Conrad and Conrad

FAMILY COURT OF AUSTRALIA

CONRAD & CONRAD

[2011] FamCA 832

FAMILY LAW – PARENTING – Where both parties seek an order for equal shared parental responsibility - Relocation – Whether it is in the best interests of the children that they relocate interstate with the wife – Substantial and significant time with the husband – Where the husband’s relationship with one child has broken down – Where the other children would benefit from having a meaningful relationship with the husband – Whether the wife will promote the children’s relationship with the husband.
FAMILY LAW – PROPERTY SETTLEMENT –Assets and Liabilities; Contributions – Where the husband made the greater financial contribution – Where the wife made the greater non-financial and homemaker contributions – Where the husband’s contributions overall exceeded those of the wife; Adjustments – Where an adjustment is warranted in favour of the wife; Just and equitable
FAMILY LAW – CHILD SUPPORT DEPARTURE – Where both parties seek a departure order.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 65DAA, 65DAC, 75 & 79.
Child Support (Assessment) 1989 Act (Cth) ss 3, 117, 123 & 124.

In the Marriage of Hickey (2003) 30 Fam LR 355; In the Marriage of Omacini (2005) 33 Fam LR 134; Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Shewring (1987) l2 Fam LR 139; In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797; In the Marriage of Coghlan (2004) 33 Fam LR 414; MRR & GR (2010) 240 CLR 461; A v A (Relocation Approach) (2000) 26 Fam LR 382; McCall and Clark (2009) FLC 93-405; Godfrey and Sanders [2007] FamCA 102; M and S (formerly E) [2006] FamCA 1408; Mazorski & Albright (2007) 37 Fam LR 518; G & C [2006] FamCA 994; Champness & Hanson (2009) FLC 93-407; M and S (2007) FLC 93-313; Sigley & Evor (2011) 44 Fam LR 439; McGuiness v Cowie (2002) 29 Fam LR 441; [2002] FamCA 461; Savery & Savery (1990) 13 Fam LR 812; (1990) FLC 92-131; Stein & Stein (2000) FLC 93-004.

APPLICANT:

Ms Conrad

RESPONDENT:

Mr Conrad

FILE NUMBER:

SYC

6912

2009

DATE DELIVERED:

28 October 2011

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Loughnan

PLACE HEARD: Sydney

HEARING DATE:

29 August – 1 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT HUSBAND	Ms S. Christie
SOLICITOR FOR THE APPLICANT:	Blanchfield Nicholls Partners

COUNSEL FOR THE RESPONDENT MOTHER:	Ms A. Rees SC
SOLICITOR FOR THE RESPONDENT:	Uther Webster & Evans
SOLICITOR FOR THE CHILDREN:	Ms K. Shea NSW Legal Aid

Orders

Parenting

All previous parenting orders in relation to the children, B, born … January 1997, C, born … August 1999 and D, born … August 2004 ("the children"), are discharged.
The wife and husband shall have equal shared parental responsibility for the children.
The children shall live with the wife.
The wife is permitted to relocate the children's residence to within a 20 km radius of E Town, Victoria.
B shall spend such time and have such communication with the husband as may be agreed between B and the husband.
Unless the parties otherwise agree, while the husband lives in Sydney, C and D shall spend time with him as follows:
a.In Victoria each alternate weekend during each school term from 5.30 pm Friday evening until Sunday at 4.00 pm (or Monday at 4.00 pm if it is a long weekend) and unless the parties otherwise agree that shall commence with the first weekend after the resumption of each school term;
b.In Victoria on one additional weekend during each school term from 5.30 pm Friday evening until Sunday at 4.00 pm (or Monday at 4.00 pm if it is a long weekend), subject to the husband providing the wife with at least 21 days notice of his intention to spend that time with the children;
c.For half of school holiday periods at the end of each of the first three terms of each year and unless the parties otherwise agree that is to be the first half;
d.For the 2011/12 and 2012/13 Christmas school holidays, the children will spend one week leading up to Christmas Day with the husband, on the basis that he return the children to the wife by no later than 11 am on Christmas Day and for 10 days commencing after 12 January in each year provided that the husband returns the children to the wife 3 clear days before they recommence school;
e.From the 2013/14 Christmas school holidays and thereafter the children will spend one half of the holidays with the husband provided that if they would otherwise be with him on Christmas Day, the husband will return the children to the wife for the period 11 am on Christmas Day to 11 am Boxing Day;
f.At other times by agreement between the parents.

Unless the parties otherwise agree, in the event that the husband lives in Victoria, C and D shall spend time with the husband as follows:
a.On each alternate weekend from after school on Friday until the commencement of school on Monday or Tuesday if Monday is a holiday or pupil free day;
b.Provided that the husband lives within 20 kilometres of E Town, from the conclusion of school each Wednesday until the commencement of school on Thursday;
c.For half of each school holiday period;
d.At other times as agreed between the parents.

Unless the parties agree to the contrary effect shall be given to the arrangements:
a.pursuant to order 6 a. and b. by the wife causing the children to be delivered to the husband at the commencement of each period and she shall cause them to be collected from him at the conclusion of each such period;
b.pursuant to order 6 c., d. and e. (where appropriate) by the wife causing the children to be delivered to the appropriate Melbourne airport and ensuring that they board the flight booked by the parents or either of them for travel to Sydney on the first day of the time to be spent with the husband and the husband shall collect them at Sydney airport; for the return journey the husband shall cause the children to be delivered to Sydney airport and shall ensure that they board the appropriate flight for travel to Melbourne on the last day of the husband’s time and the wife shall cause them to be collected at Melbourne airport;
c.pursuant to order 7 by the wife causing the children to be delivered to the husband at the commencement of each period and by the husband returning them to the wife or to school (as the case may be) at the conclusion of each such period;
d.the wife shall be responsible for booking and paying for return airfares for C and D (and B if applicable) from Sydney to Melbourne for the first two school holiday visits with the husband in each year;
e.the husband shall otherwise be responsible for booking and paying for the children’s return airfares for the September/October school holiday and the Christmas school holidays.
Each parent shall do all acts and things necessary to ensure that they have the facilities and equipment necessary for the children to communicate with the other parent by Skype.
Each parent shall ensure that the children are at liberty to communicate with the other parent by telephone, email and Skype at all reasonable times when they are not in the other parent's care.

Property Settlement

The husband and the wife forthwith do all acts and things and sign all necessary documents to effect a sale of the property known as F Street, Suburb G being comprised in Certificate of title Folio Identifier … (“the real property”) including but not limited to:
a.   Placing the real property on the market for sale by way of public auction with an agreed real estate agent (“the agent”) and failing agreement with an agent as nominated by the President, or his nominee, of the Real Estate Institute of New South Wales at the cost of the husband.
b.   Execute all documents requested by the agent for the sale of the real property.
c.   The husband shall be responsible for all payments requested by the selling agent prior to the auction.
d.   The reserve price for the real property shall be as agreed between the parties and if there is no agreement the reserve price shall be as advised by the agent.
e.   In the event that the real property does not sell at the first auction then the parties shall make all such arrangements and do all such acts and sign all such documents and the husband pay all monies necessary to sell the property by public auction every four (4) months from the date of the first auction until the property is sold.
Not later than 7 days prior to the completion of the sale of the real property the husband do all acts and things necessary to transfer to his sole name or to refinance in his sole name:
a. the investment loan account with the Westpac Banking Corporation Account Number …; and
b. the Overdraft debt in the name of Conrad Consulting Australia being Westpac Loan Account Number …
currently secured over the real property and the husband shall procure a release of the wife of any obligation arising by way of guarantee or otherwise given by the wife in respect of such accounts.
Upon completion of the sale of the real property the parties are to cause the proceeds of the sale be applied as follows:
a.   to pay all costs, commissions and expenses of the sale and to pay any council and water rates outstanding in respect of the real property;
b.   to the Westpac mortgage account referred to as the H Home Loan with Redraw being account number …;
c.   to the K Loan being the Westpac loan account number …
d.   as to 98.9 per cent of the balance to the wife; and
e.   the balance remaining to the husband.
Pending completion of the sale or until compliance with Order 12, as the case may be, the husband shall pay all instalments in respect of:
a.   the Westpac mortgage account referred to as the H Home Loan with Redraw being account number … and in any event he shall ensure that the balance of the mortgage does not exceed $250,000;
b.   the K Loan being the Westpac loan account … and the L Loan being the Westpac loan account … and in any event he shall ensure that the balance of those loans does not exceed $740,220;
c.   the Line of Credit being the Westpac loan account …;
d.   the Overdraft debt in the name of Conrad Consulting being Westpac Loan Account …;
e.   all rates and taxes and like outgoings of the real property as they fall due.
In the event the husband fails to comply with Order 14, an amount reflecting 98.9 per cent of any underpayment shall be paid by the husband to the wife simultaneously on completion of the sale of the real property.
Simultaneously with the husband’s compliance with Order 12 of these Orders the wife shall do all acts and things and sign all necessary documents to effect a transfer of all her right title and interest in the following to the husband:
a.the company known as Conrad Consulting Australia Pty Limited ACN …; and
b.the motor vehicle 1.
The husband shall do all acts and things necessary to procure a release of the wife’s obligations pursuant to a guarantee to Macquarie Leasing in respect of the motor vehicle 2 and thereafter indemnify the wife and keep her indemnified in relation to all monies owing to Macquarie Leasing in respect of that motor vehicle, and upon the completion of the sale of the real property the wife shall make the motor vehicle available to the husband.
The husband shall do all acts and things necessary to procure a release of the wife’s obligations pursuant to a guarantee in respect of the lease of premises occupied by the company known as Conrad Consulting Australia Pty Limited ACN … and thereafter indemnify the wife and keep her indemnified in relation to all monies owing in respect of the lease of such premises.
The husband shall indemnify the wife and keep her indemnified against all or any manner of actions, suits, causes of action, arbitrations, debts, dues, costs, interest and demands whatsoever both at law and in equity which the husband and the company now has or may have at any time or times hereafter against the wife or which may arise in respect of any act or thing done or omitted to be done by the wife including in respect of any money owed to Conrad Consulting Australia Pty Ltd or the Conrad Family Trust up to and including the date of making of these Orders whether by reason of the wife having been an employee and/or director and/or officer of the company and/or by reason of the wife’s shareholding within the company and/or any loan account in the wife’s name and/or the receipt by the wife of any moneys at any time from the company or otherwise.
Subject to the other provisions of these Orders the wife is declared the sole legal and beneficial owner of:
a.Her superannuation and;
b.All items of personal and real property in her possession or of which she is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the wife in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.
Subject to the other provisions of these Orders the husband is declared the sole legal and beneficial owner of:
a.His superannuation; and
b.All items of personal and real property in his possession or of which he is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the husband in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.

Child Support

For the period from the date of these Orders until 31 January 2012, the husband’s child support liability shall be fixed in the sum of $230 per week in respect of each of B born … January 1997, C born …August 1999 and D born … August 2004.
For the period from 1 February 2012 until the youngest child turns 18 years of age or completes secondary education, whichever is the later, the husband’s child support liability shall be fixed in the sum of $205 per week in respect of B born … January 1997, $142.00 per week in respect of C born ... August 1999, and $142.00 per week in respect of D born … August 2004.
The amounts referred to in Order 23 shall be indexed in accordance with the CPI for the city closest to the children’s home on 1 July each year.
The husband’s obligation to pay amounts pursuant to Order 23 shall cease in respect of each child upon that child:
a.permanently leaving Australia; or
b.obtaining employment and becoming self supporting;
whichever first occurs.
For any child in respect of whom the husband has an ongoing liability under Order 23, in addition to any periodic child support assessed from time to time, the husband shall pay:
a.Pay 80 per cent of that child’s independent school fees and expenses as invoiced by J School or such other school upon which the parties later agree for the child;
b.Pay 80 per cent of the private health insurance cover for the child;
c.Reimburse to the wife 80 per cent of any gap payment between the cost and any amount recoverable from either Medicare or the private health insurance in respect of any medical, dental, orthodontic or related treatment in respect of the child (including but not limited to speech therapy, physical therapy, psychology) such reimbursement to occur within 14 days of receipt by the husband of the invoice;

Spousal Maintenance

From the date of these Orders until 1 February 2012 the husband shall pay to the wife or as she may direct, the sum of $500 per week.
Orders 14 – 17 inclusive made on 4 February 2010 are hereby discharged.

Leave is granted to the parties to restore the proceedings within one month of the date of these Orders in respect of the wording of the orders, by giving at least 7 days written notice to the Associate to Justice Loughnan and to each other.

IT IS NOTED that publication of this judgment under the pseudonym Conrad & Conrad is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6912 of 2009

Ms Conrad

Applicant

And

Mr Conrad

Respondent

REASONS FOR JUDGMENT

Ms and Mr Conrad lived together for more than 14 years. They cannot agree on the parenting arrangements for their three children, nor as to a settlement of their property, spousal maintenance or child support. For convenience I will refer to them as the wife and husband.

Applications

In accordance with a Minute of Orders provided to my chambers by email on 9 September 2011, the wife seeks orders in the following terms:
PARENTING
1.That the children, namely [B] (“[B]”) born … January 1997, [C] born … August 1999 (“[C]”) and [D] (“[D]”) born … August 2004 live with the wife.
2.That the parties have shared equal parental responsibility for the three children.
3.That the parties do all acts and things and sign all documents necessary to enrol [B], [C] and [D] at [J School] in [E Town].
4.In the event that the husband lives in Sydney and the children are living with the wife in Victoria, that the husband will spend time with [C] and [D] (“the children”) as follows:
4.1.Each alternate weekend during the Victorian school term in [E Town] from 4 pm on Friday to 4 pm on Sunday and the husband shall collect the children from the wife’s home and deliver the children to the wife’s home;
4.2.Upon giving the wife not less than 21 days notice in writing on one further weekend during the Victorian school term in [E Town] from 4 pm on Friday to 4 pm on Sunday and the husband shall collect the children from the wife’s home and deliver the children to the wife’s home;
4.3.That for the purpose of Order 4.1, the husband’s time shall commence on the first weekend of each school term.
4.4.In the event that the husband is to spend time with the children on a long weekend then the time spent shall be extended to 4.00 pm on Monday.
4.5.That the husband spend time with the children during the school holiday periods other than the Christmas holidays for one week of each school holiday period as agreed, and failing agreement, the first week of each such holiday period. The first day of the school holiday period will be the day immediately following the last day of the school term.
4.6.That the husband spend time with the children during the Christmas school holidays as follows:
4.6.1.For the 2011/12 and 2012/13 Christmas holidays, one week leading up to Christmas Day with the husband to return the children to the mother by no later than 11 am on Christmas Day and for 10 days commencing after 12 January in each year provided that the husband returns the children to the wife 3 clear days before they recommence school;
4.6.2.Thereafter one half of the Christmas School holidays provided that the children are returned to the mother at 11 am on Christmas Day until .................
4.7.The wife will pay one half of the cost of the children travelling to and from Sydney for not more than 2 school holiday periods per year, the husband thereafter bearing the cost of any additional travel of the children.
4.8.If the husband is in Victoria for the children’s birthdays and the birthday falls on a school day, the husband shall spend time with the children on each of their birthdays from after school until 6:00 pm when the husband is to return the children to the wife’s residence.
4.9.If the husband is in Victoria for the children’s birthdays and the birthday falls on a non-school day the husband is to spend time with the children as agreed between the parties.
4.10.If the husband is in Victoria for his birthday and this day falls on a school day, the husband shall spend time with the children on his birthday from after school until 7.00 pm when the husband is to return the children to the wife’s residence.
4.11.If the husband is in Victoria on his birthday and this birthday falls on a non-school day, the husband shall spend time with the children until 7.00 pm on this day subject to any of the children’s commitments.
4.12.The husband is to forego any time with the children as provided for in these Orders if such time falls on the wife’s birthday.
4.13.If the husband is in Victoria for Father’s Day, the husband shall spend time with the children on Father’s Day until 7.00 pm or as arranged between the parties subject to any of the children’s commitments.
4.14.The husband is to forego time with the children if any such time in accordance with these Orders falls on Mother’s Day.
4.15.The husband is to make arrangements for the children to attend sporting and social events and any school events during any time he has the children in his care.
5.In the event that the husband relocates to Victoria where the wife and children are also resident, the husband shall spend time with the [C] and [D] (“the children”) as follows:
5.1.During the school term on each alternate weekend from after school on Friday to 4.00 pm on Sunday (“the husband’s weekend”), such time to commence on the first Friday of Term 1.
5.2.In accordance with Order 5.1, when [C] reaches the age of 14 years, the parties will be at liberty to allow the children to travel to the husband by train.
5.3.That during the school term, the husband shall spend time with the children one evening each week as agreed between the parties, from after school until 7.00 pm. The husband will collect the children from school and return them to the mother’s residence, unless otherwise agreed.
5.4.In the event that the husband’s weekend falls on a long weekend including a Monday then the time spent with the children shall be extended to 4.00 pm on Monday.
5.5.The husband shall spend time school holiday time with the children in accordance with Orders 4.5, 4.6.1 and 4.6.2 herein.
5.6.The husband shall spend time with the children on each of their birthdays from after school until 6.00 pm when the husband is to return the children to the wife’s residence.
5.7.If the children’s birthday falls on a non-school day, the husband is to spend time with the children as agreed between the parties subject to the children’s commitments.
5.8.If the husband’s birthday falls on a school day, he shall spend time with the children on his birthday from after school until 7.00 pm when the husband is to return the children to their residence.
5.9.If the husband’s birthday falls on a non-school day, the husband shall spend time with the children until 7.00 pm on this day subject to any of the children’s commitments.
5.10.The husband is to forego time with the children in accordance with these Orders if such time falls on the wife’s birthday.
5.11.The husband is to spend time with the children on Father’s Day until 7.00 pm or as arranged between the parties subject to any of the children’s commitments.
5.12.The husband is to forego time with the children in accordance with these Orders if such time falls on Mother’s Day.
5.13.The husband is to make arrangements for the children to attend sporting and social events and any school events during any time he has the children in his care.
6.[B] is to spend time with the husband at such times as agreed between [B], the husband and the wife and the parties are to do all acts and things to encourage [B] to spend time with the husband in accordance with the arrangements for [C] and [D].
7.That the husband be at liberty to Skype or telephone the children between 4.30 pm and 5.30 pm two nights per week on days agreed between the parties.
8.That the children be at liberty to contact either parent at any times they request and that each party will facilitate such communication.
PROPERTY
9.That forthwith upon the making of these orders the husband do all acts and things necessary to transfer to his sole name or to refinance in his sole name:
9.1.the investment loan account with the Westpac Banking Corporation Account Number … and
9.2.the Overdraft debt in the name of Conrad Consulting Australia being Westpac Loan Account Number …
currently secured over the property known as [F Street, Suburb G] being comprised in Certificate of title Folio Identifier … (“the real property”) and the husband shall procure a release of the wife of any obligation arising by way of guarantee or otherwise given by the wife in respect of such accounts.
10.That simultaneously with the husband’s compliance with Order 9 the husband pay to the wife the sum of $244,000.
11.That the husband and the wife forthwith do all acts and things and sign all necessary documents to effect a sale of the real property including but not limited to:
11.1.Placing the real property on the market for sale by way of public auction with an agreed real estate agent (“the agent”) and failing agreement with an agent as nominated by the President, or his nominee, of the Real Estate Institute of New South Wales at the cost of the husband.
11.2.Execute all documents requested by the agent for the sale of the real property.
11.3.The husband shall be responsible for all payments requested by the selling agent prior to the auction.
11.4.The reserve price for the real property shall be as agreed between the parties and if there is no agreement the reserve price shall be as advised by the agent.
11.5.In the event that the real property does not sell at the first auction then the parties shall make all such arrangements and do all such acts and sign all such documents and the husband pay all monies necessary to sell the property by public auction every four (4) months from the date of the first auction until the property is sold.
11.6.Upon completion of the sale the proceeds of the sale be applied as follows:
11.6.1.firstly, to pay all costs, commissions and expenses of the sale and to pay any council and water rates outstanding in respect of the real property;
11.6.2.secondly, the Westpac mortgage account referred to as the [H Home Loan] with Redraw being account number …;
11.6.3.thirdly, the [K Loan] being the Westpac loan account number …
11.6.4.fourthly, the Line of Credit being the Westpac loan account number …;
11.6.5.the balance then remaining be paid to the wife.
11.7.That pending completion of the sale and subject to the husband’s compliance with Order 9, the husband pay all instalments in respect of:
11.7.1.the Westpac mortgage account referred to as the [H Home Loan] with Redraw being account number 386740
11.7.2.the [K Loan] being the Westpac loan account 037-137 525499
11.7.3.the [L Loan] being the Westpac loan account…;
11.7.4.the Line of Credit being the Westpac loan account …;
11.7.5.the Overdraft debt in the name of Conrad Consulting being Westpac Loan Account …;
11.7.6.all rates and taxes and like outgoings of the real property as they fall due.
12.That in the event the husband fails to make payments pursuant to clauses 11.7.1 – 11.7.6, the amount of such underpayment be paid simultaneously by the Husband to the Wife on completion of the sale of the real property.
13.That the amount payable to the wife pursuant to Order 9 be adjusted to provide that the overall percentage of the parties’ net assets, after the actual sale price and costs of sale of the real estate are taken into account, are divided as to 60 per cent to the wife and 40 per cent to the husband, and the husband pay to the wife within 28 days of the settlement of the sale of the real property such sum as is necessary to ensure such a division or in the alternative the wife pay to the husband such sum as is necessary to ensure such a division.
14.That the wife simultaneously with the husband’s compliance with Order 9 of these Orders do all acts and things and sign all necessary documents to effect a transfer of all her right title and interest in the following to the husband:
14.1.the company known as Conrad Consulting Australia Pty Limited ACN …;
14.2.the [motor vehicle 1].
15.That the husband do all acts and things necessary to procure a release of the wife’s obligations pursuant to a guarantee to Macquarie leasing in respect of the [motor vehicle 2] and thereafter indemnify and keep indemnified the wife in relation to all monies owing to Macquarie Leasing in respect of the [motor vehicle 2], and upon the completion of the sale of the real property the wife make the [motor vehicle 2] available to the husband.
16.That the husband do all acts and things necessary to procure a release of the wife’s obligations pursuant to a guarantee in respect of the lease of premises occupied by the company known as Conrad Consulting Australia Pty Limited ACN … and thereafter indemnify and keep indemnified the wife in relation to all monies owing in respect of the lease of such premises.
17.The husband indemnify and keep indemnified the wife against all or any manner of actions, suits, causes of action, arbitrations, debts, dues, costs, interest and demands whatsoever both at law and in equity which the husband and the company now has or may have at any time or times hereafter against the wife or which may arise in respect of any act or thing done or omitted to be done by the wife including any money owed to Conrad Consulting Australia Pty Ltd or the Conrad Family Trust up to and including the date of making of these Orders whether by reason of the wife having been an employee and/or director and/or officer of the company and/or by reason of the wife’s shareholding within the company and/or any loan account in the wife’s name and/or the receipt by the wife of any moneys at any time from the company or otherwise.
18.The wife be declared the sole legal and beneficial owner of:
18.1.Her superannuation and;
18.2.All items of personal and real property in her possession or of which she is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the wife in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.
19.The husband be declared the sole legal and beneficial owner of:
19.1.His superannuation; and
19.2.All items of personal and real property in his possession or of which he is the registered proprietor as at the date of the making of these Orders, including but not limited to all or any money standing to the credit of the husband in any bank or building society, shareholdings, motor vehicles and any present or future expectation under a trust or estate.

CHILD SUPPORT DEPARTURE
20.That for the period 11 August 2009 until 4 February 2010 the husband’s child support be assessed in the sum of $230 per child per week in respect of the three children of the marriage [B] born … January 1997 (“[B]”), [C] born … August 1999 (“[C]”) and [D] born … August 2004 (“[D]”) (“the children”).
21.That for the period from the date of these orders until 26 August 2022 the husband’s child support be assessed as follows:
21.1.husband to pay to the wife or as she may direct the sum of $230 per child per week;
21.2.husband to pay the children’s independent school fees and expenses as invoiced by the school;
21.3.husband to pay for private health insurance cover for the children;
21.4.husband to reimburse to the wife any gap payment between the cost (and any amount recoverable from either Medicare or the private health insurance) in respect of any medical, dental, orthodontic or related treatment in respect of the children (including but not limited to speech therapy, physical therapy, psychology) such reimbursement to occur within 14 days of receipt by the husband of the invoice;
21.5.husband to reimburse the wife in respect of payments for the children’s additional educational or extra-curricular expenses.

22.That the amount referred to in 21.1 be indexed in accordance with the CPI for the city closest to the children’s home on 1 July each year.
23.That the husband’s obligation to pay amounts pursuant to order 21 cease in respect of each child:
23.1.turns eighteen years of age (provided he or she has completed secondary education);
23.2.permanently leaves Australia;
23.3.obtains employment and becomes self supporting;
23.4.finishes secondary education

whichever first occurs.

SPOUSE MAINTENANCE
24.In the event that the wife is permitted to relocate the children’s permanent residence to [E Town], Victoria, the husband pay to the wife the sum of $500 per week by way of spouse maintenance such maintenance to cease on 1 February 2012.
25.That in the event that the wife is not permitted to relocate the children’s permanent residence outside the Sydney metropolitan area, the husband pay to the wife the sum of $500 per week by way of spouse maintenance, such maintenance pending the acceptance by the wife of a full-time permanent position ...

Costs
26.That the Husband pay the Wife’s costs of and incidental to these proceedings.

The husband seeks the following parenting orders:
1.That the parties have equal shared parental responsibility for the children of the marriage, namely [B], born … January 1997, [C], born … August 1999, and [D], born … August 2004 (“the children”).
2.That the children live with the wife.
3.That the wife be restrained from relocating the residence of the children outside of the Sydney metropolitan area.
4.That the child, [B], spend time with the husband by agreement between the husband and the child [B].
5.That the children [C] and [D] spend time with the husband as follows:
(a)   During school term, in each alternate week from after school Friday to before school the following Tuesday;
(b) During school term, in each other week from after school Tuesday until before school Wednesday;
(c) For one half of all New South Wales school holiday periods as agreed between the parties, failing agreement for the first half of each school holiday period in those years ending in an even number, commencing 5.00pm on the last day of school term and ending 5.00pm on the middle day of the school holiday period, and for the second half of each school holiday period in those years ending in an odd number, commencing at 5.00pm on the middle day of the holiday period and ending at the commencement of the first day of the following school term;
(d) From 4.00pm Christmas Eve until 4.00pm Christmas Day in each year ending in an even number and from 4.00pm Christmas Day until 4.00pm Boxing Day in each year ending in an odd number;
(e) In the event that Father’s Day does not fall on a weekend when the children are spending time with the Father, then from 5.00pm on the Saturday immediately preceding Father’s Day until 5.00pm on Father’s Day; and
(f)   At any other, additional or alternative time by agreement between the parties.
6.That the children live with the wife at all times that they are not spending time with the husband, including:
a)   In the event that the children are spending time with the husband pursuant to these Orders on Mother’s Day, then from 5.00pm on the Saturday immediately preceding Mother’s Day until 5.00pm on Mother’s Day.
7.That the parties do all acts and things necessary to ensure that the children attend extra-curricular activities that are agreed upon between the parties whilst they are in the care of either of them respectively pursuant to these Orders.
8.That in the event that either parent has a significant or special event such as a family gathering, christening, wedding or other special event, then that party shall give notice to the other party of his or her desire for the children to spend that time with him or her and attend the event and the parties may vary the time that the children are to live with each of them so as to permit the children to attend that event.
9.That each party shall authorise the children’s schools to provide copies of school reports, newsletters, notices and all other school communications to each of them and that that party be at liberty to attend all school functions and activities at which the attendance of parents is permitted or required.
10.That each of the parties be restrained from saying anything to or in the presence of the children which is any way abusive, belittling or demeaning of the other parent and, further, is restrained from allowing any other person to say anything to or in the presence of the children which is any way abusive, belittling or demeaning of the other parent.
In the course of his cross-examination on behalf of the Independent Children’s Lawyer (ICL) the husband was asked about his proposals in the event that he was not successful with his primary application and the wife was permitted to relocate the children to E Town. He framed his proposal in terms of the wife’s proposal and the effect of his evidence was that he would like to see the children from after school on Friday to Sunday night every second weekend with the option of two out of three weekends at his election. That time would be exercised in Melbourne. He seeks one half of the school holidays. That time could be exercised in Sydney or elsewhere.
The husband seeks the following financial orders:
1.That within 42 days of the date of these Orders, the parties do all acts and things and sign all documents necessary to sell the property at [F Street, Suburb G] (“[the Suburb G property]”) in accordance with the following terms and conditions:
(i)Unless otherwise agreed, the property shall be listed for sale by private treaty with an agent or agents as agreed by the Husband and Wife in writing and failing agreement with an Agent as nominated by the President, or his nominee, of the Real Estate Institute of New South Wales (“the Agent”);
(ii)the listing price of the property shall be as agreed between the parties and if there is no agreement it shall be as recommended by the Agent;
(iii)the solicitors instructed to act on the sale of the property shall be as agreed between the parties, failing agreement the parties shall instruct a solicitor appointed by the Law Society of NSW practising in the [Suburb G] area;
(iv)in the event that Contracts for Sale of the property have not exchanged by or before a date three (3) months from the date of these Orders, then the parties shall unless otherwise agreed make all arrangements and do all such actions and sign all such documents necessary to procure a sale by public auction of the property upon the following terms:
(a)the auctioneer shall be as agreed by the Husband and Wife in writing and failing agreement as nominated by the selling agent;
(b)the auction shall take place within four (4) months of the date of these Orders;
(c)the reserve price shall unless agreed upon between the parties be as proposed by the Agent;
(d)the parties shall equally pay and be responsible for payment of all auction expenses payable before the property is auctioned; and
(e)that in the event that the property does not reach reserve price at the auction, the parties shall negotiate with the highest bidders or any such interested persons and effect the sale of the property at a selling price as agreed between the parties, or failing agreement the parties shall accept the recommendation of the Agent and/or the Auctioneer as to the selling price of the property and shall sell the property at that price, provided that the selling price is not less than 90 per cent of the reserve price.
(v)In the event that the property is not sold by auction or by private negotiation within fourteen (14) days after the said auction then the parties shall do all acts and sign all necessary documents and pay all moneys as necessary to procure a second auction within a further five (5) weeks of the date otherwise upon the same terms and conditions as applied to the first auction
2.That upon completion of the sale of the [Suburb G] property, the proceeds of sale be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale and to pay any Council and water rates and maintenance levies outstanding in respect of the property;
(b)secondly, to pay the mortgage balance then outstanding to the Westpac Banking Corporation in respect of all mortgages and loan/investment facilities secured over the [Suburb G] property ;
(c)thirdly, in payment to the wife of 50 per cent of the balance then remaining, less the lease payout in respect of the [motor vehicle 2], in accordance with Order 17, below;
(d)fourthly, in payment to the Wife of a sum that is equivalent to 50 per cent of the parties’ combined total superannuation entitlements after deduction of the Wife’s Public Sector Super Scheme entitlements and the Colonial First State First choice Personal Super entitlements;
(e)fourthly, in payment to the husband of the balance then remaining.
3.   That within 7 days of the date of Order, the Wife do all acts and things and sign all documents necessary to transfer to the Husband all her right title and interest in the [motor vehicle 1].
4.   That on the 1^st August 2015, in the case of the [L investment], and 1 January 2020 in respect of the [M investment], or at any other alternative time by agreement between the parties, the parties do all acts and things and sign documents necessary to sell the following investments:
(i)[L investment]; and
(ii)[M investment]
5.That upon sale of the investments referred to in Order 13 above, the net proceeds thereof after selling costs be divided equally between the parties.
6.That within seven days of the date of settlement of the sale of the [Suburb G] property, the husband pay to the wife a sum equivalent to 50 per cent of the value of assets, as at the date of settlement of the sale of the [Suburb G] property, of the Estate of the Late [Mrs O Conrad].
7.That within twenty eight (28) days of the date of Order, the parties do all acts and things and sign all documents necessary as directors of [Conrad] Consulting Australia Pty Limited to pay out and discharge the Lease liability in respect of the motor vehicle 2 in the Wife’s possession and thereafter to transfer to the wife all its right title and interest in the motor vehicle 2.
8.That within twenty eight (28) days of the date of Order, the wife do all acts and things and sign all documents necessary to resign as director of [Conrad] Consulting Australia Pty Limited (“[Conrad Consulting]”) and to simultaneously transfer to the husband all her shareholdings in [Conrad Consulting].
9.That as and from the date of these Orders, the husband indemnify the wife and keep her indemnified in relation to any and all liabilities associated with [Conrad Consulting].
10.That simultaneously with the settlement of the sale of the [Suburb G] property pursuant to these Orders, the husband pay to the wife a sum equivalent to 50 per cent of the value of [Conrad Consulting] and the [Conrad] Family Trust pursuant to either the agreed value of [Ms P and Ms Q], failing their agreement in accordance with the value of those entities determined by the Court.
11.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or subsequent Orders, the wife retain and be declared to be the sole legal and beneficial owner of all her right, title and interest in and to:-
(a)All cash at bank and other moneys invested by her;
(b)All shares registered in her name;
(c)All personal effects in her possession;
(d)Her [motor vehicle 1];
(e)Her superannuation entitlements; and
(f)All other personal and real property in her possession, custody or control as at the date of these Orders.
12.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or subsequent Orders, the husband retain and be declared to be the sole legal and beneficial owner of all his right, title and interest in and to:
(a)       All shares registered in his name;
(b)       All cash at bank and other moneys invested by him;
(c)       All personal effects in his possession;
(d)        His superannuation entitlements;
(e)All other personal and real property in his possession, custody or control as at the date of these Orders
13.That in the event that the husband or wife refuses or neglects to comply with any of the provisions of these Orders within 7 days of a document being forwarded to either of them for their completion, a Deputy Registrar or a Registrar or other Officer of the Family Court of Australia at Sydney be appointed pursuant to Section 106A(1) of the Act, to execute all such deeds and documents in the name of the defaulting party and to do all acts and things necessary to give validity to the said Orders.
14.That the Registrar or Deputy Registrar or other Officer is authorised to execute any such necessary instrument upon being satisfied by Affidavit that refusal, neglect or default, as the case may be, has occurred.
~~Child Support Orders~~

~~15.~~ That there be a departure from the administrative assessment of child support, pursuant to Division 4 of the Child Support (Assessment) Act, 1989, payable by the Husband for the children, on the basis of sub-paragraph 117(2)(c)(ii) of the Child Support (Assessment) Act, 1989 to the effect that the annual rate of child support to be paid by the Husband to the Wife be varied as follows:

~~(a) for the period from the commencement of the administrative assessment to 15 December 2011: to an annual rate of child support of $0.00;~~

(b) for the period 16 December 2014 and thereafter until each child attains the age of 18 years of age: to an annual rate calculated in accordance with Part 5 of the Child Support (Assessment) Act 1989 (as amended).

16.That all previous Orders be discharged.
17.That the Wife pay the Husband’s costs of and incidental to these proceedings.

During the course of final submissions the husband’s counsel said that her instructing solicitor would provide to my associate a revised minute of the orders he seeks in relation to child support and spousal support. On 7 October 2011 the husband’s solicitor forwarded to my associate an email containing the following orders sought on behalf of the husband:
Child Support

1.         That there be a departure from the administrative assessment of child support for the three children of the marriage, [B] born … January 1997, [C] born … August 1999 and [D] born … August 2004 (“the children”) as follows:
1.1       For the period from the date of Order until the youngest child attains the age of 18 years or completes his secondary school education, whichever is the later, periodic child support based upon the usual provisions of Part 5 of the Child Support (Assessment) Act 1989, to the effect that the assessment is based upon each party’s annual income in each relevant child support period, subject to Order 2 below.
1.2       For the period from the date of Order until the end of the 2011 academic year, the Husband do all acts and things and sign all documents necessary to pay direct to the relevant schools the children’s tuition and associated fees at [R School] (in the case of the child [B]) and [S School] (in the case of the child [D]) from joint funds.
1.3       For the period from the date of Order until the youngest child attains the age of 18 years or completes his secondary school education, whichever occurs later, and by way of non-periodic child support, the Husband pay direct to the parties’ current or agreed private health insurer half of the monthly health insurance subscriptions relating to the private health insurance covering the children.
1.4       For the period from the date of Order until the youngest child attains the age of 18 years or completes his secondary school education, whichever occurs later, and by way of non-periodic child support, the Husband pay direct to the relevant provider, within 7 days of production of invoices by the Wife, half of any gap payment between the invoice and the private health insurance rebate in relation to any treatment received by the children.
1.5       That for the period from 1 January 2012 until the youngest child attains the age of 18 years or completes his secondary school education, whichever occurs later, the Husband pay by way of non-periodic child support direct to the school agreed between the parties, half of the children’s tuition fees.
1.6       That for the period from the date of Order until the youngest child attains the age of 18 years or completes his secondary school education, whichever occurs later, and by way of non-periodic child support, half of any gap costs associated with treatment that may be received by the child [D] in relation to educative special needs.
2.         That for the purposes of Order 1.1 above, the Wife must, immediately upon attaining employment, do all acts and things and sign all documents necessary to forthwith advise the Child Support Agency in writing of her annual rate of income from employment and the Child Support Agency shall thereafter apply that annual rate of income to the assessment process under Part 5 of the Child Support (Assessment) Act so that the assessment from the date of commencement of the Wife’s employment is based upon her annual rate of earnings, until such time as the Wife’s taxable income reflects a 12 month period of earnings.
Property/maintenance
3.         That pending the settlement of the sale of the marital property at [F Street], [Suburb G] (“[Suburb G]”), the Husband apply joint funds to the payment of the following expenses relating to [Suburb G]:
3.1       all installments in relation to the three Westpac loan facilities secured over [Suburb G];
3.2       all water and council rates and insurances as and when due in relation to [Suburb G];
3.3       all [motor vehicle 1] expenses, including lease payments.
4.         That the payments made by the Husband pursuant to Orders 1.2 and 3 above be deducted from the asset pool prior to distribution by the Court of the assets of the parties in the proportion determined by this Honourable Court.
5.         That the Wife be permitted to draw from the capital of the parties such sum as she may in writing direct to the Husband, and the Husband shall, upon such written election by the Wife, pay to the Wife such sum or sums, provided that the sums so drawn by the Wife are deducted from her share of the distribution of the assets of the parties determined by this Honourable Court.

The Independent Children’s Lawyer seeks parenting orders in general terms, in accordance with her Case Outline document, as follows:
1.That all previous parenting orders in relation to the children, [B], born … January 1997, [C], born … August 1999 and [D], born … August 2004 ("the children"), be discharged.
2.That the mother and father have equal shared parental responsibility for the children.
3.That the children live with the mother.
4.That the mother be permitted to relocate the children's residence to within a 20 km radius of [E Town], Victoria.
5.That [B] spend such time and have such communication with the father as may be agreed between [B] and the father.
6.In the event that the father lives in Sydney, [C] and [D] shall spend time with the father as follows:
(a)   In Sydney on one weekend during each school term from Friday evening until Sunday evening (or Monday evening if it is a long weekend).
(b) In Melbourne on up to two weekends during each school term from Friday after school until Sunday evening (or Monday if it is a long weekend), subject to the father providing the mother with at least 21 days’ notice of his intention to travel to Melbourne.
(c)   For half of each school holiday period in 2012 (including the Christmas 2012 holidays).
(d) Commencing at the end of Term 1 2013:
i.For half of the holidays at the end of Terms 1 and 4.
ii.From the last day of Terms 2 and 3 until the evening of the second Sunday of that school holiday period.
(e)   At other times by agreement between the parents.
7. In the event that the father lives in Melbourne, [C] and [D] shall spend time with the father as follows:
(a)   On each alternate weekend from after school on Friday until 6 pm on Sunday.
(b) For half of each school holiday period.
(c) At other times as agreed between the parents.
8. That each parent do all acts and things necessary to ensure that they have the facilities and equipment necessary for the children to communicate with the other parent by skype.
9. That each parent ensure that the children are at liberty to communicate with the other parent by telephone, email and skype at all reasonable times when they are not in the other parent's care.
In the course of oral submissions Ms Shea for the ICL said that the ICL would support the husband having every alternate weekend with the children and provision for him to have 2 out of 3 weekends but not all the time. As the children have not spent more than 5 nights with him in a row, it is submitted for the ICL that the holiday times should be in the form of one week and one week in 2011; one week and then 10 days in 2012 and half the holidays in 2013. I take it that the ICL intends by that to cause the children to spend two separate periods of one week with the father in the 2011 Christmas school holidays, one period of one week and one period of 10 days in the 2012 holidays and from 2013 that it be one half of the school holidays.

Documents read

The wife on the following documents:
Affidavit of Ms Conrad filed 29 June 2011
Affidavit of Ms T filed 29 June 2011
Affidavit of Mr U filed 29 June 2011
Affidavit of Prof V filed 29 June 2011
Affidavit of Ms P filed 3 August 2011
Financial Statement of Ms Conrad filed 29 June 2011
Joint report Ms P/Ms Q filed 2 August 2011
The husband relied on the following documents:
Amended response filed 29 July 2011
Affidavit of the Husband sworn 29 July 2011
Financial Statement of the Husband sworn 29 July 2011
Affidavit of Ms Q sworn 8 December 2010
Joint Memorandum of Experts in relation to valuation of business dated 1 July 2011
Affidavit of Ms W sworn 28 July 2011.
The following single expert evidence was read:
Family Report dated 18 November 2010
Children and Parents Issues Assessment dated 1 February 2010 (unsworn but read by consent)

Short history

The wife was born in 1969 and, as at the date of hearing, she was 42 years of age. The husband was born in 1958 and as at the date of hearing, he was 53 years of age. The parties married and commenced cohabitating in 1994. They finally separated on 20 December 2008.

Children

There are three children of the marriage:
Bwho was born in January 1997 and as at the date of the hearing was 14 years of age;
C
who was born in August 1999 and as at the date of the hearing was 12 years of age; and
Dwho was born in August 2004 and as at the date of hearing was 7 years of age.

Disputed facts

The wife contends that the issues are as follows:
Parenting
1.   The significance of the relationship between the husband and B to the parties’ proposed orders sought;
2.   The relationship between the children C and D and each of his/her parents.
3.   The capacity of the parents to facilitate the children’s relationship with the husband:
-if each is living in Sydney;
           -if each is living in Victoria;
           -if the wife and children live in Victoria and the husband in Sydney.
4.        The reasonable practicability of each parties parenting proposal.
           -where will the children live?
           -where will they attend school?
           -how will contact occur?
5.   The children’s views and any matter which may impact on their weight.
Property
Pool
1.The value to be attributed to the parties’ interest in Conrad Consulting and the Conrad Family Trust.
2.The value of the former matrimonial home (although both parties seek sale)
3.Whether the pool should be increased through the addition of notional assets (being monies expended by the husband unnecessarily and not accounted for from capital since separation).
4.The characterisation of the husband’s interest in his mother’s estate.
Contributions
5.The weight to be attributed to each parties’ initial contributions;
6.The weight attached to any contributions during the marriage;
7.The significance of the wife’s contributions post separation;
8.The parties’ respective contributions to the husband’s mother;
Section 75(2) matters
9.The children’s ages and living arrangements;
10.Child support being paid, to be paid;
11.The husband’s earning capacity compared with that of the wife;
Child Support
1.        Amounts due to be paid in respect of arrears;
2.        The children’s needs (educational, medical);
3.        The parties’ capacity.
Spouse Maintenance
1.The wife is currently a full time student.
2.The wife has not current access to income or capital.
3.The wife hopes to obtain employment on or about 1 February 2012.
4.The wife requires funds to meet expenses until such time as she has steady income and/or capital.
5.The husband has greater income and access to liquid assets.

Background facts

The following facts almost exclusively come from an agreed chronology provided to my chambers under cover of an email dated 9 September 2011.
The husband was born in 1958.
The wife was born in 1969.
In 1982 the husband commenced employment at X Pty Ltd and contributions to superannuation. He also commenced to accrue entitlement to long service leave.
In March 1982 the husband purchased the property at Y Street, Suburb Z.
In January 1988 the husband purchased the property at AA Street, Suburb BB.
The husband moved to Melbourne for employment.
On 28 May 1993 the husband purchased CC Street, Suburb DD off the plan for $235,000 and paid a deposit of $23,500.
On 8 November 1993 the husband sold Y Street, Suburb Z and received net $115,193. The wife contends that the husband did not bring the whole amount to the marriage.
The parties married in 1994 and started living together.
The parties resided with the wife’s father rent free for approximately two (2) months.
In June 1994 the CC Street purchase completed. The wife contributed $43,783 from the sale of a previously owned property; the husband provided $88,630 from the sale of Suburb Z and the parties borrowed $79,028 on a mortgage in joint names. The husband’s employer paid the conveyancing costs and stamp duty.
As at May 1995 the husband’s superannuation withdrawal benefit was $100,000 net.
In January 1997 B was born.
In January 1997 the husband sold AA Street, Suburb BB and received net $84,000. He applied those funds to pay out the mortgage on CC Street. The wife asserts that the figure was agreed to be $66,792.
In May 1997 the parties moved to Sydney so the husband could take a position as a Manager for X Pty Ltd. X Pty Ltd paid $15,000 relocation costs. The wife says that the husband moved two (2) months earlier while she remained in Melbourne with B.
In July 1997 the CC Street property sold for $265,000 (unencumbered).
In November 1997 the parties purchased F Street, Suburb G for $694,000. The purchase was financed by the proceeds of sale of CC Street, savings and a mortgage of $320,000. X Pty Ltd agreed to pay 90 per cent of the interest in the first year, 80 per cent in the second year, 70 per cent in the third year, 60 per cent in the fourth year. The wife says she does not know the facts alleged by the husband.
The parties commenced major renovations. The wife says she managed the renovations and performed some tasks herself.
In August 1999 C was born.
In August 2001 the husband was made redundant from X Pty Ltd. He received a redundancy payment for 19 years of employment (12 before marriage) of $192,200 net. He also withdrew superannuation of $72,223. The total redundancy payment of $264,423 included a component for interest on the house mortgage. The redundancy payment was applied to reduce the mortgage on the home. The wife says she does not know where the superannuation moneys of $72,223 were deposited or how they were used.
On 5 December 2001 the parties incorporated Conrad Consulting Australia Pty Limited (Conrad Consulting). Both are shareholders and directors. The husband commenced a consulting business. The wife assisted with book keeping, administration and banking.
In May 2002 an informal arrangement was settled with Ms EE of “FF Pty Ltd” in recruitment.
In June 2003 the husband’s mother went into aged care. She appointed the husband as her attorney. The husband borrowed $120,000 on the security of his mother’s home to provide security deposit of $110,000 and $10,000 to renovate her home so it could be rented. The parties used $20,000 of the husband’s mother’s money for their own expenses including the purchase of a necklace for the wife for $10,000.
The husband said and the wife disputes that the parties used a total of $30,000 of his mother’s money.
In 2004 following an incident one evening when the wife consulted parties’ church minister, the husband was referred to Dr GG, Psychiatrist and was diagnosed with depression and anxiety.
On 6 April 2004 a formal joint venture was established between Conrad Consulting and FF Pty Ltd. The husband and wife set up the Conrad Family Trust. The trustee of the trust is Conrad Consulting.
In August 2004 D was born.
On 12 & 13 February 2007 the wife’s mother deposited a total of $10,000 (in two payments) into the parties’ bank account.
On 6, 7, 9, 13 August 2007 the wife’s mother deposited $20,000 (in four payments) into the parties’ bank account.
On 4 December 2007 the wife’s mother deposited $1,000 into the parties’ bank account.
On 31 December 2007 the wife’s mother deposited $2,500 into the parties’ bank account.
In 2008 the wife’s mother loaned Conrad Consulting $50,000 to pay out business partner, Ms EE. The loan was repaid with interest.
On 20 December 2008 the parties separated. The wife stayed in Melbourne with the children and later returned to Sydney.
The husband says that in January 2009 the husband’s relationship with B began to deteriorate. By late January B refused to spend time with the husband. The wife does not agree with the husband’s contention.
On 3 March 2009 the husband leased HH Street, Suburb II.
The husband says that in April 2009 the parties and B commenced counselling with Ms JJ. The wife does not know the date.
In June 2009 the parties jointly approached a bank for an increase in their loan facility to meet living expenses. The redraw facility was increased from $90,000 to $250,000. The wife prepared a budget for the bank indicating that the redraw of $160,000 would be sufficient to pay their expenses until September 2010. The wife managed the redraw money.
The wife contends that the budget was prepared prior to separation and did not include all relevant costs required post-separation. The wife also contends that she was not solely responsible for the management of the redraw money, that it was a responsibility shared between the parties.
The husband says that in July 2009 his time with the younger children was restricted to day time during school term and limited overnight during holidays.
In August 2009 the wife applied for an administrative assessment of child support.
On 22 August 2009 the husband’s mother died. The husband inherited $453,000 net according to the Probate documents. The wife says it was approximately $611,000. The principal asset was the mother’s home at Suburb KK. The children did not attend their grandmother’s funeral. The wife says the husband raised his disappointment over this issue with the children.
The wife says that on 28 August 2009 the husband was distressed and slurring his speech during telephone conversation with her.
In September 2009 the wife told the husband that she wanted to move with the children to E Town in rural Victoria. The wife contends that she advised the husband in or about June 2009.
On 3 September 2009 the husband did not exercise time with children as he told wife he was “not coping well”.
On 5 September 2009 B sent the husband an email.
On 14 September 2009 the husband was hospitalised for a week.
On 20 September 2009 the wife says that D reported that the husband cried during contact.
In October 2009 the wife says that the husband discussed living in Victoria and re-establishing contact with Victorian employee, Ms LL.
On 8 December 2009 the wife’s application was listed before the Family Court. The following orders were made:
IT IS ORDERED
1.That the parties attend a Child Dispute Conference at times and dates appointed by the Manager, Child Dispute Services.
IT IS NOTED
2.That the mother has an interim application seeking to re-locate the children to Victoria.
3.It is the Court’s view the determination of that issue is in effect a determination of a final issue between the parties.
IT IS FURTHER ORDERED
4.Leave to the parties to approach the Listing Manager for hearing an application for re-location, estimated hearing time 1 day before a Judge AND if practicable the parties require a hearing and determination of that issue comfortably prior to the commencement of the 2010 school year.
5.By consent orders are made in terms of the document titled “Minute of Proposed Consent Orders” marked Exhibit 1 and attached hereto.
6.Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children [B] born … January 1997, [C] born … August 1999 and [D] born … August 2004.
7.Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.
8.The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of Legal Aid New South Wales of this order within 24 hours.
9.Each party make available to Legal Aid New South Wales, within 14 days, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.
10.That the parties facilitate the attendance upon their representative of the children at times, dates and places requested by the representative.
11.Leave to the husband to attend by telephone at the Case Assessment Conference Financial on 19 January 2010.
12.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

The husband says he then became aware that all but $11,000 of the redraw of $160,000 had been spent. The wife contends that her expenditure was applied to the living expenses for herself and the children and that the husband was responsible for spending more than half of these funds.
In later 2009 the parties and B consulted with Ms JJ.
The wife says that on 28 January 2010 the husband looked and smelled unwashed when he attended for D’s first day of school.
On 4 February 2010 orders were made by Cohen J in terms of the parties’ agreement as follows:
PARENTING ORDERS
1.   That all previous parenting orders be discharged.
2.   That the Mother and the Father have equal shared parental responsibility for the children:
a.     [B] born … January 1997;
b.     [C] born … August 1999; and
c.     [D] born … August 2004.
3.   That the children live with the Mother.
4.   That the child [B] spend time with the Father as times agreed between [B] and the Father.
5.   That the children [C] and [D] spend time with the Father as follows:
a.     During school term, each alternate weekend from 9am Saturday to 5pm Sunday commencing 13 February 2010 and recommencing on the first weekend of each term and with such times to commence at 8am during the Cricket Season;
b.     During school term, each Tuesday from after school to 6.30pm with the Father to provide the children with homework supervision and provide the children's dinner;
c.     For a number of four consecutive nights in the Terms 1, 2 and 3 school holiday periods as agreed between the parties and failing agreement from 9am on a day to be nominated by the Father to 5pm on the fifth day but provided that the Mother's time coincides with university holidays as best as can be arranged;
d.     In 2010 from 10am 20 December 2010 to 10am Christmas Day with the Father to deliver the children to the Mother at the Sydney Airport;
e.     From 9am the Saturday before Father's Day to 5pm on Father’s Day;
f.     For an agreed period on each of the children’s birthdays;
g.     For an agreed period on the Father’s birthday;
h.     At such other times as agreed between the parties.
6.   That the children [C] and [D’s] time with the Father be suspended on the weekend of Mother’s Day but in substitution the children spend time with the Father the following weekend, and also be suspended from 9am on 14 March 2010.
7.   That each party notify the other, as soon as possible and in any event, within 24 hours, of any serious injury or illness suffered by the children or any of them whilst in the care of that party.
8.   That each party notify the other, not more than 24 hours after any change to their residential address and/or landline and/or mobile telephone numbers and/or email addresses.
9.   That neither party shall discuss these proceedings in the hearing or presence of the children or any of them.
10. That the Mother and the Father are hereby restrained from consuming alcohol to the extent that would produce a blood alcohol reading equivalent to or in excess of 0.05 while the children or any of them are in their care or for 6 hours prior.
11. That the Father shall keep all medication prescribed for him in a safe location inaccessible to the children.
12. Each parent notify the other of the address and telephone numbers of the place where the children will be staying during holidays spent away from their residence, not later than 48 hours prior to the commencement.
13. That either parent be at liberty to attend such occasions significant to the welfare of the children being occasions related to education, sporting activities, health or recreation or such other significant occasions where the attendance of either or both parents is to be reasonable expected.
FINANCIAL SUPPORT ORDERS
14. That pending further order and without admission, the Father procure payment to the Mother by way of financial support the sum of $1,200.00 per week first payment within seven (7) days from this date with such payment to be paid to a bank account nominated by the Mother and the Court notes that the Mother agrees that any amount assessed by way of child support will be satisfied in full by the Father's payments under this Order.
15. That the Father be restrained from making payments to the Mother pursuant to Order 14 or otherwise in relation to his obligations under the Orders made herein by way of distribution of Trust income from the [Conrad] Family Trust.
16. That the Father procure payment of invoiced school tuition fees for the children of the marriage as they fall due and payable and pay reasonable expenses incurred in relation to the children's school books, uniforms and stationery and otherwise such other expenses in relation to the children's education as the parties may agree.
17. That the Father procure payment of:
a.            Mortgage payments, council rates, water rates and house and contents insurance in relation to the matrimonial home at [F Street, Suburb G] as they fall due and payable;
b.            Lease payments, scheduled servicing expenses, insurance and registration in relation to the [motor vehicle 1] presently used by the Mother;
c.            Family Health Insurance cover at the present level together with any non-rebateable shortfall or other expense in relation to medical and dental expenses incurred in relation to the children of the marriage and ensure the Mother receives the rebated expenses if she is the parent who paid the account provided always that the Mother shall consult with the Father in relation to any such proposed expense which is not substantially rebateable and in relation to specialist medical or dental treatment confer with the Father prior to the making of any such appointments and advice the Father in a timely manner of any such appointments made so as to facilitate his attendance should he wish;
d.            Premiums in relation to ING Life Insurance Policy … as they fall due and payable;
e.            All payments in respect to any loan in relation to which the Mother is a guarantor;
f.            Personal income tax liability as assessed for the Mother and the Father in relation to the financial year ended 30 June 2009;
g.            Any outstanding accounts payable to MM Accountants up to and including work done to date.

I certify that the preceding four hundred and thirty nine (439) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan.

Associate:

Date: 28 October 2011

[2011] FamCA 832

Key Legal Topics

Areas of Law

Family Law

Property Law