BETWEEN:MS MARLONApplicantAND:MR CALKINSRespondent

[2024] FedCFamC2F 307

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Marlon & Calkins [2024] FedCFamC2F 307

File number(s):

MLC 9641 of 2022

Judgment of:

JUDGE JENKINS

Date of judgment:

14 March 2024

Catchwords:

FAMILY LAW – parenting and property– final hearing – parental responsibility – sole parental responsibility for medical decisions only – shared care versus nine/five arrangement – school holiday time – special needs of children – insight into needs – family violence – insight into parental behaviour – high parental conflict – where court disagrees with recommendations of the Family Report writer – add backs – legal fees – loans – contributions – inheritance – s 75(2)(o) – failure to disclose – increased legal fees due to conduct of a party – dissipation of assets post-separation – lump sum child support – chattels

Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 123, 123A, 124

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79

Income Tax Assessment Act 1997 (Cth) Part 3-1

Family Law (Superannuation) Regulations 2001 (Cth) Part 6

Cases cited:

Aleksovski & Aleksovski (1996) FLC 92-705

Bevan & Bevan [2013] FamCAFC 116

Candle & Falkner [2021] FedCFamC1A 102

Clauson & Clauson (1995) FLC 92-595

D & D [2003] FamCA 473

Dickons & Dickons [2012] FamCAFC 154

Grella & Jamieson [2017] FamCAFC 21

Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395

Holland & Holland [2017] FamCAFC 166

Lee Steere & Lee Steere [1985] FamCA 57

Mallet v Mallet (1984) 156 CLR 605

Masson v Parsons [2019] HCA 21

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Omacini & Omacini [2005] FamCA 195

Rosati v Rosati (1998) FLC 92 804

Stanford v Stanford [2012] HCA 52

Division:

Division 2 Family Law

Number of paragraphs:

180

Date of last submission/s:

15 December 2023

Date of hearing:

11 – 15 December 2023

Place:

Melbourne

Counsel for the Applicant:

Mr Stanley

Solicitor for the Applicant:

Kennedy Partners

Counsel for the Respondent:

Mr Whitchurch

Solicitor for the Respondent:

Barbayannis Lawyers

Counsel for the Independent Children's Lawyer:

Ms Treyvaud

Solicitor for the Independent Children's Lawyer:

Victoria Legal Aid

Table of Corrections
13 September 2024	Orders 23.4.4.1, 23.4.4.2.1, 28, 31.2.1 and 32.1 have been amended pursuant to r 10.13(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“r 10.13(e)”) to reflect the Court’s intention

ORDERS

MLC 9641 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MARLON

Applicant

AND:

MR CALKINS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	14 MARCH 2024

Amended pursuant to r 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Cth on 13 September 2024

THE COURT ORDERS THAT:

1.All extant parenting orders be discharged.

PARENTING

Parental responsibility

2.The Husband and Wife have equal shared parental responsibility for the children, X born in 2012 and Y born in 2014 (“the children”), save that the Wife have sole parental responsibility for medical decisions provided that:

2.1The Wife consult with the Husband with respect to medical decisions and seek the Husband’s input and views; and

2.2The Wife provide the Husband seven days prior notice of all medical/allied health appointments for the children and confirm that she will be in attendance; and

2.3The Wife to authorise all treaters to liaise with the Husband regarding the children’s progress and treatment.

Spend time arrangements

3.The children live with the Wife.

4.The children spend time with the Husband as follows:

4.1During school terms in each alternate week from the conclusion of school (or 3:30 pm if a non-school day) on Friday until the commencement of school (or 9:00 am if a non-school day) on Wednesday, with the first occasion of time to commence on the first Friday the children would ordinarily spend time with the Husband pursuant to order 2.2 of the orders made by consent on 19 July 2023.

4.2During school holidays:

4.2.1For the second half of the Term 1, 2 and 3 school term holidays in 2024 and alternating yearly thereafter;

4.2.2For the first half of the Term 1, 2 and 3 school term holidays in 2025 and alternating yearly thereafter;

4.3During the long summer holidays:

4.3.1For one half, in default of agreement the second half in 2024/2025 and the first half in 2025/2026.

4.4For special occasions:

4.4.1On Christmas Day 2024 and each alternate year from 4:00 pm until 8:00 pm;

4.4.2On each of the children’s birthdays, in the event the children are not otherwise spending time with the husband:

4.4.2.1If both children are not attending school, from 4:00 pm until 7:30 pm; or

4.4.2.2If either child is attending school, from the conclusion of school until 6:30 pm.

4.4.3On the Husband’s birthday:

4.4.3.1If both children are not attending school, from 12:00 pm until 6:00 pm; or

4.4.3.2If either child is attending school, from the conclusion of school until 7:30 pm.

4.4.4On the Father’s Day weekend from 4:00 pm on Saturday until the commencement of school on Monday.

4.5At such further and other times as may be agreed between the parties in writing.

5.The children’s time with the Husband be suspended so that they spend time with the Wife:

5.1During school holidays:

5.1.1For the first half of the Term 1, 2 and 3 school term holidays in 2024 and alternating yearly thereafter;

5.1.2For the second half of the Term 1, 2 and 3 school term holidays in 2025 and alternating yearly thereafter.

5.2During the long summer holidays:

5.2.1For one half of the school holidays, but in default of agreement the first half in 2024/2025 and the second half in 2025/2026.

5.3For special occasions:

5.3.1From 4:00 pm Christmas Eve 2025 until 4:00 pm Christmas Day 2025 and each alternate year.

5.2.1On each of the children’s birthdays, in the event the children are not otherwise in her care:

5.2.1.1If both children are not attending school, from 4:00 pm until 7:30 pm; or

5.2.1.2If either child is attending school, from the conclusion of school until 6:30 pm. 

5.2.2On the Wife’s birthday:

5.2.2.1If both children are not attending school, from 12:00 pm until 6:00 pm; or

5.2.2.2If either child is attending school, from the conclusion of school until 7:30 pm.

5.2.3On the Mother’s Day weekend from 4:00 pm on Saturday until the commencement of school on Monday.

5.2.4On Good Friday from 10:00 am until 6:00 pm. 

6For the purpose of calculating each party’s time with the children:

6.1In the event the school holidays consist of an odd number of nights, the parties alternate having one night in excess of half of the school holiday period, with the Wife to have the first extra night.

6.2The school holiday period is deemed to:

6.2.1Commence at the conclusion of school on the last day of term on which Y is required to attend school;

6.2.2Conclude at the commencement of school on the first day of the term on which Y is required to attend school.

6.3The long summer holiday period is deemed to:

6.3.1Commence at 4:00 pm (or if a school day, at 3:30 pm) on 17 December each year; and

6.3.2Conclude at the commencement of school on the first day of the term on which Y is required to attend school.

6.4Changeover during the school term holidays occur at 4:00 pm.

6.5At the conclusion of the school holiday periods, the school term arrangements continue in the same cycle as if the holiday period had not occurred.

7In the event that the children are in the Wife's care on the following occasions, they spend time with the Husband as follows:

7.1From 4:00 pm until 8:00 pm on Christmas Day each year.

8In the event that the children are in the Husband's care on the following occasions, they spend time with the Wife as follows:

8.1From 4:00 pm Christmas Eve until 4:00 pm Christmas Day each year.

9Where changeovers do not occur at the children’s respective schools:

9.1The Wife or her nominee collect the children from the Husband’s residence at the commencement of her time;

9.2The Husband or his nominee collect the children from the Wife’s residence at the commencement of his time.

10The Husband and Wife communicate with respect to the children using the Our Family Wizard App (or such other app as may be agreed in writing between them), with the costs of any such subscription to be shared equally between them.

Medical

11The Husband and Wife comply with all directions and recommendations made by each of the children’s respective paediatricians and any other agreed treating medical or allied health professionals, including but not limited to:

11.1Administering any prescribed medication including for the purpose of treating their ADHD; and

11.2Taking the child to medical appointments.

12The Husband and Wife provide each other with all reports and information regarding the children’s medical and allied health appointments and education.

13The Husband be restrained from attending any of the children’s medical or allied health appointments at which the Wife is to be in attendance.

14The Wife continue to attend upon Ms B for such period as recommended by Ms B.

15The Husband continue to attend upon Ms C for therapy for such period as recommended by the psychologist.

Travel

16The Husband and Wife sign all documents and do all acts and things required to apply for and renew Australian Passports for the children within seven days of receiving a written request from the other parent.

17The Husband and Wife be permitted to travel internationally with the children, provided that they comply with the following:

17.1Prior to the international travel, the travelling parent provide to the non-travelling parent the travel dates and details of destinations with such notice be provided no less than 30 days prior, as long as the international travel occurs only during the travelling parent’s time with the children and no less than 90 days prior, in the event the international travel occurs during the non-travelling parent’s time with the children;

17.2In the event the international travel occurs during the non-travelling parent’s time with the children, the Husband and Wife agree on make-up periods prior to the travel;

17.3The proposed travel not occur for more than three days during school terms unless agreed and approved by the children’s respective schools;

17.4The proposed travel be for no longer than 21 days on each occasion.

18In the event of overseas travel, and providing the travelling parent has complied with the preceding, the non-travelling parent provide to the travelling parent, the passport in their possession and the passport be returned by the travelling parent to the non-travelling parent within seven days of returning to Australia.

19The Husband be entitled to retain X’s passport and the Wife be permitted to retain Y’s passport.

PROPERTY

20Within 120 days of the date of these orders (the due date):

20.1The Wife transfer to the Husband all of her right, title and interest in the property at D Street, Suburb E in the State of Victoria being the property more particularly described in Certificate of Title Volume … Folio … (Suburb E), with the transfer to be at the expense of the husband save that the Wife be solely responsible for her own legal costs and PEXA fees with respect to the transfer (the Suburb E transfer);

20.2The Husband transfer to the Wife all of his right, title and interest in the properties at:

20.2.1F Street, Suburb G in the State of Victoria being the property more properly described in Certificate of Title Volume … Folio … (F Street),

20.2.2H Street, Suburb G in the State of Victoria being the property more properly described in Certificate of Title Volume … Folio … (1 H Street). 

with the transfers to be at the expense of the Wife save that the Husband be solely responsible for his own legal costs and PEXA fees with respect to the transfers (the wife’s transfers); and

20.3The Husband and Wife do all acts and things and sign all such documents as may be required to discharge:

20.3.1The mortgage to J Bank Registered Number … secured over the title of Suburb E (the Suburb E mortgage), with the discharge to be at the Husband’s sole expense so as to release the Wife from all liability thereunder.

20.3.2The mortgage to Westpac Banking Corporation Registered Number … secured over the tile of F Street (the F Street mortgage), with the discharge to be at the Wife’s sole expense so as to release the Husband from all liability thereunder.

20.4The Husband provide to the Wife such source documents as are in his possession evidencing his ‘cost base’, for the purposes of Part 3-1 of the Income Tax Assessment Act 1997 (Cth), of his interest in 1 H Street; and

20.5The Husband do all acts and things and sign all such documents as may be required to assign to the Wife, at her expense, the lease with respect to 1 H Street and to transfer to the Wife, the bond for 1 H Street (if any).

21Upon settlement of the sale of K Street, Suburb L in the State of Victoria being the property more properly described in Certificates of Title Volume … Folio … and Volume … Folio … (K Street), the Husband and Wife do all such acts and things as may be necessary to apply the proceeds of sale in the following manner:

21.1In payment of all costs, commission and expenses of and incidental to the sale;

21.2To discharge the mortgage to Westpac Banking Corporation Registered Number … secured over the title of K Street;

21.3The sum of $50,000 to Barbayannis Lawyers, for payment out to the Husband or at his direction (pursuant to the orders made 19 July 2023);

21.4The sum of $50,000 to Kennedy Partners, for payment out to the Wife or at her direction (pursuant to the orders made 19 July 2023);

21.5To pay to Kennedy Partners, the solicitors for the Wife, a sum to be calculated in accordance with these orders, being an estimate of the capital gains tax payable by each party arising from the sale of K Street, such sum to be held in trust for the benefit of the parties and not released except in accordance with these orders or written agreement between the parties; and

21.6The balance be paid to Commonwealth Bank offset account ending #...32 in the joint names of the Husband and the Wife (the CBA offset account).

22The Husband and Wife forthwith do all such acts and things as may be necessary to place the following properties on the market for sale:

22.1M Street, Suburb G in the State of Victoria being the property more properly described in Certificate of Title Volume … Folio … (M Street); and

22.22 H Street, Suburb G in the State of Victoria being the property more particularly described in Certificate of Title Volume … Folio … (2 H Street).

23For the purpose of the sale of 1 H Street and M Street (the sales):

23.1Within 14 days of the date of these orders the Husband and the Wife sign a selling authority with such agent as may be agreed upon in writing between them and in default of agreement the Wife nominate three agents from which the Husband select one (the agent);

23.2The conveyancer be N Company;

23.3The reserve price be as agreed between the Husband and Wife in writing but in default of agreement as recommended by the agent;

23.4The proceeds of each of the sales be applied in the following manner:

23.4.1In payment of all costs, commissions and expenses of and incidental to the sales;

23.4.2To discharge the mortgages to:

23.4.2.1Commonwealth Bank of Australia Registered Number … over the title of M Street (the M Street mortgage);

23.4.2.2O Bank Registered Number … secured over the title of 2 H Street (the 2 H Street mortgage);

with the mortgage of whichever property settles first to be discharged first and so much of the sale proceeds as may remain to be applied to reduce or discharge the mortgage remaining over the other properties;

23.4.3To pay to Kennedy Partners, the solicitors for the Wife, a sum to be calculated in accordance with these orders, being an estimate of the capital gains tax payable by each party arising from the sale of M Street and 2 H Street, such sum to be held in trust for the benefit of the parties and not released except in accordance with these orders or written agreement between the Husband and the Wife; and

23.4.4The balance then remaining be applied as follows:

23.4.4.156.5% 57% to the Wife;

23.4.4.2The balance to the Husband less:

23.4.4.3a sum to the Wife calculated as X using the following formula:

0.565 0.57 (Z + Y) = W

W – Z = X

where

Z represents the assets to be retained by the Wife

Y represents the assets to be retained by the Husband

W represents the portion of the asset pool to be retained by the Wife

23.4.4.4The sum of $263,510 to be paid to the Wife in satisfaction of the Husband's obligations pursuant to the lump sum child support orders below .

24For the purpose of calculating and meeting the cost of any capital gains tax payable on the sale of K Street, 2 H Street and M Street pursuant to these orders:

24.1Within 7 days of these orders, in relation to K Street, and within 7 days of the date that the Husband and Wife sign a contract of sale in relation to 2 H Street or M Street, the parties jointly appoint P Pty Ltd (the Accountant) to calculate the estimated capital gains tax payable by the Husband and the Wife as a result of the whole of the capital gain from the sale of K Street, Suburb G or M Street, with the parties to do all acts and things and provide all documents reasonably required of them by the Accountant; and

24.2The Accountant’s costs incurred with respect to the implementation of these orders be paid by the parties in equal shares.

25The Husband:

25.1Have sole use and occupation of Suburb E;

25.2Pending the discharge of the Suburb E mortgage, pay the following expenses of Suburb E as and when they fall due and payable:

25.2.1Loan repayments associated with the Suburb E mortgage;

25.2.2Council and water rates, and water usage charges;

25.2.3House and contents insurance premiums; and

25.2.4Utilities including but not limited to gas, electricity and internet;

25.3Pay and indemnify the Wife with respect to all outgoings for Suburb E, including but not limited to council and water rates, water usage charges, and loan repayments associated with the Suburb E mortgage.

26Pending the discharge of the Suburb E mortgage:

26.1The Husband and Wife be restrained by injunction from drawing down on the loan secured by the Suburb E mortgage and be at liberty to provide a copy of these orders to Q Company;

26.2Neither the husband nor the wife encumber or further encumber Suburb E without the written consent of the other party first obtained or except as may be necessary for the Husband to comply with his obligations under these orders; and

27Pending settlement of the sale of K Street, the sales and the transfer of Suburb G and 1 H Street:

27.1The Husband and Wife cause all rental income from K Street, M Street, Suburb G, 1 H and 2 H Street (the investment properties) to be paid into the CBA offset account, or, if the settlement of the sale of M Street is effected prior to the sale of K Street or 2 H Street, then into the offset account of whichever of the investment properties is yet to be sold (the investment property offset account);

27.2The Husband and Wife cause and/or authorise the following to be paid from the CBA offset account or, if applicable, the investment property offset account, the following expenses:

27.2.1All repayments for the loans secured by mortgage against the investment properties;

27.2.2Land tax for the investment properties;

27.2.3Insurance premiums for the investment properties;

27.2.4Council and water rates for the investment properties;

27.2.5Maintenance and/or repairs as may be recommended by the rental agents for the investment properties or as otherwise may be agreed upon between the Husband and Wife in writing.

27.3The Husband and Wife be restrained by themselves, their servants and/or their agents be restrained by injunction from:

27.3.1Drawing down on any loans secured by mortgage registered against of the investment properties.

27.3.2Withdrawing and/or removing any funds standing to the credit of either of them, whether jointly or solely, in any offset accounts linked to the loans secured by mortgage registered against any of the investment properties.

28Upon settlement of the sales and the sale of K Street being effected, any monies standing to the credit of the Husband and the Wife in the investment property offset account or CBA offset account be divided as follows:

28.156.5% 57% to the Wife; and

28.2The balance to the Husband,

with the Husband and the Wife to thereafter close the offset accounts.

29In the event the Husband fails to discharge the Suburb E mortgage by the due date, Suburb E be placed on the market for sale and for that purpose:

29.1Within 14 days of the date of these orders the Husband and the Wife sign a selling authority with such agent as may be agreed upon in writing between them and in default of agreement the Wife nominate three agents from which the Husband select one (the agent);

29.2The conveyancer be N Company;

29.3The reserve price be as agreed between the Husband and Wife in writing but in default of agreement as recommended by the agent;

29.4The proceeds of each of the sales be applied in the following manner:

29.4.1In payment of all costs, commissions and expenses of and incidental to the sales;

29.4.2To discharge the Suburb E mortgage;

29.5The balance to the husband.

Preparation of tax returns and payment of CGT

30By no later than 31 August 2024 or 31 August 2025, in the event 2 H Street, 1 H Street (if applicable) or M Street sell in the 2025 financial year, the Husband and the Wife instruct the Accountant to prepare and lodge their respective tax returns for the financial year ended 30 June 2024, or 30 June 2025 (if applicable), and provide to the Accountant all such documents as may be necessary to enable the Accountant to prepare the returns.

31Within 7 days of each of the Husband and the Wife receiving his or her notice of assessment for the financial year ended 30 June 2024 or 30 June 2025 (if applicable), the Husband and Wife do all such acts and things and sign all documents as may be necessary to authorise the solicitors for the Wife, Kennedy Partners, to apply any funds held on trust for them pursuant to these orders as follows:

31.1Such sum to the ATO as may be necessary to meet the Husband and Wife’s respective capital gains taxation liabilities referable to the sale of K Street, 2 H Street (if sold), 1 H Street and/or M Street;

31.2The balance (if any) be divided as follows:

31.2.156.5% 57% to the wife; and

31.2.2The balance (if any) to the husband.

32In the event either of the husband or wife’s capital gains taxation liability from the sales or the K Street sale exceeds the estimate provided by the accountant, the husband and the Wife pay any excess capital gains tax as follows:

32.156.5% 57% by the wife; and

32.2The balance by the husband.

Repayment to children’s accounts by the husband

33Within 7 days of the date of these orders, the husband pay:

33.1The sum of $4,284.93 to Commonwealth Bank account #...08 in the name of X; and

33.2The sum of $1,000 to Commonwealth Bank account #...68 in the name of Y.

Defaults

34Each of the Husband and the Wife do all acts and things reasonably required by the other(s), including but not limited to signing or executing all necessary documents, to give effect to these orders within 14 days of being requested to do so or such earlier time as is provided for in these orders, in default of which:

34.1Pursuant to section 106A of the Family Law Act 1975 (Cth) (the Act), a Registrar of the Federal Circuit and Family Court of Australia be appointed to sign all such documents in the name of the party who failed and/or refused to sign and return such documents to give effect to these orders, upon the solicitor for the non-defaulting party filing with the court an affidavit deposing to the default;

34.2The non-defaulting party be at liberty to apply for costs when submitting such affidavit to the Registrar.

Superannuation split

35Orders 35 to 39 of these orders are binding upon the trustee of Super Fund 1 (the fund), being R Pty Ltd (the trustee). 

36Pursuant to s 90XT(4) of the Act a base amount of $15,343 be allocated to the wife out of the husband’s interest in the fund.

37Pursuant to s 90XT(1)(a) of the Act, whenever a splitable payment becomes payable in respect of the superannuation interest of the husband in the fund, the wife is entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) (the Regulations) using the base amount of $15,343 and there be a corresponding reduction in the entitlement the husband would have had but for these orders.

38The trustee do all acts and things and sign all documents as may be necessary to:

38.1Calculate, in accordance with the requirements of the Act, the entitlement of the wife created in the preceding order; and

38.2Pay the entitlement whenever the trustee makes a splitable payment from the husband’s interest in the fund.

39Until the happening of any of:

39.1The establishment of a separate superannuation interest in the name of the wife in the fund;

39.2The transfer or “rolling over” into another superannuation fund of the payment split created by order 37;

39.3The wife satisfying a condition of release and being paid the payment split which was created by order 37; or

39.4The wife exercising a wavier of the rights within the meaning of s 90XZA of the Act in relation to the payment split created by order 37 of these orders;

the husband be and is hereby restrained by himself, his servants or agents from executing a death nomination in favour of any person or doing any other act or thing which would render any part of his interest in the fund a non-splittable payment within the meaning of Regulation 12 or 13 of the Regulations AND the trustee give effect to this order.

40Orders 36 to 39 of these orders have effect from the operative date, being the fourth business day after service of these orders upon the trustee.

41Liberty be reserved to the parties and to the trustee to apply with respect to the implementation of these orders affecting the superannuation interest of the husband.

42Within 28 days of the date of these orders, the wife serve a copy of these orders on the trustee.

Chattels collection and division

43Within 21 days of the date of these orders the wife be permitted to attend the Suburb E property, on one occasion only, to collect:

43.1Any items not previously provided to the wife pursuant to Annexure “A” of the orders of 23 November 2022; and

43.2One half of the remaining chattels to be divided either by agreement or on a pick for pick basis (but not to include the husband’s personal items, items purchased by him since separation or anything belonging to the children) with the wife to have first pick (the chattels division).

44Both parties be permitted to be present at the chattels division and to enter any part of the home and open any cupboard. Each party may bring with them one person to assist with this process. Any items not removed by the wife during the chattels division will be deemed to be the property of the husband.

45Pending the chattels division, the husband be restrained by injunction from disposing of, or removing, any chattels located at Suburb E and in the event that the husband has prior to the date of these orders, removed from Suburb E any of the items required for the chattels collection and the chattels division, he return the items to Suburb E within 7 days of the date of these orders.

Other

46Unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:

46.1The Husband and the Wife be solely entitled to the exclusion of the other to all other property (including choses-in-action and superannuation benefits) in the legal ownership or possession of such party as at the date of these orders, with the wife to retain her interest in the property at S Street;

46.2All insurance policies remain the sole property of the owner named thereon;

46.3The Husband and Wife each be solely liable for and indemnify the other with respect to any liability encumbering any item of property to which that party is entitled pursuant to these orders or any personal liability or debt incurred in that party’s name; and

46.4Any joint tenancy of the Husband and Wife in any real or personal estate is hereby expressly severed.

Child support

47Pursuant to s 123(1)(b) and s 123A of the Child Support Assessment Act 1989 (Cth), the husband pay to the wife the sum of $263,510 by way of lump sum child support, with such sum not to reduce the annual rate of child support payable by the husband to the wife under any administrative assessment of child support.

48All extant applications are otherwise dismissed.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE JENKINS:

INTRODUCTION

1. This matter concerns a dispute over parenting, property, and child support.

2. The applicant wife ("the wife") and the respondent husband ("the husband") were married for 12 years and have two children; X aged 11 and Y aged nine.  Both children have been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD").

3. The children live in a shared week-about arrangement between the parties which has been in place since July 2023.  The husband and Independent Children's Lawyer ("ICL") seek no change to that.  The wife wishes for the children to live with her and spend time with the husband on a five-night basis in two blocks being on alternate weekends from Friday to Monday and in the other week from Wednesday to Friday.

4. In terms of the property the husband asks for an equal division of the assets. The wife seeks an alteration in her favour primarily because of a significant inheritance she received during the relationship. She also seeks an adjustment pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) ("the Act") on the basis of additional funds spent by the husband since separation and for stamp duty and capital gains tax ("CGT") if she is unable to retain the former matrimonial home. Both parties wish to retain the former matrimonial home.

5. In addition, the wife seeks a lumpsum child support payment to be used for the children's school fees.  X is in grade 6 at T School and Y commenced grade 4 at U School in 2024.  The parties have agreed they will share the costs equally however the husband says the parties have sufficient income from which to meet these fees and that there is no need for capital to be quarantined for this purpose.  In lieu of a lump sum payment the wife seeks a departure order from the child support assessment such that each party pays the costs equally.

   BACKGROUND

6. The parties commenced living together in 2005 and married in 2010.

7. The parties separated in mid-2022 following an incident in which the wife assaulted the husband with a weapon.  The police subsequently issued the wife with a family violence safety notice removing her from the home.

8. On 30 August 2022 the wife commenced these proceedings as she was not spending any time with the children.

9. In late 2022 the wife applied for an Intervention Order ("IVO") on her behalf and on behalf of the children.

10. In late 2022 the wife was charged with assault offences with respect to the husband, arising from the incident in mid-2022.

11. On 28 September 2022 orders were made in this court by consent for the wife to spend time with the children on one overnight each alternate weekend as well as afterschool and on Sunday afternoon, with all time spending to be in the presence of the wife's sister, Ms V.

12. In late 2022 the husband consented to the wife's IVO, including the children, on a final basis without admission.  This is to last until late 2025.

13. In late 2022 the wife consented without admissions to an IVO protecting the husband, this expired in late 2023.

14. The wife's criminal charges were resolved by way of a diversion in early 2023.  The police agreed to withdraw two of the assault charges.  In accordance with the diversion, the wife agreed to pay the husband a total of $2,470 by way of compensation for damage to his personal property and treatment for scars on his body.

15. On 23 November 2022 further orders were made by consent extending the wife's time on alternate weekends from Saturday to Monday and providing for blocks of time in the long summer holidays.  The orders also provided for the wife's time to be further extended in Term 1 2023 from Friday to Monday in week one and Monday to Tuesday in week two.  The wife's sisters or a friend were to be present for a couple of hours on each of the periods until 21 December 2022.

16. On 19 July 2023 the parties consented to orders for a week about arrangement from afterschool Friday.  They also made arrangements for school holidays and special occasions.

17. The husband continues to reside in the former matrimonial home in Suburb E.  The wife currently lives in rental accommodation in Suburb W.

    THE EVIDENCE

18. It has not been possible to include every aspect of the evidence in these reasons.  However, I have taken all the evidence into account.  While I may not mention something specifically in these reasons, that does not mean I have not considered it.

19. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.

20. The parties both gave evidence along with the family consultant, Ms Z.

21. In addition, the husband relied upon an affidavit form his psychologist, Ms C.

22. The wife relied upon affidavits from her sister, Ms AA, and her psychologist, Ms B.

23. The parties also relied upon videos which were played during the trial as well as numerous exhibits which were tendered during the proceedings.

24. In terms of the parties as witnesses, I found the evidence of both to be problematic.  Although the wife for the most part gave evidence consistent with her affidavit, she was in my view prone to exaggeration.  For example, describing the children "foraging for food" and returning to her care "really, really filthy, not just dirty".  Such embellishment did not give credibility to aspects of her evidence.  However, the husband's evidence went beyond exaggeration and was not only inconsistent but also revealed he intentionally lied to the court and the court experts as well as to his solicitors and the wife in relation to his employment.  In this regard it came to light that the husband's employment at BB Company was terminated following a workplace investigation in late 2022, and that he received a significant payout from that termination.  Yet, the husband stated in his affidavit and financial statement filed subsequently that he remained employed at BB Company.  He maintained this during his interviews with the family consultant Ms Z and with Dr CC and in correspondence to the wife.  He also actively sought to disguise his unemployment by transferring the same amount as his salary from one account to another to give the impression he was still being paid.

25. The husband maintained this deception until he was ultimately exposed by way of a subpoena issued by the wife in early 2023.  He readily admitted under cross-examination that he did so because he believed the wife would use the alleged reason for the termination of his employment against him.  In this respect the husband clearly felt justified in withholding information which he did not believe would assist his case.  He was also prepared to construct a false narrative in correspondence and to set up transfers to support his deception.

26. For this reason, where the husband makes an assertion which is otherwise in dispute and uncorroborated, I can place no weight on his evidence.

    PARENTING

    The issues in this case

    ·Whether the wife should have sole parental responsibility for the children or just in relation to medical matters;

    ·Whether the children should live in an equal shared care arrangement or with the wife for nine nights and the husband for five nights;

    ·If the time is to be a nine/five arrangement, should the time be in two blocks or one;

    ·If the time is to be a week about arrangement, should it continue during the school holidays or should there be a specific arrangement which provides for equal sharing of the enforced holiday break between Christmas and New Year; and

    ·Should the husband attend upon his current psychologist or a new psychologist?

    SHOULD THE COURT MAKE AN ORDER FOR EQUAL SHARED OR SOLE PARENTAL RESPONSIBILITY?

27. The wife seeks an order for sole parental responsibility for all long-term decisions.  The husband and ICL propose that wife have sole parental responsibility for medical decisions only and that otherwise the parties have equal shared parental responsibility.

28. Section 61DA of the Act states as follows:

    (1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

    Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

    (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

    (b)family violence.

1. In this case, each of the parents alleges family violence against the other and each has obtained an IVO.  The husband's order has expired however the wife's order obtained for herself and the children is in place until late 2025.  In addition, the wife has pleaded guilty to two charges involving violence to the husband.  It is evident that the presumption of equal shared parental responsibility does not apply because of family violence.  However, the court may still make such an order if it is in the best interests of the children.

2. In the end although the husband's case was that the wife was actively excluding him from involvement and decisions with respect to the children's special needs, he conceded that she ought to have responsibility for those decisions going forward.  To the extent that I need to address this issue, it would appear on the evidence that the wife was historically responsible for these decisions and that she did not trust the husband to prioritise the appointments.  Indeed, when she gave him the opportunity, he conceded he "dropped the ball" and forgot to take Y to the appointment, despite the wife reminding him only a couple of days prior.  He also conceded that he missed an email containing a questionnaire required for Y's ADHD assessment.  Not surprisingly the wife has organised most of the appointments to be during her time.  In my view she did so with a genuine concern that the children attend and not to shut out the husband.  Indeed, the husband did not include in his evidence reference to any particular appointment from which he was excluded, and the correspondence tendered showed the wife providing extensive information to the husband about medical issues.

3. What remains to be determined was whether the husband should be involved in other long-term decision-making such as educational decisions.

4. The wife's case is that the parties are unable to communicate and that trying to do so is extremely stressful for her.

5. I note in this regard the parties began attending upon Ms DD for reportable family therapy in late 2022.  Ms DD prepared a report in this matter in which she makes the following observations:

   17. These sessions usually begin with both [the husband] and [the wife] focussed on the needs of their children and able to engage in discussions but deteriorate into verbal arguments [the husband] and [the wife] are the anthesis of each other in their parenting styles.

   …

   26. In sessions [the wife] can become dysregulated and begin raising her voice and seems frustrated and angry with the process. It would seem at these times the sessions may not be helpful for [the wife] and present as a source of vexation.

   …

   37. …both parents have limitations in their parenting and communication styles which seem to be cause for expressed frustration by [the wife] and a calm and controlled response by [the husband].

6. Ms Z was initially adamant that the wife have sole parental responsibility for all matters; however, she conceded under cross-examination that if there were no substantial difficulties with regard to making educational decisions then perhaps sole parental responsibility in this regard would not be necessary.  She qualified this by saying that if there is evidence available that the husband was not available to liaise with the teachers in regard to the children's needs and there was a pattern of disinterest or disregard, she would stand by her original recommendation.  Ms Z, as part of her Family Report spoke with both of the children's schoolteachers.  They both reported issues with the husband responding to them.  Although the husband asserted that there had been issues with his email address and/or the Family App, he also conceded he could improve in this regard and that he probably had not been responding as much as the wife.

7. In regard to the children's education the wife asserts that in mid-2022 they were in dispute about Y, who had moved from EE School to Suburb E School.  The husband was concerned that Y was not coping with the change and proposed he return to EE School.  Nonetheless, despite this dispute occurring shortly after the volatile events of separation, the parties were able to agree to Y continuing at Suburb E School.  The parties have also agreed to Y attending Suburb E School and jointly attended the school earlier in 2023 to facilitate the intake process.  In addition, they have agreed to share the costs of both children's private education, albeit they are in dispute about the necessity for funds to be put aside for this purpose.

8. Furthermore, it appears they had been making better use of the My Family Wizard app in the two months before the trial.  Whilst I do not share the husband's view that once these proceedings are over that things will miraculously improve, indeed the parties have had a great deal of assistance without that much success, they appear to have some capacity to communicate.  Importantly, they have demonstrated an ability to make decisions for education together.  Whilst I note this may place some additional stress on the wife, these decisions are likely to be infrequent.  As such I propose to make orders that the parties have equal shared parental responsibility for all matters other than medical.

   WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?

9. Pursuant to s 60CA of the Act the best interests of a child are the paramount consideration for the court when making a parenting order.

10. Section 65D of the Act directs the court to make such parenting orders as it thinks proper. The court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:

    A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.

11. As I am making an order for equal shared parental responsibility, pursuant to s 65DAA I must firstly consider whether equal time is in the children's best interests and if so whether it is reasonably practicable. If not, I must then consider whether it would be in the best interests of the children to spend substantial and significant time with the husband and again, whether this would be reasonably practicable.

    HOW DOES THE COURT DETERMINE WHAT IS IN THE CHILD’S BEST INTERESTS?

12. Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests.

13. There are two primary considerations.  The first of which is the need to consider the benefit to the children of having a meaningful relationship with each of their parents.  Secondly, I must consider the need to protect the children from harm.

14. If there is conflict between those two considerations, then greater weight must be given to the need to protect the children from harm.

15. There are also a number of additional considerations set out in s 60CC(3).

16. I have considered each of the matters under s 60CC(2) and (3) however I will only specifically refer to them to the extent that they are relevant to my decision in this matter.

    Do the parties’ proposals provide for a meaningful relationship between the children and each of their parents?

17. The Full Court of the Family Court of Australia in the case of McCall & Clark [2009] FamCAFC 92 at [115] observed that the Act does not provide a definition of the word "meaningful", however they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520 at [26], in which her Honour said the term was synonymous with notions such as "significant", "important", "of consequence" and "valuable to the child".

18. Based on this definition the parties both propose orders that would enable each of them to have meaningful relationships with the children.

19. However, pursuant to the High Court decision in Masson v Parsons [2019] HCA 21 at [8], the court also has the responsibility of:

    Ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

    Are the children at risk of harm, physically, emotionally or from neglect in either party’s care?

20. As already stated, it is evident that the children have been exposed to family violence in this matter.  The court was played videos in which that family violence was clearly on display.

21. Despite this, neither party puts their case on the basis that the children are at risk of physical or psychological harm in the other parent's care.  In saying this I note the wife takes issue with the husband's ability to meet the children's needs, which if I accept her evidence, may constitute neglect, however, I will address this further under the additional considerations.

    ADDITIONAL CONSIDERATIONS

    What are the views of the children?

22. It is evident from the Family Report that both children expressed a clear wish to continue to live in a shared care week-about arrangement.  The children also reported this wish to Ms DD, albeit their last session with her was in early 2023.

23. The wife argues that these views have to be seen in the context of the limited time the children had been having with her at the time of seeing Ms DD.  Her evidence was that X has told her she does not want to spend as much time at her father's and that life would be easier at her mother's.

24. In any event, Ms Z under cross-examination urged the court to be careful about placing much weight on the children's expressed wishes.  It was her opinion that X was reticent to say much at all, with the message being that she did not want to be involved or exposed to the dispute anymore.  Ms Z's impression is that X was very careful to be balanced and not take sides and that she enjoys her relationship with both parents.

25. Consistent with this, Ms Z reported in X's sessions with the school counsellor Ms FF that she "discussed both of her parents positively and she had appeared to make efforts to offer a balanced and equal view of them both".

    What is the relationship of the children like with each parent?

26. Save for a period of time after the children were born, the parties have both largely worked fulltime and the children for the most part were in childcare and later at school.

27. It is the wife's case however that she primarily looked after the children outside of those times, including in the evenings and on weekends.  She says the husband worked long hours and was otherwise disinterested.  The husband says that although the wife was more involved with the children when they were babies, that, once they both returned to work, they were equally responsible for their care.  Nonetheless, it seems likely on the evidence that the wife made most of the arrangements such as enrolling the children in school, attending parent-teacher interviews, and planning social events such as playdates and parties.  Although the wife concedes that upon moving to Suburb E in mid-2020 the husband became more involved with school pickups and the like.

28. Both children appeared to have positive relationships with each parent, based on the observations in the Family Report and of Ms DD.  They also appeared largely unaffected by their parent's arguments although Ms DD noted with respect to mid-2022:

    [Y] said he was not in the room but could hear his parents yelling and his father saying, "put that [weapon] down". [Y] nonchalantly commented that his mother always started fights and said "Mum and Dad don't like each other"… [Y] said, "I like Dad because he is very calm."

    …"Sometimes I am a bit frightened of Mum." [Y] commented his mother is always calm when the supervisor is present, "other times she is a lot angrier, and she says fuck about things."

    …[X] commented in her initial session her mother "yells and screams a bit."

29. However, Ms Z noted that Y described the wife in very similar terms to those used by the husband and as such she could not dismiss paternal influence.  In the first report Ms Z noted:

    During interview, [the husband] presented with a tendency to overstate, and he made no effort to restrain himself when denigrating [the wife]. It was noted that [Y] outlined near identical concerns and complaints about his mother to those outlined by his father. It may be in this matter; [the husband] has inadvertently or intentionally influenced the children against their mother.

30. In the third report Ms Z reported:

    What was apparent was that [Y] immediately and unprompted reported on [the wife] as he had during the March 2023 interview. Although despite this, he did not indicate a fear of her, and he was not averse to living with her equally.

31. Whether or not the wife yells as reported by Y or this was subject to paternal influence, the issue of the wife yelling did not appear to impact on Y's desire to spend substantial time with the wife.  Furthermore, Ms Z notes that both children seemed to have benefited from the shared care arrangement, which she observes "may be an indication that the children are not subject to abusive and punitive care in the maternal home."

32. Indeed, to the contrary there is evidence to suggest that X has a closer emotional connection to the wife than to the husband.  In the third report of Ms Z, X stated that if she had troubles at school of any kind, she would seek her mother's assistance.  Furthermore, in the weeks leading up to the trial it had come to light that X had commenced self-harming by way of scratching her skin with an object.  An emergency appointment was arranged for X with her psychologist.  In a safety plan prepared at this appointment X referred to the wife as both someone she could connect with and talk to.

    Does each parent have the capacity to meet the children’s needs, including their emotional needs?

33. It is the wife's case that she is better placed to meet the children's day to day needs which she says is "often lacking" in the husband's household.  She says the husband does "not cope with the responsibilities of parenthood".  If her evidence is to be believed:

    The children sometimes appear scruffy and unkempt when they return from spending time with [the husband]; this was particularly evident when the children were living primarily with [the husband]. They are dressed in dirty or inappropriate clothes, and do not appear to wash their hair, cut their fingernails or shower or bath regularly, whilst in his care.

34. The wife also alleges the children wear the same clothes for days, are overtired, cranky, and hungry.  Ms Z gave evidence that the wife reported the children preparing their own meals, vacuuming, preparing school lunches, getting themselves ready for school and managing their own bedtimes, which were often late.  The wife's evidence is the husband spends all his time in meetings, eating in front of his computer and the children are left on their own, with Y primarily on his iPad.  X is therefore being burdened with responsibilities including cooking evening meals and looking after Y because the husband has to work and has no practical support.

35. In addition, the wife's evidence was that she has no way of knowing whether the husband is implementing the recommendations of the children's specialists and that there are certain things they are advised to implement following appointments such as putting cards on the fridge as talking points for Y.  The wife says she provides the husband with the information by way of emails, but he rarely responds or asks questions.

36. On the other hand, the wife says she spends time with the children doing activities and has the support of friends and her mother.  Ms DD made the following observations in her report:

    [the wife] appears to be organised, focussed on the children's education and their emotional wellbeing, and has support from her sisters and the maternal grandwife. [the husband] appears to be self-sufficient, recent to seek or accept help, a calming influence and present for the children for discussions about many topics. He appears to be less focused on routines and structure than [the wife].

37. It seems likely to me based on the totality of the evidence that the wife is more organised and structured with respect to the children and that the children are left to a certain degree to care for themselves whilst the husband is working however, I do not accept the level of "neglect" that the wife alleges is the case.  I have already commented on what I see as the wife's propensity to "exaggerate" issues.  Furthermore, although there is brief mention in the Family Report about the nutritional value of the children's lunches and being late for school at times, the school does not identify which parent is responsible and it does not seem to be a major issue for the school.  I also note that the wife is prepared to leave the children with the husband for five nights each fortnight which appears inconsistent with any real concern.

38. It is also notable that Ms DD reported "both parents appear to rely on [X] to intervene when [Y] is acting out, although each refutes this is what occurs".  In Ms Z's first report she said that X "has apparently been conditioned to 'step in' and assist her parents manage her brother's behaviour" and in her third report, "according to [X], she had similar responsibilities in both the maternal and paternal homes, such as unpacking the dishwasher and cleaning up after herself".

39. This was consistent with Ms Z's observations in the third report:

    [X]'s attendance to cleaning up the cards was in keeping with a theme of her picking up after her brother, which was observed in the previous assessments.

40. Ms Z gave evidence that X did not enjoy looking after Y during her father's meetings as she could not manage his behaviour, but Ms Z could not illicit how frequently this occurred nor how much of an issue it really was for X.

41. Ms DD also reported that each parent had spoken to the children about the other parent as follows:

    [The husband] said he had mentioned to the children about the lack of money as [the wife] withheld money and asked them if he could borrow their money. [The wife] said she told the children their father was to blame for their situation.

42. However, although the evidence shows that each party has at times lacked insight into the impact of their behaviour on the children, not least of which was during the incident that resulted in the parties' separation, the greater concern in this matter is their ability to reflect on that behaviour and modify it going forward.

43. In this regard, I have had the benefit of the evidence of Ms DD and Ms Z as well as the psychiatric assessments of Dr CC and the parties' treating psychologists.  I have also seen the parties' behaviour on display through the videos of the incidents themselves.

44. Ms Z's evidence, having viewed the video of mid-2022, was that despite the wife being distraught, the husband was dismissive of her, lacking in empathy, was pursuing her, "goading" her and continuing to "ridicule her".  I agree with that assessment.

45. Furthermore, Ms Z described the husband as appearing to "lack an ability for self-reflection", continuing to blame the wife and referring to her on numerous occasions during interview as "the devil" and, also calling her a "psychopath".

46. In his first report Dr CC assessed the husband as follows at [45]:

    There are some signs on history and examination to suggest the presence of some narcissistic personality traits, namely the need to prominently elevate his achievements and success even if not relevant to the area of discussion, and appear to desire admiration. He also demonstrated a lack of empathy for the effects on the children of the ongoing conflicts and family violence perpetrated in front of them, and a lack of response to [the wife's] requests for additional support.

47. His psychologist, Ms C reports at page 3:

    He shows an expressed a preference for understanding situations through a logical lens rather than solely relying on emotional assessment. Again, the client is aware of this preference and seeks therapy to assist him in developing his emotional awareness and sensitivity.

1. However, in her third report Ms Z states:

   When asked, [the husband] could not offer specific examples of how he had reflected on his own behaviour and addressed his own behaviour in this regard during the sessions with [Ms C].

   Although [the husband] has remained insistent that he is not without his imperfections, to the contrary he presents as seeking to portray himself in very high regard.

   In this regard, [the wife] offers greater confidence in her capacity to alter her parenting approach and respond to the children's evolving needs throughout their development. She also demonstrates greater self-reflective capacity and a willingness to take on feedback positively.

2. In contrast to this Ms Z observed in her second report with respect to the wife:

   … she demonstrated a capacity for self-reflection and the impact of her behaviour on others, specifically [X] and [Y]. [The wife] was intently focussed on the children's wellbeing…

   It was noted that whilst [the wife] raised her concerns for the children's wellbeing in [the husband's] care, she presented as child focussed rather than seeking opportunities to denigrate [the husband] as he did towards her…It is the assessor's opinion that [the wife] is better able to promote the children's relationship with [the husband] than [the husband] can promote the children's relationship with their mother.

3. This was consistent with the evidence of the wife's psychologist, Ms B who she began working with in early 2023, and had seen for about 20 sessions.  Ms B reports the following:

   Throughout clinical psychology sessions, [the wife] has demonstrated a capacity for self-reflection and has been able to articulate the impact of her behaviour on others, specifically that of her children. [The wife] acknowledges the emotional dysregulation that presented in the context of the dispute with her ex-husband. However, she feels since this time and having the peace of not living in a home with him, has allowed her to manage her emotions in a much more considerate way on a day-to-day basis with her children.

   …

   She openly discusses her parenting and has been happy to take feedback and complete additional parenting education to ensure she can enhance her communication skills with her children and provide the best possible childhood experiences now and into the future for both [X] and [Y].

4. Furthermore, whilst Dr CC observed that both parties were highly critical and blaming of the other in his first report, by the second report he observed the following:

   However, she [the wife] was markedly less blaming to [the husband] compared to her previous assessment in 2022.

   Insight: She seemed to have developed a greater degree of insight into her own level of anxiety and some difficulties in coping with the children's difficult behaviour, particularly with [Y]. Her ability to express vulnerability was better than on the first assessment. 

   Overall, [the wife] seems to have been able to positively use the psychological assistance given, and is able to acknowledge her own vulnerabilities and needs to a greater extent.

5. However, with respect to the husband:

   Although he was markedly less blaming of [the wife] compared to the previous assessment, some critical thoughts about her parenting emerged during the course of the assessment. He seemed very keen to present himself as more attuned to the needs of the children. He made reference to the description of him as having had narcissistic traits. Overall, there seemed to be a greater capacity for him to convey his sense of vulnerability than compared to the previous assessment.

6. Of concern is that the husband was entirely accepting of Dr CC assessment of the wife but dismissive of Dr CC assessment of himself.

7. Overall, on the evidence I find that the wife has acknowledged the impact of her behaviour on the children and is taking active steps to address it; however, the husband continues to lack insight in this regard.  Although Dr CC reported some improvement in the husband's capacity "to convey his sense of vulnerability", I saw little evidence of this in the witness box.

   Impact on the children of any change

8. The children have both been diagnosed with ADHD and the parties each accept that routine and stability are important for them as a consequence of their neurodiversity.

9. The husband argues that having been in shared care since July 2023 and on his case, progressing well, that it would be best for them to not have any further change.  He also argues that week about gives them certainty and is easy for them to follow.  The husband's evidence is that Y does not really understand the concept of time although he is learning.

10. The wife's evidence however is that the husband's household is inherently unstructured and that she is better able to put in place the stability and boundaries the children require.  The wife says the children return tired and dysregulated and required a number of days to adapt to her household upon return.  She also describes them as "robots" upon return, that is showing no real emotion, but being overly emotional on leaving, with X unusually "huggy".

11. Again, for reasons already stated, it is difficult to rely upon the wife's evidence in this regard.  Furthermore, X has been attending counselling with Ms GG who reports that X does not appear to be showing much stress under the current arrangements.  Whilst Ms GG was not aware of X's self-harming, it is not known whether X's self-harming, was related to the week about time, the impending trial, or some other preteen girl angst.  What does appear to be the case is that at this stage of her life X sees her mother as a source of support and given her self-harming, this is a significant consideration to be factored in when assessing the parties' competing proposals.

    Family violence

12. The wife provides a detailed history of family violence she was subjected to during the relationship.  The husband in his material denies "each and every allegation".

13. The husband makes counter allegations against the wife about family violence alleging she would frequently yell and scream at him and had threatened to kill herself and the children.  He also alleges she once grabbed Y by the throat and hit X repeatedly in the head.  The wife denies physically hurting the children although concedes to Ms Z to "man-handling" them.  She says if she made the threats, they were not serious but were "a throwaway line".  Under cross examination she specifically denied threatening Y, which she said would be contrary to what he responds to.  The wife does however admit to yelling and damaging property and to calling the husband "derogatory names" or "fucker" in response to him calling her a "cunt".

14. It appears likely that during arguments the wife was the louder and more emotional one, and the husband on the surface, calm, which may explain why the children perceived the wife as the aggressor.  However, this belies the impact of coercion and control and psychological manipulation in a family violence context.

15. Watching the incident in mid-2022, the wife is highly emotional, to the point of being almost deranged.  Likewise in the video in which the wife is carving into a table the words "not better than me".  There is an argument that in each case the husband is calm and considered whilst the wife is hysterical.  However, what is also apparent on watching the video of mid-2022 is that despite removing the weapon off the wife at the 3-minute mark the husband continues to video her for another 8 minutes, following her around the home and telling her she needs to get psychological help.  He does not present or act as a someone in fear for their own safety.

16. Furthermore, the video of the incident demonstrates that the husband is not always as calm and rational as he tried to portray himself in the witness box.  In that video, the husband returns home with takeaway and insists on the children thanking him for collecting the food.  He tells X she had to apologise for acting like a child.  He is angry and with a raised voice says, "if anyone gave him trouble, he would act like mum, take the food and throw it away and make you eat it from the bin".  He accuses the wife of needing professional help, that she was wrecking the family and that she would be put in jail; all said in the presence of the children.  The wife on this video sounds calm albeit worn down by the husband's comments but otherwise is not dysregulated.  In the witness box the husband acknowledged his behaviour was not appropriate but at no stage in his evidence does he recognise the impact on the wife or on the children.  The husband in his trial affidavit merely denies the wife's version of the events of mid-2022 without putting his version.  Furthermore, under cross-examination he continued to try and justify his behaviour.

17. It is notable in this incident that the husband tells the wife she needs "professional help".  The husband conceded in the witness box that he had been saying this to the wife for a number of years, possibly five years, and perhaps on ten or fifteen occasions in the last few weeks of the relationship.

18. In my view this behaviour is indicative of gaslighting, namely behaviour designed to make someone believe they have a psychological issue when they do not and therefore to undermine their sense of self.  This could well explain at least in part why the wife became so dysregulated on the night of separation, perhaps in combination with commencing her new job and not having had much sleep for three nights.  Yet the husband offers her no understanding or empathy or in any way tries to console her.

19. The husband was in my view just as culpable during the incident in mid-2022.  The husband could have walked away, even taken the children out of the home, but he did not.  As Ms Z suggests, he appears to want to draw out the argument rather than deescalate it.  Having recorded some 11 minutes, the husband was thereafter prepared to provide the evidence to the police and have the wife charged.  However, of greater significance, the children had their primary carer immediately removed from their lives, and, when their time recommenced, it was on a limited supervised basis.  It concerns me greatly that the husband cannot see what flowed as a direct consequence of his involvement on that day.

20. In terms of any residual concerns about the wife's ability to manage her own emotions, the court is comforted by Dr CC’s assessment in his final report at paragraph [22] - [23] as follows:

    [the wife] does not currently suffer from any psychiatric disorder.

    However, that the presence of Cluster B personality traits contributes to ongoing brief anxiety attacks in the setting of stresses managing the children, and interactions with the [husband]. She does still have dysregulative episodes (chiefly precipitated by communication with the [husband]) but she manages these in a more adaptive manner, and shields the children from them, by utilising strategies that she has developed.

21. Then at paragraph [25]:

    [The wife] has engaged well with her clinical psychologist, [Ms B], over this year, and has found her to be very helpful. Although her level of anxiety does not appear to be significantly different from the initial assessment, she seems to have managed her symptoms in a more adaptive and reflective manner, which likely is due to the work done with [Ms B]. Her dysregulative episodes, although not at the same level of severity as during the relationship with the [husband], are being managed in a similarly more effective manner.

22. I have already discussed the significance of family violence with respect to parental responsibility however given the manner in which the husband has treated the wife and his complete lack of insight in relation to same, it would not be in the best interests of the children for the husband to be present if the wife is attending the children's medical or other allied health appointments.  This would not however prevent him from arranging his own times to those practitioners and he should be encouraged to do so.

    WHAT ARE THE ORDERS THAT ARE IN THE CHILDREN’S BEST INTERESTS?

23. In the end, my greatest concern in this matter, is the husband's lack of insight into how his behaviour impacts the children.  However, whilst this could be a reason to order more limited time, than even proposed by the wife, I have factored in the other considerations, including the children's wishes and their relationship with him, and having done so I am of the view that the amount of time that is in the best interests of the children is that promoted by the wife.

24. I do not however accept that two blocks of time are in the best interests of the children.  Changeovers have been a drawn-out process whereby the children return to the other parent's home to collect things.  This has caused ongoing conflict between the parties which they have been unable to resolve, even with the assistance of Ms DD.  I have considered making orders that the children take all their items to school but there are still likely to be items they need to collect.  In my view two blocks of time creates another opportunity each fortnight for this to occur.  It is also evident that the parents have very different parenting styles and that their households operate very differently.  Although I do not accept the wife's evidence in its entirety, it is likely the children do struggle to transition to and from her home.  As a result, I find the order that is in the best interests of the children is for one block of time.  Although this will create a large gap between time with the husband, the children are of an age where they should be less affected by this.  I appreciate this was not supported by Ms Z, but I have had the benefit of the totality of the evidence in this case as well as witnessing the parties give evidence over numerous days.

25. In terms of the long summer school holidays, the husband wanted to alternate weeks, with each parent sharing the period between Christmas and New Year, save that the parents could nominate a specific period of two weeks if they wished to exercise such time.  The wife wanted the children in her care for the period between Christmas and New Year, every year but otherwise half the remainder of the holidays.  Dealing firstly with the division of the holidays, given each party appeared to accept the children could spend larger blocks of time away from the other, I am of the view the holidays should be divided in half in two blocks.  This will reduce the number of changeovers and transitions, for reasons I have already addressed and enable the parents to each have a decent holiday with the children.  By alternating the halves, the children will be able to alternate the period between Christmas and New year with each parent, which they will benefit from because both parents have an enforced break from work during that period.  In terms of Christmas, I will make the orders as sought by the husband which provide for only a limited period in his care in the event it is the wife's half but a more generous period for the wife in reverse.

26. The parties are otherwise effectively agree to half the term holidays as well as the other special occasions.  Although it was not clear it was agreed the wife's calculation as to the beginning and end of the school holidays, changeover time in that period and when the weekly time recommenced did not appear to be controversial.

27. In regard to the husband attending a new psychologist, as proposed by the wife, whilst he still struggles with insight, he has developed a rapport with Ms C, and she appears to have a fairly balanced understanding of the husband's personality.  I understand she has also had the benefit of meeting the wife and counselling both parties which has given broader context beyond the information provided by the husband.  There also appears to be some progress given the observations of Dr CC in his latest report and the husband also unlikely to benefit from being forced to attend someone he does not want to see.  Accordingly, I do not propose to make the order sought by the wife.

    THE PROPERTY

    The issues to be determined in this case

    ·Should a loan to the wife's sister be included in the pool;

    ·What amount should be included for addbacks of legal fees;

    ·What is the quantum of a loan to a third party?

    ·What is the amount of the parties' credit card;

    ·What were the parties' initial contributions;

    ·Whether there should be an adjustment to the wife based on contributions, in particular for the wife's inheritance;

    ·Whether there should be an adjustment to the wife pursuant to s 75(2)(o) as a result of legal fees spent due to the husband's conduct in this matter, including his active deception and failure to disclose assets;

    ·Whether there should be an adjustment to the wife pursuant to s 75(2)(o) because of undisclosed funds held by the husband in Country HH and the United Kingdom;

    ·Whether there should be an adjustment to the wife pursuant to s 75(2)(o) because of the significant differential in joint funds used by the husband post-separation;

    ·Whether there should be an adjustment to the wife pursuant to s 75(2)(o) if she is required to sell an investment property to purchase a home to account for the CGT as well as stamp duty; and

    ·Whether the husband should provide to the wife the chattels she seeks.

    WHAT ARE THE RELEVANT LEGAL PRINCIPLES WHEN DETERMINING PROPERTY DIVISION?

28. The relevant legal principles governing any application for property settlement are set out in Part VIII of the Act. Section 79(1) of the Act authorises the court to make such orders between the parties as it considers appropriate. Section 79(2) of the Act makes it clear that the court cannot make an order for property settlement unless it is just and equitable to do so.

29. Earlier Full Court authorities have identified a four-step process that can assist the court in reaching a just and equitable decision: see Lee Steere & Lee Steere [1985] FamCA 57; Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 ("Hickey"); and Omacini & Omacini [2005] FamCA 195.

30. Assuming the court is satisfied that it is just and equitable to make an order for property settlement, the court must identify the parties' legal and equitable interests in the assets arising from their relationship, together with their liabilities. The court should then assess each party's contributions during the relationship in accordance with ss 79(4)(a), 79(4)(b) and 79(4)(c).

31. The third step requires the court to consider the range of factors set out in ss 79(4)(d), 79(4)(e), 79(4)(f) and 79(4)(g), including the future needs factors identified in s 75(2). The court should then consider its findings and, if the court is satisfied that it is just and equitable to do so, make orders adjusting the parties' property interests.

32. The Full Court in Bevan & Bevan [2013] FamCAFC 11 (“Bevan”) at [62], in the joint judgment of Bryant CJ and Thackray J, reminded trial judges that the four-step process is not legislatively mandated. Rather, it provides a structured process towards the ultimate requirement, which is to ensure that a property settlement order is only made when the court is satisfied that it is just and equitable to do so, and that the terms of the order itself are also just and equitable.

    What is the asset pool for division in this case?

33. The parties presented the court with an agreed table of assets and liabilities (save for four items which were in dispute) as follows:

ASSETS TO BE SOLD/ FLUCTATING			Wife	Husband
1.	CBA offset account Husband’s FY23 tax refund to be paid into offset Wife’s FY23 tax refund to be paid into offset Less investment property expenses pending transfers and/or sale		$135,868 $76,194 $34,073 Not known	$246,135	Agreed
2.	K Street, Suburb L Less JJ Bank loan #...00 Less estimated selling costs Less estimated CGT Less interim property settlements to be paid per orders made 19.07.23		$1,150,000 ($595,000) (E$25,000) (E$75,000) ($100,000)	$355,000	Agreed
3.	M Street, Suburb G Less CBA loan #...09 Less selling costs Less CGT		$1,270,000 ($613,000) Not known Not known	$657,000	Agreed
4.	2 H Street, Suburb G Less O Bank loan #...81 Less selling costs Less CGT		$1,100,000 ($455,000) Not known Not known	$645,000	Agreed
GROSS VALUE BEFORE SELLLING EXPENSES AND CGT			$1,903,135	$1,903,135
JOINT
5.	D Street, Suburb E Less Q Company loan #...79		$2,750,000 ($1,484,000)	$1,266,000	Agreed
6.	F Street, Suburb G Less KK Bank loans		$1,450,000 ($966,000)	$484,000	Agreed
TOTAL JOINT			$1,750,000	$1,750,000
WIFE
7.	25% of S Street, Suburb G		$406,250	Agreed
8.	Loan owing to Ms AA		($75,000)	Husband does not agree that the $75,000 is a loan
9.	Add backs
9.1	Family law legal frees paid from capital (excl interim property settlements)	$207,338	Husband says add back wife’s legal fees of $411,385 paid for Wife’s family law, criminal law and Intervention Order proceedings  (this sum includes the Wife’s interim property settlements of $129,694 which were used by the Wife to pay her legal fees)
9.2	Interim property settlements – orders 23.11.23 and 19.07.23	$129,694	See above
9.3	Interim property – to be received from K Street	$50,000	Agreed
10.	Motor Vehicle 1		$10,000	Agreed
TOTAL WIFE			$728,282	$877,635
HUSBAND
11.	H Street, Suburb G Less O Bank loan #...26		$1,450,000 ($668,000)	$782,000	Agreed
12.	Motor Vehicle 2		$12,000	Agreed
13.	Monies owing by Mr LL		$31,814	Husband says $28,914
14.	Items purchased at auction houses		$253,205	Agreed
15.	Credit card (at separation)		($12,441)	($23,278)
16.	Addbacks
16.1	Interim property settlements (orders 23.11.22, 6.03.23, 19.07.23)	$137,461	Agreed
16.2	Interim property settlement from K Street	$50,000	Agreed
16.3	Legal fees (RNG Lawyers) – per trust account ledger	$85,795	Agreed
16.4	Legal fees (Barbayannis lawyers)	$11,300	$284,556	Agreed
TOTAL HUSBAND			$1,351,134	$1,337,397
SUPERANNUATION
17.	Ms Marlon – Super Fund 2		$430,277
18.	Mr Calkins– Super Fund 1		$460,962
TOTAL SUPERANNUATION			$891,239	$891,239
TOTAL NON-SUPERANNUATION			$5,732,551	$5,868,167
TOTAL POOL			$6,623,790	$6,759,406

1. Ultimately taking into consideration all the aforementioned matters, I have determined the wife should receive an adjustment of 3 per cent in her favour, based on contributions.

   FACTORS UNDER SECTION 75(2) OF THE ACT

2. The husband is 52 years of age and is currently a professional.  The wife is 46 years old and is employed full-time at PP Company as a professional.  The parties earn similar incomes.  Neither sought an adjustment based on earning capacity, health issues or for the care of the children.  The husband pays child support, currently $6,100 per year, although I understand this is likely to be reduced as it was based on his previous earnings and potentially his payout.

3. However, the wife seeks an adjustment in her favour pursuant to s 75(2)(o) of the Act based on the following:

   ·The husband's conduct;

   ·Non-disclosed funds held in Country HH and the United Kingdom;

   ·The differential in joint funds used by the parties since separation; and

   ·For CGT and stamp duty if she is not permitted to retain the home and must sell and investment property.

   The husband’s conduct

4. The wife submits that she should receive an adjustment of the pool as she has incurred additional legal fees as a result of the husband's failure to comply with the orders made on 23 November 2022 which required him to instruct the accountant to prepare their personal tax returns from 2020 to 2022 and to pay the mortgage and other outgoings on the home at Suburb E.  In regard to tax returns a further order was made on 19 July 2023 ordering compliance with the November orders.  The wife's evidence, which was not challenged was:

   Finally, on 25 September 2023, some 10 months after the original orders were made for the preparation of our tax returns, and only after being told the returns would be lodged on an 'as is' basis, [the husband] began to intermittently provide documents to the accountant with respect to the rental income and expenses.

5. The husband concedes in his trial affidavit at paragraph 120 that there was a delay with compliance but says he could not locate all documents required by the accountant.  However, their finances were not complicated, and such a delay was unacceptable.

6. Furthermore, the husband admits that he did not always pay the rates and the home loan fell into arrears, this was despite having access to significant lump sums which I shall return to shortly.  The wife's evidence which was not challenged was:

   Since the orders were made on 23 November 2022, [the husband] failed to pay the [Suburb E] loan on seven separate occasions. [The husband's] failure to pay the [Suburb E] loan resulted in repayment dishonour fees and additional interest being incurred, as the interest was calculated on the higher loan amount outstanding due to the arrears. It also negatively impacted my credit rating […].

7. I find that the husband's conduct is likely to have resulted in greater legal fees for the wife and at the very least, additional correspondence.  In addition, the impact on her credit rating is likely to make it more difficult to obtain a loan and she may have to pay a financial penalty to secure one.  It is appropriate the wife receive a slight adjustment in her favour on this basis.

   Non-disclosed funds in Country HH/UK pension fund

8. The wife asserts that whilst the parties were living in QQ Street, the husband told her that when his father died in about 2004/2005, he left USD$920,000 in Country HH intended for the husband and his two sisters but that they were having difficulty getting the funds out due to banking restrictions.  She attests to being shown a remittance for a transfer of about USD$305,000 directed to the husband.  She does not know what he did with the funds or what has happened to the other monies.  The wife also claims the husband has an interest in a pension/superannuation/insurance policy in the United Kingdom.

9. Under cross-examination the wife was very vague about these assertions.  She was adamant the husband made a number of references to funds in Country HH and/or the United Kingdom but she could not be specific about when these were made or about precise amounts.

10. The husband denies having received or being entitled to any funds from his father's estate. His evidence is that his father's estate passed to his wife who is still alive.  He also denies having a pension/superannuation or other benefits in the United Kingdom and says he has never worked there.

11. In the end, there is little more than vague assertions by the wife without any corroboration.  Ultimately, I am unable to make a finding that the husband has had or is entitled to receive any funds form the United Kingdom or Country HH.

    Funds had and received by the parties

12. The wife's counsel prepared a table which particularises the joint funds the parties each agree they have had the benefit of since separation.  The husband's counsel did not take issue with that table, which is set out below:

CAPITAL RECEIVED BY THE HUSBAND
Source of funds	Amount		Asset pool	Notes
O Bank offset #...88	$168,316.95		$253,205	MM Company.
O Bank offset #...63	$160,712.26		$31,814	Money loaned to Mr LL.
Q Company loan	$120,000		$85,795	RNG Lawyers – husband’s legal costs.
BB Company Pay Out (paid to Westpac #...60)	$186,254.32		$11,300	Barbayannis Lawyers – husband’s legal costs.
Interim property settlement - orders 23.11.22 (Q Company Loan)	$29,693.70		$29,693.70	Agreed add-back.
Interim property settlement - orders 6.3.23 (joint CBA offset account)	$7,767		$7,767	Agreed add-back.
Interim property settlement - orders 19.07.23 (joint CBA offset account)	$100,000		$100,000	Agreed add-back.  Includes $50,000 paid to Barbayannis Lawyers.
Interim property settlement - orders 19.07.23 (from K Street sale proceeds)	$50,000		$50,000	Agreed add-back.  Yet to be received.
TOTAL	$822,744.23		$569,574.7	$253,169.53 not reflected in asset pool
CAPITAL RECEIVED BY THE WIFE
Source of funds		Amount	Asset pool	Notes
KK Bank offset		$300,000	$207,338.30	Wife’s family law costs paid from capital (does not include ICL costs or expenses paid on behalf of the husband)
Interim property settlement per orders 23.11.22 (Q Company Loan)		$29,693.70	$29,693.70	Agreed add-back
Interim property settlement per orders 19.07.23 (joint CBA offset account)		$100,000	$100,000	Agreed add-back
Interim property settlement - orders 19.07.23 (from K Street sale proceeds)		$50,000	$50,000	Agreed add-back.  Yet to be received.
TOTAL		$479,693.70	$387,032	$92,661.70 not reflected in asset pool.  Husband has therefore had the benefit of $160,507.83 more than the wife that is not reflected in the asset pool.

1. Based on the figures in that table the husband has had the benefit of $160,507.83 over and above the wife.  However I have found the amount to be added back to the wife for legal fees is to be $229,348.50 not $207,338.30 and that the wife only had the benefit of $225,000 in her KK Bank account because $75,000 was used to repay her sister.  Making adjustments for these figures, the wife had the benefit of $404,693.70 whilst $409,042.20 remains in the pool.

2. As the husband has had the benefit of $253,169.53 not otherwise in the asset pool, the differential is therefore $257,518.03.  This constitutes about 4 per cent of the non-superannuation asset pool.

3. However, it cannot be overlooked that the husband was essentially unemployed from late 2022 to mid-2023.  Whilst he endeavoured to start a business it appears to have been largely unsuccessful.  The husband would have therefore been required to spend a reasonable amount of those funds on living expenses.  The wife asserts that the husband spent excessively "on entertainment (including adult entertainment), holidays and eating out" but no specific examples were provided.  If the husband were earning a similar income to the wife, of say $220,000, he would have had on a rough calculation, about $100,000 at his disposal in an eight-month period.  Allowing for this, there would have been about $157,000 additional funds in the pool, which amounts to about 2.7 per cent of the non-superannuation pool.  On this basis the wife should receive a further adjustment in her favour.

   Potential stamp duty and CGT

4. Pursuant to Rosati v Rosati (1998) FLC 92 804; the court is required to consider if a party is likely to have to sell an investment property in order to be able to purchase a new home. It was not in dispute that one of the parties would need to do so, depending on who was allowed to retain the home. It was also agreed that that person would incur the costs of CGT as well as stamp duty on a new purchase, which for a home similar to the former matrimonial home would be about $158,000.

5. In terms of who should retain the home, the husband has been living there since mid-2022.  In my view, he ought to be able to remain there.  This is primarily because if the husband moves out there will be a substantial change to the furniture and surrounds of the family home which will likely confuse the children and they are used to him living there.  Furthermore, the wife may choose not to move for some time, which means no disruption to the children in the short term.

6. The stamp duty also amounts to about 2.7 per cent of the pool on a dollar-for-dollar basis.  The CGT is less clear however the wife submits that there should be a 4 per cent division of the pool, to account for both stamp duty and the CGT.

7. Taking into account the husband's conduct, the additional funds the husband has had the benefit of and the costs the wife will incur to purchase a new home, I find that she should receive an additional 4 per cent in her favour on top of the adjustment for contributions, which brings the total adjustment to 7 per cent in her favour.

   Is the proposed adjustment just and equitable?

8. Pursuant to the authority of Clauson & Clauson (1995) FLC 92-595;I must however consider the real effect on dollar terms. In this case a 13 per cent differential between the parties amounts to $757,139. Given all of the above matters, including the wife's inheritance, the husband's conduct, the additional funds the husband has had the benefit of since separation and the expenses the wife will incur in purchasing a home in the future, this is a just and equitable division between the parties.

9. Otherwise, the parties have agreed to a superannuation split which equalises their superannuation.  In circumstances where the parties are unlikely to access their superannuation for many years, and their contributions appear to be similar, it is appropriate to apply a different percentage division to the superannuation pool.  Furthermore, I am satisfied the super fund has been accorded procedural fairness.

10. In terms of the chattels sought by the wife, these are in similar terms as interim orders made on 23 November 2022.  The parties eventually arranged for the wife to collect the items in late 2023 however the wife says the only items provided "were a pile of clothes, a pair of shoes, pot plants and a light fitting".  The husband says the majority of items were provided and the only items remaining are the wife's chair, desk, and computer monitor and otherwise he has not been able to locate the items sought.  The parties were not cross-examined as to what occurred on this date and as such, I am unable to make a finding either way.  However, the wife ought to be able to collect any items remaining from those orders.

11. Otherwise, the wife now seeks to divide all assets in the home on a pick-by-pick basis.  Given the wife was removed from the home without being able to take any items this seems reasonable; however such items should not include any personal items of the husband, any items purchased by the husband since separation, or anything belonging to the children.

12. The chattels division will occur on one day, including the removal of the items.  The wife can bring with her a large removal truck for this purpose.  Both parties will need to be present and can have one other person with them to assist and support them.  It will also be necessary that the wife enter the home and open cupboards so as to be able to locate items from the November orders or to otherwise determine her next pick.  Anything left behind will be deemed to be the property of the husband.

13. Otherwise, the parties have largely agreed to the form of orders save that the orders indicate one remaining dispute over the date for the filing of tax returns, being 31 July versus 30 September.  As I was not addressed on this issue I shall nominate 31 August being, more or less, in the middle.

    Lump Sum Child Support

14. The wife seeks a lump sum be put in an account to pay for the husband's half share of the children's future school fees.  She has quantified the husband's share of those fees to be $263,510 based on a total estimate of $527,020 at current values.

15. The husband did not take issue with the quantum.  Rather he argues that they both have sufficient income to meet those fees and there is no basis on which to quarantine their capital for this purpose.

16. The wife's position is that the husband has not prioritised the children's special needs in the past.  She says it is not that the husband will not be able to afford it, it is rather about how he chooses to allocate his money.  She stresses that for these children in particular, certainty of education is even more important given their special needs.

17. The wife further submits that the husband cannot be relied upon to meet his obligations as he has failed to comply with court orders in the past, in particular to pay the mortgage and rates, when he had more than sufficient funds to do so.

18. Section 123 of the Child Support (Assessment) Act 1989 (Cth) states as follows:

    (1)      An application may be made to a court having jurisdiction under this Act for:

    (a)an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or

    (b)an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.

    (2)      An application under subsection (1):

    (a)may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and

    (b)       may be made by the carer entitled to child support or the liable parent.

19. As there is a current assessment for child support, the wife is entitled to bring this application.  I note for completion that the Registrar of the Child Support Agency has been notified but did not elect to participate in the proceedings.

20. Section 124 of the Child Support (Assessment) Act 1989 (Cth) sets out the pathway to be followed by the court as follows:

    (1)      Where:

    (a)a carer entitled to child support or a liable parent makes an application under paragraph 123(1)(a); and

    (b)       the court is satisfied that it would be:

    (i)just and equitable as regards the child, the carer entitled to child support and the liable parent; and

    (ii)otherwise proper;

    to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;

    the court may make the order.

    (2)      In determining the application, the court must have regard to:

    (a)the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and

    (aa)any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and

    (b)any order in force under Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and

    (c)whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, if the carer entitled to child support is not in receipt of such a pension, allowance or benefit, whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.

    (3)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).

    (3A)In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).

    (4)In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).

    (5)Subsections (2), (3), (3A) and (4) do not limit the matters to which the court may have regard.

21. The court was not however specifically addressed on these considerations nor were submissions made as to why making a lump sum order would otherwise be proper.

22. Nonetheless, I have taken into consideration each of those sections.  In this regard I make the following findings:

    ·The parties agree that they each have a duty to maintain the children;

    ·The parties agree that the children be educated at the proposed private schools;

    ·The parties agree that the private school fees be shared equally;

    ·The parties agree the proper needs of the children, including their special needs, will be best met by the children attending the proposed private schools;

    ·The parties agree that their combined income and future earning capacity is likely to be sufficient to meet the private school fees;

    ·The parties will otherwise be able to support themselves and meet the other needs of the children, if they share the school fees; and

    ·The parties will have significant property and financial resources from which they could otherwise meet the private school fees if their income was insufficient.

23. Ultimately in my view, this decision turns on the hardship that may be caused to the wife and children in the event the husband fails to meet his obligations to pay the school fees versus the hardship to the husband of being deprived of the opportunity to invest capital.

24. Although the husband agrees that he should pay half the school fees, and will have ample income and/or property from which he will be able to meet this obligation, I cannot be satisfied that he will in fact do so.  Even when there were court orders to pay the mortgage he did not do so, despite having ample funds available to him.  It would not be in the best interest of these children, especially given their special needs, to have to be removed from their school because the husband refuses to pay or for the wife to spend further efforts or money on further legal fees having to chase him for payment.

25. For this reason, I find it is both just and equitable as regards the children, the wife and the husband and otherwise proper to make the orders as sought by the wife with respect to lump sum child support.

26. Otherwise, I shall make the remainder of the orders in the parties' joint property minute by consent.

27. For all the aforementioned reasons I make the orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.

Associate:

Dated:       14 March 2024