BAGSHAW & SEE

FAMILY COURT OF AUSTRALIA

BAGSHAW & SEE

[2019] FamCA 482

FAMILY LAW – CHILDREN – Best interests – Where the mother seeks an order for sole parental responsibility – Where the mother seeks orders that the child live with her and spend limited time with the father – Where the father seeks an order for equal shared parental responsibility – Where the father seeks orders that the child live with the mother and spend substantial and significant time with him – Where the mother asserts that the child is at risk in the father’s care as a result of his historical perpetration of family violence and the child’s particular developmental, emotional and behaviour difficulties – Where the Court finds that the father has not perpetrated family violence against the mother or the child – Where the Court finds that the child is not at risk in the father’s care – Where the Court finds that it is in the child’s best interests for him to have a meaningful relationship with the father – Where the Court finds that the mother has not encouraged the child’s relationship with the father – Where the Court finds that the father has the requisite capacity to care for the child – Orders made for the child to live with the mother and spend substantial and significant time with the father.

FAMILY LAW – PROPERTY – Settlement in relation to a marriage – Where the parties seeks orders for an adjustment of the matrimonial property – Where the husband has made notable initial contributions to the property pool – Where the husband’s parents advanced almost $900,000 to the parties, which allowed them to purchase the former matrimonial home – Where that property significantly increased in value and its sale proceeds make up the majority of the asset pool available for distribution – Where the husband and his parents assert that sum was a loan to the parties – Where the wife asserts that sum was a gift to the parties – Where the wife will continue to be the primary carer of the parties’ child – Court finds that the monetary advance by the husband’s parents cannot be said to be a legally enforceable loan – Court finds that monetary advance by the husband’s parents to be a significant contribution on the part of the husband – Orders made for a 70 per cent adjustment of the matrimonial asset pool in favour of the husband.

Family Law Act 1975 (Cth) ss 4AB, 43(1), 60B(1), 60CA, 60CC, 61DA, 65DAA, 65DAC, 75(2), 79, 106A
Evidence Act 1995 (Cth) s 140

Ashton v Pratt (No 2) [2012] NSWSC 3
Bevan & Bevan (2013) FLC 93-545
Biltoft and Biltoft (1995) FLC 92-614
Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Britt & Britt [2017] FamCAFC 27
Calverley v Green [1984] HCA 81
Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631
Chaudhary v Chaudhary [2017] NSWCA 222
Chorn & Hopkins (2004) FLC 93-204
Dickons & Dickons [2012] FamCAFC 154
DJM & JLM (1998) FLC 92-816
Dundas & Blake (2013) FLC 93-552
Ermogenous v Greek Orthodox Community of SA Inc [2002] 209 CLR 95
Farmer v Bramley (2000) FLC 93-060
Farnell & Farnell (1996) FLC 92-681
Fields & Smith (2015) FLC 93-638
Grefeld & Grefeld And Anor [2010] FamCA 504
Grier & Malphas (2017) 55 Fam LR 107
Heydon v The Perpetual Executors Trustees and Agency Co WA Limited (1930) 45 CLR 111
Jones v Dunkel (1959) 101 CLR 298
Kowaliw and Kowaliw (1981) FLC 91-092
Lee Steere & Lee Steere (1985) FLC 91-626
Lenehan & Lenehan (1987) FLC 91-814
Mallet & Mallet (1984) 156 CLR 605
Marra Capital Investments Pty Ltd, in the matter of Tri-City Trucks (NSW) Pty Ltd (in liq) v Smith (liquidator) [2018] FCAFC 211
Mayne & Mayne (2011) FLC 93-479
Mazorski & Albright (2007) 37 Fam LR 518
Norbis v Norbis (1986) FLC 91-712
Omacini & Omacini [2005] FLC 93-218
Petruski & Balewa (2013) 49 Fam LR 116
Pierce & Pierce (1999) FLC 92-844
Rodgers & Rodgers (No. 2) (2016) FLC 93-712
Sebastian & Sebastian (No 5) [2013] FamCA 191
Sigley v Evor (2011) 44 Fam LR 439
South Australia v Commonwealth [1962] 108 CLR 130
Stanford & Stanford (2012) 247 CLR 108
Strand & Strand (No. 2) [2018] FamCAFC 247
Tomasetti & Tomasetti (2000) FLC 93-023
Townsend & Townsend (1995) FLC 92-569
Trevi & Trevi [2018] FamCAFC 173
Vass & Vass (2015) 53 Fam LR 373
VR & RR (2002) FLC 93-099

APPLICANT:

Mr Bagshaw

RESPONDENT:

Ms See

INTERVENORS:

Mr B Bagshaw and Ms C Bagshaw

FILE NUMBER:

SYC

6434

2015

DATE DELIVERED:

23 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

11 - 14 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ford

SOLICITOR FOR THE APPLICANT:

RMB Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Blank

SOLICITOR FOR THE RESPONDENT:

Fox Cheshire

COUNSEL FOR THE INTERVENORS:

Mr Othen

SOLICITOR FOR THE INTERVENORS:

Tiyce & Lawyers

Orders

All orders previously made in this matter be dismissed.

Parenting Orders

Parental responsibility

The parties have equal shared parental responsibility for the child, X , born … 2014 (“the child”).

Live with/spend time

The child live with the mother.
Unless otherwise agreed by the parties in writing, the child spend time with the father, as follows:
During the school term
(a)For a period of two months, each Wednesday, Friday and Sunday from the conclusion of daycare/preschool (or 8.00 am if a non preschool/daycare day) until 6.30 pm;
(b)For a period of three months thereafter, each Wednesday and Friday from the conclusion of daycare/preschool (or 8.00 am if a non preschool/daycare day) until 6.30 pm AND each Sunday from 8.00 am until the commencement of preschool/daycare on Monday (or 8.00am if a non-preschool/daycare day);
(c)From the conclusion of the period referred to in the paragraph immediately above until the first week of Term 1 2021, each alternate Friday from the conclusion of school (or 3.00 pm if a non-school day) until 9.00 am on Sunday AND, in the other week, from the conclusion of school on Thursday (or 3.00 pm if a non-school day) until the commencement of school on Friday (or 9.00 am if a non-school day);
(d)From the first week of Term 1 2021, each alternate Friday from the conclusion of school (or 3.00 pm if a non-school day) until the commencement of school on Monday (or 9.00 am if a non-school day) AND, in the other week, from the conclusion of school on Thursday (or 3.00 pm if a non-school day) until the commencement of school on Friday (or 9.00 am if a non-school day);
During school holidays
(e)From Term 1 2021, for half of the New South Wales gazetted short school holidays, as follows:
(i)From the conclusion of school on the last day of the school term until 9.00 am on the middle Saturday of the school holiday period in even numbered years; and
(ii)From 9.00 am on the middle Saturday of the school holiday period until the commencement of school on the first day of the next term in odd numbered years;
(f)From Term 1 2021 until Term 1 2024, for alternate weeks of the New South Wales gazetted Christmas school holidays, as follows:
(i)In even numbered years, from the conclusion of school on the last day of Term 4 until 9.00 am on the day that falls seven (7) days thereafter, and each alternate week thereafter; and
(ii)In odd numbered years, from 9.00 am on the day that falls seven (7) days after the conclusion of Term 4 until 9.00 am seven (7) days thereafter, and each alternate week thereafter;
(g)From Term 1 2024, for half of the New South Wales gazetted Christmas school holidays, as follows:
(i)In even numbered years, from the conclusion of school on the last day of Term 4 until 3.00pm on the middle Friday of the school holiday period; and
(ii)In odd numbered years, from 3.00 pm on the middle Friday of the school holiday period until the commencement of school on the first day of Term 1;
Special occasions
(h)From 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, in odd numbered years;
(i)From 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, in even numbered years;
(j)From 3.00 pm on Easter Saturday until 3.00 pm on Easter Sunday, in even numbered years;
(k)From 3.00 pm on Easter Sunday until 3.00 pm on Easter Monday, in odd numbered years
(l)In the event that the child’s birthday falls on a day when the father would, otherwise, not spend time with the child, from the conclusion of school (or 3.00 pm if a non-school day) until 7.00pm;
(m)In the event that the father’s birthday falls on a day when the father would, otherwise, not spend time with the child, from the conclusion of school (or 9.00 am if a non-school day) until 7.00pm; and
(n)In the event that Father’s Day falls on a day when the father would, otherwise, not spend time with the child, from 9.00 am until 7.00pm.
The child’s time with the father be otherwise suspended so that the child spend time in the mother’s care on the following occasions of significance:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, in even numbered years;
(b)From 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, in odd numbered years;
(c)From 3.00 pm on Easter Saturday until 3.00 pm on Easter Sunday, in odd numbered years;
(d)From 3.00 pm on Easter Sunday until 3.00 pm on Easter Monday, in even numbered years;
(e)From 3.00 pm on Chinese New Year's Eve until 5.00 pm on Chinese New Year's Day;
(f)In the event that the child’s birthday falls on a day when the mother would, otherwise, not spend time with the child, from the conclusion of school (or 3.00 pm if a non-school day) until 7.00pm;
(g)In the event that the mother’s birthday falls on a day when the mother would, otherwise, not spend time with the child, from the conclusion of school (or 9.00 am if a non-school day) until 7.00pm; and
(h)In the event that Mother’s Day falls on a day when the mother would, otherwise, not spend time with the child, from 9.00 am until 7.00pm.
For the purposes of changeovers that do not otherwise occur at the child's daycare/preschool/school, the mother, or her agent, shall deliver the child to the father, or his agent, at an agreed location at the commencement of the father's time with the child, and the father, or his agent, shall deliver the child to the mother, or her agent, at an agreed location at the conclusion of the father's time with the child.
Failing agreement of the parties, the changeover location shall be Woolworths Suburb E in the State of New South Wales.

Communication

The child have telephone, Skype, and/or FaceTime (or use through a similar video chat/electronic method) contact with each parent, during times that he is not otherwise in their care at all times, as requested by the child.
The parties shall, except in the case of emergencies, communicate with each other by email or text message. In the event of an emergency, the parties may also communicate by telephone.
These orders are taken to be an irrevocable authority for the child's school or educational facility to provide information to either of the parties about the child, at the requesting party’s expense, including but not limited to any:
(a)Report;
(b)Invitation;
(c)Circular;
(d)Newsletter
(e)School photograph order form; and/or
(f)Notice.
These orders are taken to be an irrevocable authority for the child’s treating medical practitioners or allied health workers, to provide information to the parties about the child, at the requesting party’s expense, including but not limited to:
(a)       Treatment;
(b)       Referrals;
(c)       Medication; and/or
(d)       Any other information regarding medical history.
The parties be at liberty to attend any of the child’s school events to which parents are typically invited.
Within seven (7) days, the parties shall provide each other with the details of their current residential address and contact telephone number. In the event that those details change, the relevant party shall notify the other of their new details, within 24 hours of such change occurring.
Each party shall promptly notify the other of any significant illness or injury suffered by the child that requires medical treatment or medication, while in that party’s care, and will include details of such illness, injury, medical treatment, or medication.

Travel

Subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 (Cth), each party (being Mr Bagshaw, born … 1970 and Ms See, born … 1981) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child, X, born … 2014, from the Commonwealth of Australia. It is requested that the Australian Federal Police give effect to this order by maintaining the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until 20 November 2030, until the Court orders its removal, or with consent of all parties.

Restraints

Each party be restrained by injunction from:
(a)Discussing these proceedings in the presence or hearing of the child, or showing any document related to these proceedings to the child, or permitting any other person to do so; and
(b)Denigrating the other party, or members of the other party's family to the child or in the hearing or presence of the child, or allowing other persons to denigrate the other party, or members of the other party’s family to the child or in the hearing or presence of the child.

Property Orders

Within 28 days, the wife give vacant possession of the property situate at F Street, Suburb E NSW (“the Suburb E property”) to the husband.
The wife do all things necessary to ensure that the Suburb E property is in clean, neat and tidy condition upon vacating that property.
At the time of compliance with order 17 above, the wife return all keys and access passes to the Suburb E property to the husband.
The husband be declared the sole owner of the Suburb E property.
At the time of compliance with order 17 above, the sum of $692,444.80 be distributed to the husband from the funds held in the controlled monies account by RMB Lawyers (“the controlled monies account”).
At the time of compliance with order 17 above, the sum of $510,946.20 be distributed to the wife from the controlled monies account.
As between the husband and the wife, and subject to the above orders, the husband and the wife shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his/her respective possession or control;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
(c)All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
The husband and the wife hereby release each other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
The husband and the wife shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these orders in the time periods prescribed.
In the event that the husband and/or the wife refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bagshaw & See has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6434 of 2015

Mr Bagshaw

Applicant

And

Ms See

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns the respective applications of the spouse parties, Mr Bagshaw (“the father/husband”) and Ms See (“the mother/wife”), for final parenting and property orders. The parenting proceedings relate to the parties’ child, X, born in 2014 (“the child”).
In the property proceedings, the father’s parents, Mr B (“Mr B”) and Ms C (“Ms C”) (collectively referred to as “the intervenors”) were given leave to intervene in respect to the enforcement of, what they contend is, a loan contract between them and the parties. With all due respect, to avoid any uncertainty, I refer to Mr B and Ms C, individually, by their first names throughout these Reasons for Judgment. I similarly do so in respect of the wife’s mother, Ms D.

Background

I will now set out the agreed facts relevant to this matter and, where the parties disagree on certain issues, their respective contentions.
In 1970, the father was born. He is currently aged 49 years.
In 1981, the mother was born. She is currently aged 37 years.
In 2004, the father purchased the property situate at F Street, Suburb E NSW (“the Suburb E property”).
In 2005, the mother moved to Australia as an international student.
In early 2006, the parties met online and started dating a few months later.
Between 2006 and 2009, the mother worked in retail at Suburb E. She asserts that she earned approximately $100 to $300 per week, which she contributed to the parties’ joint expenses. The father acknowledges that some, but not all, of the mother’s earnings were applied to their joint expenses.
In December 2006, the parties commenced cohabitating at the Suburb E property.
At the time the parties commenced cohabitation, the father was employed as an Administrative Director of G Pty Ltd, which is a company in which Mr B has a large stake. The father has been employed at G Pty Ltd since he was 18 years of age. In his Financial Statement filed on 15 January 2019, he states that he continues to be employed by G Pty Ltd.
In 2007, the parties were married.
In late 2009, the mother began operating a business.
In May 2010, the father sold his property at H Street, Suburb J for $385,000.00. He asserts that those proceeds of sale were partly applied to the parties’ living expenses. The mother disputes that the totality of the proceeds were so applied.
In or around March 2011, the father sold his property at 1 K Street, Suburb J for approximately $430,000.00. The father asserts that those proceeds of sale were partly applied to the parties’ living expenses. Again, the mother disputes that the totality of the proceeds were so applied.
In respect to the proceeds of sale of the father’s two Suburb J properties, the mother asserts that, when she asked the father what he intended to do with those funds, he said: “I'm going to pay off the loan on [the Suburb E property] and keep the rest for later, for when we need to upsize”. The mother asserts that, apart from the repayment of the mortgage over the Suburb E property, she is not aware what happened to those funds. She also says that, from bank accounts into which the father deposited those sale proceeds, he has expended over $90,000 since the parties’ separation. That issue is further considered below.

In 2013, Ms D secured a two-year temporary visa and relocated to Australia. The intervenors assert that they advanced $20,000 to assist with Ms D’s residency. However, the mother states that the intervenors advanced $12,000 towards Ms D’s visa expenses, and that she paid $12,010. She agrees that Mr B executed the payment of those combined funds, in the sum of $24,010 to the Department of Immigration and Citizenship on 12 June 2013. The intervenors dispute that the mother contributed to the payment of Ms D’s visa and state that she has not made any repayments in respect to the $20,000 gifted to her for that purpose. I have found that the intervenors advanced the amount of $20,000, in that instance.
In May 2013, the intervenors sold their property at 3 K Street, Suburb J for $2,500,000.
In 2014, G Pty Ltd commenced to “wind down” its operations.
In March 2014, the parties inspected the property at L Street, Suburb M (“the Suburb M property”). The intervenors later attended an inspection of the Suburb M property and agreed that the parties should purchase it.
Also in March 2014, the intervenors purchased their current residence at Suburb P.
In March 2014, the Suburb M property was purchased for $855,000. The intervenors paid a 5 per cent deposit for the property of $42,750.
The father and the intervenors assert that this, as well as subsequent monies paid by the intervenors in the purchase of the Suburb M property, was a loan to the parties. The mother disputes that to be the case.
On 29 April 2014, Mr B transferred $814,911 to the office trust account of O Partners, the parties’ conveyancers, being for the balance of the purchase price of the Suburb M property, as well as council, water and legal fees.
In mid-September 2014, Mr B transferred a further sum of $33,985 to the office trust at O Partners in payment of stamp duty for the Suburb M property. Around that time, the father undertook renovations to the Suburb M property with Mr B and labourers. The mother contends that she provided some assistance in respect to those renovations.
In October 2014, the mother ceased operating her business.
In 2014, the parties’ child X (“the child”) was born. He is currently aged four years.
Upon the child’s birth, he was diagnosed with a medical condition.
In April 2015, the parties, the child and Ms D commenced living at the Suburb M property.
In early-June 2015, the intervenors assert that they commenced discussions with the parties to draft an agreement with respect for the partial repayment of their asserted loan to the parties.
In June 2015, the parties and the intervenors decided that, rather than selling the Suburb E property, they would transfer it to either Mr B or Ms C. This transfer has not occurred and the mother, the child and Ms D continue to reside at the Suburb E property.
In early-July 2015, Ms C asserts that, she and the father were preparing the Suburb E property to be tenanted, when Mr B, the mother, the child and Ms D arrived at the property. Her evidence is that the following conversation took place:
I recall Mr B saying to Ms See words to the effect of:
"How is the sale of your mother's apartment going in City Q?"
To which Ms See responded by saying words to the effect of:
"We have changed our minds. We are not selling my mother's apartment; it is my mother's only asset."
I recall responding by saying words to the effect of:
"Ms See, we had to sell our assets to bring your mother to Australia."
The conversation ended abruptly, Ms See took [the child] and together with her mother left the F Street apartment. This conversation caused me to become upset.
The father asserts that the mother told the intervenors that Ms D had changed her mind about selling the China property in August 2015, as follows:
I recall on one occasion in or around mid August 2015, my parents attended the [Suburb M] property to drop off Assurance of Support papers for Ms D. When Mr B sought to discuss the papers with Ms See, Ms See said words to the effect of "Don't worry about it, it's all fixed." Ms See then put her head down and folded her arms. I responded with words to the effect of "How was that done? Where did the funds come from?" Ms See did not respond. Mr B then said words to the effect of "What happened about the idea of selling your mother's apartment?" Ms See responded with words to the effect of "She has changed her mind."
On 28 July 2015, the mother asserts that the father shouted at her after the intervenors offered to mind the child.
On 6 August 2015, the mother asserts that Mr B yelled at her after the intervenors offered to mind the child.
On 30 August 2015, the mother asserts that the father shouted at her after he took the child somewhere without telling her.
On 31 August 2015, an incident occurred, which resulted in the police attending the Suburb M property.
On 1 September 2015, the parties separated, when the mother, the child and Ms D left the Suburb M property and subsequently stayed at a women’s refuge.
On 9 September 2015, the mother returned to the Suburb M property, with police officers, to collect personal belongings.
On 29 September 2015, the father commenced these proceedings by way of Initiating Application.
On 7 October 2015, the following orders were made by Stevenson J:
IT IS ORDERED THAT:
1. The mother is to forthwith provide to the Docket Registrar the current residential address of the child and is to advise the Docket Registrar of any changes in that address from time to time.
2. The Registrar shall not disclose the child’s address for the time being to any person without the further order of a Justice of the Court.
AND IT IS BY CONSENT ORDERED PENDING FURTHER ORDER THAT:
3. Orders are made in accordance with paragraphs 1 to 5 and 7 to 10 of a document titled “Short Minutes of Interim Consent Orders” dated today, filed herein as set out hereunder:
1. That the parties have joint parental responsibility for the child of the marriage X born … 2014 (“X”).
2. That X live with the mother when not otherwise living with the father.
3. That X live with the father:
(i) Friday, Sunday and Wednesday of each week from 12.00 noon to 4.30 pm commencing 9 October 2015
(ii) at such other times agreed between the parties in writing.
4. That both parties deliver up to the Registrar any passport or other travel authority or documents entitling that party or the said child X to leave the jurisdiction within 7 days.
5. That the said child X (a male) born … 2014 be placed on the airport watch list.
…
7. That Order 3 be facilitated by the mother delivering the child X to the father at McDonalds Suburb S at the commencement of such period and the father returning the child X to the mother at McDonalds Suburb S at the conclusion of such period.
8. That both parties:-
(a) enrol in a parenting course nominated by the wife’s solicitor in the Sydney Metropolitan area within 3 days and
(b) attend counselling as directed by the Court.
9. That in further facilitating Order 3 that the mother be permitted to observe the first 30 minutes of time spent by X with the father without her intervention or comment at L Street, Suburb M and at the conclusion of that 30 minute period the mother shall depart the L Street, Suburb M premises.
10. That in the event of X being or becoming unwell the party with whom X is then living shall immediately notify the other party in writing as to particulars and medical treatment.”
AND THE COURT REQUESTS that the Australian Federal Police give effect to these Orders by placing the name of the following person on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia:
(a) X (a male) born … 2014.
4. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
In 2014, the father ceased receiving an income from G Pty Ltd.
In January 2016, the mother, the child and Ms D moved into a two-bedroom unit in Suburb DD through a public housing scheme. The mother asserts that she was offered an initial 13-week low-cost lease, which would be extended if an alternative housing option was not available.
On 12 February 2016, the father was charged with common assault for allegedly pushing the mother on her shoulder so that she fell to the ground at Suburb S McDonalds, during changeover. The father denies having pushed the mother to the ground and asserts that, while he was walking towards the mother, he saw her throw herself to the ground, while Ms D took photographs.
On 17 February 2016, Senior Registrar Campbell made, inter alia, an order that the father pay the mother $30 whenever the child spent time with him, as interim maintenance for travel expenses. The mother asserts that the father repeatedly failed to make that payment.
On 7 March 2016, orders were made by Le Poer Trench J which included the mother having exclusive occupancy of the Suburb E property. Those orders were:
Pending further order and by consent, the Court orders that:
1. On a without prejudice and without admissions basis, the Applicant shall have exclusive occupancy of the property known as and located at 1/18-20 F Street, Suburb E (“the Property”).
2. The Respondent shall make the Property available for occupation within 7 days of the making of these Orders and clear the garage within 18 days.
3. Whilst the Applicant has exclusive occupancy of the Property in accordance with Order 1 herein, the Respondent shall be responsible for and pay the following expenses in relation to the Property when they fall due:
a. Any and all loan repayments in regards to the mortgage secured by the Property;
b. All Council Rates; and
c. Strata levies.
4. Within 7 days of the making of these Orders, the Respondent shall pay the sum of $15,000 to the Applicant or as nominated by the Applicant in writing with the characterisation of such payment to be determined by the trial judge.
5. The Applicant’s Application in a Case filed 25 February 2016 be otherwise dismissed.
6. The Court notes that the Respondent shall deliver the keys to the Property and garage within 48 hours to HH Agents at Suburb E NSW.
On that date, the mother, the child and Ms D commenced living at the Suburb E property. They continued to reside there as at the date of the hearing.
On 11 March 2016, Ms R (“Ms R”), Family Consultant, released a Child Responsive Program Memorandum in relation to the parenting proceedings.
On 24 March 2016, the father was acquitted of the charge of common assault.
On 4 May 2016, the intervenors were joined to the proceedings. The mother opposed that joinder.
On 25 July 2016, orders were made by Johnston J for the father to pay $50 per week to the wife by way of interim spousal maintenance on account of her travel expenses associated with the changeover location. The mother asserts that the father failed to make a number of those payments. The father asserts that he ceased making those payments when the mother began walking to the changeover location after it was relocated closer to her residence.
Also on 25 July 2016, the matter was transferred to the Federal Circuit Court of Australia.
The father asserts that between 6 November 2016 and 19 March 2017, the mother failed to effect changeover so that the child did not spend time with him pursuant to Court orders on 24 occasions.
In early 2017, a divorce order was made.
On 23 March 2017, the following orders were made by Judge Boyle:
… 2. The father has leave to withdraw his contravention applications filed 12 August 2016 and 11 November 2016.
3. Order 3.i. of the orders made 7 October 2015 be varied to read:
a. “[The child] spend time with the father each Wednesday, Friday and Sunday from 8am to 4:30pm”.
4. The parties maintain a communication book to be provided to the other at changeovers relating only to matters concerning X, his routine, health issues, and any other relevant matter for the child.
5. The parties be restrained from denigrating or criticising the other in the hearing or presence of the child.
On 4 May 2017, the following consent orders were made by Judge Harper (as he then was):
a. That MR B, born … 1942, and MS C, born … 1944, be joined to these proceedings as intervenors. …
e. That the parties do all things necessary and sign all documents required to obtain a single joint expert valuation, pursuant to rule 15.09 of the Federal Circuit Court Rules 2001 (Cth), for:
i. The property situated at and known as F Street, Suburb E, NSW.
f. That the parties be referred to the Family Law Settlement Service (“FLSS”) for mediation in relation to property/financial issues, to take place within 2 months.
g. That the matter be referred for a Family Report.
h. That in relation to the costs associated with FLSS and the single expert valuation, the Husband pay the Wife's costs at first instance with such sum to be deducted from any settlement funds received by her at a later date and repaid to the Husband.
i. That the parties agree to list for sale forthwith, and by no later than 1 August 2017, the property situated at and known as L Street, Suburb M (the Suburb M Property).
j. That upon the sale of the Suburb M property, the proceeds thereof be paid as follows:
i. Payment of agent’s commission;
ii. Payment of other costs of sale;
iii. The balance thereafter be deposited into a controlled monies account in the name of the Husband and Wife. …
FURTHER TO ORDER 3(i) ABOVE, THE COURT ORDERS THAT:
15. In the event the parties are unable to agree upon a real estate agent to sell the Suburb M property, the applicant is to nominate three real estate agents and the respondent is to choose one of those agents, such selection process to be finalised no later than 16 June 2017.
16. In the event that the Suburb M property is not sold by private treaty by 31 October 2017, the property is to be listed for sale by public auction. In relation to any such public auction, if the parties are unable to agree as to the appropriate selling agent the applicant is to nominate three selling agents with the respondent to choose one of those three.
17. In the absence of agreement between the parties, the agents referred to in orders 15 and 16 above are to nominate selling date, the processes of advertising and the length of any selling campaign and set the reserve price in relation to the Suburb M property.
In January 2018, the mother made allegations of sexual abuse and/or inappropriate behaviour on the part of the father towards the child. The father denies those allegations.
Between 24 January and 7 March 2018, the father asserts that, on 19 occasions, the mother failed to effect changeover so that the child did not spend time with him pursuant to Court orders.
On 25 January 2018, the father asserts that the mother’s solicitors informed his solicitors that she would be suspending the child’s time with him until the Department of Family and Community Services (“DFACS”) had investigated allegations made by her of inappropriate conduct on the part of the father towards the child. The mother did not file a formal application in regard to the suspension of the child’s time with the father.
On 8 February 2018, DFACS contacted the father to inform him that their investigation had been finalised and that the mother’s allegations as against him had not been substantiated. Despite that fact, the mother did not reinstate the child’s time with the father until 15 April 2018, which resulted in the child not seeing the father for 11 weeks.
On 9 and 12 February 2018, the father’s solicitors wrote to the mother’s solicitors regarding the reinstatement of the child’s time with the father. No response was received to that correspondence.
On 9 February 2018, the Suburb M property was sold for $1,295,149.28. The parties agreed to an interim distribution of $50,000 being made to each of them. The current balance of those sale proceeds, being $1,203,391.60, is held in a controlled monies account operated by the father’s solicitors, RMB Lawyers.
Since the sale of the Suburb M property, the father has lived at the intervenors’ residence at 2 K Street, Suburb J. As at the date of the hearing, he continued to reside there. He is not required to pay rent for those premises.
On 8 March 2018, Ms R released a Family Report in relation to the parenting proceedings.
On 21 May 2018, the Suburb E property was valued at $660,000.
Between 16 and 21 November 2018, the father asserts that the mother did not facilitate the child’s time with him, stating that the child was unwell. The father says that the mother provided him with a doctor’s certificate, which was an altered version of a previous certificate provided in April 2017. That issue is further addressed below.

Applications

The father’s application

The orders sought by the father were in accordance with his case outline document (Exhibit “14”), as follows:
PARENTING
Parental Responsibility
1. That the Applicant and the Respondent have equal shared parental responsibility for the child X (DOB: …2014) including but not limited to matters of a long term nature including:
1.1 The education of the child – both current and future;
1.2 The religion of the child;
1.3 The health and medical treatment of the child; and
1.4 Any change to the child's living arrangements that make it significantly more difficult for the child to spend time with the other parent.
2. That the Mother shall have the sole parental responsibility for making decisions about the day to day care, welfare and development of the child during periods when the child is living with or spending time with her.
3. That the Father shall have the sole parental responsibility for making decisions about the day to day care, welfare and development of the child during periods when the child is living with or spending time with him.
Live with and Spend Time with
4. That the child live with the Mother.
5. That the child spend time with the Father as follows:
During NSW School Terms
5.1 From the conclusion of school on Friday (or 4.00pm if a non-school day) to the commencement of school on Monday (or 9.00am if a non-school day) each alternate weekend;
5.2 From the conclusion of school on Wednesday (or 4.00pm if a non-school day) to the commencement of school on Thursday (or 9.00am if a non-school day) each week; and
5.3 At other times as may be agreed between the parties in writing from time to time.
During NSW School Holidays
5.4 For one half of the Terms 1, 2, and 3 Holiday Periods as follows:
5.4.1 From 9.00am on the day following the last day of school the term until 5.00pm on the middle Saturday of the school holiday period in even numbered years; and
5.4.2 From 5.00pm on the middle Saturday of the school holiday period until 5.00pm on the last Sunday of the school holiday period in odd numbered years.
5.5 For a one-half block period of the New South Wales gazetted Christmas School Holiday periods, as agreed between the parents in writing, and in the absence of agreement, as follows;
5.5.1 From 10.00am on the day following the last day of school until 5.00pm on the middle Friday of the school holiday period in even numbered years; and
5.5.2 From 9.00am on the middle Friday of the school holiday period until 5.00pm on the last Friday before the commencement of Term One of the NSW School Term in odd numbered years.
Special Occasions
6. That in addition to spending time with the Father in accordance with Orders 5 above, the child spend time with the Father on the following occasions of special significance, unless otherwise agreed between the parents in writing:
6.1 From 3.00pm Christmas Eve until 3.00pm Christmas Day, in odd numbered years;
6.2 From 3.00pm Christmas Day until 3.00pm Boxing Day, in even numbered years;
6.3 From 3.00pm Easter Saturday until 3.00pm Easter Sunday, in even numbered years;
6.4 From 3.00pm Easter Sunday until 3.00pm Easter Monday, in odd numbered years.
6.5 In the event that the child’s birthday falls during a time when the child is living with or spending time with the Mother, then the child is to spend time with the Father as agreed between the parents and in the absence of agreement, from 3.00pm until 7.30pm on the child’s birthday of each year;
6.6 In the event that the Father’s birthday falls during a time when the child is living with or spending time with the Mother, then the child is to spend time with the Father as agreed between the parents, and in the absence of agreement, from 9.00am until 3.00pm if a non-school day, or from the conclusion of school until 7.30pm if a school day, on the Father’s birthday of each year.
6.7 In the event that Father’s Day falls during a time when the child is living with or spending time with the Mother, then the child is to spend time with the Father from 5.00pm the Saturday prior to Father’s Day until 5.00pm on Father’s Day of each year;
7. That in addition to living with the Mother in accordance with Order 4 of these Orders, the child spend time with the Mother on the following occasions of special significance:
7.1 From 3.00pm Christmas Eve until 3.00pm Christmas Day, in even numbered years;
7.2 From 3.00pm Christmas Day until 3.00pm Boxing Day, in odd numbered years;
7.3 From 3.00pm Easter Saturday until 3.00pm Easter Sunday, in odd numbered years;
7.4 From 3.00pm Easter Sunday until 3.00pm Easter Monday, in even numbered years.
7.5 From 3.00pm Chinese New Year's Eve until 5.00pm on Chinese New Year's Day.
7.6 In the event that the child’s birthday falls during a time when the child is spending time with the Father, then the child is to spend agreed between the parents and in the absence of agreement, from 3.00pm until 7.30pm on the child’s birthday of each year;
7.7 In the event that the Mother’s birthday falls during a time when the child is spending time with the Father, then the child is to spend time with the Mother as agreed between the parents, and in the absence of agreement, from 9.00am until 3.00pm if a non-school day, or from the conclusion of school until 7.30pm if a school day, on the Mother’s birthday of each year.
7.8 In the event that Mother’s Day falls during a time when the child is spending time with the Father, then the child is to spend time with the Mother from 5.00pm the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day of each year.
Changeover
8. That for the purposes of changeovers that do not otherwise occur at the child's school, the Mother, or her agent, shall deliver the child to the Father, or his agent, at an agreed location, or failing agreement, to Woolworths Suburb E in the State of New South Wales at the commencement of the Father's time with the child, and the Father, or his agent, shall deliver the child to the Mother, or her agent, at an agreed location, or failing agreement, to Woolworths Suburb E in the State of New South Wales at the conclusion of the Father's time with the child.
Communication
9. That the child have telephone, Skype, and/or FaceTime (or use through a similar video chat/electronic method), contact with each parent, during times that they are not with living with or spending time with that parent as follows:
9.1 At all times as requested by the child; and
9.2 Each Tuesday, Thursday, and Sunday between 6.00pm and 7.00pm;
and the other parent shall provide the child with privacy during such conversations.
10. That the parties communicate by the following means:
10.1 Text message and/or email; and
10.2 Telephone in the event of an emergency.
11. These orders are taken to be an irrevocable authority for the child's school or educational to provide information to either of the parties about the child, at the requesting parent’s expense, including but not limited to any:
11.1 Report;
11.2 Invitation;
11.3 Circular;
11.4 Newsletter
11.5 School photograph order form; and
11.6 Notice.
12. These orders are taken to be an irrevocable authority for the child’s treating medical practitioners or allied health workers, to provide information to the parties about the child, at the requesting party’s expense, including but not limited to:
12.1 Treatment;
12.2 Referrals;
12.3 Medication; and
12.4 Any other information regarding medical history.
13. The Mother and Father are at liberty to attend all things including but not limited to:
13.1 Meetings;
13.2 Interviews;
13.3 Consultations;
13.4 Appointments;
13.5 Social, cultural, sporting, extra-curricular or other events; and
13.6 Any other events that allow for parental attendance and/or engagement.
14. The parties will provide each other with their current residential address and a contact telephone number and will forthwith provide updated contact details to the other parent or within twenty-four (24) hours of such change occurring.
15. The parties will promptly notify the party of any significant illness, or any injury suffered by the child that requires medical treatment or medication while in that parents care and will include details of such illness, injury, medical treatment, or medication.
Travel
16. That subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party (being Mr Bagshaw born … 1970 and Ms See born … 1981) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child, X (dob: … 2014) from the Commonwealth of Australia; and it is requested that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist for the said period, until the Court orders its removal, or with consent of all parties.
Restraints
17. That each party be restrained by injunction from:
17.1 Discussing these proceedings, or showing any document related to these proceedings, to the children, or permitting any other person to do so;
17.2 Denigrating the other party, or members of the other party's family to the children or in the hearing or presence of the children, or allowing other persons to denigrate the other party, or members of the other party’s family to the child or in the hearing or presence of the children.
18. That pursuant to Section 68B of the Family Law Act 1975, and for the protection of the child during the time that the child is spending with the Father pursuant to these Orders, unless agreed in writing by both parties form the date of these Orders and continuing for a period of 12 months thereafter, the Mother shall be and is hereby restrained from:
18.1 Approaching the child or attending upon or being within 100 metres of the Father’s home or the child’s school; [and]
18.3 Taking the child into her care or having the child in her care.
PROPERTY
20. These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.
21. That the sale proceeds of the property situated at L Street, Suburb M in the State of New South Wales held in the controlled monies account by RMB Lawyers be distributed in the following manner and priority:
21.1 Payment to the Intervenors in the amount of $891,611.02;
21.2 The balance thereafter distributed as follows:
21.2.1 $141,164.23 to the Applicant; and
21.2.2 $170,616.35 to the Respondent.
22. That within 7 days of the date of these Orders the Respondent vacate the property situate at and known as F Street, Suburb E, in the State of New South Wales.
23. That the Respondent do all things necessary to ensure that the property situate at and known as F Street, Suburb E, in the State of New South Wales, is in clean, neat and tidy condition upon vacating the property.
24. That simultaneously with Order 22 above, the Respondent return all keys, and access passes to the property situate at and known as F Street, Suburb E, in the State of New South Wales to the Applicant.
25. That the Applicant be entitled to occupy, to the exclusion of the Respondent, the property situate at and known as F Street, Suburb E in the State of New South Wales.
26. That the Applicant be declared the sole owner of the property situate at and known as F Street, Suburb E in the State of New South Wales.
27. That:
27.1 The Court allocates, as required by Section 90XT(4) of the Family Law Act 1975, a base amount of $82,500.00 to the Respondent, out of the Applicant's interest) in the G Pty Ltd Employees Provident Self-Managed Superannuation Fund ("the Fund").
27.2 in accordance with Section 90XT(1)(a) of the Family Law Act 1975, the Court:
27.2.1 creates an entitlement on the part of the Respondent to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
27.2.2 makes a corresponding reduction in the entitlement to the Applicant, or such other person to whom a splittable payment may be made, would have had in the Fund, but for these Orders
27.3 whenever the Trustee of the fund makes a splittable payment out of the Applicant's interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 8.2 of these Orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
27.4 having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the Trustee of the G Pty Ltd Employees Provident Self-Managed Superannuation Fund.
27.5 these Orders have effect from the operative time and the operative time is four (4) days from the date a sealed copy of these Orders is served on the Trustee.
28. That as between the Applicant and Respondent, and subject to the above Orders, the Applicant and Respondent shall each respectively retain all interest in and entitlement to:
28.1 All personal property now in his/her respective possession or control.
28.2 All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
28.3 All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
29. Both the Applicant, the Respondent, and the Intervenors, hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
30. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
31. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Costs
32. That the first Respondent pay the costs of the Applicant on an indemnity basis.

The mother’s application

The orders sought by the mother were in accordance with her case outline document (Exhibit “15”), as follows:
Property
For the purpose of this document, the following expressions have the following meanings: -
"the Act" means the Family Law Act 1975 (Cth).
“the Applicant” means the Husband to these proceedings
“the Father” means the Applicant
“the Mortgage” means the mortgages to St George Bank with loan …00 and …02 in the name of the husband.
“the Mother” means the Respondent
"the Parties” mean the Parties to these proceedings, namely the Applicant and the Respondent.
“the Respondent” means the Wife to these proceedings
"RMB trust funds" means the balance of monies from the sale of L Street Suburb M held in trust for the benefit of the Parties by RMB lawyers.
1. The Court makes an Order by way of alteration of property interests pursuant to Section 79 of the Act in terms of paragraphs numbered 2 to 15 of this document.
2. The Parties are both restrained from selling, disposing of or encumbering any interest in the Suburb E property except to comply with these Orders.
3. The Applicant shall, within 14 days of these Orders, pay all arrears of mortgage repayments, Council rates and Strata fees, including interest and legal costs, for the Suburb E Property up to and including the date of these Orders;
4. The Applicant will pay the arrears of monies due to the Respondent by Orders made by His Honour Judge Le Poer Trench on 7 March 2016, up to and including the date of these Orders;
5. On or before 11 April 2019, all secured and unsecured debt on and for the Suburb E property shall be paid by the Applicant and the property title shall be unencumbered;
6. The Applicant Husband shall be entitled to such funds as may be required from the RMB trust funds solely for the purpose of unencumbering the Suburb E property provided that at all times the balance of the RMB trust funds remains sufficient to comply with Order 9.
7. Within 14 days of compliance with Order 5, the Suburb E property shall be transferred unencumbered, to the Respondent Wife,
8. Until the transfer of the Suburb E property to the Respondent pursuant to paragraph 7 of this Order:-
the Applicant shall pay 100% of the mortgage repayments, Council rates and Strata fees for the Suburb E Property as and when they fall due for payment and in this respect will indemnify the Respondent and keep her indemnified from and against any liability in relation thereto.
9. The Respondent shall, within 21 days of these Orders, receive $600,000 from the RMB trust funds;
10. Upon compliance with Orders 3 to 9 inclusive, the Applicant shall be entitled to the balance of the RMB trust funds;
11. That otherwise as determined by these Orders, as between the Applicant and Respondent, the Applicant and Respondent shall each respectively retain to the exclusion of the other all interest in and entitlement to:-
i. all personal property now in his/her respective possession or control;
ii. all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his or her sole name respectively; and
iii. all entitlements to any interest in any superannuation funds in his or her name respectively.
12. That subject to these Orders, each of the Applicant and the Respondent release the other from all actions, proceedings, claims, demands, debts, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
13. Pursuant to section 81 of the Act the parties intend these orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
14. That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these Orders.
15. In the event that either Party refuses or neglects to execute any deed, document or instrument ("Document") to give effect to this Order within fourteen (14) days of any Document being tendered for signature, the Registrar of the Family Court of Australia, Sydney is hereby appointed pursuant to Section 106A of the Act to execute any such document in the name the defaulting Party and to do all acts and things necessary to give validity to the operation of any such Document and for the purposes of this paragraph a Party will be deemed to have refused or neglected to execute any such Document if the Document is not returned to the submitting Party within fourteen (14) days of the said document being forwarded to the other Party’s solicitor by document exchange or to the other Party by ordinary mail.
Parental Responsibility
16. The mother has sole parental responsibility for the child, X born … 2014 (the “Child”).
17. That the mother makes the day-to-day decisions relating to the Child at such time as the primary carer of the Child but inform the father of all medical assessments, and about his education and schooling
Live With
18. The Child lives with the mother and spends regular time with the father in accordance with these orders.
19. All time spend with the father is subject to the child’s medical condition and experts’ advice.
20. Spend time commence after submission to the mother a current neurology report of the father that the Father's VP shunt represents no risk to the health and safety of the Child or the father. Such a report to be updated and provided to the mother every 3 years.
21. There be no make-up time due to any failure of the father to comply with Order 20.
Spend Time with the Child at the year of Pre-School and Kindergarten in 2019 & 2020
22. That subject to Orders 19 and 20, in 2019 and 2020, the Child spend time with the father as follows:
22.1 From the Saturday at the end of the first week of pre-school or school attendance from 9:00am to 1pm, and each fortnight thereafter,
22.2 From the Sunday at the end of the third week of pre-school or school attendance from 9:00am to 1pm, and each fortnight thereafter, and
22.3 From the first Wednesday the Child is at pre-school or school, and every alternate Wednesday, the father to collect the Child from pre-school or school finish to the same day 4pm,
with the father to collect and return the Child from Woolworths Suburb E, or other location as may be agreed in writing from time to time;
Spend Time with the Child in 2021 – 2023
23. That subject to Orders 19 and 20, in 2021 to 2023, the Child spend time with the father as follows:
23.1 From the Saturday at the end of the first week of school attendance from 9:00am to 2pm, and each fortnight thereafter,
23.2 From the Sunday at the end of the second week of school attendance from 9:00am to 2pm, and each fortnight thereafter,
23.3 From the first Wednesday the Child is at school, and every alternate Wednesday, the father to collect the Child from school finish to the same day 5pm,
with the father to collect and return the Child from Woolworths Suburb E, or other location as may be agreed in writing from time to time;
Spend Time with the Child in 2024 – 2026
24. That subject to Orders 19 and 20, in 2024 to 2026, the Child spend time with the father as follows:
24.1 From the Friday at the end of the first week of school attendance, the father picks up the child at school finish time on Friday until the next day Saturday at 9am,
24.2 From the Sunday at the end of the second week of school attendance from 9:00am to 2pm, and each week thereafter, and
24.3 From the first Wednesday the Child is at school, and every alternate Wednesday, the father to collect the Child from school finish to the same day 5pm,
with the father to collect and return the Child from Woolworths Suburb E, or other location as may be agreed in writing from time to time;
Spend Time with the Child in 2027
25. That subject to Orders 19 and 20, in 2027 until the Child turns 18, the Child spend time with the father as follows:
25.1 From the first Wednesday the Child is at school, and every alternate Wednesday, the father to collect the Child from school finish to the same day 5pm,
25.2 From the Friday at the end of the first week and the third week of each month of school attendance, the father to collect the Child from school finish on Friday until the next day Saturday at 9am, and
25.3 From the Sunday at the end of the second week of each month of school attendance, from 9:00am to the same day 2pm, and
with the father to collect and return the Child from Woolworths Suburb E, or other location as may be agreed in writing from time to time;
Spend Time with During School Holidays
26. Except as otherwise agreed in writing:
26.1 During the end of term 1, 2, 3 school holidays from the commencement of school in Year 2019 to 2023, the Child shall spend time with the father on the first Saturday of the holiday break from 9:00am to 2pm and the second Sunday 9am-2pm,
with the father to collect and return the Child from Woolworths Suburb E, or other location as may be agreed in writing from time to time;
26.2 During the end of term 1, 2, 3 school holidays from the commencement of school in Year 2024, the Child shall spend time with the Father on the first Saturday of the holiday break from 5pm to the next day Sunday 9am, second Sunday from 9am-2pm,
and the father is collect and return the Child to Woolworths Suburb E or such other location as is agreed between the parties.
Special Days
27. That unless otherwise agreed beforehand, the respective parent’s time with the Child under live with and spend time with orders are to be suspended during the following periods and during those suspended periods the following orders shall apply:
27.1 The Child spend time with the father on Good Friday in 2019 and in each alternate year thereafter from 9:00am to 2:00pm;
27.2 The Child spend time with the father on Easter Sunday in 2020 and in each alternate year thereafter from 9:00am to 2:00pm.
27.3 That, subject to attendance at day-care preschool or school the Child spend time with the father on Father’s Day and the father’s birthday each year from 9:00am to 2:00pm;
27.4 That, subject to attendance at day-care preschool or school the Child spend time with the mother on Mother’s Day and the mother’s birthday each year;
27.5 In each odd-numbered year, on the Child’s birthday, the Child shall spend time:
27.5.1 with the father from 9am-2pm on the Child’s birthday if this falls on a non-school/preschool day, and
27.5.2 with the father from 4:30pm – 7pm on the Child's birthday if this falls on a preschool/school day;
27.6 In each even-numbered year, on the Child’s birthday, the Child shall spend time:
27.6.1 with the father from 2pm-7pm on the Child’s birthday if this falls on a non-school/preschool day.
27.7 For 2019 and each alternate year thereafter, the Child spend Christmas eve with the father from 2pm – 7pm.
27.8 For 2020 and each alternate year thereafter, the Child spend Christmas eve with the mother, and Christmas Day with the father from 10am – 3pm.
27.9 The child spends each Chinese New Year’s Eve and Day with the Mother.
Preschool, School, and Extra-Curricular Attendance
28. Subject to Order 16, the father shall be permitted to contact the Child's school to obtain and receive copies of any reports, newsletters, notices, photographs, and each parent shall forthwith request that the Child’s preschool/school inform the other parent of any activities which the Child’s parents, grandparents, and any other extended family members are invited to attend.
29. That each parent is permitted to attend any parent-teacher interviews for the child and that both parents are to be kept advised of these accordingly.
30. That each parent is to be kept informed about and permitted to attend any preschool, school, sport, and/or hobby related extra-curricular activities of the Child even if the Child is not residing with such parent at the relevant time.
31. That each parent is to be kept informed about any social invitations extended by the Child’s preschool, school, sport and/or hobby related friends and acquaintances and the parent who has the Child in his or her care at the time of the event is permitted to both respond to these on behalf of the Child and attend these with the Child.
32. That in the event that the Child is scheduled to travel on school excursions overnight or holiday camps overnight, both parents shall be at liberty to attend their departure and travel.
33. That any extra-curricular activities desired by the child shall be facilitated as much as possible by each parent regardless of the impact on their time spent with the child.
Communication with the Child
34. That the child shall be entitled to communicate with the parent he is not then residing with at any time he seeks to do so, and the parties shall do all such things required to facilitate a call between the Child and the non-residing parent as and when requested by the child.
35. That each parent be entitled to communicate with the child once in every 7 day period that the child is out of the respective parent’s care by telephone, FaceTime, skype or other available electronic means, at a time mutually agreed upon by both parents in writing prior to this taking place. In relation to such communication both parties shall do all such things required to facilitate a call between the Child and the parent with whom they are not then residing including providing the Child any assistance required to allow them to communicate with the other parent.
36. That each parent will refrain from any aggressive, combative, threatening, or otherwise inflammatory conduct at all times during these communications.
37. That each parent provides the child with age appropriate privacy during their communication with the other parent and not interrupt the Child unnecessarily during that time.
Communication Between Parents
38. That each parent shall, except in the case of emergencies, communicate with each other via email, SMS, and communication book in providing the other parent with all information directly relevant to the co-parenting of the Child.
Passports and Travel
39. That the passports of the Child and the mother held by the Court be immediately released to the mother.
40. That within 7 days of one parent providing the other parent with a passport application or related travel document such as a visa for travel overseas for the Child, the parent receiving this paperwork is to sign it and return it to the requesting parent.
41. That if either parent fails to sign and return the passport application in accordance with the above Order, pursuant to S11 of the Australian Passports Act (Cth) the Minister forthwith issue an Australian passport in the name of the Child without the necessity of obtaining the consent or signature of both of the Child’s parents for that purpose.
42. That pursuant to section 65Y of the Family Law Act 1975 the parents shall be and are hereby authorised and permitted to remove the Child from the Commonwealth of Australia, as well as to include him in any planned travel within Australia, subject to:
42.1 the travelling parent providing the non-travelling parent with 8 weeks' notice in writing of the proposed travel, including details of the proposed itinerary and details of make-up time both immediately prior to and following on from the period of travel for the parent who forgoes time as a result of the travel;
42.2 not less than 14 days prior to departure, the travelling parent providing the non-travelling parent with a copy of the Child’s tickets and confirmation of the address/es where the Child shall be staying during the period of travel together with an email address and telephone number at which the travelling parent and the Child may be contacted by the non-travelling parent, and the information to be provided under this order also needs to be provided by the travelling parent for all interstate travel with the Child, and for any intrastate travel with the Child;
42.3 absent written agreement, until the Child starts school such travel by the Child with the travelling parent not to exceed the period of two weeks on any one trip;
42.4 once the Child starts school, subject to any period time is suspended under these order (eg. special days), the travelling parent may travel within Australia with the Child at any time that the Child is with them during school holidays;
42.5 the mother retaining possession of the Child’s passport, with such passport to be provided to the father within 7 days of any request for the purpose of arranging any travel bookings, and no later than 14 days prior to him travelling overseas, and the Child’s passport is to be returned by the father to the mother on the first day the father returns the Child to the mother following on from his arrival back into Australia with the Child.
42.6 the non-travelling parent shall be provided with make-up time in an amount to ensure that the Child has sufficient quality time with the non-travelling parent both immediately prior to the first day spent with the travelling parent on commencement of the trip time as well as immediately following on from the Child’s return following on from the trip time. This being:
42.6.1 in the instance of one parent having more regular time with the Child than the other the travelling parent will forfeit one regular overnight stay taking place immediately prior and one regular overnight stay taking place immediately following on from the trip, and any regular weekend time that the non-travelling parent would have otherwise spent with the Child under these orders if not for the travel;
42.6.2 in the instance of both parents having equal regular time with the Child the travelling parent will forfeit the exact amount of time that the non-travelling parent would have otherwise spent with the child under these orders if not for the travel, with this to occur immediately prior to and/or following on from the trip.
42.7 the mother solely paying for the costs of the Child’s passport renewals, except where the passport is lost whilst in the father’s possession in which event the father is to solely pay for the costs of a replacement passport; and
42.8 notwithstanding the terms of this clause, if the mother provides translatable evidence to the father in the form of a medical statement or similar that any close family member of the mother is gravely ill so as to be at risk of imminent death, the mother shall be permitted to travel overseas with the Child on 12 hours' notice to the father and each ;
42.8.1 an original and a translated medical statement ,or similar, of the family member,
42.8.2 the proposed itinerary, and
42.8.3 confirmation of the address/es where the Child shall be staying during the period of travel together with an email address and telephone number at which the travelling parent and the Child may be contacted by the non-travelling parent.
Medical/Emergency
43. That if the Child suffers any serious injury or illness while the Child is residing with either parent or is taken to hospital or in an ambulance for any reason, that parent with whom the Child is residing at that time will immediately notify the other parent of the nature of such injury or illness and the name, address, and telephone number of the relevant hospital or medical practitioner treating the Child.
44. That each parent provides all necessary information and consents for the other parent to contact any hospital, medical practitioner, dentist, counsellor, or other health professional to discuss the Child’s treatment and progress and to obtain any information required by that parent about the Child.
45. That the Child only be administered prescription medication strictly in accordance with a medical practitioner’s advice and that the parent administering the medication advise the other parent of this.
Other
46. That both parents advise and keep advised the other of any person living in their home.
47. That both parents advise and at all times keep advised the other of their current respective residential address, mobile telephone number, and email address.
48. That each parent shall not denigrate the other parent, the other parent’s relatives or partner to the Child or in his presence, nor allow any third parties to denigrate the other parent, the other parent’s relatives or partner to the Child or in his presence.
49. All interim orders and any applications in a case be dismissed.
50. That each party pay his or her own costs in relation to these proceedings.

The intervenors’ application

The orders sought by the intervenors were in accordance with a document tendered at the hearing, titled “Minute of Order sought by Intervenors” (Exhibit “9”), as follows:
1. That the parties shall forthwith direct RMB Lawyers to pay the sum of $907,386 plus interest at a daily rate of $42. 75 from 13 February 2019 until the date of judgement in these proceedings from the controlled monies account operated by them to the Trust Account of the Intervenor's solicitors, Tiyce and Lawyers Pty.
2. The sum at Order 1 includes interest at the rate of 1. 75% per annum at a daily rate of $42.75 from 9 February 201H until 12 February 2019, a period of 369 days, total $15,775.
3. That the Respondent, Ms See shall pay the costs of the lntervenors within 28 days assessed on a party/party basis, if not agreed.

Evidence

At the hearing, the father sought to rely upon the following documents:
a)His Affidavit filed on 15 January 2019; and
b)Financial Statement filed on 14 January 2019.
The mother sought to rely on the following documents:
a)Her Affidavit filed on 31 January 2019;
b)Her Affidavit filed on 12 December 2017; and
c)Financial Statement filed on 31 January 2019.
The intervenors sought to rely on the following documents:
a)Affidavit of Mr B filed on 14 January 2019;
b)Affidavit of Ms C filed on 14 January 2019;
c)Affidavit of Mr Z filed on 14 January 2019;
d)Financial Statement of Mr B filed on 5 February 2019; and
e)Financial Statement of Ms C filed on 5 February 2019.

Parenting matters

The law – concepts and principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objects of Part VII, which are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).

The presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
As set out above, the mother has sought an order that she have sole parental responsibility for the child. However, at the hearing, her Counsel stated the following while making final submissions:
And the last issue on the parenting is parental responsibility. It has been contested that it’s a high conflict relationship. I would have to concede the father has to have to some input, but whether there should be a carve out for schooling, for example, it’s something that needs to be thought out quite carefully as to how these parties are to communicate if there is to be a joint parental responsibility.
Comparatively, the father has sought an order that he and the mother share parental responsibility for the child.
In that regard, Ms R states:
Both parents propose sharing parenting responsibility for [the child]. There is a high level of mistrust between the parents. … The poor parental relationship has resulted in duplication of services and assessments for [the child], which is of great concern due to [the child’s] current and possible future needs. The extended property and financial dispute appears to be resulting in increasing the acrimony and suspicion between the parties. [The child] would benefit from improvement in the communication between his parents. Notwithstanding the above, the Family Consultant considers that it would be to [the child’s] benefit for the parents to share parental responsibility for him.
During the hearing, Ms R restated that position and clarified that she held it “[p]rimarily because it would not be to [the child’s] advantage for his mother to hold sole parental responsibility”.
I agree with Ms R, in that regard, and find that the parties should share parental responsibility for the child. It is hoped that the finalisation of the litigation between them, including the property proceedings, will go some way to promoting a more collaborative relationship between them.
I further note that Ms R recommended that both parent attend the Keeping Contact Program. While I do not make an order to that effect, I strongly endorse Ms R’s recommendation, in that regard.
As an order for equal shared parental responsibility will be made, pursuant to s 65DAA of the Act, I am required to consider whether it would be in the child’s best interests for him to spend, firstly, equal time with each of the parties or, secondly, substantial and significant time with each of the parties. In that regard, the Court is required to consider whether it is reasonably practical for the child to spend equal or substantial and significant time with each of the parties, having regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
As set out in these Reason for Judgment, it is clear that high levels of acrimony and distrust exists between the parties. While I have made an order for equal shared parental responsibility, I do not consider that it would be reasonably practicable for the child to spend equal time with the parties, given the difficulties they would likely have in communicating with each other and resolving difficulties that might arise in implementing such an arrangement. Such an arrangement would necessitate constant communication between the parties, which I consider would likely lead to conflict between them, which would, in turn, negatively impact the child.
For the reasons set out in this decision, I find that the child should continue to reside primarily with the mother and spend substantial and significant time with the father. Such orders will be made in accordance with Ms R’s recommendations.

Primary considerations

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. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, pursuant to s 60CC(2)(b).

Protection from harm

While the mother has asserted that the child may be exposed to risk in the care of the father, for reasons which I set out below, I find that to be unsubstantial. Comparatively, I find that the father has the requisite capacity to meet the child’s needs and I respectfully agree with the opinion of Ms R that the child is not exposed to risk of either physical or psychological harm in his care, or in the care of the mother.

Meaningful relationship

As stated, s 60CC(2)(a) requires me to consider the importance of the child having a meaningful relationship with each of the parties. In Sigley v Evor (2011) 44 Fam LR 439, the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
In this matter both parties acknowledged that it is appropriate for the child to have a meaningful relationship with each of them and I will make orders to facilitate that occurring.

Additional considerations

Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. Broadly, those considerations deal with the following matters:
a)Issues relating to the child – their views, level of maturity, culture and relationships;
b)Issues relating to the parties – decision making, time spent with child, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.
I will now address each of those matters.

Issues relating to the child

Any views expressed by the child

Section 60CC(3)(a) requires the Court to have regard to 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.
The child is only four years of age and, appropriately, he was not interrogated regarding his views by Ms R, when she interviewed him. In those circumstances, the child’s views are best assessed by Ms R’s observations of the child’s interactions with each of the parties, which I will discuss immediately below.

The nature of the relationship of the child with each of the parties and other persons

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the parties and other persons, including any grandparent or other relative.
In that regard, Ms R stated that: “Observations of [the child] throughout the day of family report interviews indicated that he has warm, secure relationships with both of his parents and is able to be comforted by both”. I accept the accuracy of that observation.
The mother has been the child’s primary carer since his birth. Ms R’s observations of the child with the mother indicated “a warm and affectionate relationship between them”.
The father states that, while the mother has sought to frustrate his relationship with the child, the child “appears bubbly and happy when coming into [his] care” and “often reaches his arms out of the pram” to give the father a hug when he sees him. I accept that to be the case. Ms R describes the child and the father as having a “warm relationship” and notes the following:
[The child] was distressed when his mother was initially taken from the room but, when his father was brought in, he put his arms out seeking comfort and his father picked him up. [The child] cuddled in close to his father and he was able to be comforted without any difficulty by his father.
In terms of communication, at the time of her report dated 8 March 2018, Ms R observed that: “[the child] spoke very softly, in whispers to his father using short truncated sentences”. However, the evidence before the Court, at the time of the hearing, was that the child has regressed to only communicating with the father through non-verbal means, and had been doing so for some 12 months prior to the hearing.
Ms D, as the child’s maternal grandmother, has been an integral part of his life and has been involved in his day to day care. However, in her report, Ms R states: “Informal observations of [the child] with his maternal grandmother did not provide an indication of their relationship and little interaction was observed between them”.
The father asserts that he and the child regularly travel to the home of the paternal grandparents at Suburb P on weekends so that the child can spend time with them. He says that the child enjoys that time and excitedly greets the paternal grandparents with hugs and kisses. That evidence was supported by the observations of Ms R, as follows:
Informal observations of [the child] with the paternal grandparents throughout the day of interviews indicated an affectionate relationship between them. [Ms C] was warm and encouraging of [the child].
The paternal grandparents assert that, while the mother sought to limit their access to the child following his birth, they have been able to develop a close and loving relationship with him. They each assert that, other than during periods when the mother has withheld the child from the father, they have seen him on a weekly basis, usually on Sundays. While they engage in a range of activities together, the child does not speak to the paternal grandparents, but communicates by gesturing and pointing to the extent that he can make himself understood.
Comparatively, the mother asserts that the time that the child has spent with his paternal grandparents has been “minimal”. That is contrary to the evidence of the father, the paternal grandparents and Ms R and I do not accept the accuracy of the mother’s description of the child’s relationship with the paternal grandparents, in that regard.
In terms of the importance of the child’s relationships with each of those persons, at the hearing, Ms R stated:
… what it seems is in [the child’s] best interests is ensuring that the relationships with all close people, his mother and his father and his grandparents are further supported and maintained. … if [the child] is going to be facing significant behavioural problems or any sort of behavioural problems it takes two or more people to actually support, ensure, look after [him]. It takes more than one person to manage, because if that one person is sick and [the child’s] behaviours continue to be difficult, or if they become more difficult then that is a major problem for [the child] as he gets older.
In that way, Ms R agreed that the child is potentially going to face issues in his life, beyond those normally faced by children who have do not have his developmental and behavioural difficulties, and in those circumstances, it is better for him to have as many loving and supportive people around him to assist with that, as possible. Ms R explained that a medical professional would not advise that “[the child] shouldn’t have extra time [with the father] because he has got speech problems [but rather that he] needs extra time because he does have speech problems” and that “such interactions would assist him to gradually spread his capacities with more and more people”. I accept the validity of that opinion and Ms R’s recommendations, in that respect.

The maturity, sex, lifestyle and background of the child and either of their parents

Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
In her report, Ms R refers to the father as having described the child as “being a ‘lively boy, who is very switched on and has a memory like a steel trap’”. He agreed that the child was not “talkative”. Comparatively, in her interview with Ms R the mother described the child as “very shy.”
As set out above, shortly after his birth, the child was diagnosed a medical condition, for which he has undergone medical examinations. The father stated that, as far as he was aware, the child “is not currently subject to any treatment plans” however, based on the mother’s evidence, as set out below, I am satisfied that the child is receiving appropriate treatment in respect to behavioural and developmental challenges. The father further asserts that, while the child’s condition “can result in a developmental delay for children, as well as ADHD and autism”, as far as he is aware, the extent to which the child may be affected by his condition may not be fully realised until he is older. I accept that may be the case.
The mother has annexed to her Affidavit a letter from Ms T, a Senior Clinical Psychologist at NSW Health, dated 12 January 2018, to the Paediatric Medical Clinic, in which the following is stated:
[The child] was born with [a medical condition] which is being monitored by Paediatric Neurologist Dr U, Suburb GG.
Overall [the mother] is concerned with socialization, dependant behaviours and some noncompliance and would benefit from an assessment of developmental delay and Autism due to the Medical Condition.
… [The child] has recently attended the Suburb E ECHC for his 3 year old assessment and scores on the ASQ raised concerns. I will forward the results to you once received.

I accept that the wife likely did some work on those properties, but that that work is of relatively little significance. The wife should, however, be given significant credit for her roles as homemaker and as the child’s primary carer since his birth. That undoubtedly provided the opportunity for the husband to undertake the relevant renovation and repair works, in particular on the Suburb M property.

Contributions since separation

Since the parties’ separation, the wife has continued to be the child’s primary carer.
The child, the wife and Ms D have resided at the Suburb E property since orders were made providing for the same on 7 March 2016. Those orders also provide that the husband meet the mortgage repayments, council rates, and strata levies referable to that property. During cross-examination, the husband agreed that, two weeks prior, he had paid approximately $6,600 towards those strata fees, which are approximately $750 per quarter. In that way, it is clear that, prior to two weeks before the hearing, the husband had failed to comply with the order that he pay those strata fees, for approximately two years.
The husband asserts that, prior to the sale of the Suburb M property, he and Mr B undertook significant works to ready it for sale, including certain repairs, the installation of skirting boards, painting and the removal of trees. I accept that to be the case.

Evaluation of the parties’ contributions

The wife submits that, in the event that I find that the monetary advance by the intervenors which allowed the parties to purchase the Suburb M property was not a loan, having regard to her contributions, the division of property based on s 79 factors (other than s 79(4)(e)) should be 35 per cent to 65 per cent, in favour of the husband.
The husband contends that in that event, and in the event of my adopting a one pool approach, I should find that a division of 10 per cent to the wife and 90 per cent to him is appropriate.
Having regard to the matters that I have referred to above, taking a one pool approach and finding that the intervenors’ contribution of $891,611 is not a loan, I am of the opinion that a division based on s 79 factors, other than s 79(4)(e), is a division of 20 per cent to the wife and 80 per cent to the husband.
That division appropriately recognises the very significant contribution to matrimonial property in the form of the funds advanced by the intervenors to the parties. In that respect, I accept the contention of Counsel for the husband, in accordance with the decision of the Full Court in Farmer v Bramley (2000) FLC 93-060, that contribution should be given significant weight because it has resulted in the majority of the property pool and was received late in the marriage. I also consider that an 80/20 distribution in favour of the husband appropriately recognises his initial financial contributions, while still recognising the wife’s non-financial contributions as homemaker and parent.

Relevant section 75(2) factors

Certain of the considerations set out in s 75(2) of the Act are not relevant to the facts of this matter. Accordingly, while I have considered all of the factors listed in s 75(2) of the Act, I will focus only on those that are considered to be of relevance to these proceedings.

(a) the age and state of health of each of the parties

The husband is currently aged 49 years of age, while the wife is currently aged 37 years of age.
The husband was diagnosed with Aqueductal Stenosis when he was a child. When he was approximately 17 years of age, he had surgery to place a shunt in his brain to assist in the draining of fluid. He asserts that the shunt does not require further examination and that it has caused him no health complications since it was implanted. I accept that evidence.
There is no evidence that the husband is otherwise than in good health.
There is no evidence that the wife is otherwise than in good health.

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

In his Affidavit, which he filed on 15 January 2019, the husband asserts that he is a Director of G Pty Ltd. He says that the operations of that company have been wound down in recent years and that he has not received a regular income since approximately 2014. In his Financial Statement, the husband lists Uber as his first employer and G Pty Ltd as his second employer.
The husband says that he has been looking for full time work in administration or sales since 2014, but agreed that he has provided no corroborative evidence of any efforts made by him, in that regard. He further agrees that, while he refers to his care of the child on Wednesdays and Fridays as being the reason for his inability to find work, he has not requested that the wife agree to him spending increased weekend time with the child, in lieu of those weekdays, so that he may find work. However, he did agree that, if it could be assured that his time with the child could be rearranged in such a manner, he would agree to that occurring. In that regard, Counsel for the wife submitted that:
[The husband’s] evidence that he has been looking for work is not borne out by the paucity of material in his affidavit as to what job applications he has made, what his qualifications are and his reason for not being able to find full time work, namely his commitments to [the child] don’t hold water. It was clearly open to him to vary those orders to allow him to seek work.
I accept that submission and find that the husband has not exploited his full earning capacity since 2014.
The husband asserts that his income is $2 per week, being share dividends. His total expenditure is $510, which includes mortgage repayments, property rates, repayment of a credit card and $30 attributable to child support.
The husband values his total property at $1,278,442 and says that it is comprised of the following:
a)Half of the sale proceeds of the Suburb M property;
b)The Suburb E property;
c)$11,460 held in bank accounts;
d)$2,287 worth of Company FF shares; and
e)Household contents valued at $3,000.
The husband quantifies his total liabilities at $663,647, being the mortgage/s secured over the Suburb E property of $215,357, a credit card liability of $4,290 and half of the asserted loan from the intervenors.
The wife asserts that, while the intervenors are a significant financial resource available to the husband, she does not have that same financial security. In that way, the husband has lived at the intervenors’ residence at 2 K Street, Suburb J since the sale of the Suburb M property on 9 February 2018, as he does not “have the financial resources at present to purchase a further property or make rental repayments”. I accept that the intervenors form a significant financial resource available to the husband.
The wife is unemployed. However, she accepts that the child is currently attending daycare and preschool five days each week. She sets out her income as being $425 per week, which is derived from Centrelink benefits.
The wife sets out her personal expenditure as being $45 per week, being for the payment of property rates and her motor vehicle. However, that does not include the expenditure she has set out in Part N of her Financial Statement, which totals $425 attributable to herself, $185 attributable to the child and $107 attributable to Ms D. For reasons set out below, I have not taken Ms D’s expenses into account in making this decision.
The wife values her property at $637,504.22 and says that it is comprised of the following:
a)Half of the sale proceeds of the Suburb M property;
b)$7,504 held in bank accounts;
c)A motor vehicle valued at $20,000; and
d)A guarantee bond held with CBA for Ms D’s visa at $10,000.
The wife values her liabilities at $37,000, being a HECS study debt and a $20,000 loan from Ms D. There is no corroborative evidence that the wife maintains either of those debts.
In her Affidavit, the wife asserts that she has “nearly completed a [Master’s degree from a University]”. She has one practical placement to complete before she graduates, however, she says that she needs to arrange that around the child’s requirements and so may not be able to complete it until the child starts school in 2020. However, it is not clear how the wife is precluded from completing her qualifications by her parenting responsibilities, given that the child is currently attending daycare and preschool five days each week.
In considering the parties’ capacity for employment, Counsel for the husband referred me to the decision of the Full Court in DJM & JLM (supra) and, in summary, contended that it is unnecessary for me to go further than making a finding that both parties have an earning capacity greater than they are currently exploiting. I respectfully agree with that submission and make that finding.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

The wife is the child’s primary carer. The wife asserts that the child suffers from “selective mutism, controlling and oppositional behavioural, anxiety and mental health issues” and that he “only talks to people he feels comfortable with”. She says that the child’s special needs, in that regard, may impede her employment prospects. I recognise the child’s challenges place additional demands upon the wife. However, the wife nonetheless has capacity to find work at those times he is not in her care.
The husband spends time with the child each Wednesday, Friday and Sunday. I have made parenting orders providing for him to spend an increasing amount of time with the child and he will be responsible for the care of the child during those times. Those times will, however, be varied by the orders made in these proceedings.

(f) the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party

In her Affidavit, the wife asserts that her “current income is $850 per fortnight being from Centrelink”. She has annexed a copy of her Centrelink Income Statement to that Affidavit. Section 75(3) of the Act provides, however, that I am required to ignore Government benefits received by the wife in making an adjustment of the matrimonial assets.
The wife has no superannuation entitlement.
As set out above, I have found that the husband’s self-managed superannuation fund entitlement is currently valued at $201,927. The husband has sought an order that the wife receive a base amount of $82,500 from his superannuation interest, in partial payment of the overall property distribution she will receive. However, Counsel for the wife submitted that a superannuation splitting order was not appropriate in circumstances where the wife requires immediate access to funds to meet her living expenses, and cannot wait until the husband becomes entitled to access his superannuation benefit to receive that distribution.

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

In her Affidavit, the wife asserts that the weekly expenses for the child, Ms D and herself are:
a)Food and nappies at $250;
b)Clothing at $10;
c)Transport and petrol at $25;
d)Internet and phone at $25; and
e)Utilities at $40.
The wife continues on to state: “Our future accommodation would ideally be 3 bedrooms (one for each of me, [my mother] and [the child]) and close enough to the day care to walk or catch public transport without a long commute”.
There is no evidence that the wife has a duty to maintain Ms D, in terms of s 75(2)(d)(ii), and so her expenses have not been taken into account in this decision.

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant

The husband asserts that both he and the wife have an obligation to repay the intervenors the monies advanced by them to allow for the purchase of the Suburb M property. I have found that, in advancing those funds, a legally enforceable agreement was not reached. Nevertheless, I acknowledge that the husband may feel a moral responsibility to repay those monies. The outcome of these proceedings will provide him with sufficient funds and capital to do so, if he so choses.

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

For the reasons I have outlined above, I am satisfied that the wife’s contributions as homemaker and parent, both by herself and with the support of Ms D, have enabled the husband to undertake renovation and repair works to relevant properties, which has increased their value.

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

The parties were married for nine years. I accept that the wife’s homemaker and parent responsibilities during that period may have somewhat affected her earning capacity. However, given that the wife has not chosen to exercise that capacity for some years, despite the absence of evidence that she is not otherwise able to do so, I have given this factor little weight.

(l) the need to protect a party who wishes to continue that party's role as a parent

The wife has been the child’s primary carer since his birth and, as a result of these proceedings, will continue to perform that role.

(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation

The mother currently lives with the child and Ms D. She asserts that Ms D “does some casual work in a business in Chinatown” and that she earns approximately $100 each week. In her Financial Statement, the wife asserts that Ms D contributes $100 per week to their household expenses.

(n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party

I have assessed that an appropriate adjustment in respect to s 79(4) of the Act is 80 per cent in favour of the husband, as a result of his substantial contributions to the parties’ property pool.

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage

The wife was not challenged on her evidence that the husband has consistently been in arrears in respect to his child support obligations, which she sets out at paragraph 135 of her Affidavit as being:
[The husband] was required to pay for child support payments $34 per month from 13 October 2015 to 12 January 2017; $114.42 per month from 20 January 2017 to 30 November 2017; $115.83 from 1 December 2017 to 28 February 2019.
It is a relevant consideration that these orders will not relieve the husband of his obligation to pay child support in the future at such amount as is determined by the Child Support Agency, having regard to the circumstances of the parties, including his income.

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

The orders made on 7 March 2016 by Le Poer Trench J provided for the husband to make a lump sum payment of $15,000 to the wife, with the characterisation of those funds to be determined by me, as the trial judge. It is accepted that the husband made that lump sum payment to the wife.
On 4 May 2017, orders were made for the parties to attend mediation and for the Suburb E property to be valued. The husband was ordered to meet the entire cost of that mediation and valuation in the first instance, with the wife’s share to be deducted from any settlement funds received by her and repaid to the husband.
While I have not been provided with details of those costs, I have nonetheless taken those matters into consideration in determining the extent of any adjustment to the wife, pursuant to s 75(2).
Counsel for the husband contended that the Court, in determining an appropriate property distribution, should also have regard to the prospect of Ms D selling the China property and contributing those proceedings to the wife’s purchase of a property in Australia. The evidence regarding that possibility is no more than speculative and there is no expert evidence regarding the value of the China property. Accordingly, I have not taken that possibility into consideration in making this decision.

Evaluation of section 75(2) factors

In his written submissions, Counsel for the wife contended that there should be an adjustment to the wife in the order of 5 per cent in respect to those matters set out in s 75(2) of the Act. In his written submissions Counsel for the husband, in my view appropriately, acknowledged that an adjustment of up to 10 per cent in favour of the wife would be appropriate. It should be acknowledged that that concession was, however, made in the context of the primary submission that a lower adjustment than the figure I have determined should be made in respect to the s 79(4) considerations.
Nonetheless, having regard to the matters I have set out in respect to the s 75(2) considerations and, in particular the wife’s ongoing responsibilities as the primary carer of the child, who has particular challenges, as referred to, I am satisfied that an adjustment of 10 per cent in her favour, pursuant to s 75(2) of the Act, is appropriate.

Conclusion – property matters

In considering whether the proposed orders adjusting the parties’ matrimonial asset pool are appropriate, just and reasonable, I note that the wife will receive 30 per cent of the total property pool. Given that the net property pool, including add backs, is valued at $2,082,284, her adjustment entitles her to $624,685.20. Once the $80,000 already received by her pursuant to the add backs is removed from that sum, she will receive funds and property totalling $544,685.20. That will assist her in obtaining a modest property appropriate for herself and the child.
Comparatively, the husband’s adjustment entitles him to receive $1,457,598.80. Once the $105,000 already received by him pursuant to the add backs is removed from that sum, he will receive funds and property totalling $1,352,598.80. That will enable him, if he desires, to discharge the mortgages secured over the Suburb E property, totalling $215,405, and leave a substantial amount available to him to commence repaying the monies advanced to him by the intervenors, if he chooses to take that course of action. I find that he will have a discretion as to whether he does repay those funds and any rate at which he does so.
In those circumstances, I do not propose to make the superannuation splitting order proposed by the husband, as to do so would reduce the funds that will be distributed to the wife at this point in time. To reduce the amount received by her from $544,685.20 would reduce the viability of her obtaining suitable accommodation for herself and the child. Given the nature of the property distribution I propose to effect and having regard to the financial resource available to the husband and the intervenors and in circumstances where the wife will have ongoing primary care of the child, I do not consider it appropriate to reduce the funds immediately available to the wife, by making a superannuation splitting order.
The value of the property currently held in the husband’s sole name is $660,154, while the wife’s sole property is valued at $33,739. As such, I will make an order that the sum of $692,444.80 be distributed to the husband from the funds held in the controlled monies account. I will also make an order that the sum of $510,946.20 be distributed to the wife from the controlled monies account at the time of her giving vacant possession of the Suburb E property to the husband.

I certify that the preceding four hundred and eighteen (418) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 23 July 2019.

Associate:

Date: 23 July 2019

[2019] FamCA 482

23 July 2019

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Injunction

Fiduciary Duty

Constructive Trust

Res Judicata

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