Andreevich & Andreevich (No 4)

Case [2023] FedCFamC1F 734

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Andreevich & Andreevich (No 4) [2023] FedCFamC1F 734

File number(s): MLC 8101 of 2020
Judgment of: MCNAB J
Date of judgment: 6 October 2023
Catchwords: FAMILY LAW – PARENTING – high level of conflict between parents – whether orders should be made in respect of 16 year old – other spend time arrangements – whether a 14 year old child should be able to determine how much time he spends with each parent – whether orders for shared care are appropriate.
FAMILY LAW - PROPERTY – divided opinion between experts on the value of a business conducted by the wife – dispute regarding methodology of valuation – whether a valuation assumes hypothetical purchaser could effect significant changes to the way contractors are engaged should be accepted – whether the business valued is the business being conducted by the wife – orders made for the just and equitable division of property.
Legislation:

Evidence Act (1995) (Cth)

Family Law Act 1975 (Cth)

Superannuation Guarantee (Administration) Act 1992 (Cth)

Family Law (Superannuation) Regulations 2001 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Andreevich & Andreevich (No 2) [2023] FedCFamC1F 43

Andreevich & Andreevich [2022] FedFamC1F 608

Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

C and C (2005) FLC 93-220; [2005] FamCA 429

Dickons & Dickons [2012] FamCAFC 154

Dovgan & Dovgan [2021] FamCA 306

Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143; [2003] FamCA 395

Jabour & Jabour [2019] FamCAFC 78

Kildea v Kildea (2007) 38 Fam LR 347; [2007] FamCA 1524

Manolis v Manolis (No 2) [2011] FamCAFC 105

Perrin & Perrin (No 2) [2018] FamCAFC 122

Preston & Preston (2022) FLC 94–108; [2022] FedCFamC1A 157

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Taylor & Taylor & Taylor [2000] FamCA 308

Wilde & Wilde [2007] FamCA 1044

Division: Division 1 First Instance
Number of paragraphs: 178
Date of hearing: 27 – 31 March and 9 June 2023
Date of last submission: Final Submissions: 6 June 2023
Final Proposed Minute of Orders:14 September 2023
Place: Melbourne
Counsel for the Applicant Mr Williams
Solicitor for the Applicant: KHQ Lawyers
Counsel for the Respondent: Mr Whitchurch
Solicitor for the Respondent: Garland Hawthorn Brahe

ORDERS

MLC 8101 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ANDREEVICH

Applicant
AND:

MR ANDREEVICH

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:

Parenting

1.The parties have equal shared parental responsibility for the three children of the marriage, namely:

(a)X, born 2006 ("X");

(b)Y, born 2009 ("Y"); and

(c)Z, born 2012 ("Z").

2.X, Y and Z live with the mother.

3.X spend time with the father in accordance with her wishes.

4.Y and Z spend time with the father as follows:

(a)In Week 1, from after school (or 3:30 pm if a non-school day) on Thursday until the commencement…

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AGLC
Andreevich & Andreevich (No 4) [2023] FedCFamC1F 734
Case
[2023] FedCFamC1F 734
Decision Date

CaseChat Overview and Summary

This case involved parenting and property proceedings between the applicant wife, Ms Andreevich, and the respondent husband, Mr Andreevich. The main parenting issues were whether the eldest child, X, should spend time with her father and whether the younger children should spend time with each parent on a week about basis or five nights a fortnight. The court considered the Family Report Writer’s opinion that equal shared time was not in the best interests of the younger children due to the parents’ conflict and inability to effectively communicate and work together cooperatively as parents. The court also considered whether, from the commencement of the 2024 school year, Y should be able to spend time in accordance with his wishes. The property issues included the value of the wife’s business, the percentage distribution of the asset pool, and the form of order relating to the former matrimonial home. The court found a just and equitable distribution of the assets was 50%/50%. The court made detailed orders for the parenting and property arrangements, including the division of the asset pool, the transfer of interests in properties, and the winding up of companies and trusts. The court also made orders for the superannuation split, payment of outstanding school fees, and the retention of personal possessions and furnishings. The court noted that the form of the order was subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

MLC 8101 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ANDREEVICH

Applicant

AND:

MR ANDREEVICH

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:

Parenting

1. The parties have equal shared parental responsibility for the three children of the marriage, namely:

(a) X, born 2006 ("X");

(b) Y, born 2009 ("Y"); and

(c) Z, born 2012 ("Z").

2. X, Y and Z live with the mother.

3. X spend time with the father in accordance with her wishes.

4. Y and Z spend time with the father as follows:

(a) In Week 1, from after school (or 3:30 pm if a non-school day) on Thursday until the commencement of school (or 9:00 am if a non-school day) on Friday; and

(b) In Week 2, from after school (or 3:30 pm if a non-school day) on Thursday until the commencement of school (or 9:00 am if a non-school day) the following Monday.

And for the purposes of enforcing this order, the mother and the father are to forthwith jointly explain to Y that they agree this increase in time is in his best interests and that from the commencement of the 2025 school year he can spend time with the father in accordance with his wishes.

5. During the school term holidays, the time set out in Orders 4 (a) and 4 (b) herein be suspended and Y and Z spend time with the father as agreed between the parties in writing, and in default of agreement:

(a) In the Term 1 and Term 3 school holidays: from the conclusion of school on the last day of the school term until 5:00 pm on the middle Saturday; and

(b) In the Term 2 school holidays: from 5:00 pm on the middle Saturday until 5:00 pm the following Sunday.

6. Over the long summer holidays, the time set out in Orders 4 (a) and 4 (b) herein be suspended and Y and Z spend time with the parties as agreed between the parties in writing, and in default of agreement as follows:

(a) Commencing in the 2023/2024 long summer holidays, and each alternate year thereafter, with the mother from the conclusion of the school term for a period of four weeks, with changeover to occur at 12:00 pm on the final day, and thereafter with the father until the commencement of Term 1; and

(b) Commencing in the 2024/2025 long summer holidays, and each alternate year thereafter, with the father from the conclusion of the school term for a period of four weeks, with changeover to occur at 12:00 pm on the final day, and thereafter with the mother until the commencement of Term 1.

7. For the purposes of the following special occasions, save that if Y and Z are spending time with either party travelling during the times set out in Orders 5 and 6 above, then that time shall take priority, Y and Z otherwise spend time with each of the father and mother as follows:

(a) On Father's Day weekend, with the father from 5:00 pm on the Saturday preceding Father's Day until 7:00 pm on Father's Day;

(b) On Mother's Day weekend, with the mother from 5:00 pm on the Saturday preceding Mother's Day until 7:00 pm on Mother's Day;

(c) On Y and Z's birthday:

(i) If a school day, with the parent they would not otherwise be spending the night with from the conclusion of school until 7:30 pm; and

(ii) If a non-school day, with the parent they would not otherwise be spending the night with as agreed and failing agreement from 2:00 pm until 8:00 pm.

(d) On the mother's birthday and X's birthday, if not otherwise spending time with the mother:

(i) If a school day, from the conclusion of school until 7:30 pm; and

(ii) If a non-school day, as agreed and failing agreement from 2:00 pm until 8:00 pm.

(e) On the father's birthday, if not otherwise spending time with the father:

(i) If a school day, from the conclusion of school until 7:30 pm; and

(ii) If a non-school day, as agreed and failing agreement from 2:00 pm until 8:00 pm.

(f) For Chanukah, as agreed between the parties in writing and failing agreement:

(i) Commencing in 2023 and each alternate year thereafter, with the mother for the first night of the religious festival and with the father for the second night of the religious festival; and

(ii) Commencing in 2024 and each alternate year thereafter, with the father for the first night of the religious festival and with the mother for the second night of the religious festival.

(g) For Passover, as agreed between the parties in writing and failing agreement:

(i) Commencing 2023 and each alternate year thereafter, with the father for the first night and with the mother for the second night; and

(ii) Commencing 2024 and each alternate year thereafter, with the mother for the first night and with the father for the second night.

(h) For Rosh Hashanah, as agreed between the parties in writing and failing agreement:

(i) Commencing 2023 and each alternate year thereafter, with the father for the first night and the mother the second night; and

(ii) Commencing 2024 and each alternate year thereafter, with the mother for the first night and with the father for the second night.

8. Notwithstanding Orders 4, 5, 6 and 7 herein, from the commencement of the 2025 school year, Y spend time with the father in accordance with his wishes.

9. The parties be permitted to travel overseas or interstate with Y and Z at times agreed between the parties or in accordance with Orders 5 and 6 subject to the travelling parent:

(a) ensuring that appropriate travel insurance is in place in respect of Y and Z; and

(b) providing to the other parent:

(i) not less than three months' prior to departure written notice to the other parent of their intention to travel with Y and Z;

(ii) not less than 30 days prior to departure:

A. a copy of the proposed itinerary/ies showing dates of departure and return, including a copy of the ticket/s purchased, carrier details, flight numbers and like information;

B. accommodation details; and

C. contact details as to where the other parent may contact Y and Z while they are away.

10. X, Y and Z's passports be held by the mother.

11. The mother make the children's passports available to the father for the purpose of overseas travel no later than seven days prior to the date for departure and the father return the children's passports to the mother within seven days of their return to Australia.

12. For the purposes of changeover:

(a) The father collect Y and Z from school at the commencement of his time, if a school day, and otherwise from outside of the mother's residence; and

(b) The father deliver Y and Z to school at the conclusion of time, if a school day, and otherwise the mother collect Y and Z from the father's residence.

13. The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the children and from permitting any other person from doing so.

14. The parties be permitted to attend all school events relating to the children normally attended by parents and receive at their expense copies of all school reports, school photograph order forms and newsletters.

15. Each party shall advise the other of any serious illness or injury suffered by any of the children as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

16. Each party keep the other informed at all times of their current residential address and contact telephone number.

17. Each party shall facilitate the other having reasonable telephone or videoconferencing contact with Y and Z when in their care and at all times as far as practicable when Y and Z request it.

18. The parties do all acts and things and sign all documents to renew the children's passports as and when they fall due for renewal.

Property

19. Within 90 days of the date of these orders ("the due date"), the wife shall pay to the husband such sum as to affect an overall division of the asset pool of 50% to the wife and 50% to the husband ("the payment") taking into account the proceeds of sale the husband shall receive from the sale of J Street Suburb K (“J Street”) pursuant to Order 2(e) of the orders dated 9 June 2023.

20. For the purposes of the preceding order and calculating the payment the following current liabilities shall be excluded:

(a) L School deferred school fees;

(b) Outstanding L School fees from 2020, 2021 and 2022;

(c) ATO debt of G Pty Ltd for the year ending 30 June 2020 and 30 June 2021;

(d) Credit card debt; and

(e) Balance of outstanding infringement notices owing to Fines Victoria.

M Street, Suburb N

21. Contemporaneously with the payment:

(a) The husband transfer to the wife the whole of his interest and estate in the property situated at and known as M Street, Suburb N, Victoria ("the M Street property") being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio …; and

(b) The wife refinance the loans secured by mortgage over the M Street property into her sole name.

22. In the event the whole of the payment has not been made by the due date, then the parties do all things required to cause the M Street property to be sold on the following conditions:

(a) The selling agent to be agreed between the parties in writing and in default of agreement the wife shall provide to the husband a list of three different agents within 14 days and the husband shall nominate one from the list within 21 days;

(b) The conveyancer is to be agreed between the parties in writing and in default of agreement the wife shall provide to the husband a list of three different conveyancers within 14 days and the husband shall nominate one from the list within 21 days;

(c) Both parties are to be copied into all correspondence with the selling agent and conveyancer;

(d) Any repairs required to prepare the M Street property for sale shall only be carried out if recommended by the selling agent and provided both parties agree to carry out the repairs and the cost of such repairs shall be met by both parties equally;

(e) The sale price shall be agreed upon by the parties within 14 days and in default of agreement, the parties forthwith do all things required to obtain at their joint expense an up-to-date valuation of the M Street property and the valuation be set as the sale price;

(f) The settlement period shall be no less than 90 days unless otherwise agreed between the parties in writing; and

(g) The wife cooperate with the selling agent including:

(i) Making the keys available to the agent;

(ii) Allowing inspections at all reasonable times, as requested by the agent.

23. The sale proceeds of the M Street property be divided as follows:

(a) First, to pay all costs, commissions and expenses of the sale including the agent's commissions and conveyancing costs;

(b) Second, to discharge the mortgage over the M Street property;

(c) Third, so much of the payment as is then outstanding together with interest thereon as provided for under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) from the due date to the husband; and

(d) Fourth, any balance remaining to the wife.

24. Pending the sale of the M Street property:

(a) The wife have sole use and occupancy;

(b) The wife be solely liable to meet the mortgage repayments and all outgoings, including but not limited to all instalments pursuant to the rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind and ensure that all payments are made as and when they fall due;

(c) Neither party shall further encumber the M Street property without the written consent of the other party save for compliance with these orders; and

(d) The parties hold their respective interests in the M Street property on trust pursuant to these orders.

25. If either party fails to comply, there be liberty to apply to the court in respect of the terms and conditions of sale. The terms and conditions of sale are agreed as machinery provisions pursuant to these orders.

G Pty Ltd ("the Company")

26. The parties shall within seven days execute the financial statement and tax return for the company for the year ending 30 June 2021 as prepared by O Accountants (“the accountants”).

27. Following compliance with Order 26 herein the parties shall do all things required to wind up the company as at 30 June 2023, including but not limited to preparing and/or lodging with the ATO any necessary financial statements and tax returns, with the costs of such work to be paid from the proceeds of the sale of the J Street Property pursuant to orders made on 9 June 2023.

28. The parties shall abide by the accountant's advice as to the most cost effective legal manner to wind up G Pty Ltd, G2 Pty Ltd and the G Trusts.

G Pty Ltd & Associates Trust ("the Trust")

29. The parties shall within seven days execute the financial statement and tax return for the trust for the year ending 30 June 2021 as prepared by the accountants.

30. Within 28 days the parties will do all acts and things and sign all documents such that:

(a) The Motor Vehicle 1 with registration … together with the loan secured over the vehicle are transferred into the name of the wife or at her direction at the expense of the wife;

(b) The Motor Vehicle 2 with registration … is transferred into the name of the husband or at his direction at the expense of the husband; and

(c) The business plant and equipment are transferred into the name of the wife or at her direction or at the expense of the wife.

31. Following compliance with Orders 29 and 30 herein the parties shall do all things required to wind up the trust as at 30 June 2023, including but not limited to preparing and/or lodging with the ATO any necessary financial statements and tax returns; and

32. The parties shall abide by the accountant's advice as to the most cost effective legal manner to wind up the Trust.

Superannuation Fund 1

33. That having been afforded procedural fairness, Orders 34 to 40 (inclusive) are binding on the parties in their capacity as trustees of Superannuation Fund 1 ("SMSF") and service of these orders on the trustees is deemed to have occurred on the date of the orders.

34. The parties shall jointly engage the accountant as soon as possible and the accountant shall certify the respective current entitlements of the parties in the SMSF.

35. The parties do all acts and things to cancel any direct debit relating to the premium payments for any policies with P Insurance, Q Insurance or any other provider from being debited from Westpac account ending …68.

36. The parties agree to each retain one half of the total amount of the sum of their respective entitlements in the SMSF and accordingly, the payment split shall be a base amount (pursuant to Section 90XT(1)(a) of the Act) payable with the effect that after payment of that base amount each of the parties will have an equal entitlement in the SMSF.

37. The parties will comply with all legal requirements (including under Superannuation and Taxation Law) to properly and expeditiously implement the superannuation split and follow the reasonable advice of the accountant to do so.

38. Upon the payment split being affected, the husband shall take all necessary steps to transfer his interest in the SMSF to another fund of his choosing.

39. Simultaneously with the implementation of the super split:

(a) The husband shall sign all documents required to resign from and surrender any right in connection with the SMSF;

(b) The wife shall be solely liable for and shall indemnify the husband from any liability in connection with or arising from the operation of the SMSF; and

(c) The husband shall sign, in his capacity as a director of the trustee, the financial returns of the SMSF as required.

40. Pending the superannuation split and transfer of all the husband’s entitlements in the SMSF to another fund:

(a) Each party is restrained from dealing with, charging, encumbering or disposing of any investment property of the SMSF other than in accordance with the terms of these orders and

(b) Each party shall, as soon as practicable, revoke any binding death nomination already made and each party be, and is hereby and until compliance with this agreement, restrained from:

(i) Making any binding death nomination in favour of a child described in Regulation 13 of the Family Law (Superannuation) Regulations 2001 (Cth);

(ii) Making any other nomination where the effect of such nomination would be to render any splittable payment not splittable; and

(iii) Doing any act or thing which would defeat, extinguish or reduce the entitlement of either party under this agreement.

Payment of Outstanding School Fees to L School

41. Each party be responsible for and indemnify the other with respect to 50% of the deferred L School fees for the years 2016, 2017 and 2018.

42. The husband pay the balance of outstanding school fees due to L School up until fees payable for the school year ending December 2022.

C Company Google Password and Username

43. Within seven days the husband provide to the wife the password and username for the 'Google My Business' page for C Company and do all acts and things to enable the wife to access the page.

Wife to Retain

44. The wife shall retain to the exclusion of the husband and indemnify and hold harmless the husband from any liabilities of or associated with:

(a) Her personal possessions and furnishings;

(b) The contents of any bank account in her sole name; and

(c) Her interest in the business C Company.

45. The wife shall be responsible for and indemnify the husband with respect to the credit card debt in her name.

Husband to Retain

46. The husband shall retain to the exclusion of the wife and indemnify and hold harmless the wife from any liabilities of or associated with:

(a) His personal possessions and furnishings;

(b) The contents of any bank account in his sole name; and

(c) His interest in the business R Pty Ltd.

47. The husband shall be responsible for and indemnify the wife with respect to the credit card debt in his name.

Finalisation

48. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;

(b) Monies standing to the credit of the parties in any joint bank account are to be divided 50% to the wife and 50% to the husband and thereafter those accounts are to be closed;

(c) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

(d) Insurance policies remain the sole property of the beneficiary named therein;

(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

49. Within 14 days the applicant file any submissions in relation to the costs, limited to four A4 pages.

50. Within 14 days thereafter the respondent file any submissions in relation to costs, limited to four A4 pages.

51. The question of costs to be determined on the papers.

AND THE COURT NOTES THAT:

A. Pursuant to Section 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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.

Background

Background to the litigation

This matter concerns disputes regarding parenting and property proceedings between the applicant wife Ms Andreevich (“the wife” or “the mother”) and the respondent husband Mr Andreevich (“the husband” or “the father”). BACKGROUND OF RELATIONSHIP The parties met in 1995 and married in 2000. The wife completed a degree in Adelaide from 1996 - 2000, while the husband completed a degree in Melbourne in 1997. There are three children of the marriage: X born 2006, aged 16 years, Y born 2009, aged 14 years, and Z born 2012, aged 11 years. In 2001 the parties established a business, G Pty Ltd, a vehicle to conduct the business of the wife and the consultancy business of the husband. In 2006 the parties jointly purchased a property in J Street Suburb K (“the Suburb K property”). In 2009 they jointly purchased a property in M Street, Suburb N (“the Suburb N property”) where they built a house which became the matrimonial home. The parties separated under the same roof on 1 November 2019 and on 20 July 2020 the wife changed the locks on the Suburb N property and the husband moved into the Suburb K property.DOCUMENTS The wife relied on:(1)Applicant’s response affidavit filed 21 March 2023;(2)Applicant’s Amended Initiating Application filed 10 March 2023;(3)Applicant’s trial affidavit filed 10 March 2023;(4)Applicant’s Financial Statement filed 10 March 2023. The husband relied on:(1)Respondent’s Amended Response to Application for Final Orders filed 13 March 2023;(2)Respondent’s affidavit filed 20 March 2023;(3)Respondent’s affidavit filed 13 March 2023;(4)Respondent’s Financial Statement filed 13 March 2023;(5)Affidavit of Ms T filed 22 March 2023;(6)Affidavit of Mr B filed 22 March 2023. The trial commenced on 27 March 2023 and ran until 31 March 2023, then it was adjourned part-heard to 9 June 2023. At the conclusion of closing submissions interim orders were made dealing with the sale of the investment property owned by the parties where the husband resides. The wife commenced these proceedings on 24 July 2020 and is currently seeking orders as noted in her Closing Submission dated 9 June 2023 to be those set out in her Amended Proposed Minute of Parenting Orders dated 27 March 2023 that:1.The parties have equal shared parental responsibility for the three children of the marriage, namely:(a) [X], born […] 2006 ;(b) [Y], born […] 2009 ; and(c) [Z], born […] 2012 . 2. [X], [Y] and [Z] live with the Mother. 3. [X] spend time with the Father in accordance with her wishes. 4.In the event that the Family Report Writer, [Ms T], is supportive of an increase in time between the Father and [Y] and [Z], [Y] and [Z] spend time with the Father as follows:(a)in week 1, from after school (or 3:30pm if a non-school day) on Thursday until the commencement of school (or 9:00am if a non-school day) on Friday; and(b)in week 2, from after school (or 3:30pm if a non-school day) on Thursday until the commencement of school (or 9:00am if a non-school day) the following Monday. And for the purposes of enforcing this order, the Mother and the Father are to forthwith jointly explain to [Y] that they agree this increase in time is in his best interests and that from the commencement of the 2024 School year he can spend time with the Father in accordance with his wishes.

Evidence

Evidence Before The Court

There were a large number of issues in dispute in this matter, including:(a)Whether X should be the subject of orders to spend time with her father, or whether she should be able to spend time in accordance with her wishes;(b)Whether Ms S should be re-engaged to assist with the relationship between X and the father;(c)Whether Y should be able to spend time with his father in accordance with his wishes after the beginning of 2024;(d)The spend time arrangements for Y and Z;(e)The spend time arrangements during special occasions;(f)The spend time arrangements during the school holidays, in particular the long summer holidays; (g)The percentage distribution of the asset pool;(h)The treatment of the traffic fines in the asset pool;(i)The value of the business, C Company;(j)The assessment of the parties' contributions post-separation and whether the wife has made a greater percentage of contributions;(k)The form of order relating to the former matrimonial home, and whether the mother can afford to retain the home.EVIDENCE I do not intend to set out all the evidence of the parties or to seek to make findings to resolve or comment on each dispute that has been set out in the lengthy affidavit material. I have set out the evidence which is relevant to the decisions I am required to make under the Family Law Act 1975 (Cth) (“the Act”). In his trial affidavit filed 13 March 2023, the husband sets out the history of the parties and of the litigation, including a number of what he says are false allegations made by the wife, demands made by one party to the other and the wife changing the locks on the former matrimonial property. It makes it clear that there is an extensive history of conflict between the parties leading up to separation and post-separation. The wife sets out a similar history of conflict and allegations, but largely disagrees with the events as told by the husband. The parties agree that the children are well settled and performing well academically. The evidence was that X is achieving exceptional academic results. During the relationship, the husband describes that they jointly cared for the children with the help of a babysitter. He describes the wife's work life putting him under significant pressure. The wife acknowledges that they shared care, but says the husband had a much smaller role than he says in his evidence, and that she was the primary carer. Following separation, the husband gives evidence that the wife sought to only have the children spend daytime visits with the husband. He gives evidence of the wife taking the children to the psychologist without his knowledge or permission, and that he attempted to intervene, but the wife refused. The wife gives evidence that at the time, the husband was being abusive, and she makes allegations of stalking, and she feared for her and her children's safety. She acknowledges that these issues are historic, and she is happy with the children spending overnight time with the husband. Both parties agree that the wife locked the husband out of the former matrimonial home in July 2020 without any prior notice or explanation to the children. The husband says this led to numerous missed calls and messages from the children and a deterioration in their relationship, in particular with X. When asked about the effect on the children, the wife acknowledges that the children were upset and confused by this. X did not spend any time with the husband following this, save for one overnight visit.

Decision

Reasons for decision

The father is being assessed for child support. The father will have an obligation to pay child support and it is likely that the level of that child support will equate to the current level of expenditure on utilities on the M Street property which will cease when the child support assessment comes into force.CONCLUSION The mother's post-separation contributions have been greater than the father's, however the father will have ongoing obligations and expenses and his future needs are at a somewhat greater level than the wife's because of his more limited earning capacity. The wife has sought an adjustment in her favour of 60%/40% based on her primary care of the three children and her responsibility to feed, house and pay for 50% of the children’s private school fees. She asks the court to assume that the father will be delinquent in his contributions to school and extracurricular expenses. I do not accept that will be the case. The father points to the mother’s same and superior earning capacity and that the children, Y and Z, will be spending substantial time with him. He seeks an adjustment of 54%/46% in his favour. In the circumstances, the contributions and s 75(2) factors are evenly balanced. I find that a just and equitable distribution of the assets is 50%/50%. At the conclusion of the hearing on 9 June 2023, Interim Orders were made dealing with the sale of J Street property and the proceeds of the sale as follows, with Order 1 dealing with the mechanics of selling the property:THE COURT ORDERS THAT:2. The sale proceeds of the [J Street] property be divided as follows:(a)First, to pay all costs, commissions and expenses of the sale including agent’s commissions and conveyancing costs;(b) Second, to discharge the mortgage over the [J Street] property;THE COURT ORDERS BY CONSENT THAT:(c)Third, such sum as agreed by parties to pay out the outstanding fines due to Fines Victoria […] (“Driving Fines”) and failing agreement then as determined by [O Accountants] (“the Accountants”) with such sum to be held in trust by the solicitors for the Wife pending further order of the Court; and(d)Fourth, such sum as agreed by the parties or failing agreement as advised by the Accountants to cover the anticipated CGT of the sale, any outstanding tax liabilities owing by [G Pty Ltd] and [G2 Pty Ltd] as trustee for the [G Trust], the Accountants costs of preparing outstanding financial and tax returns for the said entities and costs to wind up the entities, such sum to be held in trust by the solicitors for the Wife pending further order of the Court.THE COURT ORDERS THAT:(e)Fifth, the balance to be paid to the Husband to be adjusted as part of the overall final settlement.3. Pending the sale of the [J Street] property:(a) The Husband have sole use and occupancy;(b)The Husband be solely liable to meet the mortgage repayments and all outgoings, including but not limited to all instalments pursuant to the rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind and ensure that all payments are made as and when they fall due;(c)The Wife be responsible for the payment of instalments with respect to the Driving Fines;(d)Neither party shall further encumber the [J Street] property without the written consent of the other party; and(e)The parties hold their respective interests in the [J Street] property on trust pursuant to these orders.4.If either party fails to comply, there be liberty to apply to the Court in respect to the terms and conditions of sale. The terms and conditions of sale are agreed as machinery provisions pursuant to these orders.

Ratio Decidendi

Legal Principle Established

The presumption of equal shared parental responsibility does not apply in certain circumstances (s 61DA(2)) and may be rebutted if the court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). CONSIDERATION REGARDING PARENTING I do not need to make findings about each of the matters of dispute that have arisen between the parties and which are set out in their trial affidavits. The main disputes in relation to parenting are:(a)whether the younger children spend time with the parents on a week about basis or five nights a fortnight; (b)whether any orders are made for X to spend time with the father; and(c)whether, from the commencement of the 2024 school year, Y can spend time in accordance with his wishes. Given that each party is seeking orders for shared parental responsibility, s 65DAA of the Act requires consideration about whether the children spending equal time with each of the parents is in the best interests of the children. Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the court must regard the best interests of the children as the paramount consideration. Ms T expressed the opinion that equal shared time was not in the best interests of the younger children in the following terms in her First Family Report: 109. It is my view that at this time a shared care living arrangement would not work in the best interest of the three children. [The mother and the father] have not developed a co-operative parenting relationship with appropriate communication. This means that the children would not be assisted to adjust to such an arrangement. At this time, [X] would refuse to co-operate in such an arrangement, and it is unknown how [Y] would feel about such an arrangement. While [Z] said that she would like shared care, for [Z] this was about being fair to each parent (as a result of being caught in the middle of the conflict). At this time a shared care arrangement would leave the siblings separated each alternate week for a week at a time, which may mean [Z] is on her own without her siblings in alternate weeks for the week. This is not about whether [the mother or the father] is the better parent, it is about circumstances where [the mother and the father] are in conflict, unable to effectively communicate, they are unable to work together co-operatively as parents, as well as the separation of siblings. It is also not about equal time with children automatically meaning the children receive the same quality of parenting, as some parents who parent full-time do not provide the quality or caring responsible parenting as provided by some parents who spend little time with their children. Equal time does not equate with the child necessarily receiving quality time with each parent.[10][10]Family Report dated 2 October 2020 at [109], Court Book pages 732 - 733 of 1099. In her oral evidence before the court Ms T expressed similar views and did not support week about time. She emphasised the need for cooperation between parents if such orders are made and that for the children it is about the quality of the time spent with each parent.