Vernon and Buckley
[2012] FMCAfam 638
•4 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VERNON & BUCKLEY | [2012] FMCAfam 638 |
| FAMILY LAW – Parenting and property issues – mother’s desire to relocate to rural NSW from Melbourne – whether such relocation in children’s best interests – what time to be spent with father if relocation permitted – property dispute – father making greater contribution and having substantially greater income – consideration of parties’ future needs. |
| Family Law Act 1975, ss.60B, 60CC |
| Brickley & Lidcombe [2012] FMCAfam 301 Goode v Goode [2006] FamCA 1346 In the marriage of Farnell (1996) FLC 92-681 AJO v GRO (FLR) (2005) FLC 93-218 |
| Applicant: | MR VERNON |
| Respondent: | MS BUCKLEY |
| File Number: | MLC 9370 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 21, 22 and 23 May 2012 |
| Date of Last Submission: | 23 May 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 4 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Salamanca |
| Solicitors for the Applicant: | Carew Counsel Pty Ltd |
| Counsel for the Respondent: | Mr Dickson |
| Solicitors for the Respondent: | JH Legal Pty Ltd |
IT IS NOTED that publication of this judgment under the pseudonym Vernon & Buckley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9370 of 2011
| MR VERNON |
Applicant
And
| MS BUCKLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a dispute about parenting issues and property issues. Both issues have been hard fought but, perhaps unsurprisingly, it is the children’s issues that have raised the greatest degree of emotion in the parties.
The mother, who it is agreed has been the primary carer of [X], born [in] 2005, and [Y], born [in] 2007, wishes to relocate from Melbourne to [L], a country town of approximately 6,000 inhabitants in New South Wales. The father wishes the mother to remain in Melbourne. There are competing proposals as to the time to be spent in either eventuality.
So far as property matters are concerned, the parties agree that superannuation be split equally, but the father proposes an overall 60/40 division in the mother’s favour and the mother proposes an 80/20 division.
For the reasons that follow, I am going to permit the mother to relocate to [L] but ensure that the children spend significant amounts of time with their father, both there and in Melbourne, and I will divide the property pool 67 ½ / 32 ½ in favour of the mother.
Facts either agreed or not the subject of substantial dispute
The father was born [in] 1973 and his family in the main live in either Brisbane or on the Gold Coast. He has been employed by [T] for over 20 years and is a very well regarded employee. His current full-time remuneration package is $352,000, which was increased from $340,000 last September. It seems reasonable to suppose that he will continue to achieve increases although not, given the company’s apparently present poor financial outlook, perhaps of quite the same amount.
The mother was born [in] 1975. She grew up in [L] with what is plainly, as I infer is the case also with the father, a closely-knit family. She left [L] at 18 ½ years of age and has travelled and, for one reason or another, lived in a large number of different places since. She has, however, often enough returned to [L] where her parents continue to live, and she still has a number of friends and acquaintances from her childhood years who have not left [L] and still live there.
The mother and father met and started to live together in 2001. They married [in] 2004. Initially the parties lived in Sydney but moved to Adelaide where the father had been transferred by [T] in 2002 to 2003. They returned to Sydney where they lived until the end of 2006 whereupon they went to Canada, once again for the father’s employment.
The father, it would appear, was employed in relation to a joint venture and his salary package was in excess of half a million dollars while in Canada. The parties lived for several years in a relatively remote outpost called [F], which imposed strains upon their relationship, scarcely surprisingly. [F] is not a place over-imbued with amenities and its climate is harsh and unforgiving. While in [F], the parties made the acquaintance of Ms P, whom the mother regarded as her best friend.
As noted, [X] was born in 2005 before the parties left Australia and [Y] in early 2007 when they were still living in [F].
The parties moved to [C] in 2009 where, in August 2009, they bought a home. That home has since been sold.
It seems clear that by about mid 2010 the relationship was under strain. There was an incident in about May 2010 when the mother thought that the father and Ms P were behaving inappropriately late one night at the matrimonial home. Her suspicions about a relationship between them commenced at that time and continued. In about July or August 2010 the father moved out, although from the material filed and the evidence given it seems that from time-to-time each of the parties had hopes of reconciliation.
In any event, in December 2010 the mother’s mother went to [C] and assisted the mother to pack up the family’s possessions and return to Australia. The parties came back to Australia in December 2010, although the father had to rapidly go back to [C] in effect to wind up his affairs over there. The mother enrolled the children in school in [L] for Term 1 in 2011 but in March 2011 the entire family moved to Melbourne where the father had obtained rental accommodation.
The parties did not live together under one roof thereafter and in August 2011, the mother received a phone call from Mr C, Ms P’s former husband, in which he informed the mother that Ms P and the father were in a relationship. In fact, as the evidence has transpired, this assertion is correct because in around about August or September 2011 the father and Ms P, who both deposed that previous to this they had met but only been friendly, did in fact embark upon a sexual and emotional relationship.
In January or February of 2012 Ms P, who had previously returned to Australia and had been living near Canberra where her own family is from, moved to Melbourne and set up house with the father and her own two children, [names and dates of births omitted].
Following the realisation by the mother that the father had definitely entered into a relationship with Ms P (something she had suspected for a long time and indeed probably continues erroneously to believe to have occurred earlier than it did), the mother announced a definite intention to return with the children to [L]. It was the communication of this intention to the father that impelled him to institute proceedings in October 2011 in this Court.
Matters the subject of dispute
Obviously one of the matters that has been the subject of dispute between the parties is when the father in fact commenced his relationship with Ms P. The mother suspected it from as early as May 2010.
At this point, it is appropriate to say a few words about the demeanour of the witnesses and about credit of the witnesses. The father gave evidence first. As one might expect with a senior executive who has advanced very well in his professional career, he impressed as being extremely intelligent, decisive and direct. He was a wholly honest witness who gave his answers in a forthright, clear and responsive way.
Ms P was called next and, once again, she impressed me as being a very straightforward, direct and honest witness. It is not necessary to say more.
The mother was in the main a believable witness. It should be said that some of her answers seemed somewhat evasive and unresponsive. For example, I refer to the incident recently when she failed to contact the father to babysit the children on a previous Thursday and, further, when pressed as to whether the arrangements in Melbourne were more established than other previous arrangements had been. I also formed the view that the mother was at times under considerable emotional pressure and possibly close to breaking down.
Having made those observations, I should emphasise that they are not intended to be unduly critical of the mother as a witness. I accept the force of the submission made by her counsel that I need to remember she was giving evidence immediately after seeing Ms P, whom she for a long time regarded as her best friend, give her evidence in circumstances where she had not seen Ms P for a long time and where Ms P had clearly, on the mother’s view, taken her man from her.
Having said this, it is clear that the relationship between the father and Ms P did not begin until about August or September of last year, contrary to the mother’s suspicions. Their evidence was entirely believable.
Likewise believable, albeit no doubt very hurtful to the mother, was
Ms P’s evidence about the mother. Paraphrasing admittedly, her evidence was to the effect that while the mother had been a friend of hers in Canada, she had never regarded her as her closest friend. Indeed she expressed reservations about the mother’s capacity to keep a secret (describing her as over-talkative) and described the mother as somewhat labile in their interrelationship, oscillating between aggression and friendship.
When the mother gave evidence she said words which indicated that she now appreciated that Ms P had not been as much of a friend to her as she had thought her to be. It was transparently obvious that this, whether realised only during the Court proceeding or previously, was deeply hurtful to her, as indeed would be only consistent with common sense and human experience.
Another area of dispute between the parties concerned the mother’s intentions about moving to [L] and the extent to which these were or were not realistic.
It emerged from the evidence that towards the end of 2010 the mother made attempts to enrol in educational institutions all over Australia including Brisbane, Coffs Harbour and Melbourne. These were in a variety of different courses. This was said by the father to be consistent with a tendency on the mother’s part not to know her own mind, to vacillate and to be changeable in her plans.
Having seen the mother give her evidence over a protracted period of time, and having studied all the materials in the case as a whole carefully, I think that there is a measure of force in the father’s criticisms which were echoed by Ms P. The mother does seem to be a person given to relatively labile emotions and whose lifestyle both up to the time she met the father and possibly since tends to lack a sense of purpose and direction. It should be emphasised that these are not criticisms but merely observations.
The father put it strongly that the mother’s intention to return to [L] is based on an unrealistic and romanticised version of what life would be like there. The mother by way of contrast says that her life in [L] is likely to be far better economically, that she cannot afford to continue to live in Melbourne and that her emotional wellbeing and that of the children is dependent upon that return.
A further area of dispute was the extent and timing of the mother’s relationship with an old school friend from [L], a Mr P. Having heard Mr P give evidence, and bearing in mind the materials in the case generally, it is clear that in around about May of 2011 he visited Melbourne during which time he entered into a sexual relationship with the mother. It is also clear that this relationship has continued on a sporadic basis, including at least one visit on Melbourne Cup weekend and a further meeting at Christmas 2011. Nonetheless, I have no doubt that the mother is correct to say that she is not in a permanent and ongoing relationship with Mr P.
A further issue of dispute is the extent to which the mother may be believed when she says that she went to Melbourne essentially either believing that the family unit was still intact and/or hoping for reconciliation.
It should be noted in this regard that the father, according to what he told the family report writer, Ms M, had himself hoped for reconciliation as late as late 2010.
I have no doubt that notwithstanding what the mother rightly described as a fling with Mr P, she genuinely wished to reconcile with the father however unlikely it may have seemed. Her own mother gave evidence and said words to the effect that the mother would never get over [Mr Vernon], and that evidence was given entirely believably. It is noteworthy that the father told Ms B that the relationship was over during her last visit to Canada in December 2010 but at that time the mother herself thought the relationship could still continue.
I fully accept that it was the telephone call from Mr C to the mother informing her of the new relationship with Ms P that brought things to an end and to a head so to speak. It was after that that the mother decided to go to [L].
Although the mother says that she desperately needs to relocate to [L] to have the emotional assistance of her mother and that her primary aims in moving there involve her own financial wellbeing and the sort of lifestyle she can give to the children in a small country town with close family support, it is clear beyond doubt that while these factors are genuinely and sincerely felt by her, her primary motivation is to get away from the father and Ms P. There is an abundance of material that leads to this conclusion.
Under cross-examination, the mother herself made it clear that she saw no benefits in the children seeing Ms P’s children. She said she was in love with her husband until she found out about Ms P from Mr C’s phone call. She said words to the effect that thereafter:
“I can’t see any point in being in Melbourne any more.”
She said that the betrayal by Ms P “has really upset me.”
Mr B, the mother’s brother, said that his sister’s attitude to the future was now more hopeful; that she was mostly upset with Ms P. She was also upset that Ms P was just around the corner and did not want Ms P as a mother to her children.
Ms B, the mother’s mother, said that the mother feels betrayed.
The same emotions were clearly expressed to Ms M, who rightly said that the mother was coming to terms with the end of the relationship and was in the last stage of doing so and that moving to [L] was part of that.
The submission by counsel for the father that the primary aim of the mother in moving to [L] is her inability to cope with the father’s new relationship is plainly right.
The mother’s move to [L]
As already indicated, the father expressed the strong view that the mother has not really thought through her plan to move to [L]. It is clear for the reasons I have already given that the mother’s desire to move there is in large part, and indeed primary part, the fact that she simply cannot abide the fact that the father has repartnered with Ms P, that they live relatively close to where she lives in Melbourne, and that Ms P would be expected in the ordinary way of things, as would her children, to have a part in her children’s upbringing. She simply is emotionally unable to tolerate this outcome.
The move to [L] is also said to be economically based and it is easy to see why that is so. Whatever the property settlement is, the mother will have no more than about three to four hundred thousand dollars to spend at best. This is not enough to buy a suitable home anywhere near where she presently lives in Melbourne. Counsel for the father submitted that she would have approximately 50 per cent of a deposit on a six to seven hundred thousand dollar house and could pay for the rest from her earnings.
This brings us to another area of dispute not previously touched upon, namely, the mother’s earning capacity. The mother’s evidence is that she does not wish to work as a [occupation omitted], an area in which she had worked many years ago. Her qualifications are out of date in any event and in my view, her reasoning in this regard is by no means unreasonable.
The mother is training as a [omitted] but in my view such occupation is not likely to be munificent. There is no evidence before the Court that the mother can make any substantial amounts of money in that activity.
The one area in which the Court was given precise figures was the mother’s work as an [omitted]. [Omitted] work is readily available and pays $50 for a one-hour session. Since it involves, however, [omitted] (evidence given by the mother in re-examination) I accept that it is simply something the mother cannot do all day every day. It would seem improbable that she would be able to perform more than three or four such sessions per week and the earnings of $200 thereby engendered would simply not give her enough to live on. That will be the case whether she works either here or in [L].
The father is strongly opposed to the mother relocating to [L]. He says that he has very considerable flexibility in his working hours and could take the children to school and collect them and wanted to be a very active father involved in homework, looking after the children if they were ill and in every facet of their lives. I have no doubt that the father is sincere in saying this although equally, I have no doubt that he spent rather less time with the children when they were in Canada as his work would have been extremely demanding. His fear is that he will simply be a weekend dad if the move is allowed.
In the event that the children stay in Melbourne, in the ultimate it was the father’s position that the children should spend equal time or at the very least 9/5 with him.
The mother’s position is that she desperately needs the assistance of her mother in particular back in [L] and that the children’s’ wellbeing would be improved immeasurably if the mother was allowed to move. Financially she said she would be far better off and it is clear that at least in simplistic terms this is so. Property in [L] is cheap. The mother would in all probability be able to buy a property outright and this would plainly make the expenses of living and the like far easier to bear.
The report of Ms M
The family report writer, Ms M, prepared a report following interviews with the parties in January 2012. The report was released, I infer, in February and the father did not like it because it recommended that the mother be permitted to relocate. He wrote a detailed criticism to her by his solicitors in March 2012. Ms M adopted her report in evidence-in-chief.
Under cross-examination by counsel for the father, Ms M confirmed that she had not known of the presence on the scene so to speak of
Ms P when interviews were conducted and the report made. She was now aware that Ms P moved in in February and was aware that she had children of similar ages. She did not regard this as necessarily being a significant change but said it was possible. As earlier indicated, she said that the mother was coming to terms with the end of the relationship and was at the last stage of doing so and that moving to [L] was part of this process.
Counsel for the father pressed strongly the proposition that this business of emotional support needed to be seen in the context of the support given by his client, who after all spends a lot of the time with the children in Melbourne thus giving the mother time free. Ms M roundly disagreed with this proposition and said that time with the father was not in fact support for the mother in these circumstances. She stuck firmly to the proposition that the mother would receive far more support if she was physically close to her parents and in particular her mother. Ms M was of the view that although the mother has friends or may have friends who could give her support in Melbourne, the issue for her was the particular support she would receive from her own mother.
It suffices to say that Ms M’s evidence in this regard accords, in my view, with ordinary human experience. Self-evidently, the fact that the children spend time with their father gives the mother relief of a sort but it does not provide the mother with any kind of emotional support or relief. To the contrary, it only shows the mother the children in the presence of her former partner and Ms P, whose relationship with him is so distressing to her. Similarly, the proposition that the mother will get better and more support by being physically proximate to her parents is utterly unremarkable.
It should be noted that Ms M was an excellent witness. I do not accept the criticisms advanced of her by counsel for the father broadly speaking to the effect that Ms M was determined to protect the report as written come what may. Ms M confirmed that she had received the letter of 15 March 2012 from the father’s solicitors but confirmed that the father said to her exactly what she wrote in her report. She confirmed that she had written the report on the day of the interviews and I accept both that that is so and that her record of events is likely, contrary to the solicitor’s letter, to be correct. I accept that the father said he would stay in Melbourne for some two to three years and wished to move up the corporate ladder. Why would he not wish to do so? It is entirely reasonable that he should.
The father took a position in the fourth tier of [T] in Melbourne in order to assist his family dynamics but could have been a second tier (and I infer far better rewarded) employee in Sydney. Neither he nor Ms P have any particular contacts in Melbourne and it is entirely reasonable to suppose that he will relocate at some point. It would in no way be unreasonable of him to do so.
While Ms M confirmed that there would obviously be big differences in the father’s interaction with the children if the mother moved to [L], she confirmed that quality is not about time but rather the quality of the relationship. She expressly denied the proposition that the father would be marginalised as a weekend dad. She said that one mid-term visit to Melbourne would be manageable but only if travel time could be relatively restrained. She felt that four hours was manageable but six to seven hours would be too much.
This is important because it appears that air travel would take some four and a half hours travel-time and by road some six to seven. Each party, in my view, slightly exaggerated the length of travel whether by air or by road in their own favour, but the figures appear to be approximately as I have described them.
Should relocation to [L] be permitted?
It should be noted that while I address the issue of relocation discretely and first, this does not mean that I have, as it were, given the mother the advantage of considering her proposal in isolation as a discrete preliminary matter. It is absolutely clear that the mother’s proposal to relocate is merely one of two competing proposals, both of which require equal and careful consideration. Nonetheless, as a matter of practical politics, consideration of the detail of what time should be spent in Melbourne must necessarily follow consideration of the relocation issue, and for that reason I will deal with it first.
The law in relation to relocation is, in my view, well encapsulated in a substantial extract from the judgment of McGuire FM which I recently recapitulated in the case called Brickley & Lidcombe [2012] FMCAfam 301 as follows:
“39. Counsel for the Independent Children’s Lawyer referred me to a passage in the decision of McGuire FM in Vigano & Latimer [2010] FMCAfam 660. That judgment set out at [43]-[45] some of the guiding principles in a way that seems to me to be very helpful. The Court said:
43. Prior to the amendments to the Act in July 2006 the authorities had set out a preferred approach to determining parenting matters involving relocation. In A v A: Relocation approach the Full Court set out a summary of principles to be applied in determining these matters. The High Court of Australia subsequently in U v U ameliorated the strict approach in A v A (supra). In yet a further subsequent case the Full Court in KB & TC said at [79,699]:
U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
44. After some academic discussion following the 2006 amendments, it seems clear that the general principles in relocation cases remain valid. In Morgan & Miles (supra) at [80] Boland J says:
· It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
· remain valid.
45. A helpful summary of the law and extraction of the principles in relocation cases was made by Neville FM in Illidge & Norton at [13] where his Honour says, and repeating the same summary from an earlier judgment in F & F:
There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders. Drawing from the authorities listed, those principles may be summarised as follows:
a) In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A [91]; cf. P v P, [48]).
b) The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80], Hayne J, [171]; KB & TC, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
c) Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145].) Freedom of movement, however, takes second place to the paramount interests of the child.
d) There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e) The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f) Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact ... with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation” [93]).
g) In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; KB & TC, [83]-[85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; KB & TC, [84]; P v P, [40]).
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
· The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children.
In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt.”
40. As I have indicated, I respectfully refer to and adopt the summary of the leading authorities set out in this passage. I would only add for my part, however, that each case requires to be considered very much on its own particular facts. This is a question of deciding, after weighing all the relevant considerations, what orders will best promote the best interests of the particular child or children with whom the Court is concerned.”
I have also had regard to the authorities cited by counsel.
I emphasise again that what these cases are all about is the best interests of the children and that each case falls to be considered in the light of its own particular facts.
Although the issues are important and complicated, the countervailing considerations can be expressed in many ways fairly shortly as follows:
a)The mother is desperately distressed by the father’s new relationship and wishes to move to [L] to get away from the constant reminder of the existence of this new relationship and the ramifications for her and her children if she remains in Melbourne.
b)The mother’s desire to move to [L] is greatly interrelated with her desire for the support and succour of her parents and other family members and most particularly her mother, which in my view will clearly be far more efficacious if she relocates to [L] than if she remains in Melbourne.
c)The economic outlook for the mother and therefore the children while they are in her care is clearly better in [L] given the disparity in house prices.
d)The mother’s prospects of work in [L] are, in my view, uncertain but she is not likely to be able to earn a substantial income either in [L] or in Melbourne given the nature of the work she is likely to do.
e)The children, as is clear from the materials generally and expressly found by Ms M, have a very close and loving relationship with each of their parents.
f)The mother has always been the primary carer and remains the primary attachment although [X]’s position is becoming complicated because of her loyalty to her father with whom, contrary to the father’s assertions, she does not wish primarily to live.
g)While the mother has a certain measure of support from friends in Melbourne, this is nothing like the sort of support she would receive in [L] from her family.
h)The father and Ms P are in what appears to be a stable relationship (notwithstanding its relatively recent formation) and the children have good relationships, it would appear, with Ms P’s children.
i)The relationship with the father, Ms P and her children on the part of [X] and [Y] would undoubtedly be compromised to an extent in the event that relocation were to be permitted.
In this regard, it should be noted that I give little weight to the submissions of the father’s counsel that Melbourne is, so to speak, a bedrock in the children’s lives. They have lived here only since March 2011 and have lived in many places (comparatively speaking) already. [X] was born while the parties were living in Sydney and has moved to [F], [C], [L] and Melbourne since. It would seem the place where she has lived longest is [F]. The reality is that the observations of Ms M show that these are very well adjusted children, well capable of adjusting to change as they have already done on numerous occasions. They would doubtless cope very well if they remain in Melbourne but as I find, would cope equally well were they to move to [L].
These sorts of cases are heartwrenching. It is not possible to produce a result that will not cause the greatest distress to one or other party. Neither party’s position is unreasonable or unreasoned. While I accept the criticisms that the father makes of the mother’s tendency not to think things through, and accept that her desire to return to [L] may well involve an element of over-romanticisation, I accept that it is both genuine and, at least insofar as it is based upon family connections, entirely reasonable.
In the ultimate, it needs to be borne in mind that the father has an unusually developed capacity to travel to [L] or to pay for the children to come to Melbourne. His net salary is in excess of $15,000 a month. He has substantial amounts of leave including long service leave available to him to assist him should he need time off. In this regard I note that while he says he is completely flexible as to working hours, his boss, Mr J, when called seemed somewhat less certain that matters were as fluid as the father himself asserted. Equally, however, I note that Mr J said that he would talk things through with the father, who was an extremely valued employee, and I have no doubt that that would be the case.
Ms M recommends that the mother be permitted to relocate and I refer to and incorporate her report in this regard.
In the ultimate I think Ms M’s position is to be adopted, although I emphasise that this is my decision, not hers. Not only does Ms M’s report make sense, I think, having seen the witnesses give their evidence and in particular the mother, that it is impossible to overstate the distress that the new relationship the father has formed has occasioned her. This is not a moral judgment either on the mother, the father or Ms P. The new relationship is a perfectly lawful fact of life that the mother will have to come to terms with over time, but the fact is that she cannot do so at the moment. It is easy to see why she finds it so hard.
Emphasising again that it is not a question of a moral judgment about either the new relationship or the mother’s reaction to it but rather a matter of facing the facts as they are, it is a fact of life that the mother simply is being made unwell by the existence of the new relationship and by Ms P playing a role in her children’s lives. It is greatly to the mother’s credit that she has managed, it would appear, by and large to keep the children free of related anxiety arising from her own emotions.
In the ultimate, it is in the children’s best interests that their mother’s emotional and no doubt interrelated physical wellbeing be improved and maintained by permitting the relocation to occur to some place where she will no longer have so directly to confront the immediate physical reality of the father’s new partnership but will have the enormously helpful support of her family and particularly her mother to assist her. Furthermore, the mother is correct, in my view, to say that her economic circumstances are likely to be vastly better in [L]. This is particularly so since I do not propose, for reasons which will follow, to order the father to pay ongoing spousal maintenance.
Arrangements upon relocation
I should make it clear that the extant regime for time spent should continue until the children relocate. Given that relocation will occur, it is not necessary to go through in detail why it is inappropriate to change the regime. Ms M recommended, in effect, that it continue (see paragraph 68 of her report).
It was Ms M’s position that there should be one long weekend in Melbourne per school term (see paragraph 67 of her report) and that in the event that the father was able to spend alternate weekends at or near [L] then a schedule of weekends be compiled.
The father’s position is that he should see the children each other weekend, alternating between [L] and Melbourne. He proposes to take Ms P and her children with him to [L].
As the father put it, the costs of attending [L] would be very substantial and I accept that they might be considerable. Against this, however, as the mother correctly submits, upon relocation he will cease paying the mother’s rent of $710 per week and would also cease paying the $2,000 per month additionally he has been sending her together with, upon its sale, the $2,500 per month he has been paying to support the parties’ mortgage on the property in Sydney.
These sums would appear to me to free up as much as $6,000 a month for him.
Figures of that order should address very readily any costs associated with visiting [L], where I note three-bedroom properties can be bought for as little as approximately $200,000. It would in fact be perfectly possible with figures of the sort we are talking about for the father to buy a property in [L] and indeed a car to transport the family from [omitted] Airport to [L] and back should that be his desire.
It is clear that the children will need to travel to Melbourne by air as the travel time by car is simply too long. Although they are permitted to travel unaccompanied, in my view they should travel accompanied unless the parties otherwise agree. They are still young, being seven and five, and flights of the sort that they would be on would be likely to fly at lower levels where turbulence is more likely. They need an adult to fly with them. Prima facie I would order that the mother do the travel to Melbourne for the one visit per term that I think is appropriate because it is more likely than otherwise that she will be able to adjust her work affairs with such a timetable. She has a brother who lives in Melbourne and can doubtless spend a weekend with him.
I would be prepared to order time in [L] each alternate weekend save the one long weekend when the children come to Melbourne per school term, and by long weekend I mean from Thursday afternoon leaving [L] until Monday return. The parties will need to turn their minds to the practicalities of air travel times and the like.
Regular contact by Skype is obviously appropriate and I will order that, once again subject to any practical difficulties that may obtain.
The legislative pathway
It will be apparent that I have not set out in any detail the legislative pathway described in the Family Law Act 1975 and as illuminated by the decision of the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346. That is not because it is not relevant but because it is not immediately so well suited to an application of this sort. It is appropriate to go through the matters indicated in s.60CC bearing in mind the objects set out in s.60B to which I have proper regard.
There is no question that there should be equal shared parental responsibility in this case and it will be ordered.
There is no question of family violence in this case and there is no need to protect the children from psychological or other abuse.
The children have a warm and loving relationship with each parent. So much is abundantly clear from the materials as a whole. Given their age the children have not, however, expressed any meaningful observations as to what they wish to do (s.60CC(3)(a)).
The children have a very warm and loving relationship with both parents and I see no reason to doubt that although these are early days, they would have a good relationship with Ms P and her children, as they would with their extended families on both sides. The mother has, however, always been their primary carer (s.60CC(3)(b)).
Each of the parents is at least sufficiently prepared to facilitate and encourage a close and continuing relationship between the children and the other parent. In the case of the father, his applications from time-to-time have sought for the children to live with him in Melbourne were the mother to relocate without them (something never seriously contemplated) and suggest that his primary motivation is his own relationship with the children. Likewise, the desire of the mother to move to [L] necessarily brings into question the extent of her commitment to this aspect of the matter. Nonetheless, I think the parties’ primary positions are perfectly decent and honourable and I accept that they will encourage a close relationship with the other parent (s.60CC(3)(c)).
There are obviously going to be significant practical difficulties in the event that the children relocate with the mother but given the father’s relatively significant leave entitlements, work flexibility and very substantial financial position, these will be minimised (s.60CC(3)(d)).
Although both children are mature for their age, they have been in the primary care of their mother all their lives and should remain so. As earlier indicated, they are not old enough to have expressed any meaningful views (s.60CC(3)(e)).
Both parents have entirely appropriate attitudes towards the children and the responsibilities of parenthood. They are both good parents who find themselves in an unfortunate predicament which the Court is doing its best to resolve (s.60CC(3)(f)).
There are no issues of family violence (s.60CC(3)(g)).
Both parents have fulfilled in a perfectly proper way their obligations as parents prior to and after separation. As I have earlier indicated, the father undoubtedly worked long hours in Canada and although I have no doubt he has always been a loving father, he must necessarily not have been nearly so involved with the children as he now both is and seeks to be (s.60CC(3)(h)).
The orders I am going to make are likely to provide the best chance of curtailing further litigation (s.60CC(3)(l)).
There are no other relevant matters (s.60CC(3)(m)).
While it may well be thought that putting these matters after the primary conclusion pays no more than lip service to the outcome already ordained, it should be noted that the decision on the relocation issue has borne well in mind all the relevant considerations that the legislative pathway requires. Setting them out seriatim merely goes to show that in fact the conclusion reached is entirely in accordance with that pathway.
Property matters
When the parties first met they did not have gigantic amounts of assets. Relevantly, the father had about $40,000 in superannuation (now $131,000) and shares which through dividend reinvestment are now worth approximately $110,000 (although in the light of recent share market developments that figure may have reduced quite significantly.)
As things stand, the pool is largely as set out at page 9 of the husband’s case outline:
| Asset | Ownership | Value | |
| Assets | |||
| 1. | Property G, NSW (on the market for sale) | Joint | $980,000.00 |
| 2. | HSBC [C] [number omitted] | Husband | $66,000.00 |
| 3. | HSBC Melbourne [number omitted] | Husband | $469.38 |
| 4. | HSBC [C] [number omitted] | Joint | $534.00 |
| 5. | St George Account | Joint | $1,200.00 |
| 6. | St George Bank Account | Wife | $7,672.74 |
| 7. | HSBC Savings | Wife | $54,478.29 |
| 8. | [A] Shares (775) | Husband | $16,964.75 |
| 9. | [T] Shares (20,156) | Husband | $44,947.88 |
| 10. | [B] Limited Shares (404) | Husband | $1,729.12 |
| 11. | [C] Shares (889) | Husband | $43,694.35 |
| 12. | [O] Shares (337) | Husband | $4,576.46 |
| 13. | [S] Group Shares (502) | Husband | $3,995.92 |
| 14. | 2010 Mazda CX7 motor vehicle | Wife | $37,000.00 |
| 15. | [artist omitted] Artwork | Wife | $10,000.00 |
| 16. | Furniture and chattels | Wife | $10,000.00 |
| 17. | Furniture and chattels | Husband | $15,000.00 |
| Gross assets | $1,298,262.89 | ||
| Liabilities | |||
| 18. | Commission payable on sale of property (2-2.5%) | Joint | $22,000.00 |
| 19. | RAMS Mortgage – [G] property | Joint | $600.000.00 |
| Gross liabilities | $622,000.00 | ||
| Net asset pool | $686,262.80 | ||
| Superannuation | |||
| 20. | [A] Super Fund | Husband | $131,226.09 |
| 21. | [P] Superannuation Fund | Wife | $16,639.75 |
| Gross Superannuation | $147,865.84 | ||
| Gross asset pool including superannuation | $834,128.64 | ||
Areas of dispute include the value to be given to the [artist omitted] artwork owned by both parties, the furniture and chattels and the question of legal fees as add-backs. Both parties appear to have spent approximately $40,000 on legal fees.
Counsel for the father sought that I excise the artwork as being of equal value, likewise the chattels and the legal fees.
My own preliminary inclination would be to exclude things that are simply not available for distribution or sale. There is an air of artificiality in adding back a figure that is simply no longer there.
In this case, counsel for the mother seeks the inclusion of these amounts in an all too obvious endeavour to make the divisible figure higher so that his client gets more money. In my view, I can do justice and equity without this artificiality. In my view, the [artist omitted] artwork should be excluded because it is of equal value and each party has one piece of it. The furniture and chattels should be included at the values asserted by the husband as concessions against interest as they are not of equal value.
The issue in relation to legal fees is slightly more complex. Counsel for the mother submitted that legal fees should as a matter of course should be added back into the pool and referred to the case of In the marriage of Farnell (1996) FLC 92-681 in this regard. In fact, the decisions of Fogarty and Kay JJ in that case are, in my opinion, not to that express effect. Nonetheless, the law has clearly developed since Farnell and in AJO v GRO (2005) FLC 93-218 the Full Court of the Family Court stated at [30] relevantly:
“To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-816 the Full Court said at 85,262:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.”
In this case, the parties sold their property in Canada for $165,279.13 (see mother’s financial statement 24 November 2011 and father’s affidavit filed 1 May 2011 at pg.27, paragraph 118.2). The father’s figure for the sale was $168,316.13 but nothing turns on this difference.
It seems clear that the mother withdrew $86,000-odd dollars of that sum in September 2011 as effectively her half share.
I infer, I think reasonably enough, that the $40,000 she has spent on costs since then must have been sourced from that amount of money as there was simply no other major block of cash available to her.
In accordance with the practice identified by the Full Court in AJO v GRO I would ordinarily add back both parties legal costs, which I have been informed without challenge are in each instance about $40,000, into the pool.
The difficulty here is that as the father deposed at paragraph 118.2 of his affidavit, he made a number of payments out of his share of the sale of the proceeds of the home in Canada to the mother’s benefit. These were made to a point it would appear that when there was only $20,000 left. The matter is by no means wholly clear, as there may have been other dissipation of the father’s $86,000 share, but the fact is he was not cross-examined about paragraph 118.2 of his affidavit.
Given that the amounts the father apparently paid to the mother’s benefit out of his share of the home in Canada, in circumstances where the mother has used her share is in large part to pay her legal costs, it seems to me that in the particular circumstances of this case it is inappropriate to add the legal fees in as an add-back. To do so would be to unfairly penalise the father in these circumstances. The distribution from the sale of the former matrimonial home in Canada has both enabled the mother to pay her legal fees and, has given her the benefit of something of the order of a further $40,000. The proper resolution of the distribution from the sale of the home in Canada and the interrelated, as I find, issue of legal fees is that both parties have already expended should be excised from the pool.
Contribution
Here the father lays particular stress upon the shares that he had at the commencement of the relationship, their accrual to the relatively substantial sum now owned and the $40,000 he initially had in superannuation which together, it must be accepted, form approximately $150,000 of the total pool of $820,000, being approximately 15 per cent of the pool.
Nonetheless, there is force in the submission of counsel for the mother that time has well and truly put these initial contributions into proper context. In view of the fact that both parties worked (in the case of the wife until the children came along) and the length of the relationship being almost ten years, it is not appropriate for an instant to contemplate some sort of dollar for dollar apportionment of the husband’s initial contributions.
These matters are very much matters of impression and judgment and given the express concession that apart from initial contributions the parties’ contributions are otherwise equal, in my view there should be a seven and a half per cent loading in the husband’s favour in this regard.
It should be noted that I have not been overly concerned by the mother’s withdrawal of some $68,000 from the parties’ bank account in [C] because it seems clear that in large part that was her half-distribution of the net value of the sale of the [C] property. She has applied the vast bulk of it to legal expenses, as indeed has the father to an extent, to his. I note, however, that the father advanced funds to the mother to enable her to buy a car out of his share and it is to be accepted, as the father concedes, that the mother’s car is in fact worth $25,000 (the pool needs to be adjusted accordingly). It should be noted that neither party sought to include the proceeds of the [C] home as an item in the pool.
The section 75(2) factors
The husband is a relatively young man who has both the benefit and responsibility of his new relationship with two children who live in his household. Although he does not receive substantial contribution from Ms P, he describes it as a co-mingled household and I have no doubt that they will conduct their financial affairs on a joint basis shortly in the future if they do not do so already. The $1,000 per month payment that Ms P makes will doubtless cease.
As I find, the husband will advance significantly financially over time. He is a very well regarded and senior employee of longstanding with a very big corporation which has ample scope for such advancement. Whether this happens in Melbourne or as is more probable involves a move back to Sydney is uncertain, but I am quite sure that his already significant salary package of some $350,000 will significantly increase in years to come. He has very considerable financial resources. Even if Ms P does not work and contribute significantly to the household he will be very well off. I think, however, it is more likely than otherwise that Ms P will do so. She is obviously a very employable woman and impressed me as being highly intelligent and focused.
The mother’s financial position by way of contrast is absolutely dire. She has not repartnered and the prospects of her doing so remain wholly uncertain. Her health, like that of the father and Ms P, is generally unexceptionable, although it is clear she has been under considerable strain since the end of her relationship with the father. This will be addressed and hopefully ameliorated by the move back to [L].
In [L] the mother will not have much in the way of earning capacity but as I find would not have much in Melbourne in any event. She will be restricted to school hours of work at most for many years to come.
It is not appropriate, however, that the father be compelled to continue to pay in excess of the child support of some $1,800 per month that he pays. I would indicate that the father’s generous provision of financial assistance will necessarily cease when the mother returns to [L]. The mother will have to buy her own property and should be able to do so from the funds that the settlement I have in mind gives her, but she will be reliant upon small earnings, possibly family tax benefits and child support to live.
As earlier indicated, I do not purpose to order spousal maintenance. The application for it was faintly pressed, if at all. In my opinion, it is appropriate in all the circumstances of this case to order ongoing maintenance. The parties financial relationships can and should be finally determined (see s.81 of the Act).
The mother does not, in effect, have any professional qualifications or other qualifications likely to engender more than relatively small income whatever it is that she may do.
In all the circumstances, there should be a 25 per cent adjustment to the mother in this regard.
Just and equitable
An outcome that was to give the mother 67 ½ per cent of the total pool would give her approximately $553,500 of which approximately $75,000 would be in superannuation. It would give the father approximately $184,500 of which approximately $75,000 is in superannuation.
In my view, taking into account all the relevant matters to which I have referred, this is an outcome that can properly be regarded as just and equitable.
Conclusion
This case is complicated by the relocation issue and these Reasons for Judgment do not, as I have earlier indicated, perhaps follow a conventional format, at least in part. It is plain there are a number of things about which the parties will need to think further before final orders can be made. This may involve the taking of further submissions. I will give the opportunity to the parties to consider these Reasons and confer before hearing them further.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Associate:
Date: 4 July 2012
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