Thural & Thural

FAMILY COURT OF AUSTRALIA

THURAL & THURAL

[2008] FamCA 299

FAMILY LAW - CHILDREN - final parenting orders - relocation from Melbourne to New South Wales - disabled child - husband’s preparedness and capacity to provide practical support, assistance or respite care - relevance of husband’s bipolar diagnosis - relocation allowed.

FAMILY LAW - PROPERTY - final orders - pre-marriage financial contribution - post-separation contributions.

FAMILY LAW - SPOUSAL MAINTENANCE - differences in earning capacities - needs.

Family Law Act 1975 (Cth) ss 4, 60B(1), 60CC(1), 60CC(3), 60CC(4) and (4A) 61DA, 65DAA(1),(2) ,(3), (5), 68F(2), 72, 74, 75(2), (3) 79(4)
Family Law Amendment (Shared Parental responsibility) Act 2006

A & A: Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
Paskandy v Paskandy (1999) FLC 92-878
U & U (2002) FLC 93-112
Bolitho & Cohen (2005) FLC 93-224
Godfrey & Sanders [2007] FamCA 102
M & S (2007) FLC 93-313
Bryans & Franks-Bryans [2007] FamCA 377
Taylor & Barker (2007) FLC 93-345
Goode & Goode (2006) FLC 93-286
Bevan & Bevan (1995) FLC 92-600
Mitchell & Mitchell (1995) FLC 92-601
Goldrick & Goldrick [2007] FamCA 1260
Sampson & Hartnett [2007] FamCA 1365

HUSBAND:

Mr Thural

WIFE:

Mrs Thural

FILE NUMBER:

MLC

2464

2007

DATE DELIVERED:

1 May, 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J

HEARING DATE:

3, 4, 5 and 6 December, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND:

Ms. Smallwood

SOLICITOR FOR THE HUSBAND:

Pearsons

COUNSEL FOR THE WIFE:

Ms. Benjamin

SOLICITOR FOR THE WIFE:

JH Legal Pty. Ltd.

Orders

Parenting

That the wife be at liberty to relocate the residence of the children of the marriage J born … July, 2000 and M born … April, 2004 (“the children”) to the regional New South Wales area, on or after 3 January, 2008.

That the children live with the wife.

That the husband and wife have equal shared parental responsibility for the children.

That J spend time with the husband as follows :
(a)for the whole of the second school term holiday in each year;
(b)for one half of the first and third school term holidays in each year;
(c)from 10:00 am. on Christmas Day in 2007 until 6:00 pm. on 2 January, 2008;
(d)from 2008/2009, for one half of the summer school holidays at times to be agreed and failing agreement :
(i)the second half in 2008/2009; and
(ii)the first half in 2009/2010;
(e)for one extended weekend in regional New South Wales in each school term, and the husband be at liberty to arrange for J not to attend school on either Friday or Monday, upon 14 days notice to the wife;
(f)at such other times as are agreed between the parties.

That the time J spends with the husband pursuant to paragraphs (4)(a), (b), (c) and (d) hereof be in Melbourne or such other place as the husband determines PROVIDED THAT the obligation of the wife to contribute to a child’s fares (pursuant to paragraph (17) hereof) shall only apply if the child is to travel to Melbourne.

That the husband spend time with M as follows :
(a)from 10:00 am. to 6:00 pm. on Christmas Day in 2007;
(b)from 10:00 am. to 6:00 pm. on 29 December, 2007;
(c)from 10:00 am. to 6:00 pm. on 2 January, 2008;
(d)for no less than three days, from 10:00 am. to 6:00 pm. on each day, during a period that J spends time with the husband pursuant to paragraphs (4)(a), (b) and (d) hereof;
(e)from 10:00 am. to 6:00 pm. on one day in each period of time the husband has with J pursuant to paragraph (4)(e) hereof, and failing agreement, on the Saturday of the extended weekend;
(f)at such other times as are agreed.

That the time M spends with the husband pursuant to paragraph (6)(a), (b), (c) and (d) hereof be in Melbourne, unless the wife agrees otherwise.

That a reference to time spent in Melbourne in these orders does not preclude :
(a)the husband taking the children or either of them to his parents’ farm property; or
(b)the husband taking the children to another destination a reasonable distance from Melbourne PROVIDED THAT such destination is one which could normally be undertaken as a day trip from Melbourne (that is, one could arrive and return within a day).

That as soon as practicable after relocation to regional New South Wales, the wife do all things reasonably necessary to facilitate the husband and children in communicating (to the extent commensurate with their respective abilities) by telephone, email and webcam.

That the husband and the wife each keep the other informed of his or her residential address, telephone number and email address.

That as soon as practicable the wife advise the husband of the school in which she proposes to enrol J in regional New South Wales and authorise the principal of that school to discuss J’s enrolment, education and progress with the husband and to provide to the husband, at his expense (if any) :
(a)a copy of each school report for J;
(b)a copy of each school photo order form for J; and
(c)such other information as is routinely made available to parents.

That as soon as practicable the wife advise the husband of the school in which she proposes to enrol M in regional New South Wales and authorise the principal of that school to discuss M’s enrolment, education and progress with the husband and to provide to the husband, at his expense (if any):
(a)a copy of each school report for M
(b)a copy of each school photo order form for M; and
(c)such other information as is routinely made available to parents.

That the husband be at liberty to attend the school or schools attended by the children from time to time for events, activities and functions routinely attended by parents.

That each of the parties keep the other informed of any significant illness or accident experienced by a child when in his or her care and as soon as practicable provide the name and address of each relevant treating doctor or like professional to the other and authorise him or her to discuss with the other the child’s symptoms, treatment and prognosis.

That the wife keep the husband advised of each specialist medical practitioner consulted by M and authorise that medical practitioner to discuss M’s presentation, treatment and prognosis with him.

That in March, June, September and December 2008 the husband provide to the wife a written report from his then treating psychiatrist confirming that, in the opinion of the psychiatrist, the husband’s mood has remained stable, that there has been no evidence of any hypomanic symptoms or of depression and the husband remains compliant with medications prescribed by that psychiatrist.

That the costs of the children’s travel between regional New South Wales and Melbourne be shared equally between the husband and the wife and that each pay his or her own costs associated with such travel.

That the husband pay accommodation costs and all other costs associated with time spent with the children.

Property

That the parties forthwith do all things reasonably necessary to sell the real property situate at and known as C in the State of Victoria (“the real property”) altogether out of court and that the proceeds of sale be applied as follows :
(a)First, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding on the real property.
(b)Second, to pay the costs of discharging the mortgage affecting the real property (the court noting the evidence of the husband that no principal or interest is or will be due and payable); and
(c)Third, the balance to be divided in the proportions of :
(i)60% to the wife;
(ii)$12,000 to the wife; and
(iii)the balance to the husband.

That in the event any principal or interest is required to be paid to discharge the mortgage over the real property, then such sum be deducted from the sum otherwise due to the husband pursuant to paragraph (19)(c)(iii) hereof.

That by way of consequential arrangements to be made for the purpose of effecting the sale pursuant to paragraph (19) hereof, and in the absence of agreement to the contrary between the parties :
(a)The listing price for the real property shall be as agreed between the parties and if there is no agreement, shall be as advised by a valuer (who is also a practising real estate agent) appointed by the President of the Victorian Division of the Australian Property Institute.

(b)The real property shall be listed for sale by auction or private treaty by an agent agreed to by the parties and if there is no agreement, with the agent nominated to advise the value pursuant to the preceding sub-paragraph, and if the parties are unable to agree as to whether the property should be listed for sale by private treaty or by auction, the agent so nominated shall determine the issue.

(c)In the event the real property has not been sold within four months of this date the husband and wife shall do all such acts and sign all such documents to procure a sale by public auction of the real property without reserve, such auction to take place within a further period of two months by an agent to be agreed and failing agreement, to be nominated by the wife.

(d)The husband shall have the conduct of the sale but shall keep the wife informed of all relevant matters and the wife (by herself or through her solicitors) be at liberty to speak with the agent and be kept informed in respect of all arrangements, offers and other relevant matters.

That pending the completion of the sale :
(a)The wife have the sole right to occupy the real property until she leaves for regional New South Wales and during such right of occupation :
(i)the wife pay contents insurance and utilities; and
(ii)the parties be equally responsible for the payment of rates and house insurance.

(b)That once the wife has left for regional New South Wales the parties be equally responsible for the payment of rates, insurance, and other outgoings as they fall due.

(c)The parties hold their respective interests in the real property upon trust pursuant to these orders.

(d)Neither party encumber the real property without the consent in writing of the other party.

That liberty be reserved to either party to apply with respect to the terms and conditions of the sale.

That paragraphs (25) to (28) inclusive of these orders are binding on the trustee of the Family Superannuation Fund (“the superannuation fund”).

That the base amount to be allocated to the wife out of the interest of the husband in the superannuation fund is such sum which, when added to the then current interest of the wife in the superannuation fund, will equal one-half of the total superannuation fund balance as at the operative date.

That paragraph (25) has effect from the operative date.

That the operative date for the purpose of these orders is the fourth business day after the day on which a sealed copy of these orders is served on the trustee of the superannuation fund.

That the wife shall within fourteen days of becoming entitled to receive a superannuation benefit from the superannuation fund, provide to the superannuation fund all such forms as shall be necessary to enable it to determine the nature and quantum of her entitlement and any other related information it may reasonably require.

That there be liberty to apply to each party and the trustee in relation to the implementation of the orders affecting the superannuation fund.

That the husband by himself, his agents and servants be and is hereby restrained from doing any act which will prevent the wife, her heirs, executors, administrators or nominees from receiving the benefit of the superannuation fund to which the wife is entitled pursuant to these orders.

That the husband forthwith do all things and sign all necessary documents as required to transfer to the wife the 2000 Commodore station wagon which is in the wife’s possession.

That the husband retain for his sole use and benefit the 1992 EB Falcon motor vehicle currently in his possession.

That unless otherwise specified in these orders :
(a)each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for the payment out of such entitlements; and the chattels in the real property are deemed to be in the possession of the wife ;

(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

That the husband pay to the wife spousal maintenance by one lump sum payment of $12,000 (representing two years maintenance at $125 per week, discounted by 7.5% and rounded) and such sum be paid as provided in paragraph (19)(c)(ii) hereof.

That the period in which a party may file a Notice of Appeal is extended to one month after the day on which reasons for judgment are published.

That all extant applications be otherwise dismissed.

That these proceedings be removed from the List of matters awaiting finalisation.

That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym THURAL & THURAL is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2464 of 2007

MR THURAL

Husband

And

MRS THURAL

Wife

REASONS FOR JUDGMENT

The parties married in September 1999 and separated in late 2005. They have two children. J was born in July, 2000. He is a friendly, intelligent and mature boy. He started school in January 2006, soon after his parents’ separation.

M was born in April, 2004. From an early age it was apparent that M experienced a number of physical, emotional and intellectual problems. M’s problems include global developmental delay, tracheomalacia with cystic lesions, hypotonia, macrocephaly, sleep apnoea, a persistent cough and episodes of breath-holding attacks. She is autistic. In addition to these chronic, long term conditions she has significant food and dermatological allergies and grapples with more routine childhood problems, such as ear infections, viral infections and respiratory infections. She requires very high levels of care, supervision and therapeutic intervention and is assisted by a team of specialists including a general paediatrician, a dermatologist, an ear nose and throat specialist, a paediatrician specialising in children with handicaps, a neurologist, a paediatric gastroenterologist and a paediatric neurosurgeon.

I will not summarise the evidence of the experts, as it was not in issue. What their reports show is that the myriad professionals who work with M provide a network of care, information and advice. Various medical, therapeutic and educational interventions consume much of the wife’s life and impact on her capacity to undertake paid work, as she must cancel appointments if M is sick or needs urgent specialist attention.

M was about eighteen months old when the parties separated; J was five. The children stayed with the wife in the former matrimonial home. After separation, M was diagnosed with autism. After separation, the husband was diagnosed with bipolar disorder, in the context of two florid episodes, and two periods of hospitalisation. The children’s time with their father since separation has been affected by a number of factors, including his illness and M’s disabilities.

The wife sought to relocate with the children from Melbourne to regional New South Wales, to be close to her family and where she has an offer of flexible employment. The husband opposed that move; he sought that the children remain in Melbourne, in the wife’s primary care, and spend time with him. The wife made it clear she would never leave her children; if unsuccessful, she sought that the children live with her in Melbourne, and spend time with their father here. Also before the court for determination were competing applications for final property orders, and the wife’s applications for spousal maintenance and relocation expenses.

On 18 December, 2007 I made final orders in respect of all applications and advised that a judgment would be published later. This is that judgment. The period in which the parties could file an appeal was extended to one month from the date of the judgment.

EVIDENCE

Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.

The husband relied on affidavits sworn by him on 7 May, 2007, 23 May, 2007 and 29 November, 2007, together with a questionnaire filed on 26 October, 2007 and a financial statement sworn on 29 November, 2007. He also relied on an affidavit sworn by his father on 14 June, 2007 and an affidavit sworn by his treating psychiatrist, Dr. M, on 15 May, 2007.

The husband, his father and Dr. M were cross-examined.

The wife relied upon affidavits sworn by her on 15 May, 2007, 20 June, 2007 and 26 November, 2007, a questionnaire filed on 25 October, 2007 and a financial statement sworn on 26 November, 2007. She relied on affidavits sworn by the following deponents :
·Ms D, who is an early education teacher employed at H Developmental School, and M’s teacher there (sworn 29 June, 2007);
·Ms P who is the wife’s younger sister (sworn 27 August, 2007);
·Ms C, a friend of the wife (sworn 22 August, 2007);
·The wife’s mother (sworn 24 August, 2007);
·Ms W, a friend of the wife (sworn 23 November, 2007).

The wife and Ms. W were cross-examined.

Pursuant to an order, the wife filed a number of reports by medical practitioners and other experts involved in M’s care, as follows :
·Dr. H is a general practitioner who has been the wife’s doctor for many years and M’s doctor since her birth (report dated 20 November, 2007);
·Dr. G is a paediatrician (report dated 16 November, 2007).
·Dr. L is a consultant paediatrician specialising in paediatric gastroenterology and nutrition (report dated 24 July, 2006);
·Dr. A is a respiratory and sleep paediatrician in the Department of Respiratory and Sleep Medicine at Monash Medical Centre (report dated 21 November, 2007);
·Dr. J is a consultant clinical geneticist at Victorian Clinical Genetic Services (report dated 15 November, 2007);
·Ms R is a speech and language pathologist, employed by H Developmental School (report dated 20 November, 2007);
·Ms. F is an occupational therapist employed at D Developmental School (report dated 14 November, 2007);
·Ms. T is a physiotherapist employed at D Development School (report dated 20 November, 2007);
·Ms. G is the executive officer of Autism Victoria (report dated 26 July, 2007;
·Ms. K is the manager of C Children’s Centre (report dated 19 November, 2007);

Of these experts, only Dr. G was required for cross-examination and the other reports were admitted into evidence.

Also before the court was a family report prepared by Mr Y, a psychologist, dated 10 September, 2007. Mr. Y was cross-examined.

Counsel for the husband submitted that the wife’s demeanour was one of resentment and anger. That is not consistent with my perception of her. Certainly, the husband’s demeanour was more flat than that of the wife and, on occasions, he seemed to struggle to understand questions. His memory was not good; often he seemed vague and his evidence was, at times, disconnected. The wife’s evidence (given in December 2007) was that not since April in the previous year had she had a proper conversation with the husband when he took in what she was saying. That assessment was not inconsistent with his presentation in the witness box. In my judgment the wife presented as stressed and, on occasions, frustrated. However, I am satisfied she did her best to tell the truth and I have more confidence in the accuracy of her recollection of events than that of the husband.

I have no hesitation in preferring the wife’s account of the parties’ married life, and events after separation, to that of the husband. What was markedly absent in the husband’s evidence was empathy towards the wife and towards both of his children, but particularly M. I cannot say if this is an aspect of his illness which, on the evidence adduced by him, is presently well managed. I can say that he demonstrated little capacity to put himself in the shoes of others and that many of his actions after separation, and his proposals for the children, were explicable only as the actions and proposals of a man with a solipsistic focus on his own desires and interests. I have little confidence in his capacity for objective recollection.

In final submissions, counsel for the husband criticised Mr. Y’s evidence as “somewhat casual” and did not accept his assessment of M’s relationship with her father. To the contrary, I found Mr. Y’s evidence to be insightful, considered and cogent and I place weight on it.

Notwithstanding his criticism of Mr. Y, the parenting orders the husband proposed at the end of the trial recognised that M’s situation is different to that of J. His counsel submitted that the husband saw the orders he then proposed as a beginning. The husband hoped to develop more time with M. He proposed daytime contact only, and it was his counsel’s submission that the fresh proposal was made as a result of hearing Mr. Y’s evidence. In those circumstances, much of the criticism seems ill-based.

CHRONOLOGY

The wife moved to Melbourne from regional New South Wales in the winter of 1998. She met the husband in May 1999. After a whirlwind courtship, they announced their engagement some two weeks later, and married in September, 1999. In these circumstances, the wife’s evidence that the man to whom she found herself married was very different to the man to whom she became engaged, might be taken with a grain of salt, were it not consistent with the husband’s self-assessment, retrospective but genuine, that at the time he met the wife he was experiencing a euphoric episode, a benign manifestation of the mental illness which manifested later in florid hypomanic episodes.

After marriage the parties moved to a property the husband owned in C.

The wife became pregnant during the honeymoon and J was born in July, 2000. In reality ill-matched, the parties struggled to make their marriage work. Without family support or friends in Melbourne, the wife initially proposed, then begged, that they move to regional New South Wales where she would have the support of her family and friends, a proposal the husband considered, but rejected. M was born in April, 2004, and her significant disabilities put additional stress on a vulnerable marriage.

The husband’s parents live on a farm about an hour and a quarter hours drive from Melbourne. A sister and a brother live in Melbourne. His family probably did their best to support the couple but chose to ignore signs of the husband’s psychiatric distress, repeating a pattern of response (acknowledged by the husband’s father) of dealing only with critical manifestations of psychiatric illness in the husband’s father and, possibly, sister, and just soldiering on.

The husband is a professional and during the marriage he worked hard in his profession, and was the principal bread winner. He played a lot of cricket and had a significant involvement at the cricket club, and in coaching juniors. There is no doubt that he loves his children. Prior to separation he enjoyed a good relationship with J, but struggled to acknowledge the extent of M’s disabilities and saw the mother as over-protective and hyper-vigilant. His own evidence was that prior to separation he had been to only two medical appointments for M. When the parties separated, the husband proposed that the wife return to fulltime paid work and put M into fulltime care, demonstrating an astonishing lack of insight into M’s condition.

The wife works in beauty services and has maintained her skills in that area, working on a casual part-time basis for third parties and seeing some clients at home.

In the last months of the marriage, the wife became increasingly concerned about the husband’s behaviour, concerns not shared by the husband or members of his family. After separation he moved to a flat owned by his mother in the inner suburbs, which he shared with another man (a fellow cricketer) at weekends. He did not seek to have the children there. Between separation and April 2006 he saw the children at the former matrimonial home, by arrangement with the wife. She cooked for all of them. He took the children for occasional visits to his parents’ farm. From late April 2006 the husband took the children to his flat on occasions (the cricket season had ended and he was the sole occupant) but spent more time with them at the farm with his parents.

On 19 June the husband arrived at the wife’s home at 9:30 am., in a state of euphoria. The children were being cared for elsewhere. The husband was very emotional; he spoke of dedicating his life to making the wife and children happy. The wife and children were flying to regional New South Wales for a short visit that day. The husband left to pick up the children but returned to the wife’s home three times, as he could not remember where to find J’s friend’s house. After finally picking up J, he drove the wife and children to the airport. The wife’s evidence of what occurred then is as follows :
30.. . . After he finally picked up [J], [the husband] drove myself and the children to the airport as I had planned a short trip to [regional new South Wales]. In the car on the way there, [the husband] said to me that he “knew something big and that he would be killed once it was revealed”. He said that it had something to do with his work. he then said he was glad we were going to [regional New South Wales] as we would be safe there.
31.As we were about to board the plane [the husband] become (sic) very agitated and anxious about the people around us. [M] picked up a travel brochure and handed it to [the husband], then when she grabbed it back off [the husband], and he began to scream and curse at [M]. He said “Give me back my fucking dream you fucking little bitch”. [M] became distraught and was screaming. I tried to calm [the husband] down but he wouldn’t.
32.[The husband] then grabbed [J] and refused to let him go. [J] became extremely scared and started crying. By this time bystanders were trying to help me with the children. [The husband] eventually yelled out ‘fuck you all’ and left. I calmed the children down as best I could and we boarded the plane.
In the affidavit sworn on 23 May, 2007, the husband acknowledged that the incident occurred as described by the wife. He attributed it to problems arising from the marriage breakdown and sleep deprivation as part of a Landmark course he undertook between 16 and 18 June, 2006.

The wife subsequently learned that the husband had a hypomanic episode later in the day on which she left for regional New South Wales, when visiting his grandfather in hospital. Police were called to the hospital. They took the husband to the high dependency unit at the La Trobe Regional Hospital in Traralgon, where he remained for four days.

Unsurprisingly, the wife became increasingly concerned at the potential risk to the children if alone with the husband. She reluctantly agreed to allow him to spend time with the children on the weekend commencing on 21 July, 2006. This was the first contact after his first manic episode. Ringing him on his mobile the wife discovered he was on his way to visit his parents for the weekend, and that he (rather than his brother) was driving. It is probable the husband told the wife that his brother was going to meet him and drive with him to the farm. The husband’s account (in the affidavit sworn 7 May, 2007) is as follows :
13.That on the 22 July 2006 I had the children with me and was visiting my father and mother at [their farm]. We stayed overnight and on Saturday morning, after having been in the same room as [J] and [M], I was preventing [J] from getting out of bed. This did result in [J] having bruises and being upset. My brother […] had been there overnight as well and he heard the cry and came into the room. My mother, sensibly and voluntarily called the police. The police arrived some 15 minutes later however before then I had allowed [J] to leave the bed. My family were supporting me at the time. I dressed myself. When the police arrived I went outside to where the Police were gathered. My brother […] requested that I be taken by the police so that I could receive treatment. I refused. Three police officers forcibly put me into the vehicle, which the children were completely away from as the situation was occurring, and I was then taken for treatment to […] Hospital initially and then transferred to Latrobe Regional Hospital where I was then hospitalised for a period of ten days. The Wife had been informed on the previous night by my Father that I was not well and the Wife arrived at the […] Hospital (where I had been transferred) shortly thereafter as did my family members, [brother] and my Father.

This account leaves out a number of important matters. The wife, increasingly concerned about the husband’s stability, tried to ring the husband’s parents at their farm. What she encountered was far from a sympathetic response; she was told not to call any more. At about 4:00 pm. on Saturday 22 July, 2006, the husband’s father rang her and asked if she would spend the following night at their home. She left home at 6:00 am. on Sunday, so she would be there when the children woke up. Only when she arrived was she told by the husband’s father that the husband had been admitted to Hospital the previous day, after a second hypomanic episode.

The wife immediately attended the hospital and spoke with psychiatrists and police there. The husband’s father and brother confirmed that the husband’s brother had caught the husband pinning J down, and refusing to let him go. J told his mother that “Daddy held me down for hours and hours and would not let me go. I was crying and daddy was laughing in my face.” A police officer was injured in the course of forcibly removing the husband from his parents’ farm, suffering a fractured patella. The husband was transferred to La Trobe Regional Hospital, where (according to his evidence) he was hospitalised for a period of ten days.

The husband agreed that he took with him to the farm on that occasion none of the nappies, swabs or creams essential for M’s care. When he arrived at his parents’ farm, his mother went out and bought the necessary items.

On the advice of police, the wife applied for an intervention order to protect herself and the children. I accept her evidence that police advised that without such an order, they would be unable to intervene and remove the children from the husband’s care, even if he were psychiatrically unwell and dangerous. The husband contested the application insofar as it related to the children but on 11 August, 2006 an order was made in favour of the wife and children, to last until 20 October, 2007.

The order allowed the husband to spend time with the children, with the permission of the wife, and I am satisfied the wife was happy for the husband to see the children, so long as his father or another adult was present. He and his family interpreted this as a refusal to allow contact and refused to even come to her home when invited by her, alleging that they were being set up for removal by police.

The husband conceded in the witness box that in the period between the two manic episodes the wife was continually ringing his doctors and doing what she could to be supportive. She included him in J’s birthday celebrations in July 2006 and encouraged him to walk to J’s school to pick him up at the end of the school day. When he was in hospital, she got a key to his flat from his parents, and secured and cleaned out his flat. She invited him to eat with her and the children, and she rang every day to check on him. Notwithstanding that, he agreed that he swore, in May 2007, that she had not provided him with any support over the previous eighteen months.

Eventually the husband started seeing the children again, taking J to swimming on Wednesday evenings (as he had done before) and seeing them between 10:00 am. and 6:00 pm. on each Sunday.

It should be said that the problems the parties experienced in making safe arrangements for the children were compounded by what I am satisfied was the husband’s punitive focus on financial matters. Assessed to pay child support, he unilaterally imposed a complicated formula, pursuant to which he deducted from the assessed figure sums he attributed to, variously, rent for the former matrimonial home or rates paid on it, health insurance paid by him, amounts he contributed to the children’s care and education, and a figure for a car. He said that he had worked out that the wife’s “ownership” of the house was only one-third, so there needed to be “a deduction for rent because I own two-thirds of the house and I had to pay my mother $90 per week rent”. He said the fact the children lived in the home “didn’t come into it”. The wife’s evidence, which I accept, was that he told her she would get $180,000 as a settlement, being one-third of the estimated value of the house, and that was “$30,000 per annum just for living with me”.

On 8 May, 2007 the husband filed an application seeking to restrain the wife from removing the children from Victoria and that she and the children remain living in the C home. He sought that the children live with their mother and spend time with him on each alternate weekend (for two nights), each other weekend (for one night), half school holidays, three hours on each Monday and overnight on each Wednesday (initially with J, and including M once she started school). In a response filed on 15 May, 2007 the wife sought that the children live with her, that she be permitted to relocate their residence to regional New South Wales and that they spend time with their father as agreed.

On 23 May, 2007 orders were made in the Federal Magistrates’ Court, by consent, providing for the children to live with the wife until further order and to spend time with the husband on each Sunday, between 10:00 am. and 6:00 pm. The husband was to continue to attend upon his treating psychiatrist and comply with the prescribed medication. The case was transferred to this court.

When the parties saw Mr. Y in August 2007 the husband was keen to immediately commence overnight time with both children. Mr. Y reported of the husband as follows :
4.1[The husband] presented at interview as a direct and candid man who spoke of the effective treatment of his ‘bipolar disorder … I’m seeing Dr. [M] in […] … I haven’t had any problems since the last episode … I’m on lithium and Olazapine’. His mood, concentration and engagement at interview showed no signs of dysphoria nor of undue animation. He gave every indication at interview of having come well down the path of the stable management of his condition and I can only surmise that his condition will remain stable if he stays engaged with his treating practitioner and compliant with his medication regime.
4.2[The husband] spoke of having returned to work and of steps he had taken to normalise and reintegrate other components of his life. It is precisely in this context that he seeks to strengthen the interaction he has with [J] and [M]. I say this in no unkind way, but I felt the emphasis in his conversation lay on the importance of those interactions to him.
4.3[The husband] said he was happy to ‘do overnights with both the kids’ immediately, and that he would like to move from ‘Saturday lunch until Sunday evening for a few weeks … to all Saturday and Sunday and then Friday afternoon till Sunday night … and we could so an overnight in the middle of the other week’.
4.4Unless my understanding of the nature of [M’s] condition is very wrong, or [the wife’s] description of some of her needs is grossly exaggerated, [the husband’s] easy assumption that her visits to him could fit immediately into such a pattern is surprising and may need a little revision. I told him at the time that I thought his account that [M] had ‘a little muscle weakness … but she’s got reasonable language recognition … and (in response to my question) average articulation’ might be ‘understating things a bit’.
4.5[The husband] struck me as a man, genuine in his desire to play an integral role in his children’s care, welfare and development, and yet a little disinclined to ‘hasten slowly’ in his re-engagement with his son and too ready to assume his own immediate capacity to provide for his daughter’s specialist needs.

In relation to the wife, Mr. Y reported :
5.1[The wife] is a friendly and frank woman whose principle concern throughout our discussion was on the needs of [J] and [M]: [J’s] to rebuild a good relationship with his father, gradually because of his experiences when his father’s illness had been untreated; and [M’s] to have the sort of attentive and vigilant care her various disabilities need: ‘She’s got allergic dermatitis … she’s very reactive to certain foods and contact products … I spend all week battling it, and it gets messed up in just a day if [the husband] won’t change what he does … she’s got toddler gasping syndrome … I’ve got a report from Day Care … and she always needs someone around with CPR skills’.
5.2She told me: ‘[J] wants to see his Dad … and I want him to … I’m just not sure about unsupervised … [the husband’s] doing things properly now … but don’t be fooled: he’s not himself today – it all seems OK but he can change really quickly … and I can’t completely rely on his family … his Dad and uncle have psych problems too’.
5.3These perceptions also underpin her desire to relocate: ‘I can’t get respite … I need to go to [regional New South Wales] where my family are 10 minutes away … I’ve got poly-viral arthritis myself … I just need their support’.
5.4[The wife] told me that she understood that this would cause some difficulties for the children’s relationships with their father, but that she was prepared to make very definite efforts to overcome these: ‘I want to go in January so I can find my own accommodation and get [J] settled for the new school year … [J] can come down for half of all the school holidays and he can see [M] when I bring her down … I’ll do that 6 or 8 times a year and I’ll make sure he spends the day with her … he can fly up anytime he likes and I’ll make sure he sees them’.
5.5I had no sense of any disingenuity in what [the wife] said about these matters, merely of a genuine desire for close personal and practical support in her routine care of the children.

In his report Mr. Y supported a relocation to regional New South Wales in January 2008, expressing the opinion that the move would be in J and M’s best interests. He summarised the reasons for his opinion in these terms:
8.2.1I consider that the continuing ability of [the wife] to provide stable and secure care for both [J] and [M] and the intensive and specialist care for [M] that [M] needs is itself likely to be best secured by allowing [the wife] routine access to the extended family networks she believes, reasonably, can assist her in these tasks;
8.2.2[J’s] relationship with his father has recovered sufficiently and is once again robust enough, in my view, to be able to be maintained and strengthened with the type of time it will be likely to be possible for him to spend with him on holidays;
8.2.3[M’s] disabilities make it difficult to predict the level of engagement she will eventually have other than with her primary carer. My observations suggest she already has some sense of being in a family group with her mother and brother, some recognition of her father and some ease in his presence. [The wife’s] proposal that she would bring [M] to see her father on 6 – 8 occasions a year seem to me, in all the circumstances, a reasonable way of facilitating further engagement between them.

LEGAL PRINCIPLES

The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).

When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

In A & A: Relocation Approach (2000) FLC 93-035 the Full Court considered the correct approach to parenting cases involving a relocation proposal under the then law. At 87,544, the Full Court noted two binding principles of law established by a majority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852. The first was that in determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child remain the paramount consideration, but not the sole consideration. The second is that in determining such a case, a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of the child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances.

The Full Court then considered relevant dicta in AMS v AIF; AIF v AMS and (at 87,545) agreed with a formulation expressed in Paskandy v Paskandy (1999) FLC 92-878 where, at paragraph 46, the Full Court held that in determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and the further or separate issue as to whether the relocation should be “permitted”.

The Full Court went on to reformulate an approach described at paragraph 52 of Paskandy v Paskandy, finding (at 87,547) that in a relocation case the object and principles of s.60B provide guidance to a court’s obligation to consider the matters in s.68F(2) that arise in the context of the particular case. If one applies that approach to the present law, the reference in s.68F(2) would need to be read as a reference to the primary and additional considerations set out in s.60CC.

Having made those findings, the Full Court in A & A: Relocation Approach suggested a number of practical steps that should be followed by a court in determining such a case. First, the court should identify the relevant competing proposals. Second, for each relevant s.68F factor the court should set out the relevant evidence and the submissions, with particular attention on how each proposal is said to have advantages and/or disadvantages and make findings on each factor as the court thinks fit, having regard to s.60B. Third, on the basis of the prior steps, the court should analyse, determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration. The Full Court went on to elaborate further as to the second and third stages in that process. At 87,551 to 87,553 the Full Court then brought together, in summary form, the most significant points it had made, finding that in determining a relocation case :
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and further or separate issue as to whether the relocation should be “permitted”.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
·It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(1) of that subsection.
·The object and principles of s 60B provide guidance to a court’s obligation to consider the matters in a 68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1.        A court will identify the relevant competing proposals;
2.For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court things fit having regard to s 60B;
·    As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law reform Act 1995 is no longer an accurate statement of the law.
·    The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·    Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues :
a) None of the parties bears an onus:
·       In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party’s right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under s 92 of the Constitution, where applicable.
·       In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

The High Court again considered the issue in U & U [2002] FLC 93-112, reaffirming that the “overarching issue” in relocation was to ensure that any parenting order was in the best interest of the child. The High Court (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ: Gaudron and Kirby JJ dissenting) confirmed that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s.68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interest of the child.

In Bolitho & Cohen (2005) FLC 93-224 the Full Court (Bryant CJ, May and Boland JJ) noted (at 79,699), that it discerned that the decision in U v U had ameliorated the somewhat rigid and/or formulaic suggested approach set out in A & A: Relocation Approach.
Since the operation of the amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006, the Full Court and trial judges have grappled with the question of the effect of those amendments on the existing law in this area. In Godfrey & Sanders [2007] FamCA 102 Kay J. considered this question in the context of an appeal from a decision of a Federal Magistrate, and adopted the reasoning of Dessau J. in M & S (2007) FLC 93-313. Strickland J. discussed the question in Bryans & Franks-Bryans [2007] FamCA 377.

In Taylor & Barker (2007) FLC 93-345 the Full Court considered the amended provisions, again in the context of an appeal from a decision of a Federal Magistrate in a relocation case. In particular, the Full Court considered the relevance of the decision in Goode & Goode (2006) FLC 93-286. At 81,911 the Full Court set out that part of the judgment in Goode & Goode which it considered relevant, as follows :
[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 Full Court held (at para.60) that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s.60CC matters but that such a proposal now also needs to be considered in the context of s.65DAA. The Full Court found it “only logical” that the court make findings about the relevant primary and additional considerations in s.60CC before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.

The Full Court then went on to consider the construction of s.65DAA(1) and s.65DAA(2). Both of these provisions are posited on the court making a parenting order that a child’s parents are to have equal shared parental responsibility for the child. Pursuant to s.65DAA(1) the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable and (sub-paragraph 1(c)) if it is, consider making an order to provide for the child to spend equal time with each of the parents. If in those circumstances the court does not make an order for equal time with each of the parents, then pursuant to s.65DAA(2) the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child, and is reasonably practicable, and if it is (sub-paragraph 2(d)), consider making an order to provide for the child to spend substantial and significant time with each of the parents.

The Full Court held (at 81,915) that it is only necessary to consider whether it would be reasonably practicable for the child to spend equal time, or substantial and significant time (as the case may be), if it has already concluded that it would be in the child’s best interests to spend equal time, or substantial and significant time. That is, the court must first reach a conclusion based on a determination of the child’s best interests. If an order for equal time, or substantial and significant time (as the case may be) is not found to be in the child’s best interests, the court need not go on to consider whether such an order would be reasonably practicable.

What is not adverted to in that analysis, is that when considering where a child’s best interests lie (in relation to any issue) the court must, pursuant to s.60CC(3)(e) consider :
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

In fulfilling that obligation, the court is effectively assessing the reasonable practicability of particular proposals, albeit without specific reference to equal time, or substantial and significant time.

The Full Court acknowledged, at 81,916 to 81,917, that such an approach is a divergence from the previously existing law, as follows :
[81] We acknowledge that his Honour's approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being "equal time" or "substantial and significant time"), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of "equal time" or of "substantial and significant time" if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was "reasonably practicable".
[82] We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.
[83] However consistently with what the Full Court said in Goode, the options of the child spending "equal time" or "substantial and significant time" with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an "equal time" or "substantial and significant time" arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend "equal time" or "substantial and significant time" with each parent.

It is unclear if by this the Full Court intended to overrule that part of the decision in A & A: Relocation Approach, which provided for each s.68F(2) factor to be considered in the light of the respective proposals before the court, one of which (in such a case) is a proposal to relocate. It is hard to see how a court can usefully determine where the best interests of a child lie without evaluating each proposal then before the court. Routinely, the proposals would be continuation of the status quo versus relocation, but that it not always the case.

In this case there are three proposals before the court. Each provides for the children to live with the wife and for the parties to have equal shared parental responsibility for them. The difference lies in the time the children are to spend with the husband. In the husband’s case, his proposal is premised on the children living in Melbourne. The wife’s primary proposal is premised on them living in regional New South Wales. Her secondary proposal, to apply only if unsuccessful in achieving her primary proposal, is based on the children remaining in Melbourne.

The Full Court also considered cases involving the relocation of a child’s residence in Goldrick & Goldrick [2007] FamCA 1260 and Sampson & Hartnett [2007] FamCA 1365. Although argued after Taylor & Barker was heard, judgment in Taylor & Barker had not been delivered when Goldrick & Goldrick was argued. Taylor & Barker was published on 19 October, 2007; Goldrick & Goldrick some six days later, on 25 October, 2007. The judicial process adumbrated in Taylor & Barker (in paragraphs 81 to 83) was not referred to in Goldrick & Goldrick, where the court, at paragraph 43, said :
(i)Though we recognise that, before the court comes to a final conclusion about parenting orders to be made, it must follow a sequence that emerges from the terms of s 61DA and 65DAA(1) and (2), we otherwise see no need, at least in this appeal, for us to attempt to restate, paraphrase or re-arrange the terms of Part VII.
(ii)However one chooses to argue that the other requirements of Part VII may be paraphrased, or that they are best considered in a particular order, even in a case where it is possible in practicality to order that a child spend “equal time” or “substantial and significant time” with each parent, and there are no critical impediments such as risk of physical or psychological harm, nothing in Part VII mandates that orders in one or other of those terms, be made. The ultimate decision as to the orders that are in the best interests of a child remains discretionary, subject to genuine consideration having been given to the options of “equal time” and/or “substantial and significant time” (as discussed in Goode at paragraph 64).

Judgment in Sampson & Hartnett was published on 22 November, 2007. Again, it was argued prior to delivery of the judgment in Taylor & Barker and as it turned on a different point, makes no reference to Taylor & Barker. Nothing in Sampson & Hartnett elucidates the conundrum inherent in paragraphs 81 to 83 of Taylor and Barker.

I will first assess the competing proposals by reference to the objects and principles and the s.60CC factors, then “balance” (to use the word of the majority in Taylor & Barker) the relocation proposal against options of equal time or of substantial and significant times, if either option has been found to be in the children’s best interests, and reasonably practicable. I will refer later to the practical and conceptual difficulties encountered when attempting to apply, literally, the process described by the Full Court in paragraphs 81 to 83 in Taylor & Barker.

PROPOSALS

The wife proposed that she and the children relocate to regional New South Wales. Her parents live in the family home in which she grew up and she has family in Sydney, nearby. Her mother has visited Melbourne regularly to assist but could provide ongoing daily support if they lived in close proximity, and the wife has confidence in her capacity to care for M and J. The wife could initially live with her parents and hoped to be in a position to buy a home in regional New South Wales from funds received by way of property settlement. It was her evidence that real property is cheaper in regional New South Wales than Melbourne.

The wife’s evidence was of being offered a position by a friend, Ms I, who runs a business in regional New South Wales. Ms. I is aware of M’s disabilities and the demands that accompany them and is happy to accommodate them. The wife would be paid an hourly rate of $23, inclusive of annual leave loading and superannuation.

The wife’s evidence was of having a number of longstanding friends in regional New South Wales, including Ms. C, who swore an affidavit. As the children have spent time in regional New South Wales, they are familiar with these friends.

The wife proposed that J attend B Public School and that M attend L Children’s Care Centre and the L Autistic School. M has been accepted at L Children’s Centre, subject to court permission to relocate. If living in regional New South Wales, the wife could access a range of services for M; Dr. G confirmed the parallel services which operate there. She proposed to continue to consult a number of specialists in Melbourne.

If allowed to relocate the children’s residence to regional New South Wales, the wife proposed that J spend the whole of one school term holiday period with the husband and one half of other term holidays and long summer holiday. If the husband were to travel to regional New South Wales, she proposed he spend time with J from Friday evening until Monday morning (or Tuesday morning if Monday were a public holiday) on giving seven days notice. She proposed that the husband spend time with M from 10:00 am. to 5:00 pm. (subject to medical appointments) on days when the wife and M were in Melbourne for medical specialist appointments and, were the husband in regional New South Wales, from 10:00 am. to 6:00 pm. on any day on which the husband was spending time with J. She also proposed communication by telephone, email and webcam.

If the wife and children were compelled to remain in Melbourne, the wife proposed that the husband spend time with J on each alternate weekend during school terms, for half of all school holidays and on special days. She proposed he spend time with M from 10:00 am. to 5:00 pm. on days during the school term when J was with his father, and from 10:00 am. to 6:00 pm. on a Saturday or Sunday in each month which did not coincide with J spending time with the husband.

The husband proposed that the children remain living with the wife in Melbourne and that he spend time with J on each alternate weekend, for two nights in the other week, for half of school holidays (with exceptions to enable the wife to spend the whole of the summer holiday in regional New South Wales each second year and a significant part of that holiday in regional New South Wales each other year) and for the July school holidays and on special days. He sought phone communication on Tuesdays, Thursdays and Sundays between 5:00 pm. and 5:30 pm. In relation to M he initially sought alternate weekend contact from 2:00 pm. Saturday until 6:00 pm. Sunday and from 10:00 am. to 6:00 pm. on each weekday during holidays, “with overnight on Saturday”. He also sought contact on special days. As noted, he amended his proposals relating to M in the course of final submissions.

Were the children to relocate to regional New South Wales, the husband sought that J spend time with him for half the first and third term holiday periods and the whole of the second term period, the whole of the Christmas school holidays in each alternate year, and the bulk of that period in each other year, and for one extended weekend in regional New South Wales in each school term. With M he sought contact for not less than three consecutive days during each term and Christmas holidays from 10:00 am. to 6:00 pm. (to coincide with periods J was with him) and “thereafter during each day at similar times whilst [M] remains in Melbourne”, plus one extended weekend in regional New South Wales in each term. He sought that the costs of the children’s travel be shared and that the parties pay the costs of their own travel. He proposed that in addition to these periods, he be at liberty to spend time with the children in regional New South Wales at his own expense, on giving fourteen days notice to the wife.

The husband saw no need whatsoever for the wife to relocate with the children to regional New South Wales. From his perspective, he and his family are available to provide all necessary support and respite care for M, the wife could continue to work as she has, and she could remain living in the former matrimonial home, albeit upon his terms and conditions which would preclude her living there if, for example, she formed an intimate relationship with another man.

In these circumstances I will first consider some of the evidence referable to the wife’s proposal to relocate and the husband’s opposing proposal so relevant findings can be taken into account when evaluating s.60CC factors.

In my judgment, it is reasonable for the wife to be sceptical about the likelihood of receiving reliable, caring and responsive assistance with M from the husband or members of his family, so long as she and the children remain in Melbourne.

The husband’s father was frank in his evidence of the reasons he withdrew from any relationship with the wife in September 2006, reasons which relate to what he perceived as two criticisms of members of his family. He complained that after the husband’s second manic episode, the wife rang and said that the husband and his sister were not good for each other, because they were elevating each other’s moods. He agreed that, at that time, the husband’s sister’s mood was, indeed, elevated. From his perspective, this was unsolicited criticism and he judged the wife harshly for offering it. Later, in September 2006, when the wife brought the children to a playground to spend time with the husband and his parents on his 41^st birthday, she asked the husband’s father if he would go to the husband’s psychiatrist with her, to explain that the husband was still sick. He told her that was not his role. He said that from that time and, from the time he swore an affidavit, “I didn’t really want to speak to her any more”.

The husband’s father agreed that neither he nor his wife had approached the wife since the intervention order hearing in August 2006, despite saying he was sure she did feel isolated in Melbourne. He agreed that the wife had told him to ring any time he wanted to come to see the children. Although he alleged that on the one occasion he rang to do so she called him an uncaring grandfather (which she denied) he nevertheless arranged the visit and attended on that occasion for one and a half hours.

It is probable the husband’s father misinterpreted a request made by the wife that month, construing an appeal for help as personal criticism, as he had earlier. I accept her evidence of saying words to the effect: “If you love your grandchildren, can you still be there on Sundays, as I don’t think [the husband] is well.” On the husband’s father’s construction, this was tantamount to calling him an uncaring grandfather. His own evidence was that once he found himself “at loggerheads with the wife”, he saw no sense in approaching her. Nothing in his evidence suggested a change of attitude. If the wife and children remain in Melbourne, the wife could expect no support or assistance from the husband’s father. I can say nothing of the views of the husband’s mother, save that – whatever they are – they have not ameliorated those of her husband.

It is not unusual for parents and family members to be partisan to one side of a dispute, but it reasonable for the wife to be sceptical about the support she is likely to receive from someone who spoke of her as the husband’s father did.

It is also reasonable for the wife to be sceptical about the preparedness, or the capacity, of members of the husband’s family to monitor the husband’s psychiatric health and intervene, even if the children are at risk. I am satisfied they ignored her accurate descriptions of his behaviour in the period after separation, refused to speak with her on the very day of his second hypomanic outburst, and waited until she got to the farm to tell her of that episode, which impacted directly and (accepting Mr. Y’s evidence) profoundly on J.

The husband’s father’s evidence was of a personal psychiatric episode in 1976 which resulted in his own hospitalisation, and a second episode about 18 months or two years later. He spoke of self-managing his condition and said his brother, too, has had such episodes. He agreed that after the husband was hospitalised on the first occasion in 2006 he (the husband’s father) was also hospitalised for two days; he said he spoke with his GP, a psychiatrist and his rector, and was put on anti-anxiety tablets for a fortnight or so. His evidence was that his wife too, was admitted to hospital for stress at that time. The management of his own health is a matter for the husband’s father. However, it is reasonable for the wife to have no confidence that the father’s parents would intervene and seek or recommend medical treatment for the husband, were his condition to deteriorate.

It is also reasonable for the wife to be sceptical about the willingness or capacity of the husband’s parents to properly supervise the children in their care, alone or when with the husband, or to intervene if the husband acts inappropriately. Some time after separation, the husband decided, based on advertising blurbs, that M could be cured by drinking Yakult. He brought the brochures to the wife, who made it very clear that M could not drink Yakult, as she is allergic to all dairy products. Notwithstanding that advice, the husband bought Yakult and took it with him when he visited his parents at the farm. The husband’s father had sufficient insight to query whether this was a good idea; after the event, he asked the wife about it, and his concerns were confirmed. Although he said he was pleased when the supply ran out, as the husband had been “pouring it down her throat”, he did nothing to stop the husband doing that while in his home, despite his legitimate concerns. Inevitably, M had an adverse response. This episode illustrates both the husband’s lack of understanding of M’s condition and the willingness of his parents to acquiesce in conduct of their son about which they harbour concerns.

Further, in the period in which the wife was content to arrange for the husband to see the children so long as one of his parents was present, the evidence supports a finding that the supervision of M was inadequate. I am satisfied that in April 2007, M fell off the step when with her father, and grazed her head. Asked about this, and shown a photo of the injury, the father’s evidence was “it’s six months ago – I don’t want to be dismissive, but I don’t remember”. He later said that if the wife said it had occurred, he was prepared to accept it. However, re-examined, the father resiled from that position, saying M never had an accident and he could not remember her falling off the back step and grazing her nose.

The husband’s father had a clear recollection of the incident and explained how it occurred, an explanation which corroborated the wife’s evidence of the need to physically hold M (for example, by the back of her T-shirt) when she is in certain positions, as the size of her head and her physical disabilities make her top heavy, and unstable. The husband’s father agreed he told the wife about the fall, when M was returned.

If the husband’s evidence when asked about this incident was attributable to poor memory, that is consistent with the wife’s evidence of the problems she observes him to have with memory and concentration. If it were attributable to an attempt to discredit her evidence (evidence referable to his understanding and care of M) it is consistent with her submission that he has not told the truth about many facts in issue.

In the same month, when the children were with the husband in the presence of his father, J reported to his mother that M went under the water in the bath. At this time the children were with the husband during the day. The husband agreed that the wife had asked him not to bath M, and that he had none of the creams and lotions that are used to wash her and treat her after a bath. Nevertheless, he decided to bath her. He left her in the bath with J while (on the version he told the court) he went to urinate. He agreed that his father was not in the bathroom and that he may have been sleeping on the couch. His account of what happened was that she “fell in the bath and got her hair wet”. I accept the wife’s evidence that when she raised this with him, he said he had left the room to cook dinner, and that when she challenged him about it, he said “I left her only a minute; get over it”. To leave a child with M’s disabilities in a bath, without adult supervision, is negligent parenting.

Incidents like these do not inspire confidence that the husband, or his father, genuinely understand M’s limitations and vulnerabilities.

I am satisfied that it is reasonable for the wife to be sceptical about the husband’s assurances of his availability to provide assistance, in times of crisis, or at times not of his choosing. I accept her evidence of asking him if he would attend her home on each weekday, over a two week period prior to Christmas in 2006, so that she could see clients in the evening in the part of the house set aside for her business activities. I accept as true her evidence of his failure to attend on any evening other than the Wednesday in the first week, Wednesday being the day on which he routinely spent time with the children in the late afternoon and early evening. The wife abandoned the arrangement in the second week, having made stop-gap arrangements with a neighbour when the husband failed to attend on any day other than the Wednesday in the first week.

That finding (that spending significant and substantial time with the husband would be reasonably practical if J and the husband live in Melbourne) requires the court to then consider making an order for the child to spend substantial and significant time with the father. The artificiality of this exercise is obvious; to consider the reasonable practicability of only one proposal cannot be consistent with a continuing focus on the best interests of the child.

Were J to move to regional New South Wales, it would be possible for him to spend substantial and significant periods of time with his father, but only if the husband were prepared to act to facilitate that. If the husband moved to regional New South Wales (as he told Dr. M he would in mid-2007) it would be as practical as it would be in Melbourne. Were he prepared to travel frequently to regional New South Wales, it would be reasonably practical.

The orders proposed by the wife and by the husband, if she and the children relocate, and the husband remains in Melbourne, would result in J spending significant periods of time with his father but almost all of it would be during holidays and on weekends. In those circumstances, the distance between the parents’ homes would make time during weekdays (in school terms) and on special days not reasonably practical.

The court must then determine if an order should be made for J to spend substantial and significant time with his father. I am satisfied it should not.

Assessing the children’s best interests at large (that is, in the context of all proposals) and taking into account all the evidence and submissions, I am satisfied that both J and M’s best interests will be served by allowing their relocation to regional New South Wales. It was never suggested that the children should be separated and it would be contrary to their best interests to do that. The factors which support the wife’s application to relocate are compelling. She is the children’s primary carer and their residence with her is not in issue. The demands of M’s care are very difficult for her to manage in Melbourne and I have found it reasonable for her to be sceptical about the husband and his family’s capacity to provide support, respite care and, indeed, generally safe care of M. This in turn, impacts on her capacity to spend time alone with J, or to focus on him. In Melbourne the wife’s financial position is tenuous and she has not received the support (I speak of non-financial support) which would have assisted her in maximising her earning capacity here. That earning capacity is greater in regional New South Wales and can be exercised far more flexibly.

Taking all the evidence into account, and having considered ss.65DAA(1) and (2), I am satisfied that the children’s best interests will be served by allowing them to relocate to regional New South Wales and making orders which maximise, as far as possible, the husband’s capacity to spend time with them there, and in Melbourne.

In considering the time they should spend with the husband, I am satisfied it should include the whole of one school term holiday and half of each other school holiday period. I do not find it in J’s interests to spend little time in the long summer holiday with his mother and M. Through spending time with his father during the school term holidays, J will get used to being away for, initially, a week and then two weeks. He is likely to then be in a position to accommodate a period of half the summer holidays away from his mother. Even when he is older, and able emotionally to cope with a longer period away from her, I am satisfied he should still be in a position to enjoy half of that long break with her and M, playing his part in that family unit to which Mr. Y referred.

Orders will provide for J to have an extended weekend with his father in regional New South Wales in each school term and there can be much more frequent contact in regional New South Wales, if the husband is prepared to travel there.

To maximise the husband’s time with M, in a way consistent with her welfare, orders will provide for the husband to spend time with her during the day on no less than three days during each period that J is with his father during school holidays. That time will be in Melbourne (consistent with it being day contact only, and with the potential for M to be seeing doctors in Melbourne) but that will not stop the husband taking the children to his parents’ farm, or on routine day trips from Melbourne. If the wife agrees, the time can be spent in another location.

Orders will provide for the husband to be kept informed about J and M’s schooling and progress, and provide for the husband to be involved with their schools and medical practitioners.

I am satisfied it is reasonable for the parties to share the costs of the children’s travel between regional New South Wales and Melbourne. Each will be responsible for his or her own travel.

Having regard to the wife’s residual concerns about the husband’s health, and the need to ensure the safety of the children when in the husband’s care, I propose to order that he provide a written report from his treating psychiatrist in March, June, September and December 2008, confirming that his mood has remained stable, that there has been no evidence of hypomanic symptoms or of depression, and that he remains compliant with medications prescribed. That requirement will cease at the end of 2008.

The wife will be able to relocate on or after 3 January, 2008. Orders will provide for the husband to spend time with the children prior to that date. The wife will be able to make necessary arrangements for J’s schooling and M’s care prior to the start of the 2008 school year.

PROPERTY

I propose to adopt the now well established approach to the exercise of the discretion under s.79. It is appropriate for the judge to identify the assets to be divided between the parties, identify the liabilities to be taken into consideration and then to determine the manner in which the assets ought to be divided having regard to s.79(4)(a), (b) and (c) considerations. Then having considered (d) to (g) of s.79(4) the court should determine what further adjustments should be made having regard to s.75(2) considerations, and consider whether the outcome is just and equitable.

The parties agreed that the asset pool which remained for distribution was made up of the former matrimonial home (at an agreed value of $690,000) and superannuation entitlements (some $99,000 for the husband and $12,000 for the wife). These total $801,000, of which superannuation assets form $111,000.

After separation the husband sold shares for some $28,785. He added to that realised sum a notional value (attributed unilaterally by him) of $13,000 for the 2000 Commodore driven by the wife, and divided that pool between them, equally. That meant that his entitlement was made up of cash, whereas hers was made up of cash and a depreciating asset. Neither party sought to have the share proceeds or car bought back, notionally, into the pool or sought to have the equal distribution reconsidered.

The husband had proposed that the wife and children remain living in the C home, subject to a number of conditions. As orders will allow the wife to relocate, there is no need to consider the reasonableness of that proposal. The C house will be sold. The question for the court is the distribution of the net proceeds and the size of a splitting order to be made in respect of the husband’s superannuation entitlement.

The draft minute of orders proposed by the wife was drawn on the basis that the parties’ superannuation assets be split equally between them, whether the wife moved to regional New South Wales or not. This would result in each being credited with $55,500. If she were to remain in Melbourne, she should receive 70% of the C proceeds. Ignoring the expenses of sale and the uncertainties about the actual price received, 70% of the agreed value is $483,000. She would thus receive total assets to the value of $538,500 and the husband would receive total assets to the value of $262,500 ($55,500 plus $207,000) a split (over the whole pool) of 67% to her and 33% to him.

The wife submitted that were she to move to regional New South Wales, the husband should receive the first $100,000 from the sale of the C property and the balance be divided 70% to her and 30% to him. Were that to occur he would receive $55,500 (half the superannuation assets), $100,000 plus $177,000 (being 30% of $590,000); these total $322,500 and would represent 40% of the total pool. The wife would receive the balance ($413,000, being 70% of $590,000) plus superannuation of $55,500. These add up to $468,500 or 58.5% of the total pool.

As I understood the wife’s submissions, the difference between these two outcomes related to the application of s.75(2) factors. Housing is cheaper in regional New South Wales than in Melbourne, which could be taken into account when considering the parties’ financial circumstances. Further, the additional adjustment could be justified by reference to the expense the husband would need to incur to fulfil his parental responsibilities in regional New South Wales and Melbourne.

The orders sought by the husband provided for a splitting order in respect of the parties’ superannuation entitlements so that one-half of the fund balance as at the operative date be allocated to the wife. In terms of superannuation assets each would thus receive one-half of $111,000, or $55,500. She should also receive one half of the proceeds of sale of the C property. This would be a straight 50/50 division.

Contributions
SECTION 79(4)(a) to (c)
I turn to the second of the steps in the exercise under s.79, namely an assessment of the parties contributions within the context of s.79(4)(a) to (c). These provisions are as follows :

79(4)In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account -
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of the, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;

It was agreed (albeit very reluctantly by the wife) that the C home was worth $230,000 at the time of the marriage. That was the capital improved value on the relevant rate notice. The husband had owned that property for some time and it was unencumbered. I have more confidence in the wife’s recollection of the significant work done on that property by her father than I have in the husband’s account. He did not deny a contribution made by her father in this way; the disagreement went to its extent and his own involvement in the work undertaken. I do take into account, as a contribution made on the husband’s behalf, the sum of $10,000 which was provided by his father. The husband had initially sought the repayment of this, on the basis it was a loan, but he and his father conceded the accuracy of the wife’s position, which was that it was a gift.

During the marriage the husband made the significant financial contribution; the wife agreed that he worked hard and, at times, long hours. The wife made the significant contribution as the homemaker and parent, a role made more onerous as a result of M’s difficulties, which grew in significance as she grew. The husband contributed as a parent, albeit more so with J than with M. The wife contributed financially but her earnings were modest. Since separation the wife has continued her significant contribution as a homemaker and parent, under very difficult circumstances. She has maintained part-time work, for which she is not well paid. The husband has spent time with the children as described and contributed financially through child support as described.

In terms of superannuation the husband had some $20,000 in superannuation when the parties met and the wife some $4,000. The husband alleged that the wife also had a debt of some $4,000.

The husband submitted that contributions to non-superannuation assets should be assessed as being made 65% by him and 35% by the wife. In relation to superannuation counsel referred, variously, to a contribution split of 55/45% in his favour, or an equal division.

Counsel for the husband did refer to a 15% adjustment in the wife’s favour for s.75(2) factors, and submitted that application of that adjustment would result in a 50/50 division over the whole of the pool. One could cavil as to whether that outcome constituted a real adjustment of 15% across the board, if the husband’s contribution to the superannuation assets was never higher than 55%. However, there is little point in that exercise.

If the 30% contribution differential between 65% and 35% is calculated as a percentage of the total assets, it amounts to $240,000. If it is calculated by reference only to the non-superannuation asset (the C home) it represents some $207,000. The house was brought into the marriage at a figure of $230,000. To effectively adjust a very similar figure in the husband’s favour would, in my judgment, be to devalue the wide range of other contributions made during the parties’ marriage, and particularly the non-financial contributions.

The wife submitted that, overall, contributions should be assessed as 60% in her favour to date, having regard to the very significant work done by her father on the property and the exceedingly onerous nature of the contributions she has made as the primary carer until separation, and the primary carer since. It was submitted that that contribution had to be seen in the light of the responsibilities thrown on her as a result of the husband’s illness (which necessarily limited his time with the children for a period) and her financial contribution since separation, too. There should then be a further adjustment of 10% in her favour, resulting in the 70/30 split to which I earlier referred.

It is impossible to quantify the financial benefit of the significant renovation and maintenance work undertaken by the wife’s father; the increase in value of the property will have been effected by both it and by inflation. Nevertheless, the court should give that contribution due weight, as it should give due weight to the husband’s initial contribution.

The wife has had the benefit of living in the former matrimonial home since separation. She has maintained the house and garden. On one occasion she asked him to mow the lawn, which he did, but neither before that occasion or since did he offer to repeat the exercise, and on a weekend close to the trial he told her that he hoped she was putting oil in his lawn mower.

Balancing all factors I am satisfied that contributions of all kinds should be assessed at 42.5% by the wife and 57.5% by the husband, a differential in the husband’s favour of 15%, which acknowledges the assets he brought to the marriage.

Section 75(2) factors

I have determined that the wife should be able to relocate the residence of the children to regional New South Wales. It is correct that she will there bear the brunt of the responsibility for care of the children; the fact that the husband sought a different outcome does not alter that reality. Counsel for the husband submitted that the court should not place weight on her lesser financial position (that is, vis-à-vis the husband) if she were allowed to move to regional New South Wales as she adduced evidence that more lucrative and flexible employment was available there. It was submitted that having relied on that as evidence as supporting a move, it would be “double dipping” to again take it into account when considering the parties’ financial circumstances. I do not find force in that argument.

The husband’s financial position is significantly better than that of the wife and will remain so. He is a qualified professional who has worked hard and has been able to generate a good income. That is reflected in his child support payments, but his counsel conceded (when submitting that there should be a 15% adjustment for s.75(2) factors) that earning capacity was one of the two most relevant, the other being the wife’s parental responsibilities. He has the benefit of cheap rent, paying only $90 a week for his accommodation.

It is probable that in regional New South Wales the wife will obtain a job that has more flexibility than she has been able to achieve here, and a higher income, but it is also probable it will still be significantly lower than that of the husband. Further, the court could not be confident that M’s needs will remain constant and that the circumstances now (relevant to the wife’s capacity to undertake paid work) will remain the same into the future. M’s needs mean it is impossible for the wife to be confident she will be able to work on a particular day; while she will have flexibility to accommodate that in regional New South Wales, flexibility does not equate with income. If she is unable to attend for work, she will not be paid.

In the course of cross examination, the wife spoke (in the context of moving to regional New South Wales) of staying with her parents there until the C property was sold and she knew how much money she would have to invest in a house. At that, counsel for the husband put to her that she could then work full-time, because she would have help from her parents, an extraordinary proposition.

I am satisfied the wife’s significant parenting responsibilities and lesser earning capacity justify a significant adjustment in her favour.

CONCLUSION

Balancing all factors, I am satisfied that there should be an adjustment in the wife’s favour so that she receives 60% of the non-superannuation assets and 50% of the superannuation assets. Sixty percent of $690,000 is $414,000; when half the total superannuation benefits ($55,500) is added to that, the total sum is $469,500. I am satisfied that represents a just and equitable outcome.

On the gross figures before the court, this would give her a little over $400,000 to put towards the acquisition of real property in regional New South Wales. She would also have the nest egg of a one-half share of the present superannuation benefits, to access in the future.

The husband would receive some $276,000 from the C property (on the gross figures) plus the superannuation benefit of $55,500, a total of $331,500. He gave no evidence of wishing to acquire another property, being content at the moment to continue to rent the unit owned by his mother, at a very modest price. Nevertheless, that capital sum would provide a foothold into the market and his salary means he has more capacity to borrow than the wife.

In all the circumstances, I am satisfied that final property orders in those terms are just and equitable.

Spousal Maintenance

The wife sought spousal maintenance of $300 a week for a period of two years and that it be paid as a lump sum, without any discount. She relied generally upon the shortfall between her expenses and income.

Section 72 of the Family Law Act 1975 imposes a duty on a party to maintain the other if reasonably able to do so and if that other party is unable to support himself or herself adequately by reason of one of the factors set out in the section. Section 74 enables the court to make such order as is proper and it is further required to take into account the matters referred to in s.75(2), one of which (s.75(2)(n)) provides that the court shall have regard to the terms of any order made or proposed to be made under s.79 in relation to the property of the parties.

In Bevan v Bevan 1995 FLC 92-600 at 81,981 the Full Court set out the law as being :
. . . that an award of spousal maintenance requires
1. a threshold finding under s.72
2. a consideration of s.74 and 75(2)
3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
4.discretion exercised in accordance with the provisions of s.74, with reasonableness in the circumstances as the guiding principle.

As the Full Court noted in Mitchell v Mitchell 1995 FLC 92-601 at 81,995, the threshold question of whether an applicant can support him or herself adequately is not to be determined by any fixed or absolute standard but having regard to the matters referred to in s.75(2). Nor is the question to be determined upon a subsistence level.

Much of the wife’s income presently comes from Centrelink benefits. Section 75(3) of the Act provides that in exercising its jurisdiction under s.74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

When the hearing concluded no evidence had been adduced as to whether the various benefits received by the wife were income tested. With the consent of counsel, the Australian Government Centrelink website was accessed to ascertain the status of the various payments. This disclosed that the Carer Allowance (Adult) is not income tested. The Child Care Benefit is income tested. The Family Tax Benefit Part B is income tested although single parents automatically receive the maximum amount of that benefit. The income test applies to two parent families and relates to the income of the lower earner of the two.

At present the wife receives $491.04 per fortnight by way of carer allowance (paid since April 2007), $98.00 per fortnight as child care benefit and $218.82 per fortnight as family tax benefit Part B. She has a health care card for herself and the children and pays a reduced rate for after-school care.

The wife has been earning around $200 per week from casual work in beauty services, undertaken mainly at a retirement village with some work at her home. She has always declared her income.

In regional New South Wales she has been offered work at $23 per hour. The owner of that business is aware of the demands of M’s care, which may require the wife to cancel employment on very short notice and to be available to look after M on a fulltime basis, for periods which can be lengthy. Her income will depend on hours worked but that will depend upon how M fares. In a salon she would earn $15 per hour, “if lucky”.

I accept the wife’s evidence of the additional expenses which she incurs as a result of M’s problems, including the gap payments, non-subsidised pharmaceuticals and other necessities. Like the husband, the wife will be contributing to the cost of airfares for the children to come to Melbourne. She will have to bear the costs involved in moving to regional New South Wales and setting up a new home there.

I am satisfied the need for maintenance is established.

In his financial statement filed in May 2007 the husband deposed to an income of $1,897 a week and expenses of $1,063 a week. In the financial statement filed on 29 November, 2007 he deposed to the same income ($1,897 per week) and weekly expenses of $1,693. I accept the reason for the change was the omission to include in the first financial statement expenses other than the fixed expenses itemised. In the second statement a figure of $450 was allocated to these other expenses; the part of the form which provides for these expenses to be broken up was not completed.

On the husband’s own evidence he has some $204 per week income over expenditure. That he has not felt financially constrained is demonstrated by the sum he paid to join the Kooyong Tennis Club in 2005, and remain a member.

I do take account of the fact the husband will receive a significantly lesser sum than the wife from the proceeds of sale of the C property and that he will have to pay the expenses associated with bringing the children to Melbourne and his own fares, if he travels to regional New South Wales. Nevertheless, I am satisfied he does have the capacity to pay $125 per week.

The wife sought spousal maintenance only for a period of two years. While no specific evidence went to the reasons for this, it may well be that she saw it as the period in which she could re-establish herself and in the course of which she would learn the likely limits of M’s capacities and abilities. Having regard to the submission made on her behalf, I do not propose to make the maintenance order for a longer period than two years, despite the fact her financial position may not be any more rosy at the end of that time.

The court has power to order that maintenance be paid by a lump sum. Periodic orders are often preferred, having regard to the perceived purpose of maintenance.

Although the husband has complied with the obligation to pay child support regularly, until advised that it was not appropriate, he did unilaterally deduct figures from the amount due, including a figure referable to his assessment of the parties’ respective interests in the C property. It is clear from evidence adduced in the trial, and from observing the parties in the witness box, that financial matters have been a source of tension between them and one can envisage that being the case in the future.

In all the circumstances of this case, there is sense in spousal maintenance being paid in a lump sum. There is a source available (being the husband’s share of the proceeds of the C property) and it will leave him in a position where he is able to arrange his finances in the future without consideration of that weekly outgoing.

No submissions went to the question of a discount. $120 per week over a two year period amounts to $13,000. I propose to discount that figure to $12,000; this will represent a discount of some 7.5%, with a rounding.

Relocation expenses

The wife sought an order that the husband pay the sum of $5,000 towards her relocation expenses to regional New South Wales. No submission went to the statutory basis of that claim. As I am satisfied that it would not be appropriate to make such an order, there is no need to consider the court’s capacity to do so. I am satisfied the wife’s entitlements are properly dealt with by the property orders (made pursuant to s.79) and the spousal maintenance orders (made pursuant to s.74).

I certify that the preceding
223 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the day of 2008.

…………………………………………
Associate.

[2008] FamCA 299

1 May 2008

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