been spent, at least in part, in providing for the necessary living expenses of the wife and X.
Counsel for the husband, Ms James, in her lengthy written submissions, contends that the Court can infer that the termination payment was utilised by Ms Taraska in recklessly and negligently moving to Melbourne, given the date on which it was received, and so should be added back as a joint resource.
It may be the case that some or a significant proportion of the monies was utilised to this purpose. The fact remains that they have been expended. In all these circumstance, in my view, it would not be a proper exercise of discretion to notionally add back this sum into the pool of assets and allocate it to the wife.
In my view, such an outcome would be unfair to her, particularly given that no such exercise has been undertaken in respect of the monies utilised by the husband, in the same period, for his living expenses. These are issues which will be examined at the second step, when the parties’ respective contributions, both before and after separation, are considered.
In my view, similar considerations apply to the wife’s withdrawal from her superannuation. Her evidence is that the sum was utilised to defray her significant legal expenses. No similar defrayal can be made in respect of the husband who has similar expenses.
The wife estimates that she has outstanding legal costs in an amount in excess of $46,000.00. As such, I do not think that considerations of justice and equity require that the wife’s superannuation be artificially augmented in this way. Again, the money has been spent in circumstances in which the husband has similar or greater legal expenses.
In the written submissions, prepared by Ms James, the husband has indicated that his legal expenses amount to somewhere in the vicinity of $57,000.00, which have apparently been paid by his parents. Although it is his view that he should be entitled to some award of costs in respect of the interim parenting proceedings, which were necessitated by the wife’s unilateral relocation, he does not otherwise demure from the wife’s proposal that each party should bear their own respective costs pursuant to s 117 of the Family Law Act.
The husband also seeks that the mortgage payments paid by him, in the period following the wife and X’s return to City B pursuant to the Court’s order, should also be added back. He calculates the sum to be in the vicinity of $14,000.00 together with council rates of $2,058.87.
As Murphy J pointed out, it is open to the Court to approach such payments in one of two ways – firstly, in exceptional circumstances, they can be arithmetically added back, dollar for dollar; or secondly, they can be considered as specific contributions in inchoate terms, either under s 79(4) or s 75(2)(o) of the Family Law Act.
Clearly, the mortgage and rate payments were paid. As such, to some extent their payment benefitted Ms Taraska, who would have otherwise been destitute in terms of accommodation. The payments also indirectly benefitted X. At the same time, Mr Taraska remained under a legal obligation to pay the mortgage concerned. It would not have assisted him if the mortgagee concerned had been placed in a position to force the sale of the property concerned.
The period of the parties’ separation, when it coincided with the wife’s exit from the paid workforce, inaugurated a period of financial crisis for the family, which was no doubt exacerbated, including in emotional terms, by Ms Taraska’s unilateral relocation to Melbourne.
The mortgage had to be paid to keep the property intact and the family secure in terms of accommodation. In these circumstances, it would be artificial, in the extreme, for the Court to approach the payment of the mortgage in the strictly arithmetical terms of an add back. I will have regard to these payments, in general terms, in the context of their other contributions and other considerations of overall justice and equity.
Much evidence was taken in respect of the Motor Vehicle 1 motor vehicle, which both the husband and wife agree is not currently driveable and which has not been formally valued. The husband asserts that the vehicle should be valued at $6,900.00, which is based on a dealer’s guide for second hand motor vehicles. The wife asserts that the vehicle will have only token value.
In this context, the evidence available indicated that due to a lack of maintenance on the vehicle and its inoperative state, there would be no equal comparison with the vehicle described in the dealer’s guide. I am not in a position to conjecture about the vehicle’s value. In these circumstances, as the wife proposes, the vehicle should lie with the husband and he should sell it for the best possible price and retain the proceeds. In written submissions, the husband agrees with this approach.
Again, there was no formal valuation of the household contents currently in the possession of each of the parties. I agree with the submissions of counsel for the wife, Mr Richards, that it would be imprudent for the Court to rely on the parties’ estimates on the value of these items provided in their respective statements of financial circumstances.
In any event, the estimates result in figures of approximate value. Thus, at face value, no injustice will result if the household items are not specifically taken into account and remain in the possession of their respective holders.
In my view, the interim property settlement, advanced to the wife, at the end of the City B tranche of the proceedings, from the proceeds of sale of the C Street, City B property, should be regarded as an early distribution of assets and so should be brought into account. The parties agree that the Motor Vehicle 2 motor vehicle is worth $15,400.00.
In all these circumstances, I find that the parties’ pool of assets and superannuation, amenable to these proceedings, to be as follows:
Item $ Proceeds of sale of C Street, City B property 111,228.98 Interim property settlement advanced to wife 10,000.00 Motor Vehicle 2 15,400.00 Total 136,628.98 Superannuation Husband’s Super Fund JJ 111,987.72 Wife’s Super Fund FF and Super Fund GG 38,768.07 Total 150,755.79
In my view, the most striking aspect of this pool, as so constructed, is its modest extent and the unpleasant reality that, if each party is personally responsible for legal costs incurred, there will be little to actually divide between them.
b) Step Two – assessment of contributions
The relationship between the parties, culminating in their marriage in 2010, was one of between eight and ten years in duration. It produced one child. It began when the parties were each in their early to mid-thirties. Neither had a significant level of asset backing at the time.
Each was employed when they began to live together at the wife’s property at Q Street, both in retail, with no great discrepancy in their respective level of salary. Each party contributed a modest amount of equity to the purchase of the C Street, City B property when they sold their respective homes – the wife netted $30,000.00; the husband $20,000.00.
The husband’s parents gifted the sum of $15,000.00 to the parties to assist with the C Street, City B mortgage. The advance was not documented and no request has been made for repayment. I accept that it is a contributions which, in notional terms, should be assigned to the husband, as is the case with the money advanced by his parents to purchase a motor vehicle, the successor of which the husband retains.
When X was born, the wife left the workforce to devote herself to the child’s care, returning to Employer M when she was able to do so. Her homemaking and parenting contributions I find to have been significant.
As such, I must be careful not to undervalue them merely because they have not added to the parties’ store of wealth. In practical terms, they are of equal importance, in respect of sustaining the welfare of the family, as direct financial contributions.
In my view, the evidence unequivocally indicates that both the husband and the wife were fully committed to their family and its security, both in a financial and homemaking sense. As such, they contributed to the maximum extent to which each was capable. Theirs was a marriage of equals.
Clearly, Mr and Mrs Taraska Senior also played an integral role in the family as concerned grandparents. In this capacity, they wished to help both their son and members of his family, including the wife, particularly given the parties themselves were for extended periods of time a sole breadwinner family, with a young child to support and only one wage coming in.
It is the husband’s position that his material contributions, in the form of the payment of the mortgage on the C Street, City B property; child support for X; and the payment of her school fees, in the period post separation, when coupled with the contribution to be allocated to his parents, must result in the Court reaching the conclusion that his contributions during the marriage and afterwards must be accounted as superior to those of the wife by around 20%.
I do not agree. In my assessment, the wife’s contributions, post separation, as parent and homemaker, were significant and were discharged in a difficult and challenging environment for Ms Taraska. I do not accept that she should be penalised, in respect of issues relating to the division of property, as a consequence of her imprudent decision to move to Melbourne with X unilaterally.
As I have endeavoured to explain, the task which I must undertake is not a purely arithmetical or accounting exercise in which every sum of money received by the parties is tabulated and allocated to one or other of them. Rather, I must fairly attempt to assess contributions, some of which are difficult to quantify in dollar terms and which are different in their essential nature, to arrive at an outcome which is equitable.
In my view, the parties’ various contributions, including those which can be assigned as emanating from the husband’s parents, should be assessed as being essentially equal. This assessment of equality should apply both to the parties’ superannuation and non-superannuation assets.
c) Step Three – the prospective needs of the parties
I am now required to consider the various matters set out in s 75(2), and in particular to consider whether any further adjustment should be made in favour of either party. The s 75(2) factors are mainly, but not only, prospective in nature.
In the context of the current matter, the most salient considerations relate to the ages and state of health of each of the parties and their responsibility to parent and financially support X. This will entail some examination of child support issues.
In addition, as earlier advised, I am entitled to consider any other fact or circumstances which the justice of the case requires. In this case, in my view, given the extremely modest asset pool it is relevant for me to consider that, in practical terms, if each party pays his or her legal costs they will each, at best, be left with a sum which will not assist, to any great degree, in providing financial security for either of them. In this sense, their separation and this bitterly contested case has been a financial disaster for each of them.
Mr Taraska is 38 years of age. The last few years have been psychologically challenging for him but he has generally good health. Most significantly, he has secure employment in a position which he enjoys. His salary is modest but reliable.
Ms Taraska is 44 years of age. Her mental health is fragile. She has skills in retail but given her experience at Employer M, she cannot be regarded as being a person who is either able or likely to return to full time work with alacrity. In this context, the offer of employment from Ms U is fortuitous. It will enable her to have an income stream whilst she recuperates psychologically and regains her confidence.
It has been said by the Full Court that the most valuable “asset” a party can take out of a marriage is “a substantial, reliable income-earning capacity”.[90] In my view, neither party has a substantial income-earning capacity. Mr Taraska’s capacity is likely to be more reliable than that of Ms Taraska.
[90] See Clauson & Clauson (1995) FLC 92-595 at 81,911 (Barblett DCJ, Fogarty & Mushin JJ).
Ms Taraska has secure accommodation available to her and X as a consequence of the generosity of Ms U. However, she will still have the principle responsibility for providing for X, both in terms of care and financially. This will be a significant burden for her and has the potential to impact on her capacity to work full time or extended her hours.
If X is unwell and unable to attend school, it will most probably be Ms Taraska who will be responsible for tending for her. In addition, given her responsibilities as X’s primary carer, notwithstanding access to child care, out of hours school care and similar programs, Ms Taraska is likely to experience difficulties in extending her working hours or undertaking overtime.
True it is that Ms Taraska will not have the sole responsibility for providing for X financially. Mr Taraska, as a PAYG taxpayer, will be readily amenable to the assessment of child support applicable to his income. There is no evidence to indicate that he will attempt to shirk his responsibilities in this regard.
The weight to be attached to a child support assessment will vary in the circumstances of each particular case concerned. The Court is directed to look at the amount of the assessment, the financial circumstances of each of the parties, the needs of the children concerned and whether child support is likely to be paid regularly and at an adequate rate in future.[91]
[91] Ibid.
Given Mr Taraska’s status as a modest wage earner, the amount of child support assessed for him to pay is not likely to be a significant sum when X’s overall expenses are considered. In addition, it is probable that both households will have considerable calls made on their resources because of the need to ensure that X maintains her relationship with her father. As a consequence, there are likely to be significant expenses incurred in respect of X and her father travelling between City B and Melbourne.
CONCLUSIONS
As with all cases involving small asset pools, the Court remains concerned about the proportionality of the costs incurred in relation to the issues arising in the case. In this context, I appreciate that, from each parties’ perspective, the relocation case was insoluble and therefore had to go to trial and, more particularly, given the moment of the decision from each of their perspectives, neither was prepared to enter into the case without legal representation.
However, at the end of the day, the requirement that the parties pay their lawyers may result in the derailment of any well-meaning intentions, on the Court’s part, in respect of its determination as to how the parties’ modest assets are to be divided to accord justice to the parties concerned.
In conclusion, this is a difficult and finely balanced case as a consequence of the modest extent of the parties’ assets when viewed in the context of their respective prospective financial needs.
Given their shared history of home ownership, both Mr Taraska and Ms Taraska are likely to desire the security of long-term accommodation which they own. In this context, the husband is likely to be able to save for a home sooner than the wife and be a more attractive option for any mortgagee.
In addition, each party appears singularly ill-prepared for retirement. The husband is likely to be able to accumulate superannuation faster than the wife given his full-time level of employment. These are factors which favour the wife.
Ms Taraska has received a modest interim property settlement. This was necessary given she and X had nowhere to live. The sum is to be taken into account but, in practical terms, it is illusory, so far as Ms Taraska is concerned, given that the money has been consumed.
In Steinbrenner & Steinbrenner,[92] Coleman J observed as follows:
“Given the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.”[93]
[92] See Steinbrenner & Steinbrenner [2008] FamCAFC 193.
[93] Ibid at [234] (Coleman J).
I am currently at the point in the judgment at which the Court must make the metaphorical leap from words to figures or from abstractions to what is concrete. After all, it is all well and good to talk in percentages, so far as orders and outcomes are concerned, but what matters to the parties is what the orders mean to them in dollars and cents and what effect they have on their long-term plans and aspirations.
This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned. I appreciate given the level of costs involved, the exercise may be viewed as largely academic.
In all the circumstances, I would allow a further 20% of the non-superannuation assets, which results in a 70/30 percent split, in Ms Taraska’s favour, in respect of the various s 75(2) factors, the majority of which favour her.
Calculating 70% of $136,628.98 is represented by the sum of $95,640.29 to Ms Taraska, and 30% by the sum of $40,988.69 to Mr Taraska. Taking into account the wife’s partial property settlement and the husband’s retention of his motor vehicle, this results in the wife requiring $85,640.29 from the remaining proceeds of sale of the C Street, City B property and the husband $25,588.69.
I am uncertain whether the husband’s parents will require him to reimburse them the costs advanced on his behalf. The sum remaining to him will cover some of these costs. It may also, at some stage, provide him with some portion of a deposit to purchase a home for himself, if he so desires and is able to.
Ms Taraska’s sum is significantly greater but, in my assessment, so are her prospective needs given the greater uncertainty of her economic future. If she pays her full costs, it will leave her with something of a nest egg, which may provide some buffer against the exigencies of the future.
An order resulting in the equalisation of the parties’ superannuation holdings, as at the date of trial, will require a split of $36,609.82 being made in her favour from the husband’s superannuation.
I appreciate this is an outcome which is likely to be unsatisfactory from the perspective of each of the parties concerned in the sense that it will inadequately provision them, in an economic sense, as their respective futures unfold. Inadequate though it is, I am satisfied that it is the fairest outcome available in the difficult circumstances prevailing.
As will be apparent from these very lengthy reasons for judgment, I have not found this an easy case to determine. Once again, I acknowledge the insolubility of the relocation case from each of their perspectives. Given the impossibility of the parties resolving this issue, it fell to the Court to determine the matter.
I acknowledge that the parties have each paid a heavy price, both economically and emotionally, in having the Court resolve the case. I trust that each of them and their respective families will each be able to move on from this case so that X may flourish as best she can.
At the end of the day, it is one of the responsibilities of the Court, at the end of a marriage, to make orders to enable the parties concerned to separate their financial affairs and make new starts, as they may wish, following the cessation of their relationship as partners whilst recognising they remain parents.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and ninety-eight (598) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 30 July 2021
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