DUCLOS & DUCLOS

FAMILY COURT OF AUSTRALIA

DUCLOS & DUCLOS

[2019] FamCA 925

FAMILY LAW – PARENTING – Where the parties’ children are aged 10 and 12 – Where the husband seeks to live with the children on a week about basis – Where the wife wants to maintain the interim parenting arrangement whereby the children spend five nights a fortnight with the husband – Where both parties have significantly different parenting styles and attitudes – Where findings are made that on occasions the parties’ communication with each other can be dysfunctional – Where it is found that it is in the best interests of the children to spend five nights a fortnight with the husband.

FAMILY LAW – PROPERTY – Where each party seeks a different property settlement order – Where it was agreed that the husband would retain the former matrimonial home in exchange for the payment to the wife of an amount of money – Where determinations were made in respect of how the husband’s current account, Division 7A loans, tax refunds and distributions of the Family Trust should be treated – Where the husband made the major financial contribution – Where the wife made the major nonfinancial contribution – Where the husband has a significantly greater earning capacity than does the wife – Where an adjustment in respect of s 79(4)(d) – (g) considerations was made in the wife’s favour.

FAMILY LAW – CHILD SUPPORT – Where the wife seeks both periodic and non-periodic child support payments - Where the wife seeks a final order by way of departure from the administrative assessment for child support that the husband pay her a periodic amount of $500 per week per child – Where the husband seeks that periodic child support be assessed pursuant to the Child Support (Assessment) Act 1989 (Cth) – Where special circumstances are found to exist – Where it is just and equitable and otherwise proper to make the order as sought by the wife – Where the husband and wife are in agreement in respect of the husband paying for the children’s private school fees – Where the husband seeks that the order for child support be made on the condition that he earn over a certain amount each year – Where that condition is not imposed.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife sought a lump sum, or in the alternative, a weekly payment for a period of 12 months to be paid by the husband – Where the husband resisted the order – Where the husband has the capacity to meet that need – Where the Court finds that the wife has a need, although in a sum less than that sought by the wife – Spousal maintenance made for 12 months.

Child Support (Assessment) Act 1989 (Cth) ss 117, 124, 129, 141
Income Tax Assessment Act 1936 (Cth) Part III
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 72, 79

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429
Gollings & Scott (2007) FLC 93-319; [2007] FamCA 397
Robb & Robb (1995) FLC 92-555; [1994] FamCA 136

APPLICANT:

Ms Duclos

RESPONDENT:

Mr Duclos

FILE NUMBER:

SYC

415

2015

DATE DELIVERED:

5 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

1 - 3 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie, SC

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge, SC

SOLICITOR FOR THE RESPONDENT:

Sexton Family Law

Orders

Parenting

The husband and wife have equal shared parental responsibility for the children of the marriage B, born … 2007 and C, born … 2009 (“the children”).
The children shall live with the wife.
The children shall spend time with the husband during school terms each alternate week as follows:
(a)In week 1, from after school Thursday until the commencement of school Monday morning;
(b)In week 2, from after school Thursday until the commencement of school Friday morning; and
(c)Such further or other times as the parties may agree in writing.
Unless otherwise agreed, in the event the children have spent the last part of the holidays with the wife, then the time referred to in Order 3(a) shall recommence in the first week of the new school term and in the event they have spent the last part of the holidays with the husband, then the time referred to in Order 3(b) shall recommence in the second week of the new school term.
During the Terms 1, 2 & 3 school holidays each year, the children will spend one-half of each holiday period with each parent as agreed between the parties but failing agreement as follows:
(a)For holidays in even numbered years, for the first half with the wife and the second half with the husband; and
(b)For holidays in odd numbered years, for the first half with the husband and the second half with the wife.
During the Term 4 Christmas/New Year school holidays each year, the children will spend time with each parent as agreed between the parties but failing agreement, as follows:
(a)For the holiday period commencing in even numbered years:
i.For the first week of gazetted school holidays in December with the husband;
ii.For the remainder of the gazetted school holidays in December with the wife (subject to 9 am Christmas Eve to 9 am Boxing Day as dealt with in Order 7(f) below);
iii.For the first three weeks of the gazetted school holidays in January with the husband; and
iv.For the remainder of the gazetted school holidays in January with the wife.
(b)For the holiday period commencing in odd numbered years:
i.For the first week of gazetted school holidays in December with the wife;
ii.For the remainder of the gazetted school holidays in December with the husband (subject to 9 am Christmas Eve to 9 am Boxing Day as dealt with in Order 7(f) below):
iii.For the first three weeks of the gazetted school holidays in January with the wife; and
iv.For the remainder of the gazetted school holidays in January with the husband.
The arrangements referred to in Orders 2 and 6, herein, be suspended to the extent necessary to enable the children to spend time:
(a)With the wife on Mother’s Day, from 9 am to 6 pm;
(b)With the husband on Father’s Day, from 9 am to 6 pm;
(c)During any Easter period that falls outside school holidays:
i.For Easters in odd numbered years with the wife; and
ii.For Easters in even numbered years with the husband;
(d)On each of the children's birthdays by agreement, or failing agreement, as follows:
i. in the event that the birthday falls on a weekend, then from 9 am until 2 pm with the husband and from 2 pm until 7 pm with the wife in the year 2020 and every second year thereafter, and from 9 am until 2 pm with the wife and from 2 pm until 7 pm with the husband in the year 2021 and every second year thereafter: or
ii. in the event that the birthday falls on a school day, then from after school until 6 pm with the husband and from 6 pm until 8 pm with the wife in the year 2020 and every second year thereafter, and from after school until 6 pm with the wife and from 6 pm until 8 pm with the husband in the year 2021 and every second year thereafter.
(e)With the parties on their birthday:
i.When it falls on a school day, from after school until 9 am the next morning;
ii.When it falls on a non-school day from 9 am to 6 pm; and
iii.Provided that if such birthday falls during school holidays and during a period the children are away from the Sydney metropolitan area with the other party, such time will occur as soon as practicable upon their return.
(f)During the period from 9 am on 24 December until 9 am on 26 December each year, the children spend time with each of the wife and husband as agreed, or failing agreement:
i.With the wife from 9 am on 24 December 2019 until 9 am on 25 December 2019 and the husband from 9 am on 25 December 2019 until 9 am 26 December 2019 and every second year thereafter; and
ii.With the husband from 9 am on 24 December 2020 until 9 am on 25 December 2020 and the wife from 9 am on 25 December 2020 until 9 am on 26 December 2020 and every second year thereafter.
For the purpose of these orders, changeover will occur at the children’s school or as otherwise agreed between the parties in writing, unless the children are not attending school on the day of the changeover in which event changeover will occur with the husband to collect the children from the wife’s residence when the children are to commence living with him, and the wife to collect the children from the husband’s residence when the children are to commence living with her.
Neither party enrol the children in any extra-curricular activity without first liaising with the other parent and taking into account the views of the children in relation to each activity, provided that this order does not apply to the children’s current extra-curricular activities.
Neither party enrol the children in any extra-curricular activity nor engage the children to attend any social or other activity that will occur in the time that the children are with the other parent, without that parent’s consent in writing provided that this order does not apply to the children’s current extra- curricular activities.
Both parties be and are hereby restrained from removing the children from the Commonwealth of Australia without the consent in writing of the other party, with such consent to not be unreasonably withheld, provided that:
(a)The travelling parent provides the non-travelling parent with written notice of their intention to travel with the children not less than four (4) weeks prior to the intended departure from Australia;
(b)The travelling parent provides the non-travelling parent not less than four (4) weeks prior to the children departing Australia, copies of the following documents:
i.A copy of the travel itinerary including details of all travelling passengers and addresses for all places at which they will be staying whilst overseas;
ii.Telephone number/s upon which the children can be contacted whilst overseas;
iii.Copies of the children's return airline tickets; and
iv.Copies of travel insurance covering the children; and
(c)During such times that the children are travelling overseas, the travelling parent shall do all things to facilitate telephone communication between the children and the non-travelling parent no less than twice a week, or at any time that the children request to speak to the non-travelling parent, with the travelling parent to ensure that the children communicate with the non-travelling parent via SMS text message or the like upon their arrival at the overseas destination.
Upon written notice being given by one of the parties to the other that a passport renewal or application is to be made for one or both of the children or a visa or other travel document is required, the wife or the husband shall, within 7 days from the date of receipt of the said notice, sign all necessary passport or other applications and consent forms and provide the children's birth certificates and any other associated documents required.
The children’s passports will be retained by the parent with whom the children most recently travelled overseas.
In the event that a child requests to electronically communicate with the parent they are not living with or spending time with, the other parent is to facilitate that communication.
Neither parent shall denigrate the other party in the presence or hearing of the children nor permit the children to remain in the presence of or hearing of any persons who engage in such conduct.
Each parent will facilitate contact with the other parent when the children are in his/her care with such contact to be in accordance with the children’s wishes and/or at reasonable times requested by the other parent.
Both parties are permitted to attend at the children’s school events, functions and other activities involving parents when the children are not in his/her care.
Both parties are permitted to attend at the children’s extra-curricular training, games, ceremonies and other related social functions even if the children are not in his/her care.
Both parties do all acts and things and sign all documents necessary to authorise any school attended by the children to provide to each parent all particulars of the children’s schooling, including but not limited to, the provision of school reports, notices of the school, photographs, circulars sent to parents, emails sent to parents, notices of school excursions and any other activity of which the child is a participant.
Both parties do all acts and things and sign all documents necessary to authorise any medical practitioner, specialist, orthodontist, psychologist or any other health professional to communicate and provide information to the other parent in relation to the children’s health.
Each parent shall keep the other advised of their current email address and contact telephone number and residential address and shall advise the other of any changes within 48 hours of such a change occurring.
Each parent do all acts and things to advise the other promptly of any medical emergency or significant illness suffered by the children whilst in the party’s care, including provision of sufficient details to enable both parties to be consulted with respect to and fully advised with regard to such illness and any treatment recommended or provided.

Property

Pursuant to s 79 of the Family Law Act 1975 (Cth) a property settlement order be made in the terms of paragraphs 24 to 37 below.
Within 2 months of the date of these Orders, the husband pay direct to the wife, to an account nominated by her, the sum of $2,224,008.
In the event that the husband defaults in the payment referred to in paragraph 24 above, then interest shall run from the due date for payment until the date of actual payment at the rate prescribed by the Family Law Rules and should such default continue for a further period of 1 month, then the husband shall do all acts and things and execute all documents, instruments and writings necessary to effect a sale of the property situated at and known as U Street, Suburb F (“the Suburb F property”) for a price to be nominated by the wife, with the proceeds of sale to be disbursed in the following manner and priority, namely:
(a)In payment of the agent’s commission and legal expenses on the sale;
(b)In payment of the amount required to discharge the existing mortgage to Westpac Bank (save the husband to pay any amount by which the mortgage exceeds $2,028,376); and
(c)Payment of the balance to the wife (subject to paragraph 26).
In the event that the Suburb F property sells for more than $3,000,000, any increase will be divided 58 per cent to the wife and 42 per cent to the husband. In the event that the Suburb F property sells for less than $3,000,000 the wife will bear 58 per cent of the shortfall and the husband will be required to pay the wife the amount referred to in paragraph 27 which is reduced by 58 per cent of the shortfall.
In the event that there is a sale under paragraph 25, then the husband shall still be liable to pay the wife the sum of $1,252,384 in lieu of the amount referred to in paragraph 24 together with interest in accordance with the Family Law Rules and the wife shall have liberty to apply on 7 days’ notice to enforce this paragraph.
The sale, as referred to in paragraph 25 above, shall be on terms nominated by the wife, including a solicitor and agent nominated by the wife and the husband shall give vacant possession of the Suburb F property to enable the completion of the sale.
The husband indemnify and keep indemnified the wife from and against all actions, claims, suits or demands howsoever made against the wife in relation to or arising out of the following:
(a)AA Pty Limited and/or the Duclos Family Trust and/or Duclos Super Pty Ltd and/or the Family Superannuation Fund and/or the P Firm Trust and/or the P Firm Practice Trust and/or Duclos Pty Ltd and/or the Provident Fund;
(b)Any liability being taxation or otherwise of the wife in relation to or arising out of any distributions or alleged distributions to the wife from the Duclos Family Trust and/or the P Firm Trust and/or the P Firm Practice Trust and/or any entity as described in paragraph 29(a) above;
(c)Any liability to Westpac Banking Corporation in relation to a Westpac Business Loan and/or ANZ Banking Group in relation to a loan for the P Firm Capital Contribution;
(d)The husband's Q Project;
(e)Any liability to the husband's children G and H; and
(f)The Suburb F property.
Simultaneously with the payment referred to in paragraph 24 herein, the wife will repay to the husband the sum of $852.50, being one-half of the updated valuations paid by the husband in the first instance in accordance with Orders dated 30 January 2019.
Simultaneously with the payment referred to in paragraph 24:
(a)The wife do all acts and things and sign all documents necessary to transfer to the husband her share in the company known as Duclos Super Pty Ltd and to resign from any office held in that company; and
(b)The wife do all acts and things and sign all documents necessary to transfer to the husband all her shares in the company known as AA Pty Ltd, and to resign from any office held in that company.
Within 14 days of the date of order, the parties cause the Westpac account ended …63 to be closed, and the proceeds distributed to the wife.
Within 14 days of the date of order, the husband will make available to the wife all videos which include the children and/or the wife taken during the relationship, on the following basis:
(a)The husband will provide to the wife any videos he does not wish to retain, clearly labelled to indicate the wife may retain them; and
(b)The husband will make available to the wife all videos in his possession that he wishes to retain and the wife will obtain copies of any of those videos selected by her, at her cost and will return such hard copies within a further 14 days.
As between the parties the wife will retain the following:
(a)Proceeds of bank accounts in her name;
(b)The motor vehicle in her possession;
(c)Furniture, furnishings and personalty in her possession; and
(d)Superannuation entitlements in her name.
Except as otherwise provided in these orders as between the parties the husband will retain the following:
(a)The Suburb F property;
(b)Proceeds of bank accounts in his name;
(c)The motor vehicle in his possession;
(d)His interest in AA Pty Ltd, the Duclos Family Trust, Duclos Super Pty Ltd, the Family Superannuation Fund, the P Firm Practice Trust, Duclos Pty Ltd and the Provident Fund;
(e)His interest in the P Firm Capital Account;
(f)His interest in the Q Project;
(g)Furniture, furnishings and personalty in his possession; and
(h)Superannuation entitlements in his name.
Other than as specifically dealt with herein the wife be declared the sole owner of all items of furniture, property, effects and superannuation in her name possession, custody or control.
Other than as specifically dealt with herein the husband be the sole owner of all items of furniture, property, effects and superannuation in his name possession, custody or control.

Child support

There be a departure from the Administrative Assessment for Child Support payable by the husband to the wife for the children, and that the husband pay to the wife the sum of $500 per week per child, payable fortnightly with the first payment to be made on the first Monday after the date of these Orders and thereafter payable each fortnight;

By way of non-periodic child support, the husband pay:
(a)All educational expenses for the children at D School, or such other schools as agreed between the parties, including such fees to include all tuition fees, excursion fees, sports, clubs, books, uniforms and extra-curricular activities; and
(b)Medical benefits cover at the top rate to cover the children together with any gap expenses and all medical, dental, optical, orthodontic, hospital, pharmaceutical, physiotherapy, podiatry, chiropractic and other medical expenses not covered by the private health insurance.
The child support payable by the husband pursuant to Orders 37 and 38 above is to account for 100 per cent of the annual rate of child support payable by him under any administrative assessment of child support to the wife for the period from the date of the making of these Orders until the happening of a child support terminating event in respect of each child.

Spousal maintenance

The husband pay to the wife by way of spousal maintenance the sum of $661 per week for a period of 12 months from the date of these orders.

Section 106A of the Act

In the event either party refuses or neglects to sign any deed or instrument to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act to sign such document on behalf of such party to give effect to the operation of the deed or instrument.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 415 of 2015

Ms Duclos

Applicant

And

Mr Duclos

Respondent

REASONS FOR JUDGMENT

Introduction

These are final parenting and property proceedings between Ms Duclos (“the wife”) and Mr Duclos (“the husband”). The parties commenced cohabitation in early 2005, married in 2006 and separated in January 2014.
There are two children of the relationship, namely, B, born in 2007 who is currently aged 12 and C, born in 2009 who is currently aged 10 (collectively, “the children”).

Documents relied upon

The documents relied upon by each party are set out in Schedule 1.

Short History

The husband was born in 1965 and is currently 54 years of age.
The wife was born in 1972 and is currently 47 years of age.
In 2001, G, the elder child of the husband’s first marriage was born and is currently 18 years of age.
In 2003, H, the younger child of the husband’s first marriage was born and is currently 16 years of age.
The husband and wife commenced cohabitation in early 2005.
The parties married in 2006.
B was born in 2007 and is currently 12 years of age.
C was born in 2009 and is currently 10 years of age.
The parties separated on 28 January 2014.

Applications

The wife is seeking orders that would continue the existing spend time arrangement, whereby the children stay with their father each Wednesday night and each alternate weekend from Friday evening until Monday morning before school. In addition, the wife seeks that orders are made that would allow for each of the parents to see the children during Christmas Eve/Day.
The husband is seeking an equal time arrangement with the children. In addition, the husband seeks that the Christmas holiday period be spent as a block period, so that the children spend Christmas Day and Christmas Eve with one party in alternate years. This is to allow him to take the children on holidays.
In regards to the property proceedings, it is agreed that the husband will pay the wife a sum of money in exchange for him being declared the sole owner of the former matrimonial home, the P Firm Practice Trust (“the Practice Trust”) and the Duclos Family Trust (“the Family Trust”).
The wife is seeking that the husband pay her an amount of $2,500,000 within two months (with default sale provisions that the former matrimonial home be sold if the husband does not comply). The wife is also seeking an amount of $78,000 payable as lump sum spouse maintenance, or in the alternative, an amount of $3,000 per fortnight for a period of 12 months.
The husband seeks an order that he pay the wife an amount of $1,680,000 within four months and that the parties otherwise keep all other assets in their respective name, including superannuation. He opposes the wife’s application for spouse maintenance.
In addition, the wife seeks a Child Support Departure Order, with the husband to pay her $500 per week per child and an order to cover all medical, private school and extra-curricular activity expenses. The husband seeks to pay child support as assessed and in addition, an order that he pay the private school fees (excluding extra-curricular activities not agreed to by him) only if the amount he receives from his employer exceeds $350,000 per annum.
The final orders sought by the wife in her Further Amended Initiating Application filed 18 June 2018 are set out in Schedule 2.
The husband’s proposed minute of order (Exhibit 41) is set out in Schedule 3.

Detailed Chronology

The husband was born in 1965 and is currently 54 years of age.
The wife was in 1972 and is currently 47 years of age.
In 2001, G, the elder child of the husband’s first marriage was born and is currently 18 years of age.
In 2003, H, the younger child of the husband’s first marriage was born and is currently 16 years of age.
The husband and wife commenced cohabitation in early 2005. At that time, the wife was working at the R Group and was earning approximately $80,000 per annum and the husband was working as a professional and was earning approximately $200,000 per annum.
On 19 June 2006, the husband signed Consent Orders in respect of property and parenting matters and entered into a Child Support Agreement with his first wife, Ms J.
In September 2006, the husband received $106,400 of the proceeds of sale from his one-half interest in the property at S Street, Suburb T (“the Suburb T property”) as a result of the property settlement with his first wife.
The parties married in 2006.
In June 2007, the husband purchased in his sole name the property at U Street, Suburb F (“the former matrimonial home”) for $1,200,000 ($1,300,000 plus conveyancing and stamp duty on the wife’s evidence). The husband says he contributed $252,188 to the acquisition of the property. The parties commenced renovating the former matrimonial home.
In 2007, B was born and is currently 12 years of age. The wife ceased work shortly prior to giving birth to the parties’ elder child and soon after received a payout of $31,446.74 as a result of a redundancy.
In late 2007, the husband set up a superannuation fund in the wife’s name and commenced making contributions to that fund from his earnings.
In 2008, the husband received an inheritance of $10,000 from his grandmother.
In 2009, the parties conducted further renovations to the former matrimonial home. The husband says the total costs of the renovation were $850,000. They were funded by the husband’s earnings, a $50,000 gift from the wife’s aunt and the husband says, $20,000 which he withdrew from the trust accounts of the children from his first marriage.
In 2009, C was born and is currently 10 years of age.
In April 2013, the husband became a partner at P Firm.
In the financial year ending June 2013, the wife earnt $6,500 gross for her work.
The parties separated on 28 January 2014. The wife left the former matrimonial home with the children and moved into her mother’s and step-father’s residence. The children commenced spending approximately three nights a fortnight and half of the school holidays with the husband.
From March 2014, the wife commenced receiving loans from her aunt and currently owes her $166,825.
On 21 August 2014, the wife filed her tax return for the year ending 30 June 2014 and received a tax refund of $37,470.76. The wife applied those funds to repay some of the monies she owed to her aunt.
From 24 April 2015, the wife commenced receiving loans from her sister and currently owes her $62,500.
On 27 April 2015, interim orders were made by consent requiring the husband to pay the wife $1,500 per week by way of spousal maintenance and $245 per week per child plus private school fees in respect of the children.
From July 2015 until July 2016, the wife recommenced work at the R Group. The wife’s taxable income for the year ended 30 June 2016 was $218,637.
On 23 November 2015, the husband was ordered to pay $36,938.76 in respect of the outstanding tax liability associated with the wife’s tax return ending 30 June 2014.
On 10 December 2015, an interim order was made which increased the time the children were spending with their father to five nights a fortnight. Interim orders were also made dismissing the husband’s application to discharge the spousal maintenance order and dismissing the wife’s application to increase it.
In March 2016, B was diagnosed with ADHD and was prescribed Ritalin.
In April 2017, the wife entered into a $52,990 loan, in her Aunt’s name, to purchase a motor vehicle and currently pays $237 by way of repayment.
From 16 December until 30 December 2017, the husband took the children to Asia.
On 12 September 2018, the wife commenced work as an assistant one day a week at a rate of $45 per hour.

B’s school camp in 2018

There was some time spent during the hearing exploring the circumstances of B going to school camp in September 2018.
The school camp took place in V Town from 12 to 14 September 2018 and was part of the school curriculum. On 12 September 2018, the mother dropped B at school at 6:45 am and B took the school bus to camp with the other children (approximately a three hour drive). That evening, B was driven back home from camp by the parents of one of his classmates who was also returning from camp early. B arrived home at approximately 9:30 pm. The purpose of his return was so he could attend an interview with the family consultant the following day. The next day, on 13 September 2018, after the interviews with the family consultant concluded, the mother took B to Sydney Airport and flew with him back to V Town to attend the remainder of the school camp.
Settlement negotiations were taking place between the parties and those negotiations fell through shortly before the camp was to take place. The mother thought the proceedings would settle on a final basis and that the family report interviews would not be necessary.
A number of issues were raised in relation to the school camp:
a)Whether the husband knew B had gone to school camp;
b)Whether the wife had acted appropriately when making arrangements for B to come back from the school camp for the interviews with the family consultant and then to return to camp;
c)Whether B thought it was his father’s fault that he had to come back from camp;
d)Whether the wife had deliberately made the arrangements to sabotage B’s interviews with the family consultant by suggesting to B it was the husband’s fault that he had to come back from camp;
e)What the incident says about the husband’s insights as to what was in B’s best interests; and
f)The nature of the parents’ ability to communicate.
In his trial affidavit, the husband asserts that he “assumed that B would remain home from a school camp in V Town” and that the “return to camp was done without the consent of either the school or me”. The husband’s evidence was that he was not aware that B was at camp until he rang B’s school on 12 September 2018, after the wife failed to respond to a text message that he had sent her regarding changeover. A series of text messages were tendered (Exhibit 21) and are in the following terms:
[Husband:]     Is B at school today? Just checking for pick up purposes
[Husband:]     Can you please come back to me on this. Need to organise
[Wife:] B is in V Town and I will get him to Family Court tomorrow.
[Husband:]     What???? This is unacceptable
How are you getting him to court? Why didn’t you raise any of this with me? I’ve had to be on the phone to the school to try and find out where my child is
This is unacceptable on so many levels
[Wife:] You knew he was on school camp and have known about this for ages – B will be at Court tmrw which is what was expected – stop calling the school please.
[Husband:] [The wife] – the school didn’t know what was going on. I should have known what was going on. I had no idea that he was on camp. I expected to collect his this afternoon - that is why I sent the texts
[Wife:] No you knew he was on camp – I am not stopping him from attending camp because of Court. He will be at Court as required and he is on school camp tonight with his friends – please stop making this so difficult
[Husband:]     You cannot just do this. Neither can the school.
[Wife:] Yes we can. B is on camp and you aren’t meant to have him tonight. You knew he was going on camp as you spoke to him on the weekend. He will be in Court tmrw – please stop getting involved when your son is away enjoying himself
[Husband:]     I will take up with the court.
[Wife:]         Take it up with the Court
[Husband:]     And the school
[Wife:]          Take it up with the school
[Husband:] By the way the school said that you are at work. What work is that?
[Wife:]          It is my first day leave me alone please.
[Husband:]     Doing what?
(As per original)
The husband followed up by sending the wife a message on 15 September 2018, stating:
Just noting that you kept B at yours last Wednesday night without my knowledge and in breach of the orders. Also confirming that you flew him back from the court without informing me and without consent from either me or the school. [The second sentence was not a controversial fact]
It was not disputed that B had told the husband over the phone that he was packing for camp and the husband accepted that he knew B was very excited to go on camp. The wife asserts that “At no time leading up to the camp did [the husband] raise any concern about B attending”. It was either disingenuous of the husband to pretend in the text exchange that he did not know B was at school camp or the husband lacked insight if he knew B was excitedly packing for school camp but assumed the wife would prevent him from going.
In her oral evidence, the wife asserted that she told B the night before the camp that he “may” have to come home on the first evening of the camp in order to attend an interview with the family consultant. She asserts that her intention in doing so was to “break it to him lightly”. On the morning of the camp, as B was about to get on the bus, the mother told B that he would, in fact, have to return to Sydney that evening. The mother also asserts that she spoke to two teachers from B’s school the night before the camp but accepted that she only informed the teacher travelling with him to the camp on that morning. At the time B left for camp, the wife had not confirmed how he would travel to and from the camp to attend the interviews.
It was the wife’s position that it would be in B’s best interests to attend the camp and that, “he would be more distressed if he hadn’t been to the camp at all.” It was not disputed that B was very excited about the camp and on the evidence of the wife and maternal grandmother, B was very upset about having to leave the camp early. When interviewing B, the Family consultant noted at paragraph 50 that “he was also clearly disgruntled about having to interrupt his school camp to attend the Family Report assessment”.
B appeared to believe that it was his father’s fault that he had to return from camp early. The family consultant noted at paragraph 51 that:
B seemed to be under the impression that he was obliged to attend the Family Report interviews due to his father refusing to sign papers. He expressed concerns that his maternal grandmother might have to sell her house (due to the outcome of Court proceedings).
In his trial affidavit at paragraph 80, the husband asserted that when he saw B at the family report interviews he was, “distant and would not look me in the eye which is very out of character for him.” The wife and the maternal grandmother denied telling B that it was the husband’s fault that he had to return early from camp. The wife explained that she had been having conversations with the maternal grandmother about the settlement negotiations between herself and the husband in the lead up to school camp but that they were not in the presence of the children. The maternal grandmother suggested that B may have overheard those conversations (see further discussion at [79]). I am unable to conclude that either the wife or her mother were intentionally responsible for B forming any view that it was his father’s fault that he had to return from camp.
Senior counsel for the husband was critical of the wife for sending B on camp and for not informing the school or B at an earlier date that he may have to return from the camp early. Whilst the wife might be criticised for failing to keep the husband totally in the loop and for making arrangements at the last minute, looking overall at the situation the wife faced, I am unable to conclude that the wife acted inappropriately.
I also conclude that this incident demonstrated the following:
·The ability of the parties to communicate with one another about relatively simple things can, on occasions, be dysfunctional;
·At best, the husband assumed, without checking with the wife, that B would not go to camp, notwithstanding, that he knew how excited B was about going to camp and that B had told a number of people about how excited he was;
·Even during the hearing, the husband showed virtually no insight about how B felt about going to school camp and maintained his view that the wife should have kept him home from school camp so that he could go to the interview without having to have come back from V Town; and
·The husband lacked the insight that doing what he asserted was best for B would have created even more resentment in B than he already felt.

parenting proposals of the parties

Notwithstanding the problems in communication and decision making demonstrated by the difficulties in B going to school camp (as just discussed from [49] to [60]) as well as the administration of B’s medication and what sports he should play (discussed below at [99] to [109]), the parties agree that there should be an order for equal shared parental responsibility. It follows, that the Court must consider whether or not it is in the children’s best interests and reasonably practicable, for the children to spend equal time with each of their parents (s 65DAA(1) of the Family Law Act 1975 (Cth) (“the Act”)). The husband seeks that order.
In the event that no order is made for equal time, the parties both proposed that the husband should spend substantial and significant time with the children although the terms of that order remain in dispute. In final submissions, senior counsel for the husband proffered that, if the husband was not successful in obtaining a week about arrangement, then, in the alternative, he would take any additional time that the Court thought might be in the best interests of the children in excess of five nights a fortnight.
The family consultant recommended a continuation of the present five night a fortnight arrangement, with the possibility of changing the arrangement from the present Wednesday overnight each week to Thursday. The effect of that would be to reduce the number of changeovers, which both parties agree have been problematic at times, from six to four per fortnight. The wife, in final submissions, indicated that she would be prepared to accept that as an alternate proposal.

Both parties agree that school holidays should be shared equally, although they are in disagreement about how the period over each Christmas should be allocated.
The parties have agreed on most other parenting issues, although there are some specific issues upon which they have not agreed and which are discussed in further detail below ([129] – [137]).

The approach in children’s cases

The objects of Part VII of the Act are to ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children;
b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects (unless contrary to the child’s best interests) are:
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right to spend time on a regular basis and communicate on a regular basis, with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
a)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

Statutory Considerations

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

The parties are agreed that the children currently have the benefit of a meaningful relationship with both parents.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

There is no issue in respect to abuse, neglect or family violence.

The additional considerations

Children’s views (s 60CC(3)(a))

At the date of the interviews with the family consultant, the children were spending five nights each fortnight with their father during school term.
When interviewed by the family consultant, B expressed his views about time spent with his parents as follows:
52. … B said that he likes living with his grandparents and likes his parents both the same amount as each other. He said that he does not want to comment on the amount of time spent with each parent and said he was sure that C would express a view and that he (B) was happy with that.
53. B seemed conscious of upsetting his parents and indicated he felt that this had occurred after the 2015 assessment. He said that, if he did spend a “tiny bit more” time with his father, he does not want to spend that extra time with C, and that he would prefer separate times.
Neither party proposed that B would spend time with his father in C’s absence.
In regards to C’s views, the family consultant reported that:
55. … [C] said that he could maybe spend one more day with [his father] and pointed out that the arrangements are not really fair because, even with this increase, they would still not be spending even half the amount of time with [his] father.
…
57. C said that he is generally quite happy about spending time with either parent and described both parents (and the housekeeper, [Ms M]) as “kind”. He said that during holiday periods of three, or four, weeks’ duration, he may miss the parent he is not spending time with.
…
59. … He said that if the Court decided to maintain the current arrangements, then he would be alright, but that he would really like one more day with [his father].
The husband asserted in his written evidence that C had told him that prior to the interviews in 2015 with the family consultant who produced the Child Responsive Memorandum, the wife and the maternal grandmother said things to the children about how they should express their views and both children had said the wife and the maternal grandmother reacted badly after the release of the 2015 Child Responsive Memorandum.
Neither child expressed the view that they wanted to live week about with their father.
As discussed above, the husband highlighted the following statement made by B to the family consultant:
B seemed to be under the impression that he was obliged to attend the Family Report interviews due to his father refusing to sign papers. He expressed concern that his maternal grandmother might have to sell her house (due to the outcome of Court proceedings).
The maternal grandmother gave evidence and was an impressive witness. I accept her explanation that on the eve of the school camp the wife was distraught because her expectation that the matter would settle on an overall basis had been frustrated. The maternal grandmother explained that it was her understanding that the sticking point related to a condition that the husband sought to put in place where his payment of the children’s school fees at D School was dependant on the level of income he was receiving from time to time. Whilst I am not aware of the conditions that were expressed by the husband during the negotiations at the time, I do know the husband’s current proposal. The maternal grandmother said that it was in that context that she had told her daughter that she would ensure the children were not taken out of D School even if it required her to sell her house. I accept the maternal grandmother’s evidence that it was likely that B overheard that conversation, notwithstanding, that the conversation was not had in his presence. I accept that as the explanation for the words B said to the family consultant.
In cross examination, senior counsel for the husband asked the family consultant whether she had formed the view that the reason B did not want to be involved in the interview process was because he had gotten into trouble with his mother for things he said in the previous assessment. The family consultant responded that whilst B had “felt that his mother wasn’t very happy with him with the previous report” she did not believe that that was the reason he sought to defer his views to C, stating that he was unhappy about being at the interview and having been removed from camp. She also discussed B’s general unhappiness about being involved in the family report process and the position that it put him in.
The expression of B’s views were not forthcoming because of his negative feelings about being asked to express them. He indicated he would spend a “tiny bit more” time with his father but not if C was there.
C was content with the current arrangements but really wanted one more night (six nights a fortnight). C was nine at the date of the interview.
Overall, I do not place significant weight on the expressed views of either child when consideration is given to the other matters that have to be taken into account when arriving at a conclusion as to what proposals are in the best interests of the children.

Relationships of the children with the parents and other persons (s 60CC(3)(b))

There is no issue that both children have a meaningful relationship with each of their parents and that they also have a strong relationship with the maternal grandmother and their maternal step-grandfather. In addition, it is not controversial that the children have a good relationship with their half-sisters who are members of the husband’s household approximately week about and with Ms M, the children’s long term nanny. Ms M had been a carer in the parties’ home prior to separation and remained assisting the husband since separation. She commenced to stay overnight in the former matrimonial home for the first time a few months after the separation. She generally attends the home from Wednesday to Saturday and gave evidence that she would be available six out of seven days a week if that was required. She otherwise lives on the Central Coast.

The extent to which each of the children’s parents have taken the opportunity to participate in making decisions about major long-term issues in relation to the children, and to spend time with and communicate with the children (s 60CC(3)(c))

The parties raise some complaints about the other in relation to specific issues (such as the events surrounding B’s camp and the administration of B’s medication etc.) and their difficulties in making joint parental decisions, which are discussed elsewhere in the judgment. Apart from that, neither party raises complaint against the other about them failing to participate in the children’s lives.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

The wife has made complaints from time to time that the husband has been late with periodic payments. The husband in oral evidence conceded that that was so, although there was some question as to whether or not some of the difficulties arose from a reassessment by the Child Support Agency when collecting payments. Although in his case outline document the husband asserts that his application for periodic payments went beyond an assessment under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) so as to facilitate a lifestyle beyond what would otherwise be available upon such an assessment, his actual formal application is that periodic payments be assessed under the Assessment Act from time to time. Apart from the difficulties in respect of the timing of payments, there is no suggestion that at the time of the hearing the husband was in substantial arrears arising from his current obligations. The husband also makes non-periodic payments to cover some of the children’s private school expenses.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

Whilst the children are doing well in the current arrangement, a change from the Wednesday to Thursday night would be to their benefit as it reduces the number of changeovers. A move to a week about arrangement is untested.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

The husband currently resides in the former matrimonial home, whilst the wife lives primarily with the children in the maternal grandmother’s and step-grandfather’s home. The parties live a distance of approximately 25 minutes apart. The logistics of changeover do not seem to be presenting any problem due to Ms M and the wife taking on the majority of that responsibility.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))

The parties each have different parenting styles.
The wife believes the husband loves the children and she does not think the husband is a bad parent.
To date, due to the husband’s heavy work commitments, he is far less available to the children than is the wife.
The husband points to the parenting of his two elder children of his first marriage. Their mother is a professional who often travels with her work. As the children became older they spent more time in their father’s household with the assistance of the wife and the nanny. This, however, was not the arrangement when they were younger at which time they spent less of each week in the husband’s household.
It is agreed that from 2020, B will go to D School. Senior counsel for the husband cross examined the wife and the family consultant about a proposal that on a week about basis from 2020, B would walk from school to his father’s offices when he finished school and stay there until his father was ready to go home. Pausing there, this was not a proposal the husband had set out in his evidence and consequently, he had not been asked any questions about this proposal.
Senior counsel for the husband, presumably on the instructions of the husband, suggested to the family consultant that the children would benefit from and have the right to, experience the husband’s working patterns. He argued that the children need to understand how hard the husband works and why it is that they have the privileges that they do including top class educational opportunities. The family consultant responded that she thought the children already had that experience (three nights a fortnight) and that they didn’t need an extension of that experience to develop their understanding about the long hours worked by the husband.
Ms M gave evidence that when the children are staying with the husband she collects them from school, takes them to their after school activities, takes them home and gives them their dinner. On Thursday morning she assists the husband in preparing the children’s lunch and bags and then drives them to school. She is not, however, responsible for their homework. Ms M gave evidence that after school C might do homework, whilst B might play outside or watch television or play video games. Their father comes home at around 7 pm.
The husband indicated in his evidence that he has a degree of flexibility in his work to look after the children. At paragraph 35 of his trial affidavit, the husband says:
… I have a core team of senior professionals which gives me greater flexibility in relation to my hours of work and periods of leave. I am fully set up and capable of working from home and accessing all of my work files electronically. For the last 8 years, I have usually taken leave for approximately half of the school holidays and intend to continue doing so moving forward … If there is ever any significant illness or other pressing need for the children, I am in a position to take time off work to be available for them.
However, since 2015, he has demonstrated little flexibility in being able to be available to the children on each Wednesday afternoon and each second Friday afternoon after they finish school.
The husband was cross examined regarding a Wednesday afternoon when no one had come to pick the children up after school. This was in circumstances where Ms M was unaware that summer sport had ended at D School. The children waited in the library and Ms M received a call to come pick up the children from the school. The husband agreed that it was his responsibility to stay informed about the children’s extra-curricular activities and inform Ms M of the same.
The wife gave evidence that there is difficulty with getting B to do homework. It is not controversial that B simply does not bring homework to his father’s home on Wednesday nights. B’s school reports note that he completes homework “Sometimes”. It doesn’t reflect well on the husband’s parenting capacity that he is unable to ensure that B brings homework to his home on Wednesdays and completes it.
B has been diagnosed with both hypermobility and ADHD. There has been a considerable amount of tension between the parents in regards to how to best manage these conditions for B. Specifically, the wife and husband had disagreed about how ADHD medication should be administered to B and about which sports are appropriate for him to play as a result of his hypermobility. These conditions also appear to have some impact on his performance at school.
B attended a number of medical professionals in relation to both of those conditions. In 2016, B attended upon Dr W who reported that he had “behaviours consistent with the diagnosis of ADHD” and that he may benefit from medication. Both parents state that they were initially hesitant about B taking medication for ADHD and the wife asserts that she tried other methods of assisting B, for example, using charts and photos to help him with organisation. Upon the request of the husband and the agreement of the wife, B attended a second specialist, Dr X, who also recommended medication. After a trial period of Ritalin (which required two dosages per day), B commenced taking one tablet of Vyvance before each school day.
It was common ground that the husband did not administer B’s medication as he had not had access to it prior to the hearing. The wife gave evidence that it was her view that the husband could not be trusted to give B his medication. The wife or the maternal grandmother would attend B’s school on the mornings that B has stayed with the husband, in order to provide him with his medication. During holiday time spent with the husband, of up to three weeks duration and on the weekends, B did not take medication. As indicated below, it was only on the Friday before the commencement of the final hearing that the husband obtained a prescription for B’s medication.
Paragraphs 27 and 40 of the Family Report are in the following terms:
27. [The wife] also claimed that [the husband] does not give B his prescribed medicine (for Attention Deficit Disorder) as he [the husband] allegedly does not accept this diagnosis. [The wife] said that she, therefore, meets B and C at school on Monday and Thursday mornings to give B his medication.
…
40.[The husband] also indicated that he feels insulted at [the wife]’s concern that he may not give B his ADD medication. He said that he has never been provided with the medication or prescriptions and attributes this to [the wife]’s controlling tendencies. He acknowledged that she is a very competent, caring parent, but perceives that she is sometimes overly controlling. He said that there have been times when [the wife] has needed him to look after the children while she is away and that she has not, at these times, expressed any concerns about his care of, and routines with, the children.
At paragraph 19 of the husband’s trial affidavit, he says that whilst he remains “somewhat uncomfortable with B being on the medication” he has accepted the recommendations of specialists. The husband asserts that he had asked the wife to give him some of the medication so that he can administer it to B when B is in his care. At paragraphs 21 and 22 of his trial affidavit, the husband asserts (at a time that B was trialling the Ritalin):
21. … On 22 February 2018 I forwarded a text to [the wife] stating “Please give me some of the Ritalin can [sic] I can give to B before school when I have him. Please also let me know how long the trial is for and when his next appointment is”. On 24 February 2018 I received a reply text stating “No”.
22.On 28 February 2018 in response to further texts asking for Ritalin [the wife] stated: “how could I trust you would remember to give B a tablet?” I replied “I gave them the malaria tablets didn’t I?’, and [the wife] responded “call Dr X” and “Not relevant”
The husband also adds that the wife had told him to get a separate prescription from Dr X and that he did not believe that that was a “sensible or pragmatic suggestion as we will both end up having scripts, and given her current practice of attending school, it could lead to B receiving twice the dosage.”
In cross examination, the wife agreed that she had prevented the husband from being involved in administering the medication to B, despite permitting the maternal grandmother (or during the trial of Ritalin, the school) to administer the medication. The wife emphasised that this type of medication “can’t be missed, it needs to be administered” at school, but also agreed that this medication is required to be skipped every weekend and school holiday to give B a break because the medication suppresses his appetite. The wife stated in her trial affidavit at paragraph 65:
My preference is for [the husband] to obtain his own script for Vyvance to have at his home and have his own supply of Vyvance as this will lessen any friction between us if Vyvance is not returned after the time the Children spend with him, or if I forget to send it with B. I have concerns about the medication being forgotten because by way of example, in the past when either B or C have been on antibiotics, I have sent the antibiotics with the Children to [the husband]’s and the medication is not returned on the Monday. The medication for B also costs me approximately $40 per month and I simply cannot afford to pay for a new script if [the husband] does not return B’s medication to me.

That in the event that there is a shortfall in the payment to the Wife following the sale in accordance with Order 2 above, then the shortfall shall be a debt payable by the Husband to the Wife together with interest in accordance with the Family Law Rules and the Wife shall have liberty to apply on 7 days notice to enforce the Orders.
That the sale as referred to in Order 2 above, shall be on terms agreed and with an agent and solicitor as agreed or failing agreement as follows:
a.The sale shall be by private treaty for 3 months and, if contracts are not exchanged during that period, the sale shall proceed by way of public auction within a further 2 months at a reserve price agreed, or failing agreement, as determined by President of the New South Wales Division of the Australian Property Institute.
b.In the event that the property does not sell at the auction referred to in Order 4(a) above, then the property shall be resubmitted for further auctions at 2 monthly intervals at a reserve price agreed, or failing agreement, a reserve price which is 5% less than the immediately preceding auction.
That the Husband indemnify and keep indemnified the Wife from and against all actions, claims, suites or demands howsoever made against the Wife in relation to or arising out of the following:
a.AA Pty Limited and/or the Duclos Family Trust and/or Duclos Super Pty Ltd and/or the Family Superannuation Fund and/or the P Firm Trust and/or the P Firm Practice Trust and/or Duclos Pty Ltd and/or the Provident Fund.
b.Any liability being taxation or otherwise of the Wife in relation to or arising out of any distributions or alleged distributions to the Wife from the Duclos Family Trust and/or the P Firm Trust and/or the P Firm Practice Trust and/or any entity as described in Order 5(a) above.
c.Any liability to Westpac Banking Corporation in relation to a Westpac Business Loan and/or ANZ Banking Group in relation to a loan for the P Firm Capital Contribution.
d.The Husband's Q Project.
e.Any liability to the husband's children G and H.
f.The property U Street, Suburb F.
That other than as specifically dealt with herein the Wife be declared the sole owner of all items of furniture, property, effects and superannuation in her name possession, custody or control.
That other than as specifically dealt with herein the Husband be the sole owner of all items of furniture, property, effects and superannuation in his name possession, custody or control.
That in the event either party refuses or neglects to sign any deed or instrument to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act to sign such document on behalf of such party to give effect to the operation of the deed or instrument.

SPOUSE MAINTENANCE

That within 28 days the Husband shall pay to the Wife the amount of $78,000 payable as lump sum spouse maintenance, reflecting the amount of $1,500 payable each week for a period of 12 months.
That in the alternative to Order 9 above, the Husband shall pay to the Wife the amount of $3,000 per fortnight as she may direct in writing, with the first payment to be made on the first Monday after the date of these Orders and thereafter payable each fortnight for a period of 12 months.

CHILD SUPPORT DEPARTURE

That there be a departure from the Administrative Assessment for Child Support payable by the Husband to the Wife for the children, and that the Husband pay:
a.To the Wife, the sum of $500 per week per child, payable fortnightly with the first payment to be made on the first Monday after the date of these Orders and thereafter payable each fortnight;
b.All educational expenses for the children at D School, or such other schools as agreed between the parties, including such fees to include all tuition fees, excursion fees, sports, clubs, books, uniforms and extra-curricular activities;
c.Medical benefits cover at the top rate to cover the children together with any gap expenses and all medical, dental, optical, orthodontic, hospital, pharmaceutical, physiotherapy, podiatry, chiropractic and other medical expenses not covered by the private health insurance;
with the final payments to be made on the happening of a child support terminating event in respect of each of the children respectively as defined by Section 12 of Child Support (Assessment) Act 1989.
That the child support payable by the Husband pursuant to Order 11 above is to account for 100% of the annual rate of child support payable by him under any administrative assessment of child support to the Wife for the period from the date of the making of these Orders until the happening of a child support terminating event in respect of each child.

SCHEDULE 3

NOTE: the paragraphs highlighted in the husband’s application are those agreed to by the wife.

Husband’s Proposed Minute of Order

That all previous orders in this matter be discharged.

Parenting

That the husband and wife have equal shared parental responsibility for the children of the marriage B, born … 2007 and C, born … 2009 (“the children”).
That during school terms the children live with the parents on a week about basis, with changeover occurring after school each Monday (or at 6 pm on Monday, where the Monday is a public holiday).
That for the purpose of Order 3 herein and unless otherwise agreed, in the event the children have spent the last part of the holidays with the wife, then they will spend the first week (or partial week) of term with the husband, and in the event they have spent the last part of the holidays with the husband, they will spend the first week (or partial week) of term with the wife
That during school holidays the children spend one-half of each school holiday period with each parent by agreement between the parties, and failing agreement as follows:
a.In even numbered years, the children will spend the first half of each holiday period with the wife, and the second half with the husband (which will include any Christmas school holiday period that commences in an even numbered year); and
b.In odd numbered years, the children will spend the first half of each holiday period with the husband (which will include any Christmas school holiday period that commences in an odd numbered year), and the second half with the wife;
Provided that:
c.For the purpose of this order, school holidays will be defined to commence at the conclusion of school on the last day of term for the children (and where the children cease attendance on different days, on at the conclusion of the school day for the child who finishes later), and will conclude on the morning of their resumption of attendance at school (and where the children resume attendance on different days, at the commencement of the school day for the child who resumes earlier);
d.Where there is an odd number of nights in the school holiday period, the children will spend the additional night with the parent with whom they spend the first half of the holidays.
That the arrangements referred to in Order 2 and 5 herein be suspended to the extent necessary to enable the children to spend time:
a.with the wife on Mother’s Day, from 9 am to 6 pm;
b.with the husband on Father’s Day, from 9 am to 6 pm;
c.during any Easter period that falls outside school holidays:
i.for Easters in odd numbered years with the wife; and
ii.for Easters in even numbered years with the husband;
d.with the wife on the wife’s birthday:
i.when it falls on a school day, from after school until 9 am the next morning;
ii.when it falls on a non-school day from 9 am to 6 pm;
provided that if such birthday falls during school holidays and during a period the children are away from the Sydney metropolitan area with the husband, such time will occur as soon as practicable upon their return.
That for the purpose of these orders changeover will occur at the children’s school or as otherwise agreed between the parties in writing, unless the children are not attending school on the day of the changeover in which event changeover will occur with the husband collecting the children from the wife’s residence at the commencement of time the children are to commence living with him, and the wife to collect the children from the husband’s residence when the children are to commence living with her.
That neither party enrol the children in any extra-curricular activity without first liaising with the other parent, and taking into account the views of the children in relation to each activity.
That neither party enrol the children in any extra-curricular activity nor engage the children to attend any social or other activity that will occur in the time that the children are with the other parent, without that parent’s consent in writing.
That either party is entitled to remove the children from Australia to travel overseas during periods that the children will be with them in accordance with these orders (or such other period as may be agreed between the parties in writing) PROVIDED THAT he/she gives to the other party at least 4 weeks prior notice of the intended trip together with details of the proposed travel itinerary.
That upon notice being given by the husband to the wife or the wife to the husband pursuant to Order 10 herein, the wife or the husband shall, within 7 days from the date of receipt of the said notice do all acts and things necessary to cause the children's passports to be delivered or to be processed and made available to the other party and sign any documents and do anything else necessary to facilitate the travel.
That upon written notice being given by the husband to the wife or the wife to the husband that a passport renewal or application is to be made for one or both of the children or a visa or other travel document is required, the wife or the husband shall, within 7 days from the date of receipt of the said notice sign all necessary passport or other applications and consent forms and provide the children's birth certificates and any other associated documents required.
That during any time the children are travelling overseas, the travelling parent will facilitate regular telephone communication with the other parent, such telephone communication to occur not less than twice each week.
That the children’s passports will be retained by the parent with whom the children most recently travelled overseas.
That neither parent shall denigrate the other party in the presence or hearing of the children nor permit the children to remain in the presence of or hearing of any persons who engage in such conduct.
That each parent will facilitate contact with the other parent when the children are in his/her care such contact to be in accordance with the children’s wishes and/or at reasonable times requested by the other parent.
That both parties are permitted to attend at the children’s school events, functions and other activities involving parents when the children are not in his/her care.
That both parties are permitted to attend at the children’s extra-curricular training, games, ceremonies and other related social functions even if the children are not in his/her care.
That both parties do all acts and things and sign all documents necessary to authorise any school attended by the children to provide to each parent all particulars of the children’s schooling, including but not limited to the provision of school reports, notices of the school, photographs, circulars sent to parents, emails sent to parents, notices of school excursions and any other activity of which the child is a participant.
That both parties do all acts and things and sign all documents necessary to authorise any medical practitioner, specialist, orthodontist, psychologist or any other health professional to communicate and provide information to the other parent in relation to the children’s health.
That each parent shall keep the other advised of their current email address and contact telephone number and residential address and shall advise the other of any changes within 48 hours of such a change occurring.
That each parent do all acts and things to advise the other promptly of any medical emergency or significant illness suffered by the children whilst in the party’s care, including provision of sufficient details to enable both parties to be consulted with respect to and fully advised with regard to such illness and any treatment recommended or provided.

Property settlement

That within 7 days of the date of order, the husband pay to the wife the sum of $1,680,000 by way of property settlement.
That simultaneously with the payment referred to in Order 23 herein, the wife will repay to the husband the sum of $852.50, being one-half of updated valuations paid by the husband in the first instance in accordance with Orders dated 30 January 2019.
That within 14 days of the date of order, the wife will make available to the husband all photographs which include the children and/or the husband taken during the relationship, on the following basis:
a.The wife will make available to an independent technician retained by the husband at his cost all devices on which photographs are stored, which includes the desktop computer removed from the home by the wife and the children’s iPads, and the parties will instruct the technician to copy all photographs, and to return the devices to the possession of the wife;
b.The wife will make available to the husband all hard copy photographs in her possession, and the husband will obtain copies of photographs selected by him, at his cost, and will return such hard copies within a further 14 days.
That within 14 days of the date of order, the husband will make available to the wife all videos which include the children and/or the wife taken during the relationship, on the following basis:
a.The husband will provide to the wife any videos he does not wish to retain, clearly labelled to indicate the wife may retain them;
b.The husband will make available to the wife all videos in his possession that he wishes to retain, and the wife will obtain copies of any of those videos selected by her, at her cost, and will return such hard copies within a further 14 days.
That within 28 days of the date of order:
a.the wife do all acts and things and sign all documents necessary to transfer to the husband her share in the company known as Duclos Super Pty Ltd, and to resign from any office held in that company;
b.the wife do all acts and things and sign all documents necessary to transfer to the husband all her shares in the company known as AA Pty Ltd, and to resign from any office held in that company.
That within 14 days of the date of order, the parties cause the Westpac account ended …63 to be closed, and the proceeds distributed to the wife.
That as between the parties the wife will retain the following:
a.Proceeds of bank accounts in her name;
b.The motor vehicle in her possession
c.Furniture, furnishings and personalty in her possession; and
d.Superannuation entitlements in her name.
That except as otherwise provided in these orders as between the parties the husband will retain the following:
a.The property at U Street Suburb F;
b.Proceeds of bank accounts in his name;
c.The motor vehicle in his possession;
d.His interest in AA Pty Ltd, the Duclos Family Trust, Duclos Super Pty Ltd, the Family Superannuation Fund, the P Firm Practice Trust, Duclos Pty Ltd and the Provident Fund;
e.His interest in the P Firm Capital Account;
f.His interest in the Q Project;
g.Furniture, furnishings and personalty in his possession;
h.Superannuation entitlements in his name.
That other than as herein provided, the parties retain all assets and superannuation in their own name, and remain liable for all liabilities in their own name at the date of order.

Spouse maintenance

That the wife’s application for spouse maintenance be dismissed.

Child Support

That the Child Support Assessment in respect of the children B and C be varied such that the husband pay child support as follows:
a.Periodic child support in respect of C and B as assessed from time to time under the Child Support (Assessment) Act.
b.Non-periodic child support being all tuition fees and other compulsory charges listed on the school account for attendance by C and B at D School.
Subject to Order 35, that in the event the husband’s income is less than $350,000 per annum before tax or the husband is out of work for any 12 month period Order 33 is discharged.
That for the purpose of Order 34 herein, “the husband's income” is defined to mean the sum of:
a.Partnership drawings or income otherwise received by the husband from a partnership:
b.Partnership drawings or income otherwise received by any entity operated by the husband from a partnership;
c.Income protection insurance payments;
d.Salary, including bonuses;
e.Workers compensation payments;
f.Investment income;
g.in each case before tax, during the relevant period.
In the event that either party refuses or neglects to do all acts and things and sign any document necessary to give effect to these Orders then pursuant to Section 106A of the Family Law Act 1975 a Registrar or a Deputy Registrar of the Family Court of Australia at Sydney is hereby appointed to execute all Deeds and documents in the name of the Applicant or the Respondent and do all acts and things necessary to give validity and operation to the said Orders.
That the wife pay the husband’s costs of and relating to these proceedings.

[2019] FamCA 925

5 December 2019

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs