Tarrant & Buttler
[2022] FedCFamC2F 413
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tarrant & Buttler [2022] FedCFamC2F 413
File number(s): PAC 2843 of 2019 Judgment of: JUDGE STREET Date of judgment: 1 April 2022 Catchwords: FAMILY LAW – PARENTING – relocation – best interests of the child – where the father applies to move Children to Queensland – where the mother lives in Melbourne, Victoria – where one of the Children has special needs – where there is no unacceptable risk posed by either parent – reasonably practicable for father to relocate to Melbourne.
PROPERTY – de-facto relationship – property division – superannuation splitting – what is just and equitable.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d),60CC(3)(e), 60CC(3)(f), 60CC(3)(i),60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 60CG, 65AA(5)(a), 65AA(5)(b), 65AA(5)(c), 65AA(5)(e), 65DAA, 65DAA(1)(a), 65DAA(1)(b), 65DAA(5), 65DD(1)(c), 65DD(5), 79, 90SF(3), 90SF(3)(r), 90SL, 90SM, 90SM(4), 90XS, 90XT, 90XT(1)(a), 90XE. Cases cited: A & A Relocation Approach [2000] FamCA 751
Beaton & Beaton [2020] FamCAFC 297
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Hickey & Hickey [2003] FamCA 395
Morgan & Miles [2007] FamCA 1230
MRR & GR [2010] HCA 4
Taylor & Barker [2007] FamCA 1246
Division: Division 2 Family Law Number of paragraphs: 161 Date of hearing: 28 March 2022 - 1 April 2022 Place: Parramatta Counsel for the Applicant: Ms J Friedlander Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Mr J Lo Schiavo Solicitor for the Respondent: Voice Lawyers Counsel for the Independent Children’s Lawyer: Mr S Bourne Solicitor for the Independent Children’s Lawyer: Medcalf Grant Lawyers ORDERS
PAC 2843 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TARRANT
ApplicantAND:
MS BUTTLER
RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
1 APRIL 2022
PARENTING
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The Applicant Father (Mr Tarrant) and Respondent Mother (Ms Buttler) have equal shared parental responsibility for the children, X born 2015 and Y born 2017 (“the Children”).
3.The Children are to live with the Respondent Mother in Melbourne.
4.The Respondent Mother has authority to enrol the Children at B School commencing Term 2, 2022.
5.The Respondent Mother is to pick up the Children from school on Friday 8 April 2022 at 3:25pm.
6.An injunction is hereby issued restraining the Applicant Father by himself, his servants and agents from retrieving the Children from School or attempting to prevent or interfere with the Respondent Mother’s retrieval of the Children from School on 8 April 2022.
7.The Applicant Father is to provide the school with any of the Children’s medications so that the Respondent Mother may retrieve them when she retrieves the Children on 8 April 2022.
Audio/Video Contact
8.The Children shall be encouraged and supported by both parents to have Facetime, Zoom or other online communication with the parent who they are not with such communication to occur at least three times each week at times suitable to the Children and including each of the Children's birthdays, each of the parent's birthdays, Father's Day, and Mother's Day.
School reports
9.Each parent is entitled to receive directly from the Children's school/s (which includes day care) all information about the Children's schooling and school events that would typically be provided to a parent.
Tuning into Kids
10.The Respondent Mother shall within 120 days complete the Tuning Into Kids Program.
Care, development and decision making
11.The parties are to have sole parental responsibility for making decisions about the day to day care, welfare and development of the Children during the periods when the Children are living with them excluding any long term or significant impact decisions.
Medical issues
12.Each parent shall keep the other informed of the Children's hospital and medical appointments and admissions including the recommendations of any doctor, psychiatrist, psychologist, counsellor, occupational therapist or other like health or allied health provider.
School Holidays
13.The Applicant Father spend time with the Children on alternate weeks commencing from school pick up on Monday Afternoon to school drop off on the following Monday morning.
14.For the April school holidays April 2022, the Children spend the first half of the school holidays with the Respondent Mother until 4pm on the middle day of the gazetted school holidays and the balance of the April 2022 Holidays with the Applicant Father.
15.For Term 2 2022, the Applicant Father should drop the Children off at School at the commencement of Term 2 on Tuesday 26 April 2022.
16.In even numbered years, the Children spend the first half of the school holidays with the Applicant Father, commencing on the first day of school holidays until 4pm on the middle day of the gazetted school holidays.
17.In odd numbered years, the Children spend the second half of the school holidays with the Applicant Father, commencing from 4pm on the middle day of the gazetted school holidays until the last day of school holidays at 4pm.
18.The Children spend time with the Father for the first half of each Christmas school holiday period in even numbered years, and for the second half of each Christmas school holiday period in odd numbered years.
Special days
19.That should the applicant father reside in Victoria, the children spend time with the applicant father as follows:
(a)On each of the Children’s birthdays:
(i)If the day falls on a school day, from after school until 7 PM;
(ii)If the day does not fall on a school day, from 1 PM to 5 PM.
(b)On the Applicant Father’s birthday:
(i)If the day falls on a school day, from after school until 7 PM;
(ii)If the day does not fall on a school day, from 10 AM to 5 PM.
20.That the Children spend time with each parent as follows, and any contradictory order is suspended so as to allow that time to occur:
(i)With the non-resident parent from 12 PM on Christmas Eve to 12 PM on Christmas Day;
(ii)With the Applicant Father on Father’s Day weekend, from the conclusion of school on Friday to 5 PM Sunday;
(iii)With the Respondent Mother on Mother’s Day weekend, from the conclusion of school on Friday to 5 PM Sunday.
Cost of Travel
21.The Applicant Father is responsible for any travel and or accommodation expenses required to facilitate his time with the Children.
Non denigration
22.That neither party is to denigrate or insult the other party or their family in the presence or hearing of the Children or in the presence of School representatives and staff and is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the Children.
No discussion of proceedings with the Children
23.That neither party is discuss the Courts Orders or proceedings with the Children and is to use their best endeavours to ensure that others do not discuss the substance of the Orders or Proceedings in the hearing or presence of the Children.
Discipline of Children
24.Neither party shall use physical discipline on the Children.
Costs of the ICL
25.Subject to the terms of Legal Aid NSW and any application for waiver made within 14 days of the date of these orders, the costs of the ICL shall be paid in equal shares by the Applicant Father and Respondent Mother in the sum of $8,528.00 (inclusive of GST) by payment to Legal Aid NSW Westpac account:
BSB: …
Account: …70
Quoting reference: "… Tarrant"
PROPERTY
THE COURT DECLARES THAT:
26.A de-facto relationship existed between the Applicant Father and Respondent Mother enlivening the Court’s powers under Part VIIIAB of Family Law Act 1975 (Cth).
27.Pursuant to s 90SL of the Family Law Act 1975 (Cth), subject to these orders, the property in the possession and control of the Applicant Father remains that of the Applicant Father and the Applicant Father must indemnify the Respondent Mother in respect of any existing joint liability and the property in the possession and control of the Respondent Mother, remains that of the Respondent Mother.
THE COURT ORDERS THAT:
28.Pursuant to s 90SM, s 90XS and s 90XT of the Family Law Act 1975 (Cth), on the operative date, the base amount of $60, 842.61 in the Super Fund 1 account of the Applicant Father , account reference number: …61 and the base amount of $166,867.05 in the Super Fund 1 account of the Applicant Father, account reference number: …61, be transferred to and held by the trustee, Super Fund 2 ABN … on behalf of the Respondent Mother, Ms Buttler.
29.In accordance with s 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever the splittable payment within the meaning of s 90XE of the Family Law Act 1975 (Cth), affected by Order 28 above, becomes payable to or on behalf of Mr Tarrant from his interest in Super Fund 1, account reference number: …61 and account reference number: …61, the Respondent Mother, Ms Buttler, is entitled to be paid by the trustee, Super Fund 2 ABN … the amount calculated in accordance with the accumulation of benefits from the date of the operative order, in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $60,842.61 from account reference number: …61, and base amount of $166,867.05 account reference number: …61 in accordance with Order 28 above, unless the Respondent Mother’s interest in the respective accounts has been earlier transferred to another superannuation trustee.
30.The operative date, in Orders 28 and 29 is 28 days after the service of these orders upon the trustee, Super Fund 2 ABN …, of the Super Fund 1, for account reference number: …61 and account reference number: …61, unless an application is made within 28 days, by the trustee to join these proceedings and the trustee seeks a variation of the above splitting orders 28 and 29, in which case the operative date is extended until determination of that application.
31.The 28 day period and potential extension upon application by, Super Fund 2 ABN … being the Trustee of the Super Fund 1, is intended to provide the trustee of the respective Super Fund 1 accounts with procedural fairness.
32.Time for appeal by the Applicant Father will not commence to run until the Applicant Father has received the settled transcript of the oral published reasons delivered in open Court on in 1 April 2022.
THE COURT NOTES THAT:
33.Order 32 does not give rise to a stay of the orders the Court has pronounced.
34.The ICL is discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under the pseudonym Tarrant & Buttler has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
EX TEMPORE REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
These proceedings were commenced on 19 June 2019, by way of a parenting and property application by the applicant father, Mr Tarrant against the respondent mother, Ms Buttler. The parties have two children from the relationship X, born 2015, currently aged 7 and Y, born 2017, currently aged 4 (“the Children”), whom currently live with the applicant father.
In summary, the Court has before it two separate issues: first, one relating to parenting under Part VII of the Family Law Act 1975 (Cth) (“the Act”); and, secondly, an application in relation to property in respect of the de facto relationship under Part VIIIAB of the Act.
The kernel of the issues in respect of the parenting matters can be summarised by identifying that the applicant father seeks that the Children move from Sydney to live with him in City C, Queensland, whereas the respondent mother seeks that the Children move from Sydney to live with her in Melbourne. The Children, as a result of parenting orders that were pronounced on 30 September 2019, have been living in Sydney with the applicant father since 14 November 2019. From the time of separation of the parties, who had lived together since 2011 until mid-2019, there were contributions made by both parents to the relationship and to the Children as parents. The Children, from mid-2019 lived with the respondent mother in Melbourne until there was a delivery of the Children into the care of the applicant father in Sydney and then a refusal by the applicant father to return the Children, as a result of which a recovery order was made on 19 July 2019 and the Children were returned to the respondent mother in Melbourne.
The Court notes that the Court is to disregard the earlier parenting orders in determining this final parenting matter; however, as a matter of history only, the Court identifies that following the recovery order, an interim hearing took place on 30 September 2019. The Orders made on 30 September 2019 (“the September 2019 Orders”) provided that the Children were to live with the respondent mother and that the respondent mother was to relocate within 30km of the applicant father’s residence in Sydney. Further, the September 2019 Orders provided that should the respondent mother not relocate within 30km of the applicant father’s residence in Sydney, the Children were to live with the applicant father. Following this, the Children were returned to the applicant father in late 2019. It is not for this Court to revisit the findings made or not made in support of those interim orders as to whether it was reasonably practicable for the respondent mother to relocate from Melbourne to Sydney as at the date of those interim orders or as to whether it was reasonably practicable for the father to relocate to Melbourne as at the date of those interim orders. This Court must approach parenting orders including the issue of relocation afresh and make its own findings in respect of the statutory pathway issues now raised concerning the relocation of the Children, including what is now on this Court’s finding, reasonably practicable for the respective parent.
The Court has set out the chronology as identified in the respondent mother’s case outline which the Court finds provides an accurate chronology:
Date Event 1989 Father born 1992 Mother born 2011 Parties commence relationship
Parties reside in City D2012 Parties move to City E 2014 Parties move to Brisbane 2015 X born 2015 Parties move to City E Mid-late 2017 Parties move to Melbourne 2017 Y born Early 2018 Parties move to Perth January 2019 Parties move to Sydney 28 May 2019 Family violence incident – Father locks Mother inside house 29 May 2019 Parties separate
Mother says Father agrees for her to move to Melbourne with the children
Mother leaves with children
Family violence incident – Father yells at mother in the street
Provisional ADVO obtained by police for Mother’s protection19 June 2019 Father files Initiating Application 2 July 2019 Mother gives children to Father to spend time until 11 July
Father texts mother that he will not be returning the children11-18 July 2019 Father refuses to effect changeover back to Mother as agreed 15 July 2019 Mother files Application in a Case for recovery order 19 July 2019 Recovery order made
Children returned to Mother’s care in Melbourne30 September 2019 Interim Hearing Issues
(i)Where, and with which parent, the Children should live;
(ii)The Nature and extent of time the Children will spend with the non-resident carer;
(iii)Whether, and in what amount, the applicant father’s superannuation should be split between the applicant father and the respondent mother.
Applicant’s Evidence
(a)Amended application for final orders (24 March 2022)
(b)Notice of Risk (19 August 2019)
(c)Applicant’s Financial statement (14 June 2021)
(d)Case Outline (24 March 2022)
(e)Balance Sheet (28 March 2022)
(f)Amended Balance Sheet (30 March 2022)
(g)Affidavit of Mr Tarrant (24 March 2022)
(h)Affidavit of Mr Tarrant (27 July 2021)
(i)Affidavit of Ms F (dated 28 July 2021)
Respondent’s evidence
(a)Mothers Amended Response to Final Orders (16 August 2021)
(b)Notice of Risk (15 July 2019)
(c)Case Outline (22 March 2022)
(d)Tender Bundle 1
(e)Tender Bundle 2
(f)School Attendance Document (page 13, Sleeve 18, subpoenaed material)
(g)13 page superannuation Record
(h)10 page superannuation Record
(i)Affidavit of Ms Buttler sworn 11 August 2021.
(j)Affidavit Ms H sworn 11 August 2021.
Independent children’s lawyer’s evidence
(a)ICL Tender Bundle
(b)Family Report (17 June 2021)
(c)ICL Bundle for expert witness, 28 pages (30 March 2022)
Witnesses
Applicant Father
Respondent Mother
Maternal Grandmother, Ms H
Family Consultant and Family Report Writer, Dr G
THE PARENTING LAW
In dealing with the matters in respect of parenting before the Court turns to the evidence, the Court must follow the statutory pathway that is identified in Part VII of the Act and has been addressed in Goode & Goode [2006] FamCA 1346 (“Goode & Goode”). Part VII sets out the provisions relating to children, and s 60B sets out the objects of the Act and the principles to be applied. Section 60CA of the Act provides that the Court must regard the best interests of the children as the paramount consideration when making parenting orders. The application under Part VII of the Act is an application in relation to parenting orders.
Section 60CC of the Act sets out how the Court must determine what’s in the best interests of the child by reference to the primary considerations in s 60CC(2) of the Act being the benefit of the child having a meaningful relationship with both of the child’s parents, the need to protect the child from physical emotional or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence, with the later to be given greatest weight pursuant to s 60CC(2A) of the Act.
The Court must take into account the additional considerations in s 60CC(3) of the Act, including, where appropriate, any views expressed by the child, the nature of the relationship between the child and each parent or other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with each parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family and whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant facts and circumstances.
When applying these primary considerations, the Court must give greater weight to the need to protect the child from physical emotional and psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence under s 60CC(2)(a) of the Act. The Court takes into account the definition of “abuse” in s 4 and the meaning of “family violence” in s 4AB of the Act. When considering what order to make under s 60CG of the Act, the Court is required to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include any necessary safeguards.
The Court has taken into account the statutory pathway identified in Goode & Goode at [65]:
65. In summary, the amendments to Part VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.
The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in
s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.
The Court must also take into account, in the present case where the parties are seeking to relocate the Children from Sydney to either Brisbane or to Melbourne, the principles as identified in Beaton & Beaton [2020] FamCAFC 297 and referred to in Deiter & Deiter [2011] FamCAFC 82 at [108], which identified the dangers of following the checklist that was identified in Morgan & Miles [2007] FamCA 1230. The appropriate approach that was identified, is that the Court needs to make findings as to the primary considerations and the considerations under s 60CC(3) of the Act, before attempting to apply the other provisions of Part VII of the Act in determining what is the determinative factor, being the best interests of the child, as identified in Taylor & Barker [2007] FamCA 1246 (“Taylor & Barker”) summarising the statutory pathway at [51] and A & A Relocation Approach [2000] FamCA 751 (“Approach to Relocation”) at [60-62, 74,76,78,81-83]
The Court takes into account the guidance of the approach adopted by the learned magistrate identified by the Full Court in Taylor & Baker, supra at [30] in respect of relocation extracted from the relocation principles identified in Approach to Relocation at [64 - 108]:
(a)The best interests of the child are the paramount consideration but are not the sole consideration. In particular, rights of freedom of movement are not to be ignored.
(b)An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed, neither party bears an onus; that is to say neither parent has the onus to establish that a change in current contact arrangements or a continuation of those arrangements will best promote the interests of a child.
(c)The reasons for a parent wishing to relocate with a child is only one of the matters to be considered and it should not be dealt with as a separate issue.
(d)I must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.
(e)I am to indicate which matters are of greater weight and explain how matters balance out.
The two issues identified in the present case involve significant change in the geographical place where the two Children are to live, and the preferred approach identified by the authorities has not been to deal with the change or relocation as a separate and discrete issue, but rather as just one of the proposals for the child’s future living arrangements insofar as that approach is possible. I have made those observations in relation to the legal principles to be applied in respect of the parenting issues in this particular case where there is in fact agreement as to equal shared parental responsibility and where the competing proposals are for relocation of the Children from Sydney to Melbourne where the respondent mother currently lives or for relocation to from Sydney to City C, Queensland.
This is a case where affidavit evidence has been put on by the applicant father in respect of which two affidavits were read by him and on which he was cross-examined, and his mother’s affidavit was also read. There was evidence given by affidavit by the respondent mother, and her mother also put on an affidavit and both were cross-examined. The Court also heard detailed evidence from the writer of the Family Report dated 17 June 2021 (“the Family Report”), Dr G, to which the Court will return.
The contentions advanced by the applicant father identify equal shared parental responsibility for the Children with the respondent mother, which is an area where there is agreement between the parties that there should be equal shared parental responsibility. The Court will return to the significance of that agreed consideration in relation to the statutory pathway.
The applicant father, however, seeks, that the Children live with him and identifies an intention to move from Sydney, where the Children have been since 14 November 2019, to relocate to City C, Queensland because he has a military posting there and seeks orders permitting such relocation.
The evidence identifies that the applicant father has been permitted on compassionate grounds to remain in the Defence facilitated accommodation in Sydney on the father’s evidence until the determination of these proceedings. The applicant father identifies that he seeks for the Children then to spend time with the respondent mother every third weekend in school terms and for all of autumn, winter and spring school holidays and for three weeks in the Christmas school holidays. The applicant father seeks for the respondent mother to pay for the Children’s flights between Brisbane and Melbourne.
On the issue of a meaningful relationship, the applicant father asserts that the respondent mother made a decision not to move to Sydney with the Children on the basis she could not afford to live there and ceded residence of the Children to the applicant father. That does not reflect what, in fact, occurred, which was that there were orders sought by the applicant father for the Children to live with him in Sydney and in respect of which it is apparent the Court made a guillotine order if the respondent mother did not return to Sydney, where the Children would live with her, for the Children then to live with the applicant father. The Court will return to the circumstances that were advanced by the applicant father as it appears that the applicant father implicitly was maintaining that he could not go to Melbourne and that it was not reasonably practicable for him to go to Melbourne.
Ultimately, this Court finds that it is reasonably practicable for the applicant father to go to Melbourne and that it is now reasonably practicable for the applicant father to go to Melbourne, where the applicant father is likely to be able to continue his military career and get the benefit of Defence assisted housing and where the Court finds it would be reasonably practicable for the applicant father to relocate. The applicant father’s right of freedom of movement is curtailed whilst he remains employed in the Australian Defence Force (“ADF”) but the Court finds that the applicant father could retain his ADF employment and relocate to Melbourne. The applicant father identifies a wish to move to City C and asserts that he would be able to remain there without fear of further deployment.
For the reasons the Court will come to, the Court finds that that contention that the applicant father is not exposed to the risk of further deployment is without substance, and if the Children were to move to City C with the applicant father, there would be a real risk of further disruption and unsettlement by being required to move further if the applicant father was posted elsewhere and chose to remain in the ADF. The Court finds that the risk of the applicant father being posted and deployed elsewhere is real and that the magnitude of that risk is high given, his past posting/deployment to different locations, continued employment with the ADF as change of posting/deployment is part of the obligation of military service and the compassionate grounds of residence in Sydney whilst there proceedings are pending, reflects both the service risk and obligation to be posted/deployed as well as the existence of a compassionate discretion.
Whilst the applicant father asserted that he had a greater level of commitment from the ADF if he remained in City C in terms of relocation, the Court does not accept that the applicant father’s evidence in relation to the stability of his posting to City C should be accepted and finds that there was a remains a real risk that if the Children were to relocate with him to City C, there is a real prospect of the Children having to relocate to some other place if the applicant Father is posted or deployed elsewhere. For the reasons the Court will come to, such a lack of stability would have a significant impact on both Children which would be adverse, as well as in particular upon the elder child who has special needs and for whom stability is even more important.
The applicant father asserted that the relocation to Queensland would not impact on the respondent mother’s time with the Children any more than her move to Melbourne already has. That proposition is also one lacking in substance and unfairly characterises her move to Melbourne and the reality of the fiscal impediments in moving to Sydney as well as absence of family. The respondent mother has no family in Queensland, has no accommodation in Queensland, has no vehicle in Queensland, would need to collect the Children with the benefit of a vehicle with child seats and on the evidence that the Court ultimately accepts, the Court finds that it would not be reasonably practicable for the respondent mother to relocate to Queensland and that the consequence of the applicant father relocating to Queensland is that there will be even less time spent by the Children with the respondent mother than has occurred in relation to the circumstances whilst the applicant father has been living in Sydney with the Children. In Sydney, the respondent mother had the benefit of a grandmother living at City J, where she was able to operate from as a base, with approximately an hour’s travel to collect the Children from Sydney and in due course to return to Melbourne and then return back to Sydney. There is no such opportunity of a nearby base for the respondent mother if the Children were to move to City C with the applicant father. The respondent mother does not have the fiscal ability to relocate to City C. The Children would not be able to spend equal time with the respondent mother if relocated to City C.
The applicant father asserts that he is making serious attempts to further the respondent mother’s relationship with the Children and is offering his house to her for her time spent with the Children. This is a hollow proposition. The applicant father did not make genuine efforts to relocate to Melbourne once these proceedings were commenced, took no steps to identify what jobs or deployment opportunities he had within the ADF to move to Melbourne, and far from it being that he was making serious attempts to further the respondent mother’s relationship with the Children, his failure to take steps in relation to job opportunities in Melbourne or seeking to relocate within the ADF to Melbourne reflects adversely in relation to his failure to prioritise the best interests of the Children and them having a meaningful and significant relationship with their mother. The applicant father on the evidence rejected posting opportunities to Melbourne and did not seek any exercise of a discretionary relocation to Melbourne.
In relation to risk of harm, historically, there are notices of risk which the Court has taken into account, and it is apparent that there was a level of family violence that was, in fact, perpetrated by the applicant father in relation to the respondent mother. But on the evidence before the Court, the Court does not accept that there is any ongoing risk of family violence whether the Children were to live with the applicant father in City C or whether the Children were to live with the respondent mother in Melbourne. It was suggested in submissions that there might be a degree of difficulty in cooperation between the parents if the Children were to live in Melbourne. The Court finds that there would not be any such difficulty.
The Court prefers the evidence that was given by the respondent mother, which identifies an ongoing ability to engage with and cooperate with the applicant father. The respondent mother in her evidence identified that if the applicant father came to Melbourne, she was happy with equal time in respect of the Children. It is to the respondent mother’s credit that she recognised the best interests of the Children in the applicant father having equal time, if living in Melbourne. The Court does not accept that there is any unacceptable risk to the Children of being exposed to family violence or conflict if relocated so as to live with the respondent mother in Melbourne and if the applicant father also relocates to Melbourne.
The respondent mother’s case outline identified the frequent relocation due to the applicant father’s employment in the Australian Defence Force and that the respondent mother was originally from Melbourne. The respondent mother’s case outline further identified that the parties had resided in Sydney for four months when they separated and that the respondent mother had then returned to Melbourne. It is apparent that the applicant father has transferred within the ADF, as identified in moving from Sydney to Suburb K, being a suburb of City C, with the intention, he alleges, of having greater employment stability.
The respondent mother’s case outline identifies that the applicant father withheld the Children from the respondent mother in July 2019 and that a recovery order was made on 19 July 2019, returning the Children to the respondent mother’s care. The respondent mother’s submissions identified that the respondent mother’s financial circumstances were such that, although she had been the primary carer up until the time of 14 November 2019, she was not able to relocate to Sydney. The respondent mother, in the current circumstances, where the applicant father now seeks to move to Brisbane, asks for an order that the Children return to her care in Melbourne and as identified earlier in evidence, identified that she was content with equal time for the applicant father.
The respondent mother’s submissions advanced that the applicant father’s proposals in terms of moving to City C, Brisbane are prohibitive of the Children enjoying a meaningful relationship with the respondent mother. There is force in that submission. The Court finds that if the applicant father did move with the Children to Brisbane, it would materially diminish the significant and meaningful relationship of the Children with the respondent mother. If the Children live with the respondent mother and have equal time with the applicant father, this would clearly provide significant and meaningful time for both parents, which is a statutory presumption under the statutory pathway that in the present case, the Court finds should be applied where the parties are, in fact, in agreement as to joint parental responsibility. That agreement as to joint parental responsibility also weighs in favour of identifying that there are no unacceptable risks posed in respect of the Children, in fact, living with either parent.
The respondent mother identifies that her means are limited and that she does not have the capacity to fund regular plane trips to City C and that to drive from Melbourne to City C every third weekend, as proposed, would be an 18 hour journey which would probably require two legs and accommodation in City C for the Children and the respondent mother. The Court finds that this reflects a proposal that is not reasonably practicable for the respondent mother.
The Court does not give weight to the applicant father’s offer to contribute to the cost of travel, in circumstances where it is apparent that the applicant father has not taken any genuine steps to either put on evidence identifying his ability to move to Melbourne or request compassionate transfer of posting and, in essence, the Court finds that he represented to the Family Report Writer, for reasons the Court will come to, that he could not relocate to Melbourne which, the Court finds was false and reflects manipulative and controlling behaviour by the applicant father and reflects a failure to give priority to the best interests of the Children.
The respondent mother’s submissions do refer to the earlier controlling and physically violent behaviour during the relationship. There is contemporaneous corroborative evidence in respect of an incident that gave rise to the Apprehended Domestic Violence Order (“ADVO”) that supports the respondent mother’s version, which the Court accepts. For the reasons the Court has identified, it was of historical significance rather than identifying any ongoing risk, and the Court finds that there is no unacceptable risk if orders were to be made for there to be equal time with both parents with the Children living with the respondent mother in Melbourne.
In relation to s 60CC(3)(a) of the Act, it is the case that there was evidence adduced that the Children expressed to their maternal grandmother a desire to live with their mother. This is a not case, given the age of the Children, to which much weight should be placed upon what was said by the Children.
On the evidence before the Court, it is apparent that the Children have a constructive and healthy relationship with both parents. The Court places no real weight on the views expressed by the Children, given their young age. The Court does, however, accept that the grandmother on the maternal side gave credible evidence and rejects the attack on credit advanced by the applicant father, to which the Court will return. The Family Report supports the Children being close to both parents.
In relation to s 60CC(3)(b) of the Act, the applicant father identified the period of time during which the respondent mother was the primary carer of the Children and the applicant father worked full-time and was deployed for months at a time. It was suggested that the respondent mother had received support during the period that the Children lived with her up until mid-November 2019 and that her parenting had not been tested on her own. The Court rejects that contention. It is an unfair characterisation of the role played by the respondent mother in relation to the Children while she was the primary carer for them. Being the primary carer for the two Children up until mid-November 2019 is significant in relation to the primary attachment that the Court finds exists between the respondent mother and the Children. There is no basis to find that that primary attachment has not continued and the Court finds it still exists for both Children in respect of the respondent mother, which is a relevant consideration in relation to the relationship of the Children with the parents.
The Court finds that the Children, in fact, had a close and loving relationship with each parent, and it is apparent that the Children enjoy positive relationships with their maternal family and paternal family. There is, however, a clearly identified relationship with the cousins of the two Children on the maternal side, three of whom are at the B School where the two Children were to attend, if living with the respondent mother in Melbourne on the evidence before the Court. The constructive relationship with the cousins is of importance not just because of their location in Melbourne, but because the elder son, X, who has special needs, has already been at school with those cousins and will be returning to an environment in terms of schooling with which he is familiar and has family support.
In relation to the applicant father, the applicant father did not identify the school to which the Children would go if relocated to City C, saying that it depended upon where precisely he was given housing. Whilst the Court understands the difficulty in identifying a place of education, the respondent mother identified that the special needs of X in particular could be accommodated at the B School because of their regime. This is a further material consideration when it comes to with whom the Children should live.
The respondent mother properly acknowledged the close relationship of the Children with the applicant father, which is inherent in the proposition recognised by the respondent mother in evidence that there should be equal time, and it is to the respondent mother’s credit as a matter of insight that she recognised that positive and supportive relationship between the applicant father and the Children. The applicant father’s regime does not reflect such an insight in relation to the Children in respect of their relationship with their mother.
Under s 60CC(3)(c) of the Act, it was identified that there had been problems in contact with the Children because of the COVID-19 pandemic and border restrictions. The relevant factors that the Court does take into account is, that prior to the COVID-19 pandemic and border restrictions, when the applicant father had an ability to do so, he did not visit the Children in Melbourne when they were in the respondent mother’s care after the first separation. The explanation for not doing so was not credible and does not reflect the same level of effort and commitment as the respondent mother has made in coming to Sydney as a result of the orders with the guillotine consequence that resulted in the Children living with the applicant father.
Under s 60CC(3)(ca) of the Act, there are criticisms that have been advanced in relation to the respondent mother and the applicant father in terms of management of Y’s medical issues; however, the Court accepts that the respondent mother made all appropriate arrangements to schedule consultations and surgery for Y and that it was the applicant father that insisted the surgery take place in Sydney, which appears to have been unnecessary. The taking of Y after the operation to Brisbane after day surgery appears consistent with the applicant father needing support from his family in relation to looking after the Children.
There was a criticism advanced that the respondent mother needed the support of her family. The taking of Y to Brisbane reflects the same steps of support being taken by the applicant father from his family. The Court does not accept that either parent lacks the capability to parent on their own the Children and finds that the respective family support provided to each parent does not reflect a want of capacity for either parent to be able to emotionally, intellectually and physically care for the respective two Children.
The after school and before school care in relation to the Children whilst in the applicant father’s care is not a matter of itself that identifies any basis for concern in respect of parenting of the applicant father, nor does any potential arrangement for the respondent mother to obtain assistance adversely reflect on her ability. The respondent mother, in fact, points out that she would be able to look after the Children before and after school, which mildly weighs in favour of the respondent mother’s work environment, reflecting a slightly greater ability to care for the Children whilst they are living with her.
Under s 60CC(3)(d) of the Act, the Court should take into account the likely changes in the child's circumstances, including the likely effect on the child of separation from the parents. It is in this area that the Court will return to the evidence of the Family Report Writer. Each change to City C or to Melbourne reflects a significant change of environment in relation to the two Children. The relocating to Melbourne is a familiar environment in relation to which the relocation to City C does not identify an environment to which the Children have already lived, nor is it to an environment in respect of which the Children have been schooled.
The need for ongoing stability in relation to the two Children and particularly the elder child, X, with his special needs, is a matter that weighs in favour of the Children’s circumstances having more stability if living with the respondent mother in Melbourne. The respondent mother is not exposed to the prospect of deployment or posting elsewhere, and the Court accepts her evidence as to the stable environment she has with both two sisters and a brother living in Melbourne, as well as her mother and her mother’s partner, and her ability to live with her mother or in rented accommodation.
There is force in the submission advanced by the respondent mother that her circumstances due to her flexible working arrangements and strong support network provide a particular constructive care environment for the two Children and in particular X, with his special needs. The interruptions to the Children’s relationship with the respondent mother if living with the applicant father in City C is one that may have a significant adverse effect on the Children and in particular the special needs child, X. This is because it is apparent that the two Children have a close relationship with both parents, and a move to City C would diminish the significant and meaningful time that the respondent mother would be able to spend with both Children, potentially to the detriment of both Children.
Whether moved to Melbourne or to City C, the Children are exposed to a substantial and significant adjustment. The respondent mother identified in relation to that adjustment that she had the benefit of the support of her family. It is apparent that the applicant father has family in Brisbane; however, the Court does find that the respondent mother’s family provide a particularly constructive nearby supporting environment. The Court does not accept the contention that the respondent mother was dependent in caring for the Children upon her mother or that the maternal grandmother was the main support person for the respondent mother. The Court accepts that it was the whole family in Melbourne that provide support that would be constructive to both the respondent mother and the Children.
The Court also accepts that it would not be feasible or reasonably practicable for the respondent mother to drive from Melbourne to City C and back each third weekend in order to see the Children. The Court accepts that the lengthy journey and associated costs of accommodation are prohibitive and that the respondent mother is not in a financial position to be able to regularly fund the plane travel to Brisbane and the other costs that would be needed in respect of vehicle, child seats and accommodation. It would not be reasonably practicable for the respondent mother on the evidence before the Court, to relocate to Brisbane. The respondent mother’s right of freedom of movement is not impaired by obligation to the ADF as affects the applicant father’s right of freedom of movement and this also weighs in favour of the Children relocating to live with the respondent mother in Melbourne. For reasons the Court will further expand on, this is a case where the Court finds it is reasonably practicable for the applicant father to relocate to Melbourne.
In relation to s 60CC(3)(f) of the Act and the capacity of each parent to provide for the needs of the Children, including emotional and intellectual needs, the Court accepts the proposition that the applicant father appears to have placed his perceived job security in front of the best interests of the Children and moreover, in his failure to identify his ability to move to Melbourne to the Family Report Writer, reflects a lack of capacity in understanding the emotional and intellectual needs of the Children in relation to their significant and meaningful relationship with the respondent mother.
It was pointed out that if relocated to Brisbane, the applicant father may have onerous commitments and face the risk of further relocation. The Court accepts that there is a real risk of further relocation by the applicant father if he were to remain in the ADF and relocated to Queensland and finds as earlier identified that the magnitude of that risk is high. The Court accepts the submission of the respondent mother, that this would then be likely to give rise to further litigation if such a relocation occurred. The Court is required under the Act to make orders that diminish the prospect of any further litigation. An order permitting the Children to relocate with the applicant father to Brisbane would, the Court finds, be more likely to generate further litigation in relation to the Children.
The denials of the applicant father about the prospects of further posting/deployment and relocation are ones the Court gives little weight to, as for reasons the Court will expand on. The Court does not accept the applicant father as a credible witness. The Court accepts that the respondent mother has flexible working hours in her employment and is able to care for the Children before and after school. The Court has also taken into account the candid observation by the applicant father and it is clearly correct, that the respondent mother is an excellent mother. It is not a case where there is any Aboriginal or Torres Strait Islander issue.
The Court accepts the submission in relation to s 60CC(3)(i) of the Act that the applicant father has displayed an attitude in these proceedings which is not child-focused but rather focused on his ability to obtain financial benefit in respect of his employment and his attitude in not seeking to candidly identify to the Family Report Writer his ability to move to Melbourne, which is also contrary to an insight as to the best interests of the Children and their relationship with their mother. The Court does not accept that relocation of the Children to Brisbane would provide stability for the Children and accepts the characterisation that the applicant father’s move to Queensland is career-focused rather than focused on the best interests of the Children.
The case outline for the respondent mother identifies that the applicant father had advanced that his residence in Sydney reflected a level of housing assistance and his compassionate request to stay in Sydney pending determination of these proceedings. The Court finds that the applicant father did not disclose his ability to relocate to Melbourne to the Family Report Writer and did not disclose the repeated offers he had had to relocate within the ADF, which he had declined, in circumstances where the Court finds he had earlier agreed with the respondent mother to move to Melbourne and where he clearly already knew that the respondent mother was in a position where it was not reasonably practicable for her to move to Sydney any more than to move to City C.
The Court accepts the submission, on the evidence, that if the applicant father does relocate to City C, the proposition that he will not be posted or deployed again is without substance. Deployment and posting movement is an inherent requirement for all ADF members, as is reflected in the history of postings/deployment that occurred in relation to the applicant father. The move within the ADF is not one by reason of which he was not exposed to a continuing real risk of further deployment or other posting, and that significant risk, if it materialises, would not be in the best interests of the Children in terms of their needs and parental responsibilities in relation to the Children.
Particularly significant, in the present case, is the evidence that was given which identified a particular ADF record which showed that the applicant father was offered on numerous occasions postings near Melbourne and that he declined the same. The Court will return to the evidence that was given in that regard, but it is evidence which is contrary to what he represented to the Family Report Writer Dr G, and Dr G confirmed that the applicant father represented that he could not relocate to Melbourne. The Court will return to this matter but identifies that at paragraph 7 of the Family Report, the applicant father represented to the Family Report Writer that he could not relocate to Melbourne, a proposition that was not true.
[7]… [Mr Tarrant] currently asserts that as he has transferred [within the Australian Defence Force], he is hoping to accept a posting in January 2022 to [Suburb K] in Queensland where he would have a stable work … and that did not require him to be deployed. He indicated that he anticipates having at least an 8 year posting there…[Mr Tarrant] stated that it was not an option for him to secure a similar posting in the [Australian Defence Force] based in Melbourne.
The not an option representation was correct in the context of the offers to relocate that he had declined. When one looks at paragraph 13 of the Family Report, it is apparent that the applicant father made a deliberate decision not to relocate to Melbourne, having told the respondent mother that he would do so. This again is not a correct reflection of what in fact occurred.
At paragraph 19 of the Family Report, it is apparent that the applicant father sought orders in relation to the return to Sydney, in circumstances where he was well aware of the fact that not only did the respondent mother want to stay in Melbourne, but that it was not reasonably practicable for the respondent mother to move to Sydney for fiscal reasons and the applicant father did not disclose the numerous occasions on which he had been offered redeployment to Melbourne and did not disclose to the Family Report Writer that he had agreed to the move to Melbourne.
The nondisclosure to the Report Writer is consistent with controlling behaviour by the applicant father that was not in the best interests of the Children and had a material adverse impact, in that the Children would not have the same meaningful and significant time with their mother that they would otherwise have had had the applicant father moved to Melbourne. The Family Report at paragraph 33 erroneously suggested that the respondent mother consented to the dismissal of the ADVO, as it is apparent on the evidence that the respondent mother was not aware that the ADVO had been dismissed.
Paragraph 35 of the Family Report reflects a further implicit representation which was not true, that the applicant father needed to be in Sydney, in circumstances where, in fact, the applicant father could have been in Melbourne and it was reasonably practical for him to do so. Paragraph 44 is contrary to the numerous postings that he was in fact offered to Melbourne and declined. Paragraph 50 also reflects a failure by the applicant father to disclose the offers that he had had to relocate to Melbourne.
In relation to paragraph 60 of the Family Report, it is apparent that the applicant father knew that the respondent mother would not relocate to Sydney and that it was not reasonably practicable to do so. In relation to paragraph 61, the representation that the applicant father could not relocate to Melbourne was again made to the Family Report Writer. Paragraph 86 is one which, again, fails to take into account or for the applicant father to disclose that he had agreed to relocate to Melbourne.
In paragraph 89, the Family Report Writer assumes a commendable offer by the applicant father in relation to the sharing of facilities in Sydney when, in fact, the applicant father’s manipulative conduct was one in which he misled the Family Report Writer as to his ability to move to Melbourne for his own advantage and was not commendable or in accordance with the best interests of the Children.
Paragraph 92 also reflects the applicant father suggesting a continued stay in Sydney was necessary, inherent in the representation that he had made to the Family Report Writer that he could not move to Melbourne. Paragraph 95 reflects a further representation in relation to the suggestion that the applicant father could not move to Melbourne, which was not true. In relation to paragraph 97 of the Family Report, it is apparent that the applicant father obtained a primary care role without disclosing his ability to move to Melbourne, in circumstances where it was reasonably practicable for him to do so. That implicit representation of an inability to relocate to Melbourne is also reflected in paragraph 101 of the Family Report.
The Family Report Writer, Dr G, under cross examination was taken to the record from the ADF as to the numerous offers given to the applicant father to relocate near Melbourne and acknowledged that such had not been disclosed to her and agreed that it was represented to her that the applicant father could not relocate to Melbourne and agreed that, if it was the fact he could do so, that reflected manipulative and controlling behaviour by the applicant father. The Court finds, in fact, that the applicant father did engage in that manipulative and controlling behaviour and could have relocated to Melbourne not just at the time of the commencement of the proceedings, but up to and including the hearing before the Court.
The representation by the applicant father that it was not possible for him to move to Victoria was not true and adversely reflects that the applicant father was not prioritising the best interests of the Children. It is also apparent that relocation to Brisbane would impose a requirement for after-school care that would otherwise not be required if the Children lived with the respondent mother in Melbourne. The Court finds in circumstances it would be reasonably practicable for the applicant father to takes steps to move to Melbourne and enjoy equal time with the Children. The Children in those circumstances will have the significant benefit of both parents living in Melbourne. The Family Report Writer acknowledged that it would by far be in the best interests of the Children if both parents did live in Melbourne. This would also be consistent with the presumption in s 65DAA(1)(a) of the Act. The Court finds that equal time with each parent is reasonably practicable within s 65DAA(1)(b) of the Act and must consider making an order for equal time under s 65DD(1)(c) of the Act.
For the reasons the Court has earlier identified and further expands on, it was and remains reasonably practical for the applicant father to relocate to Melbourne, and accordingly it would be in the best interests of the Children to live with the respondent mother and have equal time with the applicant father. The applicant father would be able to live in Melbourne a distance apart that would not prevent equal time under s 65AA(5)(a) of the Act. Both the applicant father’s work for the ADF in Melbourne and the respondent mother’s work provides a current and future capacity to spend equal time within s 65AA(5)(b) of the Act and both have the fiscal ability to do so in Melbourne. The Court finds that there would be no communication difficulty in implementing equal time within s 65AA(5)(c) of the Act. Both parents living in Melbourne and having equal time would be an arrangement that have the best impact on the Children and their relationship with each parent. The Court also considers the failure to disclose to the Family Report Writer, the ability to relocate to Melbourne is a factor under s 65AA(5)(e) of the Act that supports it being reasonably practical for equal time with both parents in Melbourne.
In relation to s 60CC(3)(j) of the Act, the Court has referred to the incident of family violence that gave rise to the separation. It is not necessary for the Court to make detailed findings in respect of the earlier incidents because this is not a case where there is any ongoing unacceptable risk of family violence if the Children live with the respondent mother in Melbourne and have equal time with the applicant father. The Court has taken into account, however, the conduct of the applicant father in misrepresenting his ability to move to Melbourne does reflect a level of inappropriate controlling behaviour that was not in the best interests of the Children and is capable of falling within the meaning of family violence as defined under the Act.
In relation to s 60CC(3)(k) of the Act, there was a provisional ADVO taken out as a result of the incident on 29 May 2019 in respect of which the Court has accepted the respondent mother’s evidence and accepts that the respondent mother did not consent to or understand that the ADVO had been withdrawn and understood that there had been an ongoing order in that regard.
In relation to s 60CC(3)(l) of the Act, whether it be preferable to make an order that would least likely lead to institution of further proceedings, the Court has already referred to the fact that given the respondent mother is settled in Melbourne and the Court accepts that she would not move from Melbourne, an order that the Children live with the respondent mother in Melbourne is less likely to give rise to the institution of further proceedings, whereas there is a real probability if the applicant father remains in the ADF that he may be exposed to further postings and deployment that could give rise to the institution of further proceedings. If the applicant father is relocated from Melbourne, the stability needs of the elder child weigh heavily in favour of the Children continuing to live with the respondent mother in Melbourne. If the applicant father refuses to move to Melbourne to have equal time, the stability needs still weigh heavily in favour of the Children continuing to live with the respondent mother in Melbourne and the refusal, given the finding of being reasonably practicable, reflects a career choice that does not reflect insight as to the best interests of the Children.
The Independent Children’s Lawyer (“ICL”) filed an updated case outline in which he referred to the orders that were made and characterised the respondent mother as having made a decision not to return to New South Wales. That submission does not recognise that, in fact, it was not reasonably practicable for the respondent mother to return to Sydney. Whilst the respondent mother did refer to mental health and financial risks in relation to returning to Sydney, the Court accepts that the financial circumstances of the respondent mother were such that it would not be reasonably practicable for the respondent mother to relocate to Sydney from the time of commencement of the proceedings up to date and when over this period it was actually reasonably practicable for the applicant father to relocate to Melbourne. There is little weight to be given to the submission advanced that the respondent mother made a deliberate decision not to return to New South Wales in those circumstances, and it diminishes the force of the submission put in that regard.
The ICL has identified the difficulties in terms of travel arrangements that would be imposed if the respondent mother were have to move between Melbourne and Brisbane, and such travel would not be in the interests of the Children, particularly the eldest child, X, who has special needs. The significant time travelling is something of itself that would reflect a further potential undermining of the stability needed by X. The ICL has identified that each parent appears to accept that the other does not pose a risk to the Children but refers to the potential psychological risks in relation to the change of residence. The Court finds that the psychological impact in respect of the move to Brisbane to an unknown location with which the Children are not familiar is greater than the potential relocation of the Children to Melbourne, a location of which they are familiar.
The ICL’s submissions focused on a regime that did not reflect the evidence given by the respondent mother as to equal time. The ICL did, however, acknowledge that the contentions by each parent appear to accept that the other does not pose unacceptable risk to the children. The ICL refers to the elevated scores on the DSM-5 symptoms and the implications of X moving in terms of his need for stability. On either proposal, his current schooling arrangements in Sydney would have to change. A significant advantage in Melbourne is that he has already gone to the B School, and the respondent mother identified a level of some contact with other parents from X’s year. It is also of material significance that in relation to that schooling stability in Melbourne, X will have the benefit of three cousins attending the same school.
In relation to s 60CC(3)(a) of the Act, the ICL referred to the Children obviously having an affection for each parent and in reference to s 60CC(3)(b) of the Act, that the Children appear to have a positive relationship with both paternal and maternal families.
In relation to s 60CC(3)(c) of the Act, the ICL referred to the parties having endeavoured to participate in decision-making. The agreement for joint parental responsibility inherently reflects an ability by the parents to cooperate in relation to that decision-making.
In relation to s 60CC(3)(ca) of the Act, the ICL referred to a dispute about steps taken in respect of the youngest child, Y’s health, but ultimately the Court accepts on the evidence that each parent appears to be attentive in respect of the Children’s needs.
In relation to s 60CC(3)(d) of the Act, the ICL put that each proposal by the applicant father and respondent mother reflects a significant change in where the Children would live and attend school. The move to Melbourne would also mean that the Children were not in the applicant father’s primary care, however, as the Court has identified, it is reasonably practicable for the applicant father to move to Melbourne where the applicant father would be having equal time with the Children, and the fundamental change would be diminished because of the Children’s familiarity with both the living arrangements and in respect of X, a school which he has earlier already attended.
While there would be a need for significant adjustment for the Children, the significant adjustment that appears preferable is one where the Children are going into an environment where further change is not, the Court finds, likely. Accordingly, if the Children live with the respondent mother in Melbourne, whereas if the Children were to live with the applicant father in City C, there is the real possibility of further change and further disruption of the Children and further significant adjustment consequences which would not be in the Children’s best interests and in particular, would be contrary to the special needs of X.
In relation to s 60CC(3)(e) of the Act, the ICL referred to the consequences if the parents remains in different States. The submissions of the ICL did not address squarely whether it was reasonably practicable for the applicant father to live in Melbourne. For the reasons the Court has identified and in respect of the evidence to which the Court will return, it is reasonably practicable for the applicant father to live in Melbourne and have equal time with the Children, and it is not reasonably practicable for the respondent mother to live in Brisbane, and if that occurred, she would not have equal time with the Children and it would be one that would diminish the significant and meaningful time spent by the respondent mother with the Children.
In relation to s 60CC(3)(f) of the Act, the ICL referred to the applicant father having been meeting the Children’s psychological needs while they have been in his care. Whilst it is the case that the respondent mother obviously found it difficult with the applicant father being deployed, the proposition that she was not coping in her parenting is not one that the Court accepts. The Court finds that the respondent mother was equally capable of meeting the Children’s psychological, emotional and physical needs whilst they were living with her. It does not accept that the Children’s living with her should be characterised as having been untested or being dependent upon support from others. The suggestion that the respondent mother didn’t fully address how she would navigate the behavioural issues with X is not accepted because on a fair reading of the respondent mother’s evidence, she did identify that she would rely up on the family support that she has available in Melbourne.
In relation to s 60CC(3)(i) of the Act, the ICL referred to each parent appearing to be attentive to their responsibilities as a parent in the context of their roles and the difficulties arising from distance.
The applicant father’s primary affidavit sworn 27 July 2021, identified the background, the circumstances surrounding the ADVO and the orders that were made on 30 September 2020. The affidavit does not candidly address why the applicant father was not able to relocate to Melbourne at the time of the commencement of proceedings or as to why he would not be able to relocate there now. Rather, there is a representation inherent in his affidavit that he was not able to do so. The evidence in relation to the ADF clearly is to the contrary, and his failure to take steps to identify or seek compassionate relocation to Melbourne or explore job opportunities there, lead the Court to find that it was at all times since commencement of the proceedings and remains reasonably practicable for the applicant father to relocate to Melbourne, and the Court finds it would have been and is in the best interests of the Children for the applicant father to do so.
This ability to relocate to Melbourne diminishes the significance of the applicant father having had the Children living with him for the last two years and four months, a fact that is sought to be the subject of great weight by the applicant father. The Court must disregard the interim orders and compliance with the same does not elevate or weigh in favour of a continuation of a status quo so far as the Children living with the applicant father. Nor is the applicant father’s proposed relocation with the Children to City C a continuation of a status quo. The Court gives no significant weight to the interim living arrangement as a result of the interim orders. That living arrangement was one in respect of which, given that it was reasonably practicable for the applicant father to relocate to Melbourne, meant that the Children did not have the benefit of the greater and significant time with the respondent mother, which would have been in their best interests.
The regime proposed by the applicant father in the orders that he was seeking for a move to City C, inherently reflects a significant diminution in the respondents mother’s ability to have significant and meaningful time with the Children, if they were to move to Brisbane with the applicant father. For the reasons already identified, the Court finds it was not reasonably practicable and is not reasonably practicable for the respondent mother to relocate to Brisbane for fiscal reasons. In relation to this finding the Court has had regard to and taken into account s 65DD(5) of the Act and in particular the substantial distance apart from Melbourne, the applicant father living at the time of hearing in Sydney, the want of financial capacity of the respondent mother to move to City C, the existence of financial capacity and ADF support for the applicant father to move to Melbourne which would permit equal time, the finding made of an ability of both parents to communicate and resolve difficulties that might arise, the very substantial beneficial impact on the Children of both parents living in Melbourne and having equal time, and as relevant matters, the finding that applicant father was offered the opportunity by the ADF to move to Melbourne on a number of occasions and declined the same, did not seek compassionate posting to Melbourne or explore job opportunities there and in fact had agreed in writing to move to Melbourne. The applicant father identified his current employment in a specific branch of the ADF; however, it is apparent from his own evidence that on compassionate grounds he has been allowed to remain in Sydney until the conclusion of these proceedings. The Court readily draws the inference that on compassionate grounds he would be relocated to Melbourne if the Children are to live with the respondent mother in Melbourne. The failure of the applicant father to take any steps to properly explore those matters with the ADF further supports the adverse finding that the Court makes in respect of it being reasonably practicable for him to relocate to Melbourne at the time of hearing and since commencement of the proceedings.
The applicant father sought to suggest that he would have greater stability in relation to the multiple posting cycles, being each four years if he and the Children were to move to Brisbane and that that would allow him to have security and stability. The instability, albeit in cycles of every four years, would of itself be something that would not be consistent with the need for stability reflected in the special needs of X. The applicant father identifies the role he has played with the Children since they have lived with him in Sydney, a matter which the Court has identified as to weight is significantly diminished by the reality of his ability, had he sought to do so, to move to Melbourne.
The Court accepts that both Children have strong bonds with both parents. The applicant father referred to, at paragraph 23 of his affidavit sworn 27 July 2021, X asking, “Why did mummy move away?” and identified a level of reassurance given to the child. That reassurance is not consistent with what the applicant father endeavoured to inform school representatives of, where he represented that the respondent mother was unreliable and, in essence, represented that the respondent mother had not given the Children priority. This was a misrepresentation as the respondent mother on the evidence is reliable and has within her limited fiscal means and the guillotine order, given the Children priority. These are all matters that the Court has taken into account in the ultimate findings as to the paramount consideration of best interests and the parenting orders that the Court will make at the end of the case.
The applicant father has addressed the proposition that he has concerns as to the respondent mother’s ability to care for the Children. For the reasons already identified, the Court finds those concerns to be hollow and that both parents are well capable of caring for the emotional, psychological and physical needs of the Children, and if the Children are living with the respondent mother and have equal time with each parent, both parents will be able to care for the Children and their needs.
The applicant father’s affidavit advances the alleged benefit of his proposed orders for relocation to City C for each party which reflects a lack of insight by the applicant father as to the consequences of his move to City C if it were to occur and the diminution in the significant time and meaningful relationship with the respondent mother for both Children which in particular would be contrary to the special needs of X. The alleged splitting of costs advanced in the affidavit is also hollow, in circumstances where the respondent mother has no accommodation, no vehicle, no car seats and no family in City C or Brisbane for support. The applicant father’s proposal of moving to City C is not one that would mean the parents would have an equal role in the upbringing of the Children and is one which would materially diminish the opportunity of the respondent mother for a meaningful and significant relationship with the Children. Further, for the reasons the Court has given already, this is not a case where it was reasonably practicable for the respondent mother to move to City C.
The proposition that the Children have a sense of abandonment because of the interim orders raised by the applicant father is of particular concern, given the finding that the Court has made that the applicant father misrepresented to the Court expert his ability to move to Melbourne. The allegation of an sense of abandonment, in circumstances where the applicant father was engaging in manipulative and/or controlling behaviour by pressing for the Children to live with him in Sydney when he could reasonably and practicably have relocated to Melbourne since commencement of these proceedings makes hollow his suggestion of focus on the sense of abandonment of the Children. That Court does not accept on the evidence that the Children had a sense of abandonment. It was a topic raised by the Family Report Writer. However, the respondent mother correctly identified that no such issue had ever been raised with her by the Children. The absence of such an issue being raised by the Children with her is contrary to the proposition that the Children had such a sense of abandonment, and the considerable efforts taken by the respondent mother, notwithstanding the guillotine orders made on 30 September 2019, to maintain the relationship with the Children is entirely consistent with the Children not having any sense of abandonment. The question posed by the child to the applicant father referred to above does not establish a sense of abandonment and the evidence as to interaction with the respondent mother does not support such a finding.
The applicant father identified that his medical category is possibly one that might be upgraded or downgraded and suggested his condition is “going extremely well”, but acknowledged it was possible that he may not be upgraded, which would impact on his continued employment in the ADF. The applicant father made the observation that if he was medically discharged, he would then “get a pension and everything, which means I will have all the time in the world”. The Court contemplated whether the reference to the pension was one which should give rise to the proceedings to be deferred until his medical categorisation was determined, but no such application was made by the parties.
However, the possibility of his being medically discharged gives rise to a further reason that the Court is not satisfied that this is a case where it is in the best interests of the Children that they should be relocated, with all the instability and upheaval that is involved in going to City C, and in particular, the separation and diminution of the significant and meaningful time it would cause in the relationship between the respondent mother and the Children. The absence of focus on schools at the Suburb K base was a topic touched on in cross-examination by Counsel for the ICL with the applicant father, and the applicant father acknowledged an inherent problem with his employment in terms of the risk of other postings.
A further unsatisfactory answer in relation to the credit of the applicant father was given about his weekly and fortnightly outgoings in the course of his evidence about the figures he had provided. The applicant father acknowledged that he had nothing left to show for the hundred thousand that he had received, and Mr Bourne, counsel for the ICL, expressly explored the failure of the applicant father to consider the use of that significant sum to help the kids travel to see the respondent mother. The applicant father identified his supportive family in terms of his siblings and mother, auntie, grandmother, and grandkids, and having more on his father’s side in the area if he relocated to the Suburb K base, and that he didn’t have such relations either in Sydney or Melbourne.
The applicant father acknowledged the possibility of being deployed elsewhere from the location at City C and accepted that it was a possibility. That possibility is of significance in relation to the risk of instability it poses for the Children, and particularly, X whom has special needs.
Counsel for the ICL questioned:
“But the reality is you don’t know whether you could get a job in Melbourne or not because you haven’t applied for any outside of the military?”
It’s apparent that the applicant father hadn’t applied for such jobs. That was confirmed in a further question asked by this Court.
The applicant father in cross-examination acknowledged it wouldn’t be impossible for him to obtain employment in the general industry in Melbourne.
For the reasons the Court has identified, the Court does not accept that the applicant father was a credible and reliable witness, and where in conflict, prefers the evidence of the respondent mother, and particular in respect of the history of the relationship and the incidents at the time of the breakdown of the relationship. It is, however, of considerable importance in the course of the cross-examination of the respondent mother that it was expressly put by Counsel for the applicant father the following:
Counsel: And you agreed for you and the children to move to Melbourne?
Respondent Mother: Correct.
Questions are put on instructions. The question reflects an agreement being raised on behalf of the applicant father with the respondent mother that they had agreed that she and the Children would move to Melbourne. That is consistent with the handwritten note written by the applicant father.
The question put by counsel on behalf of the applicant father to the respondent mother in that regard, with which the mother agreed, rings with admission that the applicant father had agreed for the Children and the respondent mother to relocate to Melbourne. Those facts are of considerable significance in the context, again, of a failure to identify candidly those matters to the Family Report Writer in the context of the respondent mother being in Melbourne and not relocating to Sydney.
It’s a further factor in relation to an insight by the applicant father as to the respondent mother and the Children wanting to live in Melbourne, which, for the reasons the Court has identified, the applicant father took advantage of by seeking orders for residence in Sydney, in circumstances where the Court finds that the applicant father knew the respondent mother would not and could not relocate to Sydney. The respondent mother gave evidence about the significant time and effort that she went to so as to visit the Children, in relation to coming up from Melbourne, which, as the Court has identified, was to her credit as a responsible parent. The respondent mother did acknowledge that she regarded the applicant father as a capable parent, and in her evidence the Court finds that both parents were and are capable parents.
The respondent mother was taken to the handwritten note written in the hand of the applicant father which read:
“Within 6 months of moving must have own house or kids come under my care until you do.. 50/50 custody from when I relocate to Melb…”
That handwritten note in the applicant father’s hand writing further supports the finding that it was reasonably practicable for the applicant father to relocate to Melbourne and that he had agreed to do so.
The respondent mother was cross-examined about a statutory declaration, which the Court finds on the evidence was something that she prepared at the request of the applicant father to assist him in relation to ADF entitlements. The form of the statutory declaration does not reinforce the criticism of attack upon the respondent mother as to her ability to cope or parent in relation to the Children. Far from that, it is to her credit as a responsible parent that she was willing to try and assist the applicant father and ensure stability for her Children by providing the statutory declaration to assist the rental requirements of the applicant father.
The respondent mother in her evidence in relation to living in Melbourne expressly said that:
“Obviously, if he is closer to living with us, then we can do the fifty-fifty.”
That was a material concession by the respondent mother and reflected a level of insight in respect of the best interests of the Children, and it is a further factor that weighs in favour of it being in the best interests of the Children to live with the respondent mother in Melbourne.
The respondent mother was asked a question about the Children going to the B School, where the Children’s maternal cousins attend. The Court readily infers that the cousins of X would be a further stabilising feature in respect of his schooling and living in Melbourne. There was a reference in that regard to the respondent mother expressly saying that she still had a relationship with some of the parents from that school from X’s time there.
The respondent mother explained that the seeing of a psychologist was mainly about her coping without being with the Children. The Court does not regard the seeing of a psychologist on a regular basis as reflecting a lack of ability or capacity of the respondent mother to properly care for the Children in their emotional and physical needs and finds it would enhance the respondent mother’s parenting ability.
The respondent mother was asked questions about alleged feelings of abandonment by the Children and responded that she felt that the Children did not feel that. As apparent in re-examination, the respondent mother was asked a question which revealed that no such issue had been raised by the Children with the respondent mother. The suggested criticism of the respondent mother’s lack of insight in relation to abandonment falls away in circumstances where the Court finds the Children do not reflect and have not reflected conduct of such a sense of abandonment.
The Family Report Writer gave evidence in respect of which it is apparent that the Family Report Writer emphasised the importance of care and consistency, particularly in relation to the special needs child, X. The Family Report Writer did raise potential issues of concern as to whether the respondent mother needed support. However, for reasons the Court has identified, the Court does not accept that the respondent mother lacked any parenting capability merely because she had the benefit of local family support. The Court does not accept the proposition that the respondent mother’s parenting is untested given the periods of time that the Children were with her as the primary carer. The Court does not accept the proposition that because of other support or the return of the applicant father from overseas this meant that her parenting had not been tested. The Court does not accept that the Children are at any greater developmental risk with the respondent mother as opposed to the applicant father.
Ms H, the maternal grandmother was cross-examined. The Court does not regard the evidence of either the maternal or paternal grandmother as materially impacting or assisting the Court in determining the orders that should be made in the present case.
The issue of relocation and what was reasonably practical for the parents was addressed in MRR & GR [2010] HCA 4, relevantly at [6] – [9]: .
6. Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by "ensuring that [they] 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". Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child's best interests are listed in s 60CC.
7. Section 65D(1) provides that the Court4 may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child5. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
In this case, the Court makes findings that it is reasonably practical for the Children to spend equal time with each of the parents in Melbourne. The Court finds that it is reasonably practical for the applicant father to spend equal time with the Children in Melbourne and for the applicant father to live in Melbourne. In this regard, the Court takes into account the concession made by the applicant father in his evidence about the ability to seek opportunity to work with the ADF on compassionate grounds, albeit through the ADF in Melbourne. Whilst his answers suggested a short period of two years, because of credibility concerns, the Court does not place weight on that evidence or that it would not be reasonably practical for the applicant father to relocate or it is impractical for the applicant father to be in Melbourne to share equal time with the respondent mother.
The Court acknowledges that the Family Report Writer identified that it would be in the best interests of the Children to spend equal time with both parents. As it is reasonably practical for the applicant father to have equal time with the Children in Melbourne, the Court is satisfied that it is appropriate to make orders to facilitate that equal time arrangement. As the Children do have to move from Sydney, living with the respondent mother in Melbourne provides the greatest stability to the Children and the Court finds that would best promote the interests of the Children. The Court has already referred to the reasons of the applicant father wanting to relocate in terms of his ADF stability, but that reason does not identify the reality that it is reasonably practical for the applicant father to relocate to Melbourne and diminishes the weight to be placed on his wish to relocate with Children to City C.
The Court has identified the competing proposals and it is the case that if the Children live with the applicant father in City C that would mean that his role as a primary carer would continue to the advantage of the Children. It would mean that the applicant father would have the benefit of his relatives nearby and a potential diminished risk of posting elsewhere or redeployment. Nonetheless, inherent in those advantages are the obvious disadvantage of the risk of deployment or relocation which, because of the special needs, in particular, of X, would not be in the best interests of the Children. Further, those risks of redeployment or posting relocation provide a level of instability that is not consistent with the recommendations of the Family Report Writer. The proposal that the Children move to live with the respondent mother in Melbourne in the context of the advantages, provides a level of stability, not just in relation to the treatment of X’s special needs but, also, in relation to his education and the Children’s ongoing relationship and significant time and meaningful relationship with the respondent mother, as well as having support family and cousins, some of whom will be at the school which X will be attending, which will be to his advantage.
The disadvantage is that the applicant father does not get the benefit of his redeployment to the Suburb K base and must take steps to seek compassionate posting or posting to Melbourne within the ADF. There is a risk of employment instability in that regard. Those disadvantages do not give rise to the best interests of the Children being that they should relocate with the applicant father to City C.
For the reasons the Court has given, it is not reasonably practical for the respondent mother to relocate to or live in City C. It is in the best interests of the Children to have their parents living in Melbourne where they can spend equal time with each parent. Balancing out those disadvantages and advantages to which the Court has referred and, in particular, the special needs of X, greater weight must be placed on the stability that will be provided for the Children living with the respondent mother in Melbourne. That stability also is one of stability of treatment in relation to the special needs of X and in relation to his education and significant equal parental time.
Having made findings in relation to the s 60CC of the Act factors to which the Court has referred, the Court is satisfied that this is a case where equal time should be spent with both parents and that equal time is in the best interests of the Children. For the reasons already identified, the Court is satisfied that the proposed arrangements of equal time are reasonably practicable. The Court has taken into account that the applicant father’s freedom of movement is already restricted whilst employed within the ADF.
Referring to s 65DAA of the Act, the Court is satisfied that the Children should have equal time with each of the parents as that would be in the best interests of the Children. The Court finds that it is reasonably practicable for both parents to do so in Melbourne. Accordingly, the Court finds that it is reasonably practicable for the Children to spend equal time with each of the parents in relation to s 65DAA(1)(b) of the Act.
In relation to s 65DAA(5) of the Act, the Court has taken into account that the respondent mother has a location in Melbourne and with steps taken by the applicant father to seek compassionate posting when the Children are going to B School, is satisfied that the parents will not live significantly apart from each other at a distance that will make equal time parenting not reasonably practicable. The Court has taken into account that both parents have current and future capacity to implement the arrangement and finds that the applicant father does have such a capacity to implement an arrangement for equal time in Melbourne and that it is both reasonable and practicable for him to do so. The Court is satisfied that the parties have a capacity to communicate with each other and resolve difficulties if they arise with the Children living with the respondent mother in Melbourne and having equal time.
The Court is satisfied that the impact of the proposed arrangement of equal time in Melbourne would have on the Children is to provide the level of stability and certainty that would be in both their best interests and, in particular, be of significance for the special needs of X. The Court is entitled to take into account other matters as the Court considers relevant in relation to the proposed arrangement being reasonably practicable. In that regard, the Court has taken into account the implicit acknowledgement in the question put to the respondent mother that the applicant father agreed to relocate to Melbourne with the Children and that such a relocation was reasonably practicable. The Court also regards the handwritten note by the applicant father in relation to the fifty-fifty equal time in Melbourne as consistent with it being reasonably practicable for the applicant father to relocate to Melbourne. The Court has also had regard to the findings earlier made as to the ability of the applicant father to move to Melbourne since commencement of proceedings to date and the misleading of the Family Report Writer and manipulative/ controlling behaviour reflected in that misleading conduct by the applicant father.
Accordingly, the Court finds it would be in the best interests of the Children for the Children to live with the respondent mother and to spend equal time with the applicant father. The Court proposes to make orders to give effect to that and to do so as soon as reasonably practicable, which would be at the end of Term 1 which occurs on Friday 8 April. The Court finds that the respondent mother should pick the Children up from school in Sydney on Friday 8 April and they should spend the first half of the Term 1 Holidays with the respondent mother and then half the holidays with the applicant father and then alternatively week about during school terms.
The Court proposes to make appropriate orders in respect of school holidays, special days, medical issues, care and development. The Court does propose to make an order that the respondent mother undertake the Tuning into Kids program but sees no need for it to be the subject of some certification process by the ICL. As earlier found, the Court does not regard the failure of the respondent mother to have completed that course as adversely impacting on her ability to parent or in relation to her commitment to the Children. The Court will make non-denigration orders and orders to ensure no discussion of proceedings with the Children and no corporal punishment. The ICL will also be discharged.
The Court turns to the issue of the property to proceedings. There was no issue as to jurisdiction to make property orders in respect of the de facto relationship. The Court does not propose to set out in detail the provisions of s 90SM of the Act and the evidence in relation to the most recent version of the balance sheet. It is apparent that there is superannuation that the respondent mother has acquired in the order of about $24,000 and that the applicant father has acquired significant superannuation.
Exhibit 11, which is the email provided by the applicant father on 1 April 2022, provides the updated amounts of superannuation, being $278,111.76 and 101,404.35 respectively, coming to a total of $379,516.11 for the applicant father’s superannuation. There is an updated balance sheet that has been provided. The only real issue concerning property between the parties is the appropriate order as to the superannuation splitting order might be made in respect of the applicant father’s superannuation funds.
In Hickey & Hickey [2003] FamCA 395 (“Hickey & Hickey”)there was identified a four step approach in respect of property, albeit concerning s 79 of the Act which relevantly provided at [39]:
….Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
Hickey & Hickey also identified that the Court should make findings and identify the value of the property, liabilities and financial resources of the parties at the date of the hearing.
The Court finds that the existing property of the parties is as identified in the balance sheet and the amount and liabilities are set out below.
Ownership Description Applicants value Respondents value ASSETS 1 W Commonwealth Bank Account $158.86 $158.86 2 W Motor Vehicle 1 $18,000.00 $18,000.00 3 W Home Contents $5000.00 $5000.00 4 H Westpac Account #...52 (Closed) $NIL $ 5 H Westpac Account #...26 (closed on 05.10.21) $NIL $ 6 H Westpac Account #...83 $1250.52 $1250.52 7 H Westpac Account #...08 $152.25 $152.25 8 H Home Contents E$10,000.00 $ 9 H Motor Vehicle 2 E$34,000.00 $ 10 H Motor Vehicle 3 E$10,000.00 $14,638.83 Total $78,561.63 $39,048.21
LIABILITIES 11 W L Bank Loan – Motor Vehicle 1 $16,000.00 $16,000.00 12 W Commonwealth Bank Credit Card #...55 $812 $812 13 H N Finance Account #...58 $33,511.90 $33,511.90 14 H Credit card – O Company (Closed 25.06.20) $NIL $NIL 15 H Credit card – P Company (Closed 06.07.20) $NIL $NIL 16 H Q Finance $NIL $ Total $50,323.90 $50,323.90
FINANCIAL RESOURCES Ownership Description Applicants value Respondents value 19 H Tax Free Pension – Department of Veteran’s Affairs $100,766.13 $100,766.13 20 H Other Non-Taxable Payment – Department of Veteran’s Affairs $2883.67 $2883.67 Total $ NIL $ NIL
Firstly, The Court finds that the respondent mother is working but obviously, does not have the same current income at the moment as the applicant father in the ADF.
Secondly, the Court is required to assess the contributions between the parties. In that regard, it is of significance that there was a concession made by counsel on behalf of the applicant father that the split of superannuation should be 62.5 per cent to the parent with whom the Children are living and 37.5 per cent to the parent with whom the Children are not living. This concession reflects an implicit acknowledgement of equal contribution relevantly to the superannuation property, being the only property in issue.
That percentage is one said to apply after taking into account the superannuation by the respondent mother. There have been significant contributions as a homemaker by the respondent mother whilst the applicant father has been deployed overseas and as a carer in respect of the Children. It is correct, as was identified by counsel for the applicant father, that the applicant father’s accumulation of superannuation reflected an amount of some $50,000 prior to the commencement of the relationship and approximately a further $50,000 after the termination of the relationship. Be that as it may, in identifying the contributions that have been made in accordance with the provisions of s 90SM of the Act and the factors referred to therein, the Court is satisfied that the respondent mother has made a significant contribution during the period of the relationship to the superannuation property. The Court finds that it is just and equitable to make an order which the Court considers appropriate in relation to the superannuation property.
The inherent concession in the submission advanced in relation to the split recognises that a greater proportion of the superannuation should be given to the party with whom the Children live. In this case, the Court has found that the Children should live with the respondent mother. The Court is required to identify and assess the relevant factors under s 90SM of the Act. Because of the concession that is made, it is not necessary for the Court to address those factors in detail. It is, however, material in this case, that the applicant father received further financial resources as a result of compensation north of $100,000 which he has dissipated. Those funds are not made available for distribution. Under s 90SM of the Act, this is a material factor that warrants taking into account the receipt and dissipation of those funds and determine what property order is appropriate. The Court has not treated this as an add back but has taken the same into account under s 90SF(3)(r) of the Act. Given the limited issue and concession it is not necessary for the Court to address each of the matters to which the Court must give consideration under s 90SM(4) and s 90SF(3) of the Act. The Court has done so and is satisfied in all the circumstances that it is just and equitable to make a splitting orders.
Taking into account the contributions that have been made between the parties, the Court is satisfied that it is appropriate to adjust the applicant father’s superannuation, notwithstanding that of the respondent mother, in an amount of 60 per cent as a base amount which, in relation to account reference number …61 reflects an amount of $60,842.61 and in relation to account reference number …61 reflects an amount of $166,867.05 as the base amount.
The Court is satisfied that in all the circumstances of the case including the significant moneys received and dissipated by the applicant father that it is just and equitable to make a splitting order in the amounts identified.
The Court notes that these oral published reasons have only been able to be settled recently due to other substantial Court commitments including double and triple listings and that the parties had the benefit of the urgent published oral reasons for the orders made in so far as wishing to pursue appellate rights and that the Court also extended the time for appeal until the release of this settled transcript. There was an unfortunate interruption and suggested defiance in the face of the Court in the course of the making of orders at the end of the publishing of the oral reasons that should not have occurred.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 1 April 2022. Associate:
Dated: 13 May 2022
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