ULSTER & VINEY
[2015] FCCA 2749
•14 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ULSTER & VINEY | [2015] FCCA 2749 |
| Catchwords: FAMILY LAW – Property – application for property settlement – contributions – the Husband’s initial contributions substantially outweigh those of the Wife – – section 75(2) factors – the Wife is to retain the primary care of the parties’ two children and Husband has superior earning capacity. HELD – orders made for 55/45 division of the asset pool in favour of the Husband. |
| Legislation: Family Law Act 1975 (Cth), ss.75(2), ss.60B, 60CA, 60CC(2) and 60CC(3), 61DA, 65DAA, 75 (2), 79 (2), 79 (4), 75 (2) (o) |
| Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 Taylor v Barker (2007) 37 Fam FLR 461 Cabbell & Cabbell [2009] FamCAFC 205 Cowley & Mendoza [2010] FamCA 597 Norman & Norman [2010] FamCAFC 66 Heath v Hemming(No.2) [2011] FamCA 749 Stanford & Stanford [2012] HCA 52 Bevan and Bevan [2013] FamCAFC 116 |
| Applicant: | MR ULSTER |
| Respondent: | MS VINEY |
| File Number: | MLC 8852 of 2014 |
| Judgment of: | Judge Bender |
| Hearing date: | 15 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2015 |
REPRESENTATION
| Counsel for the Husband: | Mr Wilson |
| Solicitors for the Husband: | Taussig Cherrie Fildes |
| Counsel for the Wife: | Mr Williams |
| Solicitors for the Wife: | Pearsons Lawyers |
ORDERS
Parenting
The parties have equal shared parental responsibility for the children X born (omitted) 2006 (“X”) and Y born (omitted) 2008 (“Y”).
The Wife be permitted to relocate with X and Y to the (omitted) area at the end of the 2015 school year.
Pending relocation X and Y’s living arrangements shall continue in accordance with the interim orders made 28 October 2014.
Upon relocation X and Y shall live with the Wife and spend time and communicate with the Husband as follows:
(a)during school terms:
(i)each alternate weekend from 5:00pm Friday to 5:00pm Sunday or 5:00pm Monday if Monday is a non-school day and to 5:00pm Melbourne Cup Day if the Monday before Melbourne Cup Day is a non-school day and X and Y are with the Husband on the Melbourne Cup weekend;
(ii)in the alternate week from after school to 7:00pm Friday;
(b)for 10 days in each of the term holidays as agreed between the parties and failing agreement from after school on the last day of term to 5:00pm on the second Wednesday of the holidays;
(c)in the 2015/2016, 2016/2017 and 2017/2018 long summer vacation for two weeks commencing 27 December and for one week concluding at 5:00pm the day before school commences;
(d)for one half of the long summer vacation commencing 2018/2019 as agreed between the parties and failing agreement the second half in odd numbered years and the first half in even numbered years;
(e)for the (religion omitted) holidays as follows:
(i)from 9:00am on the first evening of X until 9:00am on the fourth evening of X;
(ii)from 9:00am on the first evening of (omitted) until 9:00am on the third evening of (omitted);
(iii)from 3:30pm on the second evening of (omitted) until 9:00am the following morning; and
(iv)from 3:30pm on the first evening of (omitted) until 9:00am the following morning;
(f)on X and Y’s birthdays as agreed between the parties and failing agreement for two hours from 5:00pm to 7:00pm if the birthday is on a school day and for six hours if the birthday is on a non-school day from 10:00am to 4:00pm;
(g)on the Husband’s birthday from 5:00pm to 7:00pm if the birthday is on a school day and from 10:00am to 4:00pm if the birthday is on a non-school day;
(h)on Father’s Day from 5:00pm the day preceding Father’s Day to 5:00pm on Father’s Day; and
(i)as otherwise agreed between the parties.
X and Y’s time with the Husband pursuant to these orders shall be suspended as follows:
(a)from 12:00 noon Christmas Eve to 6:00pm Boxing Day each year;
(b)on the Wife’s birthday from 10:00am to 4:00pm if a non-school day; and
(c)on Mother’s Day from 5:00pm the day preceding Mother’s Day.
If one of the Easter days being Good Friday to Easter Monday (“the Easter long weekend”) falls on one of the first four nights of X and Y shall spend the Easter long weekend with the Husband and otherwise X and Y shall spend the Easter long weekend with the Wife save and except if X and Y have spent two consecutive Easter long weekends with the Husband they shall spend the following Easter long weekend with the Wife even if one of the four nights of X falls during that Easter weekend.
The Wife is at liberty to telephone X and Y twice each week when X and Y are with the Husband during school holidays.
Each party shall facilitate X and Y telephoning/Skyping/Facetiming the other when X and Y are not in their care upon their reasonable request to do so.
Changeover for the time X and Y spend with the Husband shall be as follows unless otherwise agreed between the parties in writing:
(a)for the time pursuant to orders (4)(a)(i) and (4)(h) herein the Wife shall deliver X and Y to and collect X and Y from the (omitted) McDonalds;
(b)for the time pursuant to orders (4)(a)(ii), (4)(f) and (4)(g) herein the Husband shall collect and return X and Y to the (omitted) car park at (omitted);
(c)for the time pursuant to orders (4)(b), (4)(c), (4)(d) and (4)(e) herein the Husband shall collect X and Y at the commencement of time from the (omitted) car park at (omitted) and the Mother shall collect X and Y from the (omitted) McDonalds at the conclusion of time; and
(d)when the Husband’s time is suspended pursuant to order (5) herein the Wife shall collect and return X and Y to the (omitted) McDonalds.
The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of X and/or Y and from permitting any other person so to do.
The parties be permitted to attend all school events relating to X and Y normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.
Each party shall advise the other of any serious illness or injury suffered by X and Y as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party keep the other informed at all times of their current residential address and contact telephone number.
Each party be at liberty during his/her time with X and Y during school holidays (including long summer holidays) to travel with X and Y (or either of them) interstate and overseas, provided that the travelling party provide the other details of itineraries, accommodation and transport (including flights):
(a)at least seven days prior to commencement of interstate travel or such shorter period as agreed between the parties; and
(b)at least 28 days prior to commencement of overseas travel or such shorter period as agreed between the parties.
No later than seven days prior to commencement of overseas travel with X and Y by a party pursuant to order (14) herein, the other party provide to the travelling party such of X and Y’s passports as are in the non-travelling party’s possession or control.
Each party do all such acts and sign all such documents as are required to maintain and renew X and Y’s passports from time to time, the costs of same to be borne equally between the parties.
The (country omitted) passports of X and Y be provided to the Wife from 1 January 2016.
The Australian passports of X and Y be provided to the Husband from 1 January 2016.
Property
The monies currently held in trust on behalf of the parties be divided such that the Husband receive 55% and the Wife receive 45% of the parties’ total realisable assets, such realisable assets being the monies currently held in trust on behalf of the parties, the partial property settlement already received by them and the proceeds of sale of the caravan.
Orders (20) to (22) herein are binding on the Trustee of the Husband’s interest in (omitted) Super (“the Superannuation Fund”) Member Number (omitted).
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the Husband’s interest in the Superannuation Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount of $25,440.00 and there be a corresponding reduction in the entitlement of the Husband to whom the splittable payment would have been made but for these orders.
Order (21) has effect from the operative time and that the operative time for such order be four business days after the service of a sealed copy of these Orders made by the Court on the Trustee of the Superannuation Fund.
Pending compliance with orders (19) to (22) herein the Husband be and is hereby restrained by himself, his servants and/or agents from:
(a)executing a death benefit nomination in favour of an person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a non-splittable payment within the meaning of the regulations (12) and (13) of the Regulations;
(b)exercising any option available to him or take any part of his entitlement in the Superannuation Fund in the form of a pension; or
(c)otherwise dealing with or redeeming his entitlements in the Superannuation Fund.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or subsequent orders:
(a)each party be solely entitled to the exclusion of the other to other property (including choses-in-action) owned by or in possession of such party as at the date of these orders;
(b)insurance policies remain the sole property of the owner named therein;
(c)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; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Ulster & Viney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8852 of 2014
| MR ULSTER |
Applicant
And
| MS VINEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the parties’ applications for parenting and property orders following the breakdown of their marriage.
Whilst the proceedings commenced by way of an Initiating Application filed by the Husband, the Wife issued an urgent Application in a Case which was listed prior to the return date of the Husband’s Application. Thereafter the matter proceeded on the basis the Wife is the Applicant and the Husband the Respondent.
The Wife is seeking orders that the parties’ children X born (omitted) 2006 (“X”) and Y born (omitted) 2008 (“Y”) live with her and that she be permitted to relocate with X and Y to (omitted).
If permitted to relocate, the Wife seeks orders that X and Y spend time with the Husband on alternate weekends from after school Friday to 7:00pm Sunday (or Monday if non-school day), dinner each Wednesday from 5:00pm to 7:00pm, for ten days in each of the term holidays, for three weeks in the long summer vacation to be taken in separate two week and one week blocks and on special occasions and (religion omitted) holidays.
In relation to property matters, the Wife is proposing the parties’ realisable assets be divided equally between them.
Whilst conceding the Husband made an initial contribution of $477,602.00 at the commencement of cohabitation, it is submitted by the Wife that the Husband’s initial contribution has been ameliorated by the Wife’s contributions during the course of their fifteen year relationship such that there should be an adjustment in the Husband’s favour of 62.5%. It is submitted that the Wife’s greater s 75(2) factors, being the Husband’s superior earning capacity and her primary care of X and Y if she is successful in her application that X and Y live with her, is such that there should be an adjustment in her favour of 12.5%.
It is on this basis the Wife submits her proposal for an equal division of the parties’ assets is just and equitable.
The Husband is seeking orders that the Wife not be permitted to relocate with X and Y.
The Husband seeks orders that X and Y live week about between he and the Wife, spend half the term holidays and long summer vacation in a single block with each of the parties, there be a sharing of the special occasions and that X and Y spend the (religion omitted) holiday with him.
In relation to the financial matters, the Husband seeks that the monies currently held in trust and the net proceeds of sale of the parties’ home be divided on the basis the Husband receive 62% and the Wife 38%. On the Husband’s figures this would result in an overall distribution of the parties’ realisable assets, including those assets already received by the parties, 65/35 in his favour.
It is the Husband’s submission that his initial contribution of $477,603.00 should afford a 25% adjustment in his favour. It is submitted that this is offset by a 10% adjustment in the Wife’s favour for s 75(2) factors, such adjustment including a 5% adjustment in the Wife’s favour if she remains in Melbourne because of the higher accommodation costs she will incur.
Both parties agree their superannuation entitlements be equalised which requires a splitting order in the Wife’s favour with a base amount of $25,440.00.
Background
The Wife was born on (omitted) 1974 and is aged 41 years. She is a (occupation omitted) with (omitted) training. She is currently employed on a part time basis by the (employer omitted) as a (occupation omitted) in the (omitted) Region and earns approximately $50,000 per annum. The Wife has not re-partnered.
The Husband was born on (omitted) 1973 and is aged 42 years. He is employed in (omitted) on a full-time basis as an (occupation omitted) and earns $106,000 per annum. The Husband has not re-partnered.
The parties commenced cohabitation in 1999 in (country omitted) where they were both working.
It is common ground that the Husband had net assets at the commencement of cohabitation of $477,603, consisting of $267,828 in shares, savings of $195,571 and $14,204 in superannuation.
The parties worked in Australia and (country omitted) until returning permanently to Australia in 2004. They also travelled extensively during that period.
The parties married on (omitted) 2005.
In mid-2006 the parties purchased a property in Property G in New South Wales for $850,000. The purchase was funded by way of $90,000 borrowed from the Husband’s parents, $33,000 from the parties’ joint savings, $85,000 from the Husband’s pre-cohabitation savings and a mortgage of $680,000 from the (omitted) Bank. Shortly thereafter the Husband liquidated most of his pre-cohabitation assets and placed $459,554 into an offset account.
The Wife stopped paid employment shortly prior to X’s birth and was engaged in full-time home duties whilst the Husband continued in full-time employment.
In September 2007 the parties sold their Property G property and relocated to Melbourne. They sold the Property G property for $1,095,000, discharging the mortgage to the (omitted) Bank and repaying the Husband’s parents.
The Husband was retrenched from his Melbourne employment at or around the time of Y’s birth. He remained at home with the Wife, X and Y for approximately twelve months. The Husband resumed full-time employment in (omitted) 2009.
In 2009, the Wife returned to part-time employment as a (occupation omitted). She was employed on Sundays and during school hours during the week, primarily by (omitted) caring for a severely disabled woman.
In 2010 the parties purchased the former matrimonial home at Property F (“the former matrimonial home”) for $945,000. The purchase was funded from the proceeds of sale of the Property G property and a mortgage of $400,000. The sum of $100,000 was retained in an offset account.
Between 2010 and 2014 each party alleges the other was physically, verbally and emotionally violent to the other.
The Husband accuses the Wife of having major issues with anger management and alleges incidents where she assaulted him both physically and verbally, often in the presence of X and Y.
The Wife alleges the Husband was physically and verbally abusive to her and also prevented she, X and Y from visiting her mother and step-father who reside in (omitted).
An ongoing issue of dispute between the parties during the relationship was the amount of piano practice and academic focused activities the Husband required X and Y to do. The Wife was of the view this was excessive given the children’s young ages. She and the Husband often argued about this.
On (omitted) 2014 the Husband took the day off work as X and Y had piano exams that day.
It is the Wife’s evidence that the Husband was insisting X do two hours practice prior to her exam. As the Wife thought this was excessive, she intervened and the parties argued. The Wife asked X to go to her room so that she was not exposed to the parental dispute. It is the Wife’s evidence the Husband then became enraged, grabbed her by the arm, dragged her to the front door and flung her from the former matrimonial home and locked her out of the house. It is the Wife’s evidence that X let her in the back door at which time the Wife called the police.
It is the Husband’s evidence the Wife kept interrupting X’s practice as she wanted the Husband to do some chores around the house. It is the Husband’s evidence that the parties had a heated argument about this and the Wife then barricaded the door so X could no longer practice. The Husband’s evidence is that he became very frustrated with the Wife preventing X from doing the practice X wished to do and he physically removed the Wife from the house.
The Husband vacated the former matrimonial home on 6 June 2014 and obtained rental accommodation in (omitted) where he continues to reside.
On 9 June 2014 the police made an Application for an Intervention Order on behalf of the Wife. An Interim Intervention Order was made on 10 June 2014.
On 24 June 2014 the Husband made an Application for an Intervention Order against the Wife.
On 25 June 2014 an Intervention Order was made against the Husband by consent without admission and on the same date the Husband’s Intervention Order application was resolved on the basis of a written undertaking from the Wife.
The Husband was charged with assault as a result of the 6 June 2014 incident. When the charges came before the Magistrates’ Court on 16 February 2015 the matter was resolved on the basis the Husband entered the diversion program.
In July 2014, the Wife withdrew $61,000 from the parties’ offset account. When the Husband became aware of the Wife’s withdrawal, he too withdrew $61,000 from the parties’ offset account. The parties also retained their respective savings at separation. The Husband had $39,000 in savings and the Wife $26,500.
After separation the Wife paid the parties AMEX Credit Card debt which at separation was $5,643 from her savings.
Between June and August 2014, X and Y lived with the Wife and spent time with the Husband each alternate weekend from 8:15am Saturday to 5:00pm Sunday, from 5:30pm Thursday to before school Friday in the alternate week and from 5:30pm to 7:30pm each alternate Monday for their piano lessons.
From August to October 2014 X and Y continued to live with the Wife and spent time with the Husband each alternate weekend from after school Friday to Sunday evening, from 5:30pm Wednesday to before school Thursday in the alternate week and for two hours on alternate Mondays when the Husband took X and Y to their piano lessons.
On 1 September 2014 the parties attended mediation at Relationships Australia. The parties were unable to reach agreement during the course of the mediation. The Wife also raised the possibility of she, X and Y relocating to (omitted) with the mediator.
After separation, issues arose between the parties about the ongoing payment of the mortgage on the former matrimonial home which both parties agreed needed to be sold as neither was in a position to retain it. Neither party was in a position to continue to meet the mortgage payments.
It is the Wife’s evidence that in or about September 2014 she was advised by her employer that the person she was employed to care for was going into hospital and therefore she would no longer have a job. The Wife therefore began looking for alternative secure employment. The Wife was successful in obtaining a position as a (occupation omitted) with the (employer omitted) in (omitted).
On 1 October 2014 the Wife unilaterally relocated to (omitted) with X and Y. On 2 October 2014 the Wife sent the Husband an email which stated as follows:
Dear Mr Ulster,
Due to inability to pay mortgage costs (including interest only loan), compounded by my unstable job situation, we have been left with no other option than to move to (omitted). This allows a substantial decrease in the cost of living, affordable housing options going forwards, parental support. I am commencing permanent employment as a (occupation omitted) which allows me to manage work hours whilst children are at school and eliminates the need for the kids to go to before/after school care.
I would like to assure you that your time with the children will not be diminished in any way. There will need to be some re-arrangement in access and exchange locations. However I am sure that it is possible to increase overall access from what it is currently. We can sort out the details in the next couple of weeks, as well as starting to discuss arrangements for Xmas holidays. In the meantime arrangements for this weekend remain unchanged.
Piano lessons in Melbourne mid week are now clearly not possible, so we will also need to sort this out. In regard to this my apologies for the delay in replying to your earlier email, given the packing up of house and school holidays I have not been on email frequently. I am sure that we can come to an appropriate solution with regard to piano lessons that does not cause undue strees for X. However I need a couple of weeks to get this sorted, so please bear with me.
I hope you can understand my situation and assure you again that I do not wish for your time with the children to be diminished in any way.
Kind Regards,
Ms Viney
As set out earlier, the Husband filed an Initiating Application on
2 October 2014 seeking parenting and property orders which was made returnable on 3 December 2014.
In accordance with the informal arrangements the parties had put in place in August 2014, X and Y spent time with the Husband on the weekend of 3 October 2014. As a result of the Wife’s relocation to (omitted), the Husband refused to return X and Y to the Wife’s care and took them out of school.
On 10 October 2014 the Mother issued an urgent Application in a Case which was abridged to 28 October 2014 seeking orders X and Y return to her primary care.
On 28 October 2014 Interim Orders were made by consent which provided for the parties to have equal shared parental responsibility for X and Y and for X and Y to live with the Husband in each alternate week from after school Thursday to before school Wednesday and with the Wife each alternate week from after school Wednesday to after school Thursday of the next week.
The Orders also made provision for the sharing of school holidays, special occasions and (religion omitted) holidays.
The Orders required each of the parties to ensure X and Y continue to attend (omitted) Primary School until further order.
A notation to the Orders reserved the right of the Wife to pursue her application that the children live with her in (omitted) and the right of the Husband to pursue his application for week-about parenting arrangements at trial.
Finally the Orders provided for the former matrimonial home to be placed on the market for sale.
The former matrimonial home has now sold and the net proceeds of sale of $644,492 are currently held in trust pending the final determination of this matter.
X and Y’s living arrangements have continued in accordance with the Interim Orders of 28 October 2014. In order for X and Y to continue to attend (omitted) Primary School the Wife has rented accommodation in (omitted) where she, X and Y live when they are with her. The Wife has arranged her work commitments in (omitted) around the times X and Y live with her. When X and Y live with the Husband the Wife usually lives with her mother and step-father in (omitted).
Parenting Matters
The Evidence
The Wife
The Wife relies on her affidavits sworn 9 October 2014, 17 June 2015 and 2 July 2015. The Wife also gave viva voce evidence at the
Final Hearing.
The Wife is seeking orders that X and Y live with her and that she be permitted to relocate with them to (omitted).
If permitted to relocate, the Wife seeks orders that X and Y spend time with the Husband each alternate weekend from after school Friday to 7:00pm Sunday or Monday if a non-school day, dinner each Wednesday from 5:00pm to 7:00pm, for ten days in each of the term holidays, for three weeks in the long summer vacation to be taken in two separate blocks of two weeks and one week and on special occasions including (religion omitted) holidays.
It is the Wife’s evidence that she has been X and Y’s primary carer since their birth save for the last twelve months where X and Y have been living in a shared care arrangement pursuant to the interim orders made 28 October 2014.
It is the Wife’s evidence that she believes it is in the best interests of X and Y that they live with her and that they be able to relocate to the (omitted) area and in all probability (omitted). This will allow the Wife to continue in employment that utilises her professional expertise in such a way that she will be available to care for X and Y outside of school hours.
It is the Wife’s further evidence that relocation will enable her to purchase a home for herself, X and Y, something she will not be able to do if she is required to continue to reside in the metropolitan area given the relatively small property pool and the measureable differences in housing prices between (omitted) and the metropolitan area.
Whilst conceding that X and Y will initially face challenges arising from the change of school and move from the community in which they have always lived, the Wife believes they will be able to happily adjust to their new community and settle into life in the country as X and Y are intelligent, social and well-rounded children.
It is the Wife’s evidence that X and Y have a close and loving relationship with the Husband and she understands that her proposal will result in them spending less time with the Husband than the current arrangements provide. It is the Wife’s evidence that she believes her proposal will enable X and Y to maintain their very close and loving relationship with the Husband.
It is the Wife’s evidence that during the discussions with Mr U for the preparation of the Family Report, she put forward a settlement proposal whereby the Husband moved closer to where she, X and Y would live in (omitted) so that a shared care type arrangement would be able to continue. She did not resile from this proposal when giving her viva voce evidence.
It is the Mother’s evidence that positions as a (occupation omitted) are not readily available in Melbourne and that her somewhat limited enquiries indicate that there are no positions as a (occupation omitted) available to her in Melbourne.
It is the Wife’s evidence that if she is required to remain in Melbourne she would need to pursue employment as a (occupation omitted) within the (omitted) system which would require shift work. This would impact on her capacity to be available to care for X and Y outside of school hours.
It is the Wife’s evidence that she was able to work some shift work and on Sundays when she was in a relationship with the Husband as he was available to care for the children when she was not there, as she was available to care for the children whilst the Husband worked.
It is the Wife’s evidence that if required to remain in Melbourne she will not receive sufficient monies by way of property settlement that would enable her to purchase a home for herself, X and Y. It is the Wife’s evidence that she would be required to use all her capital to pay rent which would mean she would never be in a position to re-establish herself financially.
It is the Wife’s evidence that if permitted to relocate to (omitted), the cost of housing is measurably less than it is in Melbourne and that she would be in a position to purchase a home for herself, X and Y and establish a level of financial security that is not available to her in Melbourne.
It is the Wife’s evidence that if permitted to relocate, she would more easily have the support of her mother and step-father who live in (omitted).
It is the Wife’s evidence that she has made enquiries of a number of local primary schools approximate to where she would propose to live being (omitted) Primary School, (omitted) Primary School and (omitted) Primary School. She believes any of these schools would provide a comparable education to that which X and Y currently receive at (omitted) Primary School.
It is the Wife’s evidence she would consult with the Husband if permitted to relocate on the choice of which school would best meet X and Y’s needs.
It is the Wife’s evidence that she and the Husband had a volatile relationship, particularly in the four years preceding their separation. It is the Wife’s evidence that there were occasions where she had difficulty containing her anger with the Husband and that there were exchanges between them where each was verbally and physically violent toward the other.
It is the Wife’s evidence that she continues to be fearful of the Husband and his anger towards her. Despite the Wife telling Mr U that she would not seek to extend the intervention order that was taken out on her behalf by the police after the incident when she was forced out of the home after the 6 June 2014 incident, she made a decision to apply to extend the intervention order because of her ongoing concerns in relation to her safety.
It is the Wife’s evidence that she and the Husband have difficulties in communicating with each other and that theirs continues to be a conflicted relationship. It is her evidence however that they have been able to communicate in relation to arrangements for X and Y, primarily through text message and email.
The Husband
The Husband relies on his Affidavits sworn 1 October 2014,
7 October 2014, 24 October 2014, 1 July 2015 and 10 July 2015. The Husband also gave viva voce evidence at the final hearing.
The Husband is seeking orders that the Wife not be permitted to relocate to (omitted) with X and Y and that they continue to live in sufficient proximity to (omitted) Primary School so they can continue to attend that school.
The Husband proposes that X and Y live week about with each of the parties and they spend half of the term and long summer holidays with each parent, the latter in a single three week blocks. The Husband also proposes the parties share special days and X and Y spend the (religion omitted) holidays with him.
It is the Husband’s evidence that he has a close and loving relationship with X and Y and that he has been an active and highly involved father since X and Y’s birth.
The Husband takes issue with the Wife’s claim that she was the primary carer of the children during the relationship, arguing that he took twelve months off after Y was born and that he was heavily involved in their care, particularly on weekends when the Wife worked.
The Husband concedes that it was primarily the Wife who took the children to and from school, was active at (omitted) Primary School including being on the committee, took them to all their medical and other appointments and was the one who organised and facilitated play dates and other social interactions.
It is the Husband’s evidence that X and Y have thrived in the shared care arrangement that has been in place since October 2014 and that a week about arrangement will ensure they continue to have the benefit of the involvement of both parents in their lives.
It is the Husband’s evidence that he, Y and particularly X share an interest and love of music and that it is he who has been most involved in this activity. He is desirous of being able to continue this level of involvement into the future.
It is the Husband’s evidence that X and Y are well settled and very happy at (omitted) Primary School and that it is not in their best interests that they be moved away from their school, their friends and their community.
It is the Husband’s evidence that if X and Y were to relocate to (omitted), the reduction in the time they would be able to spend time with him would dramatically impact on the quality of the relationship they have. The Husband argues that this would be to X and Y’s real detriment.
The Husband agrees that he and the Wife had a very volatile relationship, particularly in the last four years of their marriage. It is his evidence that he was subjected to attacks from the Wife and outbursts of uncontrollable anger. He denies the Wife’s allegations that he was violent to her.
It is the Husband’s evidence that he seriously considered the Wife’s proposal made during the report preparation that he move closer to X and Y in (omitted) so that they could continue a shared care arrangement. It is the Husband’s evidence that he realised this proposal would not be practical as it would involve a commute of in excess of three hours each day for him to be able to travel to and from work.
Mr U
Mr U prepared a Family Report in this matter dated 12 June 2015 which was placed before the Court pursuant to his Affidavit dated 14 July 2015. Mr U also gave viva voce evidence at the final hearing.
In his family report under the heading ‘Evaluation’ at paragraph 54 Mr U makes the following observations about the parties:
54. Mr Ulster and Ms Viney present as loving, committed parents with different perceptions of what constitutes the best future care arrangement for X and Y. Mr Ulster has demonstrated a commitment to being a part of the children’s lives. Ms Viney appears to have generally facilitated and supported this.
In relation to X and Y in paragraph 47 Mr U describes them as follows:
The children appeared happy, at ease, physically close and comfortable with either parent. They impress as bright, chatty, outgoing and confident. Both are delightful children who are clearly a credit to their parents.
In relation to the question of relocation Mr U in his report at paragraphs 70 and 71 states as follows:
70. The parents complemented each other in caring for
the children. The comments they made and confirmed by
the children suggest that it was Ms Viney who was primarily responsible for meeting the day-to-day needs of the children.
One is mindful that the orders made in October of last
year provided Mr Ulster with an opportunity for greater
input into the lives of the children and a consolidation, if
not intensification, of their relationship. In other words, there
has been a change in the Mr Ulster/children dynamic. This most recent development cannot be ignored.
71. If Mr Ulster had been only marginally involved in the
lives of the children both prior to and following the separation and had his relationship with them been only a tenuous one,
then one would have been prone to support Ms Viney’s application to have the children in her primary care in
(omitted), particularly in light of the substantial role she
has played in the past. But this is not the case. Mr Ulster
has been an active, interested and involved parent who has
a strong relationship with the children. In addition,
the arrangement in place since October 2014 has enabled him
to play an even more significant role in their lives and as a
result of this, the children’s relationship with him has
developed and progressed further. Implementing Ms Viney’s proposal will entail disruption and loss for the children when they have already deal with significant change and loss in their lives. Imposing further change and further loss on them is not in their interest. They need to be able to access both parents relatively easily as this is what they have become used to. There is also a possibility that Ms Viney could find employment in the Melbourne area. In view of these considerations, Ms Viney’s application for orders to relocate to (omitted) cannot be supported. Instead, this Counsellor favours the continuation of the current regime. That is, for the children to be with Mr Ulster six and with Ms Viney eight nights. (The current arrangement is reiterated precisely because of Ms Viney’s past extensive involvement in the lives of the children and the need to avoid reducing further her availability to them.) Orders will be required for this.
In his Family Report under the heading ‘Recommendations Mr U summarised his views as to the best way forward for X and Y as follows:
79. Based on information gathered from the parties and held in the documents supplied and in the absence of any evidence to the contrary, then this Counsellor recommends that:
80. orders be made for the present arrangement to remain unchanged;
81. orders be made for mid-term school holidays to be shared on a week about basis or longer if interstate/overseas travel is proposed;
82. orders be made for the summer vacation to be restructured as per Ms Viney’s suggestion;
83. orders be made for the parents to participate in a behaviour change/anger management program;
84. orders be made for Mr Ulster and Ms Viney to participate in the “Turning in to Kids” program;
85. orders be made for Mr Ulster and Ms Viney to participate in the Parenting Orders Programme (POP);
86. orders be made for the usual personal and religious festivities to be shared;
87. orders be made for the children to be with Mr Ulster for the principal (religion omitted) festivals but that consideration be given to accommodating the Christian Easter as well.
In his viva voce evidence Mr U indicated that X and Y were robust children who would manage a change of school and environment. When questioned about the desirability of children being asked to cope with changing schools it is his evidence as follows:
“I think the thrust of my report is that, unless it’s absolutely necessary, the disruption to children needs to be curtailed and kept to a minimum as much as possible. I mean, kids can cope, right, but whether it’s desirable for them to do so is a different issue. And if it can be avoided, I think it’s preferable.”
Whilst Mr U took no issue with the Wife wanting to find secure employment and affordable housing, he did question whether she had fully exhausted all possibilities of suitable employment in Melbourne given the level of disruption the move to (omitted) would cause for the children in terms of their education and more importantly, the level of interaction such move would allow with the Husband. It is
Mr U’s evidence that if the Court formed the view that it was genuinely not viable for the Wife to remain in Melbourne having considered all the evidence, then orders as proposed by her would still enable X and Y to maintain a meaningful and strong relationship with the Husband albeit the reduction in the time that they could spend with the Husband would impact on the current relationship they have with him.
It is Mr U’s evidence that whilst the Wife would be understandably distressed if this Court were to make a decision that prevented her from achieving her desired outcome of secure accommodation and employment of the type she has currently been able to obtain in (omitted), it is Mr U’s evidence that he does not believe it would impact on the Wife’s ability to parent the children. It is Mr U’s evidence:
“She has got a lot of good qualities as a parent … clearly, she’s going to be disappointed and it may impact on the way she looks after them, but I – I don’t think in a great way.”
It is Mr U’s evidence that it is in the best interests of X and Y that the Wife remain their primary carer.
The Legal Approach
It is the Wife’s application in this matter that she be permitted to relocate to (omitted) with the parties’ children X aged nine and Y aged seven.
Relocation cases are often discussed as if they form a discrete subset of parenting cases that are to be determined differently to other parenting matters. The jurisprudence makes it clear however that this is not so and that a relocation matter is to be determined in the same way that all parenting matters are determined, that is by following the legislative framework prescribed under the Act to determine what order is in a child’s best interests.
In Taylor v Barker (2007) 37 Fam FLR 461 at 475, their Honours Bryant CJ and Finn J said:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living
arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74;
(2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.In Cowley & Mendoza [2010] FamCA 597, His Honour Murphy J succinctly stated as follows:
A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
A relocation case falls to be determined like any other parenting case.[1]
[1] At paragraph 31.
Best Interests of the Child
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine what is in the best interests of the child, the Court must consider the matters set out in Section 60CC(2) and
Section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties’ proposals, or such other arrangements as the Court determines given the Court is not bound by the parties’ proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the Court must take into account when determining what is in the child’s best interests.
Section 60CC(2)(a) – The benefit of the child having a meaningful relationship with both of the child’s parents
In Heath v Hemming(No.2) [2011] FamCA 749, Justice Kent in paragraph 104 reviewed the authorities relating to parenting cases involving proposed relocation. In subsection (a) of paragraph 104
His Honour considered Section 60CC(2)(a) and summarised the case law in relation to the benefit of the child having a meaningful relationship with both of the child’s parents as follows:
(a)s60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s60B also contain various references to the involvement of both parents in the life of their child.
In Sigley & Evor (2011) 44 Fam LR 439 the Full Court recently considered what is required by the term “meaningful relationship” in s60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J and McCall v Clark [2009] FamCAFC 92; (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in
s60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S [2006] FamCA 1408; (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
X and Y have a close and loving relationship with both the Wife and the Husband.
Whilst the Husband challenged the Wife’s evidence that she had been X and Y’s primary carer during their relationship, Mr U in his Family Report at paragraph 61 observes the following:
61. The parents provide conflicting accounts of the role
Mr Ulster played during the marriage and the degree of his involvement with the children. Whilst not wishing to downplay
Mr Ulster’s parental input, he worked full-time whereas
Ms Viney worked only part-time since Y’s birth and was thus more available to attend to their needs, both before and after school, on a consistent and regular basis. It is being suggested, as Ms Viney claims, that she was more available than Mr Ulster and that hence the children would have tended to turn to her for comfort, nurture, reassurance, direction and guidance. This is not to say that he has had no input or helped the children with many of their pursuits and interests. It’s just that Ms Viney’s input has been greater and that this has strengthened her relationship with them.
Since October 2014 X and Y have been living in a 6/8 arrangement pursuant to the interim consent orders made at that time. Mr U sets out in paragraph 71 of his report how the Husband has always been an active, interested and involved parent with a very strong relationship with his children and that the arrangement that has been in place since October 2014 has enabled him to play an even more significant role in their lives. As a result of this X and Y’s relationship with him has developed and progressed further.
Orders permitting the Wife to relocate with X and Y must impact on their capacity to continue to spend the amount of time they have with the Husband unless he too is prepared to relocate close enough to allow the current arrangements to continue. It is the Husband’s evidence that it is not practical for him to do so.
In these circumstances, if relocation were to occur the relationship between X, Y and the Husband would change. It is Mr U’s clear evidence however that given the strength of the relationship between the children and the Husband and X and Y’s age and maturity, they would be able to maintain a meaningful relationship with the Husband if they were living in (omitted) and the Husband continued to live in (omitted).
Section 60CC(2)(b) The need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
X and Y are not at risk of physical or psychological harm from either of their parents.
I would however sound one note of caution. Both parties concede real difficulty in their capacity to communicate effectively with each other in relation to the welfare of X and Y. In paragraph 75 of his Family Report Mr U quite properly points out the following:
75. The children require both Mr Ulster and Ms Viney to cooperatively parent them as to their educational, development and other needs. Consequently, the parents need to learn how to deal more directly with each other for the sake of the emotional wellbeing of their children. It is most unfortunate that communication can be problematic and inconsistent. Given the many decisions that need making, it is the children who usually pay the price when parents find effective communication difficult.
It will be vitally important to X and Y’s future wellbeing that whatever the outcome of this case is, the parties focus on what is in the best interest of X and Y. They must do everything they can to improve their communication so that their parenting of their children is effective and X and Y do not suffer from an inability for effective decision making or an ongoing exposure to parental conflict.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must consider when determining what is in the child’s best interest.
Each of the matters set out under that section will be considered in turn where applicable in this matter.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
To their credit, neither party in these proceedings argued that this case should be determined on the basis of any wishes expressed by X and Y. Nor have the parties tried to influence or persuade X and Y to their preferred option for their future living arrangements.
In his Family Report, Mr U notes that X and Y do know what their parents competing proposals are and what each parent wants. In paragraph 52 of his Family Report Mr U states the following:
52. They stated “We want to live in Melbourne … to be near our friends … school. Dad’s there too. Mum wants us to live in (omitted). Her parents are there and her job is there as well.” The children gave the impression they wanted the current arrangement, whereby they continue to live in Melbourne, to continue.
In paragraph 65 of his Report Mr U records that X and Y and more accurately X indicated a preference for leaving the current arrangements substantially as they stand and notes X and Y may well be opposed to changing schools and favour remaining at their current one.
Both parties agree that X and Y are well settled and happy at their school. They are progressing and have lots of friends.
Given the significant disruption that their parents’ separation has imposed on them, it is understandable that X and Y are reluctant to see further disruption to their lives.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child).
As has been set out in this judgment. X and Y have close and loving relationships with both of their parents.
In his Family Report Mr U observed both parties with X and Y. He noted the parents to be responsive and attentive to them and for X and Y to be happy, at ease, physically close and comfortable with either parent.
It is Mr U’s evidence that the Wife was the primary carer for X and Y during the relationship. It is Mr U’s further evidence that the shared care parenting arrangements that have been in place for some twelve months has resulted in X and Y’s relationship with the Husband becoming more significant and their relationship with him to have developed and progressed further as a result.
The maternal grandmother and step-grandfather live in (omitted) in the (omitted). They have an ongoing involvement in X and Y’s lives. The maternal grandmother often travelled to Melbourne to assist in X and Y’s care when the parties were together.
The Husband’s family live in Sydney and X and Y have regularly visited their extended paternal family in Sydney.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child;
(iii) to communicate with the child.
When the parties first separated they lived primarily in the care of the Wife and spent regular alternate weekends and mid-week time with the Husband albeit the Husband would have liked to have spent more time with X and Y during this period.
After the Wife unilaterally relocated to (omitted) in early October 2014, the Husband retained X and Y in his care after they spent time with him for the weekend. There was a period of some three weeks before the matter came to Court where they spent no time with the Wife.
On 28 October 2014 orders were made by consent for a shared care arrangement. X and Y have since lived with the Wife for eight days per fortnight and the Husband for six days per fortnight, save for school holidays which have been shared.
Whilst the parties both agree that there are current difficulties in their communication, exacerbated by the current litigation and the terms of the Wife’s existing Intervention Order, they seem to have been able to manage a level of effective communication in relation to the children’s living arrangements during the last twelve months.
The importance of them improving their communication into the future has been emphasised by both this Court and Mr U in his report.
Section 60CC (3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
I am satisfied that both parties have fulfilled their obligations to maintain X and Y.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
If the Court were to make orders in the terms sought by the Wife, X and Y’s time with the Husband would be reduced from six nights per fortnight to two nights per fortnight, a considerable reduction in time.
In his Family Report at paragraph 68, Mr U specifically comments on the Wife’s proposal and the reduction it would mean in the time X and Y would be able to spend with the Husband. Mr U comments as follows:
Such a proposal entails the children moving from seeing
Mr Ulster six nights per fortnight to only two. This is a high magnitude change. The children and Mr Ulster enjoy a strong and sound relationship which would be eroded and compromised if their time with him is reduced to such an extent. This would entail a significant loss for them which would not be in their interest.
In his viva voce evidence, Mr U confirmed that if orders were made in the terms proposed by the Wife in the event of relocation, X and Y would be able to maintain a close and loving relationship with the Husband which would in part be compensated for by the additional time in the school holidays proposed by the Wife as well as regular Skype and telephone communication, although as Mr U observed, “it can be a bit hard to hug a computer”.
Section 60CC (3)(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.
If the Wife, X and Y were permitted to relocate to (omitted), it would make the current shared care regime impractical given the distance between (omitted) and (omitted).
During the report preparation, the Wife put forward a compromised proposal to the Husband that she relocate with the children to (omitted) and the Husband relocate to (omitted) so that the shared care arrangement continue.
Whilst the Husband seriously considered the Wife’s proposal, he concluded that it would not be feasible given the distance between (omitted) and his place of work in (omitted).
If relocation were allowed, the distance between (omitted) and (omitted) is approximately 85 kilometres or about a one and a half hour drive. This is markedly different to an interstate or overseas relocation. The distance is not so prohibitive that it would not enable regular time before X, Y and the Husband, nor prevent the Husband from being able to attend important school events or extra-curricular activities.
Section 60CC (3) (f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parties have the capacity to meet X and Y’s physical, emotional and intellectual needs.
Section 60CC (3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant.
Not Applicable.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
Both the Wife and Husband are responsible, committed and loving parents who want only what is in the best interests of their children.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.
Both parties make allegations against the other of verbal and physical abuse during the course of their relationship.
The circumstances surrounding the parties’ physical separation are set out in this judgment in detail and will not be repeated here.
The parties have had limited interaction since separation and neither report instances of inappropriate behaviour since separation occurred.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter;
As a result of the incident which took place when the parties separated in June 2014, the Wife obtained an intervention order for her protection against the Husband.
Despite indicating to Mr U that she would not seek to extend the intervention order, it is the Wife’s evidence that she has made an application for an extension of the intervention order due to her ongoing fear of the Husband. The outcome of the Wife’s application to extend the intervention order is unknown at this time.
Section 60CC (3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In the majority of parenting cases, the Court seeks to make orders that are a blueprint for the children’s future living arrangements such that the parties are able to focus on the parenting of their children and avoid the emotional and financial cost of ongoing litigation. This is such a matter.
It is hoped that whatever the outcome of this case, the party who is disappointed with the outcome will set aside that disappointment and instead focus on how to best parent X and Y into the future.
Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.
Whilst the parties were in agreement that there be a sharing of all school holidays, they were apart on how the summer school holidays should be divided.
The Wife is seeking orders that X and Y spend two block periods with each of the parties of two weeks and one week respectively.
The Husband is seeking orders that the long summer vacation be divided such that X and Y spend half of those holidays in one three week block with each of their parents.
It is the Wife’s evidence that she believes that given X and Y’s relatively young ages, three weeks away from either parent is too long a period for them to manage.
It is the Husband’s evidence that as his family live in Sydney, the three week block affords X and Y the opportunity to spend a lengthy period of time with their extended paternal family and avoids the inconvenience of having to travel back and forth. It is the Husband’s further evidence that in the 2014/2015 long summer vacation he believes X and Y coped with this period of time away from their mother.
In paragraph 44 of his Family Report Mr U makes the following observation in relation to this issue:
44. Three consecutive weeks are a long period of time for young children to go without having contact with the other parent. Y is still only seven years old and what Ms Viney is suggesting is a fairly minor structural variation. (It is surprising that Mr Ulster did not raise this as a consideration as the children also go without seeing him for three weeks, a substantial period.) Such a suggestion has merit and is supported. A two week block will still enable Mr Ulster to take the children to visit his parents and other members of his family interstate. Presumably, if the parents can move to a better way of relating, they will be able to negotiate extensions and longer holiday periods as needed.
Presumption of Equal Shared Parental Responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents are engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child.
In this matter both parties are seeking orders that they have equal shared parental responsibility for X and Y.
Whilst the parties concede that their current communication is poor, it is apparent that they are able to communicate effectively in relation to arrangements for X and Y, other than where they shall live. There is no reason to suspect that this capacity will not only continue but hopefully improve into the future.
In these circumstances I am satisfied that an order should be made for the parties to have equal shared parental responsibility for X and Y as the presumption of equal shared parental responsibility has not been rebutted.
Consideration of Equal Time or Substantial and Significant Time
Where parties have equal shared parental responsibility for a child, section 65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent.
The Husband seeks orders that X and Y live equally with each of the parents whilst the Wife is seeking orders that would provide for the Husband to spend significant and substantial time in the event relocation is allowed.
Conclusion
This matter relates to the future living arrangements for the parties’ children X aged nine and Y aged seven.
The Wife is seeking to relocate to (omitted) in (omitted) with X and Y and for them to spend alternate weekends, an evening each week, ten days in the long term holidays, half the long summer vacation and special occasions including (religion omitted) holidays with the Husband.
The Husband is seeking orders that X and Y continue to live proximate to (omitted) Primary School and that they live week about with each of the parties.
The Wife, who is a (occupation omitted), has been successful in obtaining a position as a (occupation omitted) in the (omitted) region. Further, she is keen to take what will be a relatively modest property settlement and to utilise that to buy a home for herself, X and Y to live in. It is her evidence that this ambition is achievable in (omitted) but impossible in Melbourne.
It is the Wife’s evidence that a position as a (occupation omitted) is not readily available in Melbourne and at this time no such position is available to her. Whilst conceding that she is eminently employable as a (occupation omitted), it is her evidence that she would have to work shift work in Melbourne which greatly impacts on her capacity to be available to care for X and Y when they are not otherwise at school, particularly now that she and the Husband are separated.
It is the Wife’s further evidence that her mother and step-father live in (omitted) and are much more readily available to assist her in caring for X and Y if she too were to live in that area.
The Wife openly acknowledges the close and loving relationship X and Y have with the Husband. It is her evidence that she believes X and Y will be able to maintain and continue this close relationship with the Husband if arrangements were put in place as proposed by her.
Whilst the Wife concedes that X and Y will face some challenges in having to change school and move to a new area, it is her evidence that X and Y are intelligent, social, delightful children who will, with the assistance of herself and the Husband adjust to that change and she believes thrive in their new home and school environment.
It is the Husband’s evidence that he has always been a hands-on father who has a close and loving relationship with his children. It is the Husband’s evidence that since the interim orders were made in October 2014 whereby X and Y live with him for six nights in each fortnight, their relationship has been further consolidated and enhanced.
It is the Husband’s evidence that if the Wife is permitted to relocate to (omitted) with X and Y, the reduction in the time that X and Y spend with him from six nights to two nights in each fortnight will severely damage the current close and loving relationship that he has with X and Y to their considerable detriment.
It is the Husband’s evidence that X and Y are extremely happy at (omitted) Primary School. They are progressing very well, are well settled, have many friends and are actively involved within their school and local community.
It is the Husband’s further evidence that both children, but particularly X, have an interest and love of music and that it is he who has been the parent who has been most involved in this activity.
During the preparation for the Family Report, the Wife put forward a compromise proposal that she, X and Y relocate to (omitted) and the Husband relocate to the outer (omitted) suburbs of Melbourne so that they could continue the current shared care arrangement.
It is the Husband’s evidence that he seriously considered the Wife’s proposal but concluded that it was impractical as he would not be able to sensibly commute to and from his place of employment in (omitted) on a daily basis and care properly for X and Y when in his care.
The report writer Mr U, while sympathetic to the Wife’s aspirations to acquire security of employment in a position that enabled her to be available for the children as well as her own home, was strongly of the view that the level of disruption that the Wife’s Application entailed is not in X and Y’s best interests.
Given the Wife’s profession as a (occupation omitted), Mr U posited that she should be able to readily find employment in Melbourne. Mr U suggested that the Wife’s proposal imposes disruption on three people whereas if X and Y were to stay in Melbourne, the disruption would be to one person only, being the Wife.
The tension between a parent’s right to pursue their own life and put in place new living arrangements after the breakdown of a relationship when there are children of that relationship and the entitlement of those children to continue to have regular and ongoing interaction with both their parents, lies at the very heart of what makes relocation cases amongst the most difficult to determine.
In this matter there are two loving, highly competent parents whose children love and respect them and with whom they wish to continue to spend as much time as possible.
With the breakdown of the marriage, the Wife is seeking to retain what for her is the perfect job being one which allows her to properly utilise her area of expertise but maintain her availability to care for her children. She is also seeking to move to an area where she can afford to buy her own home rather than remaining in the rental market with the resultant gradual diminution of capital and no prospects for
re-establishing herself financially.
The Husband wishes to continue his current level of interaction and involvement in the lives of his children and to minimise any disruption to them, particularly in the context of their well settled life in their school and community.
Ultimately parenting orders have to be determined in accordance with provisions of the Act and therefore on the basis of what is in the best interests of X and Y.
Whilst much was made by Mr U and the Husband of the employability of the Wife as a (occupation omitted) in Melbourne, I am satisfied that positions of the type found by her in (omitted) being that of the school (occupation omitted) are not readily obtainable in Melbourne.
If the Wife were to remain in Melbourne I am satisfied that it is probable that the employment available to her would involve shift work, weekend work and a lack of predictability such that she would not be available with any degree of certainty to provide the level of care to X and Y that would be optimal for them.
I am also satisfied that if the Wife were to remain in Melbourne, she will not have the capacity to purchase her own home and would be locked into the rental market so that her capital would dwindle leaving her with minimal financial security.
Whilst Mr U expressed the view that ideally children should not be exposed to disruption, life is rarely ideal. Family life is often disrupted by the loss of a job, change of employment location, serious illness or parental separation. Children do manage these disruptions, especially if they are supported by two loving and caring parents.
Whilst relocation for X and Y would be disruptive and initially challenging for them, they are described by their parents and Mr U as intelligent, bright, happy, well-adjusted children who are equipped to manage the disruption and challenges that relocation would afford them.
I am also satisfied that their current close and loving relationship with the Husband would continue in the event of relocation albeit not at the optimal level that the Husband would seek occur.
In all these circumstances I am of the view that it is in the best interest of X and Y that they live with the Wife and that she be permitted to relocate to (omitted). In circumstances where the Wife will remain X and Y’s primary carer, relocation will enable her to establish a secure home for X and Y with employment what will enable her to be available to care for them outside school hours.
Given that it is now the fourth term of the school year, I am of the view that X and Y should be permitted to finish out their school year at (omitted) Primary School. Therefore relocation is not to take place until the end of the school year.
In the intervening period X and Y’s current living arrangements will continue. The intervening period will also enable the Wife and Husband sufficient time to properly research the schools in the (omitted) area and reach agreement on which school they both agree will best meet X and Y’s needs.
Upon relocation, orders will be made that reflect the agreed proposals of the Husband and Wife.
Finally, in relation to the long summer vacation, I am of the view the 2015/2016, 2016/2017 and 2017/2018 long summer holidays should be taken in two and one week blocks as proposed by the Wife but thereafter both X and Y will be old enough to have a three week block with each of the parties.
Property Matters
The matters relevant to this aspect of the matter are set out in the introduction and background of this judgment.
In addition to the Affidavits relied upon by the Wife referred to in paragraph 55 herein, the Wife relies on her Financial Statement sworn 2 July 2015.
In addition to the Affidavits relied upon by the Husband referred to in paragraph 76 herein, the Husband relies upon his Financial Statements sworn 1 October 2014, 9 October 2014 and 1 July 2015.
The Issues
Having read the material relied upon by the parties in these proceedings, heard their evidence, considered their proposals and having heard the submissions made on their behalf, the issues requiring determination of financial matters are as follows:
a)what should be the adjustment made in the Husband’s favour arising from his initial contribution of $477,603 at the commencement of cohabitation?
b)what adjustment should be made in the Wife’s favour for section 75(2) factors and in particular the disparity in the parties’ earning capacities and the Wife’s primary care of X and Y?
The Law
Section 79 of the Family Law Act 1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(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; and
(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 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; and
(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; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under section 75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that prior to making orders for the division of the property in which the parties have an equitable interest in accordance with the provisions of section 79 of the Family Law Act 1975 (“the Act”), the Court must first determine that is just and equitable that the Court make such orders.
The High Court in Stanford (supra) held that in the majority of matters the decision as to whether it is just and equitable for the court to make property orders is easily resolved by the breakdown of the marital relationship and the mutual desire of both parties for orders altering their respective property interests.
This is such a matter, and thus it is apparent it is just and equitable that orders be made adjusting property matters between the parties.
Prior to the decision in Stanford (supra), a trial judge would follow the four step approach in determining how to alter property interests between the parties as articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia [2003] FamCA 395.
The four step process set out in Hickey is as follows. Firstly, the Court will determine the nature of the property pool and attribute valuations. Secondly, the Court considers the contributions of the parties to the property pool including direct and indirect financial contributions and non-financial contributions often in the form of homemaker or parent. Thirdly, and after considering entitlements based on contributions the Court determines whether any further adjustments to either parties entitlement is proper, given the considerations under s.75(2) of the Act. Finally, the Court stands back and considers whether the proposed division of the property is just and equitable pursuant to section 79(2) of the Act.
The High Court in Stanford (supra) and subsequently the Full Court in Bevan and Bevan [2013] FamCAFC 116 observed that this four step approach should not be rigidly followed.
However, the Full Court in Bevan (supra) also indicated that in the majority of property cases, the four step approach is an appropriate manner in which to approach the determination of the division of properties between parties once the Court is satisfied that such division is just and equitable.
I am satisfied that this is a matter where the four step approach of Hickey is the appropriate approach to be taken to determine a just and equitable division of property between the parties.
Assets and Liabilities
The parties are in agreement as to what constitutes the matrimonial pool for the purposes of these proceedings. It is as follows:
Asset Pool
Balance of Proceeds of Former Matrimonial Home
$644,492
Partial property division
Husband: $61,000
$39,000
Wife: $61,000
$26,500
Less Credit Card payment - $5,643
$100,000
$81,857
Caravan
$7,000 E
Total
$833,349.00
Superannuation
a) Husband’s Superannuation
b) Wife’s Superannuation
$103,754
$52,874
Total Superannuation
$156,628.00
Contributions
It is common ground between the parties that at the commencement of cohabitation the Husband had assets of $477,603 made up of shares with a value of $267,828, savings of $195,571 and $14,204 in superannuation.
The parties financial history is set out in paragraphs 19-24, 37, 38 and 53 of this judgment.
It is submitted on behalf of the Husband that during the course of the parties’ 15 year relationship each contributed in a variety of ways both directly and indirectly, financially and non-financially, such that the Court can be satisfied that those contributions whilst diverse and disparate were of equal value.
It is submitted on behalf of the Husband that the vast bulk of the asset pool now available for division between the parties can be directly traced back to the initial contribution made by the Husband at the commencement of the relationship. It is argued that the Property G property was purchased primarily from the Husband’s pre-sale contributions and that in turn it was the proceeds of sale of the Property G property that enabled the purchase of the Property F property and the creation of the offset account at that time. It is submitted that the proceeds of sale and the offset account now make up over 90% of the agreed pool for division between the parties.
Counsel for the Husband referred the Court to the Full Court decision of Norman & Norman [2010] FamCAFC 66 in which the Full Court discussed the approach to be adopted in relation to significant initial contributions by one party.
In paragraph 26 of Norman & Norman (supra) the Full Court held as follows:
26. In Cabbell and Cabbell [2009] FamCAFC 205 this Court said:
44. In Williams & Williams [2007] FamCA 313 the Full Court (Kay, Coleman and Stevenson JJ), after discussing conflicting cases determined in the New South Wales Court of Appeal under the Property (Relationships) Act 1984 (NSW) which involved discussion of how initial contributions should be assessed in a property adjustment case under that legislation, said at paragraph 26:
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
Counsel for the Husband submitted that taking into account all relevant contributions there should be an adjustment in the Husband’s favour of between 20% and 25%.
It is submitted on behalf of the Wife that whilst the Husband made the greater initial contribution, the contributions by the Wife as the primary carer of the parties’ two children, as the homemaker and as an income earner during the parties’ fifteen year relationship means that the initial contributions made by the Husband have been impacted and diminished.
It is further submitted on behalf of the Wife that it is not appropriate to take an arithmetical approach with the calculation of the initial contributions by the Husband but rather to consider contributions of both parties over the entirety of the relationship.
It is therefore submitted on behalf of the Wife that the Husband’s contribution should be assessed at between 7.5% to 12.5% in the Husband’s favour.
The Full Court in the matter of Cabbell & Cabbell [2009] FamCAFC 205 considered the development of the Court’s jurisprudence in respect of initial contributions. Having noted there is no formula which prescribes how a Court should deal with initial contributions in cases of property adjustment, it was then held at paragraph 43 as follows:
43. The principles enunciated in decisions prior to 1999 are conveniently reviewed in Pierce & Pierce (1999) FLC 92-844 at paragraphs 25 - 27 of that judgment. In those paragraphs the Full Court (Ellis, Baker and O’Ryan JJ) referred to the cases which discussed the concept of an initial contribution being “eroded” or offset to a greater or lesser extent by later contributions during the marriage, and the qualification to or expansion of this concept by Fogarty J in Money & Money (1994) FLC 92-485 at 81,054, namely that later contributions over a long marriage did not need to be greater, but rather those contributions (sometimes referred to as the myriad of other contributions) “offset” the significance which might be placed on greater initial contributions. Their Honours then, at paragraph 28, explained that in assessing contribution (including initial contributions) rather than considering if an initial contribution had been “eroded”, what was relevant was the “weight to be attached, in all the circumstances, to the initial contribution”. Their Honours then explained the initial contribution should be weighed with all other contributions, and in paragraph 30 stressed the need for a trial Judge “not only to identify the relevant contributions, but also to assess them”. That latter statement of principle is consistent with the discussion in Mallet v Mallet (1984) 156 CLR 605 where Mason J said in discussing s 79:
The section contemplates that an order will not be made unless the court is satisfied that it is just and equitable to make the order (s. 79(2)), after taking into account the factors mentioned in (a) to (e) of s. 79(4). The requirement that the court “shall take into account” these factors imposes a duty on the court to evaluate them. Thus, the court must in a given case evaluate the respective contributions of husband and wife under pars. (a) and (b) of sub-s. (4), difficult though that may be in some cases.
There is no doubt in this matter that Husband’s initial contributions were the basis upon which the current pool of assets are available for divisions between the parties, albeit I don’t necessarily agree they account for over 90% of the current pool given both parties were working prior to the birth of X, both contributed to the payment of the mortgages on their properties and both contributed to their savings including the $33,000 of joint savings that went into the initial purchase of the Property G property.
During the parties’ relationship both parties contributed in diverse ways as parents, income earners, homemakers. During this period they created homes for themselves and for their children.
A contemplation of those contributions are such that I’m satisfied that there should be an adjustment in the Husband’s favour of 15%.
Section 75(2) factors
It is submitted on behalf of the Husband that when considering the disparity in income earning capacity between the parties, the Court is obliged to consider the Wife’s capacity to earn income as a full time employee as opposed to her current earnings as a part time employee. It is submitted that as a full time (occupation omitted) she could earn approximately $80,000 a year which is not significantly less than the Husband’s current earnings of $109,000 per year.
In a somewhat unusual argument it is submitted on behalf of the Husband that the adjustment in the Wife’s favour in relation to section 75(2)(c) is not the basis upon which the Court should make an adjustment pursuant to section 75(2).
It is submitted on behalf of the Husband that in the event the Wife is required to remain in Melbourne there should be an adjustment in her favour of an additional 5% because of the acknowledged greater cost of living and accommodation imposed upon her in that circumstance as opposed to the lesser costs of living if she is permitted to relocate.
It is therefore the submission of the Husband that the adjustments in the Wife’s favour for section 75(2) factors should be 8% in the event the Wife is permitted to relocate and 13% in the event the Wife is required to remain living in Melbourne.
It is submitted on behalf of the Wife that there should be an adjustment in her favour pursuant to section 75(2) factors because of the disparity in the parties’ income earning capacities and her primary responsibility for the care of X and Y, particularly given their relatively young ages.
It is submitted on behalf of the Wife that as the children’s primary carer it is appropriate that the Wife should adjust her working hours to ensure that she is available as much as possible for the care of X and Y. She is currently earning $50,000 per annum, commensurate with her earnings during the course of the marriage once she had returned to employment.
It is submitted on behalf of the Wife that she will have the primary care of the parties’ two young children and the associated costs arising from that responsibility.
It is therefore submitted on behalf of the Wife that there should be and adjustment in her favour of 12.5%.
I am satisfied that there should be an adjustment in the Wife’s favour in respect to section 75(2) factors. I accept that there is a disparity in the parties’ current earning capacity and that the Wife does have the primary care of the parties’ two young children. In those circumstances there will be an adjustment in the Wife’s favour of 10%.
Superannuation
Both parties are in agreement that orders should be made equalising the parties’ respective superannuation entitlements and in those circumstances a splitting order will be made in the Wife’s favour with a base amount of $25,440.
Conclusion
As can be seen I have determined that the parties’ realisable assets should be divided such that the Husband receive 55% of same and the Wife receive 45% of same.
When this matter was before the Court for final hearing, the parties reached agreement that they would sell the jointly owed caravan and that the proceeds of sale of that caravan would be divided in accordance with the percentage division of the parties’ assets as a whole.
Assuming that the caravan sold for the estimated value of $7,000 then from the monies held in trust the Wife should receive approximately $293,000 and the Husband the balance with the parties otherwise retaining the part property distribution already received by them.
Accordingly, orders will be made which will make provision for the monies currently held in trust on behalf of the parties to be divided such that the Husband receive 55%, and the Wife receive 45% of the parties’ total realisable assets taking into account the monies already received by them and the proceeds of sale of the caravan.
An order will also be made for a superannuation split in the Wife’s favour as has been agreed between the parties. I note the Husband’s superannuation fund has been accorded procedural fairness.
Just and Equitable
In the context of considering whether this outcome is just and equitable for the parties, I am satisfied that the overall adjustment in the Husband’s favour is an appropriate recognition of his initial contribution and that it achieves an outcome that will enable the Wife to realise her ambition to reaccommodate herself, X and Y in (omitted). At the same time it will afford the Husband the opportunity to re-establish himself in (omitted) or wherever else he may choose to reside.
In these circumstances I am satisfied the outcome is just and equitable.
I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 14 October 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Costs
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