Wedekind & Nakano (No 2) - [2025] FedCFamC1F 5

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wedekind & Nakano (No 2) [2025] FedCFamC1F 5

File number(s): ADC 6051 of 2023

Judgment of: BERMAN J

Date of judgment: 17 January 2025

Catchwords:
FAMILY LAW – CHILDREN – Internation relocation – Where the mother seeks to relocate the children’s primary residence to New Zealand – Where the father seeks for the children to remain in Australia – Where the mother is the primary carer and the children spend three nights a fortnight with the father – Consideration of best interests – Where the children have a close and secure attachment with both parents – Where the evidence suggests the children would be distressed at separating from the father – Consideration of risk – Where the mother has significant mental health issues including psychosis – Consideration of the impact to the mother’s mental health and the impact on her ability to properly parent the children if relocation is not permitted – Consideration on how the children’s relationship with the father will diminish if relocation permitted – Where the single expert opined that relocation should be permitted as a matter of urgency – Where the evidence supports a finding the mother’s mental health would improve upon relocation – Where the children’s relationship with the father must be tempered by the risk posed to the mother if relocation not permitted – Where the children’s best interest will be served by relocating – orders for the children to relocate to New Zealand – Where the father should spend as much time as practicable with the children.

FAMILY LAW – PROPERTY – Where the property pool is modest – Where the relationship is of “short” duration – Consideration of contributions – Where the father brought in a real property and a considerable sum of superannuation – Concession by the mother that no financial or non-financial contributions were made to various assets – Consideration of future needs – Where the mother works part time and is the children’s primary carer – Where the father is currently working on a limited basis and receiving incapacity payments – Orders.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 6B, 60CC, 61D, 69ZT, 90SF, 90SM, 90XT

Care of Children Act 2004 (NZ) ss 81, 82

Cases cited:
AMS v AIF [1999] HCA 26

Bevan & Bevan (2013) FLC 93-545

Chorn & Hopkins (2004) FLC 93-204

Clifford & Lodge [2000] FamCA 1666

Crawford & Crawford (1979) FLC 90-647

Dickons & Dickons (2012) FamCAFC 154

Ferraro & Ferraro (1993) FLC 92-335

Finlayson v Finlayson and Gillam (2002) FLC 93-121

G & G [2000] FamCA 793

Holland & Holland [2017] FLC 93-798

Jabour & Jabour (2019) FLC 93-898

Lee Steere & Lee Steere (1985) FLC 91-626

Mallet v Mallet [1984] HCA 21

Money & Money (1994) FLC 92-485

Pierce v Pierce (1999) FLC 92-844

Stanford & Stanford (2012) 247 CLR 108

Starr & Duggan [2009] FamCAFC 115

Vass & Vass (2015) 53 Fam LR 373

Way & Way (1996) FLC 92-702

Wedekind & Nakano [2024] FedCFamC1F 590

White & White (1982) FLC 91-246

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 280

Date of hearing: 4-7 November 2024

Place: Adelaide

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Ms Lewis SC

Solicitor for the Respondent: Kennedy Partners Lawyers
ORDERS

ADC 6051 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR WEDEKIND

Applicant

AND:
MS NAKANO

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

17 JANUARY 2025

THE COURT ORDERS THAT:
1.Ms Nakano (“the mother”), at her sole cost, do all things necessary to register in a court of competent jurisdiction in New Zealand, pursuant to s 81 of the Care of Children Act 2004 (NZ), a copy of these orders made by the Federal Circuit and Family Court of Australia (Division 1).
2.Not less than twenty-eight (28) days of Mr Wedekind (“the father”) receiving formal confirmation that the parenting orders have been registered in a court of competent jurisdiction in New Zealand:
2.1The mother is permitted to relocate the residence of X born 2018 and Y born 2021 (collectively “the children”) to New Zealand; and
2.2The children’s names be removed from the AFP Watchlist.

3.The parties have joint decision-making responsibility as to long term issues for the children.
4.The children shall live with the mother.
5.Pending relocation to New Zealand, the children shall spend time with the father in accordance with the interim orders made on 23 April 2024 and as otherwise may be agreed between the parties in writing.
6.Save as to order 6.1, following relocation to New Zealand, the children shall spend time with the father as nominated by him either in Adelaide, Melbourne or New Zealand as follows:
6.1During school terms for a period of up to five (5) consecutive nights in each school term on such dates and times as agreed between the parties in writing and failing agreement to occur during week 4 of the school term, PROVIDED THAT:
6.1.1The father provides the mother with no less than thirty (30) days notice of his intention to spend time with the children pursuant to this order;
6.1.2The time is exercised in New Zealand and the children continue to attend all school and extra-curricular activities; and
6.1.3Time pursuant to this provision shall commence no earlier than the second week of school term and conclude no later than the penultimate week of school term such that there will be a block of at least seven (7) nights with the mother between any term time and holiday time with the father.

6.2For no less than ten (10) full days during the Term 1 and Term 3 school holiday periods as agreed between the parties and if not agreed, then for ten (10) days commencing on the first Saturday of the school holidays.
6.3Commencing 2025, for no less than twenty (20) full days during the Term 4/summer holiday period as agreed between the parties and if not agreed as follows:
6.3.1During even numbered years, time is to commence on a date prior to 22 December;
6.3.2During odd numbered years, time is to commence on a date prior to 8 January; and
6.3.3The children to spend such further or other time with each parent as may be agreed between the parties in writing from time to time.

7.The non-resident parent is to have video call communication with the children as follows:
7.1.On weekdays between 6.00 pm and 7.00 pm NZST or as agreed between the parties and if not agreed between 6.00 pm and 7.00 pm NZST each Monday, Wednesday and Friday; and
7.2On weekends, anytime during the day and if not agreed between 4.00 pm and 6.00 pm Saturday and Sunday.

8.For the purpose of travel to give effect to the children spending time with the father in Australia, the following shall apply:
8.1The father shall notify the mother of the airport location at least thirty (30) days prior to travel;
8.2The mother is to book flights and provide the father with copies of the flight bookings at least fourteen (14) days prior to travel;
8.3Both parties share in the costs of the children’s flights;
8.4The mother is to travel with the children to Adelaide or Melbourne to deliver the children to the father or a member of the paternal family;
8.5In the event the mother is unable or unwilling to travel to Adelaide or Melbourne with the children, then an accompanying person as may be nominated by the mother may travel to Adelaide or Melbourne to deliver the children to the father or a member of the paternal family with the costs of the accompanying person to be paid for by the mother;
8.6The father is to travel with the children to ~~City J~~ or City K, New Zealand to return the children to the mother; and
8.7In the event the father is unable or unwilling to travel to ~~City J~~ or City K with the children, then an accompanying person may travel to ~~City J~~ or City K to return the children to the mother or a member of the maternal family with the cost of the accompanying person to be paid for by the father.

9.The parties are to communicate with each other by email or text message only in relation to the children and said communication shall be limited to issues solely relating to their wellbeing and care arrangements.
10.The parties shall keep each other informed of their current exact residential address, contact telephone number and email address and notify the other party within twenty-four (24) hours of any change.
11.Each party shall provide the other with at least twenty-eight (28) days prior written notice of their intention to change their primary place of residence.
12.The parties authorise any medical, dental or health related practitioner, organisation or agency the children attend upon to provide both parties with copies of all medical or dental health reports and to liaise with both parties in relation to the children’s ongoing medical, dental or health treatment.
13.The parties shall notify each other of all matters concerning the children’s health as soon as reasonably practicable and immediately in the case of serious illness or injury, hospitalisation and/or accident.
14.The parties do each authorise any relevant school/education provider or extra-curricular provider that the children attend from time to time, to communicate directly with or to provide both parties or any matters concerning the children, including provision of information regarding awards, certificates, achievements, regular newsletters or other related school reports relating to the children and their engagement with that particular provider.
15.Both parties be at liberty to attend all school sporting co-curricular and extra-curricular activities and functions concerning the children including but not limited to school assemblies, parent/ teacher meetings and other relevant events.
16.Both parties do all acts and things and execute all documents necessary to ensure that the children are issued with an Australian Passport and that the passport is up to date and have no less than seven (7) months validity at all times.
17.The costs of the issue of the said passports are to be shared equally between the parties.
18.The mother to keep possession of the children’s New Zealand passports and the father to keep possession of the children’s Australian passports at all times other than as may be necessary to enable the children to travel.
19.The parties be at liberty to travel with the children for the purpose of a holiday or other short period of time outside the Commonwealth of Australia or New Zealand subject to compliance with the following:
19.1Any travel arrangements must coincide with the time that a parent is defined to spend with the children pursuant to these orders unless otherwise agreed between the parties in advance and in writing;
19.2The traveling party is to give the non-traveling party as much notice as possible of their intention to travel with the children, in writing, and in any event must provide the non-traveling party with a complete itinerary of the proposed travel to include but not limited to:
19.2.1Copies of travel tickets/itinerary;
19.2.2Departure and return destinations and dates;
19.2.3Flight details for all flights; and
19.2.4The localities that the children will be traveling to and the dates and times that the children are expected to arrive and depart each locality and contact telephone numbers for the children.

20.The parties have leave to provide a copy of these orders to any or all of the following:
20.1The principal or delegate of the principal of the school or schools attended by the children;
20.2All medical practitioners and/or allied health professionals attending upon the children; and
20.3All counsellors and other mental health professionals upon whom the children may attend.

21.Within thirty (30) days of the date of this order, the parties do all things as are necessary to sell their interest in the property located at B Street, Suburb C (“the Suburb C property”) as follows:
21.1The Suburb C property will be sold by public auction after a marketing period of not less than three (3) and not more than five (5) weeks, or as is otherwise agreed between the parties in writing;
21.2The real estate agent to conduct the Suburb C property sale will be as agreed between the parties in writing and failing agreement as nominated by the President of the Real Estate Institute of South Australia;
21.3The conveyancing for the Suburb C property sale will be agreed between the parties in writing and failing agreement as nominated by the President of the Law Society of South Australia;
21.4The reserve price for the Suburb C property sale will be agreed between the parties in writing and failing agreement as recommended in writing by the selling real estate agent appointed by the parties pursuant to these orders; and
21.5Pending settlement and the sale of the Suburb C property, the mother shall have sole use and occupation of the Suburb C property provided that she do all things necessary to facilitate the sale process.

22.Upon the settlement and sale of the Suburb C property, the proceeds will be divided as follows:
22.1Firstly, to pay all costs, commissions and expenses of the sale (including the fees of the conveyancing solicitor and the fees of the real estate agent);
22.2Secondly, to discharge the mortgage encumbering the Suburb C property;
22.3Thirdly, to reimburse the father for any costs incurred as provided for in order 23;
22.4Fourthly, a sum equal to 47.5 per cent of the net proceeds of sale together with the further settlement sum of $154,148 to the mother; and
22.5The balance to the father.

23.Pending the sale of the Suburb C property, the father shall pay all outgoings for the Suburb C property, including mortgage repayments, council and water rates, utilities, insurance and other outgoings as and when they fall due however, he shall be entitled upon the accounting for the proper expenditure on the Suburb C property a sum equal to one half of the expenditure from the net proceeds of sale.
24.Subject to these orders, any interest that the father may have whether real or equitable in the following assets shall forthwith vest absolutely in the mother:
24.1Furniture and chattels in the mother’s possession; and
24.2Any bank accounts registered in the mother’s name.

25.Subject to these orders, any interest that the mother may have whether real or equitable in the following assets shall forthwith vest absolutely in the father:
25.1The Suburb F property;
25.2Furniture and chattels in the father’s possession; and
25.3Any bank accounts registered in the father’s name.

26.The orders made on 6 September 2024 for the payment by the father to the mother of spousal maintenance is discharged as and from twenty-one (21) days from the delivery of judgment.
27.In accordance with s 90XT(1)(a) of the Family Law Act 1975 (“the Act”) whenever a splitable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of the father from his interest in Superannuation Fund 1 fund (“the fund”) member number …:
27.1The mother is entitled to be paid by the trustee of Superannuation Fund 1 an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a percentage of 100 per cent (100%) of the father’s interest in the fund and there will be a corresponding reduction in the entitlement the father would have had in the fund but for this order;
27.2These orders shall take effect from the operative time being four (4) business days after the day a sealed copy of this order is served upon the trustee of the fund;
27.3Having been afforded procedural fairness the trustee of the Fund will be bound to observe the terms of this order and the requirements pursuant to the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001;
27.4Within fourteen (14) days of these orders being made, the mother will serve a sealed copy of these orders upon the trustee of the fund; and
27.5The mother will give notice in writing to the trustee of the fund pursuant to regulation 72 of the Family Law (Superannuation) Regulations 2001.

28.Upon completion of the payment to the mother from the father’s interest in the fund pursuant to these orders, the father shall be restrained either by himself, his servants or his agents from:
28.1Executing a death benefit nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund as a “non-splittable payment” within the meaning of Regulation 12 of the Family Law (Superannuation) Regulations 2001; and/or

28.2 Making an application for withdrawal of any funds from his interest in the fund.

THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Mr Wedekind (“the father”) and Ms Nakano (“the mother”) are unable to reach agreement in relation to the future parenting arrangements for X born 2018 and Y born 2021 (collectively “the children”). The parties are also unable to agree property matters and accordingly, they seek a division of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
At present, in accordance with Consent Orders made on 23 April 2024, the children live with the mother and spend time with the father three nights each fortnight and in the second week, after school on Tuesday and before school on Wednesday. Further agreement was reached by consent on 6 November 2024 as to time additional spending with the father and the children for Christmas and in the Term 4 school holiday period.
Whilst the father seeks equal shared care, the mother promotes regular and ongoing time spending.
There are no allegations of family violence, neither party alleges an unacceptable risk of harm, the parties are able to appropriately co-parent and they do not dispute the meaningful relationship that exists as between the children and the other parent.
The matter which requires judicial determination is whether the mother should be permitted to relocate the children’s primary residence to New Zealand; a matter which is vigorously opposed and defended by the father.
By Amended Initiating Application filed 23 October 2024, the father seeks orders that the parties have joint decision-making responsibility for the children and in relation to time spending, he seeks orders as follows:
(1)If the Court orders that the children are to remain in Australia, the children live with the parties on a week about basis together with special occasion time spending.
(2)If the Court permits the children to relocate to New Zealand, and in the event the father also relocates to New Zealand, the children live with the parties in accordance with orders made as if the children were to live in Australia namely, on a week about basis together with special occasion time spending.
(3)If the Court permits the children to relocate to New Zealand, and in the event the father remains living in Australia, the children spend time with him in either Adelaide or Melbourne as follows:
(a)For no less than 10 full days during the Term 1 and Term 3 school holidays;
(b)For no less than 20 full days during the Term 4 long school holidays; and
(c)At such other times as agreed between the parties.

The father proposes extensive mechanical orders for travel, communication and handovers as well as that each non-residential party be allowed to FaceTime the children five days a week.
By Amended Response to Final Orders filed 23 October 2024, the mother seeks orders for the children to be permitted to relocate to New Zealand. She seeks an order for sole decision-making noting that she promotes communicating and attempting to negotiate with the father prior to making any decision.
In the event that the Court makes orders for the children to relocate their primary residence to New Zealand, the mother seeks for the children to live with her and spend time with the father as follows:
(1)For five (5) consecutive nights during each school term;
(2)For eight (8) days during two out of the three short term school holiday periods;
(3)During the Term 4 long school holidays, for 10 days in 2024, for 15 days in 2025 and in 2026 and thereafter for 20 days; and
(4)At such further and other times as agreed between the parties.
The mother also proposes extensive mechanical orders with respect to the parties travelling between Australia and New Zealand for the purpose of effecting the proposed time spending orders. Like the father, she promotes also FaceTime communication however, she seeks orders for three occasions per week.
In the event that the Court does not permit the children to relocate to New Zealand, the mother seeks that final orders be made in accordance with the current interim orders namely, that the children live with her and spend time with the father three nights a fortnight together with one time spending occasion prior to school and one time spending occasion at the conclusion of school.
The mother alleges that the parties discussed, and had indeed reached agreement, to relocate to New Zealand prior to separation in order for her to be closer to the maternal family who would provide support in the care of the children. She further alleges that these discussions continued post separation however, her desire to relocate only increased post separation following a significant deterioration in her mental health.
The mother suffers from mental health issues which she actively manages on an ongoing basis however, on occasions, she has experienced psychotic episodes. In her early twenties she experienced two short lived episodes of psychosis following an extreme psychological stressor and, on another occasion, the consumption of alcohol and an illegal substance.
The mother’s psychosis was sufficiently managed until the birth of X when she suffered from low-grade paranoid thinking and ideas of reference. She was prescribed a low dose of medication in or about 2019 and she continued to see a psychologist on a regular and ongoing basis to manage her psychosis and general mental health.
Following the breakdown of the relationship, the mother again suffered from an acute psychotic episode. Her two most recent episodes of psychosis resolved entirely within 24 hours to five days with sleep deprivation and psychological stressors being considered as a significant precipitant at the time.
Following the mother’s episode of psychosis in late 2022, the parties agreed that the mother and the children should travel to New Zealand together with the maternal grandmother sooner than December and arrangements were made for departure tickets to be issued.
After several months in New Zealand, the mother informed the father that she did not intend to return to Australia with the children; a decision that she considered was as agreed between the parties prior to separation.
Between January and October 2023, the father travelled to New Zealand on four or five occasions to spend time with the children. Time spending as between the children and the father occurred without any significant issue and was assisted by the maternal grandparents.
However, the father commenced proceedings in New Zealand in mid-2023 and in late 2023, a Consent Memorandum was made in the Family Court of New Zealand requiring the mother and the children to return to Australia by the end of 2023.
In late 2023, the mother and the children returned to Adelaide and the father commenced proceedings in these Courts.
Since returning, the mother’s mental health has required constant and active management to prevent future psychotic episodes. She considers that there has been a significant decline in her wellbeing and ability to provide care for the children, a matter which is not disputed by the father.
BACKGROUND
The father was born in 1983 and is 41 years old. He was born in Country M and relocated to Australia in 1996 with his parents and his sister. In 2008, he moved to Adelaide for an employment opportunity.
The mother was born in 1983 and is 41 years old. She was born in New Zealand, moved to Australia in or about 2010 and relocated to Adelaide in 2015.
The parties started a relationship in late 2015, commenced cohabitation in early 2016 and separated on a final basis on 3 November 2022.
There are two young children of the relationship namely, X and Y aged six and three years of age respectively. Both children were born in Australia.
The mother considers that it was always the parties’ intention to relocate to New Zealand once children were born so as to be closer to her family who could provide support to her and the children. She asserts that the parties’ intended to relocate prior to X commencing school however, the timing of the move remained uncertain.
It is the mother’s steadfast position that discussions pertaining to relocation were had prior to separation and continued post separation. The father however, disputes that there was ever a certain agreement relating to relocation.
Whilst no formal agreement was reached, the mother’s mental health took a serious decline upon her understanding that relocation was uncertain.
As discussed, the mother suffers from mental health issues. In 2019, following the birth of X, she experienced a brief psychotic episode resulting in her General Practitioner referring her to Dr D, a consultant psychiatrist, for the purpose of developing a management plan for her perinatal period.
Dr D assessed the mother as having a vulnerability to brief episodes of psychosis in the context of unreasonable and unremitting stress, hormone changes and sleep deprivation and that an escalation in anxiety has the potential to trigger the symptoms.
Since 2019, the mother has actively managed her mental health which includes taking varying doses of medication and regularly attending upon Dr D.
The mother again experienced an acute psychotic episode in or about late 2022 following the breakdown of the relationship with the father. The high degree of distress, coupled with little or no sleep, culminated in the mother developing symptoms of psychosis, referential thinking and a sense of more than one reality.
The father’s concern was such that he contacted the maternal grandmother to inform her of the status of the mother’s mental health which prompted the maternal grandmother to travel to Adelaide and provide the mother and the children with live-in support.
Prior to separation, the parties had purchased flights to New Zealand to depart in December however, following the mother’s psychotic episode, it was agreed to bring forward the travel dates, the mother and the children travelled to New Zealand together with the maternal grandmother.
Upon their arrival, the mother and the children moved into the maternal grandparents’ home which had a room each for the mother and the children.
In January 2023, the mother informed the father that she did not intend to return Australia. She considers that the parties discussed living arrangements and ultimately decided that it was too premature to decide whether the mother should return to Adelaide with the children and it was agreed that the mother and the children would remain in New Zealand until a final decision was reached.
The father spent time in Melbourne for work and travelled to New Zealand in early 2023 to spend time with the children. During his time in New Zealand, the parties had several discussions which culminated in an informal interim arrangement that provided for the children to remain living in New Zealand. The mother enrolled the children into kindergarten and daycare, and they settled into day-to-day life.
The mother required significant assistance and support upon her arrival in New Zealand. The maternal grandmother assisted the children during the evenings and when the children awoke from about 6.30 am to enable the mother to rest and sleep. The maternal grandmother prepared breakfast and dinner, assisted dressing and feeding the children in the morning and with kindergarten drop-offs. This occurred until approximately June 2023 by which time the mother’s mental had significantly improved.
As the mother’s mental health improved, she managed to obtain employment, she recommenced picking the children up from kindergarten and undertook shopping and meal preparation as well as the children’s evening routines.
The mother maintained attendance upon Dr D via zoom however, between May and December 2023, she attended upon Ms H, a clinical psychologist, whilst in New Zealand.
Ms H considered that the mother presented with acute stress and anxiety symptoms relating to the breakdown of her relationship however, she did not present with symptoms that would satisfy a mental health diagnosis.
Ms H opined that the mother was learning how to manage her anxiety and “potential occurrence of unusual thinking” in circumstances where she was under considerable amount of stress. However, she considered that the mother was able to learn how to manage her symptoms in circumstances where she had considerable support from her parents, had the financial pressure alleviated through needing to only work on a part-time basis and the benefit of the structure and routine of being near her family and friends. This enabled the mother to parent without any concerns and it was noted that the children, given their young ages, would benefit from one parent who was physically available.
The evidence strongly supports a finding that the mother’s mental health was considerably assisted and improved during her time in New Zealand. She gained employment on a part‑time basis and recommenced being able to function without as much assistance from her parents.
The father continued to spend time between Adelaide and Melbourne for work and he travelled to New Zealand on five occasions to spend time with the children. The maternal grandparents assisted in handovers to alleviate any stress or anxiety that may have impacted the mother.
The father spoke with the children on approximately two to three occasions each week via FaceTime. The mother considers that notwithstanding her mental health, she was able to facilitate visits between the children and the father and promote the relationship by speaking positively about the father.
In mid-2023, the State Central Authority on behalf of the father, commenced proceedings in the Family Court of New Zealand under the Hague Convention on the Civil Aspects of International Child Abduction. Following a judicial conference, the parties entered into a Consent Memorandum that was lodged in the Family Court of New Zealand. The Consent Memorandum provided that the mother and children would return to Australia by the end of 2023.
The mother and the children arrived in Australia in late 2023. Since then, the children have remained living with the mother. The father commenced spending time with the children one night each fortnight together with a dinner in the intervening week until 7 February 2024.
On 23 April 2024, orders were made by consent for the children to spend time with the father three nights a fortnight together with one occasion after school and one occasion before school.
Since returning to Australia, the mother recommenced attending up Dr D who diagnosed her with Major Depression and prescribed an antidepressant treatment.
Dr D considered that despite the mounting stress experienced by the mother coupled with the uncertainty of her future, the mother was sufficiently managing her mental health and there was no evidence to support any psychotic symptomatology. It is noted by Dr D and the mother that the mother’s anxiety manifests in ruminating on her situation and overthinking to avoid falling into an episode of psychosis.
The mother has continued to work remotely for her employer in New Zealand, however, should the mother remain in Australia, her employer will be unable to continue to facilitate remote employment.
The father remains employed as a professional for a private contractor which requires him to have a security clearance. The conditions of the clearance mean that he is only permitted to work in Australia and he is unable to be a citizen of any other country.
At trial, the father gave evidence that he had injured his back, was incapacitated and unable to work. Whilst he had sustained the injury two years prior, he considered that he may be able to retrain and work in a new role.
The father is presently receiving compensation however, he requires two specialist reports for the claim to be properly assessed and he whilst he had seen his General Practitioner to obtain referrals, he was yet to see a specialist.
The father contends that he either cannot obtain employment outside of Australia due to his security clearance or, in the event he is eligible for receiving the compensation applied for, he would be unable to receive said compensation should he reside outside of Australia.
DOCUMENTS RELIED UPON
The matter was commenced by Initiating Application on 19 December 2023 and first came before me for an interim argument on 14 August 2024 following which judgment was reserved.
At that hearing I indicated to the parties that given the extensive affidavit material filed and the nature of the issues and the matters requiring judicial determination, the matter may benefit from an expedited trial listing.
As set out in Wedekind & Nakano [2024] FedCFamC1F 590 (“Wedekind & Nakano”) at [17], the matter was given an expedited final hearing based on the following matters:
(1)The relatively narrow compass of the issues to be determined both as to parenting and property settlement;
(2)The detail and evident effort involved in the preparation of comprehensive affidavits and Financial Statements;
(3)The contemporaneous nature of the reports prepared by [Dr D] and [Ms E] (subject to a finding that the reports contain privileged material);
(4)The observation from the Costs Notice filed on behalf of each of the parties that the total costs to be incurred to the conclusion of the matter is in excess of $450,000; and
(5)That on present indications, the available property of the parties is likely to be in or about the sum of $600,000.
As such, a considerable volume of documents relied upon by the parties, in particular the mother, were previous affidavits filed for the purpose of interim matters.
The father relies upon the following documents:-
(1)Amended Initiating Application filed 23 October 2024.
(2)Financial Statement filed 27 September 2024.
(3)Affidavit of the father filed 5 August 2024 (“the father’s trial affidavit”).
(4)Affidavit of the father filed 23 October 2024 (“the father’s further affidavit”).
(5)Cost Notice filed 4 November 2024.
The mother relies upon the following documents:-
(1)Further Amended Response to Final Orders filed 23 October 2024.
(2)Amended Financial Statement filed 26 September 2024.
(3)Affidavit of the mother filed 23 October 2024.
(4)Affidavit of the mother filed 5 August 2024.
(5)Affidavit of the mother filed 13 August 2024.
(6)Affidavit of Ms L filed 23 October 2024 (annexing report dated 14 October 2024).
(7)Affidavit of Ms N (“the maternal grandmother”) filed 23 October 2024.
(8)Affidavit of Ms H filed 28 March 2024 (annexing report dated 29 January 2024).
(9)Affidavit of Ms E filed 1 August 2024 (annexing report dated 29 July 2024).
(10)Affidavit of Dr D dated 31 July 2024 (annexing report dated 19 February 2024, revised report dated 24 February 2024 and updated report dated 29 July 2024)
(11)Outline of Case filed 1 November 2024.
(12)Cost Notice filed 1 November 2024.
The parties also rely on the affidavit of Ms O filed 1 November 2024 which annexes valuation reports for the real properties.
TREATMENT OF THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party makes any allegation of unacceptable risk of harm, no positive finding is sought and neither party makes any allegation of family violence.
I considered that the best way to manage these proceedings was not to deviate from s 69ZT of the Act other than to apply a strict approach of the application of the Evidence Act for matters relating to objection. I ruled on matters of objection so as to assist counsel and the parties focus on the real issues of this case namely, the care arrangements for the children.
I consider that for the balance of the matters, s 69ZT is to apply and evidence that would not be admitted as a consequence of the Evidence Act will be admissible but the weight that such evidence is to be given is a matter for the Court’s discretion.
THE EVIDENCE
The father
The father confirmed that he had no family members in South Australia although his parents and sister live in Melbourne, and he has cousins who live interstate one of which is a legal practitioner and provided some assistance in advising him how to access information and assistance as to Hague Convention proceedings.
Whilst not conceded by the father, the drafting of his Amended Initiating Application and further affidavit filed 23 October 2024 strongly suggests involvement by a legal practitioner.
The father accepts that the mother has experienced episodes of panic attacks, psychosis and anxiety triggered by stress and at least in part exacerbated by the separation of the parties and the mother’s continued distress at being required to remain in Adelaide, unable to return to her family in New Zealand.
The father acknowledged that the summary of the mother’s poor mental health and in particular the impact on her daily life as detailed in paragraphs 56 and 57 of her affidavit, is accurate. To his credit, the father accepts that the mother is telling the truth and is not exaggerating her symptoms.
The father has witnessed the mother experiencing psychotic episodes which include delusional conduct such as communicating with non-existent people and behaviour that is dogmatic and fixated.
A precursor to a psychotic episode is the father’s observation that the mother will ruminate excessively.
The father considers that the mother is able to adequately manage her mental health whilst the mother summarises her position as follows:[1]
On better days I feel like I am holding it all together by the skin of my teeth, and on worse days I feel like I am staving off psychosis and it is getting harder. It all feels scary to me.
[1] Mother’s trial affidavit filed 5 August 2024 at paragraph 57.
The father was taken to paragraph 121 his affidavit filed 19 December 2023. He accepts the mother’s summary of her mental health difficulties (as summarised in her affidavit dated 16 November 2023 filed in the New Zealand proceedings) as follows:
121.1   The end of the marriage had serious impact upon her mental health;
121.2   She experienced disordered thinking, and found it hard to function;
121.3   She engaged with psychiatric supports;
121.4   She could not cope with every day tasks;
121.5   She was overwhelmed with anxiety, fears;
121.6   She struggled to understand which thoughts were rational and which were not.

The father was aware of the extent of medication prescribed and observed a psychiatric episode on or about November 2023.
Even though at times the father was concerned as to the mother’s behaviour and that she might present as a danger to herself and possibly the children, it is not part of the father’s case that the children should be in his primary care and spend time with the mother subject to safeguards.
The father considers that the children need to maintain a strong and ongoing relationship with each of the parties.
The father was candid in his acknowledgement that the mother wanted to raise the children in New Zealand. There were discussions prior to the birth of each child that the mother wished to return to New Zealand and in particular, that the father conceded he was still open to moving to New Zealand but was undecided as to where they would live.
The father’s evidence as to his attitude to the proposed relocation of the children to New Zealand and the related discussions with the mother was considered in Wedekind & Nanako (supra).
Those proceedings came about as a result of the father filing an Application in a Proceeding on 7 August 2024 seeking that the affidavits of Dr D filed 31 July 2024 and Ms E filed 1 August 2024, which annexed reports, be uplifted from the Court file.
In summary, there is content in each of the reports that refer to proposals passing between the parties which contemplated a relocation to New Zealand. For the reasons set out in Wedekind & Nakano (supra), I did not consider that the communication between the parties was privileged.
Whilst it might be said that the apparent acknowledgement by the father of the possibility of a relocation to New Zealand was significant, the focus of the proceedings must be the extent to which the relocation would be in the children’s best interests.
During the period that the mother and children remained in New Zealand, the father travelled to New Zealand to spend time with the children and he stayed with the maternal family. He agreed that he has a good relationship with the mother’s parents and that at all times they were cordial and accommodating. He did however believe that the mother had made the necessary arrangements for the father to live with the maternal grandparents because she did not want him to take the children away from the grandparents’ home.
The father’s belief that the mother was attempting to strictly control his time with the children in New Zealand was challenged by the evidence that on a visit by the father and the paternal grandmother to New Zealand to see the children, the children stayed with the father for two nights at the commencement of his time with them and the last night with the balance in the holiday home of the maternal grandparents.
The father also spent five days with the children commencing October 2023 and stayed in an Airbnb.
Senior counsel for the mother put to the father that the children were happy to see him and that they are excited when they speak to him via FaceTime three or four times each week.
Inherent in the cross-examination of the father was the premise that the children have a strong relationship with the father and despite their separation for the period that the children remained in New Zealand, their relationship with the father does not appear to have been adversely impacted. This is intended to support the mother’s position namely, that if permitted to relocate the children to New Zealand, the Court can have confidence that the mother will continue to support their relationship with the father.
The father considered that he had an injury to his back. The injury causes the father considerable pain and discomfort and the evidence is that prognosis appears guarded at best.
As a result of the father’s employment with the defence force, he is entitled superannuation benefits with “Superannuation Fund 2”. Exhibit “4” comprises correspondence from Superannuation Fund 2 setting out the father’s entitlements as at 31 October 2024.
There are three components to the Superannuation Fund 2 benefits as follows:
(1)Total value of ancillary benefit - $11,610
(2)Total value of (preserved) member benefit - $67,409
(3)Gross employer benefit - $181,137
The father is unable to access any part of the employer benefit until he satisfies a condition of release namely, reaching the age of 55. At that age, the benefit can then be either rolled over to another superannuation fund or he can commute not less than 50 per cent of the employer benefit to a CPI indexed pension with the balance taken as a lump sum or he could take the entirety of the employer benefit as a CPI indexed pension.
Given that the father’s date of birth is in 1983, the relevant preservation age is 60 years. The father is presently 41 years of age.
The father’s evidence is that he has been attempting to access his Superannuation Fund 2 on medical grounds which could result in the early release of some of his preserved superannuation benefits.
It is the father’s evidence that at present he is unable to continue to work on a full-time basis. Two medical certificates are required to establish the extent of his incapacitation. The father is in the process of obtaining the requisite medical reports that are necessary to pursue his claim for an incapacity payment. If successful, the father expresses uncertainty as to whether the incapacity payments would be payable if he moved to New Zealand.
Should the Court allow the children to relocate to New Zealand then the father seeks that the children spend 10 full days with him during the Term 1 and Term 3 school holidays either in Adelaide or, if so nominated by the father, in Melbourne and for 20 days in the Term 4 summer school holidays, in even numbered years to commence on a date prior to 22 December and in odd numbered years to commence on a date prior to 8 January.
It appears that if permitted to relocate then the parties are likely to agree to share equally in the costs of the children’s flights.
In addition, the father seeks that he spends five nights with the children in each school term.
The father gave credible evidence and was prepared to make concessions even against his own interests. It was evident that the father was attempting to assist the Court and the timely resolution of the proceedings.
The mother
The mother reflected upon the arrangements for the father to spend time with the children whilst she remained in New Zealand. On the first occasion, the father was welcome to stay with the children on her parents’ property because by that time the children were familiar with the premises.
On the other four occasions the mother’s evidence is that the father did not ask to stay elsewhere and the mother thought that the children would cope better if the maternal grandparents were present.
The mother conceded that when she found out that the father was in the process of obtaining passports for the children, she was concerned that he might attempt to remove them back to Australia and as such, she required that the father’s arrangements with the children be more vigilant.
The mother holds two qualifications. She is currently working remotely for a firm in New Zealand on a part-time basis.
Whilst in New Zealand, the maternal grandparents paid for the mother’s base living expenses including utilities. The mother acknowledged that her parents provide significant support with the implication that they would likely assist the mother and the children to the extent as may be required particularly if the children were able to relocate to New Zealand.
The mother was frank in her assessment that she would be unlikely to be able to return to work as a genetic counsellor given that her capacity to cope with the type of work involved was significantly compromised.
The mother also agreed that she had made no financial contribution to the acquisition of the Suburb F property.
Even though the mother had unilaterally determined to remain in New Zealand with the children, she considered that the parties were able to communicate reasonably well and if she was not able to relocate with the children, then she agreed that the children should spend regular time with the father.
The mother was asked to reflect on the children’s relationship with the father and how a relocation to New Zealand would impact on them. The mother agreed that it was not ideal but it was necessary to preserve her mental health and enable the children to have two functioning parents.
The mother did concede that the children were still upset at the current time spending arrangements and it would have been their preferred position that the parties were not separated.
The parties found themselves in the invidious position of the mother being cross-examined by the father. Whilst the cross-examination was truncated, it became apparent that each of the parties did not bear any overt animosity towards the other and in particular, the father demonstrated admirable courtesy towards the mother.
For her part, the mother clearly struggled with the process but not dissimilar to the father, the mother was not disparaging towards him.
A consequence of the mother’s cross-examination was that the majority of her evidence as set out in her trial affidavit material is unchallenged.
Ms N
Ms N is the maternal grandmother of the children. She and her husband live on a small agricultural property on the outskirts of Town R, New Zealand.
The mother has three siblings and the children have seven cousins, that live between two and five hours away from the home of the maternal grandparents. It is likely that this is the area where the mother will live with the children if permitted to relocate.
Ms N impressed as being prepared to support the father’s relationship with the children and I accept her evidence as to her involvement with the father visiting the children in New Zealand in 2023.
The evidence of the maternal grandmother was impressive. The Court can be satisfied that the children and in particular the mother are likely to be supported by the maternal grandparents with the added advantage of significant support from the extended family both in terms of the mother’s siblings but also the extended family of each of the maternal and paternal grandparents.
Ms E
Ms E is a clinical psychologist who presents with a curriculum vitae evidencing a detailed educational and employment background. Ms E was not the subject of challenge as to her expertise.
By order made 19 February 2024, Ms E was appointed in the capacity of a single expert witness to undertake engagement and observations between the parties and the children with the intent to prepare a Family Assessment Report. The assessment was conducted in June and July 2024 with a report prepared and released on 29 July 2024 (“the report”).
Ms E obtained the permission of the parties to obtain a child development questionnaire to Y’s childcare centre and X’s primary school. A response was received for X but not Y.
The difficult situation that the children find themselves in is best demonstrated by the following remarks of Ms E in the report arising from the observations of the children and their interaction with each of the parties:
37.In play with [the mother] [X] and [Y] presented as happy, active, inquisitive children. Both became engaged and focused quickly on activities with [Y] consistently engaged in conversation asking questions, wanting to help and be involved while [X] presented as more focused on his game. [The mother] was gentle and encouraging, providing helpful observations, praise and extension of the children’s play and interactions. Normal moments of sibling disagreement or frustration were managed patiently by [the mother], with both children also demonstrating good emerging skills in compromise and empathy for each other. Towards the end of the session both children were understandably tired and less helpful towards [the mother]’s requests to help pack up. In her final interview [the mother] indicated the children’s behaviour and her own had been typical of how they usually are, while noting that she felt conscious of being observed.
38.When attending with [the father], [X] and [Y] again presented as joyful, engaging, active and curious children. Both children happily engaged in play with their father, [X] again with a greater capacity for quiet focused attention while [Y] was more verbally engaged throughout. [The father] was observant and helpful in managing similar moments of frustration or disconnect between the boys (e.g. as on the previous occasion, [Y] interrupting his older brother's play) offering [Y] affection. explanation, a different activity or a snack. At times [Y] called [the father] Mum, to which [the father] responded calmly without pause or correction. At the end of the session neither child actively engaged in requests to help pack up but were otherwise responsive to [the father]’s requests. [The father] indicated during his final interview that the play between them was typical of how they are at home.
Ms E recorded that the mother considered that the father was loving towards the children and was affectionate and tactile. She did not doubt that the father wanted to be involved in the children’s lives and was accordingly surprised given that she considered it was the father who instigated the separation with the inevitable consequence that he would spend less time with the children.
The mother reported that if permitted to relocate, the children would need to spend significant time with the father during school holidays and in particular, the longer summer breaks. She confirmed her position which was that the father could spend time with the children during school terms and such was the relationship that if he were to move to New Zealand, the parties would likely work towards a shared care arrangement.
Each of the parties were given a number of standardised tests which serve as a cross check and aid to the observations of Ms E in terms of her personal engagement with each of the parties and the children.
Ms E observed that the father, whilst articulate and amiable, was assessed as experiencing borderline depression soon after the separation however, his response to the “depression, anxiety, stress scale” did not identify any clinically significant issues.
The father was sufficiently sanguine as to a possible relocation outcome such that whilst he would be upset, he would cope. The father recognised that there would be significant focus upon the mother’s mental health, the parameters of which were not disputed by him but that there were other issues which should be given weight.
Each of the parties presented as good enough parents and the overarching consideration is that the children would benefit from having an ongoing relationship. Each party made an important concession that the other presented as both competent and loving.
Ms E considered that the mother should be able to relocate with the children as a matter of urgency provided that appropriate arrangements are put in place for the children to spend as much time as was reasonable with the father should he not relocate to New Zealand.
The basis for the strong position adopted by Ms E in the report is as follows:
71.Neither [the mother] nor [the father] have family support in Adelaide, and while [the father] has employment and a wide social circle, [the mother] is now not established in either of those areas. Given the history of [the mother] having had two psychotic episodes arising from times of significant change and stress it presents that her wellbeing in the context of being separated from [the father] depends upon her having access to family support in New Zealand. That is, it is not sufficient that [the father] is her only parenting support. Further, it is noted that [the mother] and her family have already demonstrated a commitment to supporting and facilitating regular time spending and contact between [the father] and the children through 2023 when she was in New Zealand with the children and he remained in Adelaide. This presents as the only way that the children have a reasonable prospect of maintaining a relationship with two healthy, competent, functional parents who are able to meet their needs on an ongoing basis.
In evidence, Ms E highlighted how difficult the situation was for the children given that they had a secure attachment with the father. Ms E agreed that the separation from the father would be distressing for the children, this must be tempered by the risk posed to the mother if relocation was not permitted.
Dr D
Dr D is a psychiatrist currently employed in private practice. She previously held a senior position at P Hospital between 2009 and 2011, a senior position at Q Health Service between 2011 and 2014 and another senior position at Q Health Service between 2014 and 2015 before transitioning into private practice.
Dr D has been the mother’s treating psychiatrist since 2020 and was requested by the mother’s solicitors to prepare a number of reports as annexed to her affidavit filed 31 July 2024. Dr D continues to see the mother and has seen her on more than ten occasions since 24 February 2024.
Dr D sets out the current assessment of the mother as follows:[2]
There has been a clear-cut decline in [the mother]’s mental health as described in the body of the report. This includes symptoms of Major Depression such as a low mood, difficulty with focus and concentration, disrupted sleep, weight reduction with reduced appetite, [and other symptoms]. [The mother] has been pushing herself to maintain her daily activities and self-care, but his has been become harder over the last 5 months.
[2] Affidavit of Dr D filed 31 July 2024, page 38.
Dr D confirms that the mother has increased her dose of medication in response to heightened levels of stress and anxiety.
The mother’s medication regime also includes as an antidepressant, two medications to assist with acute anxiety. The mother’s presentation to Dr D is such that her report refers to a deterioration in the mother’s mental health with a potential for the mother to be referred to community based mental health services.
Dr D did not consider that the mother’s mental health would improve if she was required to remain in Adelaide with the result that she would show overt signs of major depressive disorder and possible symptoms of psychosis.
At present, the mother is vulnerable to psychosis particularly as her sleep patterns deteriorate which would then promote unnecessary rumination on her circumstances.
The mother presented to Dr D as not being safe in an emotional sense however, Dr D considered that the mother’s condition would significantly improve if allowed to relocate but also if she was able to engage at a higher level of communication with the father.
With the best of intention and therapy that has been targeted, Dr D has not been able to diminish the mother’s depressive presentation.
Whilst not a matter of opinion by Dr D, it is apparent that the mother’s ability to parent the children may well be compromised and more so if her condition deteriorates.
The evidence of Dr D was unchallenged as to her prognosis that the mother’s declining mental health would be arrested followed by significant improvement if she was allowed to relocate the children and return to New Zealand.
PRINCIPLES APPLICABLE TO RELOCATION CASES
In AMS v AIF [1999] HCA 26, Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:-
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218. To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father ... or to be in the custody of the mother ... . That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother's custody ...

The Full Court in Starr & Duggan [2009] FamCAFC 115 ("Starr & Duggan"), gave clear direction as to the co-existence principle that the best interests of the child are the paramount consideration and the legislative framework will, of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38. ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties' respective proposals.
In the case of Starr & Duggan (supra), it was the wife's application that she be permitted to relocate to Germany with the children. Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parent, the child or children, and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90, the Full Court considered a number of authorities, both international and local, and summarised the position as follows:-
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
...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.
48."Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
The focus is to consider the separate proposals of the parties, having regard to the advantages and disadvantages that the children will experience. The Court is required to determine the matter on the basis of the best interests of the children.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that brings to account the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests test is to be considered by the application of the two objects of s 60B of the Act and to have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interest.
Subject to the parties seeking a consent order, s 60CC(1) of the Act requires the Court to consider the general considerations as set out in s 60CC(2) and (2A) which places emphasis on any history of family violence, abuse or neglect and any family violence order if consideration is to be given to arrangements that would promote the safety of either a child or a party from family violence, abuse, neglect or other harm.
It is of note that in the current proceedings, there is no issue in respect of the children’s safety nor are there any allegations of abuse, neglect or family violence.
The focus of the relevant provisions of the Act are to ensure the best interests of the children, as opposed to the parties, is the paramount consideration.
I consider that whilst the Act does not make specific mention of the importance to the children to having a meaningful relationship with each of the parties, it is likely that the best interests of a child will be served if a relationship with a party, parent or another person who may be significant to the child is maintained providing it is in all the circumstances safe to do so and will be of an advantage to the child.
As discussed, neither party seeks to disparage the other in terms of the importance of their separate relationships with the children. The orders sought by the father are predicated upon his recognition that the children need to spend as much time as is possible or practical with each of the parties to maintain the quality of the current relationship.
The orders sought by the mother recognise that if the children are able to relocate to New Zealand then they should spend as much time with the father during school holidays and during the school term as possible. There is no suggestion in the orders sought by the mother that she seeks to do other than to facilitate the best outcome for the children even though she concedes it is not ideal that there will be a reduction and a diminution in the relationship that the children currently have with the father.
Section 61D gives consideration to parenting orders and parental responsibility. Section 61D(1) of the Act provides that:
A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
In the present case, the father seeks that the parties each have joint decision-making authority in respect of the children, whereas the mother considers that in circumstances where the father has indicated an intention to remain in Australia and not relocate to New Zealand, the practical reality is that the children’s interests are best served by her retaining sole decision making for them.
I consider that the determination as to whether an order should be made under s 61D(3) of the Act concerning the allocation of responsibility for major decision making is informed and to be determined by a consideration of the best interests of the child consequent upon the application of the considerations in s 60CC.
PARENTING CONSIDERATIONS
Are the children at risk
In terms of the focus of family violence, abuse and neglect, the parties each concede (as supported by the evidence) that the children are not at risk. To the extent that harm might involve the potential for a diminution in the quality and nature of the father’s relationship with the children if relocation is permitted appears to be the prime focus of the proceedings.
Whilst each of the parties seek other orders should relocation of the children not be allowed, broadly speaking the alternate proposals of the parties on the current evidence would likely maintain the children having a meaningful and qualitative relationship with each of the parties.
Ms E noted the strength of the relationship between the children and each of the parties in particular that there was a strong emotional and a secure attachment.
The potential risk to the children arises from the recognition that if the mother is not permitted to relocate with the children to the security and support of her family in New Zealand, her mental health is likely to be adversely impacted to the extent where her ability to properly parent the children is at risk.
The tension between the separate proposals of the parties arises from an understandable concern of the father that his relationship with the children is being put at risk by the preferential treatment that the Court is being asked to afford to the mother.
In many respects, finding the appropriate balance is a difficult exercise particularly where the evidence supports a finding that the continued relationship between the children and each of the parties is important.
The paramount consideration must be considered as to what is in the children’s best interests.
The evidence from Ms E underpinned by the psychiatric evidence from Dr D is uncontested. To the extent that it might be considered necessary, the appropriate concessions made by the father of his observations of the mother’s presentation underpins the mother’s mental health fragility.
Even though it is likely that a significant stressor for the mother arises from what she considers is a change in the father’s position which was supportive of the children relocating to New Zealand, I am obliged to consider the advantages and disadvantages of the orders sought by each of the parties.
Any views expressed by the children
The children have not expressed any view relevant to the proceedings other than the reasonable finding that there is a close relationship and emotional attachment between the children and each of the parties.
The children would no doubt prefer that the family would be intact rather than the disruption caused by the separation.
The evidence supports a finding that the children would wish to spend as much time with each of the parties as is reasonable.
The developmental, psychological, emotional and cultural needs of the children
Each of the parties are able to provide appropriately for the children’s development and advancement. Whilst there is not complete agreement as to the extent of time that the children should spend in the care of each of the parties in terms of alternate positions to be adopted, the orders sought by each of the parties inherently acknowledge that each of the parties are able to appropriately care for the children.
The capacity of each person who has or is proposed to have parental responsibility for the children
The parties are not agreed as to parental responsibility and decision making. Whilst communication between the parties is difficult because of the emotional overlay rather than any allegation or assertion that the parties are incapable of being civil and courteous to each other, it is likely that the resolution of the litigation will enable the parties to resume communication that is targeted to the needs of the children.
Other matters relevant to the particular circumstances of the children
The mother proposes that the children spend time with the father for up to five consecutive nights in each school term and for eight days during two of the three school term holidays alternating between New Zealand and Australia. In addition, the mother proposes that the children spend time with the father for 10 days during the Christmas school holiday period in 2024, 15 days in 2025 and 20 days in 2026.
The orders proposed by the mother were the subject of consideration by Ms E. Whilst acknowledging the importance of the father’s relationship with the children, Ms E was forthright in her recommendation that the interests of the children are best served by the mother’s proposal which according to Dr D is likely to see a significant improvement in the mother’s mental health.
Simply put, the children will benefit from each of the parties being able to parent the children at a high level.
It is inherent in the evidence of Ms E that whilst not ideal and certainly not optimal, the orders involving relocation proposed by the mother will result in maintaining an appropriate relationship between the children and the father.
Decision making
It is important that each of the parties maintain their involvement with the children at the highest level of engagement that is practical in all the circumstances.
The parties have the capacity to communicate with each other in a civil and courteous fashion. There is no reason why the father should not remain engaged with the children and be involved in decision making that will impact the children’s lives.
CONCLUSION
The father seeks orders that if the mother is able to relocate with the children to New Zealand then he spend not less than 10 days with the children during the Term 1 and 3 school holiday periods and for not less than 20 days during the Term 4 summer school holiday period. In addition, the father seeks that upon the provision of appropriate notice he is able to spend not less than five nights with the children.
The parties are agreed that they will share the costs of the children’s travel between New Zealand and Australia.
There is some suggestion in the father’s evidence, and highlighted by the orders sought by him, that he may contemplate a move to Melbourne to be closer to his family. There is no suggestion that the children’s circumstances are adversely affected as to whether the father resides in a place other than Adelaide.
Of more relevance are the orders sought by the father that if he were to relocate to New Zealand then he would seek that the children’s time be shared between the parties.
The mother does not seek orders as to the arrangements should the father decide to relocate to New Zealand.
As was considered in Wedekind & Nakano (supra), the parties entered into a separation agreement which considered the viability of a shared care arrangement. The mother wanted the whole family to live in New Zealand whereas at the time the father wanted the family to live in Melbourne.
It is likely that the mother is not opposed to the children spending more time with the father however, the difficulty is that the father has not yet determined to relocate to New Zealand and the circumstances that might exist are unknown.
An equal shared care arrangement may well be viable if the parties are living in close proximity to each other such that a change of care would not be disruptive to the children. There is however, no evidence presented by the father of the parameters of an alternate position and whilst I think it is appropriate to contemplate an extension of the father’s time by two nights a fortnight should the father relocate to New Zealand, the need for the children to be in a stable environment supports a finding that their best interests are served by the mother retaining their primary care.
The parties are broadly in agreement as to the appropriate exchange of information as to both health and education.
I propose to make orders in terms of the slightly longer periods as sought by the father in the school holiday periods given the importance to the children of maintaining a relationship with the father and the concession by the mother that extended time would occur from 2026.
OTHER PARTICULAR ORDERS
Whilst I did not form an adverse view of either of the parties but in particular the mother as to issues relating to a risk of non-compliance, of assistance is the existence of the Care of Children Act 2004 (NZ) (“the Care of Children Act”) which provide for the registration of parenting orders made in Australia to be registered in New Zealand.
Section 81 of the Care of Children Act provides as follows:
(1)If the following documents are transmitted to the Secretary, he or she must send them to a Registrar of the District Court:
(a)       a certified copy of an overseas parenting order; and
(b)       a certificate that –
(i)is signed by an officer of a court in the overseas country in which the order was made; and
(ii)contains a statement that the order is, at the date of the certificate, enforceable in the overseas country; and
(c)written information tending to show that any of the following persons is present in New Zealand or is proceeding to, or is about to proceed to, New Zealand:
(i)        the child who is the subject of the order; or
(ii)       a parent of that child; or
(iii)a person who, under the overseas parenting order, has the role of providing day-to-day care for, or may have contact with, that child.
(2)The Registrar of the District Court must register the order by filing a certified copy of the order in the court.
Section 82 of the Care of Children Act enables an overseas order, once registered (and not subsequently cancelled) to be enforced, varied or discharged as if it were an order made by the New Zealand court.
Given the father’s concerns, it is reasonable that the mother be required to register the parenting orders prior to the departure of the children to New Zealand. Once registered there is no longer any utility in the children being the subject of an AFP Watchlist Order and it will be discharged.
PROPERTY SETTLEMENT
The parties are also not able to agree property settlement but have reached substantial agreement as to their property interests, superannuation and financial resources.
As considered, the property of the parties is modest and when the legal fees incurred are brought to account, a significant proportion of the property will have been consumed by the costs of litigation.
The mother moved to Australia in 2010. The father purchased the property at S Street, Suburb F (“the Suburb F property”) for $295,500.
The parties met in early 2015 and commenced a relationship in late 2015. The parties commenced cohabitation in early 2016 with the father moving into the mother’s rental property.
The parties entered a tenancy in respect of the property at B Street, Suburb C (“the Suburb C property”) and in late 2019, the parties purchased the property for $435,000.
The parties separated on 3 November 2022 with proceedings being commenced for parenting and property orders on 19 December 2023. The father acknowledges that he drew down the sum of $30,000 on the Suburb F mortgage to fund legal fees and other personal expenses.
Orders were made on 6 September 2024 for the father to pay spousal maintenance in the amount of $84 per week to the mother and that the father’s modest share portfolio be sold to an amount not less than $25,000 and to be disbursed as follows:
(1)To the mother the sum of $20,000;
(2)To the father the sum of $5,000; and
(3)Any balance remaining to be divided equally between the parties.
SCHEDULE OF ASSETS AND LIABILITIES
The schedule of assets and liabilities are as set out in the balance sheet comprising exhibit “7” in the proceedings and are as follows:-

Description Ownership Value

Assets

The Suburb C property Joint $660,000

The Suburb F property Father $600,000

Money in personal bank accounts Mother $15,856

Money in personal bank accounts Father $4,181

Motor Vehicle 1 Mother $3,500

Publicly listed shares Father $687

Motor Vehicle 2 Father $2,700

Motor Vehicle 3 Father $17,845

Motor Vehicle 4 Father $1,000

TOTAL ASSETS $1,305,769

Liabilities

The Suburb C Mortgage Joint ($377,682)

The Suburb F Father ($302,401)

Monies owing to T Financial Services Father ($1,349)

Capital Gains Tax Father ($1,309)

TOTAL LIABILITIES ($682,741)

Addbacks

Money redrawn on Suburb F to pay legal fees (in dispute) Father $24,563

Superannuation

Super Fund 1 Mother $15,314

Superannuation Fund 3 Mother $70,471

Superannuation Fund 4 Mother $2,715

Super Fund 1 Father $64,732

Superannuation Fund 2 (defined benefit) Father $223,293

TOTAL SUPERANNUATION $376,525

IS IT JUST AND EQUITABLE TO PROCEED?

In Stanford & Stanford (2012) 247 CLR 108 (“Stanford”) the majority held:
35.It will be recalled that section 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
(Footnotes omitted)
In Bevan & Bevan (2013) FLC 93-545 at [73], the Full Court considered that the decision of Stanford (supra) could be reduced to “three fundamental propositions”:
1.Determination of a just and equitable outcome of an Application for property settlement begins with the identification of existing property interest (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity; and
3.A determination that a party has a right to a division of property fixed by reference only to the matter in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
The parties both consider that it is just and equitable for there to be an order of property settlement made pursuant to s 90SM of the Act and that the existing legal and equitable interests in their property will need to be adjusted.
Whilst there is not complete agreement, the balance sheet highlights the legal and equitable interests of the parties in property. As such, a consideration of the orders sought by each of the parties require orders to be made by way of property settlement.
Legal costs of the parties
Exhibit “3” annexes the legal fees incurred by the parties. As at 4 November 2024, the father paid legal fees (as of 15 October 2024) of $71,467 with an outstanding balance of $8,313.
The father acknowledges that he used funds from the interim property settlement and also obtained through the refinancing of the mortgage on the Suburb F property and of the sale of shares to pay his fees.
The mother seeks the money redrawn by the father on the Suburb F mortgage in the sum of $24,563 be included as an addback.
As at 1 November 2024, the mother had incurred costs in the sum of $199,641 of which $124,641.95 was paid with an outstanding amount of $75,000.
Whilst now a past event, the mother’s estimate of the cost of trial were in the sum of $102,000 with a further sum of $5,000 to cover the costs of attendances on the conclusion of the final hearing to the delivery of judgment.
In summary, the mother’s total estimated legal costs were in the sum of $306,641.
The source of funds used to pay the costs paid to date is partly from the mother’s savings in the sum of $6,558 and a loan from the mother’s parents in the sum of $118,197. In addition, the mother has obtained litigation funding to the sum of $50,000 to meet counsel’s disbursements.
Whilst it is appropriate to acknowledge that a significant focus of the proceedings has been in respect of parenting issues, it is a relevant observation that total fees in excess of $500,000 would have assisted the parties in pursuing a level of financial security, the parties and their children.
Addback of legal fees
Chorn & Hopkins (2004) FLC 93-204 (“Chorn & Hopkins”) considered the treatment of the legal fees of the parties where they may have been sourced from “matrimonial property” or borrowed funds.
Following a consideration of the authorities, at [50] of Chorn & Hopkins (supra), their Honours referred to the decision of the Full Court in Gartner&Gartner [2000] FamCA 793, where the following was said:-
47.Whilst the principle the (sic) emerges from Farnell (1996) FLC 92-681 is that where prepayment of legal costs has the effect of depleting the pool of assets available for division, it is usual to notionally include those prepaid costs in the pool, such a finding is normally dependant upon evidence as to the source of the prepayment. In the absence of any such evidence it would be entirely speculative of this Court to guess where the monies came from. If this was an issue that was important it should have been raised at the trial by Counsel so that the Judge could have dealt with it and made the necessary findings. It is too late to raise it on appeal. (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418).
(Emphasis in original)
In Chorn & Hopkins (supra), their Honours referred to the decision of the Full Court in Clifford & Lodge [2000] FamCA 1666, where the following was said:-
52.It will be seen from the table of the parties’ assets and liabilities contained in his Honour’s judgment…that his Honour included as assets the legal fees already paid by each party. There seems to be no argument but that it was open to him to do this.
At [54] of Chorn & Hopkins (supra), their Honours’ also referred to the decision of Finlayson v Finlayson and Gillam (2002) FLC 93-121 wherein the Full Court said:-
345.If this were a payment of his legal costs of the proceedings from the husband’s own capital resources, it would be in accord with decisions of this Court, including Farnell and Farnell (1996) FLC 92-681 and Townsend and Townsend (1995) FLC 92-569 for the trial Judge to have included this as a “notional asset” in the hands of the husband for the purposes of the s.79 proceedings. If, on the other hand, this were a payment by the husband of his costs of the proceedings from funds borrowed by him from and still owing to a third party, the appropriate course would have been to disregard both the payment and the debt to the third party in calculating the total net property of the parties for the purpose of the s.79 proceedings. Alternatively, if the payment were brought to account as a “notional asset”, then the liability of the husband to repay the debt would also have to be taken into account in arriving at the net property of the spouses.
In Vass & Vass (2015) 53 Fam LR 373, the Full Court said:-
138.There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties. We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 - or, more particularly, the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108 - is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.
(Emphasis in original)
The mother seeks to addback the amount of $24,563 that the father acknowledges he withdrew from the Suburb F mortgage in order to pay his legal fees.
Whilst I do not consider that the money withdrawn by the father should be added back simply because of the significantly greater fees incurred by the mother, the withdrawal of money from the mortgage had the effect of increasing the mortgage liability thereby reducing the property available to the parties.
It is also relevant that each of the parties continued to contribute to the mortgage and other expenses for the Suburb F property after the period of separation.
The father did not put forward any strong argument as to why the money withdrawn by him from the mortgage should be excluded from consideration.
I propose to addback the sum of $24,563 as a notional asset retained by the father.
Should the Suburb F Property be excluded from the asset pool?
The father considers that the Suburb F property should not be treated as matrimonial property. He purchased the property with a former partner in mid-2012 and following separation, he paid her $26,000 in consideration for the transfer of the entire interest in the property to him.
Whilst there was scant evidence presented as to the financial arrangements in respect of the Suburb F property, it is uncontroversial that the property was held by the father at the time of the commencement of cohabitation and that during the relationship it was rented out. The father asserts that the rental income paid all necessary expenses and in particular, that the mother made no financial or non-financial contribution to the property.
Whilst no evidence has been presented, the mother contends that there was a mortgage secured over the Suburb F property and as such the net equity was likely to be minimal.
The father argues that the Suburb F property whilst excluded from the asset pool should be considered as a financial resource.
In Holland & Holland [2017] FLC 93-798 the Full Court were required to consider an appeal from a decision by a trial judge to exclude a property owned by the husband. The parties had lived together for 17 years and separated in 2007. Following separation, the husband inherited his brother’s property and sought that it be treated as a financial resource.
The Full Court considered that whilst there may be a number of other approaches to deal with the situation such as an asset-by-asset approach or a consideration of the inclusion of the property in terms of the contributions of the parties under the Act it was property of the parties or a party and is clearly property pursuant to s 4 of the Act. As such the nett value of the Suburb F property is included in the property of the parties.
CONTRIBUTIONS
I am required to consider the direct and indirect financial contributions made by, or on behalf of the parties, to the acquisition, conservation or improvement of property (ss 90SM(4)(a)-(b) of the Act), and the contributions made by the parties to the welfare of the family in their capacity as parent or homemaker (s 90SM(4)(c) of the Act).
Mallet v Mallet [1984] HCA 21 is authority for the propositions as set out at 79,110-11:-
The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved - those things are left to the court's discretion, which must, of course, be exercised judicially.
Quality of contribution is not a starting point. I am obliged to consider the separate contributions of the parties and the value that should be afforded must be considered by reference to the evidence.
In Ferraro & Ferraro (1993) FLC 92-335, the Full Court at 79,572 considered how the separate contributions of parties, where one is the breadwinner and the other is a homemaker, should be considered and they said as follows:-
…Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets required. This leads to a tendency to undervalue the homemaker role.
In Jabour & Jabour (2019) FLC 93-898 at [64], the Full Court endorsed with approval the following remarks in Dickons & Dickons (2012) FamCA 154 as to the manner in which the different contributions of the parties should be considered:
21.Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Malley at 640-641 “...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?
The relationship of the parties spanned a period of seven years. Whilst it could be considered that the relationship falls into the category of a “short” relationship, I do not ignore that there are two children.
Whilst it is likely that the father held property of value at the time of cohabitation, no evidence was presented as to the extent of any property held by him other than his interest in the Suburb F property and his superannuation interest in Superannuation Fund 2 that accrued during his employment with the defence force.
Each of the parties adopted a co-operative approach in order to provide a financial foundation for the family.
The Suburb F property was tenanted and the father’s contention is that majority of the expenses were paid and discharged from the rental income. I do not discount the possibility that some funds of the parties were used from time to time in respect of the upkeep and maintenance of the Suburb F property but even so, Suburb F was an integral part of the financial strategy of the parties.
The parties made a joint decision to purchase the Suburb C property. I accept that the mother was able to access funds to better enable the parties to purchase Suburb C.
It is likely that during the course of the relationship the father generated a higher level of income and the mother, to some extent, compromised her advancement in her profession by the obligation to remain with the children.
Whilst the mother fulfilled the role of primary carer, I also accept the father’s evidence of his involvement with the children. I do not consider that the evidence readily supports a finding that the parenting of the children was left to the mother without assistance or input from the father.
It is apparent from the observations of Ms E that the ongoing relationship between the children and the father has resulted in a close emotional attachment being observed.
I have considered an asset-by-asset approach, acknowledging that the Suburb F property was purchased prior to the commencement of cohabitation but in the absence of detailed evidence that would enable me to understand the importance that the Suburb F property may have played in terms of the personal circumstances of the parties, I intend to adopt a single pool approach as the property of the parties.
Whilst I do not propose to exclude or quarantine the Suburb F property as requested by the father, it is a matter of relevance to contributions that recognition be given to the retention of the Suburb F property now included as property of the parties.
In Pierce v Pierce (1999) FLC 92-844, after a consideration of the decisions in Way & Way (1996) FLC 92-702, Lee Steere & Lee Steere (1985) FLC 91-626, Money & Money (1994) FLC 92-485 and White & White (1982) FLC 91-246, the Full Court summarised the treatment of an initial superior financial contribution made by one of the parties in the following statement:
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weight the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: …
(citations omitted)
In Crawford & Crawford (1979) FLC 90-647, the Full Court considered that an original contribution should not be carried forward as a mathematical proportion.
Whilst the assessment of the respective contributions of each of the parties is a difficult exercise, it must be approached holistically and informed by the nature of the relationship between the parties. Again, I bring to account a relationship of seven years but that the weight given to the period of the relationship is significantly enhanced by there being two children.
I consider that there is a basis to exercise my discretion in favour of the father to reflect the separate contributions of the parties not by an arithmetical calculation nor in terms of attempting to assess the contributions of the parties on an asset-by-asset basis.
The total adjusted net property is in the sum of $1,330,332. The liabilities are in the sum of $682,741 and accordingly the net value of property of the parties is in the sum of $647,591.
At present values, 1 per cent equates to $6,476.
Doing the best I can, I propose to assess the contributions of the parties as to 60/40 in favour of the father. Bringing to account the net pool of $647,591, a 10 per cent adjustment equates to $64,759 however, the relevant consideration is the differential which is 20 per cent or about $129,518. I consider that this is a reasonable adjustment in favour of the father to reflect the respective contributions of each of the parties.
SECTION 90SF FACTORS
The future circumstances of the parties remain uncertain. As a result of orders to be made, the mother will be able to relocate with the children back to New Zealand. It is the mother’s position that if permitted to relocate, she will be able to retain her employment with the New Zealand firm.
The extent to which the mother will increase her hours is as yet uncertain. I place weight on the mother’s assessment that there is likely to be some modest increase in her ability to work but that it will fall short of full-time employment.
In addition, the mother holds the qualification of a counsellor. She has the potential to generate significant income as a result. There may well be some tension between the mother’s current mental health and her ability to engage in counselling noting that it is an occupation that of necessity involves high stress and heightened emotions.
The father’s circumstances are equally uncertain. His current employment is limited and I accept exhibit “1” in the proceedings being a letter confirming that the father is not working more than 10 hours a week due to his medical condition as per the certificate. The internal correspondence refers to the potential for the father to receive ADF compensation.
Exhibit “5” confirms that the father has made a claim for incapacity payments but has not yet completed the required steps. It appears that the father’s incapacity arises from a diagnosis that he suffers from a back condition.
As at 17 October 2024, the claims officer for the incapacity payments/compensation processing and payments branch sought information from the father concerning his current private work place employment. Of significance is the following matters raised by the claims officer:
We also discussed:
•Incapacity payments are a wage replacement paid at 100% of normal earnings (based on rank and pay prior to discharge) for first 45 weeks. Once 45 weeks has ceased NE will reduce to 75% and this is a legislative change.
•Incapacity payments are offset by earnings from employment and Superannuation Fund 2, it is important that you notify […] of any changes as soon as possible.
•Generally, you should only claim the Tax-Free Threshold from one payee as claiming from multiple may generate a tax debt. This needs to be updated on your new TFN Declaration form.
•You have ticked yes to interim payments on your claim form. Interim payments are incapacity payments without a Superannuation Fund 2clearance. Most of the time if you enter interim payments there will be a debt and we may not be able to recover this from […] arrears. You have advised in our call today that you do not want to claim the interim payments. This has been noted on […] records.

Accordingly, it appears that if the father’s application for incapacity payments is accepted on a final basis rather than an interim arrangement, then subject to whatever he earns from his private employment, for a period of 45 weeks there will be a top up payment such that he will be restored to his defence force income. After 45 weeks, the amount will be reduced and I assume that there will be other possible avenues before the claim is resolved.
At present, the father earns $528 per week from his employment as a professional with U Company. The result of the father’s application for incapacity payments is that his income will be restored to about $100,000 a year or $2,000 a week reduced by the amount that he currently receives from his employment.
At present, the mother is in receipt of a modest spousal maintenance payment but she acknowledges that if she is able to return to New Zealand her ability to increase her employment is such that no spousal maintenance will be sought.
The father will be assessed to pay child support and given that his income at least for the medium term will be about $100,000, child support assessed and received will be a significant contribution to the children’s expenses.
In addition, there are now additional expenses that will be incurred by the father not just in terms of his share of the traveling expenses for the children but, on the occasions that he spends time with the children in New Zealand, he will have the added expense of finding accommodation, transport costs, entertainment for the children and increased day-to-day expenses that will be incurred if the father could always spend time with the children in Australia.
I consider that there should be a 7.5 per cent adjustment in favour of the mother noting that a significant portion of any settlement monies received by her will be utilised to pay outstanding legal fees.
Accordingly, the overall adjustment between the parties should be 52.5/47.5 in favour of the father.
SUPERANNUATION
The parties are agreed as to the superannuation entitlements of each of them. The total of the superannuation entitlements is $376,525 noting that the father’s Superannuation Fund 2 is a defined benefit fund and has been the subject of valuation at $223,293.
The mother seeks a superannuation splitting order in respect of the father’s Superannuation Fund 2 pursuant to s 90XT(1)(a) of the Act using a base amount of $35,000. In addition, the mother also seeks 100 per cent of the father’s interest in the Superannuation Fund 1 being $64,732.
The mother’s solicitors have provided procedural fairness to the trustees of the father’s Superannuation Fund 1 entitlement and also to the trustee of Superannuation Fund 2. Whilst it does not make a difference, I note that the proposed Minute of Order sent to Superannuation Fund 2 used a base amount of $100,000 as opposed to the base amount of $35,000 in the orders comprising exhibit “6”.
The parties agreed to jointly instruct a single expert to prepare a valuation of the father’s interest in the Superannuation Fund 2. The report, being annexed to the mother’s trial affidavit, confirms that the Superannuation Fund 2 can be split and rolled over into an account for the non-member.
The father commenced with Superannuation Fund 2 in 2006. As discussed, I accept the father’s evidence that at the time of the commencement of cohabitation, the father was no longer employed with the defence force and as such, made no further effective contribution to his Superannuation Fund 2 entitlement.
The mother seeks that the superannuation entitlements of the parties be divided equally and to achieve that outcome she seeks the entirety of the father’s Superannuation Fund 1 at $64,732 and a further superannuation split of $35,000 be made to her nominated account.
I consider that superannuation should be treated differently to the considerations given to the property of the parties.
The parties are not able to access their superannuation until each of them satisfies a condition of release. The parties are each 41 years of age and accordingly, neither of them will be able to access their superannuation entitlements for potentially 19 years save as to the ability of the father to access some of his Superannuation Fund 2 entitlement at age 55 years.
It must also be recognised that there are different contribution issues that need to be considered.
It could not be said that the mother has in any way contributed to the Superannuation Fund 2 entitlement. As considered, the father’s interest in his Superannuation Fund 2 represents the overwhelming proportion of the total superannuation entitlements of the parties which was accumulated prior to the commencement of the relationship.
I propose to adjust the superannuation entitlements of the parties as to 60/40 in favour of the father. The mother is to therefore retain the sum of $150,610 less the amount of $88,500 which she currently holds in various funds. In order to effect a 60/40 division in the father’s favour, the sum of $62,110 needs to be split to the mother.
If the father’s entitlement with Superannuation Fund 1 in the sum of $64,732 is split to a fund nominated by the mother, she will retain superannuation entitlements on an accumulation fund basis in the total sum of $152,975 which equates to a little more than 40 per cent of the total of the parties’ superannuation entitlements in the sum of $376,525.
CONCLUSION
The parties are agreed that the Suburb C property is to be placed on the market for sale. I am uncertain as to whether any arrangements have been made for the marketing of the property and whilst the Suburb C property has been brought to account at a notional value, the net proceeds are likely to be a different sum when market fluctuation, costs of sale and agents commission are brought to account.
I propose to adjust the balance of the property as between the parties and then to adjust the future net proceeds of the Suburb C property on the basis of 52.5 per cent to the father and 47.5 per cent to the mother.
Excluding the Suburb C property and associated liability, the total value of the property of the parties is $670,332 and the total liabilities is $305,059. The total net property of the parties (excluding Suburb C) is $365,273.
The mother is entitled to 47.5 per cent or $173,504. The mother retains the following property:

Bank accounts $15,856

Motor Vehicle 1 $3,500

TOTAL $19,356

Given the mother is entitled to $173,504 (less the property retained by her), she is entitled to a sum of $154,148 in addition to 47.5 per cent of the net proceeds of sale of the Suburb C property.
SPOUSAL MAINTENANCE
Given that the mother will be able to relocate with the children to New Zealand once she registers these parenting orders pursuant to the New Zealand Act, I propose to continue the spousal maintenance payments for a period of six weeks following the delivery of judgment.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 17 January 2025

File number(s):	ADC 6051 of 2023
Judgment of:	BERMAN J
Date of judgment:	17 January 2025
Catchwords:	FAMILY LAW – CHILDREN – Internation relocation – Where the mother seeks to relocate the children’s primary residence to New Zealand – Where the father seeks for the children to remain in Australia – Where the mother is the primary carer and the children spend three nights a fortnight with the father – Consideration of best interests – Where the children have a close and secure attachment with both parents – Where the evidence suggests the children would be distressed at separating from the father – Consideration of risk – Where the mother has significant mental health issues including psychosis – Consideration of the impact to the mother’s mental health and the impact on her ability to properly parent the children if relocation is not permitted – Consideration on how the children’s relationship with the father will diminish if relocation permitted – Where the single expert opined that relocation should be permitted as a matter of urgency – Where the evidence supports a finding the mother’s mental health would improve upon relocation – Where the children’s relationship with the father must be tempered by the risk posed to the mother if relocation not permitted – Where the children’s best interest will be served by relocating – orders for the children to relocate to New Zealand – Where the father should spend as much time as practicable with the children. FAMILY LAW – PROPERTY – Where the property pool is modest – Where the relationship is of “short” duration – Consideration of contributions – Where the father brought in a real property and a considerable sum of superannuation – Concession by the mother that no financial or non-financial contributions were made to various assets – Consideration of future needs – Where the mother works part time and is the children’s primary carer – Where the father is currently working on a limited basis and receiving incapacity payments – Orders.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 6B, 60CC, 61D, 69ZT, 90SF, 90SM, 90XT Care of Children Act 2004 (NZ) ss 81, 82
Cases cited:	AMS v AIF [1999] HCA 26 Bevan & Bevan (2013) FLC 93-545 Chorn & Hopkins (2004) FLC 93-204 Clifford & Lodge [2000] FamCA 1666 Crawford & Crawford (1979) FLC 90-647 Dickons & Dickons (2012) FamCAFC 154 Ferraro & Ferraro (1993) FLC 92-335 Finlayson v Finlayson and Gillam (2002) FLC 93-121 G & G [2000] FamCA 793 Holland & Holland [2017] FLC 93-798 Jabour & Jabour (2019) FLC 93-898 Lee Steere & Lee Steere (1985) FLC 91-626 Mallet v Mallet [1984] HCA 21 Money & Money (1994) FLC 92-485 Pierce v Pierce (1999) FLC 92-844 Stanford & Stanford (2012) 247 CLR 108 Starr & Duggan [2009] FamCAFC 115 Vass & Vass (2015) 53 Fam LR 373 Way & Way (1996) FLC 92-702 Wedekind & Nakano [2024] FedCFamC1F 590 White & White (1982) FLC 91-246 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	280
Date of hearing:	4-7 November 2024
Place:	Adelaide
Counsel for the Applicant:	Litigant in person
Counsel for the Respondent:	Ms Lewis SC
Solicitor for the Respondent:	Kennedy Partners Lawyers

ADC 6051 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR WEDEKIND Applicant
AND:	MS NAKANO Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	17 JANUARY 2025

Description	Ownership	Value
Assets
The Suburb C property	Joint	$660,000
The Suburb F property	Father	$600,000
Money in personal bank accounts	Mother	$15,856
Money in personal bank accounts	Father	$4,181
Motor Vehicle 1	Mother	$3,500
Publicly listed shares	Father	$687
Motor Vehicle 2	Father	$2,700
Motor Vehicle 3	Father	$17,845
Motor Vehicle 4	Father	$1,000
TOTAL ASSETS	$1,305,769
Liabilities
The Suburb C Mortgage	Joint	($377,682)
The Suburb F	Father	($302,401)
Monies owing to T Financial Services	Father	($1,349)
Capital Gains Tax	Father	($1,309)
TOTAL LIABILITIES	($682,741)
Addbacks
Money redrawn on Suburb F to pay legal fees (in dispute)	Father	$24,563
Superannuation
Super Fund 1	Mother	$15,314
Superannuation Fund 3	Mother	$70,471
Superannuation Fund 4	Mother	$2,715
Super Fund 1	Father	$64,732
Superannuation Fund 2 (defined benefit)	Father	$223,293
TOTAL SUPERANNUATION	$376,525

Bank accounts	$15,856
Motor Vehicle 1	$3,500
TOTAL	$19,356