Yarrow & Yarrow
[2021] FedCFamC2F 651
•24 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yarrow & Yarrow [2021] FedCFamC2F 651
| File number(s): | HBC 188 of 2020 |
| Judgment of: | JUDGE TAGLIERI |
| Date of judgment: | 24 December 2021 |
| Catchwords: | FAMILY LAW – Parenting – where the presumption of equal shared parental responsibility does not apply due to family violence – sole parental responsibility for educational matters – otherwise equal shared parental responsibility is in the children’s best interests. FAMILY LAW – Parenting – with whom children live – where mother seeks to relocate to the Country D with the children – where father opposes relocation and seeks that children live in Australia – where parties previously resided in the Country D and the children were born in there – conflicting positions by mother about relocating to the Country D if children not permitted to do so – finding that relocation is in not the children’s best interests – relocation not permitted –children to live with the father and spend time with the mother in the event that the mother relocates to the Country D. FAMILY LAW – Property – 13 year relationship – one pool approach – where parties hold real property and superannuation and non-superannuation interests in Australia and the Country D – orders made adjusting the parties’ assets – a just and equitable adjustment requires distribution of 54% in favour of father and 46% in favour of mother if mother relocates or 57% in favour of the mother and 43% in favour of the father, if the mother does not relocate – orders accordingly. |
| Legislation: | Child Support (Assessment) Act 1989 (Cth), s 29A Evidence Act 1995 (Cth), s 140 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 8.04 Family Law Act 1975 (Cth), ss 60B(1), 60CA 60CC, 65DAA 65DAC Superannuation Industry (Supervision) Act1993 (Cth), s 19 |
| Cases cited: | A & A: Relocation Approach (2000) FLC 93-035 Bevan and Bevan (2013) FLC 93-545 Dieter & Dieter [2011] FamCAFC 82 |
| Division: | Division 2 Family Law |
| Number of paragraphs: | 219 |
| Date of hearing: | 7-9 September 2021, 15 September 2021, 15 October 2021, and 2 November 2021 |
| Place: | City E |
| Counsel for the Applicant: | Mr P Theobald |
| Solicitor for the Applicant: | R Lawyers |
| Counsel for the Respondent: | The Respondent in person |
| Counsel for the Independent Children's Lawyer: | Ms M Ryan |
ORDERS
| HBC 188 of 2020 | ||
| FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) | ||
| BETWEEN: | MR YARROW Applicant | |
| AND: | MS YARROW Respondent | |
| AND | INDEPENDENT CHILDREN’S LAWYER | |
ORDER MADE BY: | JUDGE TAGLIERI |
DATE OF ORDER: | 24 DECEMBER 2021 |
THE COURT ORDERS THAT:
That all prior parenting orders in relation to the children W (born in 2013) and X (born in 2016) be and are hereby discharged.
That subject to order 3, Mr Yarrow (“the Father”) and Ms Yarrow (“the mother”) have equal shared parental responsibility for the children W (born in 2013) and X (born in 2016) (“the Children”).
That the father have sole parental responsibility for decisions relating to the children’s primary school education, attendance at B Primary School and extra-curriculum activities undertaken in connection with the school.
That the Father shall inform Ms Yarrow (“the Mother”) of all major long-term decisions and significant issues relating to the children’s primary schooling and extra-curriculum activities undertaken in connection with the school and provide the Mother with advance notice of any changes, as soon as practicable and no later than within 3 days of the change occurring.
THAT the Parents are not required to consult the other when making decisions while the Children are in their care under Order 6 and 7 about issues that are not major long-term issues.
THAT until the mother relocates to City C or if she does not relocate, the children are to live with and spend time with each parent as follows:
(a)During school terms on a rotation of 8 nights in the mother’s care and 6 nights in the father’s care, commencing from and including 26 December 2021.
(b)Half of each term school holiday, the precise arrangements for which are to be agreed between the parties in writing and in default, the mother will have the children for the first week of the holidays and the father for the second week;
BUT subject to the orders below about special occasions;
(c)Half the gazetted Christmas/end of year school holiday, the precise arrangements for which are to be agreed between the parties in writing and in default, the mother will have the children for the second half of the holidays and the father for the first half; BUT subject to the orders below about special occasions.
(d)At Christmas in odd numbered years, on December 24th with the father and on December 25th from 8.30am to 8.30pm with the mother;
(e)At Christmas in even numbered years, on December 24th with the mother and on December 25th from 8.30am to 8.30pm with the father;
(f)At Easter in even numbered years from Thursday before Good Friday at 5:00pm until the Tuesday following Easter at 5:00pm with the Father;
(g)At Easter in odd numbered years from Thursday before Good Friday at 5:00pm until the Tuesday following Easter at 5:00pm with the Mother;
(h)Such other or alternate times as agreed between the parties in writing.
(i)Changeover for the children to be at 5.00pm, except in the case of subparagraph (d) and (e);
(i)with the mother collecting the children at the father’s home at the commencement of her time with the children; and
(ii)the father collecting the children from the mother’s home at the conclusion of her time with them.
That if and after the mother relocates to City C, the children are to live with the father and spend time in person with the mother as follows:
(a)In City E or if agreed in writing, another part of Australia during the Tasmanian Easter school holidays in 2022;
(b)In City E or if agreed in writing, another part of Australia during the Tasmanian July term school holidays in 2022;
(c)In City E or if agreed in writing, another part of Australia commencing mid-December 2022 for 5 weeks;
(d)After February 2023:
(i)Either in City E, City C or if agreed in writing, another part of Australia during the Tasmanian Easter school holidays;
(ii)Either in City E, City C or if agreed in writing, another part of Australia for 4 weeks in the Tasmanian Summer school holidays and then 5 weeks in alternate years thereafter during the Tasmanian summer school holidays;
Transport and travel arrangements when and if the mother relocates to City C
That for the purpose of facilitating the mother’s time with the children pursuant to order 7, the children are permitted to travel overseas to City C provided:
(i)that the children are accompanied by one of their parents or a responsible adult agreed to by prior written agreement of the parties;
(ii)that the father is not required to facilitate the mother’s time with the children pursuant to order 7 or make them available to travel outside of Tasmania to a “hot spot” as declared by the Department of Health of the Commonwealth of Australia or the Tasmanian Government,
That for the purpose of facilitating the mother’s time with the children pursuant to order 7, the children’s passports (Australian, Country D and Nationality K) are to at all times be held by the father and the Registry Manager is authorised to release to the father the passports currently held pursuant to the interim order 5 of the Orders made on 24 April 2020.
That the mother will ensure that the children’s passports return with them to City E, following any period spent in City C with the mother pursuant to order 7.
That the costs of travel, including airfares and any Covid-19 related expenses are paid equally by the parties and for the purpose of paying such expenses the parties may agree to use part or all of the monies referred to in order 29.
Facilitating children’s arrangements
Each party is to advise the other party of any change or residence telephone number or contact email address within 24 hours of such change.
The parties will communicate with each other for all urgent matters regarding the children by way of text message and for this purpose, each party will ensure that at all times they will have reasonable access to a functioning mobile telephone, capable of both giving and receiving calls.
The parties will communicate with each other for all non-urgent matters regarding the children by way of email and for this purpose, each party will ensure that at all times they will have reasonable access to a functioning email account.
When the children are not spending time with the mother as provided in order 6 or 7, the children are to communicate with the mother by telephone or video call between 6:30pm and 7:30pm (Australian Eastern Standard Time ) on any 3 nights of the 7 night week; and
(a)The parties are to agree in writing which nights of the week the telephone or video call is to be made and the device or mobile number on which the children are to be contacted;
(b)the mother is to initiate the communication/telephone call; and
(c)the father is to ensure, except in the case of emergency or real and genuine difficulty, that the telephone or electronic device agreed to be used is fully charged, operational and that the initiated communication/telephone call is answered.
Further and in addition to the time referred to in 15, the children may communicate and spend time with the mother by telephone or video call at any reasonable time as requested and on such request, except in the case of emergency or real and genuine difficulty, the father will ensure that the children communicate with the mother.
Each party will be permitted to remove the children from the State of Tasmania for the purpose of a trip within Australia, providing:
(a)The duration of the absence does not interfere with the live with and spend time arrangements for the children provided for in order 6; and
(b)A written itinerary is provided to the other party at least 14 days prior to departure, identifying the dates of travel, transport to be used and the location the children will be mostly staying during the trip;
(c)For the purpose of this order, neither parent is required to facilitate the children’s travel outside of Tasmania to a “hot spot” as declared by the Department of Health of the Commonwealth of Australia or the Tasmanian Government.
That the parents will each inform the other as soon as practicable of any significant injury, illness or threat to the welfare of the Children and if taken to hospital, then which hospital the child is being seen at.
That each of the parents ensure both parents contact details are provided to and listed with the Children’s school(s), medical and allied health providers.
That both parties are to ensure that they keep the other informed by email or text about treatment recommended by a medical or health professionals relating to any condition affecting the children and follow reasonable recommendations provided by the professionals, including as to:
(a)W’s Medical condition 1; and
(b)X’s Medical condition 2; and
(c)Medical condition 3.
That subject to the school(s) agreement and in accordance with any direction provided by the Children’s school(s) or Education Department, each parent is permitted to request from the Children’s school(s) the Children’s school reports, copies of notices, invitations, school reports, newsletters, photograph order forms and all other documents ordinarily provided to parents, and this Order acts as an authority for same.
That subject to the school(s) agreement and in accordance with any direction provided by the Children’s school(s) or Education Department each parent is hereby authorised to attend the Children’s school activities to which parents are invited, including but not limited to sporting events, concerts and assemblies.
Restraints & Responsibilities
That the parents advise the other parent of any change in contact details, including residential address, email address and telephone number within 24 hours of such change occurring.
That the parents will use civil and respectful language when communicating with any service provider connected to the Children, including, but not limited to the children’s school, doctors and dentists.
That pursuant to s68B of the Family Law Act 1975 for the personal protection of the parties and the children each party is restrained by injunction from making any denigrating critical, abusive, insulting, belittling, or negative comments in relation to any other party or members of any other party’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of another party) to or in the presence or hearing range of either Child or via written correspondence or on social media which may be viewed or accessed by the Children.
The father shall not consume alcohol to the extent that he is unable to care for the children (must not exceed 0.05), or consume illicit substances whilst the children are in his care.
Both parties are to enrol in and complete a co-parenting separately course within 6 months of the date of these orders, which course is to include a component directed towards achieving and improving appropriate and effective communications with the other party.
The mother is to engage in regular psychological treatment with a suitably qualified clinical psychologist for a period of no less than 6 months and follow the psychologist’s treatment and recommendations to address:
(a)traits, behaviours or personality style likely to hamper effective communication and resolution of differences of opinion with others;
(b)rigid thinking or disproportional concerns of perceived risk of harm to the children’s physical needs or well-being.
Property orders
That within 28 days the parties do all things necessary to cause the sum of $10,000 to be paid from the father’s Bank E Account to a joint account with the Commonwealth Bank of Australia in City E with both parties as signatories, which sum is to be held in trust for the benefit of the children.
THAT the property known as and situate at F Street, City E in Tasmania, being all that property comprised in Certificate of Title Volume xxxx Folio xx (“the City E Property”), is to be sold forthwith and for that purpose the parties are to each do all which is necessary to effect the sale of the property including:
(a)THAT within 21 days from the date of this Order the Parties shall jointly appoint by agreement a real estate agent (“the Australian Agent”) as the sole agent to act on behalf of the Parties for the sale and in default of agreement between the Parties about the Australian Agent to be appointed, either party may request the President of the Real Estate Institute of Tasmania, or their nominee, to determine and appoint a real estate agent and the cost of the President’s determination must be shared equally between the Parties.
(b)THAT the following provisions shall apply in relation to the sale of the F Street, City E Property:
(i)The Parties shall forthwith sign all documents as requested by the Australian Agent in relation to the sale of the City E Property.
(ii)The Parties will accept all reasonable recommendations of the Australian Agent with respect to the sale of the City E Property, including the marketing.
(iii)All details of the sale of the City E Property, including but not limited to marketing price, method of sale, method of advertising and sale price, shall be as agreed between the Parties in writing and in default of agreement, as determined by the Australian Agent.
(iv)The reserve price of the City E Property shall be as recommended by the Agent, or as otherwise agreed between the Parties in writing, and failing agreement, the parties shall arrange a joint valuation with a valuer nominated by the President of the Real Estate Institute of Tasmania at the joint cost of the parties.
(c)The Parties shall co-operate in every way with the Australian Agent during the sale of the City E Property, including (without limiting generally the foregoing):
(i)making the key/s available to the Australian Agent;
(ii)allowing the inspection of the City E Property at all reasonable times as requested by the Australian Agent by private appointment;
(iii)ensuring the City E Property, is in a neat and clean condition at the time of inspection by the Australian Agent and prospective purchasers;
(d)as the mother currently resides in the City E Property, she must permanently vacate it by no later than 28 February 2022 and the date of completion for the sale of the property will not be any sooner than this date.
(e)The mother will vacate the City E Property during scheduled viewings/inspections of the City E Property and will not be present during viewings/inspections of the City E Property.
(f)The Parties must appoint R Lawyers to act in the conveyancing for sale of the City E Property, and if the mother refused to do so, this order is to be taken as authority for them to act.
Upon completion of the sale of the City E Property pursuant to these Orders, the proceeds of sale are to be applied and paid by R Lawyers as follows:
(a)First, to discharge the mortgage in favour of the Commonwealth Bank of Australia presently secured over the Title to the City E Property, being mortgage number xxxx;
(b)Second, in payment of the Australian Agent’s costs of the sale, including commission and advertising expenses;
(c)Third, in payment of all reasonable legal costs and disbursements incurred in relation to the sale;
(d)Fourth, in payment of any outgoings payable, including arrears for the same, during the course of the conveyance, including but not limited to council rates, land tax, and water and sewerage rates; and
(e)Fifth, the balance sale proceeds are to be paid and distributed to achieve a distribution of 54% to the father and 46% to the mother.
THAT from the date of these Orders until completion of the sale and transfer of the City E Property the mother shall be solely responsible for all presently outstanding and future demands for outgoings and utility expenses, including arrears, with respect to the City E Property, including but not limited to mortgage loan repayments, council rates, land tax and insurance premiums.
THAT the property known as and situate at G Road, City C in the Country D (“the City C Property”) is to be sold forthwith and for that purpose the parties are to each do all which is necessary to effect the sale of the property including:
(a)THAT the father and the mother (hereafter referred to as “the Parties”) do all such acts and sign all such documents as may be required to ensure that the property known as and situate at G Road, City C in the Country D (“the City C Property”) is listed for sale within 21 days from the date of these Orders.
(b)THAT within 21 days from the date of this Order, and unless a Real Estate Agent has been agreed between the Parties’ in writing, the Parties appoint H Estate Agents (“the Agent”), as the sole agent to act on behalf of the Parties for the sale of the City C Property and the following shall apply in relation to the sale of the City C Property:
(c)a. The Parties shall forthwith sign all such reasonable documents as requested by the Agent in relation to the sale of the City C Property;
(d)The Parties will accept all reasonable recommendations of the Agent with respect to the sale of the City C Property, including the marketing.
(e)All details of the sale of the City C Property, including but not limited to marketing price, method of sale, method of advertising and sale price, shall be as agreed between the Parties in writing and in default of agreement, as recommended by the Agent;
(f)The Parties will agree on a sale price of the City C Property as may be nominated by the Agent or as otherwise agreed between the Parties in writing, and failing agreement, the value shall be determined by a valuer/surveyor as may be nominated by the T Surveyors at the joint cost of the parties;
(g)The Parties shall co-operate in every way with the Agent, including (without limiting generally the foregoing):
(i)making the key/s available to the Agent;
(ii)allowing the inspection of the City C Property at all reasonable times as requested by the Agent by private appointment;
(iii)ensuring the City C Property, including the grounds are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers.
That the mother is not to occupy the City C Property in the event that she relocates to City C before it is sold.
Upon completion of the sale of the City C Property pursuant to order 33, the proceeds of sale will be paid and distributed in the following manner and priority:
(a)First, to discharge the mortgage in favour of Bank E presently secured over the Title to the City C Property;
(b)Second, in payment of real estate agent’s costs of the sale, including commission and advertising expenses;
(c)Third, in payment of all reasonable legal costs and disbursements incurred in relation to the sale;
(d)Fourth, in payment of any outgoings payable, including arrears for the same, during the course of the conveyance, including but not limited to council tax, land tax, and water and sewerage rates;
(e)Fifth, such estimated sum which is owing, or becomes owing, for Capital Gains Tax liability in relation to the sale of the City C Property, which is to be transferred to R Lawyers, as solicitors for the father, to be held in trust, pending determination of the Capital Gains Tax Liability Amount; and
(f)Sixth, the balance sale proceeds is to be transferred and held in the trust account of R Lawyers, to be distributed in accordance with the terms of these orders and to achieve an overall and final adjustment of the net pool of assets as identified in the schedule marked “A” and the judgment;
(g)Despite subparagraph f of this order, if the parties notify R Lawyers and agree in writing that a partial distribution can be made of the balance sale proceeds before the final distribution, Wallace, Wilkinson and Webster are to make a partial distribution accordingly but are not required to make the partial distribution if the parties have not agreed all terms of such partial distribution, including the amount.
That if by 4pm 31 January 2022, the mother files with the court and serves on the father’s solicitors, a written undertaking that she will not relocate to City C earlier than 31 December 2025, a final distribution of the balance proceeds of sale of the City C property according to Order 35 is to be made so to achieve a final adjustment of the parties total net assets as identified in the schedule marked “A” which amounts to 57% to the mother and 43% to the father.
Note: if the mother files the undertaking referred to in this order after 4pm on 31 January 2022 or in terms inconsistent with this order, the final distribution of the balance proceeds of sale of the City C property are to be made in accordance with order 37.
That in the event that the mother does not comply with order 36, the final distribution of the balance proceeds of sale of the City C property is to be made so to achieve a final adjustment of the parties total net assets as identified in the schedule marked “A” which amounts to 54% to the father and 46% to the mother.
The parties are to each do all that which is necessary, including signing all documents, giving authorisations or taking any other actions to give effect to these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the Yarrow & Yarrow pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These are parenting and property proceedings between Mr Yarrow (“the father”) and Ms Yarrow (“the mother”). The parenting application concerns two children, W born in 2013 (“the elder child”) and X born in 2016 (“the younger child”)(collectively “the children”). The parties had another child, Y, who was stillborn in 2010.
The father was born in Australia and is currently aged 47, and he holds an Australian and an Nationality J passport. He moved to Country D (“Country D”) in 2002. He is presently employed as a professional.
The mother was born in Country K and is currently aged 48. She is a Country K citizen and is living in Australia as a permanent resident. She is presently unemployed.
The parties commenced cohabitation in City C, Country D in 2007 and married in Country K in 2008. They predominantly resided in City C until 2017, at which time they spent about 12 months in Country K before moving with the children to Tasmania, Australia. Until their separation, they had been in a relationship for approximately 13 years.
It was common ground that the father moved out of the family home in 2020. The father commenced proceedings by way of an Initiating Application filed in the Federal Circuit Court of Australia (as it was then) on 5 March 2020 seeking final and urgent interim orders. The mother filed a Response on 7 April 2020.
Following a hearing on 29 April 2020, interim orders were made by her Honour Judge Baker on 29 April 2020 that, amongst other orders:
·The parties have equal shared parental responsibility for the children;
·The children live with the mother and spend time with the father for five nights a fortnight;
·Neither party remove the children from the State of Tasmania; and
·The Registry Manager of the City E Registry of the Court hold the children’s passports.
Such interim orders remained in place at the time of the final hearing in September 2021.
The matter was initially listed for final hearing commencing 6 May 2021 before her Honour Judge Howe, however the hearing was vacated on that day and a number of other orders made, including for the appointment of an Independent Children’s Lawyer (“ICL”) and the valuation of real property in Australia and Country D. The orders of 6 May 2021 also relisted the matter for final hearing commencing 7 September 2021.
At trial the father was represented by Counsel, Mr Theobald, the mother was self-represented and Ms Ryan appeared as the ICL. The trial took place over six days, culminating in final submissions on 2 November 2021.
PARENTING
Issues at trial
In the parenting proceedings, the salient issues to be determined were those usefully cited in the ICL’s case outline filed on 6 September 2021. They are:
·Whether it is in the best interests of the children to relocate to Country D with the mother to live;
·Whether, if the children remain living in Tasmania, it is in their best interests to live primarily in the father’s care;
·Whether it is in the children’s best interests that their parents have equal shared parental responsibility for them or that the father has sole parental responsibility as to education and health as the ICL seeks or blanket sole parental responsibility as the father initially sought; and
·If the children live in a different country to one of the parents, how is the travel to facilitate spend time arrangements with the children to be paid.
There was an abundance of evidence received during the trial, in affidavit and viva voce form. Ms L (“the Family Reporter”), the Court Child Expert who authored the Family Report dated 21 October 2020, also gave evidence and her report was received in evidence.
In the case of the mother’s trial affidavit,[1] counsel for the father indicated that although he considered many sections to be objectionable, in view of section 69ZT of the Family Law Act 1975 (“the Act”), he did not oppose the affidavits being read in the proceedings on the basis that I should give weight to the evidence assessed at my discretion after considering a list of objections he would provide in closing submissions.[2]
[1] Amended of the mother filed 26 August 2021.
[2] Two pages handed to the Court during submissions on 2 November 2021 and titled ‘Applicant’s List of Objections to paragraphs in the Respondent’s Trial Affidavit’.
Relevant Law and Principles
In parenting proceedings, the paramountcy principle applies and the court is required to make orders that are in the best interests of the child/children.[3] Express direction is provided in section 60B(1) of the Act that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interests. The court is to inform itself of the child’s best interests by the considerations in section 60CC(2) and (3) of the Act.
[3] Section 60CA of the Act.
Section 60CC(2) requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in section 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[4]
[4] Aldridge &Keaton (2009) FLC 93-421; Slater & Light [2011] FamCAFC 1.
The evaluation of risk of harm required by subparagraphs (a) and (b) of section 60CC(2) is a challenging one to be undertaken on the basis of findings of fact about the nature and degree of risk of harm to the child and the likelihood of it eventuating.[5]
[5] Dieter & Dieter [2011] FamCAFC 82 and Marvel & Marvel [2010] FamCAFC 101.
In addition to the foregoing, the Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[6] This presumption accords with the objective referred to in section 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[7]
[6] Section 61DA(1) -61DA(4) of the Act.
[7] Sections 61B and 65DAC of the Act.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interests and if practicable, make such an order.[8]
[8] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of the phrase substantial and significant time is provided for in subsection 65DAA(3).
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in section 65DAA are to be applied and I have had regard to that authority.[9] I am also mindful of the required decision making pathway established in Goode & Goode [2006] FamCA1346. All the considerations in section 60CC are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in section 61DA(1) does not apply by virtue of section 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
[9] Especially at [9], [12], [13] and [14].
Relocation principles
In cases such as this, where one parent seeks an order that the children live with them in another country, it is common to refer to the matter as a ‘relocation case’. Despite this, it is established that the Court’s over-riding task is to make parenting orders about residency and parental responsibility that are consistent with the best interests of the children.[10] Indeed, in B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755, Nicholson CJ, Fogarty and Lindenmayer JJ said that:[11]
… it is noted that relocation cases are not some separate category within the Family Law Act, to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children but within a particular context and, as with any other relevant case relating to children within the jurisdiction of this Court, is to be determined in accordance with the principles contained in that Part …
[10] A & A: Relocation Approach (2000) FLC 93-035; Taylor and Barker (2007) FLC 93-345.
[11] At 84,194.
Their Honours Bryant CJ, Faulks DCJ and Finn J in Taylor & Barker [2007] FamCA 1246 gave guidance as to the approach which courts are to take in such matters, saying:
62.…given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.’
Further, in Star & Duggan [2009] FamCAFC 115, their Honours Boland, Thackray & Watts JJ outlined a ‘logical approach’ in addressing the relevant legislative provisions at [38], being to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
This methodology was affirmed in Hepburn & Noble [2010] FamCAFC 111 as favourable over the previous approach in A & A: Relocation Approach (2000) FLC 93-035.
Importantly, in determining what course is in the best interests of the children, the Court cannot hear the issue of relocation discretely from other applications as to where and with whom the children ought to live. Their Honours said in Taylor & Barker:
53.We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
THE OPPOSING CASES
The Father’s Case
The Application by the father initially sought sole parental responsibility along with live and spend time with orders for the children based on three alternative scenarios: the first premised on the children staying in City E and living between him and the mother; the second premised on the children relocating with the mother to live inCountry D; and the third premised on the mother relocating without the children to Country D.
The father relied on his lengthy trial affidavit filed 10 August 2021 and his counsel tendered the following documents:
(a)Exhibit 1: Letter from the father’s solicitors to the mother dated 25 June 2021, regarding the parties’ property at G Road, City C (“the City C property”);
(b)Exhibit 2: Letter from the father’s solicitors to the mother dated 13 August 2021, regarding the City C property; and
(c)Exhibit 3: Email from the mother to the father’s solicitors, being a one page email with multiple pages of attachments including information on valuations, shares, superannuation, and disclosure of finances.
By the time his counsel made submissions in closing, the father had adopted a position consistent with that of the ICL concerning parental responsibility. Namely, that the parties should have equal shared parental responsibility except in relation to education and health decisions.
It was also apparent that the father relied on the views of the Family Reporter who had prepared a Family Report dated 14 October 2020. The Family Reporter gave evidence during the course of the ICL’s Case.
The Mother’s Case - Parenting
Although the mother seeks an order to relocate with the children to Country D, during the trial, I had not understood her position to be that she would move to Country D regardless of whether I made orders that the children live with her there. Her evidence suggested that she may reconsider her preference to live in Country D if I refused to make the orders she primarily seeks. She stated when questioned by counsel for the father:
You are contemplating – if her Honour says the children stay in City E, you are contemplating going to Country D without them, aren’t you?‑‑‑Possibly. Possibly. That’s some – some of the orders I ‑ ‑ ‑
…
The orders you’ve put there don’t contemplate what would happen if her Honour left ‑ ‑ ‑?‑‑‑Because ‑ ‑ ‑
‑ ‑ ‑ the children here?‑‑‑Because, actually, the decision, in my opinion, should be whether the children should be with me or the father, given that I want to relocate for obvious reasons, being, one, employment; second, the situation with the ‑ ‑ ‑
Would you just slow down and explain that again for me?‑‑‑So this case, in my opinion ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ about relocating the children ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ I would like to ask the judge to consider whether the children should live with me or with Mr Yarrow, given that I would like to relocate to City C, where we came from in the first place ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ previous to the separation. And – and where I got my network of family and friends there in Country D, or within another way – that means Country K. So the point is not, like, me – “Hey, I’m going to City C,” all of a sudden, and here, Judge, is your decision. This has been going for on, like, for two years – two and a half years of my life, and it has been delayed – delayed because we were negotiating. The – those negotiations never reached the point – not even when I suggest to Mr Yarrow, “I stay here. Do not – let’s not sell the house in City C. Just pay me for a maintenance – a one-off maintenance for travel.” I wasn’t even contemplating this post-maintenance, and then I was forced to think outside the box and thought, “You know what? If, then, I need to prove why they should need to come to City C, let them prove why the children should be living without their mother in – in – in all that”, because that is the point. The point is not about me – the freedom of me moving to City C or in City FF, where I can get access to day care. The point here – the first point here, I think, is to decide whether I am – whether the children should come with me – live with me, because their age, because their attachment, not because they – you know, the lack of activity Mr Yarrow might do or – or because Mr Yarrow, you know, doesn’t drink too much any more. The – the point is should the children be with me, given the – the background, given all the other factor I put on the case summary, or not. Then – then we discuss whether and when we can relocate to City C in a – possibly, in a very civil and amicable matter, because that’s the aim.
…
Just a minute. So I read into that – and I may be wrong, and this is your opportunity to tell me if I am. I read into that that it is your intention, if the children stay with their father here in City E, to go to City C anyway?‑‑‑I think you misread it – or it was not my intention to make you read it that way. If the children ‑ ‑ ‑
So what are ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ need to stay in the ‑ ‑ ‑
What are your intentions if the children stay with their ‑ ‑ ‑?‑‑‑Well, first of all ‑ ‑ ‑
Or are placed with their father?‑‑‑ ‑ ‑ ‑ I would assume not to put the order because it’s the judge that need to make the order, and I do not the law here that well to come up with some orders. I would expect that the judge, given the children age, would not suggest that I see the children – or the children see the mother one month per year. Okay. I would suggest that she would be more – I don’t know. It’s a difficult job.
It’s an awful choice?‑‑‑It’s ‑ ‑ ‑
Yes?‑‑‑It’s – it’s a difficult job I put the judge to think about, but we really cannot come up with this. Mr Yarrow and I are not able to come up with the solution that makes us happy. [emphasis added]
The mother’s replies, highlighted in bold font above, imply that the mother would not necessarily relocate to City C if the Court orders that the children live in Australia. It seems that she may have understood that the Court’s task when making parenting orders about the children, including where they should live and with whom, based on its assessment of what was in their best interests, while not disregarding entirely her preference to live in Country D for personal and financial reasons.
Despite the above, in closing submissions made to the Court, the mother’s position was fixed. She failed to make submissions when invited on a number of occasions about what live with and spend time with orders she sought for herself and the children in Tasmania, if the Court concluded that the children were not permitted to live with her in Country D.
The mother consistently has sought an order for equal shared parental responsibility. In her Case Outline filed 6 September 2021, she also proposes orders according to three alternate scenarios. Scenario A and B both seek orders that the children live with the mother in City C and alternatively orders for the father to spend time with the children based on whether he too relocates to City C or remains in Australia. Scenario C is premised on the alternative that the children are not permitted to live with the mother in City C, in which event she seeks orders that the children live with the father in City E and live with the mother during the Tasmanian school holidays, without specifying where.
In the parenting proceedings, the mother filed and relied upon a large volume of material and relied on subpoenaed documents. They were:
(d)Amended Response to Amended Initiating Application filed 26 August 2021;
(e)Notice of Risk filed 7 April 2020;
(f)Amended final affidavit of the mother filed 26 August 202l;
(g)Affidavit of the mother filed 3 September 2021;
(h)Documents received from Tasmania Police pursuant to subpoena filed 20 May 2020;
(i)Documents received from Tasmania Police pursuant to subpoena filed 23 April 2021;
(j)Documents received from Tasmania Police pursuant to subpoena filed 18 August 2021;
(k)Documents received from Child Safety Services pursuant to subpoena filed 18 August 2021;
(l)Documents received from the Department of Education pursuant to subpoena filed 20 April 2021 (“the first DoE subpoena”);
(m)Documents received from the Department of Education filed pursuant to subpoena filed 11 August 2021 (“the second DoE subpoena”);
The mother’s affidavits were read into evidence, subject to the proviso referred to at [12] of these reasons. As the volume of subpoenaed documents sought to be relied upon were excessive, in cases duplicates and voluminous, I directed that if the mother wanted the Court to have regard to the documents, she ought to specifically identify and emphasis which of those to the court.
Without objection from counsel the Court provided practical assistance to the mother to compile the subpoenaed documents she identified from the Department of Education. The mother tendered into evidence the following:
(a)Exhibit 1: Mother’s handwritten list of documents from the second DoE subpoena;
(b)Exhibit 2: Bundle of documents from the second DoE subpoena, as identified in Exhibit R-1;
(c)Exhibit 3: Email sent on 9 February 2021 by school to parents regarding the Welcome BBQ on 11 February 2021;
(d)Exhibit 4: Email from Ms N to the mother dated 9 February 2021 regarding the younger child settling at school;
(e)Exhibit 5: Email from Ms M to the mother dated 14 December 2020 regarding staffing of the uniform shop;
(f)Exhibit 6: Letter from Mr P addressed ‘Dear Parents/Carers’ dated 24 August 2020 regarding a stranger taking photographs of children on school grounds;
(g)Exhibit 7: Eight pages relating to emails and letters between the mother and the B Primary School (“the school”) and Learning Services and the Minister for Education and others;
(h)Exhibit 8: Four pages relating to emails between the mother and the school and Learning Service and the Minister for Education and others;
(i)Exhibit 9: Three pages relating to emails between the mother and the school and Learning Service and the Minister for Education and others;
(j)Exhibit 10: Seven pages of emails relating to nominations for the school’s School Association;
(k)Exhibit 11: Three pages of emails relating to the mother’s request for a statement of reasons for the Trespass Notice issued against her by the school;
(l)Exhibit 12: Seven pages of emails between the mother, the O Childcare Centre (“the childcare centre”) and school personnel dated 15 December 2020 and 17 December 2020, regarding the kinder class 1 placement of the younger child and potential enrolment at two schools;
(m)Exhibit 13: Plan of the school with annotations; and
(n)Exhibit 14: Email exchange between the mother and the childcare centre dated 2 August 2021.
At the core of the mother’s case are the following summarised contentions about what she asserts is in the best interests of the children according to the relevant considerations in the Act:
(a)She has been the children’s primary carer and has a special and unique bond with them;
(b)The father has perpetrated family violence against her, which has been observed by the children;
(c)The father had not been engaged as a parent in caring for the children in a meaningful way until separation;
(d)The father has abused alcohol and does not present as a good role model for the children;
(e)She feels alienated and has no supports, family or friends in City E or Australia and could provide for the children better financially, physically and emotionally in Country D;
(f)If the children live in City E, they will not have the opportunity to experience and promote their Nationality K culture and heritage; and
(g)She and the children have been discriminated against on the basis of race and that there is a lack of acceptance of cultural diversity in City E.
She argues that all the above mean that the children should be permitted to relocate to Country D with her.
The ICL’s Case
The ICL opposed an order that the children relocate to Country D and submitted that the children should live with the father in City E. However, she also submitted that the Court should make orders about the children spending time with the mother premised on three alternatives: the mother moving to Country D, the mother remaining in City E, and the mother living in another Australian city within three hours travel of City E.
The mother was closely cross-examined in regard to events and circumstances that were to be the subject of evidence adduced by the ICL in her case. The cross-examination was extensive, although somewhat shortened due to my intervention when the demeanour of the mother and ICL became combative. The following exchange occurred:
HER HONOUR: All right. I’m just going to interrupt here. I have some concerns that we’re going to go blow-by-blow through everything that has occurred between the school and this witness. Can we just – could Ms Yarrow please just address this question, in a simple yes or no answer? Given everything that has occurred between you and the school to date, do you accept that there are real communication problems between the two of you – regardless of who’s at fault?‑‑‑Yes.
Okay. And given those communication problems, do you accept that it’s a barrier to you being directly involved, and solely involved – or even partly involved in decision-making about the children’s education?‑‑‑No.
The ICL also cross-examined the father and the relevant aspects of his evidence are referred to elsewhere in these reasons.
The ICL called evidence from nine witnesses who worked at the school. The affidavits read and witnesses called were:
(a)Affidavit of Ms Q filed on 25 August 2021;
(b)Affidavit of Ms R filed on 25 August 2021;
(c)Affidavit of Ms S filed on 25 August 2021;
(d)Affidavit of Ms T filed on 25 August 2021;
(e)Affidavit of Ms V filed on 25 August 2021;
(f)Affidavit of Ms BB filed on 25 August 2021;
(g)Affidavit of Ms CC filed on 25 August 2021;
(h)Affidavit of the principal filed on 25 August 2021;
(i)Affidavit of Ms DD filed on 25 August 2021; and
(j)Affidavit of Mr EE filed on 31 August 2021.
The ICL tendered a number of documents and subpoenaed material, being:
(a)Exhibit ICL-1: A Child Safety Services (“CSS”) referral from Tasmania Police dated 23 September 2019;
(b)Exhibit ICL-2: Family violence incident report created by Tasmania Police on 7 February 2020;
(c)Exhibit ICL-3: Family violence incident report created by Tasmania Police on 4 March 2020;
(d)Exhibit ICL-4: CSS records of telephone attendance with the father created on 10 May 2021;
(e)Exhibit ICL-5: Incident report from Tasmania Police dated 22 February 2020;
(f)Exhibit ICL-6: Tasmania Police disclosure report relating to incident on 31 January 2021;
(g)Exhibit ICL-7: Trespass Notice issued to the mother by the Department of Education dated 17 May 2021;
(h)Exhibit ICL-8: CSS conversation notes between CSS and the mother on 18 May 2020, 10 May 2021, and 25 May 2021;
(i)Exhibit ICL-9: Photograph of W Street drop off point for the mother at the school;
(j)Exhibit ICL-10: Photograph of W Street drop off point for the mother at the school, annotated with blue arrow showing the same entrance as Exhibit ICL-9 (different view);
(k)Exhibit ICL-11: Photograph of W Street drop off point for the mother at the school, showing a wider view of collection point for childcare including Room 1;
(l)Exhibit ICL-12: Aerial photograph (landscape) of the school, identifying the gate to the childcare centre; and
(m)Exhibit ICL-13: Aerial photograph (portrait) of the school, identifying the gate to the childcare centre.
The evidence given by the teachers and the school principal, Mr P, is so extensive in volume that it is not practical or necessary to recite it all. It is sufficient to summarise the evidence in a general way as follows:
(a)The teachers and principal experienced the mother to be difficult, argumentative and conflictual in manner;
(b)They considered that she created unnecessary dispute about various issues, such as what class 1 the younger child should attend or the Working with Vulnerable Persons Card;
(c)They were of the view that the mother either failed or deliberately ignored protocols or requirements or insisted on different practices for her children. Eg. Arrival time for the children, sunscreen habits or entering the school grounds when the trespass notices were in operation;
(d)They believed the mother took unnecessary issues or made false claims. Eg. As to whether Mrs Q called the mother a “stupid woman” or the mother insisting that the children’s hats remain with their bags; and
(e)They said that the mother’s behaviours were at times erratic and unsettling for the children, especially when they witnessed disputes.
The summary above is not intended to reflect all the evidence that has been considered by the Court, but instead is a brief outline to illustrate the basis upon which the ICL and also the father sought orders that the father have sole responsibility for the children’s education.
The affidavit of the principal Mr P annexed a letter to the mother dated 16 March 2021.[12] Its contents is also a useful outline of the difficulties with the nature and volume of the mother’s communication with the school by that time.
[12] Affidavit of Mr P filed 26 August 2021 at Annexure B.
EVALUATION OF EVIDENCE AND FINDINGS
There was no dispute of real significance on the evidence before the Court about the following considerations that inform what is in the best interests of the children,[13] and accordingly I make findings that:
[13] Section 60CC(2) and 60CC(3) of the Act.
Both children have a close, loving relationship with each parent;[14]
The parties frequently argued and the arguments escalated in intensity as the relationship broke down and then ended;[15]
The father's personality and style of parenting is more relaxed, and he generally provides reasonable and satisfactory care for the children;[16]
The mother is particular, authoritative, a stickler to rules and cautious or risk averse in personality.[17] This influences her approach to parenting. She provides well for the children’s physical needs and is particularly alert to risk, she is highly protective of the children.[18]
There has been a high degree of conflict between the mother and the children’s school in respect of a range of and many issues, and it is unnecessary to individually specify them all. The mother conceded and I find that there are real communication problems between her and the school and its personnel.[19]
[14] Affidavit of the mother filed 26 August 2021 at [105]; affidavit of the father filed 10 August 2021 at [89].
[15] Exhibit ICL-1; Exhibit ICL-2; Exhibit ICL-4; Exhibit ICL-5; affidavit of the father filed 10 August 2021 at [86]; Family Report at [59].
[16] Family Report at [27] and [61].
[17] Family Report at [44]; affidavit of the mother filed 26 August 2021 at [85]-[87]; various documents contained in Exhibit R-2 regarding Working With Vulnerable People Cards; Exhibit ICL-6 regarding photos taken by another parent at a swimming pool.
[18] For example, see affidavit of the mother filed 26 August at [18] regarding the children’s interactions with other children and [264-267] regarding treatment of illness.
[19] Mother’s evidence referred to at [39].
The mother gave evidence about the loss of the parties’ stillborn child Y and the impact of that loss on her view of the need to protect her children. This demonstrated a visceral attitude, which is to a degree quite understandable but requires attention to avoid the potential detriment from an over-protective or inflexible approach. There is likely to be benefit for the children if she engages in psychological therapy to address this in my view.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
The parents each have been caring for and spending significant time with the children from at least since the interim parenting orders were made. The children have a close loving relationship with both parents.[20] Both parents have been involved in extra-curricular activities for the children and are genuinely concerned for their welfare.
[20] Finding noted at paragraph [46(1)].
The mother says, and I find that, she encourages the children’s relationship with the father.[21] However, there does not appear to be specific evidence from the mother about how the meaningful relationship with the father can be maintained and promoted, should the children live with her in Country D. Instead there is mere assertion by the mother that she will ensure there is frequent contact and that she will be flexible, without detailing what that means and how it will be achieved.[22]
[21] Case Outline of the mother filed 6 September 2021 at [24] and [25].
[22] Case Outline of the mother filed 6 September 2021 at [25].
Despite this, the mother contends that the father has failed to take the opportunity spend more time with children and has not encouraged a meaningful relationship between her and the children.[23] In reality there is little evidence from either party about how they could encourage and promote each other’s relationship with the children if the children live in a different country from one of the parents.
[23] Affidavit of the mother filed 26 August 2021 at [127] to [128].
Logically, if the parties reside in different countries separated by the long distance between Country D and City E, their capacity to maintain or promote a meaningful relationship for themselves or the other parent, depending on where the children live, will be markedly impaired. This finding follows from the simple fact of the time differences and distance between City E and City C and that the most expedient means of transport is by air which will come at a considerable cost. This is also a view held by the Family Reporter.[24]
Section 60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
[24] Family Report at [68].
There is no evidence that the father has physically harmed the children, but the father has perpetrated family violence against the mother, at its least, being the episode in City C in 2016, when the father admits he grabbed the mother by the chin/jaw. He was cautioned by police.
The mother suggests that some of the many episodes when police were called due to altercations between the parents were witnessed by the children. It is likely and I find that either one or both children on occasion witnessed the various altercations. Whether this means that they were “exposed” to family violence depends on if the altercations involved assault, threats, coercion or control, repeated derogatory taunts, withholding of financial support or other behaviour capable of meaning family violence.[25]
[25] within the meaning of sections 4AB(3) and 4AB(4) of the Act, noting it is not an exhaustive meaning.
There is some evidence that the elder child is conscious of the parent’s disputes or arguments.[26] The parties have differing accounts of who the perpetrator was in the altercations noted in Tasmania Police materials and those annexed to the mother’s affidavit.
[26] Family Report at [68].
There is evidence adduced by the ICL and the father to a lesser extent that the mother presents a risk of psychological harm by virtue of involving the children in disputes or conflict she has with the school and those in the school community. It is also suggested, although denied by the mother, that an inflexible and authoritative parenting style poses risk of emotional harm. For example, the manner in which she is said to have insisted on the younger child apologising to a person who he bumped into, or involving him in the discussion about the allegation that Ms Q referred to the mother as “stupid woman”.
The mother also alleged the father has a preference has towards the elder child,[27] but this was not clearly put to the father or supported by any objective evidence. It is speculative opinion on the mother’s part and should have no bearing on the court’s deliberations.
[27] Case Outline of the mother filed 6 September 2021 at [32].
Section 60CC(3)(j) any family violence involving the child or a member of the child's family; and
Whether the mother’s or father’s account of the incident in City C in 2016 is preferred, as noted elsewhere, it constitutes family violence by the father against the mother.
There is evidence from the mother about other incidents when the father either abused or taunted her, usually when intoxicated from alcohol. She alleged that he often wasted money on alcohol to the detriment of the family.
The father admits he consumed alcohol more than he presently does when in Country D, stating it was part of the culture of the industry in which he worked. Although he appeared to accept that there were not infrequent arguments with the mother, he denied that this amounted to family violence on his part. My impression from his evidence was that he was of the view that the mother was equally engaged in and to blame for the arguments.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter;
I have found that the father perpetrated family violence on at least one occasion against the mother, in 2016. On the father’s account he grabbed the mother by the chin/jaw, and on the mother’s account he grabbed her by the throat and forced her against a wall. Either account is concerning, particularly so because it was not disputed that the mother was holding one of the children in her arms at the time.
The mother’s trial affidavit at [33] also refers to another physical assault, when she says that the father threw her on a sofa while she was pregnant in 2011. The father was cross-examined about this incident by the ICL. He denied it had occurred but also conceded there may have been other similar incidents that he did not recall because he was drunk.
To the extent that the children may have witnessed the episode in 2016, they were very young and it is unlikely that they have any particular memory of it which may lay a foundation for emotional harm. However, the child she was holding could easily have been harmed, and to that extent there was a real and material risk of harm to that child, aside from the effect on the mother.
Once in Australia, the children have likely been old enough to recall arguments between their parents, which in some instances lead to the police attending their home when they were present.
The Family Report made reference to the children’s remarks and experience of their parents’ arguments more generally.[28] I draw an inference from the remarks that since separation, the children have not been exposed to witnessing arguments or conflict and are better for it. Further, the manner in which the children presented to the Family Reporter indicates that they have not been particularly harmed by witnessing and experiencing the parent’s arguments to the extent that this may constitute family violence by the father, whatever the extent of it has been.
[28]Family Report at [47].
The Family Reporter’s opinion was:[29]
…overall the police identification that conflict between the parents met the criteria of a ‘family argument’ seems fitting and so it does not appear that issues of family violence will have significant bearing on the outcome of this matter.
[29]Family Report at [59].
At the time of expressing this opinion, it would seem that the Family Reporter did not have access to or consider all the subpoenaed materials from Tasmania Police or the documents relating to charges against the father in the Country D concerning the incident in 2016.
I have had the benefit of considering the police documents and consider that the question of family violence by the father has somewhat more significance than opined by the Family Reporter. Having heard the father give evidence about the allegations concerning family violence, I am of the opinion that he downplayed the degree and frequency of verbal abuse and the incident in Country D.
The mother’s evidence in various places also relies on the father’s alleged abuse of alcohol to persuade the Court that the father will put the children physically or emotionally at risk when intoxicated. The evidence from both parties satisfies me that historically the father consumed alcohol to excess, which likely caused dispute with the mother and in turn mostly verbal but on one or possibly two occasions physical aggression on his part.
However, there is no evidence about how much alcohol the father has consumed since separation. The father maintains he does not drink alcohol to excess. There is no evidence of red flag markers such as work absenteeism or the children arriving late to school when they are in his care.
The impression is and I infer that the father’s lifestyle has changed significantly from the days when drinking was part of his work culture. Further, as the parties have separated the marital stresses about money and the father’s participation in the family no longer exists. For these reasons, it seems unlikely that alcohol abuse or alcohol consumption by the father presents as a current risk of harm to the children. However, the opinions of the Family Reporter about the negative impact of excessive alcohol are relevant.[30] It is a factor to be borne in mind in relation to the father as it is possible he may revert to alcohol misuse in circumstances where he is stressed, unhappy or not coping.
[30] Child Inclusive Memorandum dated 8 April 2020 at [25].
The father and the ICL do not particularly criticise the mother’s ability to physically care for and provide for the children. However, both rely on the extensive evidence about conflicts or complaints the mother has had at the school, with the broader school community (including extracurricular activities) and Dr FF to persuade the Court that the children are at risk of emotional harm due to the mother’s conduct when she has a difference of approach or opinion from others.
Based on the evidence given by staff at the school, particularly Ms Q, Ms BB and Ms R, I accept that the children may have experienced a degree of discomfort and uncertainty about what to do, when present during adverse interactions between the mother and the school staff on some occasions. Their evidence related to the 2021 school year.
At the time the Family Reporter prepared the Family Report in late October 2020, there did not appear to be any real concern about the risk of emotional harm to the children by the mother’s actions. The only suggestion of this possibility relates to the interactions concerning practical arrangements for the interviews.[31]
[31] Family Report at [44] and [63].
The evidence before the Court does not establish the existence or likelihood of a risk of emotional harm posed by the mother to the children, except possibly in the context of the quite unique recurring conflict and disagreements between the mother and the school. The Family Reporter said under cross-examination that she came to this conclusion due to the pattern of behaviour shown by the mother’s interactions with the school and the potential impact of this on the children, noting that the truth or accuracy of every statement in the teachers’ affidavits was not as important as the volume of interactions.
60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
With respect to the wishes of the children, the mother submits that they are of an age that they understand the implications of losing the mother’s day-to-day attention. The mother acknowledges that the elder child states he will miss his father if he lives in City C and miss his mother if he lives in City E. The mother claims that the younger child has expressed the wish to live with the mother if she goes to City C, but there is no objective or independent evidence to that effect.
The evidence and submissions by the mother about the children’s wishes are not persuasive. The Family Reporter gained information about the elder child’s views about relocation when he was aged seven years, but not the younger child. I accept the evidence of the Family Reporter, which was as follows:[32]
Prompted about whether his mother had spoken to him about moving; [the elder child] became animated when saying “she wants to go to City C” where she wants to live and to visit Country K. [The elder child] believes living in City C “when COVID ends” sounds “pretty good”. He spoke about being able to catch a train to City GG.
[32] Family Report at [49].
This statement from the elder child says more about what he knows of the mother’s desire to go back to City C, rather than his own view. In any event, given the age of the children, I would not be inclined to give any material weight to any view they may have expressed. It is likely that they would not want to upset their mother by disagreeing with her view of so called advantages of being in City C or Continent HH and they lack the required maturity to fully appreciate the significance of a move for them.
Section 60 CC(3)(b) the nature of the relationship of the child with:
each of the child's parents; and
other persons (including any grandparent or other relative of the child);
The parents do not have relatives in Tasmania, nor do any relatives appear to have played a major role in the children’s lives. Equally, they have no relatives in City C based on evidence before the Court. There are no doubt friends in each location, those in Tasmania being current, recent and probably more relevant.
Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I find that the mother was the primary care giver for the children when the parties were overseas. Her personality and attitude to parenting persuades me that she would have taken the lead with the children when they were young. The father probably spent more time away from the home during this period.
While in Tasmania, the mother also has been more involved in their care, this being effectively conceded by the father when cross-examined by the ICL, when he stated in effect that it was easier to allow her to make the decisions to avoid arguments.
The mother acknowledges the importance of the father in their lives.[33] Noting these conceded matters, I find each parent has a strong and important, although differing, relationship with the children. The differing nature of each parent’s relationship with the children and their respective parenting contributions likely enhances the children’s well-being and balances that of the others’. In arriving at this view, I have also had regard to the views of the Family Reporter at [68] and [70] of the Family Report.
[33] Case Outline of the mother filed 6 September at [54].
The mother claimed to have strong connections with relatives and friends in Country D and Country K.[34] She suggests that moving to Country D with the children will enable these connections to be re-established. In cross-examination, her evidence conveyed that her immediate family connections and supports in Country K were limited. As for those in Country D, there is general reference to various persons, but they did not give evidence in the case.
[34] Case Outline of the mother filed 6 September at [57]; and affidavit of the mother filed 26 August 2021 at [114].
While this is possible that the mother may re-establish supports and connections, I do not accept it to be likely in the short term as she and the children have been away from the Country D for effectively several years. In that time, old relationships likely have weakened merely because the parties have lived and experienced different events and circumstances in the various countries. It is quite foreseeable that different interests and connections will have developed and moved on in this time. In arriving at this view, I do not completely ignore the mother’s evidence that she has continued to communicate with family and friends overseas, but as she admits this has proved challenging due to time differences and the demands of daily life.[35]
[35] Affidavit of the mother filed 26 August 2021 at [119].
The father’s evidence attests to his parents and siblings who live interstate and the time that he has spent and proposes to spend with them, which will benefit the children. While this is a relevant consideration, he has lived for many years away from his family and chose to establish a home in a city quite some distance from them. It cannot be said that the value of those relationships is especially high to him and the children and I so find.
Notwithstanding the finding at [84], I consider that the children will have opportunity to experience the paternal extended family if they live in City E, but this is highly unlikely if they relocate to Country D. One obvious reason for this is that contact and communications with them has not occurred while the children are in the mother’s care. I infer from the mother’s evidence that the father’s family is unlikely to be open to having time with the children unless it is initiated by the father. Further, the time differences and physical distances will greatly limit practical opportunity.
Section 60 CC (3)(c) the extent to which each of the child's parents 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;
Since the parties and children moved to City E, the father has worked continuously and until separation likely made himself less available to participate in the care and decision-making relating to the children because of that and because it was easier for him to allow the mother to take the lead. Since the interim orders, the father has been working flexible hours and spending regular time with the children. During his time with the children, he has attended to all their reasonable needs it would seem.
The mother appears organised, diligent and the instigator of decision-making concerning the children, whether it be in relation to enrolments, sports, and health issues. The father conceded that in the past he largely left it to the mother to make the decisions relating to the children. The mother portrays this as non-participation, while the father says it has been due to the mother’s overbearing and controlling conduct.
In cross-examination by the ICL, the father was not able to identify what he did, if anything, to alleviate the disputation that escalated between the school and the mother. I was left with the clear impression from his evidence that he disengaged and allowed the mother to interact about all the various issues, because it was easier for him rather than being involved.
It is significant that the father always sought equal shared parental responsibility, until he filed his Amended Application filed 12 August 2021. Further, despite having equal shared parental responsibility pursuant to the interim orders made in April 2020, he did not seek to reduce or limit conflict and his failure to engage, at times, seems to have contributed to escalation of dispute at the school.
Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The evidence is that the father pays child support and that parties both earned income to support the children while they were in a relationship. It is not asserted that the father has failed to fulfil any obligation to support the children, but the mother’s Case Outline at [72] – [77] suggests that he reluctantly does so because there were competing applications to review the administrative assessments. I do not make any adverse finding about this, as each party was entitled to pursue legally available review options.
The father has permanent employment with public service, so has secure future income.
The mother is not presently employed. She says she will be able to better financially support the children in City C as she will find employment and earn more there. This is her personal opinion and there is no objective evidence supporting the claim. The mother has not worked in the economics industry for some years. Although she claims to have good connections and will find work, this is mere speculative assertion. Although the mother has skills and qualifications in economics related industries, I am not satisfied that she will easily secure employment for which she is suited or that her earnings would be equivalent to what they were in the past in City C.
The mother did find employment in Tasmania previously, so it is likely that with time she could secure some form of employment if she remained here, but it is unlikely to be in a position earning that which she previously earned in Country D.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The mother’s evidence and submissions lack detail in relation to how the practical difficulty of the children spending time with or communicating with the father will be addressed, if she is permitted to relocate with the children. I repeat the findings and reasons referred to at [49] – [51] above. I am not satisfied that the mother has a suitable proposal as she does not address how the cost of travel will be met or how the time barriers for communication can be overcome to ensure regular time between the father and the children. However, the same criticism is made of the evidence and submissions in the father’s case should the Court allow the children to relocate with the mother, as he does not propose to relocate to Country D.
In the context of the above, neither party volunteered evidence about how the cost of travel would be met to facilitate the children spending time with the mother if she relocated to City C but the children were not permitted to do so. The ICL cross-examined about this topic, suggesting that a sum of money should be set aside from monies in the asset pool. Both parents appeared to agree that this was a reasonable course.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The mother submits that the children have not been adequately supported or encouraged by the school and the father to enjoy their Nationality K background and culture. The witnesses called by the school rejected this suggestion during their cross-examination, as did the father.
Overall, the evidence does not support the claim by the mother. I find that the difficulties referred to by the mother are more likely due to her personality and parenting style, rather than her Nationality K culture, although the latter may to a degree influence the staff and others involved with the school.
60CC(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I accept the mother’s evidence at [85] to [88] of her trial affidavit filed 26 August 2021 about her attitude and participation in parenting the children as it was not challenged. This together with other uncontested evidence demonstrates and I find that the mother has a committed, loving, informed, but somewhat fixed attitude to raising the children and her responsibilities as a parent. This finding is reinforced by the views of the Family Reporter, who described the mother’s parenting approach was “directive”.[36]
[36] Family Report at [58] and [61].
In addition to the written opinion of the Family Reporter, she was asked to give additional opinion based on the affidavit evidence of the school staff. Accepting that evidence at face value, she said that she had concern regarding:
·The mother’s inability to be cooperative and take another point of view;
·The mother’s tendency to try to find parenting fault; and
·The mother’s inability to understand her role in causing difficulties for others, which can cause the children to witness situations which they consider “embarrassing” or “unsettling”; and
·The volume of incidents reported by a number of different people, which demonstrate a pattern of behaviour.
I find that the father’s attitude to the children and parenting is more permissive, relaxed and flexible, but not inappropriate. The mother’s evidence is critical of his parenting, but there is no evidence of actual harm to the children or risk of harm, neglect or abuse. The evidence of the staff at the school suggests his less rigorous, non-directive parenting approach is more settling for the children. The Family Reporter refers to the attitude and parenting of the father to be appropriate.[37]
[37] Family Report at [27] and [61].
The mother’s cross-examination of the father about financial and property matters was brief. It related to the father’s withdrawal of funds from a joint bank account. He agreed that he had withdrawn £9,000 in 2021 and claimed it had been used to pay a tax liability.
The father was also asked why he saw the sale of the property in City C as the only way to achieve a property settlement. He said that was because the mother could not afford to pay him out and the mother did not take this further in any questioning.
In cross-examination, it was put to the mother that at the commencement of the relationship the husband had sold personally owned shares and contributed the sale proceeds to reduce the mortgage on a property in H Road, City C (“the H Road property”). This was denied and the mother stated that the sale proceeds of his shares were used to repay a margin loan the father had taken to acquire the shares.
The mother agreed that she had earned income by working in a professional capacity through a company established by the father. She also agreed that this resulted in a financial advantage benefiting the family unit.
The mother was challenged about being frank in disclosure of her income. In particular, it was put that she had failed to disclose dividends earned from investments in her Financial Statement filed on 26 August 2021. The mother denied this, stating that she may have made an error by not including the information in the Financial Statement, but she had provided evidence of the earnings by producing her bank statements and attaching such information to her trial affidavit.
It was also put to the mother that she was not truthful about the degree of her current expenditure as it was not possible to spend the amount recorded in her financial statement, given her disclosed income and lack of debt. The mother also rejected this, stating that the expenditure figures were averages over a longer period and it was the “best information I can produce”.
When it was put to her that her documents do not assist the Court, she replied that her filed documents had all the updated financial information. It was apparent the mother was referring to her amended trial affidavit filed 26 August 2021 and her Case Outline filed 6 September 2021.
Review of the evidence overall permits me to make the following findings about direct and indirect financial and non-financial contributions:
(a)I am not persuaded that the father brought in assets worth about $100,000 at the commencement of the relationship, it was more likely less for the reasons below at [165];[51]
(b)The mother brought in the H Road property, which she owned subject to a mortgage, but had contributed the deposit of £17,325 and net sale proceeds of about £34,200 from a flat she previously owned and had sold in 2005.[52] This evidence was not contradicted and leads me to infer that the mother had equity of about £35,932 pounds soon after buying the H Road property;
(c)Between 2005 and commencing the relationship with the father in 2007, I infer that the mother made mortgage repayments relating to the H Road property, which likely reduced the mortgage further by the time a half interest was transferred to the father;
(d)Both parties earned a good income when they both worked, one more than the other at various times. Neither party challenged evidence given by the other about income, but there was small disagreement about the precise earnings of the parties;[53]
(e)The mother received a lump sum exit payment from Company PP, the value of which was close to £113,000 paid in 2016.[54] The father says the payment was £119,000 and in 2013. The difference is not particularly material, but I consider the evidence of the mother is more accurate. She says that she worked with Company PP and took maternity leave relating to the birth of the elder child in 2013.[55] It was not until shortly before the younger child was born that she left that employment, according to her. In the father’s Case Outline he identifies the date of the mother’s redundancy as 2016, which aligns with the mother’s evidence;
(f)When Yarrow Company was liquidated, a liquidated net of tax cash payment was received of £225,000.[56] The evidence relating to this finding was not challenged by the mother, who addressed the existence of the company and its liquidation in her own affidavit;[57]
(g)The mother performed work or organised tradespeople to undertake renovations, first to the City C property and later a property at F Street, City E in Tasmania (“the City E property”). The un-contradicted evidence is that during her maternity leave after the birth of the elder child, the mother did sanding, painting, and replaced curtains and carpet at the City C property.[58] On the evidence, both parties contributed to the improvement of the City E property during the relationship, although the mother to a somewhat greater extent, and the mother continued to do renovations to it after separation;[59]
(h)The mother has been the primary carer for the children and managed the joint household finances and organisation. She has been largely responsible for the children’s school enrolments and extra-curricular activities, as well as attending to their medical needs;
(i)The father undertook further study during the relationship, and the mother supported the family financially while he did so;[60] and
(j)The father claims to have made post-separation contributions, by paying half the mortgage on City E, paid his own rent and child support. However, for the reasons discussed below at [186], these were likely in part only possible because of monies he acquired from assets which existed at separation and now do not.
[51] Affidavit of the father filed 10 August 2021 at [128].
[52] Affidavit of the mother filed 26 August 2021 at [316] to [318].
[53] For example: affidavit of the mother filed 26 August 2021 at [342], [354] and [356]; and affidavit of the father filed 10 August 2021 at [127], [140] and [141].
[54] Affidavit of the mother filed 26 August 2021 at [360].
[55] Affidavit of the mother filed 26 August 2021 at [349] and [356].
[56] Affidavit of the father filed 10 August 2021 at [145].
[57] Affidavit of the mother filed 26 August 2021 at [354] and [355].
[58] Affidavit of the mother filed 26 August 2021 at [324]-[325].
[59] Affidavit of the mother filed 26 August 2021 at [328]-[329].
[60] Affidavit of the mother filed 26 August 2021 at [344] and [350]-[351].
Regarding the matters to be considered pursuant to subsections 79(d) – 79(g) the Act, the evidence establishes and I find that:
(a)The mother does not have employment and will have limited earnings for an indefinite period in the future until she secures work, regardless of whether she remains in Tasmania or relocates to Country D. However, her own evidence is that she is confident of securing employment in Country D;
(b)The father has secure permanent employment and a comfortable income;
(c)The mother has some medical conditions that may require treatment and expenditure. The father evidence included reference to medical conditions also but he says that they are all managed and do not interfere with his capacity to perform his work;[61]
(d)As the mother proposes to relocate to Country D, the process for issuing an administrative assessment against her in Country D will be complex and potentially fraught with difficulty.[62] Even if an assessment is made and registered in Country D, difficulties may well be encountered with recovering payments. In this event the children will be residing with the father and the elder child will also require continuing treatment for Medical condition 1. The father will likely carry the vast majority of the financial burden of raising the children; and
(e)On the assumption the mother relocates to Country D, the father will by far have the majority of the parenting and care responsibilities. However, if the mother remains in Tasmania, those responsibilities will be shared.
[61] [169] of trial affidavit filed 10 August 2021
[62] See section 29A of the Child Support (Assessment) Act 1989 (Cth).
As is often cited,[63] the assessment of contributions and other relevant factors addressed in section 79 of the Act is a matter of judgment, not a mathematical exercise. This is a case involving a relatively long marriage and the parties have both earnestly contributed, dependent on their stages in life. Additionally, the mother has made some non-financial contributions over and above those of the father based on my findings.
[63] In the Marriage of Garrett (1984) FLC 91-539.
I assess that the mother has contributed overall slightly more than the father to the acquisition and maintenance of the parties’ net assets, based on all my findings.
Allowance also needs to be made for the findings at [168] about other relevant and considerations. Assuming the mother relocates to City C without the children, a net positive adjustment in favour of the father is warranted. In closing submissions, the father contended the adjustment should 10 per cent. I consider this to be on the high side and does not recognise the counter-balancing factors referred to at [169(a)] and [169(c)] of these reasons. However, it is also necessary to consider and resolve the contentions made by the mother which amount to an add back argument.
Add back argument
The father discloses on oath in his Financial Statement filed 4 May 2021 that he has a share portfolio valued at an estimated $70,350. At trial, in various documents he relied upon, he identifies his share portfolio to be $700 in value. There is evidence by way of emails attached to the mother’s affidavit relating to alleged withdrawals by the father from a joint account and retention of funds from sales of his shares in 2020.[64] The father does not deny the mother’s accusations in his emails replying to her. I infer from this as it was not subjected to cross-examination or denied, that the father sold personal shares and used monies at his discretion from the joint bank account and share sale proceeds on non-specified expenditure.
[64] Affidavit of the mother filed 26 August 2021 at Annexure 11, pages 10-12 and 19-22.
It is not possible to make specific findings about what precise figure is involved, but it is likely to equivalent to the being the diminished value of his share portfolio.
The father said under cross-examination that he used £9000 to pay tax and necessary living costs and other expenses. He also said that the mother had withdrawn funds, this being consistent with statements he made in email replies to the mother in 2020 and 2021.[65]
[65] Affidavit of the mother filed 26 August 2021 at Annexure 11, pages 10-12 and 19-22.
It is impossible to precisely assess on the state of the evidence, whether the proceeds of sale of the shares and/or funds removed from the joint account by the father can be categorised as reasonable self-support or otherwise warrants an adjustment in favour of the mother. However, on the father’s own evidence apart from general assertion, only £9,000 is adequately explained.
The father continued to work and earn $1,580 per week and had rental income of £125 per week in 2020 – 2021.[66] He was not contributing to the outgoings and mortgage on the City C property from around mid-2021. The mother has had the primary care of the children and was not working. I infer from the evidence she was receiving Centrelink benefits, received rental income of about £125 per week plus some dividend income and child support payments of $336 per week.[67]
[66] Financial Statement of the father filed 4 May 2021.
[67] Financial Statement of the mother filed 26 August 2021.
There is likely to have been a significant disparity in earnings and income for much of the post-separation period, yet the father claims the funds he acquired (whatever the total was), were needed for necessary and reasonable living expenses. While I accept that the £9000 referred to in oral evidence was reasonable expenditure, I do not accept that all of the share sale proceeds and bank withdrawals were. The purpose of expenditure and use of it has not been subject to evidence or explained other by assertion.
While the mother carried an onus of establishing an adjustment for add back like arguments, the father had a duty to fully disclose in the proceedings the basis upon which he realised funds from assets which ordinarily and otherwise would fall within the net asset pool at trial.[68]
[68] Weir & Weir (1993) FLC 92-338.
I have had regard to the useful summary of the relevant principles by Murphy J in Kouper & Kouper (No.3) [2009] Fam CA 108 concerning add back issues. I have also had regard to the Full Court decision in Mayne & Mayne (No.2) [2012] FLC 93-510 where the judges of the court took alternate approaches about what allowance or adjustment is to be made if findings warrant it. In addition, the Full Court’s ratio at [79] in Bevan and Bevan (2013) FLC 93-545.
Given the state of the evidence and the findings at [168] and [169], applying the authorities cited, a strict mathematical add back to the asset pool is not appropriate, particularly so because the father asserted that the mother had taken joint monies since separation also, something she did not deny. On the evidence, there is again no clarity about how much was involved in the mother’s withdrawals. However, the mother provided some evidence about what the joint funds were used for, including the outgoings on the City C property, improvements to the City E property and comparatively she has had a lower income for some time.
In the exercise of my discretion, I consider that very small percentage adjustment should be made in favour of the mother for the contentions I have taken to be add back arguments.
The father’s closing submissions did not engage with the mother’s add back arguments, which were not clear or articulated on legal principles. I will give the father an opportunity to address these reasons and my preliminary view about this topic before I make final orders.
Counsel for the father has urged a two pool approach, but the justification for that is not articulated beyond the assertion that an order of this court about Country D superannuation Pensions cannot bind the Trustees of the funds in Country D. Further, I was unable to locate a contention about what percentage adjustments ought to apply to the superannuation pool if it were to be treated differently. Instead, he sought to receive “55% of the pool”, which implied a one pool approach. Overall, I have understood the father’s submissions to seek a one pool approach, which was to be achieved by:
(a)leaving the respective entitlements to superannuation in Country D unaffected by any orders the Court makes; and
(b)making a superannuation split order of 100% in favour of the mother in respect of the father’s Australian superannuation interest.
I reject the submission for the father that the mother’s contribution of equity in the H Road property at the commencement of the relationship is not capable of evaluation. Although it cannot be mathematically assessed with precision, the evidence does permit the findings I have made at [168(b)] of these reasons. The mother was not cross-examined about her affidavit material on this topic. The contribution by the mother cannot be ignored as it provided an important foundation for later accumulating equity in the City C property, but its significance waivers somewhat given the length of the relationship.
Although the father says he contributed to the H Road property from the sale of personal shares, the evidence about this was strongly rejected by the mother’s evidence. She stated in cross-examination that the sale proceeds from the husband’s shares were used to repay a margin loan he had taken out for the shares. There is no persuasive evidence about the alleged contribution by the father to the H Road property, but I accept he brought in some assets as noted at [168(a)] of these reasons.
The father’s evidence was that at the commencement of the relationship he had superannuation estimated to have a value of $24,000.[69] The mother does not appear to identify in any evidence what the value of her superannuation was at the commencement of the relationship, but I infer that she had some as she provided evidence of employment in Country D before meeting the father.
[69] Affidavit of the father filed 10 August 2021 at [128].
Over the 13 year relationship, the parties worked and presumably accrued superannuation correspondingly. When the mother did not work and accrue superannuation, she made parenting and other non-financial that enabled the husband to make financial contributions.[70]
[70] Eg. affidavit of the mother filed 26 August 2021 at [325]
I have no evidence about the nature of parties’ superannuation interests in Country D, whether they are accumulation or defined benefit or some other variation. There is no suggestion that the Country D superannuation interests are in a “pension payment phase”, which may justify treating the superannuation interests in a particular way.[71]
[71] McKinnon & McKinnon [2009] FamCA 921.
In this case, I prefer to adopt a one pool approach, but acknowledge that there is no power to make a superannuation splitting order in respect of the parties’ superannuation interests in Country D. This is simply because Part VIIIB of the Act only applies to a “superannuation interest” as defined in that part. A “superannuation interest” is one only where the person (ie party to the marriage) is a member of an “eligible superannuation plan”, also defined in the Part. To fall within the meaning of an eligible superannuation plan, the superannuation fund needs to be one under section 19 of the Superannuation Industry (Supervision) Act 1993 (Cth) which amongst other things provides:
(2) The superannuation fund must have a trustee.
Trustee must be a constitutional corporation or fund must be a pension fund
(3) Either of the following must apply:
(a)the trustee of the fund must be a constitutional corporation pursuant to a requirement contained in the governing rules;
(b)the governing rules must provide that the sole or primary purpose of the fund is the provision of old-age pensions.
Election by trustee
(4) The trustee or trustees must have given to the Commissioner of Taxation a written notice that is:
(a) in the approved form; and
(b) signed by the trustee or each trustee;
The mother does not wish to keep the City E property and sought an order that it be sold as recently as when she filed her Application in a Proceeding on 23 November 2021. The father agrees that the property should be sold. Accordingly, there will be a final order for sale of the property.
In respect of payment of the mortgage and outgoings on the property in City C, based on evidence before the Court, there were available funds in the bank accounts in Country D to pay the mortgage and outgoings on the City C property. The dispute between the parties about making the payments was without merit as in these proceedings the Court is obliged to consider all the parties’ assets and liabilities at trial, regardless of whose name an individual asset is notionally in.
The evidence is that the mother paid the mortgage for the months of September to December 2021 from dividends, rent or other funds in bank accounts.[72] To achieve an outcome that is just and equitable between the parties, the mortgage repayments for the City C property are to be paid by the father alone until 28 February 2022 or pending its sale or transfer to the mother, whichever is the earlier.
[72] Exhibit R-15.
In arriving at the position referred to at [193], I am conscious of the allowance I propose to make for the conclusion arrived at [182] of these reasons and balanced what is just and equitable between the parties right up until the date the final orders are implemented and given effect.
As the City C property is likely to be sold in the foreseeable future, subject to hearing submissions as referred to below at [201], the orders sought at paragraph 3 and 4 of the mother’s Application in a Proceeding should be dismissed, as they serve no purpose and have no merit as interlocutory orders.
On the basis of the documentary evidence filed by the father pursuant to the orders made on 22 December 2021,[73] I infer that the council rates that will accrue between now and 28 February 2022 will be relatively modest. They should be paid from the sale proceeds of the City C property if it is sold. If the property is to be transferred to the mother, the rates should also be paid from the Bank E Account, but only until the date of transfer of the property to the mother and no later than 28 February 2022.
[73] Exhibit A-4.
Conclusion - Property
For the purposes of making orders that are just and equitable between the parties pursuant to section 79 of the Act, I will take a one pool approach,[74] and based on findings above and agreement between the parties, the relevant assets and liabilities are:
[74] Coghlan & Coghlan (2005) FLC 93-220 at p79,642.
| Ownership | Agreed Value ($) | |
| The City C property | Joint | 1,656,000 |
| Less mortgage* | -545,517 | |
| Net equity | 1,110,483 | |
| The City E property | Joint | 575,000 |
| Less mortgage* | -294,743 | |
| Net equity | 280,257 | |
| Property in City KK | Mother | 2,975 |
| Motor vehicle 1 | Father | 12,000 |
| Motor vehicle 2 | Mother | 16,990 |
| CBA Bank Account | Joint | 83 |
| Bank E Account | Father | 34,277 |
| CBA Bank Account* | Father | 4,170 |
| Bank F Account | Mother | 3,358 |
| NAB Bank Account | Mother | 111 |
| Bank G Account | Mother | 192 |
| Shares | Mother | 261,530 |
| Solicitors trust | Father | 27,000 |
| Sub-total: | 362,686 | |
| Tax Liability | Mother | -4,152 |
| Legal Expenses (Country K)* | Mother | -12,477 |
| Centrelink Debt* | Mother | -12,395 |
| Sub-total: | Mother | -29,024 |
| SUPERANNUATION | ||
| Superannuation Fund LL (Australia)* | Father | 54,301 |
| Superannuation Fund MM (Country D Pension)* | Father | 195,649 |
| Superannuation Fund NN (Australia)* | Mother | 1,719 |
| Superannuation Fund OO (Country D Pension)* | Mother | 90,560 |
| Sub-total | 342,229 | |
| Total assets including superannuation at trial | 2,095,655 | |
| less liabilities Less trust fund for children as agreed | 29,024 10,000 | |
| Net assets at trial: | 2,056,631 |
In my view the parties interests in the net assets identified above should be adjusted to achieve an outcome whereby the father receives 54 per cent and the mother 46 per cent as I have concluded:
(a)that mother’s overall contributions are somewhat more than the father’s (at [171] above);
(b)if the mother relocates to City C , as the father will have the primary parenting responsibilities and the children will live with him, a net adjustment of less than 10 per cent is required (at [172]); and
(c)a small adjustment in favour of the mother is needed for the add back finding made.
The mother could only retain the City C property if the father was to receive and retain all the superannuation interests in Australia and the UK the net proceeds of sale from the City E property and all other assets, while not assuming any of the liabilities. This would also require the mother to have capacity to refinance the mortgage relating to the City C property, forego all superannuation and solely assume the liabilities for tax, legal expenses in Country K and Centrelink.
As the mother does not have employment, I cannot envisage how she could afford to pay a refinanced mortgage on the City C property and the other liabilities. I note that she made an Application in a Proceeding[75] seeking orders that the father pay half the mortgage and other outgoings for that property because of lack of capacity to pay these.
[75] Filed 23 November 2021.
The mother was required to demonstrate how she could afford to retain the City C property if she wanted to retain it as she carried the onus of persuasion,[76] but her evidence simply does not address this in any meaningful or clear way. I have not been persuaded she has capacity. Further, I do not consider it just and equitable for the mother to forgo all superannuation, leaving her without provision once she retires. Accordingly, the City C property will be sold and I will hear from the parties about the specific terms of such order before making final orders.
[76] Section 140 of the Evidence Act 1995 (Cth).
In the event that the mother does not relocate to City C, I consider she should receive 56 per cent of the net assets and the father 44 per cent allowing for additional adjustments warranted pursuant to section 75(2) of the Act and discussed elsewhere in these reasons.[77] In summary these being for slightly more future parenting responsibilities, lower income for the foreseeable future and potential health complications relating to her Medical condition 4.[78]
[77] See above reasons at [168] and [169].
[78] Affidavit of the mother filed 26 August 2021 at [13].
Other incidental matters contended
For completeness, although there was essentially no focus on it during the trial, I reject the mother’s claim for lump sum spouse maintenance. If the mother moves to City C, she will have little parenting responsibilities and says she will secure employment. In time, I expect she will be able to support herself. The father does not have capacity to pay spousal maintenance in any event as he will be required to support himself and the children on his income. It is also likely that he will have real difficulty in recovering child support if the mother is outside of the jurisdiction.
As it is agreed that the sum of $10,000 is to be held in trust for the children, there will be a formal order to that effect.
In written closing submissions, counsel for the father contended that I should prefer the evidence of the father to that of the mother and that the mother attempted to mislead.
I agree that the mother’s evidence at times was argumentative and obtuse. Her approach was sometimes misguided when giving evidence and conducting her case. However, I need to make reasonable allowance for the fact that she is not a lawyer and was representing herself against very senior and experienced counsel.
There was in fact little dispute about important factual matters as will be apparent from the foregoing reasons I have given. Ultimately, I am not prepared to make adverse credit findings.
As counsel for the father stated during oral submissions, the disagreement in the evidence is more about degree than subject. While counsel said this difference meant that credit is important, I consider that the commonality of the parties’ evidence is more useful and important in arriving at the Court’s determinations. I do not believe either party sought to mislead and each did their best to recall relevant facts, in what was a relatively complex case.
ADDITIONAL REASONS FOLLOWING DISTRIBUTION OF DRAFT ORDERS
On 23 December 2021, I convened a hearing in this matter to deliver my draft judgment and draft orders. This was necessary due to the need to afford the parties procedural fairness regarding issues noted in the judgment.
I heard detailed submissions from all parties about the following topics arising in the draft judgment and which were noted in a document handed to the parties:
·If mother relocates to City C without the children, where the mother spends time with the children and associated travel arrangements, costs and covid-19 issues.
·Psychological therapy for the mother if she remains in City E.
·Add- back reasons in the draft judgment.
·How to achieve the overall determination of a division of the net pool on the basis of 54/46% in favour of the father if the mother relocates or 57%/43% in favour of the mother if she does not.
·Terms of the orders for sale of real estate.
·Parenting separately course/education.
·Draft orders generally.
I have now made final orders.
The mother has not persuaded me that she is able to afford to retain the City C property and it will be sold. The detailed terms governing the sale are necessary to ensure that the orders are given their full intended effect.
While the mother strongly objected to the father’s solicitors having conduct of the conveyancing and holding the proceeds of the sale of both properties in trust, the complexity of this matter requires that a lawyer with an understanding of the proceedings and what is required pursuant to the court orders.
The mother does not have a lawyer and she proposed a conveyancer be used for the sale of the City E property. I consider a legal practitioner is required for the reasons above. Legal practitioners have fiduciary duties and the solicitors for the father are based in City E. The objections by the mother are without merit.
I have also determined it necessary to make an order precluding the mother from occupying the City C property as it is to be sold. This arises because despite the draft judgment clearly articulating the basis upon which I considered it had to be sold and the mother not persuading me otherwise, she continued to refer to wanting to keep the City C property in her submissions.
No significant objections were taken or submissions made against the general proposal I had made for achieving the required percentage adjustments of the overall net pool of assets. I had initially held a preliminary view that there should be a 100% superannuation split order regarding the father’s Superannuation Fund NN in Australia in favour of the mother. On reflection that is not necessary as there will be adequate funds from the sale of the two properties to achieve the required outcome according to my judgement. It is also simpler and more convenient not to adjust the superannuation interests.
The mother submitted that she did not require psychological therapy and would not attend a course to assist her in effective and conflict avoidant co-parenting and communication. Given the extensive reasons in the judgment, I remain of the view that it is the best interest of the mother to attend and complete such treatment and education, especially if she remains in City E and has ongoing shared care of the children with the father.
The mother submitted, contrary to that contended by the father’s counsel and the ICL, that the children should be permitted to travel alone by plane between City E and City C and regardless of prevalence of Covid-19 or restrictions imposed. The basis for this appeared to be that she considered it necessary to enable her to see the children and in turn maintain a meaningful relationship with them.
I am of the view that the best interests of the children require limits on travel associated with the mother’s time and the need to protect them from unacceptable risks of harm takes precedence.
| I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. |
Associate:
Dated: 24 December 2021
| Schedule A | Ownership | Agreed Value ($) |
| To be sold pursuant to orders 30 & 33 | ||
| The City C property | Joint | 1,656,000 |
| Less mortgage | -545,517 | |
| Net equity (to be distributed according to orders) | E1,110,483 | |
| The City E property | Joint | 575,000 |
| Less mortgage | -294,743 | |
| Net equity (to be distributed according to orders) | E280,257 | |
| To be retained by father | ||
| Motor vehicle 1 | Father | 12,000 |
| CBA Bank Account | Joint | 83 |
| Bank E Account (balance after deducting payment at Order 30*) | Father | 24,277 |
| CBA Bank Account | Father | 4,170 |
| Solicitors trust | Father | 27,000 |
| Superannuation Fund LL (Australia) | Father | 54,301 |
| Superannuation Fund MM (Country D Pension) | Father | 195,649 |
| To be retained by mother | ||
| Property in City KK | Mother | 2,975 |
| Motor vehicle | Mother | 16,990 |
| Bank F Account | Mother | 3,358 |
| NAB Bank Account | Mother | 111 |
| Bank G Account | Mother | 192 |
| Shares | Mother | 261,530 |
| Superannuation Fund NN (Australia) | Mother | 1,719 |
| Superannuation Fund OO (Country D Pension) | Mother | 90,560 |
| Tax Liability | Mother | -4,152 |
| Legal Expenses (Country K)* | Mother | -12,477 |
| Centrelink Debt* | Mother | -12,395 |
| Note: the Net equity amounts for the two properties are estimates and cannot be determined until balance sale proceeds are known | ||
| Note: the final overall percentage adjustments are according to orders 36 and 37 |
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