WILSON & WILSON
[2012] FMCAfam 313
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILSON & WILSON | [2012] FMCAfam 313 |
| FAMILY LAW – Parenting – Mother’s application to relocate to Newcastle – best interests of the child. FAMILY LAW – Property – Husband with significantly greater income – adjustment under s.75(2) to wife. |
| Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4), 75(2) |
| MRR v GRR 240 CLR 461 Pierce & Pierce [1998] FamCA 74 Hickey v Hickey (2003) FLC 93-143 D & D (2006) FLC 93-256 Teal v Teal (2010) FamCAFC 120 Adams v Randall (2011) FLC 93-482 Goode v Goode (2006) FamCA 1346 Mazorski v Albright (2007) 37 Fam LR 518 McCall and Clark (2009) FamCAFC 92 |
| Applicant: | MS WILSON |
| Respondent: | MR WILSON |
| File Number: | PAC 1167 of 2011 |
| Judgment of: | Henderson FM |
| Hearing dates: | 6, 7 & 8 February 2012 |
| Date of Last Submission: | 8 February 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | ETHERINGTONS SOLICITORS |
| Counsel for the Respondent: | Mr Livingstone |
| Solicitors for the Respondent: | CLIVE MILLS & ASSOCIATES |
ORDERS
Parenting
That the child [X] born [in] 2001 live with his mother.
That the parents have equal shared parental responsibility for the child.
That the mother be permitted to remove the child’s permanent place of residence, from Sydney to Newcastle.
The mother is to notify the father 30 days prior to the move to Newcastle, of the residential address at which she and the child will be living, her telephone contact details, the school at which the child will be enrolled, the name of the Principal and the name of the child’s teacher.
Thereafter the father be permitted to attend the child’s school, contact the school and make such inquiries at the school concerning his son’s education as he deems appropriate.
The mother to forthwith inform the father of the child’s paediatrician in Newcastle and any other health professional he is to attend and the father thereafter is permitted to contact the child’s health professionals to obtain information about his son’s treatment and ongoing prognosis.
The child spend time with his father as follows:
(a)Each alternate weekend in Sydney, with the parents to meet after school at [T] on Friday and on Sunday at times as agreed and failing agreement at 6.00pm Friday and 6.00pm Sunday;
(b)On one additional weekend each calendar month in Newcastle as agreed and failing agreement the second weekend of the month. The child to spend time with the father on those weekends from after school Thursday to the commencement of school Monday morning or such other times as agreed;
(c)For one half of each school holidays as agreed between the parties; and
(d)At other times as agreed.
Upon the father determining to exercise his rights under order 7(b) herein he is to give the mother details of where he will be staying in Newcastle with the child and his telephone contact details 14 days before his time is to commence;
In the event that the father does not take exercise his rights under order 7(b) within two months of the child moving to Newcastle, order 7(b) is discharged.
The mother is permitted to remove the child from the Commonwealth of Australia for a trip to the Netherlands at the end of the 2012 school year provided she:
(a)Advises the father of the travel itinerary in writing;
(b)Provides the father with a copy of the return air tickets;
(c)Provides the father with a telephone number or other electronic means of communication with the child whilst overseas; and
(d)Ensures the child contacts his father by telephone or other electronic means no less than 3 times each week.
Property
The parties to place the former matrimonial home on the market for sale at a sale price as agreed or failing agreement at $1,150,000 with an agent as agreed by way of private treaty or as otherwise agreed.
Upon settlement of the sale the proceeds to be applied as follows:
(a)To discharge the then current mortgage;
(b)Payment of agent’s commission;
(c)Payment of all usual costs of sale including solicitors fees and sale adjustments; and
(d)The wife to receive 87% of the net proceeds of sale and the husband the remainder.
Thereafter the parties to be otherwise entitled absolutely to all assets in their name, including but not limited to superannuation, motor vehicles, bank accounts, furniture and the like.
IT IS NOTED that publication of this judgment under the pseudonym Wilson & Wilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1167 of 2011
| MS WILSON |
Applicant
And
| MR WILSON |
Respondent
REASONS FOR JUDGMENT
This is a property and parenting matter heard on 6, 7 and 8 February 2012. The parenting application of necessity took the greater time at the hearing and concerned the parents much loved son [X] born [in] 2001 and now aged 11. The mother’s application was that she and [X] be permitted to relocate to live permanently in Newcastle from [O] where they now live. The father opposed such a move.
The wife who was the applicant was represented by Mr Anderson of Counsel. The husband was represented by Mr Livingstone of Counsel.
The evidence I read for the parties was as follows.
For the wife.
Amended initiating application filed 12 January 2012.
Affidavits filed 12 January 2012 and paragraph 20 of the wife’s affidavit filed in March 2011.
Financial statement filed 12 January 2012.
The wife tendered the following exhibits.
Wife’s Exhibit 1, three bank statements for the wife, being two ANZ Bank statements and one statement from her [A] account in the Netherlands showing current balances.
Wife’s Exhibit 2, a letter dated 12 August 2011 to Clive Mills & Associates from Etheringtons Solicitors who act for the wife.
Wife’s Exhibit 3, annual statement of the wife’s ING Masterfund superannuation fund.
Wife’s Exhibit 4, e-mail correspondence between the parents regarding the wife’s concerns that the father had permitted [X] to watch a DVD, called Team America together with other matters.
Wife’s Exhibit 5, a letter from the Child Support Agency dated 31 January 2012.
Wife’s Exhibit 6, wife’s minute of orders sought at the conclusion of the hearing.
Wife’s Exhibit 7, wife’s legal costs memo.
Wife’s Exhibit 8, CCH print out of extracts of decisions relating to relocation.
The wife was cross-examined.
In addition I read the case outline prepared by her Counsel.
For the husband I read the following.
Response filed 21 April 2011.
Affidavits filed 21 April 2011 and 27 October 2011.
A financial statement filed on 27 October 2011.
The husband tendered the following exhibits.
Husband’s Exhibit 1, a National Australia Bank transaction history for the mother’s accounts dated 2 August 2011.
Husband’s Exhibit 2, a fax regarding the current value of the parties’ respective superannuation entitlements prepared by a firm entitled Super Splitting.
Husband’s Exhibit 3, document marked “Schedule B”.
Husband’s Exhibit 4, husband’s legal costs memo.
Husband’s Exhibit 5, child support letter dated 24 January 2012.
Husband’s Exhibit 6, paragraph 20 of the wife’s affidavit dated 17 March 2011.
The husband was cross-examined and I read the case outline prepared by his Counsel.
There were three Court exhibits.
Court Exhibit 1 was the superannuation valuations relevant to these proceedings.
Court Exhibit 2, the expert’s report of Ms B, Clinical Psychologist.
Court Exhibit 3, the joint balance sheet.
Ms B was cross-examined in these proceedings.
The short chronology relevant to the matter is as follows.
The husband is aged 57 years and the wife 52. The husband is approaching retirement age.
In 1988 the father and his first wife divorce.
The father has a daughter born [in] 1991, [Y], who is now aged 22. The father and [Y] have a troubled relationship. The father told Ms B that he regretted now that he did not spend more time with his daughter.
The mother came to Australia in 1990 with her first husband. They initially settled in [G] and then relocated to Sydney.
The parties commenced a relationship in October 1998 and lived in rented premises.
[X] was born [in] 2001 and the wife returned to full time work that year.
In February 2004 [X] commenced preschool three or four days a week.
[X] was diagnosed with ADHD in mid-2004.
The mother sourced a particular childcare facility for [X] to cater for his needs as his behaviour was so disruptive and concerning that he was suspended from the first preschool he attended.
[X]’s pre-school advised he attend Dr C in relation to his ADHD and the mother had been most assiduous in ensuring that [X] receives the best and most up-to-date and medical attention.
In 17 September 2004, the parties purchased their property at [M] where [X] and the mother have continued to reside since separation.
The property cost $830,000 with a mortgage of $527,782. The mortgage balance is currently in the vicinity of $483,425.
The parties contributed over $300,000 of their combined funds to this purchase.
The parties separated in August 2007. That date is disputed by the husband. He asserts that they separated in July 2007 but nothing turns on this.
In December 2007, the husband incorporated a company known as [omitted] Pty Ltd and began sole trading using that entity as a vehicle to maximise his income by way of minimising his tax.
At separation the father commenced to spend periods of time each weekend with the child. This arrangement has continued to date with [X] now spending time each weekend with his father from Friday afternoon to Sunday morning and occasionally longer.
The only reason these parents are in involved in litigation is that the wife wishes to live permanently in Newcastle with [X] and the father does not agree to this move. The husband initially sought orders that the mother be restrained from living other than in a 15 kilometre geographical restriction from her present home at [O]. That restraint was amended at the hearing to the Sydney metropolitan area.
These are the most difficult cases I am tasked to determine. They are difficult as they involve good, caring, competent parents who would never have come to a court but for a desire by one to move with a child. They are difficult as whatever decision I ultimately determine to make in [X]’s best interests one parent will be bitterly disappointed. They are difficult as they are so finely balanced.
I must assess the party’s competing proposals and any proposal put forward during the hearing.
As stated in MRR v GRR 240 CLR 461 the orders proposed must be practicable and realistic in all the circumstances.
To arrive at my decision I must consider the factors set out in section 60CC (2), (3) & (4) in so far as each is relevant and weigh up the parties competing proposals with these factors in mind to ultimately determine what proposal on balance is in [X]’s best interests.
The first task is to consider wether the presumption of equal shared responsibility should be rebutted. Both parents ask I make and order for this responsibility to be shared and there is no reason to rebut this presumption.
Having so determined to maintain the presumption I am tasked to consider whether an order for equal or significant and substantial time would be in [X]’s best interests and to do so I must have regard to the factors under section 60CC (2), (3) & (4).
Neither parent contends for equal time, it is not supported in the expert’s report and is not practicable in this matter. There is no challenge to the child remaining in his mother’s primary care and to change his primary care to his father would be “disastrous” for the child said Ms B the Court expert.
Significant and substantial time is supported by the parents and the expert.
How such an order is to operate, the regime of time to be enjoyed and where the time is to be enjoyed are the matters for my consideration as is the major issue of whether [X] is to remain living in Sydney with his Mum or live in Newcastle with his Mum.
These are in essence the major issues for my determination namely whether [X] lives in Newcastle or Sydney with his mum and the regime of time he is to have with his father in either scenario. There is no other option in reality for whatever order I make [X] will remain in his mother’s primary care whether in Sydney or in Newcastle. If [X] is not permitted to live in Newcastle his mother will remain with him in Sydney.
[X] suffers from ADHD and has experienced significant behavioural problems in the past which continue. Happily of late [X]’s behaviour has begun to improve however it is still of concern and he requires close adult supervision. He has little self control, explodes in temper and does not like change. He has few friends as he is unable to deal with conflict and responds either physically by hurting a child or angrily with words. He is a somewhat isolated child totally dependent on his parents for all his emotional and social needs at this time.
On the other hand [X] is also a rewarding child, affectionate, loving and playful. He enjoys physical activity with his dad and in time his level of maturity will match his chronological age.
At present Ms B says his emotional functioning is at about 7 to 8 years and struggles with his schooling at times. His closest emotional attachment is to his mother with whom he enjoys a stable and committed relationship. The mother is his rock in my parlance.
Not surprisingly as the evidence unfolded I found that his parents each live a somewhat socially constrained life which is far more evident with the mother than the father. I am satisfied that the mother’s social isolation as noted by Ms B is due to the extraordinary effort, time and energy she devotes to [X].
Ms B opined she had a very small number of friends and limited social contacts. When she is not with [X], she goes to the gym, catches up on work or perhaps sleeps in. The mother works from home and is a trained [occupation omitted]. The mother’s work, which is primarily working from home unlike the father’s does not expose her to many social contacts. The mother has two friends in Newcastle.
Ms B noted a degree of artificiality in [X]’s relationship with his dad as they spend only weekend and holiday time together.
[X] spends time with his dad each weekend from Friday night to Sunday morning. His father has not had, as has the mother, to clash with him to do homework, get up at a specific time and prepare him for school. The father has had the enviable luxury of spending quality weekend time with his son with the hard yards being done by the mother.
However the past 4 years have ensured [X] now has an attached, strong and beneficial relationship with his father and his father with [X].
These parents knowing their son’s special needs and difficulty in dealing with change have maintained what had been [X]’s usual care regime during the marriage for 4 years after separation. This meant [X] and his mother remained in the former matrimonial home, the father maintained the mortgage payments even though this resulted in his paying $400 to $600 a month over and above his child support obligations in addition to paying 50% of other costs for [X]. [X] stayed at the school which had supported him so well due in large part to his mother’s herculean efforts to obtain extra funding for extra resources for him. His doctors and health professionals remained the same and his environment remained the same. This is the exemplary level of parenting [X] enjoys.
I find on the evidence that during the marriage the husband was the main breadwinner, a task which he carried out to a high level and continues so to do. I find [X]’s mother was the primary parent and homemaker a task which she carried out to a high level and [X] is primarily attached to her she being his primary carer.
I find [X] did not have the same strong and attached relationship with his father as he had with his mother at separation but he now has a close and supportive relationship with his father which is credit to both parents.
During the marriage [X] did not spend the quality one on one time with his dad he now does. The father was content and still is content at one level to allow the mother to do all the running and organising for [X] which is at a minimum as follows. Finding an appropriate preschool as he was asked to leave his first preschool due to his behaviour, liaising with his paediatrician, occupational and speech therapists, locating a school for [X] and working diligently with the school to obtain extra funding for staff to assist [X], attending all the parent teacher and other events at the school, liaising on occasions twice weekly with the school when [X]’s behaviour was especially challenging and ensuring [X] spent quality time with his father.
The father took little part in these arrangements and is yet to attend any meeting at the school to obtain additional funding for [X] or a parent teacher night. I make no criticism it merely is as it is. The father would be unable to work the hours he does, earn the income he does of some $4,500 a week gross, being 4.5 times the wife’s income and put the energy and effort into his son at the same level the mother does. However he has put almost no effort into these important tasks in the past.
This effort by the mother has come at a significant cost to her income earning capacity as she works part time and around [X]’s needs. It is agreed that [X] will continue to need the level of parental support his mother has provided for some years to come.
The father used this superior income earning capacity to ensure his son had time to heal from the marriage breakdown by keeping things the same and the mother joined in this arrangement. Additionally and of equal importance the father was able to establish a strong and beneficial relationship with his son.
What this continuation of the same for [X] has achieved is a strong, attached and beneficial relationship with his father which may be stronger than it would have been had the marriage continued.
As the evidence unfolded, it became clear to me that neither of [X]’s parents have a large social network of friends, and although Ms B opined in her affidavit that the mother is somewhat isolated in Sydney, the father is to a lesser degree also isolated in Sydney as [X] has been the focus of his parent’s attention.
The parents have effectively put their lives on hold for [X]’s sake for 4 years. This has been spectacularly successful for [X]. The mother says it is time for her and her husband to get on with their lives and go their separate ways given that the home is now to be sold.
[X] will be changing schools no matter what order I make as his mother is clear she is unable to afford to purchase a suitable home near his current school and continue her primary role as [X]’s mother. I agree with the mother it is time to move on. [X]’s needs and the mother and father’s needs as social beings must be in balance. At present [X]’s needs are overwhelming each his mother and father’s needs at every level save for the father being able to maintain his high income earning capacity and pursue relationships.
The father initially wanted [X] to remain at his school and Ms B was most concerned that he not change school.
In a perfect world I agree but as [X]’s father has come to accept the reality is his son will be changing schools as a matter of practicality and reality. This change is inevitable. Nothing stays the same and children of all capacities must learn at some time to cope with change which for [X] will be harder than for most.
However what was not even contemplated in the report or asked of by either Counsel was that [X]’s parents are superior parents and if any parent can assist a child to cope with necessary change they are the parents to do it. Change is inevitable in life and [X] like all children will learn strategies to cope with change although I accept this may take longer for him and be more stressful than for a child without his particular behavioural difficulties.
[X]’s mother’s desire to move on after putting her life on hold for 4 years is reasonable. The mother clearly works her life around [X]’s needs and this has had a significant impact upon her earning capacity and her ability to have a fuller social life.
The father has had relationships since separation which although not successful was doable for him even though he has [X] in his care weekly. He is currently dating. The mother has been less able to engage in this important activity due to her commitments with and to [X].
[X] made it clear to Ms B he wants no one else to come between he and his mother and father and would find his mother having a partner unbearable.
[X] is a most fortunate child to have parents so willing to let his needs have such a deep impact on their reasonable and necessary needs as adults.
[X]’s parents have had difficulty at times controlling his behaviour. Evidence was lead that in July 2010 the father rang the mother saying he had had enough of his son and would she come and collect him. That altercation resolved itself amicably between the child and the father that very afternoon. However, it demonstrates [X]’s mother is the stalwart, he requires better than average parenting, he is testing at times, and it is most important he has the involvement of both his parents in his life and that each parent is available to assist each other in his care.
The father admitted in the witness box that the mother is an exemplary and excellent mother. I find there is little else the mother could have done other than what she has done to maximise her son’s potential, and that she is most proactive and unstinting in her endeavour to find the best solution for her son on every occasion.
It was very important, Ms B said, that [X] continue his Friday night ritual with his dad where he collects him from school, they walk to the shops, collect a video and then watch that video. Ms B did agree another ritual could be substituted for this ritual in time.
However [X] has always been returned to his mum at around 10 or 12 noon on the Sunday. Thus neither parent has had full weekends with [X] although the father always agrees for the mother to have a weekend when she requests so to do.
I said during the hearing it was now time for [X] to commence a structure where he spend quality weekend time with his mother as well as quality weekend time with his father. Pre and post separation, the mother has done the lion’s share of caring of this child. The father has not been involved in [X]’s paediatric assessments. On one occasion in the January 2010 school holidays, the child was with the father. The mother collected the child from the father, took him to the paediatric appointment and took him back to the father’s home. The father did not attend that appointment. That is disappointing and the father agreed this was so.
The father said in the witness box he regrets now not having become more involved in his son’s education. He has never attended a parent teacher night. He has recently spoken to the school and sometimes spoken to the teachers, but his involvement with [X]’s education and his involvement with [X]’s health professionals has been either non existent or at best peripheral. It has been the mother who has been the driving force for her son to obtain for him all that is available to him and her overwhelming commitment to her son will continue.
I accept that the husband has used his superior income post separation to ensure his son remained in the former matrimonial home and his school. [X]’s progress at that school is more settled and there are less arguments and volatility with other children and teachers in the playground. [X] is a difficult child to deal with, live with, control and teach.
The mother makes much that the father did not come to school events such as performances and forgot about [X]’s performance for book week in August 2009. That he attended the sports carnival, left about 12 o’clock although [X] was doing the discus at 12.30pm and that he does not attend [sport omitted] lessons with the boy.
Those criticisms are valid at one level and the father said he regretted not being more involved. However, to be fair to the father in order for him to maintain the mortgage payments on the former matrimonial home and to accommodate himself in private rental, he has worked full time and that work has ensured that [X] has been maintained at his home and continued to attend his usual school and recover from the trauma of the parent’s separation.
The father’s explanation in relation to the [sport omitted] lessons was that he believed this was an activity [X] and his mum enjoyed and he did not want to interfere. I accept that view particularly where as here there is a sense of separateness with the parents and [X]’s activities. The father has attended [sport omitted] that the mother has asked him to attend and they are the important events he should attend.
Further, children do not get everything they want on each and every occasion and the criticism in relation to the [sport omitted] lesson and school sports carnival I find was ultimately unjustified. Criticism of the father that was warranted was his lack of involvement in the school and [X]’s education and his lack of attending the paediatrician and other health professionals.
[X] does not have the robust emotional strength some children happily have and change is something that [X] finds stressful and he does not always react well to changes for which he is not prepared. Those words are important.
Since 2008 the mother has expressed her desire to move to Newcastle, and the basis for her desire is clearly set out in her affidavit and it is sound.
The first is she has two friends in Newcastle. It was noted by Ms B in her report that the mother appears socially isolated. Thus, it would be of an advantage to the mother to be living in the [R] area where her two friends also live.
Secondly, the mother is most concerned she is unable to afford an appropriate home for [X] in the Sydney metropolitan area without taking on a mortgage. An appropriate home is one with at least a backyard. The mother sets out clearly in her affidavit the costs of homes available to her at around $550,000 in the Sydney metropolitan area, [B] and Newcastle which would result in the home being either mortgage free or having a small mortgage.
The mother is most desirous of obtaining a home with no or a minimum mortgage to be able to reduce her work hours and spend more time with and attending to [X]’s needs. Having a small or no mortgage will reduce financial pressure on the mother enabling her to be more relaxed with more time for a child with significant needs.
This is a most important issue for me to address for as the evidence unfolded it became apparent that the father was not prepared at all nor had contemplated reducing his work hours after the home is sold to spend time with [X] and take some of the parenting burden from the mother.
The mother’s affidavit sets out the cost of accommodation in [O] where she presently lives, other areas of Sydney, such [omitted] in the South and Newcastle. I accept her evidence that the cost of rehousing herself and her son [X] in Newcastle would be significantly less than in [O] or within 15 kilometres of [O] for a home of the same quality with a backyard and sufficient room.
This evidence is set out in paragraph 67 of her affidavit. The mother has annexed documents showing properties for sale in [R] of a quality she desires which is reasonable for [X]’s needs and commensurate with his current home are some $500,000. For example a property at [address omitted], [R] is for sale at $459,500. The mother says the homes she believes are appropriate for she and [X] in [R] are between $500,000 and $530,000. Properties at [C] at [B] of a commensurate quality are some $493,000.
[C] is a considerable distance from where the father will be living which is the [L] or at worst [Z]. The father said in evidence he will not contemplate living further North than [Z] or anywhere over the bridge. Thus [C] would be a significant trip of several hours for the father and [X] if this is where the mother chose to live.
Suitable homes in [E] are some $450,000. A trip to and from [E] and the Northern suburbs is also some hours for the father and [X]. These suburbs are in the Sydney metropolitan area and the mother may chose to live wherever she wishes within the Sydney metropolitan area on the father’s application.
There is force in the mother case that if she chose to live in [E] the father would have significant travelling to spend time with his son, attend his school, his extracurricular actives and that there is minimal difference in a cross-city trip from [E] to [W] and a trip from [W] to [R]. A cross-Sydney trip is difficult particularly in peak hour.
It would be almost impossible for the father to spend time with [X] as set out in his response from Thursday to Sunday in one week and Friday to Monday in the other week or even Thursday to Monday each alternate week as was ultimately put at the hearing if the mother and [X] lived in these suburbs and the father in [L], due to the travel time to school for [X].
The mother admitted she has suffered from mental health issues in the past and is on medication. She sought assistance when [X] said to her one day that she never smiled. Undoubtedly she feels the pressure of caring for [X] on a full-time basis as well dealing with the necessity of earning an income. The mother was contributing some $500 a month towards a mortgage being her commitments to enable [X] to have his life remain the same after separation.
As I stated earlier when these proceedings commenced and at the time the parties spoke to Ms B, it was the father’s case that he wanted his son to remain at [O] School and still wanted every weekend with his child.
There is good reason for that position as the school has been good for [X]. However, at the commencement of the hearing, I asked each Counsel whether their clients agreed that with the home being sold this would result in [X] changing schools and they agreed it would.
Thus one of the certainties or givens Ms B relied upon in her report to which I will refer later, namely, the necessity for [X] not to change schools is no longer a factor. [X] will be changing schools no matter whether he lives in Newcastle, [E], [C], [H] or any other suburb that the mother chooses in Sydney.
The mother is most desirous of ensuring that a property she purchases for her son has a backyard. He has a backyard presently and has always had a backyard. He has a trampoline and he enjoys his activities on the trampoline. He is an active child, and outside activities are important to him. The father says the mother could buy a two bedroom unit or rent a home with a yard if she cannot afford to buy and her desire to buy a home unencumbered is not a factor the Court would take into account in her relocation application. He says through his Counsel, Mr Livingstone that the mother will have sufficient capital from the property settlement, some $200,000 or so if I make orders in accordance with his application to enable her to rent.
The difficulty with this submission is that it does not take account of the needs of the child, the length of the marriage and the standard of living the parties enjoyed during the marriage. [X] has never lived primarily in an apartment at best he spends 2 nights a week with his dad in a rented one bedroom apartment. The bulk of his time is spent in a home with a yard.
I find the father’s position that it is now appropriate for [X] to live primarily in a 2 bedroom apartment curious when it was crucially important to the father that [X] remain in the former matrimonial home, a comfortable home with a backyard and in what the father regards as an appropriate area the [omitted] of Sydney.
If it was important for [X] to live in a home with a yard at separation then it must still be important. I accept there were other reasons for this choice by the parents but the nature of the accommodation namely a home with a yard is clearly what [X] has always enjoyed and to suggest he and his mother could now live in a 2 bedroom apartment can not be in his best interest. It would suit the father as it may result in the mother remaining in [L]. That however is not a relevant factor under the Act.
As to renting that too is a curious position for the father to take when that has not been how the parties chose to accommodate their son during the marriage. Stability is one of the key and important issues for [X] and rightly his father is concerned to minimise any change that will occur due to the sale of the home. Renting a home is not certain and it is particularly uncertain as a home owner can sell a property at any time.
The most certain and stable outcome for [X] so far as housing is concerned is that his mother buys a home outright or with a small mortgage that she can maintain. It can not be a position that is now in [X]’s best interests for the mother to either buy a two bedroom unit for his son to live in when [X] has never on a full-time basis lived in a unit or that the mother and [X] rent.
Renting would not provide the security and certainty for [X] that the father and mother wanted to achieve and did achieve at considerable economic and personal cost to each of them. Renting is not the same as owning a home. The tenant is at the mercy of the landlord and private long-term accommodation is difficult to achieve.
There was criticism of the father by the mother that he has only rented a one bedroom apartment since separation, that [X] didn’t have his own bed until July of 2011 and that this one bedroom apartment is not appropriate for a boy of his age. The father concedes that when these proceedings are over, he will rent at minimum a two bedroom apartment.
Looking at the father’s application if I made the orders he seeks to spend time with [X] alternate Thursday to Monday and each Thursday night, at best [X] would be spending some 10 nights a month in his home and some 20 nights a month in his mother’s home. Thus even on the father’s best application [X]’s primary place of residence will be in his mother’s home.
It is then proper and appropriate that he live in a home with a yard, owned or being purchased by his mother. This is what he has always enjoyed. The mother’s desire for a small or no mortgage is also in [X]’s best interest as it will free up her time, decrease her stress and anxiety and allow her to be more available to cater for her sons needs.
The time issue is not merely to spend more time with the child. The additional time for the mother is to enable her to carry out tasks to cater to [X]’s special needs such as attending on therapists, paediatricians, extra curricular activities, coaching etc.
Ms B was keen to emphasise that [X] needs his father to be more available to him and that a move to Newcastle would minimise his availability. Despite the father’s statements that he now wishes to be more involved in [X]’s life and take on some parenting responsibilities I do not see this will occur in the future for the following. He has not done so to date despite having the opportunity to do so and to do so would interfere with his capacity to earn his income. The father has never asked for a longer time with [X] during the school week and only did so after the mother sought to relocate to Newcastle.
Mr Livingstone was mortified on his client’s behalf when I suggested the father have the whole of the school holidays if [X] lived in Newcastle. He was indignant on his client’s behalf that I could suggest the father take one Friday and part of a Monday off work once a month to enjoy a long weekend with his son in Newcastle. He said he can not do this as he works full time and it is not possible.
Yet it has always been possible for the mother as she ensures her work fits around [X]’s needs. In the light of that submission I find it extraordinary that the father tells me the mother is not able to move to a location which will enable her to be more available for her son when the reality is he will not make himself more available. Further, that the mother must remain where the father wishes to live to enable him to maximise his time with his son, maintain his working week and his income earning capacity.
The mother’s decision to move is soundly based.
Secondly, there is [X] himself. He is concerned that he has a history of poor behaviour at [O] School and all the kids know it. He calls it his 20 yellow cards and that a fresh start in a new school would be good.
It is true as Ms B opined that this is likely to be unrealistic due to [X]’s explosive behaviour, inability to control himself and he may find he will get 20 yellow cards at his new school. Thus, [X]’s opinion that a fresh start will be good may not eventuate and I can place no weight on his wish. I find to the contrary. It is important in these cases that I listen to what a child says and whether or not I give those wishes weight is a matter for me.
[X]’s wish to live in Newcastle as opposed to Sydney is not something I will give weight to. I accept [X] does not completely understand what a two-and-a-half-hour trip necessarily means to enable him to see his Dad, or what it means necessarily to move away from his home and his school and what he knows. But I do accept for [X] that a fresh start at a new school is something he sees as important and I will attach weight to that wish, expressed not only to Ms B but to his mother and to his father.
There are positives and negatives for [X] in the mother’s desire to move to Newcastle. The father’s heartfelt plea was his concern that if his son was relocated to Newcastle that:
a)He and [X] would spend less physical time together;
b)The result of merely spending less physical time together would result in a diminution of their hitherto good relation;
c)That as time progressed, [X] would become sick of the long trip to and from Sydney to Newcastle and would be less inclined and reluctant to visit his father; and
d)That the father would be unable to be as involved in his son’s life as he is now, for example, each Friday afternoon, they have their video ritual and he can drop in on the child’s school and attend school functions now.
I will address these matters.
Ms B made a finding in her report which I struggle to see was available to her. She said, at paragraphs 90 and 91, under the heading, “The impact upon the child and his relationship with the parents if he lived in Newcastle”:
The impact to [X] of a move to Newcastle is untested and the risks and benefits are outlined above. If, however, the father were to travel to Newcastle to see [X], one of the risks to [X], that is, the long trip would be removed. It would also allow the father to be involved in some of his potential extracurricular and schooling activities.
The risks are: the father does not have permanent accommodation in Newcastle and would need to rent weekend or visits would need to be limited to one day of the weekend. In either case, the opportunity for [X] and his father to spend relaxed time at home would not be available. This is likely to be a further distancing between [X] and his father with the potential risk that [X] relegates his father to a distant figure who has very limited involvement in his life and this may have a deleterious impact on his relationship with both his parents.
In her oral evidence she said this move would be of positive harm to the child and that his relationship with his father would diminish by that mere fact. I fail to see where the evidence is in this case to support a finding that the mere move by [X] to Newcastle would be of positive harm to his relationship with his father, or that the move to Newcastle will result in [X] and his father spending less time together, or that as his father does not have secure accommodation in Newcastle he and [X] could not have a relaxed time together.
The father earns a high income and it is clear he will not contemplate moving to Newcastle and he said so in cross-examination. Thus any concerns expressed to Ms B in paragraph 88 of her report that the father could move to Newcastle but that this would entail a significant occupational and financial impact upon him is no longer a relevant consideration for me.
Newcastle has, as do other large regional cities, a significant tourism industry which is obvious with its beautiful beaches and the proximity to the Hunter Valley wine growing area. Newcastle has accommodation of all types for visitors to the area including motels, hotels of various levels of cost, bed and breakfasts accommodation, serviced apartments, restaurants, attractions such as parks, beaches and playgrounds, cycle ways, foreshore developments etc.
The father has a significant earning income capacity and there is no economic impediment to him being able to rent not just a hotel room, but suitable home-like accommodation such as a serviced apartment on a regular and ongoing basis to accommodate he and [X] for extended weekends such as Thursday to Monday or Friday to Monday and for holidays in Newcastle.
This option was not contemplated by Ms B or the father. Thus I do not accept that the father and [X] could not have a home-like relaxed weekend in Newcastle or that they would be spending less time with each other than they currently do if [X] moved to Newcastle. The arrangement may be different but the time is likely to be very similar if it is 3 weekends a month. The father has the means and ability to provide such accommodation.
I put such an arrangement to the parties during the hearing namely [X] spending time with his father 3 weekends a month being 2 in Sydney and one in Newcastle. If such an arrangement were put in place on a permanent basis not only would [X] know his father was in Newcastle to spend time with him, take him to school, engage in his school and other extra curricular activities, it would be of a positive benefit for the father to see [X] in his environment and save [X] the 2.5 hours car trip one way that weekend.
Ms B did not explore any enquires the father made about accommodation in Newcastle and there were none in his affidavit. When such matters were explored with the father by Mr Anderson, it was clear he had not even contemplated the possibility of he, the father travelling to Newcastle at least one weekend a month to see his son. That prospect was foreign to him.
This proposal was met with a negative response by the father’s Counsel. To summarise his objections were:
a)This had not been put to the father during his cross-examination. I canvassed an application for leave to re-open which I would have granted. The leave was not sought and I take therefore that the objection was not soundly based; and
b)It was a very hard to ask the father to give up his work time given the work he does, it would mean he would be spending half the school holidays plus these extra two days a month and that was very difficult for people working full time.
Yet this is exactly what the mother has done since [X]’s birth putting [X]’s needs before her income earning capacity. Neither in the father’s oral evidence or in Ms B’s report was any concession or acknowledgement made by the father or Ms B that the mother had sacrificed her income earning capacity to cater for her son’s special needs, was still doing so and would continue to do so. Nor was there an understanding of the consequences for [X]’s mother from those choices.
The focus in the report was very much on what the father was going to miss, the impact upon his income earning capacity if he was required to travel to Newcastle, the disruption to his working week of [X] moving to Newcastle and his being able to maintain his relationship with this son in those circumstances. Ultimately the father’s submission was that he must continue to work full time as he does and maximise his income earning capacity.
There was almost an unspoken acceptance that the mother would continue to make economic sacrifices in [X]’s best interests but that the father need not do so. There was further an acceptance that the mother should continue to make all the sacrifice to ensure [X]’s father was not disrupted in his work or income earning capacity in order for [X] to maintain his most important relationship with his dad.
I could discern no sacrifice the father was prepared to make or conceded should be made in relation to his work or income earning capacity to maintain his vital relationship with his son no matter where [X] lived. That this is the father’s position was clear when
Mr Livingstone commenced with a comment that although he accepted the mother did not need to give compelling reasons or any reasons for her move there really was no reason.
If one only looks at the matter only from the father’s position that is no doubt true however it is not a permissible approach and nor is such a comment a correct summation of the evidence.
Once the home is sold and the father no longer has the obligation to maintain the mortgage his life is capable of change as well. There is change in the air. [X] will be changing schools, homes and his usual environment. The mother has seized upon this and recognises this is the time to make changes in [X]’s life for the long term. The father wishes matters to stay as they are making the minimum of changes.
The mother has put forward options, talked about the positives and negatives, accepted the proposal I put forward of a long weekend for [X] and his dad once a month in Newcastle although this would again impinge upon her weekend time. The father has failed to pick this up and he was somewhat supported in his “keep it the same” approach by Ms B.
Going to Ms B’s report. Mr Livingstone submitted this was a bespoke report very much about the needs of this boy. The reality is all family reports are inevitably bespoke. I accept the report is of a high calibre and standard and that Ms B is an impressive witness. Ms B points out in her report that [X] had been diagnosed with ADHD and behavioural and learning difficulties and that each of the parents communicated very well and were polite and courteous with each other throughout the day.
The parents had to dig deep to find any real criticism of each other. The criticisms that were made were of a small compass and [X] is a fortunate child who has significant difficulties yet has two competent, caring, capable parents who wish to be involved in his life.
Both parents spoke of their son as loving and engaging but that he was difficult to deal with at times and had many special needs. [X]’s major problems now are with self-regulation and behaviour in interaction with his peers. Keeping [X] calm was most important.
When pressed about her move to Newcastle, the mother said that she wished to go to Newcastle for lifestyle reasons. She will be able to afford a home with a garden near to the beach. I accept she will be able to afford an unencumbered home in the Newcastle region and she will not have to work the hours she does now to afford a mortgage. She has no relatives in Newcastle but has her two friends in the [R] area.
One of the father’s deep regrets is that he has a very poor relationship with his daughter, [Y], and he spoke with considerable regret about his lack of a relationship with her to Ms B. He said he had not made a consistent effort to be involved in her life and he did not have a good close relationship with his daughter, feels guilty about this and that this has influenced his attitude and commitment to [X].
This is also reflected, as I see it, in [X]’s comments to Ms B when she asked him what the worst things that could happen to him he said, “For dad to be no longer in my life”. That view may have come about by something that the father has inadvertently said to [X] or exposed [X] to. It is clear the mother wishes, and is very desirous, of the father being in [X]’s life and being more closely involved in his life than he is at present.
That this thought came from [X]’s father became apparent when the father admitted discussing with [X] the consequences of the move to Newcastle, had told [X] there would be more travel, he would not be able to see him as much and he might see less of him.
[X] took that onboard and translated it to his father not being in his life. Upon the evidence I have heard, nothing could be further from the truth. The father will always be in [X]’s life, no matter where [X] ultimately resides.
The father believes the only reason the mother wishes to move to Newcastle is for financial motivations.
That comment is unfair to the mother. One reason the father will not move to Newcastle is that there will be adverse financial consequences for him, that is, financial reasons. The reason he will not spend a long weekend with [X] in Newcastle and more than half the holidays is for financial reasons. Why his position is justified and the mother’s is not escapes me.
I do not criticise the mother for having a financial motivation in her move to Newcastle to afford appropriate accommodation of a reasonable standard to which she and the child have been accustomed during the marriage, being an unencumbered home. Financial reasons are real and practical.
The father has a proper financial focus. He is approaching retirement and wishes to provide for himself. These were some of the reasons he gave why he would not move to Newcastle. He could not get a job that pays him the same salary he earns in Sydney. He said he was not able to take advantage of a long weekend in Newcastle at least once a month as it would be far too much time off work to maintain his job.
So why is the mother’s proper financial focus a source of criticism? Why is she unable to bring her financial plans into fruition as can the father?
Due to her care of [X] she is unable to provide for herself financially at the level the father can. For the father to criticise the mother, through his Counsel, for having the same financial focus as the father does is unfair and bespeaks of an uneven-handed approach.
The father had been concerned about [X]’s medication and has discussed same with him but that is as far as he has gone in relation to informing himself directly from his son’s health professionals. He has left the organisation and liaison as to [X]’s care to his mother. This has worked well for [X] yet now he criticises the mother for dealing with the consequences of her having put [X]’s needs before her own at every turn. The financial reasons for moving to Newcastle being a prime example of a consequence of her putting that extra effort into the child.
Ms B said [X] was a very open, honest, amiable child. He spoke about his difficulties at school. That he finds it hard to keep friends but he believes his behaviour has improved. He talked frankly about temper tantrums with his mother and that he feels sorry for his behaviour. He does not get into trouble with his dad because his dad has an angry voice. He has found his parents’ divorce hard and he wants them to reunite. [X] said his mother needs to move because she needs more money and she has been working too hard. If they move to Newcastle, [X] believes his mum will be able to spend more time with him and he will get a cat, but other than that he is not really sure. He was fairly clear that his father will not see him as often as he currently does and he said he would “need to spend a lot of time in the car and two or three hours in a car is too long for me now, when I think of it”.
He said it will be hard to leave his school because he would miss his friends but he saw an advantage in making a fresh start at a new school. He said “I would like to meet new kids because they would not know the mean things I have done in the past”. I accept this may be a vain hope. [X] also said, “The worst thing that could happen would be if dad said, ‘I do not want to see [X] again’ or if dad said, ‘I will not be the father anymore’”. And also if his mum got married, he would not like it at all. He said “I wish dad could be around all the time”.
Ms B opined that [X] enjoyed a close and secure relationship with his mother. The mother expressed an extremely good understanding of his needs and that she has modified her social and occupational roles in order to best accommodate [X]’s needs. His mother has provided him with structure, repetition and predictability, but that [X] may feel responsible for her at times. This is not surprising given that the mother has sacrificed her life for this child. Ms B concluded [X] appears to benefit from a loving and warm relationship with his father, and he sought attention and approval from him.
However, Ms B commented on the artificial nature of [X]’s relationship with his father as he spends weekend and holidays times only with him. With [X]’s learning and behavioural issues the father has not had to make sure [X] does things on time, that is, homework, eat his breakfast, get out of the house, brush his teeth and wear his uniform. Thus it is not surprising that the father has not experienced the challenging behaviours that the mother has experienced as he has not had to fit [X] into any outside timetable, unlike the mother.
Ms B opined there was a number of potential risks and benefits of the move for [X]. If [X]’s mother was under less financial pressure and more available, he would benefit from that. If his mother was happier her mental health would improve and he would benefit from that as she would become more psychologically available to him.
From the mother’s position she says the school she has looked at has much smaller class sizes than [X]’s present school which she believed would assist [X]. However, as Ms B says, there are many factors in [X]’s learning and behavioural issues. These are his teacher experience, peer relationship, overall school support and ancillary support and student welfare.
The capacity for a new school to provide the supports to [X] he currently enjoys is untested, however, [X] is currently at a public school, he will be changing to a public school and his current public school has catered well for his needs. I find there is no reason to suggest a different public school could not do the same. His mother is most proactive, with a demonstrated capacity to ensure her son’s needs are met, and the Court finds there is no reason why this would not occur at a new school.
Ms B says the relationship with [X] and his father will suffer. As [X]’s current experience of weekly contact with his father will cease and he will only see his father every fortnight and this visit will necessitate a lengthy car trip. These are not the facts or the proposals before the Court. I take issue with a conclusion that the father son relationship would suffer due to a move to Newcastle.
There is some practical difficulty and expense in the father having a long weekend in Newcastle once a month and travelling to meet half way at [T] on the alternate weekends however he has the income to deal with this and the flexibility of working for himself.
The alternate weekend trip may require the father to leave work earlier than 5pm on a Friday and a long weekend will cut short his working week and involve a 5 hour trip over a weekend for him. However to assert that it is not practicable or possible for the father to spend one weekend a month in Newcastle is not accepted by me on the facts.
One of the major companies the husband does work for in Sydney is [S]. He works out of their offices in [omitted]. This company has an office in Newcastle. The father said it was not possible for him to work out of the office if he moved to Newcastle. Nor could he do so for even 2 days or so once a month.
I accept the father’s work is [omitted]. I accept that the Newcastle operation of the Company which is his primary source of income is primarily focused on [omitted]. Thus he may not be able to easily translate the job he does in Sydney to Newcastle. I accept this is the case at that level.
Given the father’s work is computer-based I struggle to accept he cannot use the offices of this company one day or two days a month, in order to maintain his work and spend time with his son in his son’s own environment if he relocates to Newcastle.
Ms B said that as [X] ages he will no longer be enthusiastic about such a long trip and may become distant from his father and lose the opportunity for a continuing and close relationship. I do not accept that opinion for the following.
Ms B’s evidence was that [X]’s level of maturity was well below his chronological age, some 3 to 4 years, as was much of his emotional functioning. I accept that opinion. If this continues to be the case when he is 15 years old he will be emotionally functioning at around 11 or 12 and when he is 18, perhaps functioning at an emotional level or a maturity level of some 15 or 16 years.
On Ms B’s assessment of [X]’s level of maturity, which I accept, he will not reach a level of maturity or an emotional functioning where the long trip will outweigh the joy in spending time with his father until he is chronologically 16 to 17 years. Thus the ageing issue which may have held some real weight in another child whose level of maturity was commensurate with his chronological age does not hold significant weight in this matter.
Secondly, [X] himself said that the worst thing that could happen is for his father not to be in his life. I accept this is true for [X] and his mother and thus I am unable to accept that [X] will, in the foreseeable future wish to spend less time with his father due to a lengthy car trip.
In light of these facts I do not accept the opinion that as [X] ages he will be less inclined to see his father due to a long car trip. Any child, as they age may become less inclined to visit a parent or even spend time with a resident parent. The length of the car trip is not the overwhelming issue here. It is [X]’s desire to have his dad in his life.
[X] wants this, his mother wants this and his father wants this and it will continue. A car trip on the highway will not stop [X]’s ongoing and strong relationship with his dad.
Thirdly, there was no exploration by the father or concessions made regarding his capacity to spend time with his son in Newcastle such as a long weekend once a month in addition to the alternate weekends in Sydney, or in substitute for one alternate weekend or any other combination or arrangement. I accept the father does not want to live and work in Newcastle as is his right to decide however travelling to Newcastle to spend time with his son in his son’s environment is a far different matter.
The father has an extremely negative view of Newcastle and is most critical of Newcastle as a town and of its inhabitants. He produced figures of the higher crime rate in Newcastle than in [L], and in his affidavit of 21 April 2011 tells me he has carried out extensive reading and research in relation to comparative levels of crime. “The statistics of crime in Newcastle are four times greater at every level than they are in the [L] area” he stated.
Reading from his affidavit the father cites the following statistics. That crimes of malicious damage in property are 3.7 times higher in Newcastle; crimes of theft are 1.6 times greater; burglary 3.1 times higher; motor vehicle thefts 4.8 times higher; assault and domestic violence 5.5 times higher; non‑domestic assault 4 times higher; and sexual assault 3.6 times higher than [L].
He is concerned, given [X]’s behavioural problems, aggression or violence that it is not in [X]’s interests to place him in an environment that has significantly higher levels of crime than in the area he now resides. He believes his son’s ADHD and behavioural problems would be worsened if he was exposed to the Newcastle environment. He says his wife told him that it was a huge mistake when she and her first husband came to Australia and settled in [G] and she said to him: “The people are fat and wear nothing but shorts and thongs; I was much happier when I moved to [L]”. He then opines “I am doubtful [Ms Wilson] would be comfortable living in the Newcastle area, which is predominantly a heavy industrial working‑class cultural region”. And that “[Ms Wilson] has been happy living in the [L] area of Sydney”. He believes that “[Ms Wilson] is capable of earning in excess of $60,000 per annum in either Sydney or Newcastle”.
Ms Wilson may well be able to earn what he estimates her capacity to be if she did not have [X] to care for. Even I accept the father’s assertion his income is well in excess of $200,000 per annum or some 4 times his best estimate of her capacity.
The father is entitled to his opinion however I do not accept this is a proper or accurate reflection of Newcastle and I will not make a value judgement of the relative merits of Newcastle and the [L] and place no weight on this evidence.
When the father was pressed on why he was so insistent that he live in [L] he said he liked to cycle to his work at [L]. 10 Kilometres was about the distance he needed to be from his place of work. The father has not contemplated living anywhere other than [L] in his affidavit. He had not considered for example driving his car to a spot 10km from his work and then cycling. The father’s most proper attitude to his physical fitness is not a relevant consideration for me under the Act when considering [X]’s best interests.
By the hearing he said [Z] was about as far north as he would consider living.
Mr Anderson asked “Well, what if [S], your main source of income moved to Parramatta?” The father said, “I would change my job”. Thus the father can contemplate changing his job if the company that provides his main source of income moved within Sydney to an area he was not happy with but could not contemplate the same to maximise his time with his son if his son moved. There were no options he could see to accommodate his wife’s desire to live with [X] where she felt most comfortable and happy and maximise his time with his son.
The father’s desire to live in [L] has little to do with [X]’s needs and indicates the father is seeing this matter and [X]’s needs from his perspective. The same may be said for the mother’s desire to move namely that this is something that is best for her. However she is [X]’s primary carer and her happiness and his best care are interlinked and enmeshed.
The reality is the mother either moves to Newcastle or she will move wherever she wishes in Sydney, which could be as far apart as [E] or [C] to obtain appropriate housing for herself and her son.
It is inevitable that the arrangements the parents have put in place for [X] and which have worked so well for him will now be changed. If the parents lived in nearby suburbs the father could perhaps spend each alternate weekend from Thursday to Monday or Tuesday, with his son as [X]’s school would be close to each parent’s home.
However, it is not likely that this would occur even if I restrained the mother from living other than in Sydney. Where the mother can afford to live and where the father wishes to live for his work and exercise regime are not close suburbs but are likely to involve significant travel across the city.
The father’s time with [X] was always going to change at some point and with the sale of the home will now change. It is impractical for the mother to remain living in the [O] area. The father’s evidence is that he may continue to rent for some time and it is more practical for him to move close to where his son will be living than it is for the mother and [X] to live close to where the father wishes to live.
Another concern Ms B put forward was that the mother’s proposal meant [X]’s school would change and it was important he remain at that school. The parents agree [X] will be changing schools. Ms B was concerned his supports and paediatrician remain the same as he is a child unable to easily adapt to a new environment. However, his current paediatrician, Dr C, has given the mother a referral to a paediatrician in Newcastle. There are perfectly adequate and appropriate supports for [X] in Newcastle and Newcastle is home to many happy, well adjusted, socially acceptable citizens and children in our society.
Of course [X] can cope with change more easily if he is prepared for the change as referred to in paragraph 101 of this judgment. His mother has ample time and ample capacity to prepare him for the changes that will inevitably come about.
Ms B said that the impact upon the mother if she was to remain in Sydney was her asserted financial pressure will continue and that this burden could negatively impact upon her parenting capacity in both the time she has to be available to [X] and her general stress.
The mother said to Ms B, if she were able to be given a different financial settlement, say a million dollars to spend, she would be happy to remain in Sydney, but that is not her situation. Ms B agreed that even if the Court restrained the mother from leaving Sydney she would not:
a)Take this out on [X];
b)Her relationship with the father would not be bitter; and
c)She would, as she has always done, put her son’s interests at the forefront.
I find the mother has been able to cope with a very difficult situation in the past and is likely to continue to cope. However the law is not that because we have mother who can cope she ought to then be restrained from living where she chooses to live with the child. What [X] needs is the best possible mother available to him as she is his unchallenged primary parent.
Ms B was clear and this was accepted by the father that [X] could not live with his father and spend time with his mother. He must remain living with his primary carer, his mother and to whom he has his closest emotional attachment. He would feel sad and responsible for his mother and this would be a significant negative for him.
Quite properly, [X] was loath to make a decision or share his views. Given his emotional age of about seven or eight, as opposed to his chronological age of 11, I would place little weight on his wishes or views. Ms B said his cognitive capacity is limited for his age and his decision making is vulnerable as children with ADHD are less well able to analyse potential future consequences and outcomes.
The mother was very critical about the father’s new relationship and believed this would diminish [X] in the father’s eyes as her view is her relationship with him diminished his relationship with [Y]. The mother said she became the focus of the father’s attention and he let [Y] fall into the wayside. I will not make any finding on that issue and this criticism of the father was unfair. [X] is very important to the father.
One matter that was ignored was that the mother has been desirous of moving to Newcastle since 2008, yet has not yet taken any action until now. I credit her for holding back as during this time she and the father have ensured [X]’s relationship, connection to, understanding of his dad and his time with his dad has been maximised, and that has been to [X]’s good.
It is now time for his mother and his father to live their separate lives and accommodate [X]’s needs rather than [X]’s needs overtaking their lives, as I see they have done in the past.
Ms B, in her oral evidence, confirmed that due to the father’s deep regret at having no relationship with his daughter, he was never going to let this happen with his son, and I accept that he will not. What is important for a parent-child relationship is that a parent maintains a consistent interest in their child by attending at parent teacher nights, involvement in schooling, extra curricular activities, health issues etc. At [X]’s age and with his father’s capacity all these matters can be maintained for [X] even if he and his dad live many hundreds of kilometres apart from Sydney to Newcastle.
Ms B said [X] could easily maintain a positive relationship with his father over a period of a fortnight but the preference is regular week contact. Maintaining his time with his father is very important to his self-esteem and will provide a break to the mother and to [X], and two weeks without his father is a long time for him. Things that happen to [X] on Wednesday one week might be forgotten the following week.
However, [X] is capable of ringing his dad and telling him something important. [X]’s parents can avail themselves of Skype to enable [X] to speak and see his dad daily if he wishes and talk about the things he has done. I do not need to make any order for this type of communication daily as his parents will ensure it occurs.
Ms B said [X] would be a challenge to each parent, he has tussles with his mother and teachers as they are the adults ensuring he does what he has to do. The father has not been involved in this aspect of [X]’s life.
Just changing [X]’s school will be a risk factor, Ms B said, let alone the untested move to Newcastle, and if the parents can minimise the breadth of the change, that is important. However, [X] is changing schools and will be changing his home no matter what order I make. I am satisfied his parents will manage that change for him as they have time to prepare him for these changes.
Ms B referred to research and a study by W. G. Austin in her report which reported a blanket poor outcome for children who relocated. I dismiss that report and its findings for the following. The report was not in evidence, is dated from the year 2000, is an American study and does not necessarily study parents of the capacity of [X]’s.
The father’s behaviour in 2011 requiring an itinerary from the mother for her annual holiday to [omitted] was not necessary. Threats of legal action and calling the police in a letter to the mother were inappropriate and not necessary. Neither parent would ever do anything to harm their son.
The mother made no complaint of the father taking [X] to [OMITTED] at Christmas without her knowledge. Each parent is able to rely upon the other to always act in their son’s best interests whenever he is in their care.
The father says he wishes to be more involved with [X] and his care yet I have seen no actions which match the wish. The father has the luxury of devoting the majority of his time to maximising his income as he can rely 100% on the mother to do all that is required for [X].
He was asked squarely, “What if the mother and [X] went to Newcastle, would you move?” “I don’t think I can. I can’t work out of [S] office in Newcastle”. “Could you have a long weekend with [X], camping, staying over?” “Yes, I could do that. I could afford to do that. The problem with me going to Newcastle is that [X] would not see my home”. “But he will see you in Sydney twice a month when he comes down to your home, and of course on school holidays.” The father agreed with that proposition.
The father’s preference was if the mother is to move that she do all the travelling, but he would also meet halfway if I so ordered which is the mother’s preference.
The father said he wanted things to stay the same and [X] wanted this as well. However they can not stay the same.
He was asked how he saw the move impacting upon his relationship with [X] and replied “It would cut his time in half, I won’t be able to see his friends and teachers, he won’t see my life”. The evidence is that the father has no involvement with [X]’s friends as [X] has very few friends. The father has little contact with the school in any event and the reality is if the father spent an additional weekend or long weekend in Newcastle once a month as well as alternate weekends in Sydney his time would be similar to that which it is now.
He presently spends 2 nights and 1.5 days a week with [X]. Over a month that is 8 nights and 6 days. At times this is less if the mother has a weekend with the child.
If the order were 2 weekends a month in Sydney and a Thursday afternoon to a Monday morning before school once each 4 weeks in Newcastle his time would be 6 days, and if one includes Thursday after school and Monday before school as one day, and 8 nights a month.
The father’s application is for time Thursday to Monday each alternate week and every Thursday night with the child remaining in Sydney. That is 5 nights per fortnight or 10 nights a month. This is 2 nights more than he presently enjoys and would result in a significant change in [X]’s usual care regime both as to time and arrangement.
The father’s preferred option involves a significant change. As significant as [X] moving school and homes yet it is the mother who has been criticised for wanting to change arrangements for [X] when the reality is change is sought by each parent as it is time for change.
The father’s option would see him being involved in [X]’s weekday activities such as the school morning routine, something he has not been involved in to date. It is also a significant change which is inconsistent with the father wanting things to stay the same and Ms B’s concern the parents keep change for [X] to a minimum. It is impossible to minimise the changes when both parents seek a change to [X]’s care whether he is living in Sydney or Newcastle.
The father should be involved in [X]’s schooling for some part of the month. He was asked “Are you able to take half a day and leave early?” He replied, “Yes, I could take half a day off work”. If the father could take a day off work then he can attend Newcastle once a month to either collect [X] from school on a Friday and deliver him to school Monday. If he was able to take 1.5 days off a month he could have [X] Thursday to Monday morning once a month.
There are several options open to the father to maximise his time with his son and maintain his working week if [X] moves to Newcastle. I am satisfied the mother will accommodate any arrangement to maximise [X]’s time with his father if his father is able to vary his working week once a month.
The father believed the mere reduction in time with his son would have a negative impact on their relationship and this view was supported by Ms B. I struggle to see this being a necessary outcome when the child’s desire for a relationship with his dad is so strong and matches the father’s desire to maintain his relationship with his son. If the father can attend Newcastle once a month for a weekend and preferably a long weekend there will be no reduction in his current time with [X] and only a 2 night reduction once a month on his preferred option. Time alone is not the key here, it is the quality of the time.
I can accept that a reduction in the quality of time the father spends with [X] possibly diminishing their relationship however there is no evidence to support that eventuality.
The mother had a somewhat black-and-white “my approach” style however was an impressive witness as was the father.
As to the property issues.
The parties agreed that during the marriage they equally contributed to their assets. The two issues for determination were:
a)Assessing the current value of the husband’s initial superior contribution to the current assets of the marriage; and
b)Whether there ought be an adjustment to either parties contribution based entitlement having regard to their needs if any under section 75(2) of the Act.
The husband said his income will remain the same for at least the next two years and his prospects are good. The father earns a high income and has his expenses of nearly $1000 a week paid to him for travel, accommodation and meals which is related to the travel he does for his work.
Neither party sought a superannuation splitting order. The father was able to add well over $100,000 from his own income to his superannuation since separation and has been seeking advice regarding his retirement options. He accepted the wife was unable to make the same level of contributions to her superannuation since separation as he has done.
The father contended for a two pool approach. That is, I look at the superannuation and the liquid assets separately. The bulk of the liquid assets consists of the equity in the former matrimonial home.
The mother sought a one pool approach. I prefer a one pool approach in this matter for the following.
The husband is soon to retire and he has the bulk of the superannuation in his name and it will very shortly become liquid. He wishes to retain his superannuation, and neither he nor the wife seeks a super splitting order.
The superannuation of the husband significantly increased from its initial value at cohabitation approaching $12,000 to now $312,582.
At separation in 2008 his superannuation was $182,000 and the husband has been able to contribute from his income $100,000 to his super in three years. Thus there is a significant increase in its value during the relationship and since separation.
The wife’s increase in her superannuation was more modest. At cohabitation she had some $27,000 and now has $98,465.
I find the one pool approach to be preferred given the age of the parties, given the approaching retirement for the husband, the value of their respective superannuation, the value of the other assets and the husband’s superior income earning capacity to that of the wife at 4.5 times her gross income a week.
The assets and liabilities are as follows:
ASSETS Property at [M]
$1,150,000
Husband’s company, [omitted] Pty Ltd
$17,899
Husband’s car
$20,390
Husband’s NAB account $142
Wife’s ANZ personal bank account
$1,054 Wife’s business account with ANZ
$4082
Wife’s accounts with [A] Netherlands
$350
Wife’s Mazda car
$13,450
Husband’s furniture
$2,000
Wife’s furniture
$5,000
Add back to wife of moneys drawn at separation $19,731 and additional paid legal costs of $10,607
$30,338
Add back for husband’s legal costs
$36, 252
TOTAL $1,280,957 LIABILITIES Mortgage
$483,425
Agreed costs of sale
$15,000
Line of credit NAB
$19,731
TOTAL
$518,156
NET TOTAL $762,801 SUPERANNUATION Wife’s superannuation
$98,465
Husband’s superannuation
$312,582
TOTAL $411,047 NET ASSET POOL (Net total plus superannuation) $1,173,848
The net pool including superannuation is $1,173,848.
There is a four stage approach in any property matter. The first stage is for the Court to assess the value of the property, its nature and holding, as has been done by agreement in Court Exhibit 3 and set out above.
I must ascribe to each party and expressed as a percentage their contribution based entitlement to their current assets from their direct financial and non-financial contribution to the assets including their role as parent and homemaker.
Part of this consideration may include a determination of whether either party has made a contribution over and above the other post separation to the property or the family and this was urged upon me by the Counsel for the husband as being open on the evidence.
Then the third stage is to determine whether I ought to adjust the parties’ contribution‑based entitlement up or down, having regard to their future needs by reference to the matters in section 75(2) of the Act.
Finally, I must look back and determine whether the orders I propose to make are just and equitable in all the circumstances, and thus it is important to know the nature and mix of the assets each party hold. As I have said, neither party contends for a superannuation split.
I asked the husband’s Counsel if I determined the husband was to receive no or a small cash amount from the equity in the home say, a figure of $30,000 or less, would he then seek a super splitting order. I was told, “No”. I then asked if the husband’s team would like to consider a further submission in relation to a super splitting order if I was so to find, given my view that it would not be just and equitable to provide one party with all the cash and no cash to the other. That option was taken up after some persuasion.
Assessment of the parties’ contribution based entitlement.
The husband made a significant, superior financial contribution at the commencement of cohabitation and towards the purchase of the former matrimonial home. He had net some $146,000 in two properties he owned prior to the relationship with the wife being [omitted]. Although I do not have evidence of the value of those properties at cohabitation, they were sold two years after cohabitation in 2000 and I have those figures which I will use as the husband’s initial contribution.
The husband had $146,000 and it is agreed the wife had $40,000 savings two years or so after cohabitation.
The parties purchased their matrimonial home with a deposit of $300,000. The husband contributed 40% of the deposit being $146, 200 and the wife contributed 12% being $40,000 with the balance of the deposit $114,000 having been jointly saved.
Looking at the principles set out in the decision of Pierce & Pierce [1998] FamCA 74 I find the husband’s superior contribution was used to form a significant deposit for the home thus saving the parties additional borrowing costs.
Each agrees during the marriage, either by way of income, parent and homemaker or energy and effort that they equally contributed to their assets, their lifestyle and their child.
On these facts I find today that the husband’s contribution based entitlement by way of his superior initial contribution to the purchase of the home to be 55% and the wife’s contribution to be 45%.
The husband contends that since separation he has made a superior contribution of between three and five per cent to the assets as he has paid the whole of the mortgage of $3389 a month.
$1694.50 is the wife’s share of the mortgage which is nearly $500 a month more than his assessed child support of $1200 a month. I accept the husband made that contribution willingly and consistently.
However, the wife has continued as was evident in the marriage to do all the real hands on day-to-day parenting for [X] including but not limited to liaising with the school, paediatricians, counsellors and the like, for a child who has ADHD and significant behavioural and learning difficulties. The parents and Ms B agree he is a challenging, wearing, time-consuming but also a most rewarding child.
The husband had provided the wife with respite on the weekends. However I find the wife has made a significant post separation contribution to the parenting of [X] which I find to have been equal if not superior to the husband’s financial contribution. Accordingly I make no adjustment to either party for post‑separation contributions.
The mother failed to disclose money she had in her [A] account of approximately $11,000 dollars in her initial financial statement filed in March 2011. However, when she realised that error and omission, she had her lawyers write to the solicitors for the husband and tell them of this and I make no adverse finding.
Both these parents were open and honest concerning their financial dealings.
Going now to the relevant 75(2) factors. Mr Livingstone, for the husband, conceded the wife had needs over and above those of the husband’s due to the parenting of [X]. [X]’s needs have had a direct impact on her capacity to earn an income and he submitted I would adjust her contribution based entitlement by 5% for this factor.
That adjustment falls far short of proper assessment when I consider the case law and the facts of this matter. The factors that are most relevant are as follows.
[X] will remain in his mother’s primary care, no matter what order I make regarding where he lives. The mother will continue to do the bulk of the hard yards parenting, including attending and liaising with the school, obtaining additional funding to cater for [X]’s needs at his school, attending paediatricians, counsellors and the like, taking him to extra-curricular activities, ensuring he attends school, does his homework and the like no matter where [X] lives.
Secondly, [X]’s needs are high and his mother is willing and capable of providing those needs at a high level. The mother’s commitment to [X] is supported by his father. This commitment has had a direct, significant and negative impact upon her capacity to earn income for her own support. The connection between providing for [X]’s needs and the mother’s limitations in providing for her own financial needs is direct, clear and real.
The husband’s income earning capacity has, on the other hand, been maintained in large part due to the mother taking on the overwhelming parenting role. Thus the father’s time has been freed up to earn the maximum income he can as he has only had time with [X] on the weekend and for limited times on the weekend. He has not done the hard yards the mother has.
The father has enjoyed the fiscal benefit of an uninterrupted working week and spending enjoyable and quality time with his son on the weekend and this is all down to the mother. Her work has fitted around [X]’s needs and the father’s working week.
The father has not been required to attend the child’s school or doctors during the week allowing him to maximise his income earning capacity. It was clear during the hearing that he wishes to maintain this luxury as he was most averse to taking a day or 2 off work once a month to have a long weekend with [X] in Newcastle as this would impact adversely on his income and his work capacity.
The husband has continued to earn a significant income which is 4.5 times greater than the wife’s. The husband has been able to contribute some $100,000 into his superannuation from his earnings since separation whilst paying the total of the mortgage, extra things for [X] such a sharing of costs with the wife of glasses, speech pathology and the like and rent to provide private accommodation such is the extent of his income-earning capacity.
The wife is 52, the husband is 57. The wife has potentially five years longer in the workforce and much was made of this by Mr Livingstone. At an income of 4.5 times less than the husband the wife would need to have 20 years in the workforce to make up from her own endeavour the capacity the husband has, thus this difference in age is of no import in my decision.
I find the wife’s needs having regard to section 75(2) of the Act to be 15% and I will so find given [X]’s particular difficulties and special needs which will continue to adversely affect his mother’s income earning capacity for many years to come.
This results in the wife receiving on a one pool approach 60% of the matrimonial assets and the husband 40%.
What does this mean?
Each party sought 67% to 68% of the matrimonial assets. The wife submitted she should keep all the cash and the husband all the superannuation. The husband said there should be an equal division of the liquid assets and the parties retain their superannuation.
I favour neither position, nor was either position reflected in my approach and nor would either position do justice and equity between the parties on the fourth step as clearly set out in the cases referred to in the CCH extract Wife’s Exhibit 11 such as Hickey v Hickey (2003) FLC 93-143. Nor do I accept the decision of D & D (2006) FLC 93-256 where the wife received almost all the liquid assets is on point with this matter.
In D & D the Full Court held that FM Sexton’s decision to give the wife all of the cash bar $7,000 of the equity in the matrimonial home was just and equitable. The reason I do not find favour with that decision in this matter is that in D & D the husband’s superannuation was almost equal to the equity in the home, the wife wished to retain the home, the wife was on a very modest income, the husband was a [occupation omitted] earning a good income and was living in the home of his new partner. These facts are very different.
The net pool is $1,173,848. 60% to the wife is a figure of $704,308 rounded down and 40% to the husband is $469,540.
The wife has $98,465 in super, $30,338 being additional legal fees paid of $10,607 and $19,731 in the drawdown, $1,054 in a personal ANZ bank account, $4,082 in her business bank account, $350 in her [A] account, $13,450 in her car, $5,000 in furniture. A total of $152,739.
If I take this figure from her percentage based entitlement as I have found it to be of $704,308 this would result in a cash adjustment of $551,569 to the wife. This cash adjustment would come from the net equity after the sale of the property.
The net equity in the home, less the sale cost and mortgage, is likely to be $632,000. If the wife receives $551,569 from the sale the husband would receive $80,431 from the sale together with his other assets and his superannuation.
To ensure neither party is advantaged or disadvantaged if the home sells for more or less, I will provide for each party a percentage of the net proceeds of sale. If the wife is to receive $551,569, that is some 87% of the net proceeds, and $80,431 for the husband is some 13% of the net proceeds. An order expressed as percentage of the net proceeds of sale is an equitable order.
What is the result in terms of the nature and type of property each would hold, if I make the orders as proposed? I was referred to Teal v Teal (2010) FamCAFC 120 to support the proposition that the legislation does not, in the final stage of an assessment of contribution based entitlement under section 79, envisage that there will be a substantial or further significant adjustment to the proposed percentage division. I accept this is the correct approach.
The wife would have $551,569 in cash, $54,274 in other assets which includes the add back of $30,338 car, furniture etc and $98,465 in superannuation. This totals $704,308 to the wife.
The husband would have $80,431 in cash, $17,899 business, $20,390 car, $142 cash at the bank, $2000 in furniture, $312,582 in his superannuation and his add back of paid legal fees $36,252, giving him a total asset pool of $469,540 of which $312,582 is superannuation.
Looking back at the orders I propose to make I find they are just and equitable. They provide for a division of the cash, which will enable the wife to rehouse herself in an unencumbered home in an area she chooses in Sydney or in Newcastle if I permit her so to do, provide the husband with a substantial sum of cash of $80,000, maintain his significant superannuation entitlement, and maintain his significant income earning capacity.
Once the former matrimonial home is sold, the husband’s income will be freed up by some $3000 a month and he has the capacity to borrow sufficient money, if he wishes, to buy a home for himself or as he posited for the wife to do, rent and invest his money elsewhere. I find these orders are just and equitable in all the circumstances.
Going, now, to the relocation issue.
This is, as always, a finely balanced matter. I must have regard to the matters under section 60CC (2), (3) & (4) of the Act to make an order in [X]’s best interests.
My first task was to determine whether I should rebut the presumption of equal shared parental responsibility and I made findings earlier why the presumption will be maintained.
I can not consider an order for equal time, that was clearly against the weight of evidence from Ms B and the father does not seek such an order. It would not be practicable no matter where [X] lived for time to be shared as this would disrupt [X]’s secure base with his mother.
The order which is most appropriate is for significant and substantial time being time during the week, on weekends and significant other occasions for the child and such an order must be reasonably practicable.
Any order I make must maintain for [X] the benefit of the meaningful relationship he has with his mother and father. There are no issues of violence. [X]’s wishes are not crucial in this matter, given his emotional age, which is 3 to 4 years below his chronological age.
However I will take note that the move to Newcastle is viewed by [X] as a fresh start which although it may not eventuate is for him is a positive.
I was referred to many cases dealing with relocation issues and the further definitions of “meaningful relationship”.
The cases include Adams v Randall (2011) FLC 93-482. In that matter an Appeal was allowed from a decision of FM Monahan restraining the mother from moving to Newcastle from Sydney due to the Federal Magistrates failure to make a finding of where the father would be living which was necessary to then enable him to then make a finding of whether the proposed orders were reasonably practicable. Further the Full Court held that orders made would be unworkable when the child commenced school.
Goode v Goode (2006) FamCA 1346 on the correct approach to take in parenting matters.
Mazorski v Albright (2007) 37 Fam LR 518. This was a decision of Brown J dealing with the meaning of the phrase “a meaningful relationship”. Her Honour said:
What these defilations convey is that “meaningful” when used in the context of “meaningful relationship” is synonymous with “significant” which in turn is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant, and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for time with children to be where possible and in their best interests substantial and significant.
This decision was approved by the Full Court in McCall and Clark (2009) FamCAFC 92.
Going now to the facts of these matters and weighing up the competing proposals.
The impact upon [X] of the mother’s proposal to move to Newcastle is untested and may have a negative impact upon him due to his difficulty in coping with change. However [X]’s real difficulty is coping with change for which he is not prepared not merely change simpliciter.
The negatives for [X] are that to cope with a change to living in Newcastle he will need to adjust to a long car trip twice a month of about two and half hours each way in order to see his father in Sydney. [X] is a good traveller however he has never had to regularly travel long distances. He may become fractious and there may be occasions where he may not always wish to see his Dad if it involves a long car trip.
He may see less of his father if his father is unwilling once a month to spend a weekend or long weekend in Newcastle to see his son in his environment in addition to the alternate weekends in Sydney.
I do not see the possibility of a mere reduction in [X]’s quantity of time with his father or changing how the time is spent will negatively affect the benefit to [X] of his current meaningful relationship with is father. The weight of the evidence was against such a finding.
I do not see the move to Newcastle of itself as having a negative impact on the quality of time the child and father currently enjoy or will enjoy in the future.
The move will require [X] to change paediatricians, counsellors and the like from those he has known all his life and to make new friends. [X] however sees a new school as a positive and I find this position will make it easier for him to cope with a change to a new school. This is important as whatever order I make [X] will be changing schools.
He will be moving into a different home and environment a long way from his father and living in an environment his father is most negative about.
He will not see his dad every Friday night. However the father has also sought a change to this usual routine even if [X] remains in Sydney and this like the new school is a necessary change.
These are real and significant factors and may impact negatively on [X] and are against the mother’s move. The impact of the change upon [X] is significant and it is untested and Ms B opined it would be detrimental. However the negatives are only part of the picture.
lf the mother remains in Sydney and carries out her wish to purchase a home with a yard and a small or no mortgage to maximise her time and availability to [X] she will be moving to an outer Sydney suburb. This will necessitate significant travel for [X] to spend time with his father as his father will be living at [L] which is his preferred place of living.
If the mother elected to remain close to the father’s preferred place of living, she can afford to purchase at best a 2 bedroom apartment if she is to have a little or no mortgage, or purchase an inferior home to that which [X] has lived in all his life with a significant mortgage resulting in her being required to increase her current working hours, or rent a property with the lack of stability that brings.
The mother may not be as emotionally and psychologically available to [X] as I accept she will be if she moves to Newcastle for the following reasons or combination of reasons. The mother may have to continue to work her current hours or increase them, she will not be living where she will feel happiest living near her friends and will continue her social isolation, will continue to put her life on hold and will be prevented from living where she has determined it is where she wants to live.
This will not be the case for the father who can live where he wishes and still maintain his important relationship with his son.
To place the mother in such a situation when she is the primary carer of a child with special and difficult needs to fulfil may result in [X] not receiving the level of parenting he has hitherto enjoyed from his mother. That too is risk to [X].
The impact upon the mother of a move to Newcastle will be positive for her. It is where she wants to live. She has friends in Newcastle, something she is short of in Sydney. She will be able to provide a quality home for herself and her son, a quality that she and the child and the husband enjoyed during the relationship mortgage-free, thus freeing up some time from having to earn the income she presently earns and giving her, she believes at least one free day a week to devote to [X] and his needs. That can only be in his best interest.
The child’s relationship with each of his parents. His strongest, closest emotional attachment is to his mother, but he has a significant and secondary important attachment to his father. His strong relationship with his father will be maintained no matter where [X] lives. His secure relationship with his mother may suffer if his mother is unable to continue her hitherto high level of physiological and emotional availability to [X] due to the pressure of work or unhappiness in being prevented from living her life as she wishes.
This is particularly important when one considers that the father will continue to live where he wishes to live, continue to earn a significant income and maintain his life as he chooses no matter where [X] lives.
Each of the parents has a capacity to promote in their child a positive attitude towards and positive relationship with each parent and they have done so.
There is a practical difficulty and expense of [X] spending significant and substantial time with his father if he lives in Newcastle being time during the week, on weekends and special occasions. [X] will have to travel to Sydney at a cost and endure a trip of some two and a half hours each way. If, as I posited, I make an order that the father spend an additional weekend or long weekend once a month from Thursday to a Monday or Friday to a Monday in Newcastle this will be a significant cost factor for the father in having to secure accommodation that is appropriate for he and [X], the additional travelling time and time off work, which he is not keen to do.
Both parents have a potential high capacity to provide for the needs of their child, including emotional, intellectual needs, but the mother has demonstrated that capacity over time and will continue so to do. The father is yet to demonstrate the same capacity as the mother and I am not sure he will do so as this would entail a disruption to his working week and a diminution in his income.
The mother has an outstanding attitude to her responsibilities of parenthood and takes every opportunity to be involved in [X]’s life. The father is yet to demonstrate a similar attitude and regrets his lack of involvement in the child’s life being educational and health needs although he spends time with him.
Ms B opined that [X]’s relationship with his father would be detrimentally affected if he moved to Newcastle and only spent alternate weekends with him. That is not the proposal. It is that the father spends more than alternate weekends with his son.
The proposal is he spend in addition to alternate weekends in Sydney one weekend or better still one long weekend in Newcastle once a month. That he sacrifice a day or two of work once a month to spend a long weekend with his son in proper accommodation which he can afford, and partake in his schooling by taking him to school, picking him up from school, doing his homework etc. This regime would not result in a diminution of time just a different regime of time but significantly involve his father in aspects of [X]’s life he has hitherto left solely up to he mother.
If the mother remains in Sydney there is no guarantee that I can order the child to spend time with his father each alternate Thursday to Monday morning and each Thursday night as the father and child may live too far apart to enable this to be practical for [X]’s educational needs. The father will not move over the bridge and will only live as far north as [Z]. The mother may choose to live in [suburbs omitted] or anywhere in between when she finds a suitable home for she and [X] within her budget.
This matter is finely balanced. The issues and the move for [X] to Newcastle are untested. There are clearly risks. [X] does not take change well. He does not make friends easily yet he is to move school, whatever order I make. Further his mother’s proposal is he lives in an area he knows very little about and has never lived in before.
However, his mother has held up her life for four years. She wanted to move to Newcastle in 2008. She and the father agreed that to allow their son to come to grips with their separation that they would maintain for [X] what he had known and things stayed the same.
It is now four years on, [X] has progressed and matured. His behaviour has improved. He has a strong and secure relationship with his father. Each of his mother and father must now move on. Their home is to be sold and of necessity things will change. This is the time for the parents to make a change. This is the time for [X] to make a change. He is as best placed as he is ever likely to be to make that change successfully. This is due in no small part to the strength of his relationship with his father, which each his mother and father have encouraged.
In those circumstances and on a fine balance I find the mother’s application to move to Newcastle to be an order in the child’s best interests. It will provide the mother with an appropriate home for she and [X] to live in either without or with a small mortgage, provide her with her friendships in close proximity, enable her to be more physically, as well as psychologically and emotionally available to her son due in part to needing to work less hours to provide financially for herself and provide her with the happiness that she should have if that be consistent with [X]’s best interests which I find it is.
I know the father will be very disappointed by this decision. He has a financial capacity to live where he wishes to live, to spend a weekend or a long weekend once a month with his son in Newcastle, spend alternate weekends with his son in Sydney in his home by collecting him at [T] every second week on a Friday, returning on a Sunday and to spend holiday time with him.
I find that the mother’s proposal is one that on balance meets [X]’s needs and is a proposal that is in [X]’s best interest and will maintain for him the benefit of his meaningful relationship with his mother and his father.
As to the mother’s proposed trip to the Netherlands at the end of 2012. I find that the mother should be permitted to take the child overseas even though I accept 2012 will be a year of change for [X]. [X] has previously travelled to the Netherlands, his father raises no real concerns that the mother will not return to Australia as she did on the last occasion, the Netherlands is a convention country and [X] will benefit from experiencing his Dutch heritage first hand. I have confidence that the mother will never take any action that would harm [X] or expose him to experiences he would be unable to cope with and I find the trip as proposed by the mother to be in [X]’s best interests.
I certify that the preceding three-hundred and thirty-three (333) paragraphs are a true copy of the reasons for judgment of Henderson FM
Date: 5 April 2012
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