Bertrand & Bertrand - [2021] FedCFamC1F 70

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bertrand & Bertrand [2021] FedCFamC1F 70

File number(s): SYC 2440 of 2019

Judgment of: BERMAN J

Date of judgment: 11 October 2021

Catchwords:
FAMILY LAW – CHILDREN – Parental Responsibility – Where the wife seeks shared parental responsibility save as to decisions in relation to the children’s education and health – Where the husband seeks equal shared parental responsibility – Where there has been issues with the parties’ ability to communicate – Where the wife will be able to support the children’s relationship with the husband once the litigation has ended – Orders.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Best interests – Where the wife seeks to relocate the children’s residence to Melbourne – Where the husband opposes the relocation and seeks equal shared care and if not significant time spending – Where there are allegations of family violence – Where the children’s primary attachment is to the wife – Where the children are aware of the wife’s distress and anxiety and the financial conflict between the parties – Consideration of weight to be given to the children’s views – Consideration of the impact relocation will have on the children’s relationship with the husband – Where the children will be able to maintain a meaningful relationship – Where the wife will support the children’s relationship with the husband – Orders.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the wife seeks that the husband pay periodic child support in addition to non-periodic child support of the children’s school fees and expenses – Where the husband seeks that he only pay non-periodic child support by way of the children’s school fees and health insurance – Consideration of the parties’ financial circumstances – Consideration of costs likely to be incurred in the children spending time with the husband – Orders.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Contributions – Future needs – Add backs – Where the contributions of the parties are considered equal – Where the husband has accrued a significant tax liability – Where the husband seeks to bring to account as a liability of the parties his full tax liability – Where the Commissioner of Taxation has intervened in the proceedings and seeks payment of the liability from sale proceeds of the former matrimonial home prior to any distribution to the parties – Where the husband also seeks a similar order – Where the wife argues the issue has already been determined in the Supreme Court of New South Wales and the liability should be borne by the husband alone – Consideration of whether the tax liability should be a joint liability of the parties – Consideration of the wife’s knowledge and whether she benefited – Where the parties should be required to contribute equally to the liability accrued pre-separation – Where part of each parties’ legal fees are added back – Consideration of s 75(2) factors – Orders.

Legislation:
Child Support (Assessment) Act 1989 (Cth) ss 116(1)(b), 117(2)(b)(i)

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 75(2), 75(2)(ha), 79, 79(4)(a), 79(4)(b), 79(4)(c), 79(10)

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bevan & Bevan (2013) FLC 93-545

Chorn & Hopkins (2004) FLC 93-204

Clifford and Lodge [2000] FamCA 1666

Commissioner of Taxation & Worsnop and Anor (2009) FLC 93-392

Finlayson v Finlayson and Gillam (2002) FLC 93-121

Gyselman & Gyselman (1992) FLC 92-279

Jabour & Jabour (2019) FLC 93-898

JEL & DDF (2001) FLC 93-075

Mallet v Mallet (1984) 156 CLR 605

Norbis v Norbis (1986) 161 CLR 513

Prince & Prince (1984) FLC 91-501

Stanford v Stanford (2012) 24 CLR 108

Starr & Duggan [2009] FamCAFC 115

Trustee of the property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394

Vass & Vass (2015) 53 Fam LR 373

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance

Number of paragraphs: 605

Date of hearing: 9 – 13 November 2020, 20 November 2020 and 17 February 2021

Place: Adelaide

Counsel for the Applicant: Mr Campton SC

Solicitor for the Applicant: Barkus Doolan

Counsel for the Respondent Mr Jackson

Solicitor for the Respondent: Sharah & Associates Solicitors and Conveyancers

Counsel for the Intervener: Mr Kasep

Solicitor for the Intervener: Craddock Murray Neumann Lawyers

Counsel for the Independent Children’s Lawyer Mr Holmes

Solicitor for the Independent Children’s Lawyer Holmes Donnelly & Co Solicitors
ORDERS

SYC 2440 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BERTRAND

Applicant

AND:
MR BERTRAND

Respondent

COMMISSIONER OF TAXATION

Intervener

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

11 OCTOBER 2021

THE COURT ORDERS:
1.That the parties shall have shared parental responsibility for W born … 2006 (“W”), X born … 2008 (“X”), Y born … 2010 (“Y”) and Z born … 2012 (“Z”) (collectively “the children”) save and except that the wife shall have sole parental responsibility for the children in relation to their education on condition that:
(a)The wife will contact the father in writing and provide her views about any such issues;
(b)The wife shall consult with the husband with regard to any such issues;
(c)The wife and the husband will make a genuine effort to come to a joint decision about any such issue; and
(d)If no agreement is reached between the parties then the wife shall make the final decision and advise the husband in writing of any decision so made.

2.That the children shall live with the wife.
3.That the wife be permitted to relocate the residence of the children to Melbourne, Victoria.
4.That pending relocation pursuant to these orders the children shall spend time with the husband as follows:
(a)During school terms:
(i)In week one from after school on Friday until the commencement of school on Monday each alternate weekend; and
(ii)In week two from after school until 7.00 pm on Thursday.

(b)During the school holiday periods at the conclusion of terms one, two and three for one week on dates to be agreed between the parties and failing agreement for the second week of the said school holiday periods commencing at 9.00 am on the second Saturday of the school holidays and concluding at 9.00 am on the third Saturday of the school holiday periods.
(c)During the school holiday period at the conclusion of term four:
(i)From 9.00 am on 13 December 2021 until 9.00 am on 22 December 2021; and
(ii)From 9.00 am on 10 January 2022 until 9.00 am on 19 January 2022; and

(d)At all other times as agreed between the parties in writing.

5.That following the relocation of the children’s residence, the children shall spend time with the husband as agreed and failing agreement as follows:
(a)For four weekends during school term periods as agreed between the parties and failing agreement from 5.00 pm on Friday until 5.00 pm on Sunday on the weekends falling after weeks three, five, seven and nine of each school term, with three of the weekends occurring in Melbourne and one in Sydney at the election of the husband;
(b)For one week during the term one, term two and term three school holiday periods on dates to be agreed between the parties and failing agreement, for the second week of the said school holiday periods commencing 9.00 am on the second Saturday of the school holiday periods and concluding at 9.00 am on the third Saturday of the school holiday periods in Sydney or Melbourne at the election of the husband;
(c)For one half of the Christmas school holiday periods on dates to be agreed between the parties and failing agreement for the first half in 2021/2022 and in alternate years thereafter and for the second half in 2022/2023 and in alternate years thereafter;
(d)From 9.00 am on 23 December 2021 until 9.00 am on 26 December 2021 and in each alternate year thereafter; and
(e)At all other times as agreed between the parties.

6.That following the wife’s relocation with the children to Melbourne, the wife will facilitate the children spending an extra weekend with the husband during school term periods on occasions that the husband travels to Melbourne upon the husband providing the wife with two weeks’ notice of his intention to be in Melbourne and on the basis that his time with the children does not exceed forty eight (48) hours.
7.That subject to W and/or X expressing a wish not to spend time with the husband as ordered or that there be a different arrangement, the obligation that they spend time with the husband shall continue.
8.That the parties will agree a suitable handover point but in the absence of agreement then handover shall occur at the wife’s residence with the husband to collect the children at the commencement of their time with him and return the children to the wife at the conclusion of their time with him.
9.That the husband shall be responsible for meeting the costs of his travel as well as any travel undertaken by the children to facilitate the children spending time with the husband pursuant to these orders save that on one weekend in each school term the costs of the children’s travel from Melbourne to Sydney and return shall be at the wife’s expense.
10.That within fourteen (14) days of a written request from the wife, the husband shall do all acts and things and sign all documents necessary for the children to be issued with an Australian passport with the parties to each pay one half of the associated fees with such passports during the minority years of the children to be held by the wife on the understanding that if the husband intends to take the children overseas then the children’s passports will be provided to him twenty one (21) days prior to the intended date of travel and returned to her within seven (7) days after their return.
11.That each of the parties will inform the other as soon as it is practicable to do so if any of the children become ill or are injured and require admission to a hospital whilst in their respective care.
12.Each of the parties will inform the other of any medication prescribed for any of the children from time to time and will provide the medication and appropriate instructions for its administration at the time of any handover.
13.Each of the parties are entitled to attend any and all of the children’s future functions and events as well as any future schooling functions and events including any that require parent participation and are to receive copies of all reports, bulletins and information in relation to the children’s day care and schooling and in respect of this, each of the parties will sign any necessary authorities to enable the provision of this information to each of the parties.
14.Each of the parties will keep the other informed of their current residential address and telephone contact numbers.
15.That in full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interest in property pursuant to Pt VIII of the Family Law Act 1975 (Cth):
(a)That within thirty (30) days of the date of this order the wife shall pay to the husband the sum of ONE MILLION AND SIXTY SEVEN THOUSAND ONE HUNDRED AND TWENTY SIX DOLLARS ($1,067,126) (the said settlement sum) disbursed in the following manner:
(i)The sum of NINE HUNDRED AND FORTY NINE THOUSAND FIVE HUNDRED AND FIFTY FOUR DOLLARS ($949,554) to the Commissioner of Taxation is part payment of the husband’s tax debts; and
(ii)The balance remaining, to the husband.

16.That contemporaneously with the payment by the wife to the husband of the said settlement sum, the husband shall transfer to the wife all of his right, title and interest in the shares held by him in G Bank and pending compliance with this order the husband is hereby restrained by injunction from selling, transferring, encumbering, gifting or in any way disposing of any shares currently held in the name of G Bank other than in compliance with his obligation pursuant to this order.
17.That each of the parties shall retain all other assets and liabilities in their respective names, including but not limited to bank accounts and superannuation entitlements.
18.That the husband be solely responsible for and indemnify the wife in relation to any personal taxation liability owing by the husband to the Commissioner of Taxation.
19.That the wife be solely responsible for and indemnify the husband in relation to the GG Company liability.
20.That within thirty (30) days of the date of this order the parties do each pay one half of the total cost incurred by the Independent Children’s Lawyer in the sum of NINE THOUSAND FOUR HUNDRED AND NINETY NINE DOLLARS AND THIRTY EIGHT CENTS ($9,499.38).
21.That as and by way of departure from the administrative assessment of child support issued in relation to the children:
(a)The husband shall pay as and from the date of the making of these orders, non-periodic child support in respect of all private school fees and any other expenses and charges as recorded on the invoice issued by the children’s school/s to which they may attend from time to time including but not limited to all tuition fees payable, including compulsory levies, voluntary building contributions, compulsory excursions, technology levies, co-curricular activities run by the school/s, compulsory materials and resources, camps and excursions and any additional subjects to which the children are enrolled and the father shall ensure that such invoices are paid in accordance with the terms of the invoice and in relation to same provided that the husband’s total liability for non-periodic child support in any financial year ending 30 June shall not exceed the total sum of ONE HUNDRED AND TWENTY THOUSAND DOLLARS ($120,000).
(b)The husband is responsible for and shall indemnify the wife in relation to any arrears outstanding as at the date of the making of these orders in relation to tax invoices issued by the children’s school/s.
(c)The parties shall do all acts and things necessary to cause a copy of these orders to be registered with the Child Support Registrar.

22.That the parties do all things necessary and sign all such documents as may be required to give effect to the terms of this order and in default pursuant to section 106A of the Family Law Act 1975 (Cth) a Judicial Registrar shall be empowered to sign such documents as may be necessary to ensure compliance by each of the parties with these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bertrand & Bertrand has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Ms Bertrand (“the wife”) and Mr Bertrand (“the husband”) are unable to reach agreement in respect to the future parenting arrangements for W born in 2006 (“W”), X born in 2008 (“X”), Y born in 2010 (“Y”) and Z born in 2012 (“Z”) (collectively “the children”). In addition, the parties are unable to resolve their differences in respect of settlement of property and the extent that there should be a departure from the administrative assessment of child support in respect of the children, acknowledging that the husband is the liable parent.
The property settlement component of the proceedings involves the intervention by the Commissioner of Taxation (“the Commissioner”) consequent upon the Deputy Commissioner of Taxation (“Deputy Commissioner”) as plaintiff and the husband as defendant consenting to the terms of discontinuance in proceedings commenced in the Supreme Court of New South Wales, case number …, wherein the Deputy Commissioner and the husband agreed to the proceedings being discontinued in terms summarised as follows:
(1)That as at 26 February 2020, the husband is liable to pay the Deputy Commissioner income tax in the amount of $1,231,921.63;
(2)In addition, the Deputy Commissioner has issued a Notice of Assessment for income tax in respect of the year ending 30 June 2019 with the sum of $319,137.90 to become due and payable on 21 April 2020;
(3)That within 7 days of a final determination of property matters in the family law proceedings, whether by way of final orders at first instance or by way of settlement, the husband agrees to pay the accrued income tax and the 2019 assessment together with general interest charges to the date of payment;
(4)That within 7 days of a written request, the husband will provide the Deputy Commissioner with such information as will enable the Deputy Commissioner to ascertain when the family law proceedings have been finalised;
(5)That further liabilities to the Deputy Commissioner may become due and payable upon the lodgement of statements and returns, income tax returns and superannuation guarantee charge statements;
(6)If the husband fails to:
(a)make payment in accordance with the income tax to be paid;
(b)provide information to the Deputy Commissioner as required; or
(c)lodge an income tax return, BAS or other document or make a payment due as required, then the Deputy Commissioner will be entitled to:
(i)file a consent order in the form annexed to the Notice of Discontinuance in the Supreme Court of New South Wales; and
(ii)file a Notice of Motion for default judgment for the amount outstanding in the proceedings less any payments and/or credits to which the husband becomes entitled together with any additional general interest charges to the date of judgment and costs.
The terms and conditions of the consent order as between the husband and the Deputy Commissioner were not made with the consent of the wife. The wife contends that the Deputy Commissioner was at all material times aware of the family law proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) and chose to pursue the husband in the Supreme Court of New South Wales. The wife argues that the claim now sought by the Commissioner in the Family Court proceedings is an attempt to relitigate the same issue and as such should be considered an abuse of process, with an order that the Commissioner be estopped from seeking the orders as set out in the Response to Initiating Application filed by the Commissioner on 4 June 2020 as follows:
1.As part of any final property settlement or orders between the Applicant and the First Respondent, the Court:
(a) take into account the tax-related liabilities of the First Respondent; and
(b)make provision in the final orders for the payment of the tax-related liabilities of the First Respondent.

As at 12 August 2020, the husband’s taxation liabilities totalled $1,672,692.07, comprised as follows:
·Primary taxation liability for years 2014-2019 including general interest charge (“GIC”) being $1,550,816.63;
·Division 293 taxation liabilities for years 2014-2016 and 2019 being $8,187.77;
·Penalties of $913.78; and
·Running Balance Account as at 12 August 2020 in the sum of $112,710.89.
Notwithstanding the wife’s contention that the orders sought by the Commissioner are an abuse of process, she argues that if unsuccessful and the Commissioner is not estopped then the Court should exercise its discretion and not include the tax debt in the assets and liabilities of the parties. The wife seeks that the husband indemnify her in respect of any taxation liability accrued by him.
The wife seeks sole parental responsibility for the children in relation to their education, health and medical decisions.
It is part of the wife’s parenting proposal that she be permitted to relocate the residence of the children from Sydney to Melbourne. If successful, she proposes that pending relocation, the children live with her and spend time with the husband as follows:
(1)In week one, from after school on Friday until the commencement of school on Monday;
(2)In week two, from after school until 7.00 pm on Thursday.
(3)For one week during the school holidays at the end of terms one, two and three and for two periods of nine days during the Christmas school holidays; and
(4)That following the relocation of the children’s residence they shall spend time with the father as agreed and failing agreement as follows:
(a)For four weekends during school term periods as agreed between the parties and failing agreement from 5.00 pm on Friday until 5.00 pm on Sunday on the weekends falling after weeks three, five, seven and nine of each school term, with three of the weekends occurring in Melbourne and one in Sydney;
(b)For one week during the term one, two and three school holiday periods on dates to be agreed between the parties and failing agreement for the second week of the school holiday periods commencing at 9.00 am on the second Saturday of the school holiday periods and concluding at 9.00 am on the third Saturday of the school holiday periods;
(c)For two one week blocks during the Christmas school holiday period on dates to be agreed between the parties but failing agreement:
(i)For the first week of the said school holiday period commencing at 9.00 am on the first Saturday of the school holidays and concluding at 9.00 am on the second Saturday of the school holiday period;
(ii)From 9.00 am on the second Saturday of January until 9.00 am on the third Saturday of January;
(d)From 9.00 am on 23 December until 9.00 am on 26 December in 2021 and each alternate year thereafter;
(e)For additional periods not exceeding alternate weekends in Melbourne upon two weeks notice being given; and
(f)At all other times as may be agreed between the parties.
In the event that the wife is unsuccessful in her application to relocate with the children, the wife seeks that the children live with her and spend time with the husband as agreed or in the absence of agreement:
(1)During school terms from after school on Friday until 5.00 pm on Sunday each alternate weekend provided that if the husband is not able to collect the children from school then his time shall commence at 6.00 pm with handover to be at the wife’s residence or such other agreed location;
(2)During school holiday periods at the conclusion of terms one, two and three for one week on dates to be agreed between the parties and failing agreement for the second week of the said school holiday periods commencing at 9.00 am on the second Saturday of the school holidays and concluding at 9.00 am on the third Saturday of the school holidays;
(3)During the school holiday period at the conclusion of term four;
(a)For the first week of the said school holiday period commencing at 9.00 am on the first Saturday of the school holiday period and concluding at 9.00 am on the second Saturday of the school holiday period; and
(b)From 9.00 am on the second Saturday of January until 9.00 am on the third Saturday of January.
(4)From 9.00 am on 23 December until 9.00 am on 26 December in 2021 and in each alternate year thereafter;
(5)On Mother’s and Father’s day with each of the parties; and
(6)At such other times as the parties may agree.
Whether the wife is successful in her application for relocation or not, the wife seeks that any time spending with the husband:
(1)Be in accordance with the wishes of W and X; and
(2)Take into account the expressed views of Z and Y upon them respectively attaining 12 years of age.
The husband opposes the live with and spend time with orders as proposed by the wife and seeks the following orders:
(1)That the parties have equal shared parental responsibility of the children;
(2)That neither party relocate the children’s residence from the Sydney metropolitan area without the consent of the other; and
(3)That the children spend seven nights per fortnight with the husband such that their care is shared between the parties but if the Court determines that seven nights is not in the interests of the children then the Court should consider cascading periods of six, five or four nights per fortnight or that the current arrangements continue.
The husband seeks that the children spend one half of each school holiday period with each party as agreed but if the parties are unable to agree then the children spend time with the husband as follows:
(1)The second week of the autumn, winter and spring school holidays from Sunday 5.00 pm until the following Sunday at 5.00 pm;
(2)Fourteen consecutive days from 5.00 pm on 11 December until 12 noon on Christmas day;
(3)From 5.00 pm on the second Sunday in January until 5.00 pm 14 consecutive days later;
(4)From 9.00 am until 8.00 pm on Father’s Day; and
(5)At all other times with the wife, or if not then the current arrangements continue.
The parties are in broad agreement that the children are able to travel both interstate and overseas although they are not agreed as to who shall retain the children’s passports.
At trial, the parties were the registered proprietors of the former matrimonial home situate at J Street, Suburb C in the state of New South Wales (“the former matrimonial home”) held by the wife as to 99 per cent and the husband as to 1 per cent as tenants in common.
The parties agreed that for the purpose of the proceedings the value of the former matrimonial home was in the sum of $5,250,000. National Australia Bank (“NAB”) held a loan secured by mortgage over the former matrimonial home in the sum of $3,149,565.
The parties agreed that the former matrimonial home would need to be sold but were not able to agree the method and manner of sale.
At the conclusion of the evidence on 13 November 2020, the parties tendered a document which dealt with, by agreement, the following matters on an interim basis:
(1)The sale of the former matrimonial home;
(2)The transfer of 704 G Bank shares to the wife;
(3)The child support to be paid by the husband for the children; and
(4)The arrangements for the children to spend time with the parties over the 2020/2021 school holiday period.
The Commissioner did not consent to the detailed proposal of the parties for the sale of the former matrimonial home on the basis that the Commissioner was concerned to protect a sum equivalent to the husband’s total taxation liabilities. It is a relevant consideration that the husband agreed to the Commissioner having a priority over the parties, and in particular the wife, in respect of the payment of his taxation liability including GIC.
Orders were made that provided for the net proceeds of sale following the payment of all costs and expenses of sale, the discharge of the NAB mortgage and a modest payment to the wife representing costs paid by her in readying the house for sale, to be paid into two controlled money accounts established by the wife’s solicitors as follows:
(1)An account in the husband’s name holding 1 per cent of the net proceeds of sale; and
(2)An account in the wife’s name holding 99 per cent of the net proceeds of sale.
The former matrimonial home was sold for $5,565,500.
The parties agree that there should be a departure from the Child Support (Assessment) Act1989 (Cth) (“Child Support (Assessment) Act”) but are not agreed as to the extent of the periodic and non-periodic support to be paid by the husband.
The parties are agreed that by way of departure from the current Child Support Assessment, the husband will pay the following:
(1)Private health insurance for the four children at their current rate of cover (as proposed by the husband); and
(2)All private school fees and any other expenses and charges as recorded on the invoices issued by the children’s current schools, including but not limited to, all tuition fees payable, including compulsory levies, voluntary building fund contributions, compulsory excursions, technology levies, curricular activities run by the school, compulsory materials and resources, camps and excursions and any additional subjects in which the children are enrolled and the husband shall ensure that such invoices are paid in accordance with the terms of that invoice.
The parties are not agreed as to whether there should be ongoing periodic child support. The husband contends that the payment of non-periodic child support for private health insurance and the children’s school related expenses should account for 100 per cent of his liability to pay child support as assessed, and as such, Services Australia will reduce his liability for periodic child support to nil. The wife seeks that the husband should be assessed to pay periodic child support at the rate of $1,250 per month, per child.
Given that the parties agree there should be a child support departure and that the child support should be paid until there is a child support termination event in relation to each child, the focus is to consider the separate financial circumstances of each party.
DOCUMENTS RELIED UPON
The wife relies upon the following documents:
(1)Further Further Amended Initiating Application filed 27 November 2019;
(2)Trial affidavit of the wife filed 25 August 2020;
(3)Affidavit of Mr B filed 26 August 2020;
(4)Affidavit of Ms E filed 25 August 2020;
(5)Affidavit of Mr P filed 25 August 2020;
(6)Financial Statement of the wife filed 25 August 2020;
(7)Affidavit of the wife filed 4 November 2020; and
(8)Affidavit of Dr Q filed 4 November 2020.
The husband relies upon the following documents:
(1)Response to Initiating Application filed 22 May 2019;
(2)Trial affidavit of the husband filed 21 August 2020;
(3)Affidavit of the husband filed 2 November 2020;
(4)Financial Statement of the husband filed 21 August 2020; and
(5)Affidavit of Ms AA filed 21 August 2020.
In addition, the Court is to consider the expert report prepared by Dr D (“Dr D”) dated 20 March 2020 and the valuation report of the husband’s business authored by Ms R (“Ms R”), dated 10 September 2020.
The Commissioner relies upon the following documents:
(1)Response to Initiating Application filed 4 June 2020; and
(2)Affidavit of Ms S filed 27 August 2020.
A case outline document was filed by each counsel and their closing final submissions were supplemented by detailed written final submissions.
BACKGROUND
The wife was born in 1975 and is now aged 46 years.
The husband was born in 1976 and is now aged 44 years.
The parties commenced cohabitation in 2002 in the United Kingdom where they met. The husband was employed in the finance industry. The wife also worked in the finance industry.
The parties relocated to Australia in 2004 and following their marriage in 2005, purchased a property at T Street, Suburb U, New South Wales (“the Suburb U property”) for $1.9 million.
At that time, the wife was employed by a large international firm with the husband being employed by an American company.
Following the birth of W in 2006, the wife ceased employment and undertook the role of homemaker.
In 2007 the parties sold the Suburb U property. In or around 2008, the parties purchased a property at V Street, Suburb C (“the V Street property”) for approximately $2,100,000 by application of the net proceeds of sale of the Suburb U property, with the residual balance funded by a secured loan.
The parties agree that they undertook significant renovations either at or greater than $1,000,000.
The parties remained in the V Street property until they purchased the property at J Street, Suburb C (“the first Suburb C property”) in 2010. As at the sale of the V Street property in 2010, X and Y were born.
Z was born in 2012.
The parties separated for a short period of time in 2015.
In 2017 the parties agreed to sell the first Suburb C property and purchased the former matrimonial home at J Street, Suburb C for $4,890,000, funded by mortgage of about $2,800,000 and the net proceeds of the sale of the first Suburb C property.
The former matrimonial home is held as tenants in common as to 99 per cent interest to the wife and 1 per cent interest to the husband.
In September 2018, the husband as both founder and CEO established the entity known as H Business with a number of other investors.
On 7 December 2018, the husband transferred $260,000 to the wife’s account to assist in the payment of school fees and mortgage payments on the former matrimonial home.
As a result of irreconcilable differences, the parties agree that they finally separated on 1 January 2019.
On 3 June 2019, interim orders were made by the Senior Registrar that the children live with the wife and spend time with the husband each weekend on a two weekly cycle, for the first week from 9.00 am to 5.00 pm on Saturday and for the second week from 9.00 am to 5.00 pm on Sunday.
A notation to the order of 3 June 2019 required the husband to advise the wife if he intended to sell or in any way deal with more than $100,000 of shares held by him with G Bank.
On 24 July 2019, the parties consented to an order resolving on an interim basis that the wife have sole use and occupation of the former matrimonial home.
Each of the parties has re-partnered. The husband commenced a relationship with Ms AA (“Ms AA”) in February 2019 and the wife with Mr B (“Mr B”) in early 2019.
On 30 November 2019, there was an incident at X’s school basketball game between the husband and Mr B. The husband was arrested and charged and ultimately released upon a Provisional Apprehended Domestic Violence Order (“ADVO”) being made.
In July 2020, the ADVO was dismissed and the interim order discharged.
As discussed, at the conclusion of the evidence orders were made on 10 December 2020 which provided for the method and manner of sale of the former matrimonial home.
The judgment also touched upon the dispute between the parties as to the proper level of periodic and non-periodic child support to be paid by the husband as the liable parent. The judgment delivered on 10 December 2020[1] notes that the parties are not able to agree child support and that the wife’s application which encompasses the relocation of the residence of the children, from Sydney to Melbourne, is a relevant consideration as to the assessment of child support. Both parties agree that the travel costs involved in either the children travelling to Sydney to spend time with the husband if the wife’s application is successful together with the husband’s costs of travel to spend time with the children in Melbourne would be significant, although the extent of the quantum of the anticipated travel costs is a matter of determination upon the further evidence presented on behalf of the parties, following leave given to do so.
[1] See Bertrand & Bertrand and Anor [2020] FamCA 1051.
CONDUCT OF THE TRIAL
The trial commenced on 9 November 2020 with the evidence concluding on 13 November 2020 with interim submissions on 20 November 2020 and final submissions being heard on 17 February 2021.
It was agreed that Mr P was not required for cross-examination.
The parties tendered a joint balance sheet now comprised as exhibit “20” in the proceedings. There is substantial agreement between the parties however they remain significantly apart as to the following significant matters:
(1)The contents of the former matrimonial home;
(2)The value of the wife’s jewellery;
(3)The value of the husband’s G Bank shares;
(4)The value of the husband’s interest in the H Business;
(5)The treatment of the extensive legal fees incurred by each of the parties;
(6)The extent to which the husband’s tax liability should be brought to account; and
(7)The extent to which the husband’s Commonwealth Bank of Australia Mastercard should be considered as a liability of the parties.
COSTS OF THE PARTIES
The notices as to the parties’ costs comprise exhibit “16”.
The total costs and disbursements of the wife are estimated at $456,186 of which $329,970.34 are the costs rendered up to and including 31 October 2020, with the balance being the costs of trial. Of the total costs, the wife has paid the following:
(1)To her solicitors $235,800.11;
(2)To her counsel $61,820;
(3)To Dr D for the Family Report $19,580; and
(4)By way of disbursement for the divorce fee $910.
There remains $79,672.12 in the wife’s solicitors’ trust account.
The ability of the wife to pay her costs has been to utilise capital savings and the sale of a horse given to her by the husband.
The balance of fees paid and to be paid is met from borrowed funds from family and a third party.
The husband’s costs, including the trial, is $201,376.65 of which the sum of $61,693.12 remains outstanding.
The source of the funds used by the husband to pay his costs of about $142,000 was derived from the husband’s periodic income and the sale of G Bank shares in the sum of about $59,000.
The treatment of the parties’ paid legal fees, in particular whether any component should be considered as an add-back, is yet to be determined.
INTERVENTION ON BEHALF OF THE COMMISSIONER OF TAXATION
By order made 28 April 2020, Baumann J ordered that the Commissioner be given leave to intervene in the proceedings.
The application of the Commissioner was opposed by the wife and supported by the husband.
Relevant to the determination of the orders sought by the Commissioner is the following paragraph from his Honour’s judgment delivered on 28 April 2020:
5.During the course of submissions it was disclosed by the husband that he had reached an agreement with the ATO in respect of taxation liabilities that resulted in Supreme Court (New South Wales) proceedings … being discontinued. By Orders made 2 April 2020, the husband was to produce documents relating to the “deal” reached with the ATO in respect of his taxation liabilities. He did so (after providing a copy of the wife’s solicitors as directed) and those documents were marked as Exhibit 3.[2]
[2] Commissioner of Taxation & Bertrand and Anor [2020] FamCA 263
His Honour noted that the effect of the agreement reached between the husband and the Commissioner, as the basis for the Notice of Discontinuance, was an acceptance by the husband of a liability to the Deputy Commissioner for personal tax of $1,231,921.63 and a further liability for the year ended 30 June 2019 of $319,137.90.
His Honour determined to exercise his discretion and allow the application to intervene by the Commissioner for the reasons summarised as follows:
(1)The Application in a Case adequately particularises the basis upon which the Commissioner considered it to be a party;
(2)Although the debt was crystalized by the agreement, in the context of the current asset pool it is significant and would need to be taken into account if the evidence supported a finding that some of the taxation liability was incurred and or accrued during the marriage and was enjoyed by the wife and the family generally;
(3)Even though the correspondence between the parties’ lawyers and the lawyer for the husband and the Deputy Commissioner raise the spectre that timely disclosure of the liability and compromise reached was not made by the husband, this was insufficient for intervention to be refused;
(4)It is reasonable for the Commissioner to be a party to the proceedings so that it can persuade the Court that any entitlement held by the husband is not paid to him in a manner that may defeat the rights of the Commissioner as a significant unsecured creditor;
(5)There is a wide discretion under s 117(2) of the Act as to matters of costs and if the intervention of the Commissioner adds unnecessarily to the wife’s costs then this is capable of remedy as between the parties.
DISCHARGE OF THE ORDER APPOINTING AN INDEPENDENT CHILDREN’S LAWYER

At the commencement of the proceedings, the Independent Children’s Lawyer (“ICL”) was invited to consider whether there was utility in his continued involvement. The ICL was asked to consider whether he was likely to provide assistance to the Court beyond the comprehensive report of Dr D. It was noted that the parties were ably represented and both the Court and the parties had the advantage of the case outline document prepared by the ICL.
The ICL did not oppose the discharge of the order and reasonably conceded that if he remained involved in the proceedings, his role would be limited to a consideration of some minor additional material.
The ICL was frank in his initial position which was to support the wife, which encompassed a change in the children’s residence from Sydney to Melbourne. The ICL attempted to negotiate a resolution between the parties without success. He frankly considered that his role as ICL may have been exhausted.
Other than the question of his outstanding costs, the ICL sought leave to withdraw from the proceedings.
Counsel were given an opportunity to consider whether the Court should discharge the appointment of the ICL and after a short adjournment there was no opposition to the course of action proposed.
The costs of the ICL were set out in a schedule of costs in the total sum of $9,499.38. There was no submission on behalf of either party that the application for costs of the ICL should be dismissed.
PRINCIPLES APPLICABLE TO RELOCATION CASES
In AMS v AIF (1999) 199 CLR 160, Hayne J highlighted that the focus of the Court must be on how a child or children would be affected either to their detriment or their benefit by the separate proposals of the parties:
216.An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reason and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father … or to be in the custody of the mother … That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody …
The Full Court in Starr & Duggan [2009] FamCAFC 115 gave clear direction as to the coexistent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:
38.… it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
• first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
The relocating party is not required to justify why they seek to relocate. It is how well the best interests of the child will be served against the setting of each of the parties’ respective proposals.
Whilst there is no specific principle or procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating parties, the children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne [2016] FamCAFC 90 the Full Court considered a number of authorities, both international and domestic, and summarised the position as follows:
47.All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48.“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)
In considering the authorities, I do not bring to account any abstract concept that suggests a party has a right of freedom of movement.
As discussed, the focus is to consider the separate parenting proposals of the parties, have regard to the benefits and detriments that the child will experience and ultimately determine the matter on the basis of the best interests of the child.
PARENTING CONSIDERATIONS
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by application of the objects of s 60B(1) of the Act and the underlying principles of s 60B(2) of the Act.
I give weight to the primary considerations and additional considerations in respect of the factors as set out in ss 60CC(2) and (3) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
EVIDENCE
The wife
The wife confirmed that W is currently undertaking year 10, Y is in year 5, X is in year 7 and Z is in year 3.
At the time of trial, the wife acknowledged that if the children are permitted to relocate to Melbourne then the girls have been accepted into BB School.
The wife also confirmed that as at March 2020 her fiancé Mr B had care of his children on a week about basis.
The wife’s evidence is that at least one of the reasons for her relocation to Melbourne is to take advantage of better financial opportunities. The wife agreed that part of the financial consideration was her relationship with Mr B.
The wife was asked to consider her suite of orders that provided for the children to spend time with the husband whilst they remained in Sydney and if permitted to relocate, following their move to Melbourne. The effect of the wife’s orders is that prior to relocation the children should spend three nights per fortnight with the husband and one week in each of the short school holidays. The wife considered that the children would benefit from such an order but that if they sought more time then she would consider it. In particular, she accepted that she would facilitate any request by the children for extended time during school holidays.
The wife was asked to consider whether Dr D, in her report dated 20 March 2020 (Exhibit “15”) at paragraph 5, accurately recorded the wife’s purported allegation “that the father was verbally, physically and emotionally abusive to her and the children throughout the marriage”. The wife confirmed that the assertion that the husband was the perpetrator of family violence was still a part of her case.
The wife was asked to consider how her statement to Dr D would be reconciled with orders that she now sought which provided for the husband to have unsupervised overnight and extended block time during school holidays.
The wife considered that the husband’s conduct and any risk that he posed to the children could be effectively dealt with by Court order that restrained him from being physical, abusive or violent.
The wife acknowledged that other than her own evidence there was no other evidence that could support a finding that the husband was emotionally abusive.
The wife’s assertion to Dr D that the four children were fearful of their father was without any foundation. The wife was the subject of strong challenge that again it was inconsistent to promote that the children were fearful of the husband but then to propose that they spend up to one week unsupervised time in his care.
The wife did not admit the apparent contradiction nor was she prepared to entirely resile from her further assertion that the husband lacked parenting skills. She did concede that his ability to cope with the children was variable depending upon the circumstances.
Again, the obvious inconsistency in the wife’s presentation was to accept that the four children would represent a challenging parenting scenario, and again, this would be inconsistent with the wife’s parenting proposal of relatively substantial time being spent on an unsupervised basis.
The wife conceded that she had observed an improving parental relationship between the husband and W which she considered to be good news.
The wife confirmed that Z had engaged in therapeutic intervention in that she had weekly counselling at her school. Y had not undertaken counselling nor had he been referred for therapeutic assessment even though the wife’s position was that he remained frightened of his father.
During the family assessment, the wife advised Dr D that Y had recently been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and had been attending upon Dr CC.
The point was made that a diagnosis of ADHD was not connected with any fear that the child may have of the husband and was an irrelevant consideration in circumstances where there was no evidence that established a causal connection between ADHD and parenting issues.
At paragraph 32 of the family report, the wife is recorded as feeling “physiologically ill and suffers symptoms of extreme anxiety when she is around [the husband]”. She confirmed that she experienced symptoms of extreme anxiety when around the husband and it was in part her experience of anxiety that caused her to attend upon a psychiatrist, Dr Q (“Dr Q”). The wife agreed that Dr Q’s opinion was that there may well be some improvement in her general emotional state and a lessening of her anxiety once the proceedings have finalised.
Dr Q’s report records the following:
123.The symptoms are consistent with a diagnosis of Post Traumatic Disorder.
124.Specifically she has met the criteria for causation i.e. witnessing or experiencing actual or threatened serious injury.[3]
[3] Affidavit of Dr Q filed 4 November 2011, annexure “3”, page 22.
The wife was asked to recall what she had either witnessed or experienced in terms of actual or threatened serious injury.
The wife raised an incident at paragraph 104 of her affidavit, when following an argument the husband stormed off and then whilst driving, the husband allegedly slammed on his brakes.
The wife also recollected an incident when the husband entered the house in early 2019 and pushed her against the wall.
The evidence is that whatever the veracity of the various incidents involving the parties is, the wife had provided Dr Q with a number of examples of purported aggressive conduct by the husband.
The wife conceded that to the extent that the husband could elicit her to experience a startled reaction may well have its genesis in events involving previous violent relationships, well before the commencement of her relationship with the husband.
The wife denied the direct proposition that if orders were made that allowed for the relocation of the children from Sydney to Melbourne that given her fear and anxiety about the husband and her belief that the children also feared him, she would not support or promote the children maintaining a relationship with him.
The wife was asked to reflect on the extent of the involvement by the husband in the children’s curricular and extracurricular activities. It was put to her that she rarely assisted with the children’s homework with the implication that the task fell to the husband. Whilst the wife disagreed with the assertion, she did concede that the husband was very much involved in the children’s extracurricular activities, in particular coaching the boys’ rugby teams and attending, not necessarily assisting, the girls in their “nippers” swimming activities.
Whilst the wife made concessions as to the husband’s involvement with the children, she was not prepared to resile from her report to Dr D, recorded at paragraph 251 of the family report, that the husband was largely uninvolved with the children.
Whilst the wife agreed that the husband had taken W to school on his way to work on the odd occasion, she did not concede that the frequency was greater than once or twice a month.
Dr D’s report refers to the children attending upon Dr DD (“Dr DD”) to assist in their adjustment to the separation of the parties. She denied that it was to assist the children integrate into a step-family involving Mr B.
She did agree that she did not tell the husband about the children’s and in particular X’s involvement with Dr DD.
The wife’s response was that she did not inform him on the basis that he had been historically uninterested in the medical needs of the children. The wife’s evidence was unconvincing, although the implication that the wife was deliberate in not advising the husband is ameliorated to some extent by her assertion that at one point in the therapeutic sessions the husband was invited to attend. It is the wife’s belief that the husband and Dr DD may well have discussed the therapeutic assistance being provided.
The wife was asked to list the good qualities that were possessed by the husband to Dr D.
The wife considered that the husband was intelligent, determined, witty and a competent sports person. She agreed that the husband was demonstrable in his love for the children and was supportive of their extracurricular activities.
The wife was challenged as to whether there was any basis for the husband’s time with the children to be supervised. She expressed sincerity when originally seeking orders that his time be supervised but now was not doing so.
The wife did not agree that both W and X had expressed a wish not to see the husband. W has not done so but X most certainly has. The wife considered that X is still fearful of the husband but that she has confidence that even if the children were able to relocate she would be able to persuade X to maintain a relationship with the husband.
Pages 15 to 22 of the wife’s trial affidavit provide various incidents claimed by the wife to exemplify aggressive conduct by the husband constituting family violence. The tenor of the questions put to the wife by the husband’s counsel was to challenge the truthfulness of the wife’s claims.
Whilst not corroborative of the various allegations of aggressive conduct by the husband, a number of the purported incidents were the subject of police complaint.
The wife was also challenged over an allegation that on 6 December 2015, whilst the parties and the children were at Suburb EE, an argument ensued between the husband and Y which the wife alleges resulted in the child being struck on the face with an open hand. The wife asserts that she confronted the husband concerning his conduct although there is no reference in the wife’s affidavits to that having occurred.
The wife was also challenged as to an incident involving the husband and W in July 2017. It is alleged that the husband yelled at W who then became upset and scared. The wife resisted counsel’s proposition that the various incidents had not occurred and that she was making them up.
What was apparent from the wife’s evidence was the extent of unbridled hostility between the husband and Mr B. The wife conceded that it was the opinion of Dr D that it would be preferable, for the time being, that Mr B not attend the children’s activities in circumstances where the husband is present.
The wife agreed that she was aware of the husband’s wish that Mr B not be present at the children’s extracurricular activities but nonetheless for reasons that were not made clear, the wife did not consider that she was being provocative in having Mr B remain with her and the children being in the vicinity of the husband.
The wife’s attention was drawn to paragraph 59 of Dr D’s report which referred to Y being a child that likes routine and recording his worry about moving houses. The wife conceded that stability was important to Y and recognised that there would be a significant change by the move to Melbourne. Having made the concession, the wife did not consider that Y would be overwhelmed by a relocation to Melbourne. It is a trite observation that the separation of the parties and the breakdown of the marital relationship, with the resultant disruption to the family, involves a challenge to the children’s stability.
The former matrimonial home has now been sold. The financial arrangements that impact upon the wife are likely to represent a significant diminution in lifestyle and personal circumstances not just for the wife but also the children.
The wife agreed that she has spoken to X about money but not in circumstances that the husband was financially depriving them by not allowing them to relocate to Melbourne.
Whilst the wife maintained that the husband had a limited involvement with the day to day parenting of the children, she agreed with the proposition that the parties were able to decide that she would not return to work but rather take up the role of homemaker.
Moreover, it appears that prior to separation the parties were able to reach agreement as to significant matters affecting and impacting upon the children and in particular where the children would go to school.
The wife’s trial affidavit sets out the attempts that she had made post separation to follow up employment opportunities. She sought employment from a mutual friend and a human relations organisation. She confirmed that she had made formal applications to accounting firms but had not met with success in Sydney.

Even though COVID-19 in 2020 presented difficulties, the wife met with a representative of a firm who was willing to offer or consider a role for the wife should she be permitted to relocate to Melbourne. As at the date of the hearing, the wife had begun working part-time without pay for a friend’s company as a client officer. It was not intended that the position would be ongoing. It could be considered that the role was a probation period but again anything more substantial in terms of employment would be Melbourne based.
The mechanics of the children flying between Melbourne and Sydney was raised by counsel and the wife agreed that there will have to be some level of communication between the parties to take account of the mechanics of arranging flights, dealing with the different ages and personality of the children and in particular their different interests. The wife was not prepared to accept that the communication between the parties was reasonably good but rather described it as functional.
There is disagreement between the parties as to the manner in which W appears to enjoy attending his current school. The husband considers that W has a close social network and it could not be said that he is manifestly dissatisfied with his current school. The wife’s response is that W’s grades have been deteriorating and the issue is more nuanced, with the implication being that the husband would not necessarily recognise any difficulty experienced by W.
An important consideration arises from paragraph 179 of Dr D’s report. The reference is to X and it raises the concern that X struggled to maintain a relationship with the husband. The wife now considers that X’s attitude towards and about the husband has changed, she is more accepting of seeing him and the wife does not observe X becoming sad.
Mr B
Mr B’s primary evidence is contained in his affidavit filed 26 August 2020. Mr B and the wife originally met in 1995 and following the breakdown of each of their marriages recommenced a relationship in January 2019. Mr B and the wife were engaged in 2019.
Mr B lives and works in Melbourne. He has two children aged 13 and 11 from a prior relationship. They spend five nights each fortnight in his care with the school holidays shared with his former wife.
Subject to travel restrictions as between Sydney and Melbourne, Mr B has spent significant periods of time in Sydney with the wife and the children.
The relationship between the husband and Mr B is problematic and conflicted. Mr B contends that he has not had a proper conversation with the husband and took offense in early 2019 at his belief that he was being followed, filmed and photographed.
Mr B also intervened in the conflict between the parties when he communicated with the husband in an attempt to persuade him to alter the tone of communication between the husband and wife which he considered offensive.
On occasions, when the husband and Mr B have met, it is his evidence that the husband has resorted to offensive language and remarks directed to him.
The heightened tension between the husband and Mr B resulted in a complaint being made to the police with the result that on 1 December 2019 an ADVO was issued, listing Mr B as a protected person.
That application resulted in a hearing on 9 July 2020, wherein it was suggested that Mr B and the wife had concocted the allegations of threatening and intimidating behaviour by the husband, to assist in her application for relocation.
It is likely that the relationship between the husband and Mr B remains hostile and toxic. Mr B gives evidence of an audio recording forwarded by the husband to X that refers to Mr B and the wife as being liars and that they had an intention to put the husband in prison.
Mr B is supportive of the orders sought by the wife which would see the children relocate from Sydney to Melbourne.
It would appear that Mr B considers that he is financially secure and if required, able to support the wife and the children.
Mr B agreed with counsel’s proposition that he did not have a good relationship with the husband and that it was acrimonious.
Moreover, Mr B concedes that his attempt to engage with the husband was misguided and in hindsight, was unlikely to lead to the parties and Mr B reconciling their differences.
Mr B was challenged as to his assertion of the incident occurring on 30 August 2019, when he contends that he approached the husband’s car and lightly knocked on the window to gain the husband’s attention. He denied the husband’s assertion that he forcefully hit the window with his hand and was aggressive and threatening to the husband.
Mr B did not consider that the husband was a threat to his children even though he had received some information from his former wife of a concern she had with him.
Mr B was further challenged as to the truthfulness of his evidence that on 19 October 2019 when he attended with the wife at Y’s basketball game and then at X’s basketball game on 30 November 2019, the husband directed the following remarks to him namely, “Look at that fuckwit”[4] and “I know you didn’t bring that thing here”.[5]
[4] Affidavit of Mr B filed 26 August 2020, paragraph 39.
[5] Ibid, paragraph 40.
The wife and Mr B reported the incident of 30 November 2019 to the police, with the further allegation that the husband said “I’m coming for you soon enough. I’m going to get you. I’m going to get you”.[6]
[6] Ibid.
Mr B denied that he and the wife had concocted the allegations in order to assist with the wife’s application to permit relocation of the children.
Mr B confirmed that on 12 February 2019 he sent the following text message to the husband:
Mr Bertrand, I think I just saw you in Melbourne; did you fly down to see me? I am very flattered by this obsession you seem to have with me, but I’m afraid I am seeing someone and I can’t reciprocate. All the best. Mr B.[7]
(Emphasis in Original)
[7] Transcript 10 November 2020, p.164 lines 32 - 34.
Mr B explained that the message to the husband was deliberately sarcastic in its tone and was prompted by annoyance at finding that he was being followed and photographed.
Mr B also agreed to sending a text message on 9 March 2019 in the following terms:
Mr Bertrand, I’m the fuckwit Ms Bertrand has been fucking. I’ve just heard the whole, entire conversation; do you recall that?[8]
(Emphasis in Original)
[8] Transcript 10 November 2020, p.165 lines 14 - 15.
The relationship between the husband and Mr B was further exacerbated by a text message forwarded to the husband on 5 April 2019 in the following terms:
Mr Bertrand, it would appear that your relentless bullying and gas-lighting of Ms Bertrand continues unabated. I know it’s probably a bridge too far for a psychopathic narcissist of your magnitude, but how about you try to think of someone other than yourself and do what is best for your children; one day they may thank you for it.[9]
[9] Transcript 10 November 2020, p.166 lines 6 - 10.
Mr B conceded that the tenor and tone of the communication forwarded to the husband was unhelpful but even with hindsight, he was not regretful at having sent the various text messages.
Generally, I considered Mr B to be a credible witness although I am not able to make a finding on the balance of probability as to the detail and nature of the interaction between he and the husband. Whilst Mr B is likely to provide strong support to the wife and the children, it is unlikely that he and the husband will reconcile their differences and that will remain a source of ongoing acrimony.
Ms E
Ms E is the wife’s mother and her primary evidence is contained in her affidavit filed 25 August 2020.
Ms E considers that she did not have a close relationship with the husband. On occasions she considered the husband’s interaction with the wife and the children to be aggressive.
At all material times, Ms E lived in Adelaide and after the parties’ separation in January 2019 she travelled to Sydney on about six occasions, spending approximately eight days on each visit. She records conversations with X who appeared distressed at the prospects of spending time with the husband.
Ms E and her husband responded to a request by the wife for a loan and in November 2019 provided the sum of $100,000 and in February 2020, a further sum of $50,000.
Ms E conceded that she had what might be described as a cordial relationship with the husband but if asked to commit, could not acknowledge any positive aspect of the husband’s presentation in his parenting of the children. She considered that the children were well off materially but not emotionally.
Mrs E should be considered as a credible witness and was highly supportive of the wife. Her consideration of the husband’s ability to parent the children are matters about which I give little weight.
The husband
The husband accepted that at least on one occasion he wrote to various Melbourne based schools to which the wife had made an application for enrolment of the children, expressly forbidding the processing of any application.
The wife’s position is that if relocation to Melbourne is not permitted then she would not be able to continue to reside in the eastern suburbs of Sydney but would need to find alternate residence in northwest Sydney or the N Region.
The husband agreed that he had not put forward any proposal for the children to spend time with him should they relocate to Melbourne. Similarly, the husband did not put forward any proposal to spend time with the children should the wife and the children take up residence in the N Region other than his current proposal which encompasses a cascading proposal of time spent.
Exhibit “34” in the proceedings provides evidence of three separate rental properties in Suburb C and Suburb O between $2,200 to $2,495 per week. Exhibit “35” provides general evidence of the purchase price of a number of properties in the N Region ranging from $795,000 to $1,100,000. Exhibit “36” is a google maps search of the distance between Suburb O and the N Region of between 118 and 151 kilometres depending upon route taken, with a travel time of between 1 hour and 20 minutes to 2 hours and 10 minutes.
It is a reasonable summary that if the wife decided to take up residence with the children in the N Region, on average the travel time would be about 2 hours each way.
The husband denied that he had perpetrated family violence against either the wife or the children. He did consider that whilst not frequent there were occasions when the wife was physically and verbally abusive to him. In respect of the children, the husband’s observation was that she was more frequently physically and verbally abusive.
In addition, the husband appeared to accept that there was some fragility in his relationship with the children but considered that it was as a result of direct manipulation by the wife.
He did acknowledge in his trial affidavit that since the assessment undertaken by Dr D, the nature of the relationship with the children seems to have improved.
He agreed that the children felt supported and loved by him and whilst the children now seem to be moving in a positive direction, that was not as a result of the wife’s positive influence in circumstances where he believed she continued to manipulate the children with the intention of undermining his relationship with them.
The husband denied that he would involve the children in adult issues or that he was quick to temper. He did agree that he spoke to the children after the resolution of the ADVO proceedings.
The husband was asked to reflect upon matters raised by the children pertaining to his anger and considered that whilst they might well believe that he demonstrated anger, it was not an accurate assessment of his behaviour.
The husband agreed that whilst there had been some reduction in the conflict between the parties, there had not necessarily been significant improvement in either the ability of the parties to communicate or their preparedness to be flexible in the care arrangements for the children.
The husband was asked to reflect upon the wife’s financial circumstances exemplified by her sale of her horse, engagement ring and monies loaned from third parties, in particular Mr P. The issue has relevance in the sense that the children, but in particular X and Z, have some knowledge of the parties’ financial circumstances. The husband denied that he had spoken to the children about financial matters however he was reminded of Z’s remarks to Dr D suggesting that the husband had engaged Z in numerous conversations about his lack of money.
The husband agreed that the parties should use their best endeavours to ensure that the children were shielded from the financial conflict between the parties.
Senior counsel summarised the financial effect of the husband’s proposal for property settlement, being a settlement sum to the wife of about $200,000 and child support that does not include a periodic amount. When asked whether he would want to review the orders that he was seeking, the husband recognised that the financial outcome to the wife may well impact upon her ability to provide financially for her and the children. The husband recognised that it was important that the children were well looked after and there appeared to be recognition on his part that the outcome of the proceedings in terms of his orders sought, would place the wife and the children in a parlous financial position and potentially at risk.
It was difficult to understand the husband’s position in respect of child support. The orders sought by him was an offer to pay, by way of non-periodic child support, the curricular and extracurricular activities of the children, understanding that they would attend high charging private schools. The initial position of the husband was that he would be prepared to pay up to $130,000 per annum towards the children’s school and other fees but only if they remained in Sydney.
The following exchange sets out the conundrum:
[Counsel:]You’ve thought very carefully about ensuring that there is some financial security for your children’s education in a private school?
[Husband:]      Yes.
[Counsel:]And against that background, your position to his Honour is “I can pay $130,000 per annum?[”]
[Husband:]      Yes.
[Counsel:]       … but if they go to school in Melbourne, I can’t pay a cent?
[Husband:]      Yes.
[Counsel:]…. towards their education. That’s it?
[Husband:]… Absolute – an absolute stretch for me to pay the school fees – as we can see, because they’re so far in arrears and on a payment plan with every school, so to expect that I can …
[Counsel:]       Please respond to my question, Mr Bertrand?
[Husband:]      The answer is – the answer is no. I can’t …
[Counsel:]       Please respond to my question?
[Husband:]Your – your question was can I pay for their school fees in Melbourne. The answer is reasonably – under every which way you look at it – no.
[Counsel:]       No, that wasn’t my question. Please…
[Husband:]      Okay, then.
[Counsel:]… try and concentrate on my question. Your position is, “If they are going to school in Sydney, I can pay $130,000 per annum to their school fees, but if they’re living in Melbourne, I cannot pay one cent towards their school fees”. That’s it, isn’t it?
[Husband:]      When put like that, that doesn’t sound reasonable.
[Counsel:]       Well, is that your position?
[Husband:]      No.
[Counsel:]Right. So is it, “I can pay $130,000 per annum altogether, and it’s really a matter for Mrs Bertrand to work out how that’s applied?”
[Husband:]No. Because if – if people are in Melbourne, then I will need to have the house or apartment in Melbourne, and I will need to fly to Melbourne as well. And I think that the – like, looking at the flights the other day, when this becomes a topic…[10]
[10] Transcript 12 November 2020, p.330 line 44 to p.331 line 30.
At paragraph 455 of her trial affidavit, the wife set out a transcript of a conversation between the husband and the children on 30 April 2020. The husband accepted that subject to some errors, the transcript recorded the tenor of the discussion and he accepted that he had told W and X of his intention to report Mr B to the police. The husband admitted that he had told the children that the family was broken and that their mother and Mr B had made up big lies about him.
The husband did not think that the process was necessarily inappropriate or potentially damaging for the children but rather he considered it was important that they understood what was happening in the conflict.
It was only after counsel was forceful in his assessment that the conversation may well have had a destructive impact upon the children that the husband eventually conceded that it was not in the children’s interests to engage them in the way that he did.
The husband engaged in a further lengthy conversation with the children on 9 July 2020 in relation to the ADVO court proceedings. He accepted that he had told the children that the wife had supported Mr B and that she was also found to be an unreliable witness. X’s response was that she could not see the point of the husband telling them about these matters and that it was conversation that she considered to be of five hours duration.
The following exchange is of assistance:
[Counsel:]Sir, again this was a active, considered, and calculating decision to try and engage the children directly in an adult conflict matter, wasn’t it?
[Husband:]No. I was just telling them what was happening – what had happened, in fact.
[Counsel:]Sir, do you think this helped the kids at all?
[Husband:]Well
[Counsel:]It either helped them or it didn’t. Which is it?
[Husband:]Well, I’m, I’m - am trying to consider that, sir. [11]
[11] Transcript 12 November 2020, p.338 lines 11 - 18.
In what might be described as a heated exchange between counsel and the husband, the husband denied that he had told X that if she remains with the wife she is going to live in a “shithouse”[12] and over speakerphone and in the presence of the children, described the wife’s conduct as “fucking disgraceful parenting”.[13] The husband also denied that on 3 August 2019 he was at the front door of the wife’s home yelling “manipulator, manipulator”.[14]
[12] Transcript 12 November 2020, p.339 line 7.
[13] Transcript 12 November 2020, p.339 line 12.
[14] Transcript 12 November 2020, p.339 line 16.
At paragraph 266 of the wife’s trial affidavit, the wife provides a transcript of a telephone conversation between the husband and the children, overheard by her on speakerphone.
The husband asked W to take him off the speaker however W refused and the following is transcribed:
[W]:     “No dad, why? So you can say bad things about Mum and Mr B?”
Husband:        “Is anyone taking drugs?”
[W]:     “No!”
Husband:        “Take me off speaker!”
[W]:     “Sorry dad but I’m not comfortable with that.”[15]
(Emphasis in Original)
[15] Affidavit of the wife filed 25 August 2020, paragraph 266.
The husband then hung up and forwarded messages to the wife in the following terms:
“Please confirm that Mr B is still not drinking and taking drugs around our children.”
“Disgraceful parenting. Absolutely horrible. You are alienating the children from their parents. Awful.”
“You lie and lie and lie. Manipulate. Hurt. Try to injure. You have broken our family. Please do not let that drug taking, clinically depressed alcoholic hurt our kids.”[16]
(Emphasis in Original)
[16] Affidavit of the wife filed 25 August 2020, paragraph 267.
The husband was asked to reflect upon the tenor of the conversation with the children and then the message to the wife, in the context of paragraph 192 of his trial affidavit which states:
I remain hopeful that [the wife] and I can come to parent collaboratively for the benefit of the children.
The husband was asked to accept that his communication with the wife was inflammatory and unlikely to lead to a more civil relationship with her. The husband did not resile from his remarks and considered that his language was not dissimilar to the wife’s conduct.

It is a trite observation that the extent to which consideration must be given pursuant to s 75(2)(ha) of the Act is less onerous where it is likely that the taxation liability will be discharged from the resources of the parties, either jointly or severely.
As considered, the husband’s primary tax liability as at 12 August 2020 was $1,321,364.40 together with a GIC of $350,350.72. The income tax liabilities including primary tax and GIC by reference to Tables 1 and 4 in the affidavit of Ms S are as follows:

YEAR AMOUNT

30 June 2014 Nil

30 June 2015 $23,924.19

30 June 2016 $713,615.65

30 June 2017 Nil

30 June 2018 $151,749.05

30 June 2019 $319,137.90

SUBTOTAL $1,208,426.79

The husband incurred Division 293 taxation liabilities for the financial years ending 30 June 2015 of $2,817.50 and 30 June 2019 of $3,655.80.
It appears that the husband contravened the Taxation Administration Act 1953 (Cth) by failing to lodge a taxation return thereby incurring a penalty.
The Running Balance Account (“RBA”) deficit debt as at 12 August 2020 inclusive of GIC totalled $19,549.27.
A further review of the RBA in relation to a different integrated client account, added a further $93,161.62.
The compromise reached with the Deputy Commissioner in the Supreme Court proceedings required the husband to pay any new taxation debt. He accepted the Commissioners’ assessment of the new debt totalling $319,137.90. As agreed between the husband and the Commissioner the total debt payable to the ATO is $1,672,629.07.
In addition, the husband received penalty notices arising from his failure to lodge returns on time in the total sum of $913.78.
The husband acknowledged that he had an obligation to make full and frank disclosure of relevant financial circumstances of each of the parties.
The husband considered that in his dealings with the ATO he had been truthful not just in respect of his own representations but representations that may have been made by his tax agent or accountant.
Senior counsel referred the husband to paragraphs 261 to 265 inclusive of his trial affidavit which all commenced with the following statement:
Ms Bertrand and I agreed [that at certain times about the disposal of G Bank shares …]
It was put to the husband that it was not a matter of agreement with the wife but rather a decision made to sell shares was entirely at the election of the husband. The husband agreed that at times he had told the wife that shares had been sold but that on each occasion the decision to sell was a joint decision.
The husband either did not understand counsel’s question or chose to be obtuse in his response. It is likely that counsel’s proposition more accurately reflects the circumstances in respect of the sale of the G Bank shares, namely that the husband may have told the wife that he had sold shares but did not convey the detail as to the number of shares sold or the proceeds received from sale.
The husband conceded that between 30 June 2019 and 11 November 2020 he sold 980 shares. He also agreed that it was only on 10 November 2020 that he produced bank statements.
The husband’s financial statement did not disclose the disposal of shares even though it is likely the bank statements held by him gave him the necessary information to complete the details required in the financial statement.
It appears that the husband did not disclose the sale of shares nor indeed the manner in which the funds had been disbursed in circumstances where he considered it had been the subject of an earlier Court order.
The husband agreed that his salary was in or about the sum of $450,000 per annum together with other employment based benefits such as travel, mobile phone expenses and contribution to superannuation. The husband did not pay the mortgage from about January 2019 and subsequent to six months of arrears accumulating he made an application for hardship to suspend mortgage payments in or about July or August 2019.
It is agreed that as part of the negotiations between the husband and the ATO, he proposed to repay the outstanding tax debt at the rate of $10,000 per month. The Deputy Commissioner did not accept the husband’s proposal however he conceded that the tax instalments payable to the ATO were $2,308. Those payments were not paid.
The husband conceded that on 30 August 2019 his solicitors received letters from the wife’s solicitors seeking disclosure of a copy of the statement of claim filed by the Deputy Commissioner and in addition, copies of correspondence that had passed between the husband, his accountant, his solicitor and the ATO.
By email on 9 April 2018, the husband agreed that his accountant advised him that his 2016 and 2017 returns were not yet filed and were overdue. The advice to the husband by his accountant was that there would be penalties and interest charges.
The accountant also advised the husband of the anticipated tax payable for the 2016 and 2017 years. The email exchange between the husband and his accountant was not the subject of disclosure. Those documents were obtained by subpoena.
The cross-examination of the husband underpinned the proposition put to him, namely that he didn’t tell the wife about the extent of the taxation liabilities and the potential for penalties and interest.
The husband agreed that at the time he had 4,400 G Bank shares which could have been sold to discharge the taxation liability.
Senior counsel also questioned the husband as to a sum of about $500,000 that resulted from the sale of the first Suburb C property. The husband denied that he controlled the funds but was challenged to either identify documents that had been discovered setting out the manner in which net proceeds were disbursed or alternatively, to provide the information forthwith. The following exchange occurred:
[Counsel:]What I put to you, Mr Bertrand, is that you in your affidavit have not given any accounting of the use and application of the surplus funds created on the sale of the first J Street property and the refinance of the second J Street property?
[Husband:]I certainly tried to do that, and I think I also tried to provide the bank account and the information for the contemporaneous settlement of the one house to the other, and there should be an entry in an around the date of the purchase of J Street and the settlement of it.
[Counsel:]Not responsive, your Honour, so disregard it.
His Honour: Yes. Thank you.[29]
[29] Transcript 11 November 2020, p.258 lines 14 - 24.
On 5 October 2019, the husband’s accountant advised him that he was still in active negotiations with the ATO and was seeking to negotiate a payment plan. The husband agreed that he was both aware and included in the negotiations. The sum of $24,000 per month together with the calculation of GIC was discussed and the husband agreed that the G Bank shares could have been sold as a way of rationalising the tax debt. It was an important consideration for the husband to negotiate a reduction or a waiver of the interest component.
It was put to the husband that he elected not to sell shares to reduce the taxation liability. The husband’s response was that he and the wife elected not to do so. The husband was not responsive to the question put, namely as to his own decision to not sell G Bank shares.
The husband agreed that given he had proposed to pay $10,000 per month even though it had been rejected as part of a complete deal with the ATO, he could have elected to make a voluntary contribution of $10,000 per month to reduce the primary debt, interest and penalties.
On 16 October 2019, the husband instructed his solicitors to further pursue negotiations with the ATO but again on the basis that there was to be a remission of any GIC and penalties but with a concession as to the liability for payment of the primary taxation debt.
Senior counsel revisited the extent to which the husband had disclosed the negotiations and eventual compromise with the Deputy Commissioner as recorded in the Supreme Court proceedings. The following exchange occurred:
[Counsel:]And I would suggest to you at no time on 26 March 2020 did you tell the court or my client about the deal that you had made with the ATO in the Supreme Court?
[Husband:]I can’t recall, sir, but on the basis of the facts that I am seeing it looks like a deal was done in February, in March I was in court and documents were provided for those court proceedings. I feel like I’ve disclosed – and, in any event, I did instruct all of my attorneys throughout to have full and frank disclosure as soon as …
[Counsel:]Please disregard that, your Honour, as being not responsive?
[Husband:]You’re asking me these questions; I’m giving you these answers.[30]
[30] Transcript 11 November 2020, p.276 lines 10 - 18.
A consideration of the husband’s evidence and the matters raised in the judgment of Baumann J readily invites a finding that the husband did not make full and frank disclosure of his negotiations and compromise with the Deputy Commissioner, in circumstances where he was aware of a requirement to do so.
The husband also agreed that as part of the compromise he included his 2019 tax debt.
As at the date of the hearing the husband had not made any payments to the Deputy Commissioner, did not seek that the G Bank shares be sold to meet any part or portion of the tax debt and continued to receive the benefit of a significant income.
The parties were unable to agree the terms and conditions of the sale of the former matrimonial home. The wife sought that the net proceeds of sale be placed in a controlled monies account in accordance with the legal ownership that is, 99 per cent to the wife and 1 per cent to the husband. The husband’s position was that the tax debt be immediately paid out of the proceeds. The husband conceded that he would not agree to the sale of the house unless the tax debt was paid.
The wife agreed that she managed the financial day to day affairs such as insurance, motor vehicles, travel arrangements and similar expenses. In relation to the buying and selling of properties and the need from time to time to borrow monies to give effect to the parties’ decisions, it was very much a joint discussion agreement.
Notwithstanding the wife’s concession as to the extent to which certain financial decisions were the subject of discussion and consensus, she did not resile from her assertion at paragraph 52 of her trial affidavit that she was uncertain as to what had happened to the surplus sale proceeds from the first Suburb C property. Although she thought that it was used to discharge the tax debt.
Counsel for the Commissioner explored the extent of the wife’s knowledge of the sale of G Bank shares. Specifically, it was put to the wife that the sale of 2,200 shares in December 2018 was with her knowledge and consent. The wife conceded that she was notified after they were sold but agreed that the decision to sell was with her knowledge and agreement.
The wife conceded that she had never asked the husband to sell shares but she did ask him for money. She was in control of the household finances and agreed that the sale of the G Bank shares would have been deposited into an account and then monies would be transferred by the husband to her.
The wife was aware that the husband would have a taxation debt as a result of his employment but did not have any knowledge that he was not meeting his taxation liabilities as and when they fell due. The wife thought that any tax debt would have been in the order of $100,000.
The wife agreed that eventually the husband told her he had a tax debt of about $500,000 and that as a result of a decrease in his salary the only option for the parties was to sell the first Suburb C property, reduce the outstanding liability and use some of the net proceeds to pay the husband’s taxation liability.
The wife was shown a number of text messages passing between the parties. She acknowledged that on 28 August 2019 the husband advised her that he had been served with a statement of claim by the ATO for $1,200,000. The wife’s response appears at the bottom of exhibit “17” as follows:
[Wife:] What does that mean exactly?
I thought you had reduced the amount?
[Husband:]No. I told you they rejected it. It means I will be prosecuted and bankrupted by the ATO if we do not sell the house.
[Wife:]You did not tell me. The last I heard about it you were applying for a reduction.
[Husband:] If I am bankrupted it kills H Business.
The wife conceded that she had some understanding of the husband’s taxation liability. The wife acknowledged that there had been discussions with the husband about tax liabilities given that she felt compelled to sell the first Suburb C property because of outstanding tax liabilities.
Exhibit “18” comprises the following text message from the husband to the wife dated 7 December 2018:
The money from share sales has landed in the CBA account.
Can you please today:
1.pay the school fees for next year?
2.pay the mortgage for the next twelve months? You may need to speak to NAB specifically about the fact that you are doing that so that they don’t expect mortgage payments every month in the interim
It is important you do this as I am worried that the ATO will quarantine the money for them so we need to transfer it first.
The wife agreed that she was neither surprised nor uncertain as to the use of the sale proceeds of the G Bank shares.
The wife acknowledged that she had obtained taxation advice arranged by her solicitors.
The evidence does not support a finding that the wife had any more than a basic level of understanding that from time to time the husband was liable for outstanding taxation and that there was a need to either sell property or at times, shares.
The wife’s focus was on the payment of household and child related expenses and as is self-evident from the tenor of the text messages comprising in exhibits “17” and “18” given the parties considered that the household expenses should have priority over the payment of the tax debt.
There is no evidence that would enable a finding to be made that the wife had a detailed understanding of the husband’s income, the manner in which tax was calculated and the extent to which it was or was not paid.
On the balance of probabilities, the husband was in complete control over his income and the manner in which his taxation was or was not paid.
It is necessary to consider whether the entirety of the husband’s taxation debt, as in the sum as agreed between the husband and the Deputy Commissioner, should be brought to account as a joint liability of the parties or whether some lesser amount or as the wife seeks, that she should not be required to contribute to any taxation liability.
Evatt CJ set out the applicable principles in Prince & Prince (1984) FLC 91-501 at 79,076:
The assessment of debts and liabilities is not necessarily arrived at by a strictly mathematical or accountancy approach in all cases. While some liabilities are charges upon the property which can be accurately assessed at a certain date, others are at large, or have not been precisely determined, e.g. tax liabilities (Kelly and Kelly (No. 2) (1981) FLC 91-108 p. 76,801). In some cases the amount of the liability can only be estimated generally (Albany (supra), p. 75,717). The Court can make an allowance for a particular liability if appropriate to do so. In some cases there are sufficient uncertainties as to the alleged liability to lead the Court to disregard it entirely or partly (e.g. a loan from a parent of the party not likely to be enforced, Af Petersens (supra); Quirk (1983) unreported). In other cases, the Court may take the view that because of the circumstances surrounding the incurring of the liability it ought in justice and equity to be wholly or partly disregarded in determining the appropriate order to make under sec. 79 as between the parties to the marriage. Such a result could be reached where a spouse had incurred a liability in deliberate or reckless disregard of the other party’s potential entitlement under sec. 79 (Kimber and Kimber (1981) FLC 91-085; Kowaliw and Kowaliw (1981) FLC 91-092; Antmann and Antmann (1980) FLC 90-908; Af Petersens (supra)). Complex issues can arise in regard to liabilities to third parties (see, e.g. Pockran and Crewes; Pockran (1983) FLC 91-311).
I am satisfied that as at 1 January 2019 being the date of separation, the family gained the benefit of the outstanding unpaid taxation liability.
For the 2014 year, the total income tax and GIC was $32,117.37. For the 2015 year, the total income tax and GIC was $83,520.59. For the 2016 year, the total income tax and GIC was $939,750.84. For the year 30 June 2017, the total income tax and GIC was $0 and for the year ended 30 June 2018, the total income tax and GIC was $168,717.45. In addition, there was the sum of $4,421.76 by way of Division 293 tax and GIC for the 2014 to 2016 financial years.
The most significant taxation year was the year ending 30 June 2016. It appears that the income and therefore the income tax liability is significantly explained by the decision to sell significant quantities of G Bank shares which created an income tax liability of $713,615.65. What is not explained is the manner in which the GIC on the husband’s income tax liability was calculated in the sum of $226,135.19.
It is likely that as a result of the tax not being paid by 23 May 2017 the penalty interest has accrued.
On balance, I find that the parties should be required to contribute equally to the husband’s taxation liability less his penalties for non-lodgement of returns as at 1 January 2019 but not thereafter.
The husband did not impress as a witness who understood his clear obligation to make full and frank disclosure of documents relevant to an issue in the proceedings.
Whilst I do not consider that the Deputy Commissioner had an obligation to inform the wife of the negotiations being undertaken with the husband, his obligation was clear.
The husband’s evidence was unreliable in respect of his insistence that the sale of shares was a joint decision. The wife conceded that the family needed money to maintain a lifestyle. She had a general understanding that where the husband’s income was insufficient for the intended expenditure there would be general recourse to the husband’s G Bank shares.
The husband did not keep the wife informed as to the extent of the mounting taxation liability and whilst the wife admits that from time to time she sought that the husband cause funds to be placed into the domestic accounts of the parties, I find that she had little or no idea as to how serious the parties’ financial circumstances were.
There is no explanation as to why the husband did not file tax returns, pay his tax or make disclosure to the wife of his worsening taxation position. The husband did not inform the wife of the detail and particularity of the extent of the outstanding taxation liability and the significant components comprising penalties and interest.
At all times, and in particular in the financial year ending 2016, the husband could have sold G Bank shares that would have paid out the taxation liability and reduced the significant GIC liability.
A similar consideration applies to the husband’s post-separation taxation liability. The husband was content to negotiate a compromise with the Deputy Commissioner which also included the post-separation tax debt.
There was little focus on how that tax debt was accumulated but in circumstances where the husband chose not to disclose his financial circumstances and the arrangements with the Deputy Commissioner, it would be unreasonable for the wife to bear responsibility for his financial conduct.
By reference to the calculation of the pre-separation income tax of the husband I calculate the pre-separation tax debt as follows:

TAXATION COMPONENTS AMOUNT

Income Tax $1,354,430.85

Division 293 Assessment $5,483.70

GIC $187,287.30

Less payments/credit $619,557.21

TOTAL $927,644.64

Together with the total PAYG instalment of $21,910.13, I propose to bring to account the total pre-separation debt of $949,55 as a liability of the parties.
Assets and liabilities of the parties
I find the assets of the parties to be as follows:

ASSETS

AMOUNT

Net proceeds of sale of the former matrimonial home (wife)

$2,064,038.45

Net proceeds of sale of the former matrimonial home (husband)

$20,849.39

Motor Vehicle 1 (wife)

$45,000.00

Furniture and effects (wife)

$25,000

Furniture and effects (husband)

$5,000

Watches (husband)

$1,000

Parties property settlement pursuant to order 6 May 2021 (wife)

$100,000

Jewellery (wife)

$12,500

Horse float (wife)

$15,000

G Bank shares (husband)

$385,592

Interest in H Group (husband)

$405,000

TOTAL

$3,078,979

ADD BACKS

AMOUNT

Legal fees (wife)

$172,723

Legal fees (husband)

$140,000

TOTAL

$312,723

GRAND TOTAL

$3,391,702

Liability

I bring to account the following liabilities:

LIABILITY

AMOUNT

GG Company liability (joint)

$24,358

ATO liability (husband)

$949,554

TOTAL

$973,912

NET TOTAL

$2,417,790

Superannuation

I find the superannuation of the parties to be as follows:

FUND AMOUNT

Super Fund 1 (husband) $519,727

Super Fund 2 (wife) $36,454

TOTAL $556,181

TOTAL NET PROPERTY $2,973,971

The Court is required to make orders that are just and equitable when adjusting the interests of the parties in property.
I am required to consider the direct and indirect financial contributions made by the parties to the acquisition, conservation or improvement of the property (s 79(4)(a) of the Act), the contribution other than a financial contribution made directly or indirectly by the parties to the acquisition, conservation or improvement of the property (s 79(4)(b) of the Act) and the contribution made by the parties to the welfare of the family in their capacity as parent or homemaker (s 79(4)(c) of the Act).
The parties commenced cohabitation in 2002, were married in 2005 and separated on 1 January 2019 after a period of 17 years cohabitation.
There are four children of the relationship who currently remain in the primary care of the wife.
The husband is employed as manager of the H Business. The wife is not in employment having ceased work to care for the children.
The parties each use their best endeavours to provide for the family and to promote the care, welfare and development of the children.
Neither party suggests that at the time of commencement of cohabitation they had or contributed significant property.
In considering the evaluation of the contributions of the parties, I am careful not to assume a starting point that presupposes equality of contribution.
In Mallet v Mallet (1984) 156 CLR 605 at 636, Wilson J said:
However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as a homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent to that the respective contributions of the parties are each made to an equivalent degree. …
In Norbis v Norbis (1986) 161 CLR 513 at 523 Mason & Deane JJ said :
Although it is natural to assess financial contributions under s. 79(4)(a) by reference to individual assets, it is also natural to assess the contribution of a spouse as homemaker and parent either by reference to the whole of the parties’ property or to some part of that property. For ease of comparison and calculation it will be convenient in assessing the overall contributions of the parties at some stage to place the two types of contribution on the same basis, i.e. on a global or, alternatively, on an “asset-by-asset” basis. …
I am obliged to consider the contributions of the parties not at the date of separation but rather at the date of trial. Circumstances may arise where pre-separation contributions will be treated differently to those made either prior to separation or after separation. It is not an arithmetical exercise.
The parties were focused on securing a financial future for the family. The husband was in continuing employment whereas the wife performed the significant and valuable role of homemaker.
In the decision of Jabour & Jabour (2019) FLC 93-898, the Full Court did not favour an approach which attempted to quarantine property contributions but rather, considered that the contributions of each of the parties, especially in circumstances where there was a long period of cohabitation, should be a single exercise and not the subject of separate and individual assessment of each contribution.
In JEL & DDF (2001) FLC 93-075 at 88,334, the Full Court summarised the approach which should be taken when considering and evaluating the contribution made by the parties:
152.It seems to us that the following general principles can be said to arise from the cases referred to in these reasons, namely:
(a) There is no presumption of equality of contribution or “partnership”.
(b)There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife.
(c)Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.
(d)In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them.
(e)The Court will recognise any such special factors as taking the contribution outside the “normal range” in the sense that the phrase was understood by the Full Court in Mclay (supra).
(f)The determination of an issue of whether or not a “special” or “extra” contribution is made by a party to a marriage is not necessarily dependent upon the size of the asset pool or the “financial product”. When considering such an issue, care must be taken to recognise and distinguish a “windfall” gain.
(g)Whilst decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles.
(h)It is ultimately the exercise of the trial Judge’s own discretion on the particular facts of the case that will regulate the outcome.
(i)In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.
The more contentious consideration is the extent of the parties’ contributions after 1 January 2019, being the date of separation.
The children have remained in the primary care of the wife however, they have spent significant time with the husband.
The financial relationship between the parties after separation has been complex. The wife has not had any source of income and has had recourse to monies provided by the husband whether from his own resources or from the sale of property of the parties, including the sale of G Bank shares held and the sale of the wife’s horse float and engagement ring. Moreover, the wife has relied on monies borrowed from her parents and an acquaintance to assist her in the payment of legal fees.
The wife has raised a concern that the husband retained the sum of $500,000 following the sale of the first Suburb C property. Whilst there are aspects of the sale which remain unclear, I am satisfied that the explanation given by the husband, that a significant proportion of the proceeds was to pay an outstanding tax liability, is credible. The financial demands of the family were significant and unrelenting. It is within the parameters of the evidence to find that the parties’ lifestyle and their desire for generous housing could easily have utilised any money that may have been available to them.
The extent of the husband’s commitment to the payment of child support and school fees post-separation is uncertain. Nonetheless, any outstanding school fees are matters to be borne by the husband according to his evidence.
I consider that the contributions of the parties should be regarded as equal. In doing so, I acknowledge the separate arguments of each of the parties as to the extent of the husband’s taxation liability and the manner in which the debt has accrued.
Given my determination to bring to account as the total pre-separation tax debt of $949,554.95, any adjustment that could have been made if a more significant sum was brought to account is no longer a consideration.
Section 75(2) factors
The Court is obliged to consider the factors as set out in s 75(2) of the Act. It is to be remembered that the exercise is not one of social engineering. The purpose is not to equalise the circumstances of the parties going forward but rather, to determine an appropriate adjustment taking into account the s 75(2) factors in order to reach an outcome that is just and equitable.
The husband is currently in employment, the wife is not. The husband concedes that his income is substantial and at least equal to, if not, exceeding his income as set out in his financial statement. It is likely that the husband’s income is also supplemented by work related entitlements together with a contribution to superannuation.
Income is always a significant factor in terms of s 75(2) adjustment. However, in the current case, care must be exercised to ensure that the husband’s income derived from his interest in the H Business which is brought to account as an item of property, is not double counted.
I am able to give weight to a broad comparison of the parties’ capacity for employment and income. Were it not for the husband’s involvement in the H Business, there would be little doubt that the husband’s skill and expertise would enable him to command a substantial income.
Moreover, it is a relevant factor that the valuation of the husband’s interest in the H Business was limited by the extent of the documentation provided to the valuer and the potential uncertainty as to whether the preference notes would be required to be converted to shares.
The husband’s assessment of the business as potentially producing exponential growth is also a factor that can be brought to account.
The evidence does not enable me to make a finding as to what will happen to the financial prospects of the H Business in 2023 and onwards, but I consider that there is some significance to the ability of the husband generally to work and generate substantial income.
I am also mindful of the orders made allowing the wife to relocate with the children to Melbourne. The advantage to the wife is that she will be able to engage in a long term relationship with Mr B. I am satisfied that if given an opportunity, Mr B will provide ongoing financial support for the wife.
But for the relationship with Mr B and the ability for the children to relocate to Melbourne, the wife’s needs would have been significant in circumstances where it is only rental accommodation which would have been available to her and the prospects of purchasing a house would have been beyond her financial means.
The orders allowing for the children’s relocation also brings to account the costs that are likely to be incurred by the husband in the mechanics of spending time with the children predominantly in Melbourne. To a significant degree those costs have been brought to account in the consideration as to the order for non-periodic child support consequent upon the joint agreement of the parties that there should be a departure from the administrative assessment of child support.
I acknowledge that the husband may well spend more than has been allowed for the consideration of child support. The husband may seek different or alternative accommodation and allowance must always be made for the ebb and flow in respect of the availability of air travel and the potential for variable cost.
That consideration must also be offset by the acknowledgment of the parties that the order made is for the payment of the children’s school fees and that their day to day expenses will be covered by the wife with or without the assistance of Mr B.
It is also a factor, albeit not significant, that the orders require the wife to pay for the children’s travel from Melbourne to Sydney on one occasion in each school term.
A significant factor is the order that requires the husband to pay the post-separation tax debt of $723,074.12.
It is a significant impost for the husband however, it relates to the 2019 taxation year and includes post-separation PAYG income tax instalments and GIC from 2 January 2019 to 12 August 2020.
Consistent with the earlier discussion, I do not ignore the provisions of s 75(2)(ha) of the Act. The orders made are predicated upon there being sufficient property available to the husband to substantially resolve his outstanding taxation liability. In that regard, I propose to transfer the balance of the G Bank shares to the wife, acknowledging that if they are sold there is likely to be taxation arising therefrom. It is a matter entirely for the wife.
Whilst not necessarily the treatment that would have been adopted by the Court, the parties have agreed that the superannuation interests of each of them should be treated as notional property of the parties, that is, their property and superannuation should be considered by way of a one pool approach.
Taking into account the matters considered and acknowledging that a percentage adjustment must be considered on the basis of its dollar worth rather than the application of some percentage based principle, there should be an adjustment in favour of the wife of 7.5 per cent.
CONCLUSION
The net pool is $2,973,971. At 57.5 per cent the wife is to retain property and superannuation totalling $1,710,033. The wife is to retain the following:

Wife’s interest in the former matrimonial home proceeds of sale $2,064,038

Furniture and effects (wife) $25,000

Jewellery (wife) $12,500

Horse float $15,000

G Bank shares $385,592

Super Fund 2 $36,454

Legal fees added back $172,723

Partial Property Settlement $100,000

TOTAL $2,811,307

Less Liability (NAB account) $24,358

NET BALANCE $2,786,949

The wife is entitled to the sum of $1,710,033 and accordingly, she must pay to the husband the settlement sum of $1,076,916 from which will be paid the sum of $949,554 to the ATO.
From the husband’s share, he is to reimburse the wife one half of the cost of the report of Dr D in the sum of $19,580, reducing his settlement sum by $9,790 to $1,067,126.
I make orders as appear at the commencement of these reasons.

I certify that the preceding six hundred and five (605) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 11 October 2021

File number(s):	SYC 2440 of 2019
Judgment of:	BERMAN J
Date of judgment:	11 October 2021
Catchwords:	FAMILY LAW – CHILDREN – Parental Responsibility – Where the wife seeks shared parental responsibility save as to decisions in relation to the children’s education and health – Where the husband seeks equal shared parental responsibility – Where there has been issues with the parties’ ability to communicate – Where the wife will be able to support the children’s relationship with the husband once the litigation has ended – Orders. FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Best interests – Where the wife seeks to relocate the children’s residence to Melbourne – Where the husband opposes the relocation and seeks equal shared care and if not significant time spending – Where there are allegations of family violence – Where the children’s primary attachment is to the wife – Where the children are aware of the wife’s distress and anxiety and the financial conflict between the parties – Consideration of weight to be given to the children’s views – Consideration of the impact relocation will have on the children’s relationship with the husband – Where the children will be able to maintain a meaningful relationship – Where the wife will support the children’s relationship with the husband – Orders. FAMILY LAW – CHILD SUPPORT – Application for departure – Where the wife seeks that the husband pay periodic child support in addition to non-periodic child support of the children’s school fees and expenses – Where the husband seeks that he only pay non-periodic child support by way of the children’s school fees and health insurance – Consideration of the parties’ financial circumstances – Consideration of costs likely to be incurred in the children spending time with the husband – Orders. FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Contributions – Future needs – Add backs – Where the contributions of the parties are considered equal – Where the husband has accrued a significant tax liability – Where the husband seeks to bring to account as a liability of the parties his full tax liability – Where the Commissioner of Taxation has intervened in the proceedings and seeks payment of the liability from sale proceeds of the former matrimonial home prior to any distribution to the parties – Where the husband also seeks a similar order – Where the wife argues the issue has already been determined in the Supreme Court of New South Wales and the liability should be borne by the husband alone – Consideration of whether the tax liability should be a joint liability of the parties – Consideration of the wife’s knowledge and whether she benefited – Where the parties should be required to contribute equally to the liability accrued pre-separation – Where part of each parties’ legal fees are added back – Consideration of s 75(2) factors – Orders.
Legislation:	Child Support (Assessment) Act 1989 (Cth) ss 116(1)(b), 117(2)(b)(i) Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 75(2), 75(2)(ha), 79, 79(4)(a), 79(4)(b), 79(4)(c), 79(10)
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bevan & Bevan (2013) FLC 93-545 Chorn & Hopkins (2004) FLC 93-204 Clifford and Lodge [2000] FamCA 1666 Commissioner of Taxation & Worsnop and Anor (2009) FLC 93-392 Finlayson v Finlayson and Gillam (2002) FLC 93-121 Gyselman & Gyselman (1992) FLC 92-279 Jabour & Jabour (2019) FLC 93-898 JEL & DDF (2001) FLC 93-075 Mallet v Mallet (1984) 156 CLR 605 Norbis v Norbis (1986) 161 CLR 513 Prince & Prince (1984) FLC 91-501 Stanford v Stanford (2012) 24 CLR 108 Starr & Duggan [2009] FamCAFC 115 Trustee of the property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394 Vass & Vass (2015) 53 Fam LR 373 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 1 First Instance
Number of paragraphs:	605
Date of hearing:	9 – 13 November 2020, 20 November 2020 and 17 February 2021
Place:	Adelaide
Counsel for the Applicant:	Mr Campton SC
Solicitor for the Applicant:	Barkus Doolan
Counsel for the Respondent	Mr Jackson
Solicitor for the Respondent:	Sharah & Associates Solicitors and Conveyancers
Counsel for the Intervener:	Mr Kasep
Solicitor for the Intervener:	Craddock Murray Neumann Lawyers
Counsel for the Independent Children’s Lawyer	Mr Holmes
Solicitor for the Independent Children’s Lawyer	Holmes Donnelly & Co Solicitors

SYC 2440 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BERTRAND Applicant
AND:	MR BERTRAND Respondent
COMMISSIONER OF TAXATION Intervener INDEPENDENT CHILDREN'S LAWYER Other

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	11 OCTOBER 2021

YEAR	AMOUNT
30 June 2014	Nil
30 June 2015	$23,924.19
30 June 2016	$713,615.65
30 June 2017	Nil
30 June 2018	$151,749.05
30 June 2019	$319,137.90
SUBTOTAL	$1,208,426.79

TAXATION COMPONENTS	AMOUNT
Income Tax	$1,354,430.85
Division 293 Assessment	$5,483.70
GIC	$187,287.30
Less payments/credit	$619,557.21
TOTAL	$927,644.64

ASSETS	AMOUNT
Net proceeds of sale of the former matrimonial home (wife)	$2,064,038.45
Net proceeds of sale of the former matrimonial home (husband)	$20,849.39
Motor Vehicle 1 (wife)	$45,000.00
Furniture and effects (wife)	$25,000
Furniture and effects (husband)	$5,000
Watches (husband)	$1,000
Parties property settlement pursuant to order 6 May 2021 (wife)	$100,000
Jewellery (wife)	$12,500
Horse float (wife)	$15,000
G Bank shares (husband)	$385,592
Interest in H Group (husband)	$405,000
TOTAL	$3,078,979

ADD BACKS	AMOUNT
Legal fees (wife)	$172,723
Legal fees (husband)	$140,000
TOTAL	$312,723
GRAND TOTAL	$3,391,702

LIABILITY	AMOUNT
GG Company liability (joint)	$24,358
ATO liability (husband)	$949,554
TOTAL	$973,912
NET TOTAL	$2,417,790

FUND	AMOUNT
Super Fund 1 (husband)	$519,727
Super Fund 2 (wife)	$36,454
TOTAL	$556,181
TOTAL NET PROPERTY	$2,973,971

Wife’s interest in the former matrimonial home proceeds of sale	$2,064,038
Furniture and effects (wife)	$25,000
Jewellery (wife)	$12,500
Horse float	$15,000
G Bank shares	$385,592
Super Fund 2	$36,454
Legal fees added back	$172,723
Partial Property Settlement	$100,000
TOTAL	$2,811,307
Less Liability (NAB account)	$24,358
NET BALANCE	$2,786,949