DANSON & DANSON - [2015] FamCA 1167

FAMILY COURT OF AUSTRALIA

DANSON & DANSON

[2015] FamCA 1167

FAMILY LAW – CHILDREN – Best Interests – International Relocation – Where the parties agreed to consent orders at the trial which allow the children to relocate to the USA with their mother – Where the only issue to determine is the time the children spend with the father.

FAMILY LAW – CHILD SUPPORT – Application for departure – Where the mother seeks non-periodic child support in addition to the payment of any assessment of periodic child support – Where the mother has already sought a departure from a child support assessment through administrative review – Where she now seeks a departure from this Court – Where the father seeks an order that the mother’s application be dismissed – Whether the facts create an estoppel such that the mother’s application to this Court is an abuse of process justifying its dismissal.

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where the husband seeks an equal division of the property pool – Where the wife seeks a 70:30 division in her favour – Where the wife made a greater initial contribution – Where the parties contributed equally during their marriage – Whether a further adjustment should be made in accordance with the s 75(2) factors.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Danson

RESPONDENT:

Ms Danson

FILE NUMBER:

BRC

10735

2013

DATE DELIVERED:

22 December 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24, 25, 28 & 29 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page of Queen’s Counsel

SOLICITOR FOR THE APPLICANT:

Damien Greer Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele of Counsel

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

Parenting

That in addition to the time the children, L born … 2000 and T born … 2004 (“the children”), are to spend with the father pursuant to the Order of this Court of 6 October 2015, they shall also spend time with him as follows:
(i)From 9:00 am on Wednesday, 23 December 2015 until 4:00 pm on Christmas Day, 2015;
(ii)From 10:00 am on Boxing Day, 26 December 2015 until 11:00 am on Wednesday, 30 December 2015;
(iii)During the second half of their State X Christmas school holidays in even numbered years, provided that time is spent with the father in the United States of America;
(iv)During such times when the father may be in City Y, State X outside the State X summer and Christmas school holiday periods, on the giving of at least three weeks’ notice in writing to the mother, for a full week, with the father to ensure that they attend school during that week if it is during school term and, if the father is staying for longer than a week, then from the second week onwards, from after school or 4:00 pm Thursday until 5:00 pm the following Sunday in each subsequent week the father spends in State X on such visits.

Child Support

That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the father shall provide child support to the mother for the children otherwise than in the form of periodic amounts, more particularly, in the following forms:
(a)The sum of $18,336 for school fees charged by A School, Brisbane, for the second semester of 2014;
(b)The sum of $5,200 for school fees charged by B School, Brisbane for the 2015 school year;
(c)Upon receipt by the father from the mother of proof that private school fees for the children’s education in State X exceeding these amounts he is required to pay are being incurred then:
(i)Whilst the child L is at high school and the child T is at primary school, an amount that is 64% of the total of the actual school fees charged for each calendar year up to a maximum of A$16,000;
(ii)Whilst the children are both attending high school, an amount that is 64% of the total of the actual school fees charged for each calendar year up to a maximum of A$20,000;
(iii)Whilst only the child T is at high school, an amount that is 64% of the total of the actual school fees charged for each calendar year up to a maximum of A$10,000;
(d)Upon receipt by the father from the mother of proof that private health insurance premiums are payable, then annually, an amount that is 64% of the costs of private health insurance cover for the children at the same level of cover that the mother and father had in place for the children during their marriage;
(e)Upon receipt by the father from the mother of proof of payment by her, an amount that is 64% of any medical and dental expenses incurred for the children that are not covered by the private health insurance, such payments to be made by the father within 28 days after receipt of proof of payment.
That the annual rate of child support payable by the father under the administrative assessments for the child support periods 1 July 2014 to 31 December 2014, 1 January 2015 to 31 December 2015 and any future periods is not to be reduced by the child support ordered to be paid by the father pursuant to order (2) hereof.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10735 of 2013

Mr Danson

Applicant

And

Ms Danson

Respondent

REASONS FOR JUDGMENT

The parties to these proceedings, Mr Danson (“the father”) and Ms Danson (“the mother”), were married in 1994. They finally separated in June 2013 and their marriage was dissolved by decree nisi pronounced on 28 January 2015. They have two children, L, aged 15 and T, aged 11.
After their separation, they were unable to agree on parenting arrangements and property division and proceedings were commenced by the father in this Court in December 2013. Nearly two years later, the matter came to trial before me over four days from 24 – 29 September 2015.
The biggest single issue dividing the parents about their parenting was the mother’s proposal to move from Brisbane with the two girls and to take up residence with them in City Y, State X in the USA – the place where she was born and grew up.
After all the evidence was concluded and submissions were about to commence, senior counsel for the father informed the Court that the father would consent to certain parenting orders that meant the Court would not have to determine much of the parenting dispute. The Court was informed the father agreed to the children going to live with the mother in the USA and the mother being given sole parental responsibility for the children, subject to consultation with him about decisions relating to their long-term care, welfare and development.
On 6 October 2015, I made some parenting orders with the consent of the parties, in terms that had been agreed between the parties and sent to the Court. A copy of those parenting Orders is attached to these reasons for judgment marked “A”.
Those orders provided for the children to relocate to the United States after Christmas this year. At the time, the terms were sent to the Court, it was said the mother intended to depart Australia with the children on 31 December 2015.
The Court was also informed by correspondence, jointly signed by the solicitors for the parties, that the only parenting issues that remained in dispute between the parties that required determination by the Court were:
(i)The time the children shall spend with the father in school holidays prior to their departure from Australia;
(ii)The time the children shall spend with the father in the event that he is visiting or otherwise present in the USA; and
(iii)The time the children shall spend with the father in their Christmas school holidays during even numbered years, and where that should take place, if at all.
In addition to those remaining parenting issues, child support issues and appropriate property adjustment as between the parties are also to be determined.

Some Background

The father is a 50 year old Australian man of European descent. He is a scientific profession. The mother is a 50 year old north American woman of European descent. She also holds Australian citizenship. She is a scientific professional.
The parties met in State X in the United States of America in 1993 when the father was there working. After they married, they moved to Australia to live in Sydney in November 1994.
The father’s career, which the parties consensually prioritised to that of the wife, took them to live in Indonesia, then Canberra, with the father travelling to many Asian and Pacific countries for work in the early years of their marriage.
In 2000 the parties’ first child, L, was born. When L was just a few months old, the parties moved to south-east New South Wales and the father travelled overseas for work.
For approximately three years between 2001 and 2004 the parties and L lived in the United Kingdom and the father completed post-graduate studies as well as travelling to the Middle East for work. Before T was born the parties moved back to Australia to live in Canberra.
The two girls, like their mother, have dual citizenship of the United States of America and Australia. They have travelled many times to the United States of America in their lives so far.
Whilst the father travelled extensively for work, as well as living away from home at remote locations for lengthy periods of time during the parties’ relationship, the mother was the parent principally responsible for caring for the two children. In the later years of their marriage, in addition to her principal parenting role, the mother also worked in part-time employment.
The family relocated to live in Brisbane in 2012, but unhappy differences between the parties led to the breakdown of their relationship in 2013 and final separation later that year.
The evidence, including expert family assessment by an experienced social worker, about the children’s parental attachments and their relationships with their mother and father reflected the reality of their parenting in a family where parental roles prior to the separation of the parents were consensually framed around the practicalities of a largely physically absent father and a mother who bore the parenting responsibility in his absence. That, of course, is not said to suggest that the father does not have the deepest of love for his daughters or that he does not crave ongoing, meaningful relationships with them.
The children remained living with the mother after separation and the father’s relationships with them, particularly with L, have been somewhat troubled. Indeed, for months leading up to the trial, L was not spending any time with the father and rarely communicating with him. At the same time though, T was spending time with him from after school Thursday until 5:00 pm Sunday each alternate week during school term, and overnight on Thursdays in the other week and for half of the school holidays.
The mother quite desperately wished to return to live in City Y, State X where she has been promised employment in her professional capacity as a scientific professional again. Not unreasonably, she also seeks to reconnect with her family of origin, most members of which remain living in that area. She has not formed any new relationship since separation, whilst the father now lives in a de facto relationship with a new partner.
The girls’ clearly expressed views that they wanted to go to live in the United States with their mother were reported to the Court by the family report writer.
It was a very big emotional leap for the father to move from his determined opposition to the children’s international relocation to one of acceptance of that outcome and agreement to it. I was quite satisfied, when making the order that permits that, that it is in the children’s best interests in all the circumstances. The father’s recognition of that is to be commended and respected.

The parenting issues remaining to be determined

As can be seen from the parenting orders already made, the parties and the children were to participate in some family therapy over the last couple of months. The younger child was to continue spending time with the father as she had been and it was hoped that there might be some rapprochement between the older child and her father.
Once the girls are living with their mother in the United States, they are, by the agreement between their parents reflected in the orders they asked me to make, to spend time with the father for up to six weeks during their summer school holidays each year in Australia, the US or some other country or countries, at the father’s election. The girls are also to spend time with their father for the entire Christmas holiday period in odd numbered years. That can take place in Australia or the US or another country as agreed between the parties.
The parties agreement to be equally responsible for the cost of the children’s and the father’s economy class airfares between Australia and City Y for the purpose of the children spending time with the father in accordance with the Orders is also reflected in the Orders already made. That is in addition to their agreement for the cost of one return economy class airfare between City Y and Australia for each of the father and the two girls to be paid for out of money currently held in the wife’s solicitors’ trust account for the parties.
Although there are only three parenting issues yet to be decided, they must be decided with regard to the best interests of the children as the paramount consideration and that requires mandatory consideration of the matters that are set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). The inclusion of s 60CC(3)(m) – “any other fact or circumstance that the court thinks is relevant” – makes it a broad inquiry.

Time with the father prior to departing Australia

The existing interim parenting Orders made on 25 February 2014 provide for the children to spend the second half of the school holidays in 2015 with the father. If the parents are adhering to that, then the children would not be spending time with the father now or before they leave Australia. Despite that Order, because the children are leaving Australia on 31 December and may not be spending time with the father until their State X Summer school holidays, I consider it in their best interests to spend as much time with him as possible between now and their departure, subject to seeing their mother on Christmas Day and returning to her care in time for final packing arrangements to be attended to before they leave.
Accordingly, I will order that the children spend time with the father, if they are not already spending time with him by agreement between the parties, then as may be agreed between them but in default of agreement, then from 9:00 am tomorrow until 4:00 pm on Christmas Day and then again from 10:00 am on Boxing Day, 26 December 2015 until 11:00 am on Wednesday 30 December 2015. It is hoped L will spend this time with her father as well as T.

Time with the father in the Christmas holidays in even numbered years

The parents agreed, and it is already ordered, that the children spend their Christmas holidays in odd numbered years with the father. The mother wants the children to spend the entirety of the Christmas holiday period in the other year with her. The father wants them to spend the second half of that holiday period with him.
I understand it is common ground between the parties that the Christmas holidays in the USA are generally two weeks in duration. I expect that Christmas Day would usually fall in the first week. Accordingly, I understand the father’s proposal acknowledges that the girls should spend every second Christmas Day with their mother.
I am of the view that it is appropriate and in the children’s best interests, for them to also spend the second week of their Christmas holidays with their father in even numbered years. If they do not, they could go for almost a year without spending any actual time in his physical presence. However, having regard to flying time between City Y, State X and Brisbane, of which I take judicial notice, and its impact on the time they would then actually get to spend with the father if he was to elect for that second week to be in Australia, I am not of the view that it is in the children’s best interests to spend that week with the father if he chooses for that to be in Australia.
Accordingly, I will order that the children spend the second half of their Christmas holidays in even numbered years with the father provided that such time is spent with him in the USA. If he does not travel to the USA for that week, then they shall stay in their mother’s care for that second half of those holidays.

The time the children spend with the father when he is otherwise in the USA

The mother proposes that if the father is in the USA at any period outside of the children’s Christmas and Summer school holidays that the children spend time with him from after school Thursday until 5:00 pm Sunday in one week and overnight on Thursday in the other week. That accords with the current ordered arrangements here in Australia.
The father proposes that the children spend time with him during any such period from after school or 3:00 pm on Fridays until before school or 8:00 am the following Friday.
The trial revealed that the mother thinks the father could move to State X and obtain work in City Y if he wanted to. The father asserted that such a possibility was not a realistic prospect, considering his employer’s current financial circumstances, his relationship of cohabitation with his current partner and his commitment to the support of his elderly parents who live in northern New South Wales.
I am of the view that it is most unlikely that the father will move to the United States to live. If he did, I do not consider it in the children’s best interests to then be required, by dint of the unexpected operation of the orders I make now, for them to live with the father in an equal shared care regime. However, if he is able to visit City Y outside of the children’s Christmas and Summer school holiday periods, I do consider it is in the girls’ best interests to be able to spend additional time with him, even if it is during school term.
Accordingly, I will order that if the father is in City Y outside the girls’ Christmas and Summer school holiday periods but is not living there, they are to spend time with him for up to one week during which time he is to ensure that they still attend school if during school term. If he is visiting and staying for longer than a week then from the beginning of the second week they shall stay with him from Thursday afternoon to Sunday afternoon during each subsequent week that he is visiting.

Child Support

By her Second Further Amended Response to Initiating Application filed on 17 February 2015, the mother seeks the following Orders pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”):
19.1That pursuant to section 124 of the Child Support Assessment Act 1989 (Cth), in addition to payment of periodic child support in accordance with any child support assessment that is issued from time to time, the husband provide non-periodic child support for the children as follows:
(a)For the periods of Term 3 and Term 4, 2014, the husband meet payment of the outstanding school fees owing to [A School], including any interest or other costs associated with the outstanding fees, such amount to be paid directly to [A School];
(b)For any future period of the children’s schooling in Australia, the husband meet payment of the children’s private school fees, such amount to be paid directly to the children’s schools;
(c)For any future period of the children’s schooling in the united States, the husband meet payment of the children’s private school fees up to a maximum of A$20,000 per annum, such amount to be adjusted in accordance with changes in the Consumer Price Index annually commencing 1 January 2016;
(d)All other education costs for the children including but not limited to enrolment fees, any additional tuition / semester fees, levies, uniforms, books and stationery;
(e)All costs for the children’s extra-curricular activities including compulsory and non-compulsory activities;
(f)All out of pocket medical costs in respect of the children which are not able to be recovered from Medicare, the private health insurer or similar organisation in the United States including but not limited to General Practitioners, hospitals, anaesthetists, specialists, physiologists, podiatrists, dental, orthodontic, physiotherapy, pharmaceutical and chiropractic within 14 days after proof of payment being provided by the wife;
(g)All Private Health Care Costs (being the present level health insurance cover, highest level hospital and extras coverage) and all gap expenses in Australia or in the United States.
19.2That the non-periodic child support payments paid by the husband under Order 19.1 will not be credited against the liability of the husband under any child support assessment that would otherwise issue from the Department of Human Services (Child Support) from time to time.
19.3That, in the alternative to paragraph 19.1(a), pursuant to section 117 of the Child Support Assessment Act 1989 (Cth), there be a departure from the administrative assessment of child support payable by husband to the wife as follows for the period from 1 July 2014 until 31 December 2014, the annual rate of child support be increased by the amount of $18,335.99.

The father simply seeks an order dismissing the mother’s application pursuant to the Assessment Act.
The day before the trial started, senior counsel for the father advanced the argument, in the Summary of Argument filed for the father, that this Court has “no power” to entertain the mother’s application. He founded this argument on a submission that the merging of the SSAT into the AAT that was legislatively effected this year created a complete code covering reviews and appeals relating to child support issues and that such code removes the power of this Court to make child support orders. It was also submitted that because the mother had sought and obtained reviews of the child support assessments through the administrative process that is provided for in the Assessment Act, including to the SSAT (which is now merged into the AAT), she is estopped from making this application to this Court.
At the start of the trial, senior counsel for the father then submitted that the mother’s application should be dismissed because of the doctrine of res judicata. At the time, it was nevertheless agreed that the trial should run and that the issue of whether or not the child support orders sought by the mother should be made be left to be determined at a later time. During the trial, the issue was revisited and senior counsel was informed of my preliminary view that the doctrine of res judicata did not apply. It was again agreed to leave the issue to be determined at a later time and, at the end of the trial, senior counsel informed the Court that the father relied on the doctrine of estoppel and the argument that the child support application constituted an abuse of process in support of his application that it be dismissed. It was then agreed that the matter be determined after receipt of written submissions from both parties.
In his written submissions, senior counsel for the father again submitted that the facts created an estoppel or were such that the mother’s application to this Court is an abuse of process justifying its dismissal.

Some relevant facts

After the family moved to Brisbane, the girls attended A School. After separation, the father was meeting the fees charged by that school and he paid them right up to the middle of 2014. After that, he insisted the mother join him in paying those school fees and he refused to pay them all himself, eventually asking that they be paid from joint funds of the parties held in trust by the wife’s solicitors. Initially, the mother would not agree to that.
On 3 October 2014, whilst these proceedings were pending in this Court, the mother made an application to the Child Support Agency for a change to the assessment of child support in the special circumstances of the case. At that time, the father was assessed to pay child support for the two children at $31,018 per annum. That assessment was made relying on the father’s 2013 income of $201,402 and the mother’s 2013 income of $11,043. The mother sought an increase in the amount the father was assessed to pay. The mother argued that the assessment did not take into account the extra costs involved in educating and training the girls at a private school and that it did not correctly reflect either parent’s income, property, financial resources or their capacity to earn an income.
That administrative application for a change of assessment was unsuccessful and the assessment remained unchanged. The Senior Case Officer (“SCO”) who determined it refused it because “it would not be just and equitable to change the assessment.”
In her reasons, the SCO pointed out that the father’s expenses exceeded his net income by about $1,064 per week and found that he did not then have the ability to make any contribution to the children’s school fees. Those expenses apparently included legal fees in connection with these proceedings as the SCO said:
This may change on finalisation of the Court proceedings as his expenses will reduce as he will no longer have legal fees to pay.
The SCO also pointed out that as the parties were before this Court with respect to property and parenting issues, the Court would be able to deal with any outstanding issues to do with school fees if the parties could not agree on how to deal with them.
A School fees for second semester of 2014 remained unpaid and A School terminated the enrolment of the girls at that school over the summer school holidays of 2014/2015.
The mother then lodged an objection to the decision of the SCO on 6 February 2015. Before that was determined, she filed her Second Further Amended Response in this Court that included the child support orders she now seeks.
At around the same time, the father’s assessed liability had been administratively increased for the period 1 February 2015 to 30 April 2016 to $32,724, based on the incomes of the mother and the father for 2013/2014.
The mother’s objection to the decision of the SCO was disallowed on 8 May 2015. The reasons of the Objections Officer who disallowed the objection included reference to the fact that the parties were negotiating the issue of payment of school fees as part of their property adjustment proceedings in this Court and, for this reason, she could not find that the assessment should then be changed on grounds relating to the children’s education. She also was not satisfied that issues around the father’s income justified a change of assessment.
On 31 May 2015, the mother applied to the Social Security Appeals Tribunal for a further review of her change of assessment application. After that the SSAT amalgamated with the AAT. The application was heard by the Tribunal on 31 August 2015 and the written decision was sent out on 10 September 2015.
In June 2015 the parties agreed to pay the outstanding A School fees from the joint funds held in trust but to leave the determination of how that was to actually be borne as between them to this Court. That amount paid to the school was $18,336. The parties also agreed at that time that the wife would receive the sum of $418 per week backdated to 28 February 2015 from the joint funds held in trust by way of spousal maintenance on an interim basis.
The Tribunal decided that the mother’s application for change of assessment was appropriately rejected and her application for review was unsuccessful. The written reasons reflect that the mother’s case was presented and argued on the basis of seeking a departure from the assessment in respect of fees that had been paid to A School for the cost of the girls’ education in the second semester of 2014 from the joint funds of the parties that were held in trust and on the basis of the payment of the cost of L’s education for 2015 at B School in 2015.
The Tribunal member rejected both arguments, relying on the fact that this Court was being asked to consider how the payment of the A School fees should actually be borne by the parties to reject that part of the mother’s case, and relying on the fact that the parties had agreed that L be enrolled at a State High School in 2015 with the mother unilaterally changing her enrolment to B School to reject that part of the mother’s case.
The mother’s only right of appeal from that Tribunal decision was to the Federal Circuit Court, limited to a question of law.
Then, in his Second Further Amended Initiating Application, filed just a few weeks after the Tribunal’s decision was published, the father amended his application and sought parenting orders from this Court that included an order that L remain enrolled at B School and that T attend that school for high school. The annual fees for L attending that school this year were $5,200. The mother met those herself with assistance from friends.
The matter then came on for trial before me and the mother pressed her application for orders pursuant to the Assessment Act.

The Law

I have no doubt that this Court still has the power to make orders under Divisions 4 and 5 of Part 7 of the Assessment Act in the circumstances prescribed in those Divisions. Any argument that it does not is, in my judgment, without foundation.
A carer entitled to child support, such as the mother in this case, may apply to this Court for an order that an administrative assessment of child support be departed from in relation to a child in the special circumstances of the case if she is a party to an application pending in this Court and this Court is satisfied that it would be in the interests of the father and the mother to consider whether an order should be made for a departure from the administrative assessment in the special circumstances of the case: section 116(1)(b) of the Assessment Act.
Further, where a carer entitled to child support, such as the mother in this case, wants the father to provide child support for the girls otherwise than in the form of periodic amounts paid to her, she may apply to this Court for an order that he do so: sections 122 and 123 of the Assessment Act. There is no jurisdictional barrier to the Court entertaining such an application: see McGuiness v Cowie [2002] 29 Fam LR 441 per Kay J.
The mother applies to this Court for the orders that I have set out in paragraph 37 above. Those can be categorised into three types of payments that she seeks in addition to the periodic amounts paid to her. Alternatively, she seeks periodic amounts set at a higher level than the administrative assessment, at least for the second half of 2014.
Firstly, the mother seeks an order that makes the father solely responsible for the A School fees for second semester last year that were ultimately paid out of the parties’ joint monies held in trust. That could be achieved by the making of an order pursuant to s 124 of the Assessment Act that the father pay that amount back into trust before the money in trust is made subject to property adjustment orders or by making the order pursuant to s 124 of the Assessment Act that the father pay the amount and then simply adjusting for that in the orders to be made after just and equitable property adjustment is determined.
As an alternative to that order, the mother seeks an order pursuant to s 117 of Division 4 of Part 7 of the Assessment Act that there be a departure from the administrative assessment that applied to the father for the period 1 July 2014 to 31 December 2014, with the assessment of the annual rate of his liability for that period to be increased by an amount of $18,335.99. Clearly, that would result in the father having immediate arrears of $9,167.99 (the increased annual rate being applied to the six month period). That would be equal to half of the amount paid from the parties’ joint funds held in trust. Again, that could be left for the father to pay to the mother through the Child Support Agency or it could be adjusted for in the orders to be made after just and equitable property adjustment is determined.
Secondly, the mother seeks an order that makes the father solely responsible for L’s school fees charged by B School for her attendance this year. Those fees have already been paid by the mother. What the mother seeks could also be achieved by the making of an order pursuant to s 124 of the Assessment Act that the father pay that amount to the mother. Again that could be dealt with by way of adjustment to the amount to be paid to the wife in the orders to be made after just and equitable property adjustment is determined.
Thirdly, the mother seeks an order that makes the father responsible for future private school fees up to a maximum of A$20,000 per annum, to be adjusted annually for changes in the Consumer Price Index, plus all other education costs for the children, all the costs of their extra-curricular activities, all the costs of private health insurance and all future out-of-pocket medical expenses for the children. That would require an order to that effect to be made pursuant to s 124 of the Assessment Act.

Further consideration of the husband’s arguments for summary dismissal before considering the merits

As best I can understand the written submissions of senior counsel for the father, his final argument on this point appears to be that the mother is estopped from asserting rights and obligations in this Court pursuant to the Assessment Act because she already asserted those rights and obligations through the administrative process provided for in the legislation, and that administrative process has been finally determined. Additionally, senior counsel’s argument is that the mother’s conduct in asserting those same rights and obligations in the proceedings in this Court constitutes an abuse of this Court’s process as it is unjustifiably oppressive to the father and/or brings the administration of justice into disrepute. Senior counsel appears to submit that the mother was required to elect to take either the administrative review path or the path through this Court, but that she could not take both without being subject to estoppel or the abuse of process point.
With respect to senior counsel, I have no hesitation in rejecting those arguments.
As I clearly pointed out during exchanges on this point during the trial, there is no provision in the legislation that mandates that an election must be made by a parent seeking departure from assessment to pursue the administrative review path only, or, alternatively, to seek departure from a Court exercising jurisdiction under the Assessment Act. There is no legislative provision that proscribes this Court’s jurisdiction to make orders departing from assessment where the administrative review process has already been used to its conclusion.
Indeed, the powers available to be utilised on administrative review are limited and do not include the power to make an order such as those that can be made pursuant to the provisions of Division 5 of Part 7 of the Assessment Act for payment other than in the form of periodic amounts. Those particular powers, now sought to be invoked by the mother, are only given to a Court having jurisdiction under the Assessment Act. There could not possibly be an estoppel in circumstances where she is asking the Court to exercise powers that those involved in the administrative review process did not have. Neither could there be any thought that asking the Court to exercise such powers is an abuse of its process.
Furthermore, those who carried out the administrative reviews on their merits, including the Tribunal, referred to the fact that this Court was going to be dealing with the issue of determining ultimate responsibility for the payment of the A School fees for second semester 2014 as critical to their refusal to depart from the assessment. There is no way, in my judgment, that such a determination could then create an estoppel preventing the mother from actually agitating that very issue in this Court. Neither could the mother’s decision to go on and agitate that issue in this Court constitute an abuse of this Court’s process, in such circumstances.
Additionally, the mother could not legitimately be estopped from agitating for departure from assessment in this Court in respect of the issue of the B School 2015 school fees by the Tribunal’s determination that was based on a finding that the father opposed the child’s attendance at that school when, within a matter of a few weeks of that Tribunal’s decision, the father was seeking parenting orders that the children attend that very same school. Neither could the mother’s decision to agitate that issue in this Court constitute an abuse of this Court’s process, in those circumstances.
I am quite satisfied that the mother’s application for orders pursuant to the Assessment Act should be determined on its merits and I dismiss the father’s application for its summary dismissal.

The child support application on its merits

Although s 123(3) of the Assessment Act says that before hearing an application under Division 5 of Part 7 of that Act the Court must hear and determine any pending application made to the Court for an order for departure from assessment under Division 4 of Part 7, the Full Court in Lightfoot v Hampson (1996) FLC 92-663 per Fogarty J at 82,855 and Kay J at 82,862-82,863 highlighted the practical difficulties in conducting proceedings under Division 4 and Division 5 of Part 7 if that provision was strictly followed. Their Honours said that a failure to comply with s 123(3) is not fatal to the exercise of jurisdiction under Division 5. That position was also followed in In the marriage of Johnson (1998) 24 Fam LR 130 per Finn J at [66] on p 160.
In this case, the mother has an application for orders under

Division 5 of Part 7 and an application for an order to be made under Division 4 of Part 7 as an alternative to one of the orders she seeks under Division 5. In so far as the application for an order under Division 4 of Part 7 can only be heard and determined if the Court is satisfied that it would be in the interests of the parties for the Court to consider whether an order should be made under Division 4 in the special circumstances of the case, I am so satisfied.
The particular order sought pursuant to Division 4 of Part 7 relates to the issue of determining responsibility as between the parties for the payment of B School’s second semester 2014 fees, and, as I have already noted, that is an issue that the upper level decision makers in the administrative review process left alone because they were aware that it was an issue that was going to be litigated in this Court. The parties were before the Court on parenting issues, property adjustment and child support issues pursuant to Division 5 of Part 7 of the Assessment Act in any event. All the relevant financial evidence was before the Court. It was appropriate and in the interests of both parties to hear an alternative Division 4 of Part 7 application at the same time.
The parties agree that from in or around mid-2013, the time of their final separation, the father was assessed by the Child Support Agency to pay $2,903.50 per month ($34,842 annualised) in periodic child support. The mother said that was based on the father’s 2012 taxable income of $265,417 and her income of $25,196.
The parties also agree that in early 2014 the assessment changed and the father was assessed to pay $2,232.33 per month ($26,787.96 annualised) through to 31 January 2015. That change reflected an increase in the time that the girls were in the father’s care.
Sometime in the early part of the second half of 2014, the father’s assessment was changed again to reflect the fact that the older child was not spending any time with him. It was increased to $2,584 per month ($31,008 annualised) for the period from 22 July 2014 to 31 January 2015.
On 22 December 2014, an assessment issued from the CSA assessing the father’s liability for the period 1 February 2015 to 30 April 2016 at the monthly rate of $2,727 ($32,724 annualised).
On 4 June 2015, an assessment issued from the CSA assessing the father’s liability for the period 1 July 2015 to 30 April 2016 at the monthly rate of $2,727 ($32,724 annualised).
There is no difference in those last two assessments despite the apparent change in the period to which the assessments applied. They were both based on “child support income” of the parents (adjusted taxable income less self- support amount of $23,610) of $262,775 for the father and $0 for the mother.
There is no doubt that during cohabitation the parties both expected and agreed that their two girls be educated at private schools, including, after the family relocated to live in Brisbane in 2012, A School, which I consider can be reasonably described as an expensive private girls’ school. Indeed, there is no dispute between the parties that A School’s fees for the two girls’ attendance for the whole of the 2014 school year were a total of $36,520.60.
Up until their separation, the parties paid the school fees from a joint bank account into which both of them deposited their incomes. Clearly though, there was a significant disparity in their incomes at that time, with the father earning very much more than the mother was.

After separation, the parties still clearly expected and agreed that the girls would continue to attend A School. Arrangements for the payment of the fees, of course, changed. In addition to the periodic child support the father was paying to the mother through the CSA in 2014, he also paid A School’s fees up until the end of the Term 2 of that year. However, he did that by using funds distributed to him from the proceeds of sale of one of the parties’ real properties by way of an agreement that each party be paid some funds by way of “part property settlement”.
The mother’s evidence was also that expenses associated with extra-curricular activities undertaken by the girls in 2014 totalled $8,295 for L and $7,176 for T. For L, those consisted of horse riding lessons and mandatory camps and sailing fees. For T, those consisted of horse riding lessons and camp, swimming lessons, music lessons on two instruments, foreign language lessons in French and Mandarin, speech lessons and gifted and talented workshops. Clearly, many of those extra-curricular activities were organised through the girls’ school.
The father said in affidavit evidence that he was paying $99.50 per week towards the girls’ extra-curricular activities. The mother agreed with that. He said that was half the costs of those things, but that amounts to just under $5,200 for the year whereas the mother’s evidence is that the total cost of extra-curricular activities was $15,471 for the year. She said she was again receiving assistance from friends in meeting the part of these costs not being paid by the father.
The father has, since 2014, maintained the position that he simply could not afford to pay the fees from his income. He asserted during the early administrative review process that his total net salary and rental income, averaged out to a weekly amount, was $2,319 in the 2014/2015 financial year. He asserted early in the administrative review process that his total average weekly expenses for the same period were $3,860. The expenses he listed included the weekly periodic child support of $585.23 that he was already paying pursuant to the assessment. That list of average weekly expenses being paid by him also included legal fees of $2,112.07. Without those two amounts, the father’s remaining expenses (which were not challenged as unreasonable by the mother) totalled $1,162.70. Not including the periodic child support or the legal fees in the list of expenses to be considered, would result in a notional surplus of income over expenditure of $1,156.30.
The A School fees for semester 2, 2014 average out to $705 per week. Had the father not been paying his legal fees from his weekly income he could have been paying those school fees in the second half of 2014.
The B School fees in 2015 have been $100 per week when averaged out. Had the father not been paying his legal fees from his weekly income in 2015 he could have been paying those school fees as well. He still could have done that after taking into account the changes in his income and expenditure brought about by the sale of the Sydney investment property earlier this year.
When the review process reached the Tribunal in the middle of this year, the father asserted that his average weekly expenditure was $3,163 without including his periodic child support payments. That list did include legal fees of $2,112. If those legal fees were not included, that list of expenditure would total $1,051. At the same time, he represented that his average weekly salary before tax was $3,403. From that he said he paid $1,092 in tax, $629 in periodic child support, $349 in superannuation and $140 in health insurance premiums. Accepting all those figures as correct, the father would still have a surplus of $142 per week over expenditure if the legal fees he was paying were not included. Again, that would be enough for him to have been paying the B School fees this year.
The wife earned an income from employment during the 2014/2015 financial year. She asserts it was $9,818 gross and $6,143 after expenses. No tax would have been required to be paid by her on that income. She was also receiving rental income from one of the parties’ investment properties. She otherwise supported herself and the girls using the periodic child support paid by the father, money she received from the distribution of the parties’ funds that were realised on the sale of their real properties that was being treated as “part property settlement” and, after June 2015, money from the distribution of the parties’ funds that was being treated as “spousal maintenance”, and by obtaining financial assistance from friends.
At the trial, the father relied on a Financial Statement filed 17 September 2015. In that, he deposed to an average weekly income before tax of $3,403. He also deposed to weekly expenditure of $1,092 on tax, $290 on mortgage repayments (being 50 per cent of the mortgage repayments on the loan taken out to buy a home registered in the name of his partner in which they live), $24 on rates (being half the rates bill), $20 on motor vehicle expenses, $32 on health insurance, $18 on home insurance, $629 on periodic child support payments and $2,673 on other expenditure including $2,112 on legal fees, and $175 on child related expenses for when the child T spends time with him. Again, if the legal fees are not included the father would have a surplus of income over expenditure of $562.

Some more law

To make an order for departure from assessment under Division 4 of Part 7 of the Assessment Act, the Court must be satisfied that one or more of the grounds for departure mentioned in the legislative provisions exist and that it would be just and equitable as regards the children and the parents and otherwise proper to make an order.
To make an order for a lump sum to be paid under Division 5 of Part 7 of the Assessment Act, the Court must be satisfied that it would be just and equitable as regards the children and the parents and otherwise proper to make such an order.
The grounds for departure included in s 117(2) of the Act include the ground that the costs of maintaining the children are significantly affected because the children are being cared for, educated or trained in the manner that was expected by their parents.
I am satisfied that the costs of maintaining these two girls have been significantly affected over the last eighteen months because they were both going to a private school in 2014 in accordance with their parents’ expectations.
In 2015, L has gone to a much cheaper private school. The father contended in the administrative process that he did not agree to her going there. Shortly after that was apparently accepted by the Tribunal, he came to this Court and asked for an order that L continue to go to that school and that T go there when she starts high school. I am satisfied that these parents always expected their children to be privately educated if they could afford it. Private education adds significantly to the normal costs of maintaining children. These parents have always understood that.
Matters to be considered in determining whether it would be just and equitable as regards the children and the parents to order a departure from assessment are set out in s 117(4) of the Assessment Act.
I am satisfied that throughout the second half of 2014 and the whole of this year, the mother would have utilised all of the periodic child support payments she received from the father on maintaining the children. She used the limited income she received and money she was being paid from the parties’ capital to support herself as well.
Given the difference in the income the father and mother were earning when they were together as a couple, it is reasonable to infer that the father’s income was the principal source of the payment of the girls’ private school fees at that time. There is no evidence to suggest that such arrangements were not consensual.
As I have demonstrated, post-separation, but for the legal fees the father said he was paying he still could have paid the A School fees in 2014 and the B School fees in 2015.
By the father’s solicitors’ costs letter of 24 September 2015 that was admitted into evidence, the Court was informed that the father had been billed $174,356.11 in legal fees by the only solicitors who had represented him in these proceedings and that there was $4,743.75 in unbilled work in progress. The letter informed that the firm held $36,248.63 in Trust on behalf of the father. It also informed that the father had paid a total of $109,698.50 to that time and, critically, it informed that all of that money had been paid by the father from contributions from amounts received by him from distributions from the parties’ joint funds held in the mother’s solicitors’ trust account that have been treated by the parties as “part property settlements”.
Accordingly, I do not consider it just and equitable to allow the father to maintain an argument built on the apparently false premise that he has been paying his legal fees from his income. Even if he was, I would not consider it just and equitable to allow a parent to prioritise the payment of their legal fees in proceedings before this Court over their duty to properly maintain their children by contributing equitably to the proper needs of those children, including in accordance with the historical expectations that they clearly shared with the other parent as to the private school education of their children.
In respect to the income, earning capacity and financial resources of the parents in this case, I consider the relevant assessments of the father’s liability to pay periodic amounts of child support for the second half of 2014 and all of 2015 were appropriately determined having regard to the comparative incomes of the parties, their share of care of the children and the costs of maintaining the children but for their school fees. I do not consider the mother’s earning capacity was actually greater than demonstrated by her actual income having regard to the provisions of s 117(7B) of the Assessment Act.
I consider that making orders under Division 4 of Part 7 would, but for consideration of Division 5 of Part 7, be “otherwise proper” having regard to the provisions of s 117(5) of the Assessment Act. However, having regard to the facts of the case and the provisions of Division 5 of Part 7, I have formed the judgment that a more “just and equitable” manner in which to determine the application for orders in respect of the A School fees and the B School fees is to make orders that have the father providing child support for the children, in the form of paying those amounts, over and above the periodic payments he has paid. I do not consider it just and equitable in the circumstances for the parties’ capital to be reduced prior to property adjustment orders being made by using that money to pay the school fees where they could have been paid from income as they were in the past.
However, I do not consider that changing the assessment for the 2014 period and creating immediate arrears to be met by the father by payment to the CSA is the best method of dealing with this issue. I consider that making an order pursuant to s 124 of the Assessment Act that the father pay those A School fees and simply adjusting for that in the orders that are to be made after property adjustment has been appropriately determined is the best way to deal with the matter. I consider that satisfies the requirements of being just and equitable and otherwise proper.
In respect of the B School fees, I am also satisfied that an order pursuant to s 124 of the Assessment Act that the father pay them with appropriate adjustment to the final orders after property adjustment has been determined is also just and equitable and otherwise proper.
I make it clear that I consider that the annual rate of periodic child support payable by the father for the 2014 year and the 2015 year should not be reduced at all by these lump sum payments. My intention is that the father pay these amounts over and above the child support he has paid pursuant to his assessed liabilities. I am satisfied that is the just and equitable and otherwise proper outcome as I am required to be pursuant to s 125(2) of the Assessment Act.
Considering now the mother’s application pursuant to Division 5 of Part 7 in respect of the future, I take the following relevant matters into account:
·The mother says the girls will most likely attend a private school in City Y such as the X School, V School, S School, R High School, M Primary School or W School;
·The mother said the fees for a middle of the range private girls’ school such as R High School are approximately US$13,000 per year per child plus registration fees. For a primary school such as M Primary School, she said they are approximately US$5,000 per annum. At current exchange rates that is A$25,000 per year if one child is at the primary school and one at the high school, but A$41,000 if both are at high school;
·The mother is expecting to go into employment again as a scientific professional in State X with the employer she previously worked for when she lived there many years ago. She says she will earn approximately A$100,000 per annum. The mother said in such circumstances she will be able to contribute towards payment of the children’s school fees;
·The father’s current income is approximately $177,000 per annum. Using the evidence of expenditure he deposed to in his Financial Statement filed 17 September 2015, his surplus of income over expenditure if one does not include the legal fees or the $175 per week expended on the child, T, when she is with him, is $737 ($38,324 annualised);
·The parties have agreed to be equally responsible for the cost of economy travel for the children and the father between City Y, State X and Brisbane for the purposes of the children spending time with the father in the future;
·The parties will both obtain capital pursuant to the property adjustment orders;
·I expect the father’s liability to pay periodic child support payments assessed administratively through the CSA will continue into the future.
If the mother earns A$100,000 per annum and the father A$177,000 per annum that gives a ratio of 64/36.
I consider it is quite reasonable for the mother to continue to cause the girls to be educated at private schools in State X given the parents’ common expectation to this time that the children be educated at private schools and given the parties’ financial circumstances, particularly once the mother starts work in the USA.
I am satisfied that the cost of privately educating the girls according to that expectation ought to be shared equitably by both parents, with the father’s contribution to that being one that should be paid over and above any periodic payments of child support he continues to make as assessed. Indeed, with the mother anticipating earning $100,000 per year in employment in State X the assessed liability of the father for periodic payments is likely to reduce.
I consider it just and equitable and otherwise proper to order the father to pay the mother up to A$16,000 per year (64 per cent of A$25,000) whilst L is at high school and T is attending primary school, up to A$20,000, the amount the mother asks for, whilst ever both children are attending High School and up to $10,000 per year (having regard to inflation, a little more than 64 per cent of A$15,000) whilst T is at high school on her own after L leaves school.
I also consider it just and equitable and otherwise proper to order that the father pay 64 per cent of the costs of private health insurance for the children at the same level of cover that they had during the parties’ marriage and 64 per cent of any medical and dental expenses incurred for the children not covered by the private health insurance, such payments to be made by the father within 28 days after proof of payment being provided to him by the mother. These payments, too, should be in addition to any assessed periodic child support that he pays. I do not consider that assessed child support sufficiently takes into account the payment of private health insurance and the additional medical and dental expenses the carer parent must pay over and above those covered by private health insurance.
I will not make any other child support orders.

Property Adjustment

There is not much dispute between the parties as to the form and value of the property and superannuation interests that are to be adjusted between them. Neither is there any dispute that property adjustment orders are required to be made in order to do justice and equity between the parties. The total net value of the property and superannuation, plus amounts that the parties agree they have already received by way of “part property settlement” less liabilities is close to $2,000,000. The parties do not agree on how the property and superannuation interests should be adjusted. The husband argues for an equal division. The wife argues for a division as to 70 per cent of the total net value to her and as to the remaining 30 per cent to the husband.

Table of Agreed Items of Property, Superannuation, Amounts to be notionally added in and Liabilities

117.

Assets	Who owns	Value
Money held in Hopgood Ganim Lawyers’ Trust Account from sale of three real properties	Joint	$1,193,919.71 (likely to have been effected by interest addition and maintenance deduction)
Mercedes vehicle	Husband	$2,730
Trailer sailer with trailer	Husband	$1,000
Catamaran and trailer	Husband	$4,000
Yacht hull no trailer	Husband	$1,000
Small dinghy	Husband	$500
Box trailer	Husband	$500
Money in Wells Fargo bank account	Wife	$1,822
Money in five Bank accounts	Joint	$2,054
Whitehaven Coal Shares	Husband	$540
AMP Investment Plan	Husband	$1,571
Notional Amounts
Part Property Settlements paid from joint funds by agreement	Husband	$200,000
Part Property Settlements paid from joint funds by agreement	Wife	$200,000
Sub-Total	$1,609.636.71
Superannuation Interests
Public Sector Superannuation	Wife	$33,281.01
MLC Super	Wife	$25,799.78
C Superannuation	Husband	$306,114
Sub-Total	$365,194.79
Total	$1,974,831.50
Liabilities
Husband’s CGT liability on sale of N property	Husband	$83,554
Husband’s CGT liability on sale of G property	Husband	$19,098
Wife’s CGT liability on sale of G property	Wife	$12,915
Total	$115,567
Net Total	$1,859,264.50

There are several matters as to the form and value of the assets, amounts to be notionally added, and liabilities that are disputed. I shall go through them one by one and determine the dispute in respect of each matter as I go.
The wife owns a Mercedes motor car. In the balance sheet her counsel handed to the Court at trial she listed its value at $20,000. The husband did not agree with that figure. No expert opinion evidence of value was adduced. The wife had not sworn to the value of $20,000. In the Financial Statement she filed on 12 September 2014 and relied upon at trial, she swore it was valued at $21,150. The husband agreed to that value being attributed to it. I find the car was worth $21,150 at trial.
The parties disagree on the value of the husband’s interest in the property purchased with his current partner in July this year. The disagreement only relates to treatment of borrowings from the husband’s father. For the wife, it is contended that the borrowing of $60,000 from the husband’s father was a joint debt, owed jointly by the husband and his partner. The husband says he is solely liable for it. I accept the husband’s evidence.

I am satisfied, subject to hearing any objection of the trustee of the husband’s superannuation fund, that those property adjustment and superannuation splitting orders are appropriate and just and equitable.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 December 2015.

Associate:

Date: 22 December 2015

ANNEXURE A

“MINUTES OF CONSENT”

Parenting

Parental responsibility

1.1That the mother have sole parental responsibility for the long-term care, welfare and development of the children, [L] born … 2000 and [T] born … 2004 (the children) save that the mother must, prior to making the sole ultimate decisions about any such issue:
(a)Advise the father in writing of the decision intended to be made;
(b)Seek the father’s written response in relation thereto;
(c)Consider by reference to the children’s best interests any such response prior to making any such decision; and
(d)Advise the father in writing as soon as reasonably practicable of her ultimate sole decision.

Family therapy

2.1That the parties forthwith undertake family therapy, inclusive of the children, as recommended by [Ms P] or any such other practitioner as agreed between the parties, with the cost of such therapy to be paid from the funds held in trust on behalf of the parties.

Living Arrangements

3.1Until such time as the children relocate to [City Y], [State X] with the mother:
(a)the interim Orders of the Family Court of Australia dated 25 February 2014 shall remain in place;

The children live with the mother in [State X], the United States, and the mother have leave to travel with the children outside of the Commonwealth of Australia following Christmas 2015.3.2
3.3The children shall spend time with the father as agreed in writing between the parents and failing agreement as follows:
(a)For a block period of up to six weeks during the summer school holidays in the United States in July/August each year with the Father to notify the Mother at least two (2) months in advance of:
(1)the time period/dates he has elected;
(2)whether the children will be travelling to Australia and/or another country/destination for the purposes of their time with the Father;
(3)whether he will be travelling to the United States for the purposes of their time with the Father;

(b)For the entire United States Christmas holiday period in all odd numbered years (to occur in Australia or the United States or another country as agreed between the parties).

3.4That for the purpose of paragraph 3.3:
(a)the cost of one return economy airfare for the father’s travel to [City Y] in the United States shall be met from the funds held in trust on behalf of the parties;
(b)the cost of one return economy airfare for the purpose of each child travelling once to Australia shall be met from the funds held in trust on behalf of the parties;
(c)the parties shall otherwise be equally responsible for the cost of the children’s and father’s economy airfares between Australia and [City Y] in the United States for the purpose of the children spending time with the father in accordance with these Orders.

Lifting of restraint

4.1That for the purpose of facilitating paragraph 3 of this Order:
(a)Paragraphs 4 and 5 of the Order of the Family Court of Australia dated 12 December 2013 be discharged;
(b)Pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) the mother be at liberty to remove the children from the Commonwealth of Australia;
(c)The children be removed from the All Ports Watch Alert System and Family Law Watchlist by officers or agents of the Australian Federal Police upon receipt of a letter from the mother, [Ms Danson] (or her solicitors HopgoodGanim) with a copy of these orders; and
(d)That the Marshal of the Family Court of Australia, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these Orders.

Other Communication

5.1That the children be permitted to have contact with each parent by telephone, text, email, SKYPE, Facetime or other such means of electronic communication at all reasonable times.
5.2At all times that the children are living with the Mother, the children communicate with the Father via SKYPE (or telephone, if SKYPE is not available):
(a)Each Wednesday at 7.00pm ([State X], United States time); and
(b)Each Sunday at 7.00pm ([State X], United States time).

5.3At all times that the children are living with the Father, the children communicate with the Mother via SKYPE (or telephone, if SKYPE is not available):
(a)Each Wednesday at 7.00pm ([State X], United States time); and
(b)Each Sunday at 7.00pm ([State X], United States time).

5.4Both parents will facilitate the children’s telephone call with the other parent and will ensure that the children are given privacy when on the telephone with the other parent.

Passports

6.1The Mother shall retain the children’s passports in her possession save as provided in the following Orders.

Overseas Travel

7.1Both parents shall be at liberty to travel overseas with the children during such periods as the children are in their care for the purposes of school holidays provided:
(a)the travelling parent provides at least twenty-eight (28) days written notice to the other parent of their request to travel overseas with the children, including:
(1)the approximate departure and return dates; and
(2)the country or countries the children will be travelling to.

(b)At least two (2) weeks prior to the departure date, the travelling parent must provide to the non-travelling parent:
(1)a copy of the children’s itinerary which must include return airfare ticketing;
(2)the approximate dates on which the children will arrive and depart each country;
(3)a landline telephone number and address at which the children can be contacted in each country.

(c)Provided the above conditions have been complied with:
(1)the non-travelling parent shall not unreasonably refuse the request of the travelling parent;
(2)in the event that the Father is travelling with the children, the Mother shall ensure that the children’s passports are provided to the Father at least 48 hours prior to the departure date; and
(3)the Father shall ensure that the passports are returned to the Mother within 48 hours of the children returning from their travel.

Specific Issues

8.1Each party must keep the other parent informed as to their residential address, email address and telephone number/s and advise within twenty-four (24) hours of any change to same.
8.2Both parties refrain from denigrating the other party or members of the other party’s family to the children or in the presence of the children or at all.
8.3Both parties use their best endeavours to ensure that no other person denigrates the other party or members of the other party’s family to the children or in the presence of the children.
8.4Both parties refrain from discussing these proceedings with the children or show to the children any document connected with these proceedings.
8.5That within 28 days the father complete the Triple P parenting course that he has already commenced.

Registration

9.1That within 60 days of the children’s relocation to the United States, the parties do all acts and take all steps necessary to register this Order in the State of [X].