VAN HOUSEN & ANALKA

[2017] FamCA 388

FAMILY COURT OF AUSTRALIA

VAN HOUSEN & ANALKA [2017] FamCA 388

FAMILY LAW – CHILDREN – Relocation – With whom the child should live – Where the mother seeks to relocate with the child to New Zealand – Where the Family Consultant was clear to say that the best option was for the child to grow up in close proximity to both parents – Where the mother has provided a high standard of care for the child in every way – Where the child presented as confident and secure child with attachments to both parents – Where the father is likely to be a source of fun and learning outdoors for the child – Where the attitude of the mother to the father is critical and tends to undervalue his role – Concluded that there can be no confidence the mother would ensure the relationship between child and father is sustained as there is no confidence the mother values that relationship – Ordered the child lives with the mother in Australia

FAMILY LAW – CHILDREN – Parental responsibility – Where both parties propose equal shared parental responsibility – Where the parties are able to communicate well by text about the child – Concluded the parties have the capacity to work out between themselves a way of raising long term issues – Concluded there is no risk to the child being exposed to family violence – Ordered the parties share parental responsibility

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable –Where the parties lived together for four years – Where the family home was purchased by the wife and the purchase funded by her parents through a family trust – Where the wife’s parents assert the funds provided are a debt to the trust – Where the wife made repayments to the trust whereas the husband’s payments to the wife were categorised as rent – Where the alleged indebtedness equates to 90 per cent of the value of the property – Concluded that in circumstances where debt levels are determined by the wife’s parents there would be a risk of injustice of applying the asserted debt levels – Concluded the asserted debt levels should not be bought into account – Declared that each party retain those assets and be responsible for those liabilities currently in his and her possession

FAMILY LAW – SPOUSE MAINTENANCE – Where the wife has a proven capacity to work and will likely do so for three or four days per week – Where the wife is currently unemployed – Where the husband earns approximately $2,000 gross per week – Concluded additional $500 per week is sufficient to cover a period for the wife while she seeks employment – Ordered the husband pay the wife $500 per week as spouse maintenance for a period of six months

Family Law Act 1975 (Cth), ss 60CC, 61DA, 64B, 75, 79, 90UC

Bevan & Bevan [2013] FamCAFC 116
In the marriage of Bitloft (1995) 19 Fam LR 82
Stanford & Stanford (2012) 247 CLR 108

WIFE: Ms Van Housen

RESPONDENT: Mr Analka

INDEPENDENT CHILDREN’S LAWYER: Not Applicable

FILE NUMBER: SYC 5100 of 2015

DATE DELIVERED: 2 June 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATE: 13 – 16 February 2017

REPRESENTATION

COUNSEL FOR THE WIFE: Mr Schonell SC

SOLICITOR FOR THE WIFE: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: David H Cohen & Co.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

Orders

Parenting

1. That all prior orders in relation to B born … 2014 (“the child”) are discharged.

2. That the parents have equal shared parental responsibility for making decisions about long term issues in relation to the child.

3. That the child shall live in Australia with the mother.

4. That each party shall have parental responsibility for making day to day decisions about the care of the child during periods when the child is living/spending time with that parent.

5. That the child will spend time with the father as follows:

   (a)       Until she turns three years (… 2017):

   (i)From 10.00 am to 6.00 pm on Wednesday each week;

   (ii)From 10.00 am on Saturday to 10.00 am on Sunday each alternate weekend; and

   (iii)From 5.00 pm on Saturday to 5.00 pm on Sunday each other weekend.

   (b)       From age three to commencement of school (2020):

   (i)From 10.00 am to 6.00 pm each Wednesday;

   (ii)Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday; and

   (iii)For one period  of five days in each three month period commencing after August 2018 with the father to nominate the preferred periods in writing not less than 28 days in advance and the mother to nominate alternate dates where there is a genuine reason to do so.

   (c)       From commencement of school (2020):

   (i)Each alternate weekend from after school Friday to 5.00 pm Sunday;

   (ii)Each week from after school Wednesday to before school Thursday; and

   (iii)For half of each school term holiday period being the first half in even numbered years and the second half in odd numbered years.

6. The mother shall authorise the principal and staff of the child’s preschool, day-care centre and school to supply the father with copies of all reports, photographs, counsellor’s notes, memos, newsletters, invitations, notices and any other information in relation to the child that the father may request from the preschool, day-care centre or school from time to time.

7. That each party notify the other immediately of any serious injury or illness suffered by the child whilst with that party.

8. That each party notify the other not more than 24 hours after they have changed their address and/or landline or mobile telephone number.

9. That the child’s passport shall be released to the mother by the Family Court Registry within 7 days of the date of the making of these orders.

10. That each of the parties shall ensure that B holds a current passport at all times and do all acts and things and sign all documents to renew her passport and the mother shall hold the child’s passport at all times.

11. It is requested that the Australian Federal Police give effect to these orders by removing the name B, born … 2014, from the Airport Watch List.

12. That the mother refrain from making critical or derogatory remarks about the father or members of his family in the presence or within the hearing of the child and do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or other members of his family in the presence or within the hearing of the child.

13. That the father refrain from making critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of the child and do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or other members of her family in the presence or within the hearing of the child.

Property

1. Each party is declared to have no further interest in the items of property and personalty (including but not limited to interests in superannuation) in the possession of the other.

Spouse Maintenance

1. The husband shall pay to the wife the sum of $500 per week by way of spousal maintenance for a period of six months from the date of these orders.

2. All outstanding applications are otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Housen & Analka has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC5100/2015

Ms Van Housen

Wife

And

Mr Analka

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing applications by the Applicant wife/mother Ms Van Housen (37) and the Respondent husband/father Mr Analka (38).

2. The orders sought relate both to parenting, including international relocation, in respect of one child of the marriage, B, a girl aged two years and nine months and to adjustment of interests in matrimonial property.

3. The parties began a relationship in mid-2010, began living together in October 2011 and married in 2013.

4. In 2014 the subject child was born.

5. In 2015, when the child was 11 months old, the parties separated and have not reconciled.

6. The mother was born in New Zealand. She has been a permanent resident of Australia for about 18 years. She wishes to return with the subject child to live in her country of birth, principally for the support and assistance of her parents there.

7. The father is an Australian citizen. He was born in European Country C. He has also lived in Australia for about 18 years, having migrated here with his parents. The life of the paternal family was adversely affected by war in the former Country D. The paternal family lived in Country E and Country F prior to settling in Australia. The father opposes the mother taking the child to live in New Zealand.

8. The parties live in reasonable proximity in inner suburbs of Sydney.

9. The hearing was conducted over four days in February 2017 and was concluded in the allocated time. Judgment was reserved.

History of Relevant Events

1. In 2007 the husband purchased a property in Suburb G, H Town in Queensland. (“the Suburb G property”). The purchase price was $230,000. The property has been valued for the purposes of these proceedings by a Single Expert at $175,000.

2. In 2009 the husband purchased another property in Suburb I in Queensland (“the Suburb I property”). The purchase price was $270,000. The valuation of a Single Expert in these proceedings puts a value of $240,000 on this property.

3. In July 2010 the parties began their relationship.

4. On 14 April 2011 the wife purchased a property in Suburb J in the inner west of Sydney for $555,000 (“the Suburb J property”). She was assisted to do so by provision of funds from maternal family trusts. The Suburb J property has been valued by a single expert for these proceedings at $860,000.

5. The wife’s parents are the mortgagees of an unregistered mortgage over the property in respect of the loan.

6. In late 2011 or early 2012 the father lost his employment and remained unemployed for about six months. He pursued an application for unfair dismissal. The wife assisted him in the preparation of that application in which he was successful, at least to some extent.

7. On 16 August 2012 the parties entered into a Binding Financial Agreement pursuant to s 90UC of the Family Law Act 1975. Although that agreement ceased to become binding after the parties married the contents of it has some significance in these proceedings.

8. In 2013 the parties married. It was at this point that the Binding Financial Agreement ceased to be binding.[1]

   [1] Annexure 90UJ sub par 3 Family Law Act 1975

9. On 16 October 2013 the husband purchased a third investment property in Suburb K, an outer western suburb of Sydney (“the Suburb K property”). The purchase price was $302,000. A Single Expert has valued the property for the purposes of these proceedings at $560,000.

10. Both of the parties and each of their parents worked on the Suburb K property to bring it up to a reasonable standard for rental. It was during this time that the wife learned that she was pregnant with the subject child.

11. From the time the parties began living together until the wife ceased work to give birth to the parties’ child, she had been employed earning between $95,000 - $115,000 per annum.

12. In July 2014 the mother ceased work and commenced twelve months maternity leave from her employment with Business L.

13. In 2014 the subject child was born.

14. On 10 September 2014 a variation to the mortgage over the Suburb J property was signed by the wife and her parents. The variation was to redefine the principal sum in New Zealand dollars and require that the mortgage repayments also be paid in New Zealand dollars. The other area of alteration was as follows:

    a)The mortgage had provided for the principal sum to be paid by 26 May 2026 or within 30 days of a demand for repayment. The variation deleted those provisions and substituted:

    “The principal sum shall be repayable on demand and pending demand for repayment being made, shall be free of interest”.[2]

    [2] Affidavit of the wife/mother filed 23/01/2017, Annexures 10 and 11

15. In May 2015 the subject child commenced at an early learning centre but was withdrawn after two weeks. It is apparent that the relationship between parties was struggling especially in relation to disputes about money. The reduction from two incomes to one was a source of conflict.

16. On 22 July 2015 the mother returned to work after her 12 month period of maternity leave. She returned on the basis of two days per week on a casual contract. The return to employment was short lived, perhaps only a matter of days. The mother asserts that both she and the child had become ill and her employment was terminated on the basis of her being unable to reliably attend work.

17. On 25 July 2015 there was a disagreement between the parties with both sets of grandparents being involved in the dispute. The maternal grandparents were visiting Australia and staying with the parties at the time. It proved to be the last disagreement before separation.

Events after separation

1. On Sunday 26 July 2015 the father left the family home at the request of the mother. He moved to stay with his parents.

2. On the evening of 30 July 2015 the mother made an application to Suburb M Local Court for the protection of herself and the child from the father. There was no evidence offered of violence or injury. Standard orders were made. The basis for the order appeared to be the mother’s fear that the father would take the child into his care.

3. On Friday 31 July 2015 the mother signed her Initiating Application for parenting orders. I conclude that the mother’s plans to travel to New Zealand with the child were in place at the time of signing this application.

4. On 3 August 2015, without prior discussion or notice to the father, the mother travelled with the child to New Zealand. She stayed with the maternal family. It may be that she travelled back to New Zealand with her parents at the conclusion of their visit in July.

5. On 4 August 2015, the day following departure of the mother and child from Australia, the Initiating Application and supporting affidavit of the mother was filed in the Family Court in Sydney.[3]

   [3] Affidavit of the mother filed 4/08/2015

6. In that application the mother proposed sole parental responsibility and residence of the child with her, with leave to relocate the residence of the child to New Zealand. The proposal for time between the child and the father was that it be by agreement between the parties. On an interim basis the mother proposed supervised time between the child and the father in a contact centre.

7. On 10 August 2015 the Apprehended Domestic Violence Order (“ADVO”) came before the Local Court. The mother was not present. Without admissions the father consented to an ADVO for a period of 12 months. This order was for the protection of both the mother and the child.

8. In approximately mid-August 2015 the father moved from his parents’ home to independent accommodation in his current residence in an inner northern suburb of Sydney.

9. On 27 August 2015 the father filed an Application in a Case seeking the return of the child by the mother to Australia, equal shared parental responsibility, sole occupation of the family home, residence with the mother and 12 hours a fortnight for the child with the father.

10. On 12 September 2015 the mother arranged from New Zealand for the filing of a Response to that Application in a Case.

11. On 12 September 2015 the mother and child returned to Australia.

12. On 14 September 2015 interim orders were made by consent as follows:

    a.The mother to deliver the child’s passports to the Registrar of this Court;

    b.The child placed on the airport watch list;

    c.Equal shared parental responsibility;

    d.Exclusive occupation of the home by the mother;

    e.Restraint on the mother relocating further than 20 kilometres from the family home;

    f.Residence for the child with the mother; and

    g.Time for the child with the father each week for two hours on Wednesday afternoon and four hours on one weekend afternoon, alternating Saturday and Sunday.

13. On 17 November 2015 the father filed his Response to the Initiating Application of the mother. Included in the final orders proposed was an incremental increase of time between the child and the father culminating in weekend periods amounting to six nights per fortnight with the father.

14. On 18 November 2015, by consent, an order was made for the mother to travel to New Zealand with the child.

15. In December 2015 the father began a new relationship, continuing at time of trial, with Ms N.

16. On 21 December 2015 the mother travelled with the child to New Zealand for a period of about two weeks.

17. On 1 December 2015 the mother filed an Amended Application in which she altered her position on parental responsibility, moving to equal shared parental responsibility. She also proposed orders for the child to spend time with the father before and after her proposed relocation. The longest period proposed at any one time was for seven hours.

18. On 1 December 2015, the final hearing of this matter was expedited. The parties were directed to attend on a Family Consultant for the purpose of an Assessment.

Child Responsive Program

1. On 1 and 8 March 2016 the interviews for that assessment took place with each parent and the child.

2. On 13 April 2016 the memorandum to the Court arising from the interviews was released. The key issues identified by the Family Consultant were as follows:

   ·Whether [the child] should be permitted to relocate to New Zealand with the mother;

   ·The time that [the child] spends with [Mr Analka] in Sydney or City Q;

   ·The allegations of family violence raised by the mother;

   ·[The child’s] age and stage of development; and

   ·Conflict over parenting styles.

3. The child was observed to show no signs of distress upon separation from either of her parents. There was easy affection displayed by the child during observation with each of her parents. The evaluation at that time was that:

   1.There were differing versions of family violence reports by each parent;

   2.They each alleged the other to be controlling;

   3.The mother was assessed to be the child’s primary care giver and the father the primary financial provider.

4. The Family Consultant considered that as the child had lived with both parents for the first 12 months of her life she was likely to have begun to form the foundations of an attachment with her father as well as with her mother and that that attachment may have been breached by the period of about two months where the child did not see her father. However that developing relationship had strengthened since contact resumed in September.

5. The conclusion of the Family Consultant at that time was as follows:

   Given [the child’s] age, it would be optimal for her to reside in close geographical proximity to both her parents as this would provide more opportunity for [the child] to develop meaningful relationships with them both. If living in close proximity is not possible for her parents, this means that one parent will not have a day to day presence in her life. While this may constitute a loss for [the child], now and in the future, the impact of the loss of this relationship for [the child] may somewhat be reduced if the parents maintain a cooperative parenting relationship. Practical measures, such as: [the child] having photographs of her father; [Ms Van Housen] talking positively about [Mr Analka]; and access to technology such as Skype may to some extent, moderate the impact of her not having her father in her day to day life, if a relocation is granted.[4]

   [4] Child Responsive Program Memorandum dated 13/04/2016, par 26

1. The Family Consultant also recommended a full Family Report.

2. On 10 May 2016 a Family Report was ordered. At that time the Court noted that the mother proposed to amend her application to include orders for property settlement.

3. On 26 May 2016 the wife filed her Further Amended Initiating Application. There were no property orders formulated. Rather the wife sought to reserve her right to particularise a claim for property settlement and spouse maintenance to a later date when disclosure and valuations had been completed.

4. On 9 June 2016 the father filed his Amended Response proposing:

   ·Restraint on the child being removed from the Commonwealth;

   ·Equal shared parental responsibility;

   ·Restraint on the mother relocating with the child more than 20 kilometres from her usual place of residence (in Sydney); and

   ·Overnight time with father to commence once the child turned three.

5. In respect of property the father proposed that the wife’s application be dismissed and each party retain the realty and personalty in their possession at the time of separation.

6. On 22 June 2016 the parties engaged in a Conciliation Conference and issues were unresolved.

7. On 6 July 2016 interviews took place with both parents and the child for the Family Report.

8. Later in that month the mother, with the consent of the father, travelled with the child to Queensland for a holiday with the maternal family.

The Family Report

1. On 1 August 2016 the Family Report was released. The evaluation of the Family Consultant was that despite remaining in dispute about the proposed relocation by the mother to New Zealand the parents appeared to be handling post-separation parenting well and there were no risk considerations for the child. Indeed, she was assessed as fortunate to have two parents and two sets of grandparents who loved her and who were contributing to the raising of a “secure, sociable, happy little girl.”[5]

   [5] Family Report dated 28/07/2016, par 41

2. The communication between the parents was noted as minimal ,with a benefit for the child if there was effective communication between the parents, at least about her, especially if relocation was to occur.

3. The Family Consultant considered a range of outcomes: 

   First, the child living with the mother in Sydney and spending time with the father. The benefits of that arrangement were identified as being no significant change to the current arrangement of close proximity to both parents enabling the relationship with the father to continue to flourish. It would also enable the father to have day to day involvement in the child’s life, her daily routines, day care, medical appointments and other activities.

   I accept the professional opinion expressed at the end of this first option as follows:

   The involvement of both parents in all aspects of children’s lives has been shown to maximise their chances of healthy psychological, educational and emotional development.[6]

   [6] Family Report dated 28/07/2016, par 48

4. Next, the child living with the mother in New Zealand. In the view of the Family Consultant if the child were to move to New Zealand and see her father only a few times a year, she would experience a significant loss. Despite concluding that the mother did not have the intention of severing or curtailing the child’s relationship with her father, because of the child’s age and consequent limited ability to understand the concepts of time and distance:

   The father/child relationship would inevitably diminish in intensity and depth.[7]

   [7] Family Report dated 28/07/2016, par 49

5. Next, the child living with the mother in Sydney but relocating to New Zealand at a later stage. This possibility was assessed as allowing the child to develop and strengthen her relationship with her father so that it would be less likely to diminish in warmth and intensity after relocation.

6. With this option the Family Consultant considered the most appropriate time for relocation would probably be a short time before commencement of school. [Assuming that the child commenced school at five and a half, this would see relocation towards the end of 2019.] 

7. The perceived benefits were that the parents would have a longer opportunity to improve their communication enhancing the child’s chances of maintaining a good relationship once separated; that the child would be old enough to remember and hold on to thoughts and feelings about her father and paternal grandparents; that the child would be then more adept at using electronic communication to keep emotional communications alive.

8. The Family Consultant considered that the child would feel a sense of loss and miss her father, perhaps even more than she would at aged two but the foundations of their relationship would be more solid.

9. The Family Consultant raised the prospect of greater financial support for the mother during this period.

10. The Family Consultant was clear to say the best option for the child was to remain in Sydney for her to grow up in close proximity with both her parents but in the event that the Court considered a relocation appropriate, it was best delayed for a period to enable the relationship between the child and the father and the paternal grandparents to continue to build and consolidate.

11. The Family Consultant recommended that both parents attend a post-separation parenting course. The mother attended a Triple P parenting course but not a post-separation course.

Proceeding to trial

1. On 25 August 2016 trial directions were made for the preparation of this hearing.

2. On 15 December 2016, by consent, the mother was permitted to travel with the child to New Zealand returning no later than 9 January 2017.

3. On 8 February 2017 the father filed a Further Amended Response. He proposed that the child would live with the mother as she does now in close proximity to him and that he would spend periods of time expanding at age three and five years. When the child was in Year 1 (2021) equal shared time, week about, would commence.

4. On the first day of trial both parties relied on a Minute of Order contained in their respective Case Outlines.

5. It was in her Case Outline that the mother for the first time quantified her property application in orders proposing that the husband pay to her the sum of $300,000 and in the event that he failed to do so, the sale of the Suburb K property with the proceeds of sale to be distributed $300,000 plus interest to the wife and the balance to the husband.

6. The parenting orders proposed by the mother were somewhat more expansive than previously although proposing no overnight time until the child commenced school.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant wife/mother

   (a)Minute of Orders of the Applicant wife (Exhibit E1);

   (b)Affidavit of the wife filed 23/01/2017;

   (c)Financial Statement filed 23/01/2017;

   (d)Affidavit of the maternal grandmother filed 24/01/2017;

   The Respondent husband/father

   (e)Minute of Order of the Respondent husband (Exhibit E2);

   (f)Affidavit of husband filed 8/02/2017;

   (g)Financial Statement filed 8/02/2017;

   (h)Affidavit of the paternal grandfather filed in Court 16/02/2017;

   (i)Affidavit of the father’s girlfriend filed 31/01/2017;

   Reports

   (j)Child Responsive Program Memorandum dated 13/04/2016; and

   (k)Family Report dated 28/07/2016.

The Law - Parenting

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental Responsibility

1. Each party proposes equal shared parental responsibility. I give considerable weight to that proposal by each parent although there is evidence of difficulties with communication, particularly in person. I take into account the agreed fact that the parties are able to communicate well by text about the child.

2. I also consider that this litigation has kept the level of conflict high as each parent focuses on the outcome of these proceedings. There was an ADVO for 12 months. For reasons which I will come to later in this judgment, I do not consider that the presumption of equal shared parental responsibility[8] is rebutted for reasons of family violence.

   [8] S 61DA

3. Each parent is intelligent and well educated with many years of experience in the workplace. Each has a lot to offer the child and neither should have complete control over her life. The parents have the capacity to work out between themselves a way of raising the long term issues as they come up, particularly with reference to education and health, consulting either between themselves in writing or perhaps in time, in person, or with the assistance of a third party as a mediator/negotiator.

4. The father’s partner expressed her willingness to speak to the mother about anything relevant to the child and I accept her evidence about that.

5. An order will be made for equal shared parental responsibility.

Residence

1. The parties agree that the child should live primarily with the mother. They disagree over whether that residence should be in Australia or New Zealand.

2. In relation to residence, the proposal of the mother is that the child will live with her in New Zealand and spend time with the father as follows:

   a.On three occasions per year the mother will travel to Australia with the child and the child would spend several days, for between six and eight hours with the father.

   b.Also, on four occasions per year, the mother proposes that the father should travel to New Zealand for blocks of a week, likewise spending several days of six to eight hours with the child during each block.

   c.Ultimately the child would begin to spend overnight time when she started school.

3. During the course of the trial both parties formulated orders which they proposed in the event that they were unsuccessful with their primary proposals.[9]

   [9] Exhibits 12 and 14

4. There was also a Minute of various Agreed Orders on specific issues subject to the decision of the Court about relocation.[10]

   [10] Exhibit 13

5. In determining the best interests of the child in this context I turn first to the primary considerations:

   a.The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b.The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence.

6. It is mandatory for the Court to give greater weight to the second consideration.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The subject child does have a meaningful relationship with both of her parents. For all of her life the mother has been her primary carer. The mother has provided a high standard of care for the child in every way. Other than the period of two months of separation in 2015, the child has regularly spent time with the father.

2. After observations in March 2016 the Family Consultant concluded that in the first 12 months of her life when her family was still intact, the child was “likely to have begun to have formed the foundations of an attachment with her father as well as with her mother.”[11]

   [11] Child Responsive Program Memorandum dated 13/04/2016, par 25

3. After observations four months later in July 2016 the Family Consultant reported that “Consistent with her history and reports from both parents she presented as a confident and secure child with attachments to both her parents”.

4. The Family Consultant was comfortable to conclude that the period of no contact [August/September 2015] did not appear to have impacted on the child’s relationship with the father.[12]  He observed “a marked improvement in the warmth of the interactions and the bond between [the child] and [Mr Analka]”[13] since the earlier assessment. This is a credit to both parents. They have shielded their child from their interpersonal disagreements and frustrations and have also been compliant with orders.

   [12] Family Report dated 28/07/2016, par 44

   [13] Family Report dated 28/07/2016, par 44 

5. The parties have very different parenting styles.

6. The mother is attentive to details of diet, sleep, exercise/physiotherapy, speech and social engagement with other children and adults. The mother monitors the child’s progress and makes adjustment as she sees appropriate. Other than when the child is at day care three days per week, or with her father six to eight hours per week, she is with her mother. No doubt there is very little the mother does not know about the behaviour, preferences and vulnerabilities of the child.

7. One consequence of her greater knowledge of the child’s needs is that the mother is quite critical of the father for not following her advice and directions about the care and management of the child when he has her in his care. The mother sees the father as too casual about the child’s health, attendance on doctors and diet. Tendered into evidence were two of the emails[14] sent by the mother to the father. The tone taken is sharp, if not sarcastic, and the directions for care quite forcibly put.

   [14] Exhibit 11

8. The father takes a different approach to being a parent. He considered that the child did not need constant attention as a baby, “[B] needs to learn to play by herself.”  He is inclined to watch the child if she is unwell and wait before consulting a doctor. The father looks forward to having sufficient time with her, to take the child to outdoor places, beaches, swimming pools, mountains, rivers and lakes.[15]  He is also keen to have her learn to sing, dance and play an instrument. The father plays guitar and the child enjoys listening.

   [15] Affidavit of the father filed 8/02/2017, par 89

9. The father is likely to be a source of fun and learning outdoors for the child. The father is quite critical of the mother for her directions to him which he experiences as control. His view is also coloured by the mother having left Australia with the child, without prior discussion. He had not thought that she would do such a thing.[16]  Trust was diminished by this conduct.

   [16] Affidavit of the father filed 8/02/2017, par 35

10. I conclude that a meaningful relationship for the child with each parent brings substantial benefit to her. However, the attitude of the mother to the father is critical and tending to undervalue his role. The most striking example is the mother having left Australia with the child without prior discussion or notice, having implemented an ADVO prior to leaving, without overt complaint to the father, before leaving the country.

11. I cannot be confident the mother would make every effort to ensure that the relationship between the child and the father would be sustained. That is because I cannot be confident that the mother values the relationship between the father and the child to do so.

12. My impression is that the mother has defined the child’s family as herself, her parents and other members of the extended maternal family. The child’s family is of course represented first by each of her parents and next by extended family members, especially grandparents on each side.

13. For that reason, I consider that regular, daily face to face contact with both parents is the best way to ensure that the two most meaningful relationships the child has, are sustained. I am supported in this conclusion by the evaluation of the Family Consultant in April 2016 he concluded as follows:

    It would be optimal for her to reside in close geographical proximity to both her parents as this would provide more opportunity for [the child] to develop meaningful relationships with them both.

    And

    The best option for [the child] would be for her remain in Sydney, reside close to both her parents and have them involved in her day to day life as she grows up.[17]

    [17] Family Report dated 28/07/2016, par 51

14. The following additional considerations are matters I have taken into account in reaching this conclusion:

Additional Considerations

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has important relationships with all four of her grandparents. Unfortunately there is not an easy co-operative and affectionate relationship between the two sets of grandparents. There has been no direct contact since the separation of the parties.

2. The maternal grandparents were staying in the parties’ home in Sydney when the separation took place. It is apparent that the mother and child either travelled back to New Zealand with her parents or followed them back within days of separation.

3. The maternal grandmother was critical of the father and rather dismissive of the need for regular face to face contact between the child and her father. To give evidence as she did, that she was able to maintain a loving relationship with the child despite living in New Zealand (with the inference that the father could do likewise) is to undervalue the significance of the parent and child relationship.

4. The evidence suggests that the mother relies heavily on her parents, not only financially, but emotionally although she has lived independently and in a different country from them since she was about 19.

5. The evidence also supports a conclusion that the father relies heavily on his parents for emotional support and friendship.

6. Each set of grandparents is very strongly supportive of their own adult child. They all want the best for their granddaughter but focus on what best means through the lens of their loyalty and love for their own child.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother has made the majority of decisions about the child out of necessity. However during the relationship although there was considerable turmoil over the name of the child, the mother’s preference prevailed.

2. The mother enrolled the child at a childcare centre and withdrew her after two weeks when she found it unsatisfactory.

3. The mother decided to take the child to New Zealand and her brother’s wedding in Country O without prior consultation with the father.

4. The father has participated in decision making as and when he could.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father has paid child support as assessed and also pays for three days of child care.

1. The mother has not worked since July 2014. She, with the assistance of her parents, is providing accommodation and for other material needs of the child in the former family home.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. This is of great significance in this matter. There is a real risk that there will be an adverse effect on the child if she is separated from her father at her young age.

2. The Family Consultant was clear to say that it would be difficult for the child to carry over her memories and feelings for the father, even if there were six or seven clusters of visits in her own country in Australia and New Zealand.

3. The mother’s proposal is that she and the child would live with her parents in City P until such time as her parents sold their home and moved to City Q. That sale and move is likely but not certain.

4. The purpose of the move from City P to City Q would be to enable the maternal grandparents, the mother and the subject child to live closer to the mother’s brother, the maternal uncle, his wife and two young children.

5. There was no evidence from the maternal uncle. I have no reason not to assume that there would be a benefit in terms of family connection for the child with her maternal cousins but it would be a new arrangement for the extended maternal family to all live in the same city.

6. The current arrangements, age-appropriately expanded, have promoted the child’s welfare and should not be radically changed.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. This is a significant consideration.

2. The proposal of the mother would see the child travelling to Australia three times a year for the period of a week. She and the mother would stay either in a hotel or in the home of one of the mother’s friends. The child would spend the day time hours of three or four days during that week-long period with the father.

3. There is a significant expense for the mother in travelling and obtaining accommodation three times per year for the mother.

4. It is her evidence that she intends to obtain employment in New Zealand but there is no certainty about what that job and level of income will be. The mother’s preference is to work part time, especially before the child starts school. There is no certainty that the mother will be able to afford her own proposal. Nor could it be certain that her employment would allow for time off at the level she proposes

5. If orders were made in accordance with the mother’s proposal for the father to travel to New Zealand in a similar way but for four weeks a year, the child would have, what I conclude would be a difficult time. She would see her father in the setting of the hotel where he stayed. It would be an artificial separation from her maternal family, although it would no doubt be enjoyable to be spending day times with her father.

6. There is a possibility in my view, although it was not explored, that a cluster of day time visits with her father followed by separation of approximately six weeks on each occasion would be quite upsetting and unhelpful for the child emotionally.

Capacity

1. I consider that each parent has the capacity to meet all the needs of the child now and in the future, including her emotional, psychological, financial and educational needs.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is a girl now aged close to three years. She has connections to more than one country and culture. Her mother is a New Zealander who has lived in Australia for almost 20 years. The maternal grandfather was born in Country R and migrated to New Zealand as a young man where he married the maternal grandmother.

2. On her father’s side, her father was born in Country C. His life was disrupted by the war in the former Country D. He has lived with his parents in Country E and Country F and migrated to Australia when he was a young man. The father has a new partner who is Spanish speaking South American.

3. There are rich possibilities for the child in terms of the languages she might speak, English and Country C and possibly Spanish and the culture and history of Australia, New Zealand, Country C and the Country R to explore.

Any family violence involving the child or a member of the child’s family, and 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

1. During the course of the parties’ relationship and marriage there are complaints by the mother that the father was at times aggressive towards her and controlling. She also felt criticised by the father’s parents. However there was no police involvement and not a hint of physical threat by the father to the mother.

2. The events leading up to the mother’s application for an ADVO justifies some close scrutiny.

3. On 21 July 2015 the mother’s parents arrived to stay in the family home. On the following day the mother returned to work at the conclusion of her maternity leave. She negotiated two days work on a casual contract but within a couple of days, ceased work and has not worked since.

4. On 25 July 2015 there was a disagreement between the parties because the father visited his parents and stayed for dinner with them when the mother expected him to come home and have dinner with herself and her parents.

5. The father alleges that the maternal grandfather insulted him in a telephone conversation by calling him a “Dickhead”. The maternal grandfather did not give evidence. The mother denied that she had heard such an insult.

6. On the following day, 26 July 2015, the parties separated. They did so because the mother directed the father to leave “her home” and he did so moving to live with his parents in their home for about three weeks.

7. On 31 July 2015 the father received a letter at that address from the mother’s then solicitors including this paragraph:

   We advise in the clearest terms that you should not attempt to return to the former matrimonial home. Our client does not feel safe in your presence and is fearful of your current behaviour. Any attendance by you would be harassment and intimidation.

8. The father gives evidence that he had expected to see the child on the weekend after he moved out of the family home, but having received that letter, stepped back from seeing the child.

9. In that same letter the concluding paragraph advised the father as follows:  “We remind you that our client will be travelling with [B] to attend her brother’s wedding leaving on 29 August 2015 and returning on 9 September 2015.” This information proved to be incorrect as to date of departure although there is no basis for assuming that it was not on instructions.

10. The day after the father left the home the mother sent him a text message, “Hi [Mr Analka], I hope you are ok. Not sure if you realise that you have left your t-shirts here.”  The father responded, “Put them in a plastic bag and I’ll collect it when I pick up [B] next weekend”. That text conversation took place before the father received the letter advising the father that the mother did not feel safe in his presence.

11. On 30 July 2015 the mother attended Suburb M Police Station to obtain an ADVO. The application[18] under the heading “Most Recent Incident” contains the basis for the application:

    Throughout the relationship between the defendant and PINOP (person in need of protection) the PINOP states that they have had many relationship issues surrounding trust and balance of roles within the relationship. The PINOP explained that throughout the relationship she was isolated by the defendant in terms of finance, leaving the home and seeing friends and family. The PINOP describes the defendant’s behaviour as intimidating. Over the recent weeks the PINOP states they have had increasing arguments. About 10.00 am on Sunday 25 July 2015 [Sunday 26 July 2015] the PINOP planned to go to the defendant’s parents’ home to explain the issues within their relationship. The defendant began arguing with the PINOP requesting the defendant to leave, he refused. After a short time the defendant agreed to leave and whilst packing his belongings pushed a coffee table in anger. Prior to leaving, the defendant stated, “That kid is half mine, I’ll be making it difficult for you.”  The defendant left the location with his father.

    [18] Affidavit of the father filed  8/02/2017,  Annexure I

12. The following paragraph sets out the fears of the mother:

    Due to the behaviour of the defendant the PINOP fears the defendant will return and take extreme measures to retain full control of their daughter including physical assaults and damaged property. Due to these fears the PINOP sought legal advice regarding family law and was advised to apply for an ADVO.

13. Further, under the heading “Fears held by victim”:

    The victim fears their child being taken by the defendant. The PINOP is fearful of her personal safety and that the defendant will go to extreme measure to ensure that he has custody of the child, including injury and property damage.

14. The fears held by the police were noted to be as follows:

    Police fear that the behaviour of the defendant reflects the psephological (sic) [psychological?] and emotional abuse side of domestic violence. Police fear there has been an escalation and sudden change in personality becoming more aggressive and demanding respect. Police fear that his behaviour is controlling by isolating the PINOP.

15. It may be that the mother advised the police officer she spoke to that her parents were presently staying in the family home with her and had been since 21 July 2015. There is no reference to it. It is apparent that the mother had already had legal advice by the time of attending for this application.

16. On Friday 31 July 2015 the mother signed her Initiating Application for filing in this Court.

17. On 3 August 2015 without prior notice the mother and child travelled to New Zealand.

18. On 4 August 2015 the Initiating Application and supporting affidavit were filed. That application was for the mother to have sole parental responsibility, residence, that there be permission to relocate the child’s residence to New Zealand and for the father to spend time with the child by agreement with the mother.

19. On 6 August 2015 solicitors for the mother wrote to the father advising of the filing of the application listed on 18 November 2015. At that point, the father was advised that the mother had returned as follows, “We advise that our client has returned with your daughter to New Zealand for a short holiday with her parents.”[19]

    [19] Affidavit of the father filed 8/07/2017, Exhibit B

20. On 7 August 2015 solicitors for the father sent off a letter expressing the father’s dismay at the mother having left unilaterally and withholding his consent to the child travelling overseas to Country O. The letter sought urgent confirmation of the return of the child.

21. On 10 August 2015 the father attended unrepresented at the Local Court in respect to the ADVO. The mother was not present. She was in New Zealand with the child. The father consented to a 12 month order on a “Without Admissions” basis. The order was made for the protection both of the mother and child.

22. The sequence of events suggests that the application for an ADVO was made by the mother after legal advice, not by any approach for the assistance of police by the mother. The mother is clear to say there has never been any physical threat by the father towards her or the child and was vehement about there being no possibility of the father representing risk of any kind to the child.

23. On balance, I consider it likely that the application for the ADVO was tactical in order to give weight to the mother’s application to be able to relocate the child to New Zealand.

24. There is no basis in the evidence before me for the assertion by the mother, as a fear she held at the time of application for that ADVO that the father would “go to extreme measure to ensure he has custody of the child, including injury and property damage”.

25. At its highest the evidence of the mother is that when the child was born the father shoved the child’s cot in anger. There was no suggestion that the child was injured or affected in any way in the event by this action. The father denies that he did so. There was no evidence to support any complaint or even the making of any official complaint or even the making of an informal complaint within the family. There is also the mother’s allegation that the father pushed a coffee table in anger on the day she directed him to leave the family home.

26. At the time of making the application the mother herself was intending to remove the child from the father disregarding his equal parental authority for such a decision.

27. On 10 August 2016 the ADVO against the father expired. There had been was no complaint of any breach during the period.

28. I am quite satisfied that there is no risk whatsoever of the child being exposed to family violence by the father.

Conclusion

1. I conclude that the best interests of the child are promoted by the child remaining in Australia, living with her mother and spending increasing periods of time with her father.

2. Overnight time should commence straightaway consistent with her needs for significant and substantial time and the ability of the father to care for her. Provision has been made for quarterly periods of 5 day blocs of holiday time until she starts school. The evidence suggests that the child will spend time with her paternal grand parents as well as her father whenever possible.

3. Once the child starts school, transition to weekly time; alternate weekends and half school holidays should be a natural adjustment for her.

4. The evidence of the maternal grandmother is that the mother is able to remain in her current home through the support of her parents if she is unable to return to New Zealand. The child has a place in child care three days per week so the return of the mother to work will be not be a major disruption for her.

5. Provision is made in the orders for spouse maintenance to be paid for six months as assistance for the mother in a period of finding suitable employment

6. The orders enable the mother to travel to New Zealand when the child is in her care subject to the constraints of school when that commences. The evidence suggests that the child will spend time with her maternal grandparents whenever possible in New Zealand and Australia.

PROPERTY

Approach to alteration of interests in property

1. In considering applications for alteration of property interests and transfer of property the Court must:

   (i)Identify the existing legal and equitable interests of the parties in property;[20]

   (ii)Consider whether it would be just and equitable in the particular circumstances to make an alteration;

   (iii)

   If an alteration should be made, to consider the matters contained in

   
   

   ss 79(4) and 75(2) of the Act in coming to an adjustment; and

   (iv)Analyse and consider whether the adjustment under consideration would be just and equitable.

   [20] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FamCAFC 116

2. The parties’ assets are set out in the joint balance sheet:[21]

   [21] Exhibit 7

ASSETS
O’ship			Description	Wife’s value	H’band value
1	W		S Street, Suburb J NSW	860 000	860 000
2	H		T Street, Suburb G QLD	175 000	175 000
3	H		U Street, Suburb I QLD	240 000	240 000
4	H		V Street, Suburb K NSW	560 000	560 000
5	W		CBA bank account #...98	0	0
6	W		CBA bank account #..70	1 010	1 010
7	Joint		CBA bank account #...58	14 177	14 177
8	W		Motor vehicle 1	3 900	3 900
9	H		Bank W account #..40	75	75
10	H		Westpac Choice account #...07	6 474	6 474
11	H		Westpac Choice account #...25	11 099	11 099
12	H		ANZ bank account #...07	2 768	2 768
13	H		ANZ bank account #...57	0	0
14	H		ANZ bank account #...84	658	658
15	H		ANZ bank account #...49	0	0
16	W		Household contents	2 000	2 000
17	H		Motor vehicle 2	10 000	10 000
18	H		Household contents	2 000	2 000
19	W		Barkus Doolan Trust Account	75 278	75 278
20	H		David Cohen Trust Account	36 256	36 256
Total			2 000 695	2 000 695
ADDBACKS
21	Funds held in husband’s Westpac Choice account #...07 as at 26 July 2015	91 464.77	0
22	Balance of husband’s Westpac Choice account #...25 as at 26 July 2015	25 638	0
23	Balance of funds in husband’s ANZ Progress Saver account #...79	101 224	0
24	Legal fees paid by wife	79 499	79 499
25	Legal fees paid by husband	62 200.40	62 200.40
Total			360 025	141 699
LIABILITIES
26	W		Van Housen Family Trusts	522 266	522 266
27	W		Further loan from the Van Housen Family Trusts	268 235	268 235
28	W		Qantas AMEX	0	0
29	W		CBA Visa	0	0
30	H		Westpac Rocket Loan #...80  -  Suburb G	210 545	210 545
31	H		West Rocket Investment Loan #...57  - Suburb K	275 577	275 577
32	H		Westpac Variable Rate Investment Loan #...29 – Suburb I	248 652	248 652
Total			1 525 275	1 525 275
SUPERANNUATION
33	W	Equip Super		72 216	72 216
34	H	Australia Super		78 994	78 994
35
Total		151 210	151 210
FINACIAL RESOURCES
36
Total		0	0
NET TOTAL ASSETS (INCLUDING SUPERANNUATION)				986 655	768 329

Notes
Item no	0
1 - 4	As per valuation evidence.
9 – 15	The wife asserts subject to verification by bank statements.
9	As at 5 September 2016.
10	As at 12 August 2016.
11	As at 1 December 2016.
12	As at 30 November 2016.
13	As at 11 January 2016.
14	As at 12 December 2016.
15	As at 3 August 2016.
26	Converted @ .96 (New Zealand dollars $546,475 as at 7 February 2017.
27	Calculated as including amounts in paragraph 27 of the affidavit of Ms X Van Housen and the mother’s evidence in chief as to a further $106,000 (part of which is sitting in trust and forms part of the assets).
28	As at 13 January 2017.
29	As at 13 January 2017.
30	As at 22 November 2016.
31	As at 28 November 2016.

1. On the first day of hearing the application of the wife crystallised in terms of her property application as follows.

   a.The proceedings also relate to property and spouse maintenance with the wife seeking a property adjustment order in her favour so that she retains 70 per cent of the net asset pool available for distribution between the parties including add-backs and superannuation.

   b.The wife also sought an order in the sum of $500 per week during any period she was earning less than $1,346 per week gross or a lump sum in the alternative of $65,000 if she was required to remain in Australia.

   c.Order 20 of the wife’s Minute of Order sought a payment to her of $300,000 within 28 days of making the order.

2. No exception was taken to it but this was the first time that the father had been advised of a claim for a cash payment. Until then all references to property orders were inchoate.

Analysis of financial position of the parties

1. The parties had established a relationship with each other by July 2010. By April 2011 they had maintained that relationship for about nine to 10 months but had not begun living together.

2. On 14 April 2011 the Suburb J property, which became the family, home was purchased in the name of the wife. The purchase price was $555,000. A deposit of $55,482 was paid on exchange.[22]  The source of the funds for the deposit is not clear but probably came from the wife’s parents. The balance of funds due after payment of the deposit was $499,518. All of the balance of funds for the purchase was provided by the wife’s parents in their capacity as trustees of the Van Housen Family Trust.

   [22]Affidavit of the mother filed 23/01/2017, Annexure 8

1. A mortgage was signed by the wife on 9 August 2011. This date was two to three months after exchange and probably after settlement of purchase. The mortgage has not been registered.

2. Relevant documents were executed by the wife to enable the securing of the loan on the property in future.

3. The principal sum identified in the mortgage was $571,106.92. There is no explanation of that particular sum. It exceeds the total purchase price by $16,106. This amount is insufficient for stamp duty on the purchase and transfer together with conveyancing costs. There is no evidence on how that figure was arrived at.

4. The wife made clear that she did not understand the financing of her property to any extent:

   “Yes, but I just left that stuff to my Dad”; and

   “My Dad provided the official documents to back it all up”; and

   “That’s all I know, that’s all I can tell you”.

5. The wife said that she did not keep a separate record of repayments of the loan, “It’s in my bank statements”.

6. There was no evidence by the wife’s father, said by both the wife and her mother, to be the controller of the family finances.

7. It is apparent that the solicitors for the wife, rather than the wife herself, put together the documentary record of the purchase, mortgage and repayments. The wife whilst sighting and acknowledging documents annexed to her affidavit, had either not attempted to understand these financial aspects of her own case or had tried unsuccessfully.

8. The agreement in the mortgage was for the principal sum to be repaid on the earlier of 26 May 2026 or within 30 days of the mortgagor receiving a written demand from the mortgagees requiring repayment. Hence the loan was for 15 years if covenants were not breached leading to a call for repayment. There was provision for payment for monthly instalments of $2,563.69 to be paid on the 15^th of each month.

9. In October 2011 the parties began living together.

10. The evidence of the wife is that she made the monthly mortgage repayments of $2,564 to her parents’ trust.[23]  The husband referred to his half share as rent. The husband paid that half share to the account nominated by the wife from the time of cohabitation.[24]

    [23] Affidavit of the wife filed 23/01/2017, par 88

    [24] Affidavit of the husband filed 8/02/2017, Exhibit O

11. On 16 August 2012 the parties entered into a Binding Financial Agreement pursuant to s 90UC of the Family Law Act 1975. By that time ten monthly payments should have  been made since cohabitation:

$565,979.54

- $25,640.00

$540,339.00 Outstanding loan

1. This figure is inconsistent with the entry in the schedule of the wife to the Binding Financial Agreement. The figure in that document for the outstanding mortgage was $571,000. When cross examined on the point the wife was unable to explain why the original figure for the loan had been used in the document, rather than the actual figure.

2. One inference is that no repayments were made to the wife’s parents or that payments were made and then returned as contributions to the wife’s support. Another available conclusion is that the wife had never turned her mind to her own financial position, but simply understood that her parents were looking after her.

3. Between 16 August 2012 and July 2014 there would have been a further 23 payments:

$540,339.00

- $58,972.00

$481,367.00

1. Thereafter the wife was on maternity leave for 12 months. It is apparent that she would not have been contributing to mortgage payments although the husband continued to do so for a further 12 months until the parties separated in August 2015. Twelve payments in rent [half share] equate to $15,384.00

$481,367.00

- $15,384.00

                 $465,983.00 at date of separation

1. Doing the best I can with the evidence available in respect of the loan, the above would have been the figure for the outstanding debt pursuant to the mortgage at that time.

2. The wife did not resume employment after maternity leave. She was supported by savings from income and also by the husband.

3. After separation the wife purported to make mortgage repayments to her parents but the loan has increased and has not reduced. With the consent of her parents, the wife has withdrawn funds for her own support. At least theoretically at separation the mortgage would have stood at $465,983. In fact, the agreed figure is $522,266.

4. The husband is not a mortgagor. He had no right to inquire into the mortgage even during the marriage. He contributed his half of the nominated payment for a period of four years. That much is clear.

5. As to the outstanding debt, that figure becomes what the wife or her parents say it is, rather than being readily understood through any schedule of payments.

6. At the date of hearing the evidence of the wife’s mother, a co-mortgagee, was that the debts owed by the wife to the family trust were as follows:

   Category A - $43,328.00 – a debt outstanding for 18 years or more relating to the wife’s education and living expenses when she first came to Australia.

   Category B – $155,063.00 - living expenses, and legal costs in Australia and New Zealand – simply asserted to be a debt to the family trust.

   Category C - $519,220.00 – current outstanding mortgage.

7. It is apparent that the wife’s parents have provided money and asserted that those funds are a debt to the trust. There is no documentary support for that proposition.

8. During the 18 month period since separation the wife has had Centrelink income in the amount of $538 per week; child support of $209 per week; three days of childcare paid for by the husband of $120 per week. A total of $867. She has also had cash provided by her parents.

9. The funds are referred to in the Financial Statement of the wife as a debt however the provision of them is not revealed in “Part D – Income”. The wife has simply not reflected any figure for the funds now said to be owing.

10. The funds provided by the parents of the wife have covered discretionary spending, overseas travel, legal costs both in New Zealand and in Australia and general living expenses.

11. On the basis of the wife’s own evidence the debt should have reduced to $465,983 by date of separation. However in that 18 month period, significant additional debt is asserted to have been incurred.

12. The issue becomes should the husband share in an indebtedness which equates to about 90 per cent of the current value of the Suburb J property.

Analysis – Is it just and equitable to make any adjustment to current assets and liabilities

1. The wife has the property at Suburb J with a current value of $860,000. The husband has three properties, all investment properties, one of which has equity. The total value of the equity in the three properties is $240,226.

2. The parties lived together for four years from October 2011 to August 2015.

3. After separation the husband stayed with his parents for three weeks then moved to rented premises for which he pays $380 per week.

4. The wife remained living in the Suburb J property supported with income sources identified above plus $1,000 or $2,000 per week from her parents.

5. The wife has not worked since the birth of her child. It is her intention to find work if she is in New Zealand for four days a week however her evidence is that if she remains in Sydney, she is doubtful about finding employment.

6. This evidence is difficult to accept, given her employment history, with the reservation that absent maternal family support it may be difficult for the wife to work full time until the child starts school.

7. The wife was in full time employment up until July 2014 in a management role for a company Business L, and prior to that, Business Y. Her evidence of looking for work was that the one job she was offered did not pay well enough for her to consider accepting it. A tiny minority of jobs she has applied for relate to her own work history and area of expertise.

8. I conclude that the wife has not wanted to commit to employment until these proceedings were concluded. The wife is aged 37, healthy, with a strong work history. The subject child is in childcare three days a week, paid for by the husband.

9. The husband made financial contributions to the Suburb J property through renovation works. The wife made some contribution to renovation work on the husband’s Suburb K property, as did her father. Each party has a comparable superannuation policy.

10. In these circumstances where debt levels are determined by what the wife and her parents assert that they are, there is a real risk of injustice in simply applying the asserted debt levels to the current values of the property and conclude that the wife has no equity.

11. Given the history of the debt said by her parents to have been incurred by the wife when she first came to Australia, not having been called on for repayment and the willingness of the wife’s parents to provide money and not to require repayment of the mortgage, it is likely that the wife will continue not to be under any pressure to repay debt.

12. I also take into account that the parties entered into the Binding Financial Agreement in 2012 at the request of the wife’s parents in order to protect the asset in her name. That agreement ceased to be binding when the parties married in 2013. However it is clear that the intention of the wife’s parents was to benefit their daughter alone.

13. The evidence about debt post-separation is too diffuse to be sure of an accurate analysis particularly when the wife herself was uncertain about her own finances and her father did not give evidence.

14. The decision in Biltoft (1995) 19 FamLR 82 is authority for the proposition that in circumstances where an unsecured liability is vague or uncertain, unlikely to be enforced or unreasonably incurred, the court may determine not to take it into account. All those elements are present in this case.

15. I conclude that the asserted debts should not be brought into account.

16. In the circumstances the appropriate course is to make no adjustment to current interests in property and liabilities. Accordingly, a declaration will be made that each party retain those assets and be responsible for those liabilities currently in his and her possession.

Spouse Maintenance

1. Having concluded that the child should not relocate to New Zealand, the mother will be required to remain in Australia. She has a proven capacity to work and will likely do so for three or four days per week. The child is in day care three days per week at no cost to the mother.

2. In the event she chose to work full time there is no doubt that the father and/or his parents would care for the child on as many days as were needed.

3. The father will continue to work full time or close to full time and has the capacity to earn at current levels.

4. However it is reasonable for the husband to offer additional support for a period of time whilst the wife concentrates on finding appropriate employment and not just the first available job. The child will be old enough to attend preschool from age three (August 2017).

5. The husband earns approximately $2,000 gross per week from employment. Tax, superannuation and rent account for half of that. He has rental income from investment properties which equates to loan costs.[25]He pays child support of $215 per week and for 3 days of preschool.

   [25] Financial Statement of the husband filed 8/02/2017

6. The mother has a Commonwealth tax benefit and single parent benefit of $538 which I disregard. Her accommodation is secure. Her parents provide significant ongoing financial support which I do not take into account. Her declared average weekly expenses are $870. Moderate discounts to claims in respect to holidays ($100 per week) and clothes ($100 per week) lead me to the conclusion that an additional $500 per week is needed and is sufficient to cover a reasonable period for the wife to be supported while seeking employment.

7. Accordingly, a period of six months of $500 per week spouse maintenance will be ordered as sought.

8. Orders are made accordingly.

I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 June 2017.

Associate: 

Date:  1 June 2017