Yard & Rodd

FAMILY COURT OF AUSTRALIA

YARD & RODD [2008] FamCA 410

FAMILY LAW – CHILDREN – With whom the children should live – Best interests – father already relocated – evaluation of competing proposals – children’s views

FAMILY LAW – PROPERTY - Settlement in relation to marriage – substantial agreement between parties

Family Law Act 1975 (Cth)

A v A (Relocation Approach) (2000) FLC 93-035

APPLICANT: MR YARD

RESPONDENT: MS RODD

FILE NUMBER: CAF 418 of 2006

DATE DELIVERED: Wednesday 30 April 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 13-14 December 2007
1 April, 9 April 2008
REPRESENTATION

COUNSEL FOR THE APPLICANT: George Brzostowski

SOLICITOR FOR THE APPLICANT: Lois Clifford

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Anne Marie Proctor
Orders
Children's Orders
1.The mother will have sole parental responsibility for the children, G, born … October 19995 and H, born … February 2000.
2.The mother will consult with and include the father in all major long-term decisions regarding the children's welfare, including health, education and school activities and extra-curricular activities.
3.The mother will provide to the father copies of all school reports about the children and information relating to their health and extra-curricular activities.
4.The children will live with the mother in T unless and until the mother in consultation with the father decides otherwise.
5.The children will spend time at the father's home in Canberra at the following times:
a.On each alternate weekend during term time from 6.00pm Friday until 6.00pm Sunday (or 6.00pm Monday if Monday is a public holiday);
b.If the children are with the father in the last week of any school holidays as hereafter provided, they will return for the weekend with their father on the second Friday after the commencement of the Term. Otherwise their weekend time will commence on the first Friday of the school term;
c.The whole of the Term 3 school holiday periods commencing at 6.00pm on the last day of school and concluding at 6.00pm on the night before school resumes;
d.One half of the Term 1, Term 2 and Term 4 holidays in each year, being the first half of the holidays in odd numbered years and the second half of each such holiday periods in even numbered years. For the purpose of this Order, the first half of the school holiday period will commence at 6.00pm on the last day of school and conclude at 6.00pm on the middle day of the holidays and the second half shall commence at 6.00pm on the middle day of holidays and conclude at 6.00pm on the night before school resumes;
e.If Easter falls outside of the Term 1 school holiday periods the children shall be in the care of the father (if Easter Saturday and Easter Sunday coincide with the periods that the children would otherwise be in the father's care pursuant to Order 5(a) above) from 6.00pm on Easter Thursday until 6.00pm Easter Monday.

6.For the purpose of the above Orders, changeovers shall occur at the J Park and the mother shall deliver the children to the father for collection at the Park at the commencement of the specified period and the father shall return the children to the mother at the Park at the conclusion of the specified period.
7.These arrangements shall apply unless the parties agree otherwise.
8.The parties will at all times keep each other informed of their current telephone, email and home address.

Property Orders:
9.The husband and wife do all things to bring about an equal division of their assets and superannuation (subject to the adjustment payable by the wife in relation to the debt owed to M Pty Ltd as set out below). To facilitate the division of the assets the following arrangements occur as set out below.
10.The wife pay to the husband by way of Bank Cheque the sum of $211,400 by way of property settlement within 30 days of the date of these Orders.
11.Contemporaneously with the payment referred to in Order 10 above, the husband do all things and sign all documents necessary to cause to be transferred to the wife, at the expense of the wife, the whole of his right title and interest in the property at T in the State of New South Wales.
12.Within 30 days of the date of these Orders, the husband and wife do all things necessary to instruct Mr J of B Pty Ltd to liquidate the parties joint BTQ Asset Link Investment No. … and to cause the net proceeds to be distributed equally to the husband and wife.
13.The husband and wife do all things necessary to close the UK HSBC Bank Account and the Australian Teachers Credit Union Account in the joint names of the parties and cause the funds to be distributed equally to the husband and wife.
14.The husband and wife do all things and sign such authorities and documents necessary to direct Great Southern Pty Ltd to cause their investments held by them in Great Southern Pty Ltd to be distributed as follows, (noting that these investments do not necessarily have a current realisable value):
a.To cause the investment … (Western Australia) in the joint names of the parties to be divided equally between them;
b.To cause the investment … (Victoria 1) in the joint names of the parties to be divided equally between them;
c.To cause the investment … (Victoria 2) in the joint names of the parties to be divided equally between them and the parties shall be equally liable for any outstanding insurance premiums in relation to this investment;.
d.The husband retain sole ownership of the investment … (Western Australia 2) in his sole name and shall be solely liable for the debt in his sole name to Great Southern Pty Ltd …;
e.The wife have the sole beneficial ownership of the investment … (Western Australia 3) in her sole name and be solely liable for the debt in her sole name to Great Southern Pty Ltd.

15.The husband and wife forthwith in their capacity as directors of C Pty Limited shall do all things necessary to cause the long service and annual leave entitlements of the employees of C Centre at T to be calculated as at date of these Orders with the figure to be agreed between the parties or in default of agreement, by the manager, and the parties shall cause the sum of (about) $3,000 to be paid from Account no. …4 (referred to below) into the Westpac Maxi I Direct Account … in the name of C Centre and equally (personally) or from the joint account pay such further amount as is necessary to bring the funds standing to the credit of the account to an amount sufficient to cover the total accrued long service and annual leave entitlements of the staff as at the date of these orders. In the event that the funds standing to the credit of that account exceed the total accrued long service leave and annual leave entitlements of the staff as at the date of these Orders the balance remaining shall be dealt with in accordance with Order 17.
16.Within 7 days the husband will obtain a quotation from tradesmen for repainting the business premises and recarpeting the parts of the flooring necessary to make good the premises following termination of the lease. The parties will then agree either to accept the quotation obtained by the husband or that (previously) obtained by the wife. The parties shall engage the agreed tradesmen to carry the works and pay the invoices for the works within 7 days of completion of the work from account no. …4 (referred to below).
17.Subject to Orders 15 and 16 above, that within 7 days the husband and wife in their capacity as directors of C Pty Ltd shall do all things necessary to cause the proceeds standing to the credit of any account conducted by that company to be equally divided between the parties noting that the accounts include the following:
a.C Pty Ltd Account No. …, credit balance as at 30 March 2008 of $31,223.80;
b.Long Service Leave Account No. …, balance as at 30 March 2008 of $883.28;
c.CMC Maxi I Direct Account. No. …, balance as at 30 March 2008 of $111,744.20;
d.Long Service Leave Maxi I Direct Account, No. …, balance as at 30 March 2008 of $29,540.12.

18.The husband and wife repay to M Pty Ltd the following debts owed by the husband and wife individually to the said company and to facilitate this order:
a.The husband shall pay to M Pty Ltd the sum of $123,364 within 30 days of the date of these Orders;
b.The wife shall pay to M Pty Ltd the sum of $138,000 within 30 days of the date of these Orders.

19.Forthwith upon payment of the sums referred to in 18(a) and 18(b) above, the husband and wife in their capacity as directors and shareholders of M Pty Limited shall cause the following liabilities of M Pty Ltd to be paid forthwith:
a.Payment of the debt owed to Y Pty Ltd in the sum of $228,137;
b.Payment of the amount owed by M Pty Ltd to Westpac Bank in respect of the Overdraft Account including accumulated interest and late payment fees;
c.Payment of accounting fees owing to P Pty Ltd in relation to work undertaken by that firm in respect of M Pty Ltd;
d.Except as otherwise provided for in these Orders the husband and wife will equally pay to M Pty Limited a half share of any liabilities including tax liabilities, howsoever and whenever arising in relation to M Pty Ltd. The husband shall pay half of any tax refunds received by the said company after the date of any payments made by the husband and wife pursuant to this order.

20.The husband and wife in their capacity as directors and shareholders of M Pty Ltd shall:
a.Forthwith cause the accountants of M Pty Limited to adjust (if required) the loan accounts of the husband and wife in that company as may be required to reflect the husband's loan account is agreed between the parties at $123,364 and the wife's loan account is agreed between the parties at $138,000 as at the date of these orders;
b.Cause M Pty Ltd to transfer its shares in C Pty Ltd to the wife contemporaneously with payment by the wife to the husband or his nominee company, the sum of $20,200, noting that Order 19 above shall be implemented prior to the said transfer.

21.Contemporaneously with the transfer referred to in Order 20(b) the husband forthwith transfer to the wife or her nominee his shareholding interest in C Pty Ltd.
22.Upon compliance with Orders above, the wife shall transfer to the husband or his nominee, her shares in M Pty Ltd and resign from all positions in said company.

Superannuation
23.In accordance with section 90MT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of the husband from his interest in the M Superannuation Fund the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $6,597.66 and there is a corresponding reduction in the entitlement the husband would have had but for these Orders.
24.The operative time for Order 23 is 30 June 2006.
25.The wife forthwith shall do all such acts and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the wife's transferable benefit from the M Superannuation Fund to a regulated fund of the wife's choosing.
26.The husband forthwith shall do all such acts and sign all such documents as may be necessary, including but not limited to, exercising his request pursuant to r.7A.06 of the Superannuation Industry (Supervision) Regulations 1994 for the transfer of the husband's transferable benefit from the M Superannuation Fund to a regulated fund of the husband's choosing.
27.Following the receipt by the Trustees of the elections made by the husband and wife as contemplated by Order 25 & 26 above, the husband and wife in their capacities as Trustees of the M Superannuation Fund shall cause a meeting to be held in accordance with the rules of the Superannuation Fund Trust Deed, with the purpose of that meeting being:
a.To note receipt of the request by the wife to rollover her remaining benefit in the M Superannuation Fund to the wife's new superannuation fund;
b.To authorise the transfer of the transferable benefits to the wife's new superannuation fund;
c.To note receipt of the request by the husband to rollover his benefit in the M Superannuation Fund to the husband's new superannuation fund;
d.To authorise the transfer of the transferable benefits to the husband's new superannuation fund;
e.To resolve that the M Superannuation Fund be wound up as soon as practicable and to engage the superannuation fund accountants to do all things required to wind up the fund and the costs and expenses associated with the winding up will be treated as a liability of the M Superannuation Fund.

28.Contemporaneously with the first handover of the children by the wife to the husband at the J Park following the making of these orders, the wife deliver up to the husband the following items and things:
a.All photographs in the wife’s possession identified by the husband as owned by the husband prior to marriage;
b.All books in the wife’s possession identified by the husband as owned by the husband prior to marriage;
c.All other personal effects the wife’s possession identified by the husband as the husband’s including his badge collection.

29.Except as otherwise provided in these orders, the husband and the wife are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively, save that the husband will pay to the wife child support arrears in the sum of $10,000 which sum may be deducted by the wife from the payment referred to in Order 10.

NOTATION:
A.The parties note that Order 23 and payments made as a result will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
B.The parties as trustees of the M Superannuation Fund have no objection to the making of these Orders.
C.The base amount is intended to equalise the parties superannuation entitlements in the M Superannuation Fund which as at 30 June 2006 stood at $250,302.94 for the husband and $237, 107.61 for the wife.

IT IS NOTED that publication of this judgment under the pseudonym Yard & Rodd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA
FILE NUMBER: CAF 418 of 2006

Mr Yard
Applicant
And

Ms Rodd
Respondent
REASONS FOR JUDGMENT
Introduction

This is a sad case. It involves two professional people who worked very hard to establish a practice in T in New South Wales to develop a portfolio of investments and to raise two loving and caring children.
Unfortunately, as their relationship disintegrated, their antipathy to each other has resulted in protracted court proceedings involving both the division of their property and the children.
In relation to the property matters, during the course of the hearing the parties reached agreement on most items to be included in the pool.
The matters about the children were more complicated. After the parties separated, the father of the children chose to move to the Canberra district where he began to work in a practice. However, to his credit, he continued to attend in T regularly to spend time with the children and to stay in an apartment that he kept there. Orders were made initially by consent on an interim basis which provided that the children would spend time with their father from after school on Wednesdays until before school on the following Monday on each alternate week and from after school on Wednesday in the other week until 8:00pm. The orders also provided the children would spend one half of the school holidays with their father but would otherwise live with their mother. Although each of the parents is to some extent critical of the other in his or her ability to parent the children, there is nothing on the evidence before me which would lead me to conclude other than that each of the parents is capable, in a physical sense, of looking after the children. However, both parents are busy professionals and this imposes some limitations on their ability to be available personally for the care of the children. This however, has not proved to be, nor will it prove to be a serious impediment to the effectual and effective parenting of these children.
The father’s proposal in essence is that the children should live principally with him in Canberra, at least until the mother has a chance to relocate to Canberra, and that thereafter it would be appropriate for them to share their time between their parents. This situation is substantially predicated upon the boys attending, G immediately and H sometime later, at G School.
The boys’ mother does not want to move to Canberra. She wants to continue her practice (formally the joint practice) in T to buy out the husband’s share in the former family home and have the children principally living with her. She said that if it were ordered that the children live principally with their father in Canberra, she would move to Canberra so as to be closer to them but this was not her first choice. She had, and has, no reason to move to Canberra, apart from being near to the children. She has no immediate access to a practice in Canberra, although does not believe she would have difficulty in finding appropriate work. She has no accommodation in Canberra and would have to find that. She also has some concerns about the father’s parenting ability but not sufficient to preclude his spending substantial time with the boys in the order of the existing arrangements of five nights out of fourteen in the fortnight. There was some suggestion before me that the mother was considering moving to W and that her parents were also considering moving to W. I am satisfied from the mother’s evidence that she intends to stay indefinitely in T. There was no evidence of sufficient probity to enable me to take the maternal grandparent’s possible move into account in my decision.
I had the benefit of two reports about the children and the parents, the first was from Dr R who was the single expert. The second was from Ms M a Family Consultant attached to the Family Court of Canberra. It would be reasonable to say that the reports while not expressing a firm view about where the children, in particular, where G should attend school, expressed an opinion that stability was important because of the considerable distress the children had endured as a result of their parents separation and the subsequent bitterness of their battle in the Family Court of Australia. This opinion, to the extent that it was expressed as a recommendation, would have favoured the children’s remaining with their mother in the former family home in T and attending school there. It would not be fair, however, to say that this was a strong and positive recommendation from either of the experts.

The children, when interviewed, had expressed a level of ambivalence about where they wanted to go to school. Subsequently however, as the trial approached and for that matter subsequently, G has expressed his view that he wanted to come to Canberra and attend G School in quite vehement terms including his engaging in a bizarre incident where he started to ring everyone in the town of T to tell them of his apparent plight.
For her part, the mother says that this is an attitude inculcated in G by his father and that it would not be in his best interest to attend G School and live principally with his father at this point. Not as much emphasis has been afforded to H’s wishes, although, the mother was keen to point out that there were two children involved. It also seems appropriate from the advice of the experts, that the children should not be separated from each other[1].
[1] It is appropriate to note however the father’s apparently ambivalent attitude to this.
It is appropriate also to note that each of the parents believes that the other has an important and valuable role to play in the children’s lives. The evidence I have before me and my observations of the parents would confirm that this is an appropriate conclusion to be reached.
As the Chief Justice of the Family Court of Australia has remarked on other occasions, problems about relocation are not really problems at all but rather dilemmas. Problems have solutions, dilemmas only choices.
Issues relating to the children
12.Amendments to the Family Law Act 1975 which came into effect in December 2006 provided a number of objects and the principles from which Part VII of the Family Law Act is to be applied. These objects and principles, found in s 60B, are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and (ii) to develop a positive appreciation of that culture.
In fulfilment of those principles and objects, the Act provides in s 60CA that in deciding whether to make a particular parenting order, a court must regard the best interests of the children as the paramount consideration. Section 60CC provides a number of matters to be taken into account in determining what is in the children’s best interests and I will turn to them in a moment. Section 60CC(4) provides:
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Section 60CC(4)(A) provides:
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Equal Shared Parental responsibility Section 61DA
Of interest in this matter however, is the presumption imposed by s 61DA of the Act as follows:
1)When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child …. has engaged in:
(a) abuse of the child or another child who at the time was a member of the parents family; or
(b) family violence; …
4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In many respects, this matter would suggest that it would be appropriate for the presumption to apply. Each of the parents is a caring and loving parent. Each of the parents is deeply concerned about the children’s long term care, welfare and development. Each of the parents acknowledges the importance of the other parents’ role in the children’s lives. The mother has expressed in a number of ways, including her consent to the interim orders, confidence that the father is a competent parent
However, it would seem to be appropriately a fundamental of shared parental responsibility, that the parents were prepared to share that responsibility and in particular, to be able to communicate with each other and to plan together, even if only in a business-like way, about the future of the children. In these circumstances where the antipathy between the parents is palpable and their ability to communicate impaired, to impose a regime of joint parental responsibility may well, at this point in the development of their relationship (or perhaps the disintegration of their relationship), prove an impossibly onerous task. The children would bear the burden of that task in terms of being caught between warring parents unable to make decisions and would in all probability suffer significant stress and confusion as a result. The children have already been in the middle of the conflict between their parents and although it seems to me that there is evidence of a commitment to make the shared arrangements at present work, I am not sure whether this is dictated by the pending litigation or by a genuine desire on the parents’ part.
That is not to suggest that the parents should not consult about major matters relating to the children. It does not mean that questions of the children’s health should not be the subject of exchange of information between them or, appropriately, consent if some medical procedure is required. These parents are qualified to be aware of the consequences of anything untoward which may occur to the children in this area.
It does mean, however, that given the major difference that exists between the parents, apparently, about where the boys are to attend school and for that matter where they are to live, it would not be appropriate to impose a general shared parental responsibility requirement on them. Consequently I find that the presumption is rebutted by consideration of the children’s best interests.
If I were to determine after due consideration of what would be in the best interests of the children, that there should be equal shared parental responsibility, I would then have to give consideration to whether the children should spend equal or substantial and significant time with each of the parents. (This is a consequence of s 65DAA.)
If I were to determine that the presumption did not apply, that would not nevertheless preclude me from making orders which may mean that the children spend equal or significant and substantial time with both parents.
I note in this regard that the father’s orders ultimately envisage a situation where the children would spend equal time with both parents. The mother does not see this as being so but the order that she seeks do not fall comfortably within the definition of significant and substantial time. However, the present arrangements for the children would, in my opinion, constitute even if the time is not perhaps, quantatively, substantial.
Best Interests of the Children Section 60CC
Primary Considerations
The legislation provides and the parents agree that a primary consideration of any arrangement must be that the children have a meaningful relationship with each of them. There is, perhaps peripherally, a need to protect the children from the probably unconscious involvement by each of the parents of the children in the conflict. They are not otherwise likely to be subjected to or exposed to abuse, neglect or to family violence.
Additional Considerations
The Views of the children
Surprisingly little attention is given to H’s views although at his age, this is probably reasonable and in accordance with his maturity and level of understanding. G’s wishes are clearly and to some extent adamantly expressed. Perhaps not surprisingly in the context of this matter, they align with his father’s wishes of wanting to attend G School. It is difficult to afford to a 13 year old (nearly) the capacity to understand the complexities which go to make up a good education. However, this inability is to some extent shared with parents who frequently only see the glossy side of a school’s presentation without having access to other factors which may moderate or change that view. The parents had previously agreed that G might attend a secondary school such as G School and I accept that that was at least in part the intention of the parties at some point. That of course does not mean that that intention continued or that it is in some way binding or appropriate at this time. It does however, demonstrate that G’s views are not outrageous or outlandish.
In determining the children’s best interests including G’s, in my opinion, his views should be given some credence. However, his age and the circumstances particularly, in my opinion, the fact that he has been significantly influenced by his father, would not cause me to regard those views as determinant.
It is difficult to speculate what would happen if the views of G were not implemented by my judgment. There is some evidence, particularly in the fresh evidence put before me on 27 March and on 1 and 9 April 2008 that the parents, and in particular, the father, may not be able to control G’s physical rebellion against the enforcement of an arrangement whereby he attended the T high school. This is worrying at a number of levels. G is obviously of an age and size where physical compulsion is both difficult and probably undesirable. However, it may be necessary for his best interests for his parents, including his father, to be able to enforce their discipline upon him in the future. This may not relate only to things such as school but other moral and social activities. I recognise that G’s actions may represent in part a cry for attention or for help in ensuring his voice is heard and I acknowledge that I have heard and given significant consideration to his voice. However, in the end, my determination must be based upon my adjudication of what is in the children’s bests interests without being solely influenced by the attitude or actions of either of the children.
Relationship of the parents with the children
The parents appear, from the reports that each of them make and from others who have observed them, to have relationships which are substantially complementary with each other and it is sad that the children are unable to have the combined benefit of their parents different strengths and characteristics. It is noticeable that both of the children have expressed the strongest possible wish that their parents should reconcile. This is a fantasy and will not occur. It is however, illustrative of the children’s high regard for each of their parents.
Ability to encourage close relationship with the other parents
I have some difficulty in feeling confident that either parent will continue to encourage the children particularly to have a relationship with the other parent. Each has expressed a willingness and a commitment to do this but the underlying antipathy between them has really left me with a concern that while intellectually each parent may commit to this as an important thing, it may be that neither is able to carry out their intent to the best possible extent.
This would ordinarily suggest that it is important for the children to have exposure on an extended and regular basis to each parent. Such an arrangement, coupled with a modicum of good will would, in my opinion, be more likely to best promote the children’s desire to have time with each of their parents and to minimise the conscious or subconscious effect of each of the parents attitude towards the other. However, it is difficult in this matter to see such a sharing arrangement working for the some of the reasons I have outlined above but more particularly because if the mother were to remain in T and the father in Canberra, the nine/five arrangement that has previously existed would not be ordinarily possible. Certainly the father has recently (and I think reasonably) indicated that he found the arrangement hard to maintain with the geographical separation of the parties.
That would give rise to the proposition that I should consider whether the father’s argument that if the children were placed with him it would force the mother to move to Canberra and hence allow the children to have a more extended time with each parent is valid. There is a perverse superficial attraction in this argument. If I were to disregard the parents completely, it would be reasonable to say, notwithstanding, the difficulties of a shared arrangement to which I referred above, that the children would benefit from spending significant time with each of their parents. This is only reasonably possible if the parents live in the same place or thereabouts. Hence, accepting the mother’s commitment to the children in her evidence that, that if the children were placed with the father, that she would feel obliged to move to Canberra to be closer to them, if I were to make such an order, it will have the effect (perhaps) of providing the children with the best opportunity for spending substantial time with each of their parents.
In my opinion however, it is not simply a question of the physical arrangements. The act provides at 60CC(3)(m) that I am to take account of any other factor or circumstance that I consider to be relevant. I cannot accept that it is reasonable for one party to impose on the other a forced relocation on the basis that to do so would attain an arrangement which might otherwise be regarded as a more acceptable arrangements for the children.
As I accept that the father would find it difficult to live in T in the circumstances, so that he could be near to the children, so I find it unreasonable to require the mother to leave the stability of her present practice and her home to come to Canberra. The unilateral decision by one parent to move from one place which is distant from where the children have been living should not, in my opinion, bring about a requirement that the other parent must be forced to relocate or be met with the charge that he or she is unwilling to put the children’s interests first. Each case will depend on its own facts, however, the facts in this matter, in my opinion, do not suggest that it would be reasonable or proper to require the mother to relocate against her will.
This has the effect of precluding the ability of the children to spend approximately equal time with each of the parents.
Effect of any change in the child’s circumstances
It would seem from the experts’ reports and the evidence from the parties that the most important thing for the child’s best interests would be some level of future stability and the removal of the requirement that they should be the instruments of determination of disputes between their parents. To some extent, whatever decision is made, the children are likely to benefit from more settled arrangements in the future.
Practical difficulties and expense of the time with each parent
These arrangements have in the past been relevantly straight-forward because they have been resolved by the father’s travel. He now proposes that the children should be handed-over at a midway point and this seems a logical and appropriate sharing of responsibility. The practical difficulty and expense of travelling to spend time with their father if the children live in T is significant but not unreasonable.
There are no practical impediments to the children’s communicating effectively either with themselves or with the other parent or with other people. I am not convinced that either parent would intentionally interfere with the children’s ability to communicate and I do not regard it as a factor which affects my determination.
Capacity to provide for the needs of the children
There are patchy illustrations for maturity and insight into the children’s needs but equally expressions during the course of the evidence of a focus by the parents on their own needs rather than those of the children. Each of the parents, has to some extent, demonstrated a poor capacity for emotional availability for the children. This is most graphically demonstrated by the (probably subconscious) involvement by the father of G in the question of his education. It is further illustrated on the part of the mother in her leaving the children with the father and going to England at or about the time of their separation. To some extent, G’s acting-out by making multiple telephone calls and ringing the radio is illustrative, in my opinion, of the fact that he was unable to find an appropriate emotional response from either parent at that relevant time.
I think each of the parents has capacity but to some extent each of the parents has not exercised that capacity in the past. I would hope that in the future they would find it within themselves to put aside their personal acrimony in favour of what might be best for the children. I find nothing to distinguish between the parents in relation to this matter.
Maturity and characteristics of the children
There are no specific characteristics which would cause me to vary any of the comments I have made above about the children. It seems clear that the children need both parents and I cannot find any characteristic of either of the boys which would suggest that they should be more appropriately with one parent rather than the other.
Attitude to the children

There are elements of irresponsibility in the attitude of both of the parents. I have mentioned two above. Notwithstanding that, each of the parents has demonstrated otherwise a very high level of commitment to what is best for the children. One illustration of this is that for a time, the father kept premises in T in addition to his residence in Canberra to spend time with the children on alternate weeks. An illustration of the mother’s commitment is her ability to be more practical and sensitive to the children in being more flexible when it comes to handover arrangements, such as altering the arrangements to allow the father to take the children to a football game. This is in comparison with the father who rigidly kept the handover arrangements in J Park and then travelling back to T with the children to meet a prior commitment. This shows insensitivity to the demands of travel upon the children and a lack of foresight or ability to communicate with the mother in even a business-like fashion to prevent the unnecessary obligation on the mother to meet them at J Park. In this regard, while it is a matter of degree, I believe that the mother has demonstrated a higher level of sensitivity and a higher appreciation of the emotional and psychological needs of the children. It is, however, a matter of degree.
Family Violence
I do not regard violence as a matter which bears upon my determination of what is in the children’s best interests in this case.
Avoiding further litigation
The Act says I should take account of the desirability of there being no further litigation between the parents. This is a truism. I cannot predict the future. Nor can anyone else. The future is undoubtedly in the hands of the parents. Conflict continues to operate at a reasonably high level as is illustrated by the persistence of this litigation and there is unquestionably ongoing significant acrimony between the parents. I hope that as a result of this judgment, they are prepared to move on and to accept the judgment as the resolution of the conflict which they were themselves unable to resolve. It would be in the children’s best interests for there to be no further conflict but in part because of the children’s immersion in that conflict so far, it is perhaps difficult to see how they will be able themselves to move forward with these orders.
Summary
In A v A(Relocation approach)[2] their Honours in the Full Court outlined an approach for dealing with matters where it was sought that children be relocated with one parent (or both in this case perhaps). The basic approach undertaken by their Honours is in part affected by the 2006 amendments to the Act. Nevertheless, the validity of comparing the proposals remains both common sense and good law.
[2] (2000) FLC 93-035
If the children were to remain with their mother in T, it would seem that the following would be the advantages.
·Stability and continuity: The children would remain in an environment in which they have principally been for some time;
·They would have their school and other friends and some continuity of the school itself.
·They would necessarily have to spend their time principally with their mother but for the reasons I have set out above, in my opinion, although it is a matter of degree, the mother is more sensitive to and more able to support their emotional and psychological needs.
The disadvantages of that arrangement would be:
·It would necessarily mean that they would spend less time with their father. The 9-5 arrangement, previously agreed between the parents was and would be unreasonably onerous on the father and would not be practicable in any event because of his removal from the T practice. I am also doubtful that he could in any event keep up the travel to and from T consistently with the development of his practice or career in Canberra.
·As a subsidiary disadvantage of this arrangement, it could be noted that the communication between the parents and the ability or willingness of the father’s attendance at the children’s sporting functions may not be all that good. Notwithstanding the father’s protestations, particularly in his most recent oral evidence about his willingness to be involved in the children’s sport, it seems to me that there has been some demonstration (as shown in cross-examination in this year) that this is either difficult or possibly inconvenient for the father and it may not be reasonable to expect him to traipse all over the Riverina following the boys for sport on weekends. Significantly, the parties appear to have failed adequately to communicate about arrangements as well.
·Finally, it should be noted that this arrangement would not accord with the strongly expressed views of G that he would attend G School.
By way of comparison, if the children were to live in Canberra, the advantages are as follows:
·G would be attending the school he wants to attend (for whatever reason). H would be involved on a change of school, change of environment, change of friends. The boys would be together. There would be less travel for both parents to enable them to see the children and effectively, each could be involved more particularly in the children’s extra curricular activities including sport. I do note however, that notwithstanding the strong submissions made in relation to availability of sporting activities in Canberra by Counsel for the father, no evidence was presented about this at all. It is reasonable that I could infer the sporting opportunities for the children will be no less in Canberra than they are in T.
The disadvantages of that arrangement are:
·Their father suggests that this would necessarily mean that the mother would move to Canberra (she confirms this) and he (and I suspect also she) would expect that the time that the children spend with each of them would be shared.
For reasons I have set out previously in my judgment, in my opinion, this is not an appropriate arrangement for these children at this point with their parents unable to cooperate or to communicate. In addition, the antipathy each expresses towards the other not only in the content but also in the fact that the mother refers to the father by his surname rather than by his first name, means, in my opinion, that the high level of cooperation that would make a substantially shared time arrangement between the parents work, is missing. Moreover, in my opinion, it seems inappropriate that they should have shared parental responsibility, except at a high level, because of the same inability to communicate and cooperate.
Accordingly, if the children move to Canberra, at least initially, they would live principally with their father. If their mother was to move to Canberra to be closer to them as she suggests she would do reluctantly, the alternative would be that they live principally with their mother in Canberra.
I take each of these possibilities separately. The advantages if they were to live principally with their father are:
·The benefit of the father’s new partner, with whom the children appear now, according to the family report, to have developed a good relationship.
The disadvantages of living principally with the father are, for the reasons I have set out above:
·It seems to me that they would be living with a parent who was less able than the other to provide the appropriate support for their emotional and psychological needs. They would have the advantage of the father’s new partner, with whom, according to the family report, the children appear now to have developed a good relationship.
·The father has moved house once already and is about to move again. There would be some instability associated with the children’s being with their father. Both would have to change schools.
If the children were living in Canberra and principally with their mother, the advantages are:
·The advantage of their remaining principally in her care as they would if they remained in T;
·The father’s requirement for travel would be reduced;
·The stability and continuity for the children would be disrupted in exactly the same way as if they were living with their father except with the mother there would at least be some continuity of the parent with whom they would be principally living.
The disadvantages would be:
·A change in accommodation, but by way of contrast this does not really significantly differ from the arrangements with the father apart form the mother’s “blank slate” about where and how she would obtain accommodation in Canberra.
·The schooling arrangements, as set out with the father would be the same, with the same advantages and disadvantages.
·If the children were living principally with their mother, their mother would have been forced into a situation of finding new accommodation, new employment or beginning a new practice against her stated will.
Comparing the two sets of arrangements, that is Canberra and T, the obvious contrast is between the continuity and stability of the boys in remaining in T in the environment in which they have been growing up.
The difference between the two arrangements would however mean that if they were to remain in T it would be contrary to G’s expressed wishes. He reasonably at his age, would like his wishes to be heard.
Notwithstanding the father’s apparent willingness to accept a situation in which the children might be separated from each other, it does not seem appropriate that that should occur in either case. This is borne out, not least, by the expert’s report and the family report.
If the children were to remain in T, the mother’s present arrangements would be undisrupted and she would not have been obliged to move by reason of the father’s decision to move. While it was superficially attractive to suggest that if the mother moved the children could then share a relationship and time and that the parents could share responsibility for them, in my opinion, for the reasons set out in this judgment, that shared arrangement cannot work under the present circumstances and hence the superficial attractiveness must be rejected.
It therefore seems to come down to three things. One, in my opinion, I find that the mother is better able to provide emotional and psychological support for the children. Two, G wants for whatever reason to go to G School and three, the children’s stability would be enhanced by their remaining in T.
Two of those factors of course would suggest that the children should remain in T. I therefore analyse that the remaining factor, to determine whether it and it alone should significantly out weigh he other factors.
G’s wishes, as I have commented above, are to some extent uninformed. It is reasonable that he should have a view and indeed a strong view about where he wants to go to school. If the parents were together, and had agreed that his views should predominate, this may be a decisive consideration. However, this is but one of the factors that I am obliged to take into account.
In addition, there is no doubt that G’s views about where he wants to go to school have been to some extent conditioned by the almost obsessive desire on the part of his father that G (and H for that matter) should go to G School. The father’s desire to see his children given the best possible education is to be commended. It is a view that both parents shared in the past and discussed and to some extent reached some agreement about. However, I am not convinced that the father’s investigation of this matter has in fact been as thorough as it might have been either and I am concerned that he has allowed his view to have such a significant effect upon G and his views. Moreover, I am concerned more particularly about the fact that at least for a time, it seemed that the father was prepared to allow this aspect of the matter to overbear what he saw otherwise as desirable, that is that the boys should remain together.
It must also be noted, that I have no objective evidence from either parent about the desirability or quality of the schooling that either of the boys might receive either in T or in Canberra. I accept that such evidence is not always easy to obtain, and simply quoting percentages of students who successfully move onto university would not in my opinion, provide a sound basis in making a decision. Nevertheless, it would seem to have been a relatively easy task to have obtained the prospectus for each of the schools which at least would have demonstrated the aspirational if not the practical consequences of attendance at each of them. Finally, it seems that G’s progress at T has been satisfactory notwithstanding the turmoil that has been existing since the beginning of the year.
The mother has indicated a willingness to reconsider his schooling as events change and that carried with it, impliedly, a consideration of how H progresses as well. Any order that I make at present can only apply at the present time for the immediate future. It may be that at some point perhaps in one or two years time, both parents become convinced that it is appropriate that G or H or both should attend a different school. Neither parent at present seems to think it would be appropriate for either of the boys to attend boarding school and given the affection and regard that the boys have for their parents, this is probably a sensible decision.
All in all, I do not believe that G’s views should prevail over the other considerations. I would like him to be informed by the family consultant in this matter that I have given very careful consideration to what he has said and what he wanted me to know. In the end however, I believe that it would be in his best interests for him and for H to live principally with their mother in T. In coming to that conclusion I have not discounted the inconvenience that necessarily causes to the father and the children in having to travel to spend time together regularly but I have to some extent offset that by the massive inconvenience that would have been caused to the mother in requiring her to sell her practice in T to establish a new practice or to obtain employment in Canberra and to move from T to Canberra when she did not and does not wish to do so.
The parents are agreed that if the children are to live principally with their mother in T that there will be a handover at J Park and it appears to be agreed that the children would spend every second weekend with their father from after school on Friday until Sunday evening. It is also agreed that they would spend substantial parts of the school holidays with their father. It is desirable in part that they should spend time with their friends in T as well but to the extent that their father is able to have time with them during school holidays it may be appropriate to have more than one half of the school holidays. This is not some form of compensation for him in these proceedings but rather recognition of the valuable role that he plays in the children’s lives as recognised by both the parents.
I remain deeply troubled by the fact that the parents are unable to communicate except by e-mail and that this was affirmed recently by the mother in her oral evidence. I cannot make the parents cooperate and I cannot make them communicate. It is a sad inevitable consequence of their antipathy that the children will suffer. It is not necessary that the parents should communicate on a friendly or mutually interested basis. It is however, necessary for them to advance the meaningful nature of their respective relationships with the children that they should be able to communicate at least in a business-like way so far as the children are concerned. The family consultant will discuss with them the benefit of attending some courses that may assist them to do this but ultimately it is a matter of their willingness to cooperate rather than some magic “bullet” of a course or a book that will help them to reach an awareness of the need to ultimately put the children’s needs ahead of their own.
I will leave the parents to develop in conjunction with their lawyers, the form of orders which will reflect the determinations which I have set out above.

Property Matters

In relation to property, it is necessary for me to follow the four stage approach set out on a number of occasions by the Full Court. These four stages are to identify the pool of property; to determine the contributions that each of the parties have made (in accordance with s 79 of the Family Law Act); and then to consider the division of property in the light of the financial circumstances of each of the parties (in accordance with s 75(2) of the Family Law Act) and finally, having come to a conclusion about these matters to determine whether in the circumstances such a division of property would be just and equitable.
In this matter, there is substantial agreement between the parties about the property to be divided between them. It has taken a long time for that to occur but nevertheless they are to be commended for finally reaching that agreement.
On the last occasion that the matter was before the court, Mr Brzostowski with the concurrence of Ms Proctor suggested that I should indicate generically the sorts of orders that I propose to make because the amounts in the various bank accounts had varied from time to time and the parties could then make precise orders or give me minutes of precise orders which would reflect the determinations I had made. Given that I have already, to some extent, made arrangements for the parties to finalise the terms of the orders about children, it is appropriate that I should follow a similar practice in relation to the property.
So far as I am aware, there are no longer any issues as such for me to decide in relation to the individual items of property. I therefore turn to the question of contribution. There is no basis in my opinion, for there to be any distinction between the parties so far as contributions are concerned. It may appear that the mother has made a higher contribution as homemaker and parent in that the bulk of that responsibility particularly since separation has fallen upon her. I do not however, interpret her submissions as seeking that I should give a greater credit to her for this and it seems to me that this case is a good example of the fact that the parents have reached agreement about the nature of the working arrangements between them and the sharing of the responsibility of the children. This is reflected in their acquiring wealth and practices and although there was some argument about the way in which some of these assets had been treated from time to time, in the end, in my opinion, the assets of the parties should be regarded as being equally contributed to by the parents.
So far as the matters under s 75(2) are concerned, it could be said as a result of the orders that I propose to make in relation to the children that the mother will have a higher level of responsibility in this regard than the father. I accept that this is the case but this is a matter of degree rather than of substantial difference. Each of them was capable of earning a significant income and the mother’s care of the children will not substantially affect her capacity to earn in her own right. The father’s ability to contribute to their support will be determined if necessary by the Child Support Assessment Act 1989 but I do not doubt that he will fulfil his financial obligations for the children.
By way of contrast with the mother’s perhaps increased obligations for the children, will be the father’s requirement to travel for the purposes of maintaining a relationship with the children to support their extra-curricular activities and to be with them in relation to sporting activities. These factors might be briefly summarised as the expenses and difficulty of the arrangements for the continuation of his relationship with the children. On balance, in my opinion, there should be no adjustment between the parties in relation to the s 75(2) factors.

In the end, looking at the division of property as both parties propose, each of the parties will have an opportunity to be properly accommodated. Each of the parties will have reasonable remuneration. Each of the parties will be able to make some provision for the future through their superannuation and each of the parties will bear financial responsibility for the children. Accordingly, in my opinion, the draft orders that have previously been put forward, which are the subject of substantial agreement between the parties as to form and division of property, represent a just and equitable division of property between the parties and I will make orders to reflect that when they are presented in a final form by the parties lawyers.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.
Associate:
Date: 30 April 2008

[2008] FamCA 410

30 April 2008

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Jurisdiction